Hanif Mohammed Umerji Patel v The Government of India and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Kenneth Parker,Lord Justice Moses
Judgment Date18 April 2013
Neutral Citation[2013] EWHC 819 (Admin)
Docket NumberCO/7158/2012 CO/13434/2012,Case No: CO/7158/2012 AND CO/13434/2012
Date18 April 2013

[2013] EWHC 819 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moses

Mr Justice Kenneth Parker

Case No: CO/7158/2012 AND CO/13434/2012

Between:
Hanif Mohammed Umerji Patel
Appellant
and
(1) The Government of India
(2) The Secretary of State for the Home Department
Respondents

Edward Fitzgerald QC and Ben Cooper (instructed by Birnberg Peirce and Partners) for the Appellant

Julian Knowles QC and Aaron Watkins (instructed by The Crown Prosecution Service) for the First Respondent

Jonathan Glasson (instructed by the Treasury Solicitor) for the Second Respondent

Hearing dates: 28 February 2013 and 1 March 2013

Mr Justice Kenneth Parker

Introduction

1

The Government of India ("the requesting State") has submitted an extradition request for the surrender of Hanif Patel ("the Appellant") so that he may face trial in relation to terrorist offences committed in India during 1993 which, if committed in the UK, would constitute offences of conspiracy to murder, conspiracy to cause explosions, conspiracy to possess firearms and ammunition, and possession of explosives with intent to endanger life. The Appellant is accused of being involved in two bombings which led to loss of life and extensive property damage. Extradition between the United Kingdom and India is governed by the provisions of Part 2 of the Extradition Act 2003 ("the EA 2003") and the Extradition Act 2003 (Designation of Part 2 Territories) Order ( S.I. No 3334/2003) as amended.

Factual Background

2

The information provided in the request describes how, following an attack on a mosque in December 1992, internecine hostilities broke out between the Muslim and Hindu communities in Gujarat. The requesting State's case is that the Appellant was part of a Muslim group which obtained explosives, guns and other weapons and then carried out revenge terrorist attacks on the Hindu community, including two explosions which resulted in loss of life, injury and damage.

3

The first explosion occurred on 28 January 1993 in a market on the Varacha Road in Surat and killed an eight year old girl and caused many injuries. The second explosion took place on 22 April 1993 at Surat railway station and caused many injuries and significant property damage. The Appellant is alleged to have been a principal conspirator in relation to these two bomb attacks, and to have been part of the Muslim group which acquired firearms and ammunition.

4

A number of those alleged to have been involved as co-conspirators with the Appellant have been convicted and sentenced in India to long terms of imprisonment.

5

The Appellant is wanted for trial in India for the offences set out on two warrants. The offences include murder, attempted murder, causing grievous bodily harm, attempting to cause an explosion and possessing firearms and ammunition.

Procedural Background

6

Following receipt and certification of the request by the Secretary of State, the Appellant was arrested in the United Kingdom on 16 February 2010. Extradition proceedings then commenced before District Judge Evans at the City of Westminster Magistrates' Court.

7

The request itself is lengthy because India is within the class of requesting States which is required to supply evidence of a prima facie case against any requested person before extradition may be ordered.

8

The Appellant advanced a number of grounds in opposition to extradition.

9

The District Judge rejected the arguments in a decision dated 2 May 2012 and sent the request to the Secretary of State for her decision as to whether the Appellant should be extradited. On 9 July 2012 the Appellant appealed against that decision.

10

The Secretary of State ordered the Appellant's extradition on 26 June 2012. The Appellant now seeks also to appeal, well out of time, the decision of the Secretary of State (the Second Respondent)

The Appeal Against the Decision of the District Judge

11

During the course of these proceedings the Appellant refined the grounds of appeal to the following:

i) The continuing pursuit of extradition by the requesting State "for the purpose of an unviable prosecution" in India is an abuse of the process of the Court.

ii) For the same reason, the Appellant's liability to detention is arbitrary and a violation of Article 5 ECHR.

iii) The District Judge wrongly held that there was a case to answer under section 84(1) of the EA 2003.

iv) Extradition is barred by the lapse of time.

v) There is a real risk that the Appellant's trial would constitute a flagrant denial of justice and his extradition would violate his rights under Article 6 ECHR.

vi) There is a real risk of torture contrary to Article 3 ECHR in the light of new evidence not available to the District Judge.

12

I shall consider each of these grounds in turn.

The First Ground: Abuse of Process

13

There is a strong presumption that a requesting State, in making the extradition request, is acting in good faith. In Serbeh v Governor of HM Prison Brixton 31 October 2002, CO/2853/2002 at paragraph 40 Kennedy LJ stated:

"There is (still) a fundamental assumption that the requesting state is acting in good faith."

In R(Ahmad) v Secretary of State [2006] EWHC 2927 (Admin) at paragraph 101, Laws LJ restated this important principle in the following terms:

"But when the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force… It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here."

14

India and the United Kingdom have had extradition relations for many years through the Commonwealth Scheme for Extradition. There is an extradition treaty between the UK and India, signed in 1992, intended specifically to "make more effective the co-operation of the two countries in the suppression of crime by making further provision for the reciprocal extradition of offenders". This relationship supports the presumption of good faith which is the starting point in considering any ground based upon abuse of process.

15

One form of lack of good faith would be knowledge on the part of the requesting State that it had no sustainable case against the requested person, in other words, that it either knew that it could not prosecute him or, if it did prosecute, that such a prosecution would be doomed to fail. This proposition is supported by recent authority. In R(Bermingham) v USA [2007] QB 727 at paragraph 100 Laws LJ said:

"The prosecutor must act in good faith. Thus if he knew he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of no case." (emphasis added)

16

In Symeou v Public Prosecutor's Office, Patras, Greece [2009] 1 WLR 2384, Laws LJ re-iterated:

"The residual abuse jurisdiction identified in R (Bermingham) v Director of Serious Fraud Office (2007) QB 727 and the Tollman case (2007) 1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of these two cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know the trial cannot succeed, they abuse the extradition processes of the requested state." (emphasis added)

17

In this instance the requesting State founds its case upon statements made by individuals to police officers in which the makers of the statements incriminate both themselves and the Appellant. The Appellant does not contend that the contents of the statements, as such, would not tend to establish a prima facie case against him. As an example, Iqbal Wadiwala made a statement in which he said that, after riots in 1992, a camp was established to help Muslims who had been made homeless in the riots, and that the Appellant was one of the main leaders of the camp. Following an atrocious attack on a Muslim woman, the desire for revenge against the Hindu community increased. Wadiwala stated that he was at a meeting, attended also by the Appellant, when it was decided to plant a bomb at the bazaar in Varacha Road. The bomb was exploded three or four days after the meeting.

18

The individuals in question were all arrested, charged and tried under the Terrorist and Disruptive Activities (Prevention) Act 1987 ("TADA"). TADA was controversial legislation and was allowed to lapse in 1995. The statements that these individuals had made to police officers were admitted in evidence at their trials, although they had maintained that the statements had been obtained by coercive methods, including torture, that they should not be admitted and that they were in any event untrue. After what appears to have been lengthy proceedings, the trial Court, by an order of 4 October 2008, convicted and sentenced to imprisonment these individuals ("the co-defendants").

19

For the purpose of the present extradition proceedings the requesting State...

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