Shankaran v The Government of the State of India & Anor

In a Part II extradition appeal, the High Court determines for itself whether the admissible evidence establishes a prima facie case. Hearsay admitted under section 84 of the Extradition Act 2003 must be assessed in light of all evidence bearing on its nature, source, reliability and fairness.

Classification of defence information does not alone prove a damaging disclosure under the Official Secrets Act 1989. The evidence must show real or likely appreciable harm from the particular disclosure.

Assurances concerning prospective human-rights breaches require a practical, fact-sensitive assessment. Their source, specificity, authority and likely effect are relevant; there is no absolute rule restricting who may give them.

This was a consolidated statutory appeal under Part II of the Extradition Act 2003. The appellant challenged two decisions of a District Judge sending India’s extradition request to the Secretary of State and the Secretary of State’s subsequent order for extradition.

India alleged that the appellant, using the identity “Vic Branson”, had participated in the disclosure of classified Indian naval information. The issues included whether admissible evidence established that identity and a damaging disclosure for dual-criminality purposes. The appellant also relied on abuse of process, specialty arrangements and the prospect of a flagrant breach of article 5 of the European Convention on Human Rights.

The decisive question was whether the only hearsay statement linking the appellant to “Vic Branson” should have been admitted under section 84 of the 2003 Act after further evidence bearing on its reliability became available.

1. Appeal allowed. In an extradition appeal concerning a prima facie case, the High Court was required to assess the admissible evidence for itself. The District Judge committed an error of law by failing to reconsider fully the admissibility of the critical hearsay statement after admitting further evidence relevant to its nature, source and reliability.

2. Applying section 84 of the Extradition Act 2003, the statement should not have been admitted. It was an unsigned police-recorded statement without an affirmation of truth. A later affidavit clarified the limits of the witness’s knowledge, while expert evidence explained that statements of that kind could not ordinarily constitute primary evidence at an Indian trial. Those matters bore directly on reliability and fairness. Once the sole evidence identifying the appellant as “Vic Branson” was excluded, the prima facie case collapsed.

3. The eight classified documents had nevertheless been received by the District Judge and were receivable under section 202. Supervised inspection without permanent copies was not inherently unfair. Although classification alone could not establish damage, two documents, considered with the evidence concerning the sensitive border area and the risks of unencrypted dissemination, were capable of establishing a prima facie likelihood of damage under section 2 of the Official Secrets Act 1989. Expert evidence and a more formal evidential procedure would have been preferable.

4. The remaining grounds were rejected, although their determination was unnecessary and non-binding. The evidence did not establish abuse of process by India. India’s specialty arrangements with the United Kingdom were effective, and the strong presumption of treaty compliance had not been rebutted by compelling evidence.

5. Assurances concerning bail had to be assessed practically and in their context. There was no absolute restriction on who might give an assurance. The undertaking was specific, came from the officer acting with the authority of the investigating and prosecuting agency, and was capable of materially influencing the Indian court’s bail decision. Article 5 confers no general right to bail; extradition is precluded only by a flagrant denial or a breach going to the essence of the right.

6. The Secretary of State’s decision fell with the failure to establish a sufficient case for extradition.

• High Court (Administrative Court): Allowed the consolidated appeal because the critical hearsay evidence should not have been admitted and the prima facie case consequently collapsed. The Secretary of State’s extradition decision also fell.
• Secretary of State for the Home Department: On 22 May 2013, ordered extradition under section 93(4) of the Extradition Act 2003.
• Westminster Magistrates’ Court: By decisions dated 19 December 2011 and 27 March 2013, sent India’s extradition request to the Secretary of State for decision.