London: The following is a summary based on a conversation with Graeme L. Hall, a barrister at Doughty Street Chambers in London, about the extradition arrangements between the UK and India according to the 2003 Extradition Act. Graeme is currently representing Arti Dhir in her defence to an extradition request from India.
The Extradition Act 2003 is separated into five parts. Part 1 deals with the European Arrest Warrant (EAW) and relates to member states of the EU, and the arrangements are less stringent than in cases under Part 2. The UK receives thousands of Part 1 requests every year, whereas Part 2 requests number in the tens per annum, with the majority of requests coming from the US, Russia and Turkey; in recent years, India’s requests have been catching up.
Generally, Part 2 relates to countries outside the EU with whom the UK has a bilateral extradition treaty. For the sake of this report, we will say India. The first step is for India to request a person with reasons for extradition to UK Home Secretary (HS). HS will assess if the request is valid and complies with technicalities. If HS certifies the request, the case goes to Westminster Magistrates’ Court (WMC). The WMC is the only court in England and Wales that deals with extradition arrangements at first instance, and WMC has judges specially trained in matters of extradition. Emma Arbuthnot is the Senior District Judge (SDJ) who has recently presided over the cases of Vijay Mallya and Arti Dhir. The appropriate judge assesses a number of matters, including whether the allegation would be an offence under the law in England and Wales (dual criminality). If so, an arrest warrant will be issued and the RP (Requested Person) arrested. If the RP consents to extradition, that decision is irrevocable. If not, a timetable is laid down, in which case India has 45 days to serve the relevant papers. At this stage, the appropriate judge will decide whether the RP should be remanded on conditional bail or remanded into custody.
The RP’s defence is entitled to raise challenges to extradition and this may require numerous public case-management hearings; those challenges may require various legal or expert opinions adding to the time-line. In extradition proceedings, India is represented by the Crown Prosecution Service (CPS), which acts as the private representative of the requesting state. The CPS will liaise with the requesting state, and is entitled to provide further evidence or information during the course of the proceedings, including evidence to rebut the defence case.
Once the parties have collected all the evidence the full extradition hearing date is set, this may be further away than expected as expert opinions may be required for evidence on both sides. An EAW Part 1 hearing can last for as little as two hours, whereas a Part 2 hearing may last for up to two weeks (although typically 3-5 days); at the end of that time even more evidence may be required, thus the RP goes back on bail or back to jail.
Bail proceedings are the same as criminal proceedings: the RP may apply twice at WMC. Should bail be refused, to apply again, a change in RP’s circumstance must be shown. Decisions to grant or refuse bail can be appealed to the High Court. Bail conditions in the UK are stringent and generally include: surrender of passport, report at police station at regular intervals, must wear electronic leg bracelet, curfew at home in the evening with electronic devices fitted to home, a security (i.e. money) lodged at court. For men, jail is usually HMP Wandsworth or if high security is necessary it could be HMP Belmarsh.
Defences to extradition have primarily two sources. First, the Extradition Act 2003 itself contains a number of defences including a) double jeopardy, where the RP has previously been acquitted or convicted for the same offence; b) a politically motivated request; c) the request is unjust or oppressive due to the passage of time e.g. crime in 1990 and hearing in 2019 thus now key witnesses may be deceased/evidence destroyed; d) the allegation would not be an offence known to the law in England and Wales (dual criminality).
Second, the European Convention on Human Rights 1957 is incorporated into UK law by the Human Rights Act 1998, contains a number of human rights which regularly form the basis of defences to extradition requests and include a) the right to life; b) the right not to be subjected to torture or inhuman or degrading treatment (including poor prison conditions); and c) the right to a fair trial within a reasonable time. These articles are a regular instrument in extradition proceedings, Mallya argued unsuccessfully that extradition would expose him to a real risk of detention in inhuman or degrading prison conditions; and Dhir argued successfully that the risk of a whole life sentence, without any possibility of review or consideration of parole, would be an inhuman sentence.
At the full extradition hearing, the judge will decide if the extradition request is valid and whether any of the defence challenges are made out. If the RP is discharged, India has 14 days to lodge an appeal to the High Court (HC).A HC judge will look at the papers and decide whether the District Judge’s decision is “arguably wrong”. If so, the HC judge will grant India leave to appeal. If the HC refuses leave to appeal, India can apply for an oral hearing to argue that the district judge’s decision was arguably wrong. If the HC judge grants leave to appeal, a date will be set down for the substantive appeal hearing. In Part 2 cases, the appeal is normally heard by a Lord or Lady Justice of the Court of Appeal and a Mr or Mrs Justice of the HC.
If the district judge rejects the RP’s defence, the district judge sends the RP’s case to the Home Secretary. The HS has a number of residual issues to consider, but will invariably agree with the district judge and order extradition. After the HS has signed the extradition order the RP can still appeal against the HS and the district judge’s decisions to the High Court. Again, the RP needs to demonstrate that the district judge’s decision was “arguable wrong” for leave to appeal to be granted. If leave is granted, the RP needs then to prove that the district judge’s decision was wrong in law or in fact.
STATUS OF CASE OF VIJAY MALLYA
Vijay Mallya has renewed his application for leave to appeal against the SDJ’s decision in December 2018 to send his case to the HS, plus the HS’ decision in February 2019 to order his extradition to India. Permission to appeal was originally refused by Mr Justice William Davis in April 2019, but Mallya exercised his right to renew the application at an oral hearing in July. Lord Justice Leggatt and Mr Justice Popplewell at the HC granted permission to appeal on one ground only, namely that the Senior District Judge was arguably wrong to find that India had demonstrated a “prima facie” case. For some Part 2 countries, like India, they need to show that there is sufficient evidence which would require the requested person, if a defendant in criminal proceedings in England and Wales, to provide an answer to the allegation. It is a defence which ensures that extradition does not take place on fundamentally weak, vexatious or legally inadmissible evidence.
Despite the exhaustive evidence presented to WMC, Mallya has contended that the SDJ decision was wrong to find that India had demonstrated a prima facie case, which introduces some difficulties for the HC as its function is not to repeat the fact-finding exercise undertaken by the lower court. Mallya also wished to rely on purportedly fresh evidence in the form of a statement from an Indian lawyer called Mr Yadav about conditions at Mumbai’s Arthur Road Jail, however this aspect of the appeal was rejected. Mallya further contended that there were no effective “specialty arrangements” with India and that if extradited to India, he could be prosecuted for offences outside the confines of the extradition request. His arguments for challenging the efficacy of the specialty arrangements between India and the United Kingdom were rejected and permission to appeal against the decision of the Secretary of State to order extradition was refused, but the validity of that decision will of course be dependent on the outcome of the one ground of appeal for which permission has been given.
If the HC dismisses the appeal, possibly scheduled for October, Mallya still has the right to apply in writing to the HC, submitting that there is a point of law of general public importance that ought to go to the UK Supreme Court to be heard. If the HC agreed, it would be a matter for the Supreme Court to decide whether to hear the appeal. If the HC disagreed, extradition ought to take within 28 days, although that time frame may be extended.
The above is an indication of why extradition cases can take up to two years from arrest to the first decision of a district judge and beyond.