The Government of India v Chawla

Extradition is unlawful where the requested person faces a real risk of treatment contrary to article 3 of the European Convention on Human Rights. The risk must be established on clear and cogent grounds, but the requesting state may address it through a sufficiently specific and reliable assurance. Assurances are not evidence and may be considered at different stages, including on appeal. A late assurance may be excluded at the final hearing as a case-management decision. However, after finding a real risk, the court should ordinarily adjourn before ordering discharge to allow the requesting state a reasonable opportunity to provide a compliant assurance. Such an assurance must address the conditions creating the risk, including personal space, sanitation, protection from violence and medical care.

The Government of India appealed against District Judge Rebecca Crane’s decision dated 16 October 2017, which discharged Sanjeev Kumar Chawla from an extradition request concerning alleged cricket-match fixing in 2000. The District Judge found a real risk of treatment contrary to article 3 of the European Convention on Human Rights in Tihar prison and rejected the Government’s first assurance. She excluded a second assurance served on the first day of the final hearing.

The appeal concerned whether the article 3 finding was open on the evidence, whether the second assurance could be admitted, whether the District Judge should have allowed time for a further assurance before ordering discharge, and what order should be made in light of fresh material.

Disposition. The court admitted further material by agreement and stayed the appeal to allow the Government an opportunity to provide further assurances. Final disposal was reserved.

1. Article 3 risk. Extradition is unlawful where the requested person faces a real risk of torture or inhuman or degrading treatment. In light of the presumption of good faith applying to extradition requests from India, the requested person must establish the risk on clear and cogent grounds. Detention for more than a few days in less than three square metres is likely to constitute degrading treatment. Lack of proper toilet facilities or adequate medical provision may also create such a risk. The District Judge was entitled to rely on evidence of overcrowding, violence and inadequate medical staffing, and her findings were not shown to be wrong. See Patel v India [2013] EWHC 819 (Admin), Ananyev v Russia (2012) 55 EHRR 1, Florea v Romania [2014] EWHC 2528 (Admin) and Georgiev v Bulgaria [2018] EWHC 359 (Admin).
2. Assurances. A diplomatic assurance concerns future treatment and is not evidence. It is an issue for the purposes of section 106(5)(a) of the Extradition Act 2003. Courts may consider assurances at different stages, including on appeal, and may consider a later assurance even where an earlier undertaking was defective. The assessment must address whether the assurance is sufficiently specific and whether effective protection and monitoring exist. The principles in Othman v UK (2012) 55 EHRR 1 were applied.
3. Late assurance. Under Part 50 of the Criminal Procedure Rules, extradition proceedings must be managed expeditiously and directions must be obeyed. The District Judge was entitled to exclude the second assurance at the final hearing. It was served five weeks late, the issue had been live for more than a year, no good reason for the delay was advanced, and admitting it would have caused an unnecessary diversion.
4. Opportunity before discharge. Once the District Judge had found a real risk, the proper course was ordinarily to adjourn before ordering discharge, so that the requesting state could provide an assurance within a reasonable time. Discharge would follow only if the risk could not be discounted. The second assurance nevertheless remained inadequate because it did not resolve the uncertainty about the cell or ward, identify protection from violence in high-security wards, specify toilet arrangements, or remove concerns about medical staffing.
5. Further assurance. Any further assurance needed to address personal space, toilet facilities, protection from intra-prisoner violence and medical treatment. The Government was required to respond within 42 days of hand-down, with permission to apply concerning the wording, timing and final disposal of the appeal.

• Westminster Magistrates’ Court: District Judge Rebecca Crane discharged Mr Chawla on 16 October 2017 after finding a real risk of article 3 ill-treatment in Tihar prison and rejecting the first assurance.
• High Court (Administrative Court): The court upheld the exclusion of the second assurance at the final hearing, held that the District Judge should have allowed an opportunity for a further assurance before ordering discharge, and stayed the appeal pending further assurances.