Kapoor v The Government of India

In a Part 2 extradition case, the prima facie case requirement is concerned with whether admissible evidence could require an answer at trial. The extradition court must evaluate the evidence, but must not determine disputed credibility issues reserved for the trial court. A witness’s retraction does not necessarily eliminate the probative value of an earlier statement where other evidence and the surrounding circumstances provide a sufficient basis for a case to answer.

An abuse of process argument cannot be resolved on a disputed factual premise at the extradition stage. Article 3 requires substantial grounds for believing that removal would create a real risk of ill-treatment. Article 8 requires an overall proportionality assessment.

The appellant appealed against a decision of District Judge Purdy, sitting at Westminster Magistrates’ Court, who on 9 September 2014 sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003. The Secretary of State subsequently decided that the appellant should be extradited to India.

The appeal concerned four grounds: whether India had established a sufficient case to answer under section 84(1); abuse of process; incompatibility with Convention rights under section 87; and whether extradition was barred by lapse of time under section 82. The allegations included involvement in child abduction and the obtaining of passports using false details.

1. Prima facie case. The appeal was dismissed on the section 84 issue. Evidence from the appellant’s brother and another witness was in principle capable of being admissible evidence concerning the appellant’s handwriting. The later retraction by the second witness did not dispose of the issue. The evidence was not founded solely on that witness’s original statement. The brother’s evidence, the limited range of possible authors, the surrounding family circumstances and the appellant’s apparent motive provided an ample basis for concluding that there were real issues requiring determination at trial.
2. Where evidence is admitted under section 84(2) of the Extradition Act 2003, both statutory requirements in subsection (2) must be satisfied. The judge must then exercise the discretion in light of subsection (3). The court did not need to resolve the wider question whether double hearsay could generally be admitted through that route, because the case did not depend on double hearsay. The District Judge had not wrongly combined or evaluated the statutory provisions.
3. Abuse of process. The alleged manipulation of witness statements and the disputed account concerning a handwriting report depended on factual issues which could not properly be resolved at the extradition stage. Those matters remained suitable for examination at trial. The District Judge was entitled to reject the abuse argument.
4. Convention rights. There were no substantial grounds for believing that the appellant faced a real risk of ill-treatment during the period before he came under the jurisdiction and protection of the Indian High Court. The suggestion that the authorities would ill-treat him to discover the child’s whereabouts was speculative. Article 8 was engaged by the effect of extradition on the appellant’s family, but extradition was not disproportionate in the light of the appellant’s uncertain immigration status and the seriousness of the alleged conduct.
5. The section 82 argument was confined to the 2001 passport offence and was not pursued if extradition on the other charges was upheld. No separate conclusion was therefore required.
6. There was to be no extradition on a charge of conspiracy to pervert the course of justice, as that was not identified as a charge in the District Judge’s judgment. Matters concerning the appellant’s involvement in the Indian family proceedings could nevertheless be explored at trial as part of the context of the alleged offences. Appeal dismissed.

• High Court (Administrative Court): District Judge Purdy’s decision of 9 September 2014 was upheld, subject to clarification that extradition was not sought or permitted on a charge of conspiracy to pervert the course of justice.
• Secretary of State: Following the District Judge’s decision, the Secretary of State decided that the appellant should be extradited.