QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE BLAKE
| RAVI SHANKARAN
|- and -
|(1) THE GOVERNMENT OF THE STATE OF INDIA
|(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
John Hardy Q.C. and Ben Brandon
(instructed by Crown Prosecution Service) for the First Respondent
Ben Watson (instructed by Treasury Solicitor) for the Second Respondent
Hearing dates: 25-26 February 2014
Crown Copyright ©
Sir Brian Leveson P :
"Dear Vic, Please find attached some useful information on the creek area. Read it as I got to make the user rqmts for BSF tonight, which I shall send for any amendments if reqd".
The Extradition Proceedings & Appeal
A prima facie case based on admissible evidence
Was the disclosure 'damaging'?
"(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to defence which is or has been in his possession by virtue of his position as such.
(2) For the purposes of subsection (1) above a disclosure is damaging if—
(a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or
(b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or
(c) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects."
Is 'Vic Branson' the Appellant?
i) In his first statement to the CBI on 3 June 2006, Khushwaha is recorded as having said:
"I am not aware of any other [non-Interspo] email ID being used by Sh. Ravi Shankaran…";
ii) Two days later, in a second statement to the CBI on 5 June 2006, Khushwaha is recorded as having said:
"On being asked about the mode of communication used by Directors i.e. Ravi Shankaran … I state that Ravi Shankaran always using his lap top [sic] for sending emails and other correspondence. He never used any office computer specifically in Goa. His email ID was email@example.com and firstname.lastname@example.org …".
iii) It was not until his third statement, dated 6 June 2006, that Khushwaha is recorded as having told the CBI the following:
"You have shown me page no. 67-68-69-70-71-72-73 file no. 14 Export (B from 0104/2004) (M-252/06) on seeing that I state that these papers relates to a purchase order from V Branson of Inmaty Ltd, Vogolheid, 9052, Gent Belgium regarding purchase of diving equipment. All these purchase order were sent by Ravi Shankaran by courier. He has also sent me e-mail which are placed on the back of page nos (73-75) by his email ID Interspo
V Branson, Victor Branson and Vic Branson were none other than Ravi Shankaran. And the email Id for this identity was email@example.com. I do not know the reasons and motives for Ravi Shankaran for this export; I being the employee obeyed his instructions / order for doing the same. On being asked why was [RS] using so many emails Ids I state that I don't know his motives or any other reasons because I am an employee of his company and my duties were to obey the order and instructions. I never try to know anything beyond my duties" (emphasis added).
"I also confirm that during my employment with Shanx Oceaneering from 1996-98 and then with Interspiro India Pvt. Ltd from 1999 – Sept. 2006, I have never received any email from Sh. R. Shankaran using the email id. firstname.lastname@example.org and was unaware of this email id until the CBI during the recording of my statement told me that they had evidence to show that this email id was used by Sh. R. Shankaran. I am not aware why the CBI said that or what evidence they had as the same was not shown to me".
"provide a knockout blow to the viability of the prosecution case … [i]t is not such that it can be said to have destroyed the case to answer".
"Section 84 of the Act: I do not intend to add to my previous ruling on the scope and effect of these provisions".
Abuse of Process
Breach of Specialty
Article 5 ECHR & Undertakings
"186. Fourth, the Court accepts that, as the materials provided by the applicant and the third party interveners show, there is widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security (see paragraphs 141- 145 above and Ismoilov and Others, cited above, §§ 96-100). However, it not for this Court to rule upon the propriety of seeking assurances, or to assess the long term consequences of doing so; its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment. Before turning to the facts of the applicant's case, it is therefore convenient to set out the approach the Court has taken to assurances in Article 3 expulsion cases.
187. In any examination of whether an applicant faces a real risk of ill treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148).
188. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance, Gaforov v. Russia, no. 25404/09, BAILII:  ECHR 1557, § 138, 21 October 2010; Sultanov v. Russia, no. 15303/09, BAILII:  ECHR 1731, § 73, 4 November 2010; Yuldashev v. Russia, no. 1248/09, BAILII:  ECHR 1071, § 85, 8 July 2010; Ismoilov and Others, cited above, §127).
189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(i) whether the terms of the assurances have been disclosed to the Court (Ryabikin v. Russia, no. 8320/04, § 119, 19 June 2008; Muminov v. Russia, no. 42502/06, § 97, 11 December 2008; see also Pelit v. Azerbaijan, cited above);
(ii) whether the assurances are specific or are general and vague (Saadi¸ cited above; Klein v. Russia, no. 24268/08, § 55, 1 April 2010; Khaydarov v. Russia, no. 21055/09, § 111, 20 May 2010);
(iii) who has given the assurances and whether that person can bind the receiving State (Shamayev and Others v. Georgia and Russia, no. 36378/02, § 344, ECHR 2005 III; Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006; Abu Salem v. Portugal (dec.), no 26844/04, 9 May 2006; cf. Ben Khemais v. Italy, no. 246/07, § 59, ECHR 2009 ... (extracts); Garayev v. Azerbaijan, no. 53688/08, § 74, 10 June 2010; Baysakov and Others v. Ukraine, no. 54131/08, § 51, 18 February 2010; Soldatenko v. Ukraine, no. 2440/07, § 73, 23 October 2008);
(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them (Chahal, cited above, §§ 105-107);
(v) whether the assurances concerns treatment which is legal or illegal in the receiving State (Cipriani v. Italy (dec.), no. 221142/07, 30 March 2010; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Ismaili v. Germany, no. 58128/00, 15 March 2001; Nivette v. France (dec.), no 44190/98, ECHR 2001 VII; Einhorn v. France (dec.), no 71555/01, ECHR 2001-XI; see also Suresh and Lai Sing, both cited above)
(vi) whether they have been given by a Contracting State (Chentiev and Ibragimov v. Slovakia (dec.), nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009);
(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State's record in abiding by similar assurances (Babar Ahmad and Others, cited above, §§ 107 and 108; Al Moayad v. Germany (dec.), no. 35865/03, § 68, 20 February 2007);
(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers (Chentiev and Ibragimov and Gasayev, both cited above; cf. Ben Khemais, § 61 and Ryabikin, § 119, both cited above; Kolesnik v. Russia, no. 26876/08, § 73, 17 June 2010; see also Agiza, Alzery and Pelit, cited above);
(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible (Ben Khemais, §§ 59 and 60; Soldatenko, § 73, both cited above; Koktysh v. Ukraine, no. 43707/07, § 63, 10 December 2009);
(x) whether the applicant has previously been ill-treated in the receiving State (Koktysh, § 64, cited above); and
(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State (Gasayev; Babar Ahmad and Others¸ § 106; Al-Moayad, §§ 66-69).
Mr Justice Blake: