Patel v Government of India & Anor

In extradition proceedings, abuse of process requires more than showing that the requesting State’s case may fail. The requested person must show that the requesting State does not honestly believe that it has a sustainable case, or is pursuing extradition for a collateral purpose. Authenticated foreign statements may be received as evidence under the Extradition Act 2003, without applying ordinary domestic hearsay rules or requiring the makers to reaffirm them for the extradition proceedings. Whether the evidence would be admissible or sufficient under the requesting State’s law is generally immaterial to the domestic prima facie case. A fair-trial objection is fact-sensitive and cannot be established merely because the prosecution evidence consists of statements by absent co-defendants. A fugitive will ordinarily be unable to rely on delay under section 82, save in exceptional circumstances.

The Government of India sought the appellant’s extradition to face trial for terrorist offences arising from two bombings in Surat in 1993. The District Judge rejected the appellant’s objections and sent the case to the Secretary of State, who ordered extradition. The appellant challenged both decisions.

The issues included abuse of process, detention under Article 5, the prima facie evidence requirement under section 84(1) of the Extradition Act 2003, Article 6 and Article 3 risks, passage of time under section 82, specialty, and the late appeal against the Secretary of State’s decision.

1. Abuse of process and Article 5. The requesting State is presumed to act in good faith. Abuse requires a lack of honest belief in a sustainable case, or a collateral purpose. It was unnecessary to decide whether the co-defendants’ statements would ultimately be admissible in India. The requesting State had a reasoned and honestly held position, so the abuse challenge failed. The Article 5 argument was parasitic on that ground and also failed.
2. Prima facie case. Under section 84(1) of the Extradition Act 2003, the question is whether the evidence would be sufficient to require an answer at a summary trial applying English criminal-law principles. Sections 202(3) and 202(4) permit duly authenticated documents from a category 2 territory to be received in evidence. Such statements are evidence of what the makers would say on oath, rather than ordinary out-of-court hearsay. The court rejected any requirement that the witnesses reaffirm their statements for the extradition proceedings. The co-defendants were competent witnesses for the relevant domestic-law inquiry, and the statements established a prima facie case.
3. Fair trial and Article 3. The possibility that the prosecution could not call the co-defendants did not establish a flagrant denial of justice. The appellant could potentially call them, and the Indian court could assess the reliability and fairness of the evidence. The Article 3 challenge failed because the further material did not undermine the District Judge’s finding that there was no real risk of torture.
4. Passage of time. Under section 82, delay caused by the appellant’s flight and evasion could not ordinarily found oppression or injustice. No exceptional circumstances or trial prejudice were established.
5. Specialty and delay in appealing. The treaty arrangements between India and the United Kingdom, the near-identical domestic provisions, and the specific assurances given provided sufficient protection. The Ansari proceedings involved materially different arrangements and did not establish a real risk of breach. The late appeal was refused because the relevant information could have been obtained with reasonable diligence.
6. The appeals were dismissed and the extension of time was refused.

The District Judge rejected the appellant’s objections on 2 May 2012 and sent the case to the Secretary of State. The Secretary of State ordered extradition on 25 June 2012. The Divisional Court dismissed the appeal against the District Judge and rejected the substantive challenge to the Secretary of State’s decision, refusing an extension of time.