The Government of India v Chawla

On 24 April 2018 Leggatt LJ and I sat as a Divisional Court, and heard an appeal against the order of District Judge (Magistrates’ Court) Rebecca Crane (“the District Judge”) dated 16 October 2017 to discharge the Respondent Sanjeev Kumar Chawla (“Mr Chawla”) in respect of an extradition request from the Government of India dated 1 February 2016. The extradition was sought in relation to alleged conduct on the part of Mr Chawla who was said to have acted as a conduit between book makers who wanted to fix cricket matches.

The District Judge had ordered Mr Chawla’s discharge because having considered conditions in the Tihar prisons in Delhi, sometimes referred to as Tihar jails, and an assurance dated 28 February 2018 (“the first assurance”) provided by the Government of India, the District Judge had concluded that there was a real risk of treatment contrary to the right in article 3 of the European Convention on Human Rights (“ECHR”).

For the reasons contained in the judgment dated 04 May 2018 ([2018] EWHC 1050 (Admin)) we found, among other findings, that the capacity at the Tihar prisons remained at 10,026 prisoners notwithstanding construction works at some prisons, but the prison population had increased to 15,161. There was evidence showing that the Courts in Delhi were investigating outbreaks of violence at Tihar prison, and there was material suggesting that recordings from CCTV cameras installed at the prison to ensure that there would be an accurate record of what occurred during outbreaks of violence were not available to those Courts. There were reports of intra-prisoner violence in High Security wards. There was some evidence suggesting that the Tihar prison board of visitors had not been visiting.

In that judgment we also considered an assurance dated 22 September 2017 (“the second assurance”) provided by the Government of India which was in addition to the first assurance. We recorded that the second assurance provided a guarantee about space, but the attached photographs did not identify whether what was shown was a cell or a ward. The second assurance did not identify whether any of the wards were high security wards, where the evidence showed that there was a real risk of violence. Further, the second assurance did not identify whether the toilet facilities would be shared, and if so what those facilities would be. The apparent under recruitment of medical officers was a cause for concern, given the reported difficulties with medical treatment of other extradited persons and the permissible findings of the District Judge, but in the judgment we noted the assurance that Mr Chawla would have speedy access to the prison medical facilities if needed.

In the judgment dated 04 May 2018 it was concluded that: (1) there was a real risk that Mr Chawla would be subjected to treatment contrary to the right in article 3 of the ECHR by reason of conditions in the Tihar prisons, which the evidence showed was where he was likely to be held before trial and in the event of any conviction; and (2) it was appropriate to give the Government of India an opportunity to provide an assurance to meet the real risk of impermissible treatment. It was noted that any further assurance would need to: address the personal space available to Mr Chawla in Tihar prisons; the toilet facilities available to him; identify the ways in which Mr Chawla would be kept free from the risk of intra-prisoner violence in the high security wards; and repeat the guarantee of medical treatment for Mr Chawla.

The Government of India’s appeal was stayed to give the Government an opportunity to provide the further assurance, if so advised.

After that judgment a further assurance dated 11 June 2018 (“the third assurance”) was provided by the Government of India. There was a dispute between the parties about whether in the light of the third assurance, there remained a real risk of impermissible treatment of Mr Chawla in the Tihar prisons.

In the interim Mr Chawla applied for an extension of legal aid to cover the cost of a translation of a judgment of the Court of Appeal in Portugal which had considered an extradition from India. This application was granted by order dated 10 July 2018 because it appeared that there might be information relevant to assurances provided by the Government of India.

Mr Chawla also made an application to instruct Dr Mitchell to produce a further report. As appears from our judgment dated 04 May 2018 the District Judge had expert evidence from Dr Alan Mitchell, a licensed medical practitioner who had been Head of Healthcare within the Scottish Prison Service, on prison conditions in Tihar prisons. Dr Mitchell had not been provided with access to the Tihar prisons. This application was refused because no reason had been given to explain why Dr Mitchell should comment on the adequacy of the assurances.

Manuel Luis Ferrera, a lawyer practising in Portugal, produced a witness statement relating to Abu Salem Ansari who was extradited from Portugal to India and issues that were said to have arisen in relation to alleged breaches of specialty. In response the Government of India referred in its Skeleton Argument to decisions of the Divisional Court in Patel v India [2013] EWHC 819 (Admin); [2013] WLUK 348 and Shankaran v India [2014] EWHC 957 (Admin); [2014] WLUK 55; explaining what had occurred in that case and identifying that Abu Salem Ansari’s case provided no support for the proposition that the Government of India might violate specialty in another case. This issue was not pursued in oral submissions on behalf of Mr Chawla before us, given the conclusions of the Courts in Patel and Shankaran.

Hester Cavaciuti, a trainee solicitor at Bindmans LLP, made a witness statement dated 19 October 2018 which referred to articles and reports relating to prison conditions in Tihar and which reported a number of deaths and investigations.

The assurance dated 11 June 2018 was signed by the Joint Secretary to the Government of India. Material parts of the assurance provide:

“…

A General Standards

It is assured that the specific arrangements and treatment compliant with the requirements of Article 3 … of the ECHR will be extended to Mr Chawla whose inherent dignity will be given full regard and will be treated accordingly …

B Existing assurances

It is re-iterated and re-confirmed that in order to address the specific points of concern identified previous two assurances … will stand … and rest of the assurances provided are in addition to the previous assurances.

C Applicability of assurances

It is stated that the assurances below and those contained in the prior assurances will apply to all periods of his detention …

D Personal space

It is assured that Mr Chawla will be accommodated in a cell to be occupied exclusively by him only with proper safety and security … The ward where he will be lodged has inmates who have not violated any prison rules and are of satisfactory conduct.

Below we guarantee Mr Chawla will be lodged in one of four identified cells located in two different wards …. We make it clear that all of the identified cells comply with the personal space and hygiene requirements the court expects.

…

Mr Chawla will be provided single occupancy … The size of the cell is 6 square metres approximately excluding toilet/sanitary area.

…

E Security from violence

It is clarified that the identified lodgement facilities … are not High Security Wards. Inmates having satisfactory conduct are lodged in these wards… detention in High Security Wards is ruled out for Mr Chawla in view of the … Court’s concerns …

There is a high level of security provided at the entrance of Ward No. 9 in Central Jail No.1 and similarly at Ward No. 4 in Central Jail No.3 along with sufficient number of CCTV cameras which are monitored 24x7 from the control room …

…

F Medical care

There is sufficient medical staff in Delhi Prison. As on date, 86 medical officers are available against 112 number of sanctioned posts. Medical facilities include 200 bed hospital in Jail No.3 premises …. Mr Chawla will be provided immediate medical attention if required, during his stay in the Delhi prisons …

…”.

Issues about the third assurance

The issues were refined in the course of the submissions, and we are grateful to Ms Malcolm QC and Mr Summers QC and their respective legal teams for their submissions and assistance. The issues about the third assurance related to whether: (1) there was provision for alternative accommodation in the event that the identified cells were unusable, in circumstances where it was said that the assurances could not be adequately enforced; (2) whether there remained a real risk of intra-prisoner violence; (3) whether the medical provision was adequate.

The relevant principles applicable to proposed assurances in the extradition context were summarised in our earlier judgment, and it is not necessary to repeat that here. Since that date the Divisional Court has given judgment in Giese v Government of the United States of America [2018] EWHC 1480 (Admin); [2018] 4 WLR 103. At paragraph 38 Lord Burnett LCJ said “whilst there may be states whose assurances should be viewed through the lens of a technical analysis of the words used and suspicion that they will do everything possible to wriggle out of them, that is not appropriate when dealing with friendly foreign governments of states governed by the rule of law where the expectation is that promises given will be kept”. India is a friendly foreign government. The task of this court now is to assess the adequacy of the assurance in the light of all the information available to it.

The third assurance related to cells 1 or 2 of Ward 9 in Central Jail 1, and cells 6 or 7 of Ward 4 in Jail 3. Ms Malcolm pointed to the lack of independent oversight by bodies such as the Committee for the Prevention of Torture, the difficulties in policing the assurance, and the fact that the Government of India had not provided reports which had been provided to the courts in India or permitted Dr Mitchell to inspect Tihar prisons. It was in this context that Ms Malcolm submitted that there was a risk that the designated cells might not be available, and that Mr Chawla might then be kept in impermissible conditions. Mr Summers noted that 4 cells had been identified to provide operational flexibility and he pointed to the jurisprudence on assurances, noting that the assurance from India was a solemn diplomatic assurance provided to the Court.

In our judgment the assurance is specific about the space to be provided to Mr Chawla, and also as to the locations of the cells which will be occupied by Mr Chawla. There does not remain a real risk of impermissible treatment by reason of the cell in which Mr Chawla will be held.

Ms Malcom referred to the numbers of guards on duty in Ward 9, and the fact that there would be a ratio of 1 guard to 59 prisoners. Reference was made to materials showing deaths of prisoners at the Tihar prisons and the fact that the Supreme Court had constituted a reform committee to inspect the Tihar prisons. Mr Summers referred to the terms of the third assurance which made it plain that the cells were not in high security wards and that inmates with satisfactory conduct were lodged in the wards. He noted that in our judgment dated 04 May 2018 the risk of violence was identified in high security wards.

In our judgment the assurance shows that Mr Chawla will not be accommodated in a high security ward, and that, while nothing can be guaranteed, there is no real risk of intra prisoner violence to Mr Chawla.

Ms Malcolm noted that there were still only 86 medical officers where there were 112 sanctioned posts. This meant that there was a continuing shortfall of 26 medical officers, and Ms Malcolm submitted that with the massive overcrowding there remained a real risk that Mr Chawla might not have access to treatment when required. Mr Summers pointed out that numbers of medical officers had increased and noted that we had required confirmation of the guarantee of medical treatment to Mr Chawla, which had been provided.

There is a guarantee of medical treatment for Mr Chawla should he require it. In our judgment this is a sufficient assurance.

In these circumstances, having regard to all of the information available to this Court about Tihar prisons, the terms of the third assurance (which was not before the District Judge) are sufficient to show that there will be no real risk that Mr Chawla will be subjected to impermissible treatment in Tihar prisons.

Therefore, pursuant to the provisions of section 106 of the Extradition Act 2003, we quash the order discharging Mr Chawla, remit the case to the District Judge, and direct the District Judge to proceed as if the District Judge had not ordered Mr Chawla’s discharge.