THE GOVERNMENT OF INDIA v KULDEEP SINGH

For the purposes of an extradition prima facie case assessment, the court must apply the law of England and Wales at a putative summary trial. A statement may be treated as admissible under section 84 of the Extradition Act 2003 only where direct oral evidence from its maker would be admissible. A jointly indicted co-accused is incompetent to give prosecution evidence against another co-accused. The statutory discretion to admit documentary statements cannot be used to overcome that threshold or to admit inherently unfair, untested hearsay as the sole evidence. Section 202 concerns the receivability of documents, not their admissibility under section 84.

The Government of India sought the extradition of Kuldeep Singh on terrorism, firearms and membership charges. The District Judge discharged him, holding that the principal evidence—police summaries of interviews with two jointly indicted co-accused—was inadmissible or should not be admitted, and that there was insufficient evidence to establish a prima facie case.

India sought permission to appeal under section 106 of the Extradition Act 2003, challenging the approach to section 84 and the admissibility of the co-accused statements. Permission on that ground was considered at a rolled-up hearing. The central issue was whether the summaries could establish a prima facie case where the makers remained jointly indicted co-accused.

1. Permission refused. The appeal ground concerning the prima facie case was rejected. The proposed challenge concerning an irreducible life sentence therefore did not require determination.
2. Section 84(1) of the Extradition Act 2003 requires a putative summary trial applying the law of England and Wales. Under section 77, the District Judge has, as nearly as may be, the powers available at such a trial, including powers concerning procedure and evidence. This approach was supported by R (B and Others) v Westminster Magistrates’ Court and Others [2015] AC 119.
3. Section 84(2) creates a discretion subject to two conditions. The statement must have been made to a police officer or investigating official, and direct oral evidence by its maker must be admissible. The first condition was satisfied, but the second was not. Under section 53(4) of the Youth Justice and Criminal Evidence Act 1999, jointly indicted co-accused were not competent to give prosecution evidence at the putative trial.
4. The earlier decisions in Patel v India [2013] EWHC 819 (Admin) and Tudor v United Arab Emirates [2021] EWHC 1098 (Admin) did not require a different result. In those cases the co-accused witnesses had already been convicted and were competent and compellable. The present statements were summaries of untested accounts by jointly indicted co-accused.
5. The District Judge also correctly refused admission under section 114 of the Criminal Justice Act 2003. The summaries had extremely limited probative value and considerable prejudice. Their lack of testing, absence of the respondent, uncertain reliability and status as the sole evidence made reliance upon them manifestly unfair.
6. Section 202 of the Extradition Act 2003 governs the receivability and authentication of documents. It does not govern admissibility under section 84. Reading it otherwise would circumvent the safeguards in section 84 and render them otiose.
7. The District Judge’s exercise of discretion under section 84(3) was careful and unimpeachable. The absence of other sufficient evidence could not make inadmissible or unreliable hearsay more readily admissible.

• District Judge: Kuldeep Singh was discharged on the relevant charges because the co-accused interview summaries were inadmissible or should not be admitted and the evidence did not establish a prima facie case.
• High Court, Divisional Court: Permission to appeal on the prima facie case ground was refused. The second proposed ground did not require determination.