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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Saifi v. The Governor of Brixton Prison & The Union of India [2000] EWHC QB 33 (21st December, 2000)
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Cite as: [2000] EWHC QB 33
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Saifi v. The Governor of Brixton Prison & The Union of India [2000] EWHC QB 33 (21st December, 2000)
Case No: CO/4176/1999
IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH (DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st December 2000
B e f o r e :
LORD JUSTICE ROSE
and
MR JUSTICE NEWMAN
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NADEEM AKHTAR SAIFI
v
THE GOVERNOR OF BRIXTON PRISON
1st Respondent
and
THE UNION OF INDIA
2nd Respondent
Application for habeas corpus
1. Clive Nicholls QC , James Lewis & M/s Clair Dobbin appeared for the applicant (instructed by Henri Brandman & Co) Paul Garlick QC , David Perry & M/s Adina Ezekiel appeared for the respondents (instructed by CPS London)
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JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
1. This is the judgment of the court. The applicant, an Indian Muslim who came to this country with his pregnant wife and child in July 1997, applies for habeas corpus. The second respondent, the Union of India, seeks his extradition for the murder of Gulsham Kumar on 12th August 1997 and conspiracy to murder.
2. By rulings on 25th February, 30th June and 21st September 1999 the Metropolitan Stipendiary magistrate at Bow Street, Mr Christopher Pratt, declined to exclude the evidence relied on by the second respondent, found that there was sufficient evidence to establish a prima facie case against the applicant and ordered, under s9 (8) of the Extradition Act 1989, that he be committed to await the Secretary of State’s decision as to his return.
3. The applicant challenges these decisions on 5 grounds. First, the evidence of Ali Shaikh, on which the prosecution rely, proffered to the Bow Street magistrate in English, was inadmissible in extradition proceedings because Ali Shaikh had given his evidence in India in Hindi. Secondly, Ali Shaikh’s evidence should have been excluded under s78 of PACE. Thirdly, the evidence was insufficient to justify committal and the magistrate’s analysis of it was inadequate. Fourthly, it would be unjust or oppressive to return the applicant because, pursuant to s11(3)(c) of the Act "the accusation against him is not made in good faith in the interests of justice". Fifthly, the applicant might, if returned, "be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his.......... religion" (s6(1)(d)).
4. As to the first ground, Mr Clive Nicholls QC, for the applicant, submitted that there should have been primary evidence from Ali Shaikh before the Bow Street magistrate, that is a record in Hindi, together with an independent expert translation into English. Instead, although there may have been primary evidence before the Indian Magistrate, all that was before the Bow Street magistrate was a statement in English which was the product of non-independent, unchallengeable translation from Hindi by the Indian Magistrate or his clerk: this was inadmissible, secondary, hearsay evidence.
5. The Extradition Act 1989 s27 provides
3. "(1) in any proceedings under this Act in relation to a person whose return has been requested by a designated Commonwealth country or a colony, including proceedings on an application for habeas corpus in respect of a person in custody under this Act (a) a document, duly authenticated, which purports to set out evidence given on oath in a designated Commonwealth country or a colony shall be admissible as evidence of the matters stated in it.
(2) provides
4. "a document shall be deemed to be duly authenticated for the purposes of this section (a) in the case of a document purporting to set out evidence given as mentioned in sub-section 1(a) above, if the document purports to be certified by a judge or magisterial officer in or of the country or colony in question to be the original document containing or recording that evidence or a true copy of such a document".
6. Mr Nicholls did not suggest that, in the present case, there is any want of authentication of the document. He submitted that the rationale of s27 is to provide an exception to the hearsay rule, by avoiding the need for oral evidence to be given before the English Magistrate by the maker of the statement relied on. It is for the second respondent to establish admissibility. And, in the present case, the Bow Street magistrate fell into error. In particular, having rightly concluded that the document setting out evidence given in India was authenticated in accordance with s27(2) and admissible as a document, he failed to consider the implications of R v Governor of Pentonville ex parte Kirby [1979] 1WLR 541 where, giving the Divisional Court’s judgment, Croom-Johnson J, at 544E, referring to s11 (1)(a) of the Fugitive Offenders Act 1967, (which is in identical terms to s27(1)(a) of the Extradition Act), said
5. "The section is dealing with procedure and method but not admissibility......This is an enabling provision allowing documents with due authentication to be put before the magistrate.......It does not mean that anything that 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".
6. Mr Nicholls submitted, accordingly, that s27 does not make otherwise inadmissible evidence admissible. The Bow Street magistrate should have concluded that, in order to be admissible in the English extradition proceedings, the Indian depositions had to comply with English rules of admissibility requiring the statement of a witness to be in his own language. By asking himself whether, if he had done what the Indian Magistrate did, the evidence would be admissible in England he asked the wrong question. He should have asked whether, sitting in Bow Street, the evidence was admissible before him. Had he done so, he would have concluded that it was not, because the English translation was not the statement of the witness. Mr Nicholls submitted that the practical importance of the witness’s Hindi evidence being before the English magistrate is amply demonstrated in the present case by the crucially different translations of an alleged telephone conversation in Hindi on 9th August 1997 between the murdered man and a newspaper editor relating to threats made to the former: the purported English translation before the court includes a reference to the applicant, whereas the correct translation does not.
7. Mr Nicholls referred to R v Raynor , (unreported, Divisional Court transcript of 10th July 2000), where it was concluded that the translation placed before a magistrate of statements made to a police officer were not "statements of the witness" within the meaning of s5 A of the Magistrates Courts Act 1980 but, rather, the interpreter’s translation of what had been said. Mr Nicholls also referred to Kruger v North Ward Prison [1996] CILR 157 where Harre CJ held that there was no basis on which a prima facie case could be found when, on an extradition request by Switzerland to the Cayman Islands, statements in German were submitted to the Cayman court without any translation into English.
8. As to s78, Mr Nicholls submitted that, in the light of Hughes [1988] Crim LR 519, the correct approach for the magistrate was a two stage process: first, determination of the circumstances, including the primary facts, and then a decision in the light of the primary facts as to whether admitting the evidence would have such an adverse effect on the fairness of the committal proceedings that it ought not to be admitted. In determining the primary facts, there is an evidential burden on the defendant and then a burden to the criminal standard on the prosecution ie the prosecution must rebut the facts raised by the defence beyond reasonable doubt. Accordingly, he submitted that there is no difference in this respect between s78 and s76 of PACE which expressly confers such a burden on the prosecution in relation to confessions. Mr Nicholls referred to Keenan [1992] QB 54 at 63G to 64F and a reference therein to Delaney The Times 30th August 1988 and submitted that those judgments contemplated the prosecution having to disprove allegations under s78 to the criminal standard. This, in our judgment is an impossible contention. An examination of these decisions shows that the passage relied on by Mr Nicholls relates to breaches of the Code of Practice in relation to confessions and s76.
9. The second stage, he submitted, involved the court forming an opinion, without reference to the burden or standard of proof. In the present case, if the police had acted in bad faith the evidence should have been excluded. He accepted, in the light of Lord Hoffman’s speech in R v Governor of Brixton Prison ex parte Levin [1997] AC 741 at 748, that the proceedings here relevant for the purposes of s78 are the extradition proceedings rather than the trial of the accused and that the scope of the application of the section is more limited than in relation to a trial. But, he submitted, evidence had been obtained in the present case in a way which, in the words of Lord Hoffman, "outrages civilised values". As in extradition proceedings there is no opportunity to cross examine and accomplice evidence may be sufficient to establish a case to answer, a police officer in the requesting state can disproportionately influence the decision to commit if he produces evidence obtained in bad faith. Therefore, the consequence of admitting improperly obtained evidence is more profound at committal than at trial. The court must have regard to its obligations under the Human Rights Act 1998 when considering s78. Furthermore breaches of international and foreign law and rules designed for the protection of an accused or a witness in the country where evidence was gathered can be taken into account ( see R v Governor of Pentonville Prison ex parte Chinoy [1992] 1 ALL ER 317 per Nolan J at 332H). Regard should also have been paid to the Convention against Torture and Other Cruel Human or Degrading Treatment or Punishment (1984). Accordingly, the magistrate should have asked himself whether he was sure that the police did not coerce Ali Shaikh to give his evidence: if the answer was `no’ the evidence of Ali Shaikh should have been excluded.
10. Mr Nicholls submitted that the Bow Street magistrate failed to make any finding of primary facts from which he could form an opinion. He was wrong to say that he did not have to determine every factual issue and that he need not determine a number of issues which remained unanswered. He was wrong to rule that the arguments on burden of proof had no application in relation to s78 and that, in relation to committal proceedings, there was a lesser test than at trial for determining the circumstances relevant to a s78 application.
11. In support of his submission that the Bow Street magistrate’s s78 decision was perverse, Mr Nicholls identified many facts in dispute and not in dispute. He also relied on these facts in support of his submissions as to the sufficiency of the evidence and under s11(3) to which we will come later. It is convenient at this stage to summarise these facts.
12. In outline, the applicant’s case is that Ali Shaikh is an uncorroborated accomplice, who made statements implicating the applicant in return for a pardon for a capital offence, which subsequently he retracted on more than one occasion. His statements were the result of physical and mental ill-treatment and coercion arising during his unlawful detention between 25th and 31st August, and from pressure on his family, as confirmed by sworn evidence from his wife and daughter on 26th September 1997. Mr Mokashi, an advocate compliant to the police, was foisted on him so that he made the confession which implicated the applicant.
13. The Bow Street magistrate should have made findings about a number of disputed matters. These included: the date and time of Ali Shaikh’s arrest; whether his wife and children were also arrested with him; whether he was physically or mentally tortured; whether the stress which he was under on 18th and 20th September 1997 as observed by the Magistrate at Ballard Pier was the consequence of police activity; whether his wife and daughter were required by the police on 21st September to change his lawyer from Sutrali to Mokashi; whether the police engineered a false confession before Magistrate Palnitkar on or after 1st October; whether his statements of 27th and 28th November inculpating Javed Fawda were falsely contrived by the police; whether Inspector Bagadi and/or Commissioner Rao fabricated evidence thereby undermining the integrity of the investigation; whether the name "Nadeem" was properly added to the charge sheet under the guise of a purportedly accurate translation; and whether the evidence of Prison Officer Wankhede and Advocate Mokashi, that Ali Shaikh wrote the Hindi text in the document ABB 10 appointing Mokashi as his advocate and asking to give evidence for the prosecution, is false. Mr Nicholls submitted that, if the Bow Street magistrate had resolved any of these issues, as he ought to have, adversely to the prosecution, this should have led to the exclusion of Ali Shaikh’s evidence under s78, a consequential insufficiency of evidence and a refusal to commit.
14. Furthermore, Mr Nicholls submitted that a number of undisputed facts were themselves sufficient to lead to exclusion of the evidence under s78. These are: breaches of Indian Law, in particular the Police Manual and rules in relation to the keeping of a diary concerning the arrest and detention of Ali Shaikh; the lack of any written notes or statements in relation to Ali Shaikh’s alleged admissions prior to 1st October 1997; up to 3rd October, and in particular during a bail application on 14th September, Ali Shaikh was still protesting his innocence; the Ballard Pier Magistrate on 18th and 20th September recorded Ali Shaikh as saying that he was in danger if he did not give a statement; the incriminating statement was only given after Ali Shaikh’s lawyer had been changed and his wife and daughter threatened; the offer and acceptance of a free pardon in relation to a capital offence in return for making the statement; the signs of fear and intimidation on 1st October before Magistrate Palnitkar; the fact that, despite being in judicial custody supposedly without police contact, Ali Shaikh was brought to court without a court order on 5th November; the introduction of Javed Fawda as a co-conspirator for the first time in Ali Shaikh’s evidence on 27th November; internal inconsistencies in Ali Shaikh’s account, in particular as to whether he was inside or outside the cabin in which the conspiratorial conversation allegedly took place; Ali Shaikh’s subsequent retraction of his evidence and the issue of a Writ Petition, not only retracting the evidence but making allegations against the police of being threatened and tortured to give the evidence implicating the applicant and Javed Fawda; and the omission of any reference in the extradition process to the Ballard Pier hearings on 18th and 20th September.
15. Mr Nicholls also relied on the findings of Justice Aguiar that Javed Fawda was never involved in this murder and was deliberately killed by the police by a shot at close range. This decision has been appealed to the High Court and there is a further appeal pending to the Supreme Court.
16. Finally, in relation to s78, Mr Nicholls complained that the Bow Street magistrate gave no reason for not heeding the Torture Convention.
17. As to sufficiency, it is common ground that the prosecution case against the applicant depends on the evidence of Ali Shaikh. It is also common ground that his statements, taken at face value, provide a case to answer. For they describe in detail visits by the applicant to Dubai in May 1997, during the first of which he says there was a discussion involving the applicant and others to the effect that Gulsham Kumar was troubling the applicant in his business and was therefore to be killed. Thereafter two guns and a car were acquired and used in the killing.
18. Mr Nicholls submitted, in reliance on R v Governor of Pentonville Prison ex parte Alves [1993] AC 284 that it was the Bow Street magistrate’s duty to weigh the evidence before him, rejecting that which was inherently incredible or worthless. At 292B Lord Goff said
7. "If the magistrate concludes, on the evidence before him, that the previous evidence is such that a jury properly directed could not properly convict upon it, then on the principle stated in R v Galbraith [1981] 1WLR 1039, he should not commit. This was the approach approved by the Divisional Court in R v Governor of Pentonville Prison ex parte Osman [1990] 1 WLR 277 at 299 to 300, where it was stated that the magistrate should reject any evidence which he considers to be worthless".
8. In ex parte Alves the House of Lords held that the retraction by a witness in extradition proceedings of evidence previously given in the requesting state did not, in itself, discredit that evidence and, unless it was worthless, the magistrate was entitled to act upon it in deciding whether there was sufficient evidence to justify an order for committal. But subsequent retraction of itself does not render previous evidence worthless, because it may be that the later retraction is not worthy of belief. Mr Nicholls distinguished the facts of the present case from those in Alves in a number of respects. In that case, the magistrate saw the witness, who had a motive to help the accused, retracting his evidence. In the present case, the original evidence was motivated by promise of pardon for a capital offence; and it contained inconsistencies as to whether Ali Shaikh was inside or outside the room at the time of the crucial conversation, as to the date when he was arrested and in relation to the late introduction of the name Javed Fawda. Furthermore, Ali Shaikh’s evidence against the applicant came after he had protested his innocence until the failure of his 14th September bail application and there was sworn evidence from his family on 26th September tending to support his claim of police coercion.
19. In the evidence on oath given by Ali Shaikh in his Writ Petition and to the National Human Rights Commission from March 1998 onwards, he claims to have been arrested on 25th not 31st August 1997, to have been tortured and intimidated by the police, to have been deceitfully induced to change his lawyer to another chosen by the police, to have been promised bail if he implicated the applicant and to have been tortured and intimidated to introduce the name Javed Fawda, which had not appeared earlier, into his final statements to the Magistrate in late November 1997. Mr Nicholls submitted that, if he had lied about any of these matters, his evidence was worthless. If, on the other hand, his retraction is not worthy of belief, so, equally, is his earlier evidence implicating the applicant. His later account is confirmed, in part, by the evidence of his wife and daughter on 26th September 1997 that they had been arrested with him and that, contrary to Mokashi’s evidence, they had not instructed Mokashi to represent Ali Shaikh. Furthermore, there was evidence from Mr Vanjara, the highly respected lawyer who later represented him on his Writ Petition, that Ali Shaikh could not read or write. Even if it was not necessary for the Bow Street Magistrate to make specific findings for the purpose of the s78, submission it was necessary for him to do so when looking at sufficiency. It ex parte Osman [1990] 1 WLR 277 at 299H in the passage approved in ex parte Alves Lloyd LJ said
9. "In our judgment it was the magistrate’s duty to consider the evidence as a whole and to reject any evidence which he considered worthless. In that sense it was his duty to weigh up the evidence. But it was not his duty to weigh the evidence. He was neither entitled or obliged to determine the amount of weight to be attached to any evidence or to compare one witness with another. That would be for the jury at trial. It follows that the magistrate was not concerned with the inconsistencies or contradictions in Jaafar’s evidence unless they were such as to justify rejecting or eliminating his evidence altogether".
10. Accordingly, Mr Nicholls submitted that the Bow Street magistrate’s reasons in relation to the sufficiency of the evidence are inadequate. No reasonable jury properly directed on such evidence could convict upon it.
20. As to s11(3), this provides, omitting immaterial words,
11. "The court shall order the applicant’s discharge if it appears to the court in relation to the offence or each of the offences in respect of which the applicant’s return is sought that ...... (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him".
12. It is common ground that this confers original jurisdiction on this court.
21. Mr Nicholls again relied on the facts referred to in his submissions in relation to s78. He submitted that, even if the Bow Street magistrate did not have to come to any conclusion in relation to those facts, this court must. He also relied on material subsequent to the magistrate’s decision, namely the evidence bearing on the genuineness or otherwise of ABB 10 given in India in July and October 2000 by Ali Shaikh’s wives and daughters, Prison Officer Wankhede and Advocate Mokashi and the further affidavits from Ali Shaikh’s relations on 2nd November 2000. Mr Nicholls relied on a number of matters as demonstrating bad faith on the part of the police and the prosecution authorities in relation to the applicant. First, as appears from newspaper reports, on 31st August 1997 the Mumbai Police Commissioner and on 2nd September the Mumbai Deputy Chief Minister asserted that there was evidence of the applicant’s guilt, at a time when no legally admissible evidence was available. Secondly, in relation to extradition proceedings, neither the first request in November 1997 nor the second in January 1998 made any reference to the pressure and tension exhibited by Ali Shaikh and recorded by the Magistrate on 18th, 20th and 26th September. Nor were Ali Shaikh’s retractions of his evidence in his petition to the Human Rights Commission in March 1998 and his Writ Petition in April 1998 disclosed to the applicant until part way through the committal proceedings in the Summer of 1999, although the prosecution were well aware of those matters from the Spring of 1998. In consequence, there was a failure properly to present Ali Shaikh "warts and all" to the Bow Street magistrate to enable a proper assessment of his credibility to be made. Thirdly, the original of ABB10, the authority to Mokashi to act and the expressed wish to give evidence for the prosecution, has never been produced and the explanations for its non-production, proffered by the prosecution, conflict: in July 2000 Mr Nikkam, the prosecutor, claimed that Mokashi had refused to hand it over; in October 2000 Mokashi said he had never been asked for it by the police and he failed to produce it to the court. Ali Shaikh’s family denied ever instructing Mokashi to act for him. Fourthly, the literacy of Ali Shaikh has been challenged by the defence ever since a copy of ABB 10 was produced, but the prosecution have refused requests for an independent investigation of his literacy. Furthermore, ABB10 was never mentioned by Mokashi to the Magistrate on 26th September, in the pardon order on the 27th November, in the request for extradition, or by Inspector Bagadi in his affidavit in response to Ali Shaikh’s Writ Petition in April 1998. Fifthly, there was evidence before the Bow Street magistrate from Mr Vanjara, that Ali Shaikh signed instructions to act in broken Urdu, did not read any of the documents which Mr Vanjara showed him and said that he could not write in any language. There is also evidence before this court from Ali Shaikh’s educated daughter Shabnam that her father can write his signature in Urdu but cannot write in Hindi. In addition, there is expert evidence before us that the signature on ABB 10 in broken Urdu was not written by the educated writer of the Hindi text and was made on a blank sheet of paper before the text was written. Sixthly, there was a breach of the Maharashtra Prison Rules, in that no records were made, or if made kept, in the Gate Register or otherwise, of the visit to the prison of Mokashi and his alleged interview there with Ali Shaikh, with Prison Officer Wankhede 10 to 15 feet away; it was also inappropriate for Wankhede to countersign ABB10 on the basis that it had been voluntarily made. Seventhly, as to the date and circumstances of Ali Shaikh’s arrest, during a bail application on 14th September it was claimed he had been illegally detained, on 20th September he broke down in the presence of the Magistrate and said he was in danger that, if he did not give a statement, he might be "sent somewhere very long" and he requested to be kept away from "gangsters". The Magistrate recorded that he appeared to be under tremendous pressure. On 1st, 3rd and 4th October he said he had been arrested on 25th August and he did not change that date to 31st August until making amendments to his October statements on 5th November. There are also discrepancies in the Remand Sheet as to the time of Ali Shaikh’s arrest. Finally, it was Mr Assistant Commissioner Rao who applied for extradition.
22. Mr Nicholls submitted that if, on the balance of probabilities, it is established that Ali Shaikh is illiterate or that Wankhede and Mokashi may be lying in relation to ABB10 there has been a want of good faith requiring the applicant’s discharge under s11(3). He relied on observations of Woolf LJ in re Osman 25th February 1992
13. "Good faith has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose or with an improper motive and not for the purposes of achieving the proper administration of justice they would not be regarded as complying with the statutory requirement. Likewise, accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of the protection to which he is entitled by law".
14. In Union of India v Narang [1978] AC 247 at 293H to 294A Lord Keith of Kinkel said it would be sufficient to establish the primary facts on the balance of probabilities and for the court to form an opinion upon the facts established. Furthermore, Mr Nicholls submitted that it would be unjust or oppressive to return the applicant because of the circumstances in which he came to be charged in India and the conduct of the Indian authorities in the extradition process both in India and the United Kingdom. The word "accusation" in s11(3)(c) is apt to embrace not only the state which prosecutes but those involved in the investigation and the witnesses relied on: in Murat Calis (Divisional Court transcript 9th November 1993) the court held that a complainant’s corrupt motive in continuing to press a complaint demonstrated want of good faith in the accusation.
23. As to s6 of the Act, omitting immaterial words, it provides as follows "(1) a person shall not be returned .........if it appears to an appropriate authority.........(d) that he might if returned be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his ........ religion".
24. Mr Lewis, for the applicant, submitted that the voluminous material before this court, in particular the reports from Mr Martin Lau dated 17th April 1998, 19th May 2000, and 17th November 2000 (which, he said, should be preferred to the reports of Dr Chitnis for the respondents) demonstrate that, although in general the judiciary in Maharashtra is independent, the Mumbai Police are biased against Muslims. The words of s6 (1)(d) are not limited to the trial process but embrace the investigatory and prosecuting processes as well. He relied on the 1994 Amnesty International Report, the Indian People’s Human Rights Commission Report into the December 1992 and January 1993 Bombay riots and the Shri Krishna Commission Report into the same riots which was, initially, repressed by the Maharashtra Government. Those Reports catalogue an appalling series of incidents in which Muslims were killed or injured and their property destroyed in circumstances demonstrating active participation, acquiescence, or conspicuous failure to intervene, by the Bombay police. Mr Lau, in his report of 17th April 1998 expressed the view, in reliance upon the Human Rights Watch World Report 1997, that the situation in relation to Muslims had worsened in 1996. In February 1998 Mr Lau went to Bombay and, in the light of the interviews which he then had with a number of witnesses, concluded that the then ruling coalition of BJP and Shiv Sena created a situation where the authorities were demonstrably anti-Muslim. In consequence, the legal system was not able to protect the Muslim minority adequately or at all: the problem is not that the trial judge himself would be prejudiced against a Muslim but that the investigatory process is so tainted by anti Muslim bias that a Muslim might not receive a fair trial. He also added that it was "extremely unlikely that an accused persons and witnesses who make statements before a Magistrate have not been tortured or otherwise intimidated by the police". (It is to be noted that the BJP/Shiv Sena coalition came to an end in October 1999). Mr Lewis invited us to find, on the basis of Mr Lau’s Report, that it is more likely than not that the applicant will be discriminated against by the Mumbai Police because he is a Muslim; the legal theory adumbrated by Dr Chitnis does not coincide with the reality in Mumbai as identified by Mr Lau, so that it is likely that discrimination will not be eradicated by the higher judiciary. In this respect, Mr Lewis took us to the judgment of the High Court, on appeal from Justice Aguiar, in relation to the alleged extra-judicial murder of Javed Fawda by the police. The High Court preferred eye witness police accounts claiming that Javed Fawda was shot from a distance, in the teeth of expert forensic evidence that the fatal shot was delivered at close range within one or two feet. That decision is currently the subject of an appeal to the Supreme Court.
25. For the respondents, Mr Garlick QC did not seek to diminish the significance of the Human Rights complaints, but urged that they be put in context with reference to the specific aspects of the applicant’s case. He submitted that this is not an appropriate forum to determine the wide ranging issues involved. He stressed that, since the murder, there has been a change of government in India and in Maharashtra.
26. With regard to the background, Mr Garlick stressed that, following his arrest, Ali Shaikh was taken, in the presence of independent witnesses, to his flat where he retrieved a set of car keys. Thereafter he took the police to the firearms and car used in the killing, which at least confirmed his participation in these events. On 1st and 14th September, when he appeared in court represented by his chosen lawyer Mr Sutrali, no complaint was made about his treatment while in custody. Also, on the latter occasion, he was permitted to telephone his wife who was in hospital for an operation and the prosecution placed no obstacle in the way of him communicating with the outside world. On 18th September, when asked by the Magistrate, he said in terms that he had no complaints against the police, expressed his willingness to make a confession, and was given 24 hours for reflection. There was no evidence of any injury to him at that time. On 20th September, when he was clearly under pressure and asked to be kept away from gangsters, he made no complaint of mistreatment by the police. On 25th September, he wrote ABB10 appointing Mr Mokashi as his lawyer and indicated he wished to confess. When he appeared in court on 26th September represented by Mr Mokashi and Mr Sutrali both said they jointly represented Ali Shaikh and there was no dispute between them, which is inconsistent with the claim that he had been forced to change his advocate. No complaint was made about his treatment. He spoke to the Magistrate in private in the absence of his lawyers. On the 1st, 3rd and 4th October, he appeared before a different Magistrate, said that he had not been pressurised or ill-treated and provided a confession statement. On 5th November, he gave additional details of events leading to the murder and he gave evidence on oath on 27th and 28th November, repeating his earlier evidence implicating the applicant in the murder. It is against this background, Mr Garlick submitted, that the retraction first made in March 1998 should be viewed. Further the Writ Petition to set aside his confession was dismissed by the Mumbai High Court in April 1999 - a matter to which the Bow Street Magistrate attached importance in assessing Ali Shaikh’s credibility.
27. As to the translation challenge, Mr Garlick submitted that what s27 requires is, first, a document, secondly that it be authenticated and thirdly that it purport to set out evidence given on oath. The section contains no requirement that the evidence be set out in the language of the witness. The document is a deposition made on oath by Ali Shaikh on 27th and 28th November taken before Magistrate Palnitkar.
28. Mr Garlick submitted that s27 distinguishes between documents and depositions. Proceedings in India are habitually conducted in more than one language and the Magistrate was entitled to receive the evidence in the local language and to translate and record it in English. He submitted that the position is no different from proceedings in Wales where a Welsh speaking magistrate receives evidence in Welsh and records it in English without the assistance of an interpreter. Ali Shaikh’s evidence was read over to him in Hindi. He admitted it was correct and the deposition was then signed by him as well as by the magistrate. Mr Garlick submitted that evidence of translation is only required where the document setting out the evidence on oath is in a language other than English, because an English Court is not entitled to translate a foreign language. Accordingly, submitted Mr Garlick, the magistrate’s ruling on 25th February was correct. He directed himself properly in accordance with ex parte Kirby, He was entitled to draw an analogy with old-style committal proceedings where the evidence of a non-English speaking witness would be translated by an interpreter into English and recorded by the court clerk in English, after which the deposition would be read back in English by the clerk and translated by the interpreter in order to obtain the witness’s assent. Such a deposition would not refer to the existence of the interpreter. Accordingly, the Bow Street magistrate was entitled to conclude that there was "little difference between a deposition prepared under the rules of the English courts and six depositions prepared in India".
29. As to s78, Mr Garlick submitted that the Bow Street magistrate’s function was to consider the circumstances and give a reasoned decision, but this did not involve an obligation to make findings of fact upon every issue: the state of the evidence might make this impossible. The magistrate correctly drew a distinction between the terms of sections 76 and 78. He dealt with the evidence of Ali Shaikh’s wife and daughter and with the literacy issue. He was not in a position to make findings, because he had not seen the witnesses or heard any cross examination on the voir dire or otherwise. He bore in mind the circumstances and reached a reasoned conclusion.
30. The burden of persuading the court to exclude evidence was on the defence (see R v Cooke 1995 1 Crim App R 318 at 328B per Glidewell LJ). The Bow Street Magistrate’s decision could only be challenged on Wednesbury principles (see O’Leary 87 CAR 387 at 391 and Christou 95 CAR 264 at 270). Mr Garlick also referred to Khan [1997] AC 558 in which Lord Nolan, having referred to an apparent breach of the law of a foreign country being a matter which may be relevant to the exercise of the s78 power said
15. "This does not mean that the trial judge is obliged to decide whether or not there is a breach of the Convention or of the foreign law.. That is not his function and it would be inappropriate for him to do so.....but if the behaviour of the police in the case amounts to an apparent or probable breach of some relevant law or Convention common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance however will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect taken as a whole upon the fairness or unfairness of the proceedings".
16. In Shannon (unreported CACD transcript 14th September 2000) Lord Justice Potter at paragraph 38 said, in relation to a s78 application to exclude evidence on the ground of entrapment,
17. "The principal focus of the judge’s attention must be upon the procedural fairness of the proceedings, the nature and reliability of the prosecution evidence and the fullness and fairness of the opportunity available to the defence to deal with the evidence which the prosecution seeks to adduce".
19. "The ultimate question is not the broad one is the bringing of proceedings fair (in the sense of appropriate) in entrapment cases. It is whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur......so for instance if there is good reason to question the creditability of evidence given by an agent provocateur....and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available admissible and untainted evidence, then the judge may readily conclude that such evidence be excluded. If, on the other hand, the unfairness complained of is no more than the visceral reaction that it is in principle unfair.....for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others then that is not itself sufficient unless the behaviour of police.....and/or the prosecution authority has been such as to justify a stay on grounds of abuse of process".
31. Mr Garlick relied on the observations of Lord Hoffman in R v Governor of Brixton Prison ex parte Levin [1997] AC 741 at 748A
20. "It must be borne in mind that when the section is being applied to committal or extradition proceedings the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary the magistrate should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question therefore is whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial even if the trial is a fair one.......In extradition proceedings there is even less scope for the exercise of the discretion because......extradition procedure is founded on concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretion’s based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which though technically admissible has been obtained in a way which outrages civilised values. But such cases are also likely to be rare".
32. Mr Garlick submitted that the magistrate was correct in concluding that there was no obligation on the prosecution to disprove matters raised by the defence beyond reasonable doubt and that he correctly identified his role as being to
21. "carry out an evaluation of the evidence tendered by both the government and the accused as to the circumstances in which the evidence was obtained and ultimately to decide on that evidence whether its admission would have such an adverse effect on the fairness of these proceedings that I should exclude it".
22. Mr Garlick submitted it would be entirely inappropriate, in the absence of the principal witnesses, for the magistrate to make specific findings of fact on every issue. The disputed facts were properly for determination at trial and not on the extradition application.
33. Accordingly, submitted Mr Garlick, the magistrate did not err in his approach to s78. He did not mis-direct himself and his decision was not perverse. Furthermore the magistrate specially referred to the Torture Convention which raised precisely the same factual issues as under s78.
34. As to sufficiency, Mr Garlick submitted, in reliance on ex parte Alves, that retraction in itself did not discredit Ali Shaikh’s evidence. Sufficiency was essentially a matter for the decision for the magistrate whose decision is only susceptible to challenge on Wednesbury grounds. The magistrate considered ex parte Alves and accepted that it was necessary to look at the evidence with great care. He commented that if the original evidence was the product of inducement by way of pardon it was curious "that he would wish to retract his evidence, lose the offer of a free pardon and place himself once again in jeopardy of the severest penalty". The magistrate considered the possibility that it might be the retraction rather than the original evidence which was false, as a result of Ali Shaikh’s fear of gangsters. He referred to the remarkably detailed account which Ali Shaikh gave over a three day period. He concluded, applying the Galbraith test set out in Alves, that a properly directed tribunal could find Ali Shaikh’s evidence capable of belief. This approach, submitted Mr Garlick, cannot effectively be challenged.
35. As to s11(3), Mr Garlick submitted that there is no basis for concluding that the requisition for extradition was made for a collateral purpose or improper motive. It comes, he said, from the Union of India not the police, the prosecutor or the state. He accepted this did not end the matter. But the burden is on the applicant to show that the accusation was not made in good faith and, because of this, it would be unjust to return him. He referred to the well known observations of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 who at 782H, in the context of delay, said
23. "unjust" I regard as directed primarily at the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed at the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; there is room for overlapping and, between them, they would cover all cases where to return him would not be fair".
24. He pointed out that Justice Aguirar, who had concluded that Javed Fawda was executed by the police, is one of the judges at an appropriate level in Maharashtra to try the applicant if he is returned.
36. He submitted that the "accusation" in the present case is made by the state of Maharashtra. He accepted that if the state were tainted this would taint the accusation. But he submitted that "accusation" in s11(3) refers to the state, not those involved in investigation or prosecution or the witnesses. He sought to distinguish Murat Calis on the basis that in that case it was a complainant rather than a witness whose motive was tainted. In the present case, he pointed out, it was not until March 1998, after the request for extradition had been made, that the retraction occurred and serious allegations were made against the independent prosecutor. There is no suggestion that the judiciary is partial and every indication that they are vigorous in investigating impropriety, so there will be no injustice in the trial process: this is particularly so as the applicant is very well known and there has been much publicity in relation to the case already, so the judiciary will be particularly alert to investigate matters thoroughly.
37. In relation to the evidence of impropriety, Mr Garlick submitted that this is far from conclusive. Ali Shaikh’s statements have not been tested in cross examination. On the literacy point, Prison Officer Wankhede and Advocate Mokashi are both credible witnesses who have given evidence and been thoroughly cross examined. Their account gainsays that of Ali Shaikh and the conflict should properly be resolved by an impartial, competent, vigilant judiciary in India. A trial in such circumstances will avoid any possibility of prejudiced from the prior investigation and prosecution. In this respect, Mr Garlick made the separate submission that, even if the accusation were made in bad faith, it would not, as s11 requires, cause injustice because of the Indian judiciary’s rigorous examination of the matter. He referred to a judgment of Sedley J in Re Ashley-Riddle (Divisional Court transcript 27th November 1993) where at 8G, in relation to s11(3)(b), there is reference to the need for a link between delay and whether return would be unjust or oppressive.
38. Mr Garlick referred to In re Schmidt [1995] 1 AC 339 and the speech of Lord Jauncey of Tullichettle at 371A where he refers to the majority view in the House of Lords in ex parte Narang [1978] AC 247 that the powers of the court to discharge a person are restricted to situations falling within the three categories identified in s11(3). Although the Secretary of State has a wider discretion, unfettered by the words of s11(3), the Divisional Court, although its jurisdiction is wider than that of the magistrate, "has no inherent common law supervisory power" (see per Lord Jauncey at 379A).
39. As to s6(1)(d), Mr Garlick submitted, by reference to the speech of Lord Diplock in Fernandez v Government of Singapore [1971] 1WLR 987 that the proper test is whether there is "reasonable chance" "substantial ground for thinking" or "serious possibility" that the applicant will be detained or restricted by reason of his religion if returned. There is, he submitted, no basis on which it can be said that the applicant will be prejudiced at his trial in the light of Mr Lau’s acceptance that the judiciary is not prejudiced and the Report and evidence of retired Chief Justice Pendse, who, referring to the State of Maharashtra, said that "it is impossible to even consider the suggestion that the legal system is unable to protect the Muslim minority adequately or at all". Mr Garlick also relies on the expert evidence of Dr Chitnis that, since the BJP-Shiv Sena government was replaced in 1999 by the government of the Congress Party and its secular allies, a Minorities Commission for the protection and interests of minorities and a state Human Rights Commission have been established. Furthermore, there are now openly pro-Muslim parties in the government. The high profile of the applicant will ensure particular vigilance by the judiciary at trial and there can be no possibility of further questioning if the applicant is returned, because he will be taken before a Magistrate.
40. Accordingly, Mr Garlick submitted that this court should take the view that there is no reason under s 6(1)(d) for the applicant not to be returned.
41. In his reply, Mr Nicholls submitted that, if Mr Garlick’s construction of "accusation" in s11(3) were correct, the section would be sterile: the word must extend to persons responsible for presenting and maintaining prosecutions including the police: he referred to Propend Finance Ltd v Singh [1998] International Law Reports 611 where, in relation to s14(1) of the State Immunity Act 1978, the Court of Appeal held that the activity of a Police Superintendent involved acts of a sovereign or governmental nature.
42. In the light of these competing submissions we turn to our conclusions.
Section 27(1) The Extradition Act 1989 (The Act)
43. Section 27 of the Act is an enabling provision. S27(1) deals with evidence contained in depositions or in affidavits and enables a deposition or affidavit to be given in evidence, thus obviating the necessity to call the maker. To that extent the sub-section creates an exception to the rule that evidence is given orally in court. But we reject the submission that it creates any wider exception to the hearsay principle. Nor can the distinction between documents and depositions assist the respondent. In the normal course, where a magistrate or an examiner takes a deposition he records the evidence of the witness, given on oath, in response to questions. Frequently the deposition takes the form of a narrative and does not record the question and the answer in verbatim form, although it has been said that the better course is that the question and answer should be recorded verbatim. (See Lloyds Bank Limited v Markan [1973] l WLR 339 at 348 F-H).
44. At the conclusion of taking the evidence the record is read to or by the witness and, if accepted, signed by the witness as the record of his evidence. It purports to be his evidence. Having regard to the nature of extradition proceedings, it is unlikely that the defendant will be present when a deposition is taken, nor, generally, will his advocate be there to question the witness, or challenge the accuracy of any translation. The precise circumstances in which depositions are taken in foreign jurisdictions will vary according to the procedures of the jurisdiction but in order for the document to be admissible, the evidence it records must be given on oath and the document authenticated. Such requirements go to the admissibility of the document, not its contents.
45. In the present case, after the magistrate (or his clerk) had taken the deposition, by translating Ali Shaikh’s evidence into English, he translated it back into Hindi to secure Ali Shaikh’s agreement to the terms of what was written in English. Ali Shaikh then signed the deposition and the respondent relies upon this signature. But in our judgment the signature adds nothing to the character of the deposition. Ali Shaikh could not adopt the deposition as a record of his evidence, because he did not know what the English record set out. There is therefore no record of the evidence given by Ali Shaikh. Nor, contrary to the submission of Mr Garlick, does the deposition "purport to set out evidence given on oath". It purports to set out an English version of what was said on oath. In our judgment the word "purports" cannot bear the weight of the argument and introduce a further exception to the hearsay rule, by enabling what purports to be secondary evidence of a witness’s evidence to be admissible in extradition proceedings.
46. Furthermore, if the interpretation of s27(1)(a) were as Mr Garlick contends, there would be nothing in the section to limit the admissibility of secondary evidence to instances of translation. In any event, we are satisfied that, in the case of unchallengeable translation, errors could arise causing real prejudice. We have already drawn attention to an error in the translation of a telephone call on 9 August 1997. In our judgment, fairness requires that the actual evidence of the witness should be available to the defendant otherwise a case could proceed to trial without the defendant ever having an opportunity of seeing a record of the evidence of the witness and his ability to demonstrate inconsistencies could be significantly affected. The analogy with proceedings in Wales before a Welsh speaking magistrate is not in point because the defendant or his lawyers are present and can challenge the accuracy of the translation. As Mr Garlick recognised, faced with clear authority (Reg v Governor of Pentonville, ex parte Kirby [1979] l WLR 54l, R v Governor of Pentonville, ex parte Osman [1990] 1 WLR 277, R v Stipendiary Magistrate, ex parte Dokleja, CO/523/93) that the substantive rules of evidence apply to the contents of a document admitted under s27(1)(a), the resolution of the issue turns upon whether the proper construction of the section permits secondary evidence to be admitted. As we have stated, we reject his submission that it does.
47. This conclusion is consistent with other statutory provisions. Although hearsay was made more widely admissible in criminal cases by the Criminal Justice Act l988, that Act nevertheless contained protective provisions (see ss 23, 24 and 25), enabling the court to control the admissibility of such evidence. Again, under the provisions of the Criminal Justice (International Co-operation) Act 1990, where international co-operation is achieved by a Letter of Request, the admission of the evidence is subject to the discretion conferred by s25 of the Criminal Justice Act 1988, (see s3(8) of the Criminal Justice (International Co-operation) Act 1990), the court being required to have regard:
25. "(a) to whether it was possible to challenge the statement by questioning the person who made it, and
26. (b) if proceedings had been instituted, to whether the local law allowed the parties to the proceedings to be legally represented when the evidence was being taken."
27. Where a deposition or affidavit tendered under s27(1)(a) contains the first hand evidence of the witness, no equivalent discretionary basis for exclusion is available. A defendant in extradition proceedings would be in a peculiarly disadvantageous position if this procedure could be adopted to render secondary evidence admissible.
48. Mr Nicholls placed some store by the fact that the Magistrate was someone who was not independent and not qualified to act as an interpreter. It is not in dispute that in India, judges and magistrates conduct their proceedings in English as well as in such local language as may be necessary. We incline to the view, without deciding the point, that the fact that a deposition is recorded in a foreign language but unaccompanied by a certified translation, may not necessarily lead to the deposition being inadmissible although, generally speaking, certified translation is necessary.
49. But, in our judgment, the proferred deposition of Ali Shaikh in the English language is not admissible.
28. Section 78 of the Police and Criminal Evidence Act 1984
50. The purpose of the section is to enable the court to achieve fairness in the conduct of its proceedings, not by reference to the particular character or type of evidence but by having "regard to all the circumstances". The exercise of the power is unlikely to achieve its aim if encased in a rigid framework. That said, the outcome of the argument depends upon the proper interpretation of the section.
51. It is obvious that, since the court cannot infer there would be unfairness without having regard to all the circumstances, there are in our judgment two aspects, rather than two stages, to the exercise of the power, namely consideration of the circumstances and assessment of their impact on fairness. But the words of the section provide no support for the applicant’s contention as to onus and standard of proof. The enactment in s76(2) of PACE of a burden on the prosecution to prove beyond reasonable doubt that a confession was not obtained by oppression or other circumstances affecting its reliability, is a clear pointer against the validity of the argument. The operative words of s78 are:
29. "In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances .... the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
52. Section 78 confers a power in terms wide enough for its exercise on the court’s own motion. The power is to be exercised whenever an issue appears as to whether the court could conclude that the evidence should not be admitted. The concept of a burden of proof has no part to play in such circumstances. No doubt it is for that reason that there is no express provision as to the burden of proof, and we see no basis for implying such a burden. The prosecution desiring to adduce and the defence seeking to exclude evidence will each seek to persuade the court about impact on fairness. We regard the position as neutral and see no reason why s78 should be understood as requiring the court to consider upon whom the burden of proof rests.
53. In this case it is said that the magistrate should have made findings of fact. If the section places a burden of proof upon the prosecution this would advance the applicant’s fundamental attack on the magistrate’s refusal to make specific findings and his failure to apply the criminal standard of proof to the prosecution’s rebuttal of issues raised by the defence. In our judgment these submissions are inconsistent with the breadth of purpose of s78. Unlike the words of s76(2), where the burden and standard of proof is directed towards a specific issue, namely whether or not the prosecution has proved that the confession was not obtained by oppression, or in circumstances rendering it unreliable, the reach of the protection provided by s78 is broader, namely the prevention of unfairness from the admission of any evidence, not just a confession. The objective being broader, so also is the range of circumstances having a bearing on it. The ambit is not confined to what emanates from the defence. Circumstances may appear to the court other than those raised by the defendant. In this instance, issues of fact were raised by the defence as to whether Ali Shaikh had been coerced, and whether the police had perverted the course of justice by falsifying evidence. But findings on these issues were not a pre-condition to the proper exercise of the s78 power.
54. The magistrate stated his reasons for rejecting the submission as follows:
30. "I share the view expressed by the Government that my role in deciding whether to exclude evidence under s 78 is to carry out an evaluation of the evidence tendered by both the Government and the accused, to the circumstances in which the evidence was obtained and, ultimately, to decide on that evidence whether its admission would have such an adverse effect on the fairness of these proceedings that I should exclude it. I do not accept, in relation to every issue raised, that I need to make a specific finding."
31. For the reasons we have given we consider this direction impeccable.
55. The words in s78 "if it appears to the court" are also found in s11(3) of the Extradition Act. (And, in s6(1) there is a similar phrase "if it appears to an appropriate authority").
56. In Union of India v Narang [1978] AC 247, section 8(3) of the Fugitive Offenders Act 1967, the precursor of s11(3), was considered. The material conclusions were:
(1) The task for the court is to consider all the materials before it and then to decide whether or not the inference is to be drawn that return would be unjust or oppressive. (p.273 G-H). This chimes harmoniously with our view as to the correct approach under s78.
(2) The words "having regard to all the circumstances" enjoin the court to have "regard" to all the circumstances which reasonably can have a bearing on the question whether "by reason of the passage of time" an order to return would be unjust (p.280 C-E). Similarly, under s78, it is all the circumstances which could reasonably have a bearing on the issue of fairness to which the court must have regard.
(3) In extradition proceedings there is no proof of fact, in the proper sense of the word, and in certain cases there might be difficulty in deciding as to the primary facts upon which the court should proceed (p.259H - 296B). Exactly the same consideration applies to s78 in extradition proceedings.
57. In R v Khan (Sultan) [1997] AC 558, which was concerned with s78, two separate acts were said to constitute invasions of privacy, namely fixing a device to the wall of the flat of an occupier and recording what was said. Ultimately the argument for exclusion depended upon the alleged breach of privacy, the absence of statutory authorisation and an alleged infringement of Article 8 of ECHR. At page 581H - 582C, in the passage already set out at paragraph 30 above, Lord Nolan rejected the need for the judge to determine whether a breach of the Convention had occurred or that criminal damage had been caused, and emphasised the significance of the conclusion to which the court was required to come rather than the character of findings of fact upon which that conclusion had to be based.
58. Under s78 any circumstance which can reasonably have a bearing on fairness should be considered. The weight to be attached to an individual circumstance may increase or decrease because of the presence of other related or unrelated circumstances. The preponderance of all the circumstances may show that the admission of the evidence would have such an adverse effect on fairness as to require its exclusion.
59. The absence from s78 of words suggesting that facts are to be established or proved to any particular standard is, in our judgment, deliberate. It leaves the matter open and untrammelled by rigid evidential considerations. It may well be impossible for a court to make a finding on the issues raised. For example, the contention that the magistrate should have found as a fact either that the prosecution had proved to the criminal standard that Ali Shaikh was arrested on 3l August 1997 or that, on the balance of probabilities, he was arrested on 25 August was, as the magistrate said, not something that he could decide without having Ali Shaikh before the court and questioned. The undesirability of such an approach is demonstrated by the purpose for which this specific submission was raised. It was but a step towards another stage of fact finding. If it could be established that Ali Shaikh was arrested on 25 August, then, according to relevant Indian law, a presumption was raised that Ali Shaikh had been intimidated. But this stage, even if it had been reached, would have simply raised another issue for the magistrate to resolve, namely whether that presumption was to be rebutted, or could be rebutted by any other evidence in the case. In our judgment, investigation in the nature of a full trial to determine such facts is not practical, desirable or intended by the terms of s78.
60. The magistrate considered R v Governor of Brixton Prison ex parte Levin [1997] AC 741 and referred to the dictum of Lord Hoffmann to the effect that the exclusion of evidence under s78 is likely to occur very rarely. Before embarking upon a consideration of the circumstances which the magistrate regarded as bearing upon the fairness of the proceedings before him, he referred to the objective background material received from the experts. He rightly regarded it as providing an important contextual framework in which to consider the circumstances. He summarised those circumstances comprehensively, weighing conflicting accounts. He dealt first with the question of Ali Shaikh’s literacy, on which he heard evidence from an Indian lawyer now representing Ali Shaikh. He weighed and considered the impact of that evidence. He next turned to the manner in which Ali Shaikh came to make a confession. He concluded:
32. "When considering the manner in which Magistrates Garde and Palnitkar dealt with the hearings between 18 September 1997 and 25 November 1997 and bearing in mind the purpose of those hearings, I find it impossible to say that they were not conducted other than in a completely fair and exemplary manner."
33. Thereafter he concluded that, whilst some questions remained unanswered, the admission of Ali Shaikh’s evidence would not have such an adverse effect on the proceedings before him as to merit exclusion either under s78 or Article l5 of the Torture Convention. In our judgment reference to the Torture Convention adds nothing to the case. The intent of Article l5 has been ensured in our law, by the common law and statute.
61. Although there were a number of circumstances which would cause considerable difficulty for the prosecution if the issue under s78 fell to be decided in trial proceedings in this country (see Proulx v Governor of Brixton Prison and another Div Court Transcript 28 July 2000), in our judgment, for the magistrate to conclude that the circumstances did not "outrage civilised values" was one which was within the margin of opinion open to him and is not susceptible to challenge on Wednesbury grounds.
62. The magistrate correctly regarded R v Galbraith [1981] l WLR 1039 as the authority which laid down the proper approach. He was taken to Ex parte Alves [1993] AC 284. He concluded:
35. "I have considered its reliability along with the later retraction but have come to the conclusion, applying the Galbraith test as set out in ex parte Alves, that a properly directed tribunal could find Ali Shaikh’s original evidence capable of belief."
36. We accept the submissions of Mr Nicholls summarised in paragraphs 18 and 19 above. In particular we consider there is considerable force in the submission that Ali Shaikh’s retraction has been repeated on four occasions, including on oath in his Writ Petition to the National Human Rights Commission, and that his retraction placed him in jeopardy of being convicted of a capital offence. In our judgment, the magistrate’s review of the evidence bearing on the issue of sufficiency was not comprehensive enough. He was not dealing with the mere retraction of a confession. He should have considered all the circumstances surrounding the making of the original confession and its content, which, on the critical issue as to the applicant’s involvement, contained a significant internal inconsistency as to whether Ali Shaikh was inside or outside the room at the time of the alleged conversations. He made no reference to the protestations of innocence up to the failure of the bail application on l4 September. He did not consider the evidence from Ali Shaikh’s wife and daughter. In addition to their evidence, there was cogent evidence that, before the Magistrate, Ali Shaikh felt intimidated, whether by gangsters or the police. Had he considered all the circumstances of the original confession and the ambit and character of the retraction, the magistrate would, in our judgment, have been bound to conclude that no judge, properly directing himself, could convict on Ali Shaikh’s evidence, because it was worthless.
63. "Accusation"
37. Mr Garlick submitted that since "accusation" referred to the request for extradition and the request was being made by the Union of India on behalf of the state of Maharastra and the State was acting through an independent Public Prosecutor, there was no evidence that any party who could property be regarded as making the request had acted in bad faith. We do not consider that the ordinary meaning of the word "accusation" is a request, notwithstanding that the nexus between accusation and request may well be obvious. Such a nexus appears from the terms of s11(3) of the Act because the sub-section refers in turn to the following:
38. (1) ".... the offence, or each of the offences";
39. (2) the request, namely " .... in respect of which the applicant’s return is sought ..."
40. (3) "the accusation against him".
41. But the words of the sub-section are against the accusation meaning the request because 3(c) refers to "good faith in the interests of justice" in relation to the accusation not the request.
42. A request for extradition is not in character an accusation. It is an exercise of sovereign power pursuant to a treaty in respect of an alleged offence. Whether or not it could ever be regarded as an "accusation", for the purposes of an allegation that such an exercise of power was not in good faith, does not arise in this case. But we are satisfied that, even if it could be so regarded, that is not the limit of the meaning of accusation nor the most obvious reflection of what is referred to in the sub-section. Accusation is broad enough to encompass the accusation of a witness or witnesses and the offence charged in consequence.. By making a request for extradition, reliance is placed upon the evidence of any witness and the offence disclosed thereby. The protection afforded by the sub-section would be rendered "sterile", as Mr Nicholls submitted, if the issue of bad faith could be divorced from the underlying facts supporting the request. Certainly Sedley J in Murat Calis (Divisional Court, Transcript 19 November 1993) examined the good faith of the complainant to determine the issue under sll(3). No one appears to have argued to the contrary. Having heard such argument we reject it.
64. We turn to our conclusion on s11(3). This court has received evidence on this issue over and above that which was before the magistrate. We find the following circumstances bear upon whether the accusation is made in good faith and in the interests of justice, and whether it would be unjust or oppressive to return him.
(1) There was no legally admissible material available to the Mumbai Police Commissioner to provide reasonable grounds for his statements that witnesses "quite clearly indicated that Nadeem (the applicant) hired Abu Salem gang’s services to eliminate Kumar .... " and "we have ample evidence to prove Nadeem’s involvement ...." This court is placed on inquiry as to what motive there could have been for such an unsubstantiated statement to be made at a press conference. Indeed, even if grounds existed for such a belief, the making of such a statement would raise questions about its underlying motive.
(2) The assertion of the Mumbai Deputy Chief Minister gives rise to like concern. .
(3) Having regard to the vital importance to be attached to the circumstances surrounding the confession made by Ali Shaikh, the absence of any reference in the requests for his return to the pressure recorded by the Magistrate on 18th, 20th and 26th September, is remarkable. This non-disclosure on such a central feature of the case has not been explained. It is to be inferred that it was deliberate and calculated to leave those considering the case with the impression that it was stronger than the true facts merited.
(4) Equally, the failure to disclose Ali Shaikh’s retractions until part way through the committal proceedings causes this court astonishment. No explanation has been provided. It is to be inferred that it, too, was deliberate and calculated to leave the impression that the case against the applicant was stronger than the true facts merited.
(5) The above circumstances have to be considered in the light of the further evidence, since the committal, about the obtaining of Ali Shaikh’s confession, his literacy and the genesis of ABB10. In our judgment a pattern of events emerges, which is consistent with (a) a pre-conceived desire to blame the applicant when no evidence existed; and (b) the use of improper pressure to obtain a statement from Ali Shaikh to make good the allegations. Whereas the evidence of Ali Shaikh’s lawyers may have provided some reassurance about the propriety of what happened, the evidence of Prison Officer Wankhede and Advocate Mokashi give added cause for anxiety. Further, we note, so far as these two witnesses are concerned, that the police plainly disregarded Mr Garlick’s direction that no approach should be made to them before they gave evidence. We infer that the police have an improper interest in interfering with the evidence in this case.
(6) The expert evidence points to ABB10 as having been signed by Ali Shaikh in blank. The language of the document shows that, unless he is more educated than anyone suggests, it could not be his own confession. We infer that this document could not have been created without interference from those responsible for holding Ali Shaikh.
(7) The evidence of Mr Vanjara supports the conclusion that Ali Shaikh is illiterate. His daughter’s evidence is consistent with the document being the construct of another, placed above his signature after this had been obtained from him on a blank sheet of paper.
(8) The inclusion of Javed Fawda’s name in Ali Shaikh’s deposition, at a late stage and where there are grounds to connect it with unlawful and unjustified action by the police requiring false justification, leads us to question the role of the police in relation to the appearance of Javed Fawda’s name.
65. The cumulative effect of all these circumstances causes us to infer that the accusation of murder and conspiracy made against this applicant is not made in good faith and in the interests of justice.
66. Having reached this conclusion we are also satisfied that it would not be fair and would be unjust to return the applicant, because of the appearance of misbehaviour by the police in pursuing their inquiries and the significant risk that the activities surrounding that misbehaviour have so tainted the evidence as to render a fair trial impossible.
67. In view of our other conclusions in this case, it is unnecessary to reach any decision on this aspect. It suffices to say that the background material to which we were referred does not establish that every Muslim on trial in Mumbai, at the suit of a prosecution instigated by the Mumbai police, is at risk of being prejudiced by reason of his religion and we are not satisfied that the bad faith, which we have found to be present in the accusation, has a religious basis or motive.
Conclusion
68. We therefore order that a writ of habeas corpus issue to procure the production before this court of the applicant, Nadeem Akhtar Saifi, and that he be discharged forthwith in relation to the offences in respect of which his return is sought by the Union of India.
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