Patel v Government of India & Anor

The Government of India (“the requesting State”) has submitted an extradition request for the surrender of Hanif Patel (“the Appellant”) so that he may face trial in relation to terrorist offences committed in India during 1993 which, if committed in the UK, would constitute offences of conspiracy to murder, conspiracy to cause explosions, conspiracy to possess firearms and ammunition, and possession of explosives with intent to endanger life. The Appellant is accused of being involved in two bombings which led to loss of life and extensive property damage. Extradition between the United Kingdom and India is governed by the provisions of Part 2 of the Extradition Act 2003 (“the EA 2003”) and the Extradition Act 2003 (Designation of Part 2 Territories) Order (S.I. No 3334/2003) as amended.

The information provided in the request describes how, following an attack on a mosque in December 1992, internecine hostilities broke out between the Muslim and Hindu communities in Gujarat. The requesting State’s case is that the Appellant was part of a Muslim group which obtained explosives, guns and other weapons and then carried out revenge terrorist attacks on the Hindu community, including two explosions which resulted in loss of life, injury and damage.

The first explosion occurred on 28 January 1993 in a market on the Varacha Road in Surat and killed an eight year old girl and caused many injuries. The second explosion took place on 22 April 1993 at Surat railway station and caused many injuries and significant property damage. The Appellant is alleged to have been a principal conspirator in relation to these two bomb attacks, and to have been part of the Muslim group which acquired firearms and ammunition.

A number of those alleged to have been involved as co-conspirators with the Appellant have been convicted and sentenced in India to long terms of imprisonment.

The Appellant is wanted for trial in India for the offences set out on two warrants. The offences include murder, attempted murder, causing grievous bodily harm, attempting to cause an explosion and possessing firearms and ammunition.

Following receipt and certification of the request by the Secretary of State, the Appellant was arrested in the United Kingdom on 16 February 2010. Extradition proceedings then commenced before District Judge Evans at the City of Westminster Magistrates’ Court.

The request itself is lengthy because India is within the class of requesting States which is required to supply evidence of a prima facie case against any requested person before extradition may be ordered.

The Appellant advanced a number of grounds in opposition to extradition.

The District Judge rejected the arguments in a decision dated 2 May 2012 and sent the request to the Secretary of State for her decision as to whether the Appellant should be extradited. On 9 July 2012 the Appellant appealed against that decision.

The Secretary of State ordered the Appellant’s extradition on 26 June 2012. The Appellant now seeks also to appeal, well out of time, the decision of the Secretary of State (the Second Respondent)

During the course of these proceedings the Appellant refined the grounds of appeal to the following:

I shall consider each of these grounds in turn.

There is a strong presumption that a requesting State, in making the extradition request, is acting in good faith. In Serbeh v Governor of HM Prison Brixton 31 October 2002, CO/2853/2002 at paragraph 40 Kennedy LJ stated:

“There is (still) a fundamental assumption that the requesting state is acting in good faith.”

In R(Ahmad) v Secretary of State [2006] EWHC 2927 (Admin) at paragraph 101, Laws LJ restated this important principle in the following terms:

“But when the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force… It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.”

India and the United Kingdom have had extradition relations for many years through the Commonwealth Scheme for Extradition. There is an extradition treaty between the UK and India, signed in 1992, intended specifically to “make more effective the co-operation of the two countries in the suppression of crime by making further provision for the reciprocal extradition of offenders”. This relationship supports the presumption of good faith which is the starting point in considering any ground based upon abuse of process.

One form of lack of good faith would be knowledge on the part of the requesting State that it had no sustainable case against the requested person, in other words, that it either knew that it could not prosecute him or, if it did prosecute, that such a prosecution would be doomed to fail. This proposition is supported by recent authority. In R(Bermingham) v USA [2007] QB 727 at paragraph 100 Laws LJ said:

“The prosecutor must act in good faith. Thus if he knew he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of no case.” (emphasis added)

In Symeou v Public Prosecutor’s Office, Patras, Greece [2009] 1 WLR 2384, Laws LJ re-iterated:

“The residual abuse jurisdiction identified in R (Bermingham) v Director of Serious Fraud Office (2007) QB 727 and the Tollman case (2007) 1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of these two cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know the trial cannot succeed, they abuse the extradition processes of the requested state.” (emphasis added)

In this instance the requesting State founds its case upon statements made by individuals to police officers in which the makers of the statements incriminate both themselves and the Appellant. The Appellant does not contend that the contents of the statements, as such, would not tend to establish a prima facie case against him. As an example, Iqbal Wadiwala made a statement in which he said that, after riots in 1992, a camp was established to help Muslims who had been made homeless in the riots, and that the Appellant was one of the main leaders of the camp. Following an atrocious attack on a Muslim woman, the desire for revenge against the Hindu community increased. Wadiwala stated that he was at a meeting, attended also by the Appellant, when it was decided to plant a bomb at the bazaar in Varacha Road. The bomb was exploded three or four days after the meeting.

The individuals in question were all arrested, charged and tried under the Terrorist and Disruptive Activities (Prevention) Act 1987 (“TADA”). TADA was controversial legislation and was allowed to lapse in 1995. The statements that these individuals had made to police officers were admitted in evidence at their trials, although they had maintained that the statements had been obtained by coercive methods, including torture, that they should not be admitted and that they were in any event untrue. After what appears to have been lengthy proceedings, the trial Court, by an order of 4 October 2008, convicted and sentenced to imprisonment these individuals (“the co-defendants”).

For the purpose of the present extradition proceedings the requesting State does not rely upon evidence other than the statements of the co-defendants. It does not suggest for that purpose that, if the Appellant were returned to India and were put on trial for the relevant extradition offences, the State would, or might, have other evidence that would be capable of sustaining convictions for those offences.

Mr Edward Fitzgerald QC, on behalf of the Appellant, submitted that, as a matter of the law of India, the statements of the co-defendants would not be admissible in evidence in criminal proceedings in India against the Appellant in respect of any of the extradition offences, and that the requesting State well knows that that is the position and that, therefore, there is no sustainable case against the Appellant. If that were the real situation, it would be sufficient to establish abuse of process, as Mr Julian Knowles QC, appearing for the requesting State, rightly concedes.

For the proposition that the statements of the co-defendants would not be admissible in evidence in the relevant criminal proceedings in India against the Appellant, reliance was placed before the District Judge on two expert reports of Sanjay Jain, an experienced advocate on record in the Supreme Court of India and the representative of the co-defendants in the proceedings referred to above, and on two reports of Dr Martin Lau, Reader in Law at the Law Department of the School of Oriental and African Studies at the University of London. Dr Lau also gave oral evidence at the hearing before the District Judge, and was cross-examined by Miss Claire Montgomery QC (then appearing for the requesting State). Following his oral evidence and before the District Judge made his decision, Dr Lau produced a third opinion.

The written expert opinions, excluding supporting exhibits and the oral evidence, run to over 30 pages, but I believe that the thrust can fairly be summarised as follows. It is common ground that the statements made by the co-defendants could be admitted in evidence against the Appellant only under section 15 of TADA. That section creates an exception to the general rule in the law of India (and indeed of England) that an out-of-court statement made by one defendant is not admissible in evidence against a co-defendant. The statement is, of course, hearsay, but it is a particularly suspect form of hearsay because a person under investigation for a criminal offence has an obvious incentive to deny or minimise his own involvement and to cast responsibility on others. Section 15, however, exceptionally renders such statements admissible, subject to certain formal requirements (which appear to have been satisfied in the present case), and with an important proviso (that was added by a later amendment to the legislation in order to create a further safeguard), in the following terms:

“… that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.” (“the relevant proviso”, emphasis added)

Mr Jain and Dr Lau give as their expert opinion that, in the hypothesised circumstances, the Appellant would not be “charged and tried in the same case”. They refer to chapter XVII of the relevant Criminal Code which defines “charge” as the formal framing of the accusation by the court, and to the decision of the Supreme Court in Esher Singh v State of Andhra Pradesh [2004] 2 SCR 1180, in which it was held that such a formal framing of the charge was necessary for the application of the relevant proviso. It does not appear that any charge has yet been formally framed against the Appellant. Mr Jain and Dr Lau also give their opinion that, even if a charge or charges had been formally framed against the Appellant, or are so framed in the future, he can no longer be “tried in the same case together with the accused”, within the meaning of the relevant proviso. In that context they rely upon two decisions of the Supreme Court of India in Hardip Singh Sohal 2004 (11) SCC 612, and in Esher Singh 2004 (11) SCC 585, where, referring to the earlier decision, the Supreme Court stated at paragraph 22:

“Unless a person who is charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of the trial. Merely because at some stage there was some accusation, unless the charge has been framed and he has faced trial till its completion, the confessional statement if any is of no assistance to the prosecution so far as the co-accused is concerned.”

On this evidence the District Judge “unhesitatingly” found that the statements would not be admissible under the law of India, although, in the spirit of Sir George Jessel MR, he accepted that he might be wrong on the point. Speaking for myself, I do not find this matter so clear cut. In an affidavit sworn in these proceedings Mr Sukadwala, the Public Prosecutor in Surat, India, states his belief that the evidence would be admissible under section 15. As I understand it, Mr Sukadwala considers that (even if no charges were formally framed against him), the Appellant, as an absconder, was being tried along with the co-defendants in the relevant criminal proceedings, and the trial judge made findings, set out in some detail in the affidavit, against not only the co-defendants but also the Appellant. Section 14(5) of TADA contemplates that a Designated Court may proceed with the trial in the absence of the accused and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination. Mr Sukadwala also relies on the position of one co-defendant, Yusuf Dadu, who, like the Appellant, was an absconder and who was likewise apparently not at the outset the subject of formally framed charges in the proceedings. He was arrested in 2000, a supplementary formal charge was then framed against him, and he was brought physically before the court for the remainder of the proceedings. The Designated Judge admitted in evidence the statements of the co-defendants against Dadu under section 15, when plainly he had not been physically present throughout the proceedings. It is correct that Dadu physically was present with the co-defendants before proceedings terminated against them. But Mr Sukadwala does not believe that such physical presence is necessary, because the real question under section 15 is whether on his return the Appellant would be tried in what was in substance a continuation of the same case.

Mr Sukadwala also seeks to distinguish Hardip Singh and Esher Singh (see above), on the ground that in these cases it was the maker of the statement that was absent from the trial (in one case because he had died, in the other because he had absconded); and the ratio of the decisions, in his view, does not necessarily extend to circumstances in which the target of the statement has chosen to abscond. On the contrary, he argued that there could be policy reasons against such an extension. The clear purpose of section 15 was to enable the statement of one defendant to be admitted in evidence against a co-defendant, provided that the co-defendant had a fair opportunity to respond to it. According to the policy argument, the Parliament of India could not have contemplated that a co-defendant who chose to abscond (and so deliberately to deprive himself of the opportunity of physically confronting his co-defendants) should be able to shut out evidence that would be admissible against him if in accordance with the law he had been present at his trial. It might also be noted that whether an absconding co-defendant was, like Dadu, apprehended in time to include him physically in the proceedings could be somewhat fortuitous, and Dr Lau’s reading of section 15 would encourage absconders to lie low until co-defendants had been dealt with.

Unlike the District Judge, and with great respect to the opinions of the learned experts deployed by the Appellant and to Mr Fitzgerald’s typically forceful presentation, I am not able confidently to predict, on the material before this Court, that the relevant statements would not be admissible in evidence against the Appellant under section 15 of TADA. The question raises difficult points of criminal procedure in India and there are competing arguments on each side. As a matter of language, the concept found in section 15 of “the same case” would appear to be a broad one, and the requesting State contends that, taking account of what has already happened in the proceedings, this Appellant, under the applicable rules of criminal procedure in India, can be charged and tried jointly with the co-defendants in “the same case”, even if the co-defendants have been convicted in his absence. The Appellant argues that the decision in Mustafa Dossa forecloses that possibility. But in that case it appears to have been accepted that the case of the absconder had been separated from the cases of the putative co-defendants, which Mr Sukadwala does not accept to be the position in the Appellant’s case. There is also obvious force in the policy argument relied on by the requesting State. Dr Lau, in cross examination, accepted that it had force. His answer appeared to be that, although his interpretation might ordinarily not be regarded as advancing the purpose of Section 15, the Supreme Court had expressed disquiet about TADA generally, and would, therefore, be likely to read down section 15 so that its application was restricted. I understand from the evidence that the related case of Dadu is to be considered by the Supreme Court, who may well give further guidance on the meaning and scope of section 15, in a way that would resolve any doubts in the Appellant’s case.

I should also mention that Mr Chaliawala, Assistant Government Pleader, Surat, on 29 February 2012 made a statement that was at odds with that given by Mr Sukadwala and with the general position advanced by the requesting State. In my view, that does no more than show that, even within the prosecutor’s office, different views may have been expressed. The ultimate position of the requesting State, put before the District Judge and this Court, is that it believes that the statements of the co-defendants will be admissible, and that it believes that it has good grounds to support that position.

Fortunately, I do not have to resolve these difficult questions about the correct interpretation and application of section 15 of TADA. I have to be satisfied that the requesting State honestly believes that it has a sustainable case against the Appellant. This is not an instance of a requesting State claiming to have such a belief but offering no explanation for its belief. The requesting State has here squarely addressed the argument advanced by the Appellant that the only evidence against him would be inadmissible at his trial in India. In my view, it cannot be concluded that its reasoned position, as I have set it out above, has plainly no merit and that the requesting State knows that it has no merit, so as to found an abuse of process. I do not say that the Appellant’s arguments will inevitably fail, or even that they are likely to fail. But on the authorities that is not the relevant test for determining whether there has been an abuse of process.

For these reasons, I reject the first ground of challenge.

In my view, this ground is parasitic on the first ground and can be dealt with shortly. I am prepared to accept, without deciding, for present purposes that Article 5 ECHR is engaged in respect of the Appellant’s detention in pursuance of his requested extradition and that, as Mr Fitzgerald submits, the detention must be for a legitimate purpose, in good faith and not disproportionate. However, in the present context, the detention would not be for a legitimate purpose and/or disproportionate, only if the requesting State did not honestly believe that it had a sustainable case. For the reasons already given, the requesting state in the present instance honestly believes that the relevant evidence is admissible and that the case against the Appellant is a sustainable one. Furthermore, even if quod non it were necessary to show that the case had a realistic prospect of success, the requesting State has also discharged that burden for the reasons given above.

On this ground the relevant provision of the EA 2003 is section 84(1):

“If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”

In this case, as already explained, the Government of India relies, for the purposes of satisfying section 84(1), exclusively on the out of court statements of the Appellant’s alleged co-defendants. Mr Fitzgerald QC submits that such statements would not be admissible in evidence at a summary trial of an information against the Appellant and that, therefore, there would not be sufficient evidence to make a case requiring an answer. Section 82(1) of the Police and Criminal Evidence Act 1984 states that a confession made by an accused is admissible “against him”, reflecting the common law rule that a confession is admissible only against its maker and not against anyone else such as a co-accused who may be named in it (see, for example, R v Gunewardene (1951) Cr. App. R 80 CCA; R v Spinks [1982] 1 All ER 587). A trial judge who admits a confession made by one defendant must give the jury a formal direction that the confession may only be used in considering the guilt of that defendant, and may not be used in considering the case against another defendant, even if the jury knows that the other defendant has been incriminated: R v Jefferson [1994] 1 All ER 270, which also allows the statement to be edited at the trial judge’s discretion to reduce prejudice to a co-defendant. The co-defendant will have had no opportunity to challenge a confession made out of court in his absence, and the parts of the confession that incriminate the other defendant are not against his interest. On the contrary, there is a real risk that the maker of the statement will have had a motive for casting blame on the other defendant (see R v Hayter [2005] UKHL 6; [2005] 2 Cr. App. R 3 at [85]). In certain circumstances, however, the guilt of one defendant, proved or substantially supported by an out of court confession made by him, may be treated as evidence tending to show that another person committed an offence, at least if the individuals are tried jointly for an offence or offences (Hayter; Persad v Trinidad and Tobago [2007] UKPC 51; [2008] 1 Cr. App. R, 9 (page 140)). Furthermore, the provisions for admissibility of hearsay evidence of the Criminal Justice Act 2003, that apply to domestic criminal proceedings in the strict sense, enable a hearsay statement to be admitted under section 114(1)(d) “in the interests of justice”. In R v Y [2008] EWCA Crim 10; [2008] 2 All ER 484, explaining R v McLean [2007] EWCA Crim 219; [2008] 1 Cr App R 11, the Court of Appeal confirmed that this is a general provision capable of applying to a confession by a co-defendant. However, the Court held that the application of the factors listed in section 114(2) would “in the great majority of cases” exclude the admission of such statements.

However, as Mr Knowles QC submitted on behalf of the Government of India, this ground of challenge rests upon a fundamental misappreciation of long and well established principles governing the reception of evidence in extradition proceedings. Section 14 of the Extradition Act 1870 long ago provided:

“Depositions or statements on oath, taken in a foreign state, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Act.”

There is now a much simpler provision in section 202(3) of the EA 2003:

“A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.”

Section 202(4) sets out how a document may be authenticated.

The effect of authenticating statements is that they can be received by the Court as evidence of what the makers of the statements would say if they gave oral evidence in the extradition proceedings. In Douse v Governor of Pentonville Prison [1983] 2 AC 464 at 470, Lord Diplock explained the position as follows:

“Section 14 of the Extradition Act where it speaks of ‘affirmations’ and ‘depositions’ and ‘statements on oath’ is dealing with documentary evidence. It makes admissible in evidence in extradition proceedings written statements of fact which fall within any of those descriptions and are duly authenticated in manner provided for in s15, notwithstanding that under English laws of evidence what appears in the statement would only be admissible in the form of oral testimony given on oath by the maker of the statement. The manifest purpose of the section, as has frequently been stated, is to obviate the necessity of bringing witnesses from one country that is a party to an extradition treaty to give oral evidence in the other.”

This point had been emphasised also in R v Governor of Pentonville Prison ex parte Kirby [1979] IWLR 541, where at 544 Croom-Johnson J said:

“What section 11 [of the Fugitive Offenders Act 1967] is dealing with is the way of presenting evidence to the committing court. Since witnesses in proceedings of this type cannot be expected to travel all the way from a foreign country to the place of committal, and documentary evidence of what they would say and exhibit is therefore to be allowed, safeguards have to be imposed to make sure that only authenticated evidence as provided for by section 11 is to be allowed in and not documents or exhibits in any form. This section is dealing with procedure and method but not with admissibility.

The right view of the expression at the end, for example, of section 11 (1) (a) that the documents shall be admissible as evidence of the matter stated therein is that this is an enabling provision allowing documents with due authentication to be put before the magistrate so that he may receive them knowing that they are vouched for by the country from which they purport to come, and he may therefore have regard to them for the purposes of the committal proceedings. But it does not mean that anything which is in that document, regardless of whether or not it complies with the ordinary rules of evidence which would be applied in the committing court, shall be considered by the magistrate.

Having got thus far, one asks next what rule of evidence could or should be applied to the evidence of Mr Lord in similar committal proceedings in England in the ordinary way. Would Mr Lord’s evidence be admissible?”

(See also R v Governor of Pentonville ex part Osman [1990] IWLR 277 at 306-309; R v Stipendiary Magistrate ex parte Dokleja, 31 January 1984 (unreported) CO/523/93 at page 73; and Fernandez v Governor of HMP Brixton [2004] EWHC 2207 (Admin) at para 47).

In short, the process of authenticating witness evidence in extradition proceedings allows statements taken abroad to be submitted as evidence in place of the witness giving live evidence against the subject of the extradition request. In this case the correct characterisation of the co-defendants’ statements is not as out-of-court hearsay evidence but as statements of evidence which the witnesses would give on oath if they were called to do so.

There are in fact a number of reported authorities where the out-of-court statements of accomplices or co-defendants have been admitted in evidence in extradition proceedings in order to found a prima facie case. In R v Pentonville Prison Governor, ex parte Schneider (1981) 73 Cr App R 200, DC (Lord Chief Justice and Boreham J), the Government of Canada sought to rely upon out of court statements of a female co-conspirator in an alleged conspiracy to import cannabis into Canada. As to the admissibility of the statements as such, Boreham J, giving the judgment of the Court, simply stated in accordance with the general position explained above, that

“…it was common ground in the proceedings before us that, by virtue of section 11 of the Fugitive Offenders Act 1967 [another forerunner of what is now section 202 of the EA 2003], the evidence is properly admitted, despite the absence of the witness herself.”

However, in Schneider the appellant contended with some force that the general position was not sufficient because, even if the co-conspirator were before the court giving live evidence, she would not be a competent witness, and without her (incompetent) testimony there would be no prima facie case to answer. That contention led the court to consider the extent, if any, to which an accomplice could be a competent witness in domestic criminal proceedings, concluding, after a learned and exhaustive examination of the somewhat uncertain position then prevailing in domestic law, that as a strict matter of English law (as distinct from practice) an accomplice was a competent witness, save, perhaps, when he was both indicted and tried with the defendant. The co-conspirator in the case before the court was being dealt with in separate criminal proceedings in Canada. She was a competent witness, and her out-of-court statements incriminating the appellant were on any view admissible to show a prima facie case against him.

Similarly, in R (on the application of the Government of the United States of America) v Bow Street Magistrates’ Court; Lemieux v Governor of Belmarsh Prison [2002] EWHC 1144 (Admin), the requesting State relied, in connection with proceedings in Florida, on the evidence of accomplices in an alleged drug running conspiracy, given in criminal proceedings in the United States District Court, Southern District of Florida. Although the evidence had been given on oath, before a Federal District Judge, it appears that the appellant had had no opportunity to cross-examine the witnesses and, from his point of view, the evidence in substance amounted to out-of-court statements. The only issue in the case was whether the evidence, otherwise admissible under the general rule, satisfied the formal requirements of the then applicable provision, namely, paragraph 12 of schedule 1 to the Extradition Act 1989. As to the Florida proceedings, the sworn evidence was held to be a “deposition” within paragraph 12 and was thus admissible. It might also be observed that an accomplice, on trial in the absence of a potential co-defendant, has just as great, if not greater, incentive to minimise his role and to incriminate others who are not present.

Finally, in Tudor v United Arab Emirates [2012] EWHC 1098 (Admin), the appellant, in a late reprise of Schneider (see above), contended that statements of accomplices were not admissible to found a prima facie case. Kenneth Parker J, with whom Richards LJ agreed, said:

“18.

Mr Vullo also submits that the statement of Marin could not under s 84(2b) be treated as admissible evidence of any relevant fact because he says direct oral evidence by Marin of any relevant fact would not be admissible if the proceedings were the summary trial of an information against him. Mr Vullo contends that Marin is a co-accused and that in the putative summary trial referred to in s 84(1) he would not be able to give admissible evidence. Therefore direct oral evidence of Marin would not be admissible at such a trial.

19.

That is undoubtedly the position in domestic law so far as co-accused are concerned: see the Youth Justice and Criminal Evidence Act 1999, s 53(4) and (5) which is set out in Archbold at para 853. This preserves the long-standing restriction imposed by the Common Law and illustrated by R v Payne[1950] 1 All ER 102, 48 LGR 187, 114 JP 68. However, prosecutors have long been able to circumvent this restriction in practice either by terminating the proceedings against the accused, for example through a nolle prosequi by the Attorney General or by first completing the accused's trial before prosecuting his co-accused. In either case, the accused ceases to be a co-accused within the meaning of the Youth Justice and Criminal Evidence Act and the legal restriction on the competency of an accused no longer pertains. If it had been the case that Mr Marin was simply an incompetent witness, I can see that an argument could properly be advanced under s 84(2) that direct evidence from Mr Marin would not have been admissible at a summary trial.

20.

That, in my judgment, is the only criterion that needs to be satisfied. Mr Vullo suggested that it was necessary to go further, that a further criterion should be read into s 84 whereby domestic rules about admissibility of interviews made at a time when an accused is a co-accused may not be admitted in evidence. However, there is no such reference at all in s 84 to any such further matters. The only matter that has to be considered is whether Marin would have been a competent witness.

21.

In this case it is not disputed that Marin had already been sentenced and dealt with by the time of any putative summary trial. At the putative summary trial he would be competent to give evidence on behalf of the prosecution and his evidence that the Appellant had confessed to the robbery would be admissible evidence of the fact that the Appellant had indeed committed the robbery, under the relevant Common Law exception to the exclusionary hearsay rule, specifically preserved by s 118 of the Criminal Justice Act 2003.”

Mr Fitzgerald QC sought to circumvent the effect of such earlier authorities by submitting that the out-of-court statements of accomplices or co-defendants could be admitted in evidence only if the makers of the statements had, for the express purpose of the extradition proceedings, “re-affirmed” the truth of the contents of the statements. However, that submission is entirely inconsistent with the long line of cases which establish that evidence is in principle admissible in extradition proceedings so long as the requesting state satisfies the formal requirements laid down from time to time by Parliament. The relevant formal requirements are now contained in section 202 EA 2003, and there is simply no scope in this context for any judicial gloss of the kind suggested by Mr Fitzgerald on the clear and simplified statutory criteria. It might be noted that in neither Schneider nor Lemieux had the evidence relied on by the requesting state been initially given or subsequently “re-affirmed” for the purposes of the extradition proceedings.

Mr Fitzgerald also pointed out that the Government of India appeared to accept that the co-defendants would not be competent witnesses for the prosecution under the rules of criminal evidence in India. That would seem to be so if, for the purposes of section 15 of TADA (see above), the co-defendants were properly treated as accomplices who were being dealt with “in the same case” as the Appellant. However, section 84 of the EA 2003 is concerned only with what evidence is necessary to show a prima facie case under the principles of English criminal law, and the competence of the co-defendants to give evidence for the prosecution in India is not relevant in this context: see R(Abdullah) v Secretary of State [2001] EWHC 263, para 43; R(Ramda) v Secretary of State [2002] EWHC 1278 (Admin), para 22; R v Home Secretary, ex parte Elliot [2001] (Admin) 559, para 11.

For completeness, I should perhaps mention that at an earlier stage in the proceedings the Appellant contended that section 84(2)-(4) of the EA 2003 was relevant, in other words that the out-of-court statements of the co-defendants would be hearsay evidence in domestic criminal proceedings and could, therefore, be admissible in extradition proceedings only if the criteria in that section were satisfied. However, as explained at length above, certified statements as such are not treated as hearsay. Such statements may, of course, contain hearsay material, and such material was not previously admissible (unless there was a relevant domestic exception), so that, for example, in R v Governor of Pentonville Prison, ex parte Kirby [1979] IWLR 541, the out-of-court statement of an accountant witness was inadmissible to the extent only that it referred to, but did not properly exhibit, primary company reports whose accuracy could be supported only by the evidence of other persons. Section 84(2)-(4) would now render such material admissible in principle, thus extending (not limiting, as the Appellant’s initial contention implied) the scope of admissible evidence under section 84, in line with the modern domestic approach to the admissibility of hearsay evidence, as expressed in the applicable provisions of the Criminal Justice Act 2003. Anyone seeking a fuller explanation of this development can consult Nicholls, Montgomery and Knowles, The Law of Extradition and Mutual Assistance (2^nd edition, OUP) at paragraphs 6.55-6.56.

The upshot of this somewhat lengthy exposition is that the co-defendants in this case, having been dealt with, would be competent witnesses for the prosecution in domestic criminal proceedings, their statements satisfy the requirements of section 202 EA, and the evidence in them is sufficient to establish a prima facie case under section 84.

As mentioned above, it appears that the prosecution cannot call as competent witnesses the co-defendants who have made statements incriminating the Appellant. Mr Fitzgerald QC submits that in these circumstances the Appellant cannot receive a fair trial in India and his extradition to stand trial would be a clear breach of Article 6 ECHR.

I do not accept that submission. First, the Appellant may call evidence in his own defence. Apart from any other evidence upon which he may seek to rely, he has at least the opportunity of calling to give evidence one or more of the co-defendants who have made incriminating statements. Those co-defendants have maintained that the relevant statements were not made voluntarily and were in any event untrue. In principle at least it would appear that one or more of them could potentially give evidence that would be helpful to the Appellant. It may be that in their own interests they would not be willing to do so, and it may also be that the Appellant would not wish to run the risk of calling them as witnesses, lest their evidence, which has not been believed in previous proceedings and would again be exposed to cross-examination, should tend to undermine the defence. However, decisions of this kind may turn out to depend on a number of future contingencies which are not necessarily easy to predict at this stage.

Secondly, there are indications in the expert evidence given on the Appellant’s behalf that the court in India itself is likely to be fully alive to the needs of a fair trial in the present context. In The State v Sandhu (judgment 4 August 2005), the Supreme Court emphasised the importance of corroborating evidence where the prosecution relied upon statements admitted in evidence under section 15 of TADA. This Appellant will be able to contend at his trial that it would be unsafe and unfair to convict him of what are indisputably serious criminal offences solely on the statements of alleged co-conspirators. I have no reason to doubt, on the material that I have seen, that the court in India would carefully consider any such submission, and would ensure that the Appellant received a fair trial. However, I am not prepared sitting in this Court to prejudge that issue and to conclude in advance that a fair trial would simply not be possible, on the hypothesis that a conviction founded on hearsay statements of alleged co-conspirators must inevitably be unsafe and unjust. Such an inevitable conclusion is not in any event supported by domestic principles of criminal evidence, where it is now established that a conviction based solely or to a decisive extent on the statement of a witness whom the defendant has had no chance of cross-examining does not necessarily infringe the right to a fair trial: R v Horncastle and Others [2009] UKSC 14. Whether the right to a fair trial would be infringed depends crucially on the circumstances of each particular case.

Section 82 of the EA 2003 provides as follows:

“82 Passage of time

A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –

(a)

committed the extradition offence (where he is accused of its commission), or

(b)

become unlawfully at large (where he is alleged to have been convicted of it).”

In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 Lord Diplock stated:

“'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied on as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of delay due to such causes are of his own choice and making. Save in most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.”

In Gomes v Government of Trinidad and Tobago [2009] UKHL 21, the Court stated:

“26.

This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'.

27.

There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether 'mere inaction' on the part of the requesting state 'was blameworthy or otherwise' could be 'an invidious task'. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski's case, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under s 85(3) of the 2003 Act).”

At para 29, the Court continued:

“We are accordingly in no doubt that it is Krzyzowski's case, rather than the Divisional Court's judgment in the present case, which correctly states the law on the passage of time bar to extradition. The rule contained in Diplock para 1 should be strictly adhered to. As the rule itself recognises, of course, there may be 'most exceptional circumstances' in which, despite the accused's responsibility for the delay, the court will nevertheless find the s 82 bar established. The decision of the Divisional Court (Hobhouse LJ and Moses J) in Re Davies (30 July 1997, unreported), discharging a defendant who had become unfit to plead notwithstanding his responsibility for the relevant lapse of time, may well be one such case. In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat his extradition.”

In the present case the District Judge found:

“Before leaving India he [the Appellant] was aware of police interest in him for the offences with which his extradition is sought. He was evading arrest. It is accepted he fled India in breach of his bail condition and to avoid arrest on these terrorism charges. He travelled to England arriving on 16 February 1996. On 8 May 1996 he claimed asylum … On the face of it that brief historical account renders any submission under section 82 of the Act quite hopeless.”

The District Judge then considered whether the circumstances advanced on behalf of the Appellant amounted to exceptional circumstances such that he might nonetheless rely on the passage of time. The Appellant alleged that he was the victim of torture and had learnt that others had also been tortured. Under duress of circumstances he fled to protect himself and his family from further similar conduct. The Appellant did not give evidence.

The District Judge rejected the Appellant’s case as follows:

“I am not satisfied the Appellant was tortured. I consider it more likely than not that he has invented this false claim. Most probably the claim is only advanced in an attempt to defeat this extradition request. His credibility is therefore seriously compromised.”

There is no arguable basis for challenging the findings of the District Judge. The Appellant is a classic fugitive, there are no exceptional circumstances and he cannot rely on the passage of time to avoid extradition. In any event, the evidence falls well short of establishing that the delay in this case would cause oppression or injustice. There is nothing to suggest that the Appellant is now no longer able to recall the events in question, or that the court in India would be unwilling or unable to consider the extent, if any, of any prejudice to the fairness of the criminal trial by reason of the passage of time.

As already mentioned, Mr Geloo in his most recent statement refers, among other matters, to allegations made by, or on behalf of, Ansari that he was tortured following his extradition to India from Portugal.

The District Judge found, on the material before him, that there was no real risk that the Appellant would suffer torture, or other treatment falling within Article 3 ECHR, if extradited. In his asylum claims and interview the Appellant did not say that he had been subject to such treatment after his arrest in India and before he absconded. The Appellant did not give evidence before the District Judge and did not submit to a medical examination that might verify his allegations. The District Judge considered that the allegations were a recent fabrication developed for the purpose of resisting extradition. The Appellant no longer seeks to challenge the conclusion reached by the District Judge on the material before him.

The allegations now made by Ansari must be treated with extreme caution. He has powerful incentives to make such allegations. For the proceedings before the District Judge Mr Maninder Pawar, Deputy Commissioner of Police, Crime Branch in Surat and the supervisory officer regarding the investigations into the bombings in Surat in 1993 made a statement. He pointed out that other co-defendants had made allegations of torture. However at their trial the police officers gave evidence and were cross-examined at length. The court, having heard the evidence, admitted the statements of the co-defendants in evidence, and rejected the allegations of ill-treatment made by the co-defendants. Mr Pawar also explained how the Appellant would be dealt with on return to India. On arrival, if he wished to see a lawyer, that would be permitted. He would be remanded into the custody of the prison service. If the police wished to interrogate him they would have to apply to the court for permission. Any interrogation would be conducted in prison in the presence of prison staff and the defendant’s lawyer if he so chose. Mr Pawar referred to Basu v State of WB (1997) AIR Supreme Court 3017 (II/2) where the Supreme Court specified the procedure following arrest of a criminal suspect, which includes regular medical examination and the keeping of appropriate records.

Furthermore, on 5 February 2013 the Commissioner of Police, Surat, provided a detailed response to the various matters in this context raised by the Appellant, including issues relating to police custody and prison custody. For example, in response to claims that terrorist suspects had been ill-treated by specialised units of state police, the Commissioner pointed out that the defendant was being extradited for two specific criminal cases, and he would not at any time come under the control of such specialised units. I am satisfied that the Commissioner has responded comprehensively and adequately to the matters raised by the Appellant.

In my view, there is nothing, therefore, in the further material relied upon by the Appellant that would tend to undermine the conclusion reached by the District Judge that the Appellant has failed to provide substantial evidence that he would be at real risk of torture or other treatment falling within Article 3 ECHR if extradited.

For these reasons I conclude that the appeal against the challenged decision of the District Judge must be dismissed.