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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shankaran v The Government of the State of India & Anor [2014] EWHC 957 (Admin) (01 April 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/957.html Cite as: [2014] EWHC 957 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/04/2014

Sir Brian Leveson P :

1. 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

2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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 [email protected]) to a person using the name 'Vic Branson' (the receiving email address being [email protected]). 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.
10. 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".

11. 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!!!'.
12. 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.
13. 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

14. 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.
15. 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.
16. 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 also overcome any bars to extradition. In fact, the appellant claims that, once inadmissible evidence is excluded, the Indian Government has not established a prima facie case that he was 'Vic Branson', and therefore the recipient of the classified information. He therefore submits that the District Judge was in error in deciding to the contrary.
17. The appellant also contends that, whilst the allegations would (if proven) amount to a breach of the Indian Official Secrets Act 1923 (the Indian 1923 Act), he denies that the allegations establish a prima facie contravention of the UK's 1989 Act. Whereas the former is based on the UK Official Secrets Act 1911, the 1989 Act amended the law to require that 'damage' (or the likelihood of damage) be demonstrated for a conviction. The appellant claims the District Judge also fell into error by assuming that there was evidence of that damage, whereas in fact that element (necessary for the purposes of dual criminality) had not been established even on a prima facie basis.
18. It was common ground between the parties that, no trial having taken place, this court was in as good a position to make an assessment of the evidence as the District Judge, and that, in considering an extradition appeal such as this, the Divisional Court should form its own assessment de novo as to whether a prima facie case has been made out. Thus, it was agreed that this appeal was not limited to a review of the District Judge's discretion: either a prima facie case is made out on the admissible evidence, or it is not.
19. Further, even if the prosecution had established an answer to these questions adverse to him, the appellant argued that the District Judge was wrong to find that there were no bars to extradition (the burden of establishing which was on him). In this case, the appellant alleges abuse of process and a breach of his Article 5 rights because of likely prolonged delay before he could be granted bail. In this last respect, the prosecution sought to overcome a potential bar to extradition, by the provision of undertakings that bail on terms would not be opposed when the appellant appears before the court in India. The appellant further argues that the undertaking (given by Superintendent Ramnish) was both insufficient and inadequate.
20. Finally, the appellant also seeks to challenge the decision of the Secretary of State on the basis that she was required to make a decision on the extradition request in line with the statutory criteria set down in sections 93-102 of Part II of the Extradition Act 2003. In the circumstances, it is argued that there are no effective specialty arrangements as between the UK and the category 2 territory, India. 'Specialty' in this context requires that a person will not be tried in the requesting State (here, India) for offences other than that which the person was extradited and it is contended that the UK-India specialty arrangements were insufficiently effective to prevent him being charged with offences other than under the Indian 1923 Act. This is also a decision that this court must approach de novo, rather than against general public law grounds including Wednesbury unreasonableness.

A prima facie case based on admissible evidence

21. The admissibility of much of the evidence relied upon by the Indian Government was challenged, both before the District Judge, and before this court. However, of the evidence that was clearly admissible, there is no real issue but that a prima facie case has been established that there existed a conspiracy between Commander Rana and others, including Parashar and 'Vic Branson' to disseminate classified information for commercial advantage. A case to answer in that respect alone arises from the email correspondence between Commander Rana and 'Vic Branson'. No explanation was given by Commander Rana as to the reasons for attaching classified information from the DNO, nor was the lack of explanation remarked upon in the e mail sent by way of reply. The natural inference, therefore, is that prior discussion between Rana and 'Vic Branson' meant that the email was expected: an equally legitimate inference is that the prior discussion involved counselling or procuring the provision of the classified information.
22. On that basis, the first two substantive grounds of the appeal against the decision of the District Judge related to the questions whether he was correct to conclude that there was a prima facie case that (a) the appellant was 'Vic Branson' and (b) the disclosure of the information in this particular case being likely to be damaging (or potentially damaging) within the meaning of section 2(4) and/or 2(5) of the 1989 Act. I turn to the latter of these issues first.

Was the disclosure 'damaging'?

23. For reasons set out above, the Indian 1923 Act mirrors the UK 1911 Act whereas the 1989 Act moved away from criminalising dissemination of material simply on the basis of its classification per se, and requires an assessment of the real or likely appreciable harm caused by a particular disclosure to a particular recipient. Thus s. 2 of the 1989 Act provides:

"(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to defence which is or has been in his possession by virtue of his position as such.

(2) For the purposes of subsection (1) above a disclosure is damaging if—

(a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or

(b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or

(c) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects."

24. It would have been a comparatively straightforward matter for an officer of the Indian security services (or equivalent expert) to provide evidence to the effect that one or more of the eight documents attached to the 'Hi there!!!' email constituted a damaging disclosure: that would have constituted incontestable prima facie evidence. Mr James Lewis QC for the appellant emphasised its absence and made submissions that there was no basis on which the court could conclude that disclosure of these documents was likely to have resulted in any damage. By contrast, Mr John Hardy QC for the 'First Respondent' suggested that, given the nature of the material and the sensitivity of the border, the likely impact upon and damage to security along the Indian-Pakistani border effectively spoke for itself and was more than sufficient to establish a prima facie case.
25. Against this background, it was common ground that the District Judge had seen print-outs of the eight documents in question, and had been satisfied without expert evidence that they disclosed a prima facie case of 'damage' within the meaning of section 2 of the 1989 Act. However, it was not agreed that the documents were 'in evidence' before the District Judge, that he was entitled to see them, or that he was in a position to make any determination about whether or not they were damaging to India's national security.
26. In short, it became clear that, on 5 May 2012, there was a hearing in camera before the District Judge, prior to which the appellant and his legal representatives had been given the opportunity to examine the eight files with the custodian of the files being out of earshot. The District Judge was then shown the same material introduced as the 'secret attachments' to the relevant e mail: there was no legal argument, and neither party sought a ruling on admissibility or, indeed, made any submissions. No copy was (or could have been) left with the Magistrates' Court. Initially de bene esse and before full argument, the documents were then inspected by this court (at all times in the presence of the Indian police officer with custody of them). Both Mr Hardy and Mr Lewis made closed submissions on the documents.
27. My conclusions can be expressed shortly. As a matter of the law of evidence in extradition cases, which may differ somewhat from strictly domestic criminal law of evidence, written evidence must be 'receivable' within the meaning of section 202 of the Act and there is no doubt that the files could have been formally exhibited (having been the subject of reference in an affidavit of Superintendent Ramnish). It is beyond argument that the eight files attached to the email were 'receivable' under section 202 and, notwithstanding the rather curious way in which the hearing of 5 May 2012 proceeded, in my judgment, as a matter of fact, they were 'received' by the District Judge. It is true that permanent copies were not provided to the appellant or to the court, but this deficiency of 'exhibition' (limited to supervised inspection rather than provision of copies) does not mean that there is a breach of the duty of fairness, even as a matter of our domestic criminal law: see R (ex parte J) v DPP [2000] 1 WLR 1215.
28. Given that, in my view, the eight Secret files were 'received' by the District Judge, I have no doubt that it was appropriate that the court look at them, mindful, of course, that we were not experts and could only derive assistance from their content in the context of the evidence that was available as to the sensitivity of the area and the common sense risks of dissemination either deliberately or as a result of exposure in an open email and I recognise that the specific disclosure of information must be the source of the damage, and that the White Paper on Reform of Section 2 of the Official Secrets Act 1911 (Parliamentary Command Paper No 408), which was relied on as an aid to construction by Lord Bingham in R v Shaylor [2003] 1 AC 247, indicates that mere classification will not be determinative of damage or likely damage. Taking all that into account, however, for my part, even without specific expertise and based only on the evidence, I am satisfied that although six of the eight documents were of little substance, the remaining two did appear to be of obvious significance to issues of Indian national security, such that they were capable of establishing that disclosure would be likely to cause damage.
29. In that regard, I accept the argument advanced by Mr Hardy that by attaching the files to an email sent between two unencrypted webmail accounts to a pseudonymous overseas recipient, the Indian Government could no longer be sure of the extent of the dissemination or the scope of the disclosure, but would have to assume the worst. Although the case against the appellant is based on a leak for purely commercial purposes, few other interested recipients would have motives as benign to Indian national security. Furthermore, perhaps counter-intuitively, the likelihood of the disclosure being damaging is actually exacerbated by the uncertainty of the identity of 'Vic Branson'.
30. Having re-undertaken the exercise of assessing the evidence de novo, I am therefore satisfied that Mr Hardy has established a prima facie case as to the risk of damage arising from the disclosure to 'Vic Branson' and of the commission of this offence by the intended recipient of the 'Vic Branson' e mail. I would not wish to leave this aspect of the case, however, without expressing concern as to the comparatively informal approach adopted before the District Judge. The better course would have been for the Indian Government to have adduced expert evidence and required more formal arrangements as to the evidence 'receivable' under section 202 of the Act. In the absence of agreement, if national security is invoked, submissions should be made as to the appropriate way forward and a formal ruling and order sought which could include (by way of example) a hearing in camera, supervised inspection only and no formal production subject to a formal undertaking to produce the material if required for any appeal. The lack of clarity that faced this court would then be avoided.

Is 'Vic Branson' the Appellant?

31. Thus, for this aspect of the case, the critical question is whether a prima facie case can be made out that the appellant, using the name 'Vic Branson' was the intended recipient of the e mail. On this very narrow question of fact, although there were a number of potential lines of evidence that the Indian Government could have pursued, it chose to base its case on just one piece of direct evidence: the third statement of a Mr P. H. Khushwaha, who, for a decade, was an employee of Shanx/Interspiro based in Goa, India.
32. This evidence must be analysed in some detail because, in the first week of June 2006, the CBI recorded three statements which the relevant officer warrants to have been made by Khushwaha but which were not signed by him. These statements included the following assertions:

i) In his first statement to the CBI on 3 June 2006, Khushwaha is recorded as having said:

"I am not aware of any other [non-Interspo] email ID being used by Sh. Ravi Shankaran…";

ii) Two days later, in a second statement to the CBI on 5 June 2006, Khushwaha is recorded as having said:

"On being asked about the mode of communication used by Directors i.e. Ravi Shankaran … I state that Ravi Shankaran always using his lap top [sic] for sending emails and other correspondence. He never used any office computer specifically in Goa. His email ID was [email protected] and [email protected] …".

iii) It was not until his third statement, dated 6 June 2006, that Khushwaha is recorded as having told the CBI the following:

"You have shown me page no. 67-68-69-70-71-72-73 file no. 14 Export (B from 0104/2004) (M-252/06) on seeing that I state that these papers relates to a purchase order from V Branson of Inmaty Ltd, Vogolheid, 9052, Gent Belgium regarding purchase of diving equipment. All these purchase order were sent by Ravi Shankaran by courier. He has also sent me e-mail which are placed on the back of page nos (73-75) by his email ID InterspoV Branson, Victor Branson and Vic Branson were none other than Ravi Shankaran. And the email Id for this identity was [email protected]. I do not know the reasons and motives for Ravi Shankaran for this export; I being the employee obeyed his instructions / order for doing the same. On being asked why was [RS] using so many emails Ids I state that I don't know his motives or any other reasons because I am an employee of his company and my duties were to obey the order and instructions. I never try to know anything beyond my duties" (emphasis added).

33. It is important to emphasise that none of these statements (and, in particular, the vital third statement) was either an affidavit (as was some of the evidence provided by the appellant) or in a form that would be recognised by the civil or criminal procedure rules of this country. Each of the statements is typewritten in English signed only by the police officer who took the statement. There is no statement or endorsement of truth, nor, indeed, any warranty that the witness has read and understood the statement.
34. The District Judge addressed this question, upon which everything was said to hinge, in his first judgment (at paragraphs 28-35), taking judicial notice of the fact that anyone may set up a webmail account in any name as long as it is not in use. He noted the lack of other evidence that he might have expected to have been provided, such as information from the communications service provider AOL; he could also have referred to the use of the name Vic Branson on an invoice.
35. In the event, recognising that the third statement was hearsay, the District Judge considered it in the context of s. 84 of the Act and determined that the Third Statement was admissible evidence having regard to subsection (c) ("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"); and subsection (e) ("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").
36. In short, the District Judge considered that the evidence would not otherwise be available, and that there would be no unfairness to the appellant as he would have the opportunity to controvert the statement at trial. He ruled the Third Statement admissible, and held that there was no need to call Khushwaha to give oral evidence to explain any discrepancy with his earlier statements. Having regard to his conclusions on the other aspects of the existence of a prima facie case, as had previously been agreed, he then scheduled a further hearing to determine whether there were any bars to extradition.
37. Before the second hearing, the appellant filed additional evidence, including a report of Professor Lau, an expert in Indian law; an affidavit from Jennefer Mirza (the appellant's co-director at Interspiro, based in Goa); and a fourth statement from Khushwaha (which was in the form of an affidavit dated 14 December 2011 sworn by him), in which he said:

"I also confirm that during my employment with Shanx Oceaneering from 1996-98 and then with Interspiro India Pvt. Ltd from 1999 – Sept. 2006, I have never received any email from Sh. R. Shankaran using the email id. [email protected] and was unaware of this email id until the CBI during the recording of my statement told me that they had evidence to show that this email id was used by Sh. R. Shankaran. I am not aware why the CBI said that or what evidence they had as the same was not shown to me".

38. The affidavit of Jennefer Mirza touched only tangentially on the Khushwaha evidence. She did however assert that the e mail address [email protected] had never contacted Khushwaha's only email address at the company, and related that Khushwaha had been assaulted by a Deputy Superintendent R. Singh during the original police search of the company premises.
39. Professor Lau's report noted that not all of the pages referenced in the Third Statement were included in the extradition bundle before the District Judge, and indeed our appeal bundle only has pages 67-72. He also gave expert opinion as to evidential procedures in Indian criminal cases. In particular, he drew attention to the distinction in the Indian penal code between s.164 statements taken by a Magistrate and s.161 statements taken by police officers. The former are generally admissible as primary evidence at trial, but the latter are not. Section 161 evidence, such as the first three Khushwaha statements, can only be relied upon in cross-examination for previous inconsistent statements.
40. Although not bound to do so, the District Judge permitted the appellant to rely on this new evidence and to re-open the argument that had been the subject of the first judgment. In his second judgment (at paragraph 39) he dealt with the affidavit and fourth statement made by Khushwaha by placing reliance on the decision in R (ex parte Alves) v Governor of Pentonville Prison [1993] AC 284. That case involved an accomplice who gave unsworn testimony against a habeas corpus applicant in earlier proceedings in Sweden. When the transcript of that testimony was admitted into evidence, the accomplice gave sworn testimony repudiating it before the English magistrate. The magistrate ordered committal for extradition, the applicant applied successfully to the Divisional Court, but the House of Lords restored the order for committal making it clear that the test was the same as when a criminal defendant makes an application at the close of the case for the prosecution of 'no case to answer' (i.e. that set out in R v Galbraith [1981] 1 WLR 1039). Thus, a full retraction of evidence might not rob it of all its probative value and weight. In those circumstances, the District Judge was content to find that the fourth statement did not:

"provide a knockout blow to the viability of the prosecution case … [i]t is not such that it can be said to have destroyed the case to answer".

41. In the present matter, Mr Lewis for the appellant advanced a subtle and nuanced attack on the reasoning of the District Judge. In his submission, Khushwaha's affidavit and fourth statement is not a retraction, per se, but rather a clarification of the scope and limits of his direct knowledge. It does not retract evidence given either in an affidavit or before a court where the truthfulness of the account is asserted, rather it clarifies the basis on which he asserted what he did and thus against which its admissibility can properly be tested. The purpose of producing the fourth statement, the Mirza affidavit and Professor Lau's report was not to outweigh or 'destroy the prima facie case' by further evidence; rather they were adduced so as to permit a further analysis to be undertaken of the criteria which had to be considered under s.84 of the Act prior to the admission of the third, hearsay, statement and, thus, to render that statement, on which the prima facie case relied, inadmissible.
42. It is beyond argument that the appellant's case at the second hearing before the District Judge was, indeed, that the question of the admissibility of the Third Statement had to be revisited in light of the new evidence. This much is recorded at paragraph 45(vi) of the second judgment. However, the District Judge did not go on to reconsider that issue ab initio. Rather, save for consideration of a 'separate and discrete' point as to admissibility of statements in translation (per R (ex parte Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134), the District Judge's approach to reconsideration of admissibility is set out in the sole sentence of paragraph 55:

"Section 84 of the Act: I do not intend to add to my previous ruling on the scope and effect of these provisions".

43. In our judgment, the District Judge erred in his approach. He was clearly correct to say that questions of admissibility in English extradition proceedings are governed by English law (as the lex fori), and will not be determined by Indian law. However, once the expert evidence of Professor Lau on the limitations of s.161 statements was before him, the judge was, in our view, wrong to say (at paragraph 44 of the second judgment) that this was "[a]n interesting debate, but one I need not consider". The reluctance of the Indian courts to have regard to s.161 statements was a factor to which, in my judgment, the District Judge needed to have regard when considering the overall question of admissibility. Section 84 (3) (a) directs attention to the nature and source of the statement in question and Professor Lau's evidence addresses that issue. The judge was not considering whether an Indian court would consider this material admissible, but the exercise of his discretion as to the admissibility of the third statement (which he had agreed to re-visit). This required that he contemplate the assertion that it contained in light of the fourth statement (in affidavit form), the affidavit from Jennefer Mirza and, finally, the expert report. His failure to do so constitutes an error of law. All those factors were relevant to the reliability of the critical Khushwaha statement and thus to whether it would be fair to admit it in these extradition proceedings where a prima facie case had to be made out.
44. Having conducted the exercise in the light of all the evidence and bearing in mind the factors set out in s. 84(3) of the Act, I am satisfied that it would be wrong, as a matter of English law, to admit into evidence the single key hearsay sentence in Khushwaha's third statement upon which the link between 'Vic Branson' and the appellant depends. In short, it is far too slender a basis for founding this case particularly bearing in mind that there were other avenues by which the Indian Government could have sought to establish the link between the name Vic Branson and the appellant none of which, over the three years that the District Judge was considering this application, they managed to use. That conclusion is determinative of this appeal.
45. In the circumstances, although no longer necessary for the determination of this appeal, given the detailed arguments which were advanced on the bars to extradition and in relation to specialty, it is appropriate shortly to deal with them, not least because of the possibility that other applications may benefit from the conclusions (albeit that their value is inevitably limited and not binding).

Abuse of Process

46. It was common ground (based on Tollman v United States of America [2007] 1 WLR 1157, Lord Phillips CJ at [82]-[83]) that the Divisional Court has jurisdiction to bar an extradition that constitutes an abuse of process by the requesting state. Because of the 'Request for Information' by Commander Rana about the search of his residence and the response on behalf of the Indian Navy that they had no record of any such search, Mr Lewis argues that this raises so fundamental a question as to the provenance of key evidence (being the computer on which the relevant email was composed) that the Indian Government's failure adequately to address it is indicative of an abuse of process. Again, it is argued that a simple affidavit would have sufficed.
47. However, the development of this case meant that, by the time it was before this court, the focus was less upon the temporary internet files embedded on the computer provenance of which was in issue and far more about the pen-drive which the chain of custody documents make clear was surrendered directly by Commander Rana to the Naval Board of Inquiry and the CBI. Wherever the computer (which composed the relevant email) was discovered, it showed communication between an account in Commander Rana's name distributing files to a person with the name connected by purchase orders to known associates, and the distribution of Secret files to which Commander Rana had access. That alone is enough for a prima facie case and to rob of force the allegation of abuse of process, however significant the response by the Navy to the Request for Information may or may not turn out to be.
48. Mr Lewis also mounted a spirited challenge to the fides of Superintendent Ramnish. For the purposes of dealing with this aspect of the case, it is sufficient to conclude that there has been no cogent evidence from which it would be appropriate to infer male fides on the part of Superintendent Ramnish personally, or the CBI generally, in relation to their conduct of this case. Mr Hardy, instructed by the CPS on behalf of the Indian Government, has made clear that he appreciates and has always appreciated his ongoing duty to disclose any material which might adversely affect the prosecution case he espouses. Many of the eccentricities of the chain of custody of evidence seem to us to be better explained by the difficulties of passing a military investigation over to civilian criminal investigators. Furthermore, we also have every faith that, in any event, the Indian judiciary are sufficiently robust as to exercise the necessary abuse of process jurisdiction if evidence of any prosecutorial misconduct came to light.

Breach of Specialty

49. The appeal against the decision of the Secretary of State is based on the contention that the decision is in breach of section 95 of the Act. India is a category 2 country, and there are specialty arrangements in place by virtue of Article 13 the UK-India 1992 Extradition Treaty which, in respect of the 'lesser offence on the same facts' provisions, was described as a 'mirror image' of the requirements set out in section 95(4)(b) of the Act by the Divisional Court in Patel v Government of India & SSHD [2013] EWHC 819 (Admin) at [74]. It is not in issue that the specialty arrangements with a category 2 country such as India must be 'effective' (per Bermingham v United States of America [2007] QB 727); there is, however, a strong presumption that a requesting state will comply with its treaty obligations unless there is 'compelling evidence to the contrary' (see per Dyson LJ in Ruiz v Central Court of Criminal Proceedings (No 5 National Court) Madrid [2008] 1 WLR 2798 at [67]). The Secretary of State clearly concluded that the presumption was not rebutted.
50. The basis for the submission that the presumption is rebutted in relation to India concerns the circumstances surrounding the extradition of Abu Salem Ansari from Portugal to India, challenges to which have been considered by the Supreme Courts of both countries. In short, India sought his extradition for terrorism offences; there was no extradition treaty between Portugal and India but the fugitive was returned on an individual basis negotiated between the two states; following return his return he was then charged with additional offences and some lesser offences. The additional charges were later withdrawn, but the courts in Portugal and India disagreed about whether lesser offences arising from the same facts could also be charged. This misunderstanding arises in part out of the lack of any formal extradition treaty between the countries.
51. In Patel, the Divisional Court considered a submission that the case of Abu Salem Ansari demonstrated a real risk that India would violate its specialty arrangements with the UK. That submission was termed as 'wholly without merit' (see [83]). In the present case, Mr Lewis seeks to distinguish that judgment by suggesting that it is unclear that the Divisional Court had seen a full translation of the decision of the Portuguese Supreme Court. We have now had the benefit of seeing that decision in full.
52. It is sufficient to conclude, for my part, that I am entirely persuaded by the written submissions of Mr Watson (on behalf of the Secretary of State) that there is no basis to believe that India would breach its specialty arrangements with the UK and that those arrangements are effective. With the benefit of the full judgment of the Supreme Court of Portugal, I have come to the same conclusion as Moses LJ and Kenneth Parker J did in Patel.

Article 5 ECHR & Undertakings

53. Irrespective of the identity of the requesting state, for as long as any defendant to the extradition process is within this jurisdiction, he or she is entitled to rely on the European Convention of Human Rights ("ECHR") and this court, like any other public body, is bound to operate only in accordance with the Convention. If extradition would breach the Appellant's human rights, then he must not be extradited (pursuant to section 87(1) of the Act.)
54. At first instance, the District Judge considered the treatment of the appellant's co-defendants (along with the expert evidence from Professor Lau) and concluded, not surprisingly, that there had been an unacceptably long delay in the determination, eventually on appeal, of their applications for bail. The result was that they had been remanded in custody over too many years. Thus, but for adequate undertakings, the District Judge was of the view that extradition potentially followed by many years' pre-trial detention, would constitute a 'flagrant breach' of the Appellant's rights under Article 5 ECHR (per RB (Algeria) v SSHD [2009] UKHL 10; [2010] 2 AC 110 at [130] to [132]).
55. This aspect of the appeal was put on the basis that the District Judge erred in his second judgment (finalised on 27 March 2013) when he concluded that the undertaking offered only as recently as 22 March 2013, while judgment was reserved, was adequate. This undertaking had been proferred only by Superintendent Ramnish of the CBI, who is (it appears still) the chief investigating officer on this case. It is, of course, a general rule that any such undertaking affecting a person's human rights in extradition should be provided as early as possible before judicial determination, not only to obviate the legitimate concern that it has been made with reluctance, very much as a 'last throw of the dice', but also to allow proper submissions to be advanced during the general argument on the competing merits of the case.
56. Mr Lewis submits, first, that the undertaking does not address the breach of the appellant's Article 5 rights; secondly, that it does not appear to be binding on the CBI, let alone the Indian executive or India's courts; thirdly, that there are no cases of extradition to India where the actuality of the undertaking has been tested; and, finally, that the Superintendent's good faith in this matter is questionable (which last point I have dismissed as unsubstantiated in relation to the argument on abuse of process). As to the generality, however, it is important to underline that the CBI is the investigative and prosecutorial authority, but is not a diplomatic body.
57. In the course of submissions, reference was made to the decision of the House of Lords in Armah v Government of Ghana [1968] AC 192. In that case, a former Minister in the overthrown Ghanaian Government of President Nkrumah was wanted to face corruption charges. He faced trial by a special procedure under the Corrupt Practices (Prevention) Act 1964, which varied from ordinary trial under the Ghana Criminal Code and involved procedures contrary to natural justice. The Divisional Court ordered return notwithstanding some concern as to the existence of a prima facie case because assurances were offered that the appellant would be tried under the provisions of the Criminal Code.
58. By the slimmest majority, the House of Lords reversed this decision (Lord Morris and Lord Pearson dissenting). The majority based their decision on the absence of a prima facie case, but Lord Upjohn (at page 263) added that the matter should be judged according to the existing laws of the state. Furthermore, the undertaking was no more than a statement of intent, and he concluded that were there to be a change of government, the new administration might not feel bound by the statement of its predecessor. Lord Upjohn expressed the hope that such undertakings would not be given in the future. Lord Reid expressed no concluded view on this issue but considered (at 235-6) that, while it was generally undesirable that foreign governments be encouraged to disapply their own laws, there might not be the same objection to a government stating that 'it does not intend to take certain executive action with regard to the accused person'. Lord Pearce made similar observations to Lord Reid (at 256). It follows that the observations of Lord Upjohn were both obiter and were not supported by the other members of the Appellate Committee. No binding principle can be deduced from them.
59. We accept Mr Hardy's submission that extradition law has developed very substantially since the late 1960s, and that the scale both of immigration and of extradition decision-making have made undertakings and assurances not merely normal but indispensable in the operation of English extradition law. Such undertakings regularly are taken into account, and given whatever weight is appropriate on the facts of the particular case: that is as it should be. Each case will depend on its own facts and, for my part, I would not identify a restriction as a matter of law as to who may or may not give undertakings, nor to prescribe when they will be sufficient to obviate the risk of flagrant breaches of Article 5 ECHR.
60. Such undertakings are of pre-eminent importance when extraditing to states where the death penalty is still imposed (see Ahmad & Aswat v United States of America [2006] EWHC 2927 (Admin), especially [61] and [76] on diplomatic notes), or which have not fully eradicated the practice of torture (see RB (Algeria) for the use of an executive Memorandum of Understanding).
61. The Strasbourg jurisprudence in relation to prospective breaches of human rights is clear. It was collected together and summarised in Othman v United Kingdom [2012] 55 EHRR 1 in these terms:

"186. Fourth, the Court accepts that, as the materials provided by the applicant and the third party interveners show, there is widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security (see paragraphs 141- 145 above and Ismoilov and Others, cited above, §§ 96-100). However, it not for this Court to rule upon the propriety of seeking assurances, or to assess the long term consequences of doing so; its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment. Before turning to the facts of the applicant's case, it is therefore convenient to set out the approach the Court has taken to assurances in Article 3 expulsion cases.

187. In any examination of whether an applicant faces a real risk of ill treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148).

188. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance, Gaforov v. Russia, no. 25404/09, BAILII: [2010] ECHR 1557, § 138, 21 October 2010; Sultanov v. Russia, no. 15303/09, BAILII: [2010] ECHR 1731, § 73, 4 November 2010; Yuldashev v. Russia, no. 1248/09, BAILII: [2010] ECHR 1071, § 85, 8 July 2010; Ismoilov and Others, cited above, §127).

189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:

(i)  whether the terms of the assurances have been disclosed to the Court (Ryabikin v. Russia, no. 8320/04, § 119, 19 June 2008; Muminov v. Russia, no. 42502/06, § 97, 11 December 2008; see also Pelit v. Azerbaijan, cited above);

(ii)  whether the assurances are specific or are general and vague (Saadi¸ cited above; Klein v. Russia, no. 24268/08, § 55, 1 April 2010; Khaydarov v. Russia, no. 21055/09, § 111, 20 May 2010);

(iii)  who has given the assurances and whether that person can bind the receiving State (Shamayev and Others v. Georgia and Russia, no. 36378/02, § 344, ECHR 2005 III; Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006; Abu Salem v. Portugal (dec.), no 26844/04, 9 May 2006; cf. Ben Khemais v. Italy, no. 246/07, § 59, ECHR 2009 ... (extracts); Garayev v. Azerbaijan, no. 53688/08, § 74, 10 June 2010; Baysakov and Others v. Ukraine, no. 54131/08, § 51, 18 February 2010; Soldatenko v. Ukraine, no. 2440/07, § 73, 23 October 2008);

(iv)  if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them (Chahal, cited above, §§ 105-107);

(v)  whether the assurances concerns treatment which is legal or illegal in the receiving State (Cipriani v. Italy (dec.), no. 221142/07, 30 March 2010; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Ismaili v. Germany, no. 58128/00, 15 March 2001; Nivette v. France (dec.), no 44190/98, ECHR 2001 VII; Einhorn v. France (dec.), no 71555/01, ECHR 2001-XI; see also Suresh and Lai Sing, both cited above)

(vi)  whether they have been given by a Contracting State (Chentiev and Ibragimov v. Slovakia (dec.), nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009);

(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State's record in abiding by similar assurances (Babar Ahmad and Others, cited above, §§ 107 and 108; Al Moayad v. Germany (dec.), no. 35865/03, § 68, 20 February 2007);

(viii)  whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers (Chentiev and Ibragimov and Gasayev, both cited above; cf. Ben Khemais, § 61 and Ryabikin, § 119, both cited above; Kolesnik v. Russia, no. 26876/08, § 73, 17 June 2010; see also Agiza, Alzery and Pelit, cited above);

(ix)  whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible (Ben Khemais, §§ 59 and 60; Soldatenko, § 73, both cited above; Koktysh v. Ukraine, no. 43707/07, § 63, 10 December 2009);

(x)  whether the applicant has previously been ill-treated in the receiving State (Koktysh, § 64, cited above); and

(xi)  whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State (Gasayev; Babar Ahmad and Others¸ § 106; Al-Moayad, §§ 66-69).

62. Applying these criteria to the undertaking which was offered to the District Judge, it is clear that the assurances were provided after due reflection by the authorities of the requesting state, and the appellant has now, at least, had ample opportunity to respond. In contrast to the assurances given by the Government of India in Chahal v United Kingdom [1998] 23 EHRR 413, and the ineffective assurances considered by this court in the case of Badre v Court of Florence [2014] EWHC 614 (Admin) at [19], the present assurances are not generic in nature: they are specifically directed to the issue of whether there would be prosecutorial objections to bail. If the appellant was admitted to bail on the terms envisaged in the assurances then no violation of Article 5 would occur let alone a flagrant violation. No issue was raised in the proceedings below as to whether the appellant would face a flagrant denial of his Article 6 rights by reason of the delays in the trial process.
63. Further, although not given through diplomatic channels, the assurances were given by the officer with conduct of the investigation on behalf of the CBI. They could not, of course, be said to bind the judiciary as to whether bail would be granted on the terms proposed but no assurances issued by the executive can bind the judiciary in a state which recognises separation of powers and is governed by the rule of law. The origin of the assurances cannot of itself constitute reason to disregard them.
64. The issue for the court is the assessment of the likely impact of the assurances given on the decision relating to the grant of bail. This is a matter within the authority of the CBI as investigating and prosecuting authority. It is able to instruct advocates acting on its behalf as to its position. In those circumstances, I have no reason to doubt that the assurances have been given with the approval of and bind the CBI which, throughout, has acted through Superintendent Ramnesh. His conduct in filing witness statements, providing documents and otherwise promoting the state's request for extradition demonstrates that he acts with the authority of the CBI and, in that regard, the CBI acts in this respect on behalf of the Government of India. Indeed given the sensitive nature of this prosecution and some of the documents relevant to it, Mr Hardy has made it clear that authority at the very highest levels of government has been required and provided in relation to a number of the decisions taken.
65. These indicia are not assurances that the normal provisions of the law of the requesting state will be departed from in this particular case. Nor are there assurances that unlawful practices will not occur. The judicial decision as to admission to bail in what, as a matter of Indian law, is a non-bailable offence (i.e. it is not open to the police to grant bail) requires an exercise of judicial judgment based on all the relevant factors. In the light of the case law of the Supreme Court of India generally, and the judicial decisions in favour of bail with sureties in the case of the co-defendants, I have no doubt that the fact that the prosecution does not object to bail in principle and the fact that these assurances were considered critical to the decision of the English court to order extradition, would be considered very carefully and accorded appropriate respect by the Indian court seized of the matter.
66. It is true that India is not party to the ECHR or other international treaties that accord specific human rights to those within its jurisdiction. Nevertheless, it is a democracy governed by the rule of law with a developed and effective system of law. It has a constitution requiring respect for fundamental rights including the protection of life, liberty and access to a court. There have been long and extensive bi-lateral relations between the governments of the United Kingdom and India. India is a leading member of the Commonwealth and there have been friendly exchanges between the judiciary of the United Kingdom and India.
67. Neither is this a case where the appellant contends that he faces a real risk of torture on return. We are conscious from the material provided by Professor Lau that the Indian judiciary are alert to the risk of oppression and other malpractice by police officers in India. Given that an assurance other than through diplomatic channels should not be disregarded as a matter of law, it is a question of evaluating the relevance of the assurance to reducing or eliminating the particular risk of breach of the human right in question. Some cases involve risks so serious that they can only be addressed by formal diplomatic assurances at the highest level. For my part, I do not consider this case to be one of them.
68. Dealing with the terms of the assurances, Mr Lewis submitted that it did not cover the date of the first appearance in court so that the appellant would remain in custody until produced. On the other hand, there is a constitutional requirement to produce an arrested person promptly before a court and first appearances before a judge have been made promptly in other cases. The concerns of the District Judge were with the length of time it took for the bail decision to be reviewed on appeal in the case of the co defendants.
69. Mr Lewis further submitted that the requirement that the appellant does not delay the trial by seeking an adjournment undermined the efficacy of the undertaking not to oppose bail or apply for it to be revoked. This submission must be considered against the background that there is a dispute between the parties as to whether the delay in this case proceeding to trial has been the responsibility of the prosecution or defence. In any event, I have little doubt but that a fixed trial date would only be adjourned by the judge where the interests of justice so required and it is difficult to see why making an application (let alone succeeding in obtaining an adjournment) should of itself alter the prosecutions approach to the continued conditional liberty of the appellant. If this had been the central issue in the case we would have explored this issue and the terms of the undertaking with the respondent but in the event no more needs to be said about it. Subject to this reservation, there is nothing in this ground of appeal: Article 5 itself does not give a right to bail, and it is only a flagrant denial of Article 5 or a breach that goes to the essence of the right that would preclude extradition from the United Kingdom.

Conclusion

70. For the sake of completeness and in deference to the comprehensive arguments that have been advanced on this appeal, each of the grounds has been considered. In the event, I would allow this appeal on the sole ground that the District Judge failed properly to re-evaluate the admissibility of the third (and only operative) hearsay statement attributed to Kushwaha against the further evidence advanced on behalf of the appellant. Performing that exercise with due regard to the provisions of s. 84 of the Extradition Act 2003, I have little doubt that it should not have been admitted as the only evidence linking the Vic Branson email to the appellant. Without that link, the prima facie case that must be established collapses.
71. I would reject each and all of the remaining grounds, including the challenge to the basis of the decision of the Secretary of State (although the decision itself falls with the failure to establish a case sufficient to justify extradition).

Mr Justice Blake:

72. I agree.