India v Rajarathinam & Anor

LORD JUSTICE LATHAM: This is an appeal pursuant to the provisions of section 105 of the Extradition Act 2003 (the Act) from a decision of District Judge Purdy of 28 June 2006. He determined that, in relation to the application before him for extradition of the respondent, on a preliminary issue in relation to the admissibility of material to support the appellant's claim to extradition, the appellant had not satisfied him that the evidence upon which it intended to rely was evidence for the purposes of section 84 of the Act, and that therefore, subject to any appeal under section 105 of the Act, he would order the respondent's discharge. This hearing is the appeal which was envisaged by the district judge.

Mr Hardy, on behalf of the appellant, has indicated that there is a point of general importance raised by the appeal because it is the first occasion upon which the relevant provisions of Part 2 of the Act have been considered by the courts. The relevant provision in the present case is section 84 of the Act, which, so far as material, provides as follows:

These provisions apply to all territories to which Part 2 of the Act applies (known as category 2 territories) unless they have been exempted from the requirement to meet the provisions of section 84(1) by virtue of an order made by the Secretary of State under section 84(7), in which case they can be described as exempt category 2 territories. Those not exempt have therefore to continue to meet the old requirement, albeit in the new form, of providing material establishing a case to answer. The appellant is a non -exempt category 2 territory.

Mr Hardy, on behalf of the appellant, submits that we should approach the interpretation of those provisions bearing in mind the purpose of the 2003 Act, which is to provide less complex procedures and speedier decisions in extradition cases. He has referred us to a dictum to that effect of Thomas LJ in Tollman [2006] EWHC 2256 (Admin) when he gave permission, which was cited with obvious approval by the Lord Chief Justice in his judgment at the substantive hearing.

The issue under section 84 of the Act, with which we are concerned, arises in this case out of the fact that a critical part of the case against this respondent, as presented by the appellant in the material put before the district judge, was an affidavit by Annie Vijayaa, who is an additional superintendent of police for the Tamil Nadu State Police, in which she set out in some detail what was nonetheless a synopsis of a complex case against this respondent of substantial widespread and serious fraud. In addition to the affidavit, there were before the district judge a large number of files in which there was documentation from individual losers in the fraud, which fortunately we are not required to consider either in detail or at all today. The argument on behalf of the appellant was that in particular in two paragraphs of Annie Vijayaa's affidavit the content and conclusions of a report from a firm of chartered accountants, Messrs Arun Jayaram and Krishnan, were set out upon which the appellant could rely as being expert evidence supporting the assertion that there was prima facie evidence of fraud in the material which the accountants had examined. The argument accordingly was that this was opinion evidence amounting to a statement made by a person whose direct oral evidence would accordingly be admissible, made to a police officer or another person charged with the duty of investigating offences or charging offenders so as to fall within section 84(2) of the Act. Alternatively, it amounted to a summary of such evidence which could be properly construed as being a summary in a document of a statement for the purposes of section 84(4) of the Act, and accordingly provided material upon which the district judge could properly conclude that there was a case requiring an answer to meeting the test contained in section 84(1) of the Act.

District Judge Purdy concluded that the material to which I will turn in a moment did not constitute, as he described it, "First -hand hearsay" for the purpose of section 84(2). Nor was it, in his view, a summary by an actual intended witness of his or her own proposed evidence, which is what he considered section 84(4) required.

In order to evaluate the respective contentions, it is necessary to set out the two paragraphs to which I have already referred of the affidavit in order to enable a proper appreciation of the arguments on both sides to be understood:

It seems to me that before I turn to any analysis of what is said in those two paragraphs, it might be helpful to return to section 84(2) in order to determine what it is that the court should be looking for in order to determine whether there is evidence upon which it can properly act in circumstances such as these. Section 84(1) makes it plain that it must be "evidence", which would be evidence available as material upon which a prosecution could rely at a summary trial of an information in domestic law. In extradition cases it is highly unlikely that individual witnesses, apart from perhaps those concerned in the investigation of the underlying offences, are likely to be available to give evidence. Section 84(2) and (4) accordingly provide the basis upon which most extradition applications are likely to be determined.

As far as section 84(2) is concerned, it seems to me that that is an easily comprehensible sub -section. Mr Hardy, on behalf of the appellants, did raise the spectre of the problem as to how it could be established that a statement was made to a police officer or other person charged with the duty of investigating offences or charging offenders. In my judgment, that is not and should not be a practical problem in most cases. Where it is apparent on the face of the document that it purports to have been so made, then unless there is some proper basis upon which that could be doubted, the court will be entitled to rely upon the face of the document. That would give effect to the purpose of the 2003 Act without doing any violence to the language.

It follows that where there is a statement made by a person capable of being a witness giving admissible evidence, then the statement constitutes evidence which can properly form the basis for the district judge's consideration of the question as to whether or not it raises a case to answer.

Turning to section 84(4), the sub -section is ambiguous because the phrase, "The summary in a document of a statement", may refer to a summary by the maker of a statement of his or her evidence, or a summary by another person of that evidence. It seems to me (although the matter does not require answering for the purposes of this appeal) that a summary of evidence by a person capable of giving admissible evidence for the purposes of section 84(2) may be made by another person giving that summary as hearsay; otherwise, in one sense, section 84(4) becomes unnecessary. If it is a summary made by the person who could give the evidence themselves, then it is likely to be admissible under section 84(2) in any event. To that extent, I would not accept the conclusion of the district judge to the effect that section 84(4) allows no more than a summary by an actual intended witness of their own proposed evidence. If it is a summary by another person, however, there may be other problems arising under section 84(3) with which it is not necessary for the purposes of this appeal to concern ourselves.

Returning then in the context of what I have said about the way in which the provisions of section 84, in my judgment, work, the problem with paragraphs 6 and 7 of Miss Annie Vijayaa's affidavit becomes immediately apparent. Those two paragraphs do not seek to be a statement by the firm of chartered accountants, let alone by a witness, namely a member of the firm of accountants who either prepared or was responsible for that report, but appears to be partly summary, partly narrative, arising out of the reading of the report by Annie Vijayaa in a way which does not make it clear to what extent it is in truth a summary of the report, which it would have to be if in fact it was to meet the primary threshold under section 84(4). It certainly is not a statement under section 84(2).

In those circumstances, it seems to me that the district judge came to entirely the correct conclusion as to the extent to which the purported and reported views of the chartered accountants could be taken into account by him: in other words, those two paragraphs do not provide evidence upon which he could rely for the purposes of determining the question under section 84(1).

In those circumstances, it seems to me that the only question which we have to consider under section 106 is whether we should dismiss the appeal on the basis that the district judge came to a correct conclusion as to the admissibility of the underlying evidence in Annie Vijayaa's affidavit, or whether we should remit the matter to the district judge on the basis that, in this case, we could properly determine that there is here sufficient to justify the conclusion that the matter may in fact be a matter of technicality and not substance which can be put right by appropriate steps being taken by the appellants by the time the matter returns to the district judge so that he can consider the matter on its proper merits.

I have come to the firm conclusion, despite the submissions by Mr Watson to the contrary, that that is indeed the proper step to take. If it be the case that, in truth, paragraph 6 and 7 of Annie Vijayaa's affidavit are a sensible and accurate account of the thrust of the report from the chartered accountants, then it seems to me that the matter can be properly dealt with without undue delay, and that, bearing in mind the assertion of the appellant as to the seriousness of the fraud in question, the appellant should be given the opportunity to provide a secure basis for the district judge to determine the question of extradition.

If on the other hand, at the end of the day, there is some significant deficiency in the report or the account given by Annie Vijayaa of the contents of the report, then that matter can be examined properly and in the context of all the other material before the district judge on remittal of the matter to him.

MR JUSTICE FULFORD: I agree.

MR WATSON: My Lord, I rise to make an application for costs (inaudible). This is a preliminary issue that was raised by my learned friend.

LORD JUSTICE LATHAM: Mr Watson, I think we would like to hear Mr Hardy in response to that application.

MR HARDY: My Lord, the statute makes what we submit are exhaustive provisions regarding costs, and section 134 provides for costs where a discharge is ordered, and it is only in the event that a discharge is ordered that it is open to the successful dischargee to seek costs out of central funds.

MR JUSTICE FULFORD: Can I ask whether, if costs are dealt with globally at the end - - let us say, just by way of argument, having failed today, you were to succeed ultimately in the proceedings, would the court be able to reflect in any order for costs made at the end, your loss here and your success later?

MR HARDY: My Lord, yes, indeed it would because section 133 provides for costs where extradition is ordered and, in short, the court at whichever level can order costs which it considers to be just and reasonable. So that, as it were, would provide the escape route for allowing a discount on costs for that part of the proceedings which the requesting government, as it were, brought upon itself. But sections 133 and 134 provide, we submit, exhaustive provision in respect of costs and, in short and in these circumstances, where your Lordships have chosen to remit, there is neither an order of extradition nor an order of discharge. Therefore, there can be at this stage no order for costs. I mention that not in, as it were, an adversarial sense, but only because the only application my learned friend could make at this juncture would be for costs out of central funds, which is provided for by section 134, and that only occurs upon discharge.

MR WATSON: My Lords, I only rise briefly to note that the Act plainly does not consider costs exhaustively because it does not consider this issue. Section 133 applies where extradition is ordered and 134 where a discharge is ordered.

LORD JUSTICE LATHAM: I think the argument against you is - - and this is really what my Lord was trying to identify - - at some stage either there is going to be discharge or extradition is going to be ordered. If extradition is ordered and there is any application for costs in relation to that, then can those costs, if they are ordered against you, be mitigated by the fact that you have been brought here and costs have been to that extent wasted by you in coming thus far, because if that can be achieved, even if extradition is ordered, then we do not have to come to a conclusion about costs today. If, on the other hand, you are discharged, you will get all your costs anyway.

MR WATSON: Yes, my Lord. I am grateful for your Lordship's comments. I think with those comments on the transcript, we will be in a position to ensure that our costs are protected whatever happens.

MR JUSTICE FULFORD: I think Mr Hardy has made a rather handsome concession which will ensure that you get your costs if such an order is appropriate.

MR WATSON: I am grateful, my Lord.

MR HARDY: I am so sorry to trouble your Lordships with a semantic matter, effectively.

LORD JUSTICE LATHAM: Not at all.

MR HARDY: My Lord made reference to the case of Sander and the judgment in it. It is a conjoined case.

LORD JUSTICE LATHAM: I know. I use that word for the moment as shorthand. I do not know quite how it is cited.

MR HARDY: The appropriate shorthand, my Lord, would be Tollman, which was the Part 2 case.

LORD JUSTICE LATHAM: Can you give that to the shorthand writer and he can put in the right name and reference.

MR HARDY: I will, my Lord.

LORD JUSTICE LATHAM: Are there any other matters?

MR HARDY: No, my Lord.

LORD JUSTICE LATHAM: I am very grateful to both of you.