Ravi Shankaran v The Government of the State of India and Another
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Blake |
| Judgment Date | 01 April 2014 |
| Neutral Citation | [2014] EWHC 957 (Admin) |
| Docket Number | Case No: CO/6630/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 April 2014 |
[2014] EWHC 957 (Admin)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Blake
Case No: CO/6630/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Lewis Q.C and Clair Dobbin (instructed by Hodge Jones and Allen LLP) for the Appellant
John Hardy Q.C. and Ben Brandon (instructed by Crown Prosecution Service) for the First Respondent
Ben Watson (instructed by Treasury Solicitor) for the Second Respondent
Hearing dates: 25–26 February 2014
This a consolidated appeal by Mr Ravi Shankaran ("the appellant") pursuant to Part II of the Extradition Act 2003 ("the Act"). Under section 103 of the Act, the appellant appeals against the two decisions of District Judge Nicholas Evans ("the Judge") sitting at Westminster Magistrates' Court, dated 19 December 2011 ("the First Judgment") and 27 March 2013 ("the Second Judgment"). The upshot of these decisions was that the application by the State of India for his extradition was sent to the Secretary of State for the Home Department ("the SSHD") for her decision. Under section 108 of the Act, the appellant also appeals against the final decision of the SSHD, pursuant to section 93(4) of the Act and dated 22 May 2013, ordering that he be extradited.
The Facts
In 1986, the appellant joined the Indian Navy, serving for 8 years, before taking medical retirement in 1994 with the rank of lieutenant. After retiring, he started a company called Shanx Oceaneering ("Shanx") with Kulbhushan Parashar ("Parashar"), also a naval lieutenant who left the service in 1995 and then became a director of Shanx. During the following year, Shanx opened an office in Goa and, in 1997, the appellant and Parashar began a new company, Interspiro India Pvt Ltd ("Interspiro"). This company was the Indian representative of the Swedish firm of the same name, specialising in breathing apparatus for fire-fighters, emergency responders and divers. The appellant and Parashar also represented and advised foreign companies seeking to supply defence equipment to the Indian Ministry of Defence.
Telephone, email and Skype records link Parashar to Vijender Rana, who then continued to serve as a Commander in the Indian Navy. Commander Rana was posted to the Directorate of Naval Operations ("DNO") in New Delhi which was housed in a highly-secure building, with electronic swipe access and sentries. Within the building is the Indian Navy's War Room which is a 'prohibited place' under section 2(8) of the Indian Official Secrets Act 1923. It contains much information that is classified, and which (as a matter of Indian law) it would be a criminal offence to distribute.
On 2 May 2005, as the result of an anonymous tip off, an investigation was launched into an Indian Air Force officer, Wing Commander S.L. Surve, whose office computer was found to contain unauthorized files and software. When Wing Commander Surve's house was searched later that month, a 128MB 'Kingston' pen drive (a small USB Flash storage device) was found, which later was revealed to contain Naval files. On 25 May 2005, an Air Force Court of Inquiry was convened and, additionally, a Naval investigation commenced.
The links between Surve, Rana and Parashar apparently led to a search of Commander Rana's home and office on 12 July 2005, resulting in the seizure of inter alia a personal computer. I say 'apparently' because the appellant in the present matter contests that there ever was any such search relying, in particular, on the Navy's response to a 'Right to Information' request dated 28 July 2008, in which Vice-Admiral Sinha said that, according to available records, no search took place.
A Naval Board of Inquiry, established on 21 July 2005, seized information technology to be examined forensically, and heard oral evidence. As a result, a case was developed which incriminated Commander Rana and two other officers: Kashyap Kumar (who had copied naval files to the computer) and V. K. Jha (who supplied Commander Rana with the computer and pen drives).
Additionally, in the course of the investigation by the Board of Inquiry, on 7 August 2005, Commander Rana surrendered a 256MB 'Transcend' pen drive with an unique serial number (72989–0314-OC-6C) to Commander Anupan Kaushal. It was forensically examined by Commander S. Dutta but otherwise remained in the custody of Commander Kaushal. This 'Transcend' pen drive was sealed and handed over (in the presence of independent witnesses) to Superintendent Ramnish of the Indian Central Bureau of Investigation ("CBI") who has led the criminal investigation into the appellant and others alleged to be connected to the leaking of confidential information from the Indian Navy.
Along with other IT devices, the 'Transcend' pen drive was unsealed and analysed at the Andhra Pradesh Forensic Science Laboratory on 19 May 2006. It contained 112 active (but non-unique) files, and 343 deleted files capable of being retrieved. Annexure 3 of the Report listed the 432 files (active and deleted) common to both the 'Transcend' pen drive surrendered by Commander Rana and the 'Kingston' pen drive seized from the home of Wing Commander Surve.
Of the 432 files common between the two pen drives, eight classified Microsoft Word files (numbers 416–422 inclusive, and number 425) totalling 18 pages, are alleged to have been sent by Commander Rana (using the email address cdr_rana@yahoo.co.in) to a person using the name 'Vic Branson' (the receiving email address being vicbranson@aol. com). The copies of all eight files were created on 16 May 2005, and they were all marked 'Secret' – a classification between 'Confidential' and 'Top Secret'. They generally concerned the operations of the Indian Navy's Border Security Force in the Sir Creek area on the border with Pakistan.
In the meantime, the computer purportedly seized from Commander Rana's home was analysed by the same laboratory for temporary internet files which indicate when emails have been composed, attachments added, and responses received. The email to which the eight Secret files were attached had as its subject line 'Hi there!!!' and was sent at 18:30 (Indian Standard Time, UTC+5.5) on Monday, 16 May 2005. The body text of the email was:
"Dear Vic, Please find attached some useful information on the creek area. Read it as I got to make the user rqmts for BSF tonight, which I shall send for any amendments if reqd".
There was a response some 15 minutes later (09:15 Eastern Daylight Time, UTC -4.0) from 'Vic Branson' which said simply "ROGER ROGER". On the same day, there was also an email addressed to Commander Rana from 'Vic Branson', with the same subject, attached a file named 'User Reqmt BSF Boats.doc'. On 17 and 21 May 2005, 'Vic Branson' sent emails to Commander Rana with the subject 'Hi there Again!!!'.
The case advanced on behalf of the Indian Government relies on the fact that the temporary internet files recovered from the seized computer give the same file names as the 8 files listed as numbers 416–422 and 425 in Annexure 3. The files are said to be the same size, allowing for minor but consistent differences in size associated with email communication. It is submitted that the 'Transcend' pen-drive surrendered by Commander Rana allowed the files to be attached to the 'Hi there!!!' email directly from the pen drive, without the files being copied to the computer itself before being uploaded.
The upshot of the Air Force Court of Inquiry and the Naval Board of Inquiry was that the serving officers (Surve, Rana, Jha, and Kumar) were dismissed and the investigation (including what was described as a 'jumble of evidence') handed to the civilian CBI to investigate. The CBI is, we understand, both an investigative and a prosecutorial agency. For this case, the chief investigating officer has been Superintendent Ramnish and the four dismissed officers were arrested, along with Parashar and others alleged to be involved. At the time, the appellant was overseas.
The Extradition Proceedings & Appeal
Commencing in spring 2010, extradition proceedings were brought on behalf of the Government of India against the appellant. For the purposes of establishing dual criminality, reliance is placed on what is contended would be a breach of section 2 of the Official Secrets Act 1989 ("the 1989 Act") and that the appellant aided, abetted, counselled and procured a damaging disclosure by Commander Rana. To date, the proceedings have lasted three years: the District Judge did not put the blame for such delay on the appellant.
In the meantime, it is not in dispute that proceedings in India have also moved at what can only be described as a sluggish pace. It took around six years (from initial arrest in April 2006 until an appellate decision of the Indian courts dated 11 May 2012) for the other Indian defendants to secure bail. As at that date, the documentary basis of the case against them had still not been disclosed.
What remains, after two judgments of the District Judge and the subsequent decision by the Secretary of State, might seem to be a relatively straightforward case. As a category 2 territory for the purposes of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003/3334, extradition to India means the requesting State must both establish a prima facie case of dual criminality on the basis of admissible evidence, and...
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