Sanjay Bhandari v Government of India

In an extradition appeal, a court must identify the conduct specified in the request and determine whether, transposed to the United Kingdom, it would constitute an offence. The conduct may include both positive acts and omissions forming part of the alleged criminality; it is not confined to matters indispensable to proving the foreign offence.

An assurance addressing detention conditions must remove the established real risk of proscribed treatment in practice. An assurance restricting questioning to prison does not suffice where the evidence shows that the risk arises from the investigating bodies’ conduct, irrespective of location.

A reverse burden requiring an accused to disprove an essential mental element beyond reasonable doubt, in a serious criminal prosecution, may fundamentally destroy trial fairness and amount to a flagrant denial of article 6 rights.

The Government of India sought the appellant’s extradition under two requests. Request 1 alleged money laundering contrary to section 3 of the Prevention of Money Laundering Act 2002, predicated on the alleged tax-evasion offence in Request 2. Request 2 alleged wilfully attempting to evade tax, penalty or interest under section 51 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act 2015.

A District Judge sent the case to the Secretary of State under section 87 of the Extradition Act 2003, and the Secretary of State ordered extradition. The appellant appealed on dual criminality, prima facie evidence, article 3 risks arising from detention and questioning, the reverse burden under section 54 of the Black Money Act, delay under article 5, and bail under the Prevention of Money Laundering Act.

1. Appeal allowed in part. Grounds 3 and 4 succeeded. Grounds 1 and 2, insofar as they concerned Request 2, and grounds 5 and 6 were dismissed. The appellant was discharged under section 87(2) of the Extradition Act 2003.
2. For dual criminality, the relevant question was whether the conduct specified in the request, assumed to have occurred in the United Kingdom, would constitute an English offence. The essence of the conduct alleged under section 51 of the Black Money Act included both failure to declare foreign income and assets and positive false representations to the tax authorities. The tax-evasion allegation was continuing. It was unnecessary to establish an equivalent United Kingdom tax for the notional offence of fraud by false representation.
3. The District Judge was entitled to find a prima facie case under section 84 of the Extradition Act 2003. The bank statements were admissible, and the appellant’s statements were not obtained in circumstances which would outrage civilised values. The evidence adequately identified residence, foreign income, foreign assets, non-disclosure, false representations and benefit.
4. The October 2022 assurance that the appellant would not be removed from prison for questioning did not remove the established article 3 risk. The evidence showed a pervasive risk of torture, extortion and violence by investigating bodies. That risk was linked to the conduct and incentives of those bodies, not merely to the place of questioning. The overcrowding, understaffing and evidence of violence and extortion at Tihar prison also established a real risk of proscribed treatment which the assurances did not dispel.
5. Section 54 of the Black Money Act required the appellant to disprove the existence of the necessary wilful mental state beyond reasonable doubt. That reverse burden concerned an essential ingredient of a serious offence carrying up to ten years’ imprisonment. It fundamentally destroyed the fairness of the prospective trial and created a flagrant breach of article 6. Since the money-laundering allegation depended on the tax offence, Request 1 necessarily failed.
6. The evidence did not establish that general systemic delay extended to the relevant special courts, and the appellant bore substantial responsibility for one significant period of delay. The statutory bail conditions under section 45 of the Prevention of Money Laundering Act were interpreted by the Indian courts as preserving a judicial discretion to grant bail.

High Court (Administrative Court): the District Judge’s decision was challenged under section 103 of the Extradition Act 2003. The appeal was allowed on grounds 3 and 4, the relevant remaining grounds were dismissed, and the appellant was discharged under section 87(2).