The Government of India v Dhir & Anor

A requesting state may use an assurance to show that extradition will not expose a requested person to treatment contrary to article 3 of the European Convention on Human Rights. Assurances may be considered at different stages, including on appeal.

Extradition courts may direct when assurances must be served. A requesting state which knows that an assurance is required should seek directions and comply with the resulting timetable. The ability to tender an assurance late does not deprive the court of its case-management power to refuse an adjournment. The court may uphold that refusal where previous delay, non-compliance and the need for expedition make it reasonable.

The Government of India appealed against the Chief Magistrate’s order discharging two requested persons whose extradition was sought for alleged murder and related offences. The Chief Magistrate found a prima facie case but concluded that conviction for two murders would expose them to irreducible life sentences, contrary to article 3 of the European Convention on Human Rights.

An assurance addressing reducibility was delivered without warning 45 minutes before the reserved judgment was due to be handed down. The Chief Magistrate refused an adjournment and declined to consider it. The appeal asked whether that refusal was wrong, given that assurances may be considered even on appeal and fresh extradition proceedings remained possible.

1. Appeal dismissed. The Chief Magistrate was entitled to refuse an adjournment and to decline to consider the assurance delivered shortly before judgment. The appellate question was whether she had made the wrong decision. In light of the procedural history, the court could not so conclude.

2. An assurance can enable a requesting state to establish that a real risk of treatment contrary to article 3 of the European Convention on Human Rights will not materialise. Such an assurance may be considered at different stages, including on appeal and after an earlier undertaking has proved defective. Where a real risk has been established, the requesting state should ordinarily have an opportunity to discount it within a reasonable time. Discharge may become necessary if it cannot do so.

3. The Criminal Procedure Rules 2015 require expedition in extradition proceedings and compliance with case-management directions. A District Judge may direct the service of assurances even though an assurance is not formally evidence. Depending on the issue, the court may require an assurance by a specified date before the extradition hearing. In other cases its necessary terms may only become clear after contested evidence has been heard.

4. The Government knew by January 2019 that an assurance was likely to be needed but did not disclose that position at the March case-management hearing or seek an appropriate timetable. Two earlier extradition fixtures had already been adjourned because of its delays, and the third hearing had been adjourned part-heard so that it could address the irreducible-sentence issue. The Government’s failure to obtain directions or provide the assurance earlier caused the financial and procedural consequences on which it relied.

5. The court refused to admit financial material served shortly before the appeal hearing without an application notice, supporting witness statement or explanation, contrary to rule 50.20(6) of the Criminal Procedure Rules 2015.

6. The court did not assess the adequacy of the assurances dated 2 July 2019 and 24 January 2020. Further extradition proceedings remained possible if an adequate assurance showed that an irreducible life sentence would not be imposed.

1. High Court, Divisional Court: The Government of India’s appeal was dismissed. The court upheld the Chief Magistrate’s refusal to adjourn for consideration of the late assurance: [2020] EWHC 200 (Admin).

2. Westminster Magistrates’ Court: On 2 July 2019 the Chief Magistrate found a prima facie case but ordered the respondents’ discharge because an irreducible life sentence would infringe article 3 of the European Convention on Human Rights. She refused to adjourn for an assurance supplied 45 minutes before judgment.