Chawla v The Government of India

Where the High Court has itself determined the human-rights question resulting in an extradition case being sent to the Secretary of State, the subsequent act of the District Judge in sending the case does not create a further appeal under section 103 of the Extradition Act 2003. The relevant decision is the decision which resulted in the case being sent, not the administrative act of sending it. The proper route to challenge the High Court’s earlier determination is an application to reopen under Criminal Procedure Rule 50.27. Permission to reopen, or permission to appeal if jurisdiction exists, should be granted only where necessary to avoid real injustice, in exceptional circumstances, and where there is no alternative effective remedy.

The applicant faced extradition to India. The Westminster Magistrates’ Court initially discharged him under section 87 of the Extradition Act 2003 because prison conditions in India created a real risk of treatment contrary to Article 3 ECHR.

On the Government of India’s appeal, the Divisional Court allowed a further assurance to be provided. In the subsequent judgment, the court accepted that assurance, quashed the discharge order and directed the District Judge to proceed as if the human-rights question had been answered differently. The District Judge consequently sent the case to the Secretary of State.

The applicant sought permission to appeal against that step, alternatively permission to reopen the earlier Divisional Court determination. The central issues were whether section 103 supplied jurisdiction and, if so, whether the circumstances justified permission.

1. Permission refused. The court refused permission to appeal under section 103 of the Extradition Act 2003 and refused permission to reopen the earlier Divisional Court determination under Criminal Procedure Rule 50.27.
2. Section 103 concerns the relevant decision, defined as the decision which resulted in the case being sent to the Secretary of State. The District Judge made no such decision on 7 January 2019. The human-rights decision had already been made by the Divisional Court, which directed the District Judge to proceed as if the question had been answered differently.
3. The distinction between sending a case and the decision resulting in its being sent is reinforced by section 106. Under section 106(1)(a) and (6), the High Court may allow an appeal against discharge, quash the discharge order, remit the case and direct the District Judge to proceed as required by the changed determination. The District Judge is not required to decide the relevant question again. That contrasts with section 106(1)(b).
4. Section 92 does not create a right of appeal. It imposes a duty to inform the requested person of the possibility of an appeal in cases sent to the Secretary of State. It cannot enlarge the jurisdiction conferred by section 103.
5. If jurisdiction to entertain an appeal had existed, permission would still have been refused. The High Court had already determined the Article 3 issue. Following Criminal Procedure Rule 50.27 and Taylor v Lawrence [2003] Q.B. 528, reconsideration required circumstances making it necessary to avoid real injustice and exceptional circumstances. The evidence concerning possible prison construction, prison violence, toilet facilities and alleged torture of a co-accused was speculative and provided no realistic or credible basis for doubting the earlier assessment.
6. The allegations of material non-disclosure and abuse of process were also rejected. The court found no realistic basis for concluding that the matters relied upon affected the earlier decision or constituted abuse of the extradition process.

• High Court (Administrative Court), present decision: Permission to appeal against the District Judge’s decision was refused for want of jurisdiction; alternatively, permission would have been refused on the merits. Permission to reopen the earlier Divisional Court determination was also refused.
• Divisional Court: The Government of India’s appeal against the original discharge was allowed under sections 105 and 106 of the Extradition Act 2003. The discharge order was quashed and the case was remitted with directions to proceed as if the human-rights question had been decided differently.
• Westminster Magistrates’ Court: The District Judge sent the case to the Secretary of State pursuant to the Divisional Court’s directions.