QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
| HANIF MOHAMMED UMERJI PATEL
|- and -
|(1) THE GOVERNMENT OF INDIA
(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Julian Knowles QC and Aaron Watkins (instructed by The Crown Prosecution Service) for the First Respondent
Jonathan Glasson (instructed by the Treasury Solicitor) for the Second Respondent
Hearing dates: 28 February 2013 and 1 March 2013
Crown Copyright ©
Mr Justice Kenneth Parker :
The Appeal Against the Decision of the District Judge
i) The continuing pursuit of extradition by the requesting State "for the purpose of an unviable prosecution" in India is an abuse of the process of the Court.
ii) For the same reason, the Appellant's liability to detention is arbitrary and a violation of Article 5 ECHR.
iii) The District Judge wrongly held that there was a case to answer under section 84(1) of the EA 2003.
iv) Extradition is barred by the lapse of time.
v) There is a real risk that the Appellant's trial would constitute a flagrant denial of justice and his extradition would violate his rights under Article 6 ECHR.
vi) There is a real risk of torture contrary to Article 3 ECHR in the light of new evidence not available to the District Judge.
The First Ground: Abuse of Process
"There is (still) a fundamental assumption that the requesting state is acting in good faith."
In R(Ahmad) v Secretary of State  EWHC 2927 (Admin) at paragraph 101, Laws LJ restated this important principle in the following terms:
"But when the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force… It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here."
"The prosecutor must act in good faith. Thus if he knew he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of no case." (emphasis added)
"The residual abuse jurisdiction identified in R (Bermingham) v Director of Serious Fraud Office (2007) QB 727 and the Tollman case (2007) 1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of these two cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know the trial cannot succeed, they abuse the extradition processes of the requested state." (emphasis added)
"… that co-accused, abettor or conspirator is charged and tried in the same case together with the accused." ("the relevant proviso", emphasis added)
"Unless a person who is charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of the trial. Merely because at some stage there was some accusation, unless the charge has been framed and he has faced trial till its completion, the confessional statement if any is of no assistance to the prosecution so far as the co-accused is concerned."
The Second Ground: Article 5 ECHR
The Third Ground: No Prima Facie Case
"If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him."
"Depositions or statements on oath, taken in a foreign state, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Act."
"A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated."
"Section 14 of the Extradition Act where it speaks of 'affirmations' and 'depositions' and 'statements on oath' is dealing with documentary evidence. It makes admissible in evidence in extradition proceedings written statements of fact which fall within any of those descriptions and are duly authenticated in manner provided for in s15, notwithstanding that under English laws of evidence what appears in the statement would only be admissible in the form of oral testimony given on oath by the maker of the statement. The manifest purpose of the section, as has frequently been stated, is to obviate the necessity of bringing witnesses from one country that is a party to an extradition treaty to give oral evidence in the other."
"What section 11 [of the Fugitive Offenders Act 1967] is dealing with is the way of presenting evidence to the committing court. Since witnesses in proceedings of this type cannot be expected to travel all the way from a foreign country to the place of committal, and documentary evidence of what they would say and exhibit is therefore to be allowed, safeguards have to be imposed to make sure that only authenticated evidence as provided for by section 11 is to be allowed in and not documents or exhibits in any form. This section is dealing with procedure and method but not with admissibility.
The right view of the expression at the end, for example, of section 11 (1) (a) that the documents shall be admissible as evidence of the matter stated therein is that this is an enabling provision allowing documents with due authentication to be put before the magistrate so that he may receive them knowing that they are vouched for by the country from which they purport to come, and he may therefore have regard to them for the purposes of the committal proceedings. But it does not mean that anything which is in that document, regardless of whether or not it complies with the ordinary rules of evidence which would be applied in the committing court, shall be considered by the magistrate.
Having got thus far, one asks next what rule of evidence could or should be applied to the evidence of Mr Lord in similar committal proceedings in England in the ordinary way. Would Mr Lord's evidence be admissible?"
(See also R v Governor of Pentonville ex part Osman  IWLR 277 at 306-309; R v Stipendiary Magistrate ex parte Dokleja, 31 January 1984 (unreported) CO/523/93 at page 73; and Fernandez v Governor of HMP Brixton  EWHC 2207 (Admin) at para 47).
"…it was common ground in the proceedings before us that, by virtue of section 11 of the Fugitive Offenders Act 1967 [another forerunner of what is now section 202 of the EA 2003], the evidence is properly admitted, despite the absence of the witness herself."
"18. Mr Vullo also submits that the statement of Marin could not under s 84(2b) be treated as admissible evidence of any relevant fact because he says direct oral evidence by Marin of any relevant fact would not be admissible if the proceedings were the summary trial of an information against him. Mr Vullo contends that Marin is a co-accused and that in the putative summary trial referred to in s 84(1) he would not be able to give admissible evidence. Therefore direct oral evidence of Marin would not be admissible at such a trial.
19. That is undoubtedly the position in domestic law so far as co-accused are concerned: see the Youth Justice and Criminal Evidence Act 1999, s 53(4) and (5) which is set out in Archbold at para 853. This preserves the long-standing restriction imposed by the Common Law and illustrated by R v Payne  1 All ER 102, 48 LGR 187, 114 JP 68. However, prosecutors have long been able to circumvent this restriction in practice either by terminating the proceedings against the accused, for example through a nolle prosequi by the Attorney General or by first completing the accused's trial before prosecuting his co-accused. In either case, the accused ceases to be a co-accused within the meaning of the Youth Justice and Criminal Evidence Act and the legal restriction on the competency of an accused no longer pertains. If it had been the case that Mr Marin was simply an incompetent witness, I can see that an argument could properly be advanced under s 84(2) that direct evidence from Mr Marin would not have been admissible at a summary trial.
20. That, in my judgment, is the only criterion that needs to be satisfied. Mr Vullo suggested that it was necessary to go further, that a further criterion should be read into s 84 whereby domestic rules about admissibility of interviews made at a time when an accused is a co-accused may not be admitted in evidence. However, there is no such reference at all in s 84 to any such further matters. The only matter that has to be considered is whether Marin would have been a competent witness.
21. In this case it is not disputed that Marin had already been sentenced and dealt with by the time of any putative summary trial. At the putative summary trial he would be competent to give evidence on behalf of the prosecution and his evidence that the Appellant had confessed to the robbery would be admissible evidence of the fact that the Appellant had indeed committed the robbery, under the relevant Common Law exception to the exclusionary hearsay rule, specifically preserved by s 118 of the Criminal Justice Act 2003."
The Fourth Ground: Extradition Would Infringe the Appellant's Rights Under Article 6 ECHR
The Fifth Ground: Extradition is Barred by Passage of Time
"82 Passage of time
A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied on as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of delay due to such causes are of his own choice and making. Save in most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
"26. This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'.
27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether 'mere inaction' on the part of the requesting state 'was blameworthy or otherwise' could be 'an invidious task'. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski's case, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under s 85(3) of the 2003 Act)."
At para 29, the Court continued:
"We are accordingly in no doubt that it is Krzyzowski's case, rather than the Divisional Court's judgment in the present case, which correctly states the law on the passage of time bar to extradition. The rule contained in Diplock para 1 should be strictly adhered to. As the rule itself recognises, of course, there may be 'most exceptional circumstances' in which, despite the accused's responsibility for the delay, the court will nevertheless find the s 82 bar established. The decision of the Divisional Court (Hobhouse LJ and Moses J) in Re Davies (30 July 1997, unreported), discharging a defendant who had become unfit to plead notwithstanding his responsibility for the relevant lapse of time, may well be one such case. In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat his extradition."
"Before leaving India he [the Appellant] was aware of police interest in him for the offences with which his extradition is sought. He was evading arrest. It is accepted he fled India in breach of his bail condition and to avoid arrest on these terrorism charges. He travelled to England arriving on 16 February 1996. On 8 May 1996 he claimed asylum … On the face of it that brief historical account renders any submission under section 82 of the Act quite hopeless."
"I am not satisfied the Appellant was tortured. I consider it more likely than not that he has invented this false claim. Most probably the claim is only advanced in an attempt to defeat this extradition request. His credibility is therefore seriously compromised."
Sixth Ground: there is a real risk that the Appellant would be tortured or otherwise suffer treatment that would violate Article 3 ECHR
The Appeal Against the Decision of the Secretary of State
Applicable Provisions Regarding Specialty
"(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.
(2) But subsection (1) does not apply if the person consented to his extradition under section 127 before his case was sent to the Secretary of State.
(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within subsection (4), or
(b) he is first given an opportunity to leave the territory.
(4) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;
(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;
(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(5) Arrangements made with a category 2 territory which is a Commonwealth country or a British overseas territory may be made for a particular case or more generally.
(6) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 2 territory which is a Commonwealth country or a British overseas territory and stating the terms of the arrangements is conclusive evidence of those matters."
"(1) Any person who is returned to the territory of the Requesting State under this Treaty shall not, during the period described in paragraph (2) of this Article, be dealt with in the territory of the Requesting State for or in respect of any offence committed before he was returned to that territory other than:
(a) the offence in respect of which he was returned;
(b) any lesser offence disclosed by the facts proved for the purposes of securing his return other than an offence in relation to which an order for his return could not lawfully be made; or
(c) any other offence in respect of which the Requested Party may consent to his being dealt with other than an offence in relation to which an order for his return could not lawfully be made or would not in fact be made.
(2) The period referred to in paragraph (I) of this Article is the period beginning with the day of his arrival in the territory of the Requesting State or his return under this Treaty and ending forty-five days after the first subsequent day on which he has the opportunity to leave the territory of the Requesting State.
(3) The provisions of paragraph (1) of this Article shall not apply to offences committed after the return of a person under this Treaty or matters arising in relation to such offences.
(4) A person shall not be re-extradited to a third State, except when, having had an opportunity to leave the territory of the State to which he has been surrendered, he has not done so within sixty days of his final discharge, or has returned to that territory after having left it."
"Patel will not be dealt within India for an offence committed prior to his extradition but for those for which his extradition is sought, or any lesser offence disclosed by the facts on which his extradition is sought, in accordance with article 13 of the Extradition Treaty between the Government of the United Kingdom and the Government of India 1992."
"any lesser offence disclosed by the facts proved for the purpose of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not lawfully be made."
The Appellant's Case on Specialty
"That in seeking extradition of Mohd. Hanif Umarji Patel @ Mr. Hanif Tiger, for facing criminal trial as requested by Surat City Police, Gujarat State in 2 criminal cases namely Varachha Police Station Crime Register No. 0032/1993 and Surat Government Railway Police Station Crime Register No. 0070/1993, Ministry of Home Affairs, Government of India hereby undertakes on behalf of the Surat City Police, Gujarat State to United Kingdom regarding compliance of Principle of Speciality as defined in Article 13 — Rule of Speciality of the Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland
It is further assured that Mohd. Hanif Umarji Patel @ Mr. Hanif Tiger, if extradited to India, will be dealt with in accordance with Article 13 and other provisions of the Extradition Treaty between Government of the Republic of India and Government of the United Kingdom of Great Britain and Northern Ireland."
"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have been obtained. If it was at the party's disposal or could have been so obtained, it was available."
Lord Justice Moses: