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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kapoor v The Government of India  EWHC 1378 (Admin) (15 May 2015)
Cite as:  EWHC 1378 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| In the matter of an appeal under the Extradition Act 2003
|- and -
|THE GOVERNMENT OF INDIA
DANIEL STERNBERG (instructed by CPS Extradition Unit, Special Crime Division) for the Respondent.
Hearing dates: 24 & 25 March 2015
Crown Copyright ©
Lord Justice Davis :
1) First, it is said that the District Judge erred in concluding that the respondent (the Government of the Union of India) had made out a sufficient case to answer under s.84 (1) of the 2003 Act.
2) Second, it was said that the District Judge should have found that there had been an abuse of the process on the part of the respondent.
3) Third, it is said that the District Judge should have found that extradition would not be compatible with the appellant's Convention rights, under s.87 of the 2003 Act.
4) Fourth, it is said that the District Judge should have found that it would be unjust or oppressive, by reason of lapse of time, for the appellant to be extradited, under s.82 of the 2003 Act.
The Legal Framework
"82. Passage of time
A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).
84. Case where person has not been convicted
(1) If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.
(2) In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if
(a) the statement is made by the person to a police officer or another person charged with the duty of investigating offences or charging offenders, and
(b) direct oral evidence by the person of the fact would be admissible.
(3) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard
(a) to the nature and source of the document;
(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;
(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;
(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);
(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings.
(4) A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).
(5) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(6) If the judge decides that question in the affirmative he must proceed under section 87.
87. Human rights
(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
"5. The Charges
Firstly abducting a child from India and the express control of the High Court there involving the acquisition of a passport using false details (specifically date of birth and parentage). India submits this is a conspiracy to abduct a child contrary to s.1 or 2 Child Abduction Act 1984 as this involves someone connected to the child i.e. Seema (aunt) and Rasjesh Kapoor (uncle). The offences carry a 7 year maxima in the UK as does the corresponding Indian penal provision.
Secondly obtaining the passport itself by a false date of birth and particulars of parentage in the application form if committed in the UK would offend s.36 Criminal Justice Act 1936 (expressly relating to passports) which carries a 2 year maxima as again does the corresponding Indian offence.
Thirdly obtaining false birth certificates one date giving Aishley as born 15/9/00 the other 15/12/00 (true date being 14/8/99) to facilitate the passport application, given the context, is also an offence contrary to s.36 Criminal Justice Act 1936 or s.25(1) Identity Cards Act 2006 which carries a 10 year maxima.
Fourthly failing to disclose a previous passport of his own in the application dated 28/6/01 would be contrary to s.36 Criminal Justice Act 1936."
The Judgment of the District Judge
"I have been shown scanned copies of the passport application and other connected documents in respect of issuance of passport to Seema Kapoor and identify the signatures of Seema Kapoor at Page No. 2, 5, 8, 9, 14, 18, 20, 21, 23, 24, 25, 26, 28, 30 and 31. The passport application in the name of Seema Kapoor and other connected papers have been filled in by my younger brother Rajesh Kapoor and I identify his writings.
I have also been shown scanned copies of the passport application in the name of Aishley and identify the signatures of Seema Kapoor at page No. 9 of 15 and 4 of 7. The passport application in the name of Aishley have also been filled by my brother Rajesh Kapoor which I identify."
In a subsequent statement taken by the police on 21 February 2013, Deepak confirmed that the appellant had written letters to him and he had also seen him write and sign documents when they had stayed together.
"I admire the unbridled assault the defence has maintained on this point. On any view Amrik Singh's pointed denial of confirming handwriting on the application forms is a significant concern. However Deepak, the aggrieved father certainly but not disqualified because of that, can confirm the writing of his brother. A trial venue is in my judgment the only one suitable to resolve these very real issues. There is in my judgment prima facie evidence as asserted by India on all charges pursued. Prima facie is just that and to go further, even in the context of an outright assertion from a witness to this court, is to trespass on the exclusive preserve of a trial court, the more so given mutual trust principles that underpin extradition treaty obligations see Lord Brown (at para 35) Government of Trinidad & Tobago v Gomes and Goodyer  UKHL 21."
Submissions and disposition
(1) Prima facie case to answer
Abuse of process
(3) Convention rights
(4) Lapse of time
Mr Justice Ouseley: