Hamraj Kang of Kangs Solicitors considers the court process in extradition requests made by the Government of India and discusses how some recent cases have progressed through the English Courts this year.

Hamraj Kang leads our extradition team. We accept instructions from individuals who are subject to extradition requests from any foreign government, including India.

We can advise you on the merits of any extradition request as well as guide you in resisting and challenging the extradition request to include the preparation and presentation of a robust defence case before Westminster Magistrates’ Court, the High Court or the Supreme Court.

Our Extradition Team provides representation before Westminster Magistrates’ Court, often at short notice if a client has been arrested and produced pursuant to an arrest warrant issued on behalf of a Requesting State.

For an initial no obligation discussion, please call our Team at any of our offices detailed below:

Extradition To India | Category 2 Country | Kangs Lawyers For Extradition

India is designated a Category 2 Territory under the terms of the Extradition Act 2003 (‘EA 2003’) and unlike Category 1 nations, as the Requesting State, India is required to demonstrate a ‘prima facie case’ in relation to the allegations made against the individual being sought for extradition (the ‘Requested Person’).

Pursuant to section 137 EA 2003, India must show that an offence has been committed in India which would be classified as an offence in the UK. The burden is on India to prove to the criminal standard the offence is an ‘extradition offence’ (section 137(3) EA 2003) which would constitute an offence in the UK punishable by a custodial sentence of twelve months or more.

In deciding whether there is a prima facie case for the Requested Person to answer, the court must take into account both the evidence presented by India as the Requesting State and any evidence adduced by the Requested Person rebutting the assertion that there is a case to answer (section 84 EA 2003).

It is a requirement that the court must take into account any explanation provided by the Requested Person in deciding the issue of a prima facie case. However, the court can rule there is a prima facie case if on one possible view of the facts (as presented by the Requesting State) it is satisfied that there is evidence upon which the Requested Person could be convicted.

The extradition court does not have to satisfy itself of the guilt of the Requested Person. The Judge must be satisfied that a court, when hearing the substantive criminal allegations, could reasonably and properly convict on the basis of the evidence.

The requirement to prove a prima facie case can be contrasted with those countries designated as Part 1 Territories under the EA 2003 where no such requirement exists. Part 1 Territories most notably include, inter alia, the former EU nations as well as USA, Canada, New Zealand and Australia.

Human Rights Challenges to Indian Extradition | Kangs Expert Extradition Solicitors

When considering a request for extradition, the court must consider any human rights issues that may arise in accordance with section 87 EA 2003.

Arguments often advanced on behalf of Requested Person when challenging extradition requests made by the Government of India relate to:

  • the right to a fair trial (Article 6 of the European Convention on Human Rights (‘ECHR’))
  • the right not to be subjected to torture or inhuman or degrading treatment or punishment (Article 3 ECHR)
  • Section 91 EA 2003 where the mental and/or physical condition of the Requested Person is such that it would be unjust and oppressive to extradite him.

Article 6 | Kangs Extradition Defence Solicitors

The burden of proof rests with the Requested Person to show that he would not receive a fair trial if extradited to India and would be exposed to a ‘flagrant denial of a fair trial’ [Soering v United Kingdom (1989)].

There must be a ‘real risk’ – a risk which is substantial and not merely fanciful.

It has been argued (unsuccessfully) in a recent case [Government of India v Nirav Modi (2021)] that adverse press and social media coverage in India, undue government political interference/pressure and the politicisation of the Supreme Court of India would prejudice a fair trial for a Requested Person.

Article 3 | Kangs Extradition Lawyers

Article 3 of the ECHR, when applied to extradition cases, will prohibit extradition if there are substantial grounds for believing that there is a ‘real risk’ of treatment which amounts to torture, inhuman or degrading treatment or punishment.

Article 3 has been invoked where prison conditions are an issue in India.

When invoking Article 3, it is important for the Requested Person to adduce relevant expert evidence to confirm the facilities and the regime at the specific Indian prison the Requested Person will be taken to if extradition is ordered.

In recent cases the UK courts have not been impressed or persuaded by expert witnesses who have not visited the relevant prison in person or by those experts who have provided testimony to the court based on their historic knowledge of the prison as opposed to knowledge based on a recent inspection of the prison.

Recently the court has also placed great weight on the Assurances provided by the Government of India with regard to the regime and facilities in Indian prisons. In Government of India v Vijay Mallya and Government of India v Nirav Modi, the Indian Government offered multiple Assurances and provided what the court ruled was compelling evidence of the adequacy of the prison regime in Mumbai Prison thereby defeating a challenge to extradition based on Article 3.

Section 91 EA 2003 | Mental & Physical Condition | Extradition Law Experts

Section 91 EA 2003 provides that if at any time during extradition proceedings the court is satisfied that, as a result of the mental or physical condition of the individual, it would be unjust or oppressive to extradite him, the Judge must either order the person’s discharge or adjourn the extradition hearing until the above criteria are no longer satisfied.

In two recent high profile cases involving extradition requests by the Government of India, namely Vijay Mallya and Nirav Modi, arguments advanced by the defence pursuant to section 91 EA 2003 were unsuccessful but the decision to order extradition in both cases is now subject to appeal.

By contrast, the High Court in Ivor Fletcher v Government of India (2021), ruled that the extradition of Mr Fletcher would be unjust and oppressive pursuant to section 91 EA 2003 on the grounds of the state of Mr Fletcher’s mental health.

How Can We Help? | Kangs London Extradition Solicitors

We are able to guide you in challenging extradition requests from all countries where a challenge needs to be made to demonstrate that the test for a prima facie case is not satisfied.

We are experienced in collating and deploying expert evidence from around the world to demonstrate:

  • a Requested Person would not receive a fair trial in a Requesting State
  • unsatisfactory prison conditions in a Requesting State including lack of medical facilities
  • lack of independence on the part of the judiciary in the Requesting State
  • evidence of political interference in the judicial process
  • the unreliability of Assurances provided by certain Requesting States

Our team can assist you in the following ways:

  • Advise you at the police station on initial arrest under the terms of an arrest warrant.
  • Represent you at the first hearing at Westminster Magistrates’ Court.
  • Prepare and present an effective bail application and advise on the appropriate level of security/surety to be offered in each case.
  • Guide you through the court process, prepare a robust defence case and contest the extradition proceedings.
  • Instruct a leading extradition law barrister to present your case in court.

How to Contact Us | Kangs Leading Extradition Solicitors

Our Extradition Team is available to assist clients throughout the country.

We aim to work proactively with our clients and secure the services of the very best extradition barristers in an effort to secure a favourable resolution to matters.

We welcome new enquiries by telephone or email.

Our team of lawyers is available to meet at our offices in London, Birmingham or Manchester or, alternatively, we are happy to arrange an initial no obligation meeting via telephone or video conferencing.

For initial enquires please contact:

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

Helen Holder
hholder@kangssolicitors.co.uk
020 7936 6396 | 0121 449 9888

John Veale
jveale@kangssolicitors.co.uk
020 7936 6396 |  0161 817 5020