The Government of India v Sanjeev Kumar Chawla
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 04 May 2018 |
| Neutral Citation | [2018] EWHC 1050 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4973/2017 |
| Date | 04 May 2018 |
[2018] EWHC 1050 (Admin)
Lord Justice Leggatt
Mr Justice Dingemans
Case No: CO/4973/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers QC and Aaron Watkins (instructed by The Crown Prosecution Service) for the Appellant
Helen Malcolm QC and Mark Weekes (instructed by Bindmans LLP) for the Respondent
Hearing date: 24 April 2018
Mr Justice Dingemans (giving the judgment of the Court):
This is the hearing of an appeal by the Government of the Republic of India (“the Government”) against the decision of District Judge (Magistrates' Court) Rebecca Crane (“the District Judge”) dated 16 October 2017 to discharge Sanjeev Kumar Chawla (“Mr Chawla”) in respect of an extradition request from the Government dated 1 February 2016.
This appeal raises issues about prison conditions in Tihar prison in India, and the District Judge's approach to a second assurance from the Government dated 22 September 2017.
The issues were refined in the course of oral submissions by both Mr Summers QC and Ms Malcolm QC. We are grateful to them and their respective legal teams for their assistance. The issues are now: (1) whether the District Judge was entitled to find a real risk of a breach of article 3 of the European Convention on Human Rights (“ECHR”) on the materials which had been adduced before the District Judge; (2) whether the District Judge was wrong to exclude the second assurance; (3) whether after giving judgment on the relevant findings but before ordering the discharge of Mr Chawla, the District Judge should have given the Government a chance to address findings about the real risks in relation to article 3 of the ECHR by providing assurances; (4) what order should be made by this Court in the light of all the material that is now available.
The alleged offence, investigation and extradition request
The Government seeks Mr Chawla's extradition in respect of his conduct alleged from January to March 2000. It is alleged that Mr Chawla acted as a conduit between bookies who wanted to fix cricket matches and Hansie Cronje, then captain of the South African test cricket team. It appears that the alleged conduct was discovered when law enforcement agencies investigating an unrelated matter undertook telephone tapping. The telephone tapping revealed plans to fix forthcoming cricket matches between the touring South African and Indian test teams. Agreements were allegedly reached including as to the number of runs which would not be exceeded by the South African team in both of their innings in one match. The alleged conduct was contrary to the Indian Penal Code and would amount to conspiracy to give or agree to give corrupt payments in England and Wales.
A criminal investigation was undertaken in India. As part of that investigation Mr Chawla, who was born in India but had moved to the United Kingdom in 1996, was asked to provide a voice sample but he refused. The Indian authorities sought assistance from the South African authorities between 2004 and 2008. Voice analysis was carried out. In 2013 a final report into the investigation was submitted to the prosecution authorities in India.
An extradition warrant was obtained pursuant to an affidavit sworn before the Chief Metropolitan Magistrate, New Delhi on 27 February 2015. An affidavit was sworn by Bhisham Singh, Deputy Commissioner of Police, Crime Branch (South), New Delhi on 18 May 2015. An extradition request was made by the Government on 1 February 2016 and this was certified by the Secretary of State on 11 March 2016.
Proceedings in the Westminster Magistrates' Court
Mr Chawla was arrested and brought before Westminster Magistrates' Court on 14 June 2016. Mr Chawla gave notice that he contested the extradition proceedings and on 12 July 2016 a “Statement of Issues” was produced on his behalf. The compatibility of any prison conditions in which Mr Chawla would be kept pending trial and after any conviction with article 3 of the ECHR was raised as an issue at that time.
It appears, from the judgment of the District Judge, that the matter was listed before District Judge Purdy in November 2016 and for final hearing in March 2017.
A report from Dr Alan Mitchell dated 13 November 2016 on prison conditions was obtained on behalf of Mr Chawla. Dr Mitchell is a licensed medical practitioner. He was Medical Officer at HMP Shotts and from 1998 to 2002 was Medical Advisor and Head of Healthcare within the Scottish Prison Service. In 2015 he was appointed by the Scottish Parliament as a Member of the Scottish Human Rights Commission. He has provided expert reports in respect of extradition cases to India, the Russian Federation and the Czech Republic. In his report in these proceedings Dr Mitchell noted the absence of any national prisons inspectorate. Dr Mitchell referred to a previous report referring to India noting prison overcrowding, poor management and actual violence at the hands of state agents. Dr Mitchell referred to press reports of violence against prisoners. The report specifically noted, among other matters, “that all of the jails in the Tihar complex are grossly overcrowded”.
The Government refused to provide Dr Mitchell with access to the Tihar prison. Dr Mitchell produced a further report dated 26 February 2017 which considered various documents including press reports of violence at Tihar prison. Dr Mitchell concluded “the problems of over-crowding at Tihar together with staff-prisoner violence have already been set out … I believe there to be a very real risk that if extradited to India and if he were to be held in the Tihar prison complex, that Mr Chawla's rights in respect of article 3 would be at real risk”.
The Government then provided an assurance in a letter dated 28 February 2017. At paragraph 3 it was noted that “Mr Chawla is likely to be held at the Tihar jail complex in New Delhi …”. It was said that pursuant to Delhi Prison Rules 1998 prisoners were kept in a “dormitory (barracks) or cell subject to the circumstances of the case”; “necessary blankets and bed sheet” would be provided; prisoners were provided with an “adequate quantity of clean potable drinking water”; there were a “sufficient number of toilets”; in Delhi prisons “almost every yard has sufficient space/yard attached”; and “every prisoner is provided three time meals/adequate food”. The letter recorded that “… the Government of India, on the basis of information received from the Government of the National Capital Territory of Delhi and Tihar Prisons Authorities, solemnly assures that all such facilities available in Delhi prisons” should be provided to Mr Chawla without discrimination. An annex was headed “Best Practices in Delhi Prisons”. This noted that there were 16 central jails in Delhi. 9 were at Tihar, 1 at Rohini and 6 at Mandoli. There was a combined sanctioned capacity of 10,026 prisoners but as at 30 November 2016 there were 14,027 prisoners. Education, vocational training, games and recreational activities and other matters were covered by the Best Practices document. There was a response from the Government set out in a table to Dr Mitchell's report.
There was then a hearing which took place over 3 days in March and April 2017 before District Judge Purdy. After that hearing it became apparent that District Judge Purdy would not be well enough to produce a judgment. The matter was therefore listed for directions before the District Judge on 19 May 2017 and for a further final hearing on 25, 26 and 27 September 2017.
On 19 May 2017 directions were given for a further hearing of the extradition request. Although complaint has been made about a later case management decision made by the District Judge it seems that the directions were given orally and we have had to attempt to determine what the order said from recollections of Mr Watkins and Mr Weekes who appeared at first instance.
It seems that the District Judge directed that the parties should, by 18 August 2017, provide any further evidence for the final hearing listed on 25 September 2017. Any evidence in reply was to be served by 1 September 2017. No further evidence was served on behalf of Mr Chawla or the Government on 18 August 2017. In September 2017 it appears that Bindmans wrote on behalf of Mr Chawla asking the CPS whether any further evidence would be adduced on behalf of the Government but the letter was not answered.
The hearing before the District Judge
On Friday 22 September 2017 the Government provided a second assurance. The second assurance was forwarded to counsel for Mr Chawla by email over the weekend and on Monday 25 September 2017 the Government sought to rely on the second assurance. It appears, from the note of the judgment of the District Judge on this point, that it was said that the Government had had “problems”, although the Government contends that it was said that there had been a regrettable misunderstanding, but no further explanation for the delay on the part of the Government was given. Objection was taken on behalf of Mr Chawla on the basis that the second assurance was too late. It was pointed out that the second assurance was given 18 months after the initial request for extradition, 15 months after the issue had been raised, and in breach of the order for directions on 19 May 2017. It was submitted on behalf of Mr Chawla that Dr Mitchell would need to carry out research and respond to the second assurance.
The District Judge gave a short oral ruling refusing to admit the second assurance. The ruling, a note of which has been provided by counsel, recorded that: the Government had had plenty of time to respond; the second assurance provided more detail about...
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