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Introduction

This is an article on cutting edge developments in extraditing Indian nationals who have fled to the UK in recent times. It demonstrates that the extradition process is not as easy as one might expect.

Extradition is a formal process whereby one country asks another country to return a person either in order to stand trial for an offence committed in the other country if the requested person is an accused, or, to serve a sentence if the requested person has been convicted in that other country.

An ‘offence’ for purposes of extradition must be one that is punishable with at least one year’s imprisonment in each country. It could, however, be an offence of a purely fiscal character[1].

The relevant legislation is the (Indian) Extradition Act 1962, the (UK) Extradition Act 2003 and the India-UK Extradition Treaty 1993. Defences can be taken from the (UK) Human Rights Act 1998, The European Convention on Human Rights and other laws.

Basics of Extradition Law

Dual criminality

Extradition can only take place if the crime is recognised in both countries. If, for example, India is requesting extradition for gambling, which is legal in the UK but is a crime for the most part in India; extradition may be refused by the UK on grounds of non compliance with the principle of dual criminality.

Assurances

Obtaining assurances before extradition is commonplace, but ensuring they are obeyed is difficult to monitor. It is not easy for Britain to monitor assurances provided by countries requesting extradition out of the UK and this concern has been expressed in a recent white paper by the House of Lords. Assurances will be assessed against the criteria set out by the European Court of Human Rights in the famous case of Othman (Abu Qatada) v United Kingdom (8139/09) (2012) 55 EHRR 1.

The Rule of Speciality

This rule ensures that a person who is being returned to a Requesting State is dealt with only in relation to the offence for which he was returned, and not for any other offence committed before his return to that territory. Therefore, for example, if someone is extradited from the UK on the basis of a crime committed under the (Indian) Prevention of Money Laundering Act 2002, he cannot be tried for non payment of a loan.

Grounds that could be raised by Indian fugitives against extradition

A fugitive facing the risk of being extradited out of the UK should consider raising the following defences:

Offence does not attract one year of imprisonment

An offence can merit extradition only if it is punishable with at least one year’s imprisonment.[2] Those who have committed crimes of a civil nature (as opposed to a criminal nature) will find this a useful defence. This is because civil offences such as bank loan defaults tend not to be punishable with imprisonment.
 

[1] Article 2 of the India-UK Extradition Treaty 1993

[1] Article 2(1) of the India-UK Extradition Treaty 1993

Breach of human rights

A person may not be extradited if he might be prejudiced at trial or restricted in personal liberty by reason of race, religion, nationality or political opinions in the requesting country.[3]

If extradition is incompatible with the European Convention on Human Rights (ECHR) (for example the possibility of being put into overcrowded prisons), the defendant could be discharged[4]. There is, in all cases, a rebuttable presumption that a country with which the UK has extradition arrangements will not violate the defendant’s ECHR rights. India could provide an assurance in relation to non overcrowding and the UK would accept it. This defence would therefore be successful only if detention amounts to inhuman treatment, which is a high threshold to surmount.

In Badre v Italy [2014] EWHC 614 (Admin) the court gave a judgment recognising overcrowding in Italian prisons. The judgment, read together with Italy’s acknowledgment of the problem rebutted the presumption of compliance with the ECHR.

In Patel v India [2013] EWHC 819 (Admin), Patel was alleged to have been a principal conspirator in two bomb attacks. A number of those alleged to have been involved as co-conspirators with P had been convicted and sentenced to long terms of imprisonment in India. P was wanted for trial in India on two warrants.

It was held that it could not be concluded in advance that a fair trial in India would not be possible. Nor could P rely on the passage of time to avoid extradition. P had failed to provide substantial evidence that he would be at real risk of torture or other treatment if extradited.

Another common human rights argument is embodied in article 8 of the ECHR, which provides that every person has the right to private and family life. This means that if a fugitive has fled to a country and spent a considerable amount of time establishing a private and family life in the new country, extraditing him might breach his right to a private and family life under article 8 of the ECHR. The country requesting extradition would need to establish that his extradition would be a proportionate interference with his rights under article 8. The test is whether the interference is outweighed by public interest. In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 the Supreme Court suggested asking the following questions to determine whether an interference with a fugitive’s private and family life is a violation of the ECHR:
Passage of time

• Is the interference in accordance with the law?
• Does the interference pursue a legitimate aim?
• Is the interference a proportionate disturbance of the fugitive’s private and family life?

A person may not be extradited if it would be unjust given the passage of time since his committing the offence.[5]

Political victim

Extradition can be prevented if the offence is politically motivated.[6] In a recent case, it seems that the Indian authorities were aware that the fugitive might raise this defence of being a political victim and therefore pursued him through the Interpol for a few years. Only last month did they put forth an extradition order against him.

Asylum
 

[1] Article 9(1)(b) of the India-UK Extradition Treaty 1993

[1] Section 87of the (UK) Extradition Act 2003

[1] Article 9(1)(c)(ii) of the India-UK Extradition Treaty 1993

[1] Article 5 of the India-UK Extradition Treaty 1993

A fugitive could claim asylum in the UK if their passport has been revoked.

Appeals

Those avoiding extradition can delay matters by exhausting a string of appeals in the UK. An extradition judge’s decision can be appealed to the High Court within 14 days. Either party can apply against the High Court decision to the Supreme Court, but only if the High Court has certified that the case involves a point of law of general public importance.

An appeals filter was, however, introduced by the UK on 15 April 2015. Since its introduction, the number of applications for leave to appeal has reduced by a third with unmeritorious appeals falling away.

Procedure to extradite an Indian national out of the UK

Each country must approach the other through diplomatic channels. A law enforcement agency within India, such as the Enforcement Directorate, could instigate extradition through the central government.

Once an extradition request has been received by the Home Secretary in the UK[7], presently Theresa May, she decides whether to start processing the request. The matter is then dealt with by a District Judge at the Westminster Magistrates’ Court who decides whether to issue a warrant for arrest within the UK.

If a warrant is issued, the person wanted is arrested and brought before the Westminster Magistrates’ Court. The extradition judge must discharge an extradition order where he considers that the evidence would not amount to a prima facie case, which is the test for the issue of a warrant of arrest in those proceedings[8].

The defendant in extradition proceedings has a right to bail, unless he is alleged to be unlawfully at large after conviction in the requesting territory[9].

The hearing takes place in two stages: a preliminary hearing, followed by an extradition hearing.

About the author

Karishma has a substantial advisory and court practice in commercial and public law. Her chambers, 4-5 Grays Inn Square, is well known for both disciplines.

Karishma has the rare expertise of being dual qualified in India and England, making her an attractive choice for matters involving either or both jurisdictions. She was a litigator in Mumbai for six years before relocating to London in 2009 and continues to be a favourite amongst Indian solicitors and clients.

She has developed significant expertise in matters concerning conflict of laws where one or more legs of litigation is abroad (such as before the Debt Recovery Tribunal or various High Courts in India).

Karishma is an alumna of the London School of Economics (LSE) and has recently won the Rising Star award by the Lawyer Monthly: Women in Law 2016.

[1] The equivalent of a Home Minister in India

[1] Section 84(1)of the (UK) Extradition Act 2003

[1] Section 198of the (UK) Extradition Act 2003