Fugitive postpones day of reckoning

More than two decades after he was first arrested in his native Britain in connection with sexual exploitation of boys, the tortuous legal saga of fugitive Lee Nigel Tucker is now before the Constitutional Court in South Africa. Tucker, who has been living in Cape Town since fleeing British justice, is fighting extradition  on the grounds that UK law discriminates against gay men,  and that the extensive media coverage of his first trial means he cannot get a fair hearing from a British jury.

The Constitutional Court was asked this week to rule on whether the Cape Town Magistrate’s Court, which in 2017 ordered that Tucker was liable for extradition, should have allowed him to present evidence to back  his claim that the British legal system discriminates against gay men.

Tucker is sought in the UK in connection with a number of sexual offences committed against boys in Wales, some dating to 1983.

Tucker told the magistrate’s court, among other things, that he was innocent and that the witnesses against him had been manipulated to say that they were under the age of consent when the sex acts took place.

At the heart of the evidence he wished to put before the extradition inquiry was that under British law sexual offences against girls are “time-barred” and cannot be prosecuted after two years, but no such prescription applies to sexual offences against boys.

Tucker was among a group of men arrested in Britain in 1999 as part of a police swoop on a paedophile ring. Ten of the men were convicted of serious sexual offences.

Tucker was arrested and charged on 24 November 1999. On the last day of his trial he skipped bail and fled to South Africa.

He was convicted in his absence and given a jail term, but despite being on the run he was able to lodge an appeal against his conviction, and in May 2002 the British Court of Appeal overturned the verdict.

As it had been a jury trial, the appeal court found that the judge’s summation at the end of proceedings was not sufficient. A retrial was ordered.

When the British authorities learnt in 2016 that Tucker was in South Africa, they applied for his extradition.

According to papers before South African courts, further investigation by British detectives meant that Tucker faced an additional 49 charges in connection with sexual offences committed against eight complainants aged between 12 and 15.

These offences are alleged to have been committed between 1983 and 1993. Local police arrested Tucker after the extradition request was received and he first appeared in the magistrate’s court on 13 October 2017 for a ruling on whether he was liable to be surrendered to the UK, and if so whether he should be held in prison until the minister of justice had signed the necessary order.

Tucker indicated that he wanted to lead expert evidence on British criminal law showing that it discriminated unfairly against homosexual men, but the court refused to allow this.

The court also refused to hear evidence about the impact of the media attention Tucker had received in the UK — which he described as “vile”, “distorted” and “exaggerated” — on the fairness of a new trial.

The magistrate ruled that Tucker was liable for extradition, and should be committed to prison pending the justice minister’s decision.

Tucker appealed this ruling in the Western Cape High Court and  asked for the proceedings against him to be reviewed and set aside, calling them “manifestly and grossly irregular”  and in breach of his constitutional rights.

In his ruling, high court judge Mark Sher criticised the way the magistrate had conducted proceedings and held that he should have allowed Tucker to submit the evidence he believed was relevant.

“In this regard the prosecutor [in the extradition hearing] points out that [Tucker] is to be prosecuted in the UK,  not for his sexual orientation, as a homosexual, but his paedophiliac molestation and rape of children,” Sher said.

“Neither in this country, nor I venture to suggest in the UK, can it be said that a person accused of heinous sexual offences against children has the right to bar the media from covering the proceedings, nor does such a person enjoy the right to prevent a prosecution from taking place because of any complaint they may have about the exposure they received.”

The judge upheld the magistrate’s finding that Tucker was liable for extradition, but ordered that the extradition inquiry should be reopened “to allow [Tucker] an opportunity, if he so wishes, to put before the magistrate  … an affidavit by an expert on UK law, in relation to the alleged discriminatory features thereof”.

Tucker should also be allowed to submit “any documentary evidence pertaining to the alleged unfair media coverage which the appellant has received”, and the magistrate could decide whether to forward this to the minister of justice.

The office of the Western Cape Director of Public Prosecutions appealed this aspect of Sher’s ruling, asking the Constitutional Court to pronounce on the issue of whether the magistrate in charge of an extradition inquiry should consider constitutional or “fair trial rights” issues in the country seeking the extradition order, or if it is an issue that only the minister of justice should address.

Advocate Anton Katz SC, who acted pro bono for Tucker at the request of the Constitutional Court, said the process to get information before the minister of justice would be eased by putting it before the magistrate’s court, but South African extradition legislation did not provide for this.

He said that in some cases, the medical condition of a person awaiting extradition would be relevant, and should be taken into account by the minister.

“I know of cases where people well into their 80s are facing extradition,” Katz said. “It would be easier to put medical evidence before the court rather than before the minister.”

Katz argued that a magistrate is obliged to admit evidence relating to the surrender of an extradition subject, notwithstanding the fact that the magistrate does not have to make a ruling on it but is only obliged to decide whether a person is extraditable or not.

The Constitutional Court reserved judgment. DM168