Saifi v. The Governor of Brixton Prison & The Union of India [2000] EWHC QB 33 (21st December, 2000)

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Saifi v. The Governor of Brixton Prison & The Union of India [2000]
EWHC QB 33 (21st December, 2000)

Case No: CO/4176/1999

IN THE SUPREME COURT OF JUDICATURE

QUEEN'S BENCH (DIVISIONAL COURT)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21st December 2000

B e f o r e :

LORD JUSTICE ROSE

and

MR JUSTICE NEWMAN

- - - - - - - - - - - - - - - - - - - - -

NADEEM AKHTAR SAIFI

v

THE GOVERNOR OF BRIXTON PRISON

1st Respondent

and

THE UNION OF INDIA

2nd Respondent

Application for habeas corpus

1. Clive Nicholls QC , James Lewis & M/s Clair Dobbin appeared for the
applicant (instructed by Henri Brandman & Co) Paul Garlick QC , David
Perry & M/s Adina Ezekiel appeared for the respondents (instructed by
CPS London)

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL
CORRECTIONS)

2. Lord Justice Rose:

1. This is the judgment of the court. The applicant, an Indian
Muslim who came to this country with his pregnant wife and child in
July 1997, applies for habeas corpus. The second respondent, the Union
of India, seeks his extradition for the murder of Gulsham Kumar on 12th
August 1997 and conspiracy to murder.

2. By rulings on 25th February, 30th June and 21st September 1999
the Metropolitan Stipendiary magistrate at Bow Street, Mr Christopher
Pratt, declined to exclude the evidence relied on by the second
respondent, found that there was sufficient evidence to establish a
prima facie case against the applicant and ordered, under s9 (8) of the
Extradition Act 1989, that he be committed to await the Secretary of
State's decision as to his return.

3. The applicant challenges these decisions on 5 grounds. First,
the evidence of Ali Shaikh, on which the prosecution rely, proffered to
the Bow Street magistrate in English, was inadmissible in extradition
proceedings because Ali Shaikh had given his evidence in India in
Hindi. Secondly, Ali Shaikh's evidence should have been excluded
under s78 of PACE. Thirdly, the evidence was insufficient to justify
committal and the magistrate's analysis of it was inadequate.
Fourthly, it would be unjust or oppressive to return the applicant
because, pursuant to s11(3)(c) of the Act "the accusation against him
is not made in good faith in the interests of justice". Fifthly, the
applicant might, if returned, "be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of
his.......... religion" (s6(1)(d)).

4. As to the first ground, Mr Clive Nicholls QC, for the
applicant, submitted that there should have been primary evidence from
Ali Shaikh before the Bow Street magistrate, that is a record in Hindi,
together with an independent expert translation into English. Instead,
although there may have been primary evidence before the Indian
Magistrate, all that was before the Bow Street magistrate was a
statement in English which was the product of non-independent,
unchallengeable translation from Hindi by the Indian Magistrate or his
clerk: this was inadmissible, secondary, hearsay evidence.

5. The Extradition Act 1989 s27 provides

3. "(1) in any proceedings under this Act in relation to a person whose
return has been requested by a designated Commonwealth country or a
colony, including proceedings on an application for habeas corpus in
respect of a person in custody under this Act (a) a document, duly
authenticated, which purports to set out evidence given on oath in a
designated Commonwealth country or a colony shall be admissible as
evidence of the matters stated in it.

(2) provides

4. "a document shall be deemed to be duly authenticated for the
purposes of this section (a) in the case of a document purporting to
set out evidence given as mentioned in sub-section 1(a) above, if the
document purports to be certified by a judge or magisterial officer in
or of the country or colony in question to be the original document
containing or recording that evidence or a true copy of such a
document".

6. Mr Nicholls did not suggest that, in the present case, there is any
want of authentication of the document. He submitted that the rationale
of s27 is to provide an exception to the hearsay rule, by avoiding the
need for oral evidence to be given before the English Magistrate by the
maker of the statement relied on. It is for the second respondent to
establish admissibility. And, in the present case, the Bow Street
magistrate fell into error. In particular, having rightly concluded
that the document setting out evidence given in India was authenticated
in accordance with s27(2) and admissible as a document, he failed to
consider the implications of R v Governor of Pentonville ex parte Kirby
[1979] 1WLR 541 where, giving the Divisional Court's judgment,
Croom-Johnson J, at 544E, referring to s11 (1)(a) of the Fugitive
Offenders Act 1967, (which is in identical terms to s27(1)(a) of the
Extradition Act), said

5. "The section is dealing with procedure and method but not
admissibility......This is an enabling provision allowing documents
with due authentication to be put before the magistrate.......It does
not mean that anything that is in that document, regardless of whether
or not it complies with the ordinary rules of evidence which would be
applied in the committing court shall be considered by the magistrate".

6. Mr Nicholls submitted, accordingly, that s27 does not make otherwise
inadmissible evidence admissible. The Bow Street magistrate should have
concluded that, in order to be admissible in the English extradition
proceedings, the Indian depositions had to comply with English rules of
admissibility requiring the statement of a witness to be in his own
language. By asking himself whether, if he had done what the Indian
Magistrate did, the evidence would be admissible in England he asked
the wrong question. He should have asked whether, sitting in Bow
Street, the evidence was admissible before him. Had he done so, he
would have concluded that it was not, because the English translation
was not the statement of the witness. Mr Nicholls submitted that the
practical importance of the witness's Hindi evidence being before the
English magistrate is amply demonstrated in the present case by the
crucially different translations of an alleged telephone conversation
in Hindi on 9th August 1997 between the murdered man and a newspaper
editor relating to threats made to the former: the purported English
translation before the court includes a reference to the applicant,
whereas the correct translation does not.

7. Mr Nicholls referred to R v Raynor , (unreported, Divisional Court
transcript of 10th July 2000), where it was concluded that the
translation placed before a magistrate of statements made to a police
officer were not "statements of the witness" within the meaning of s5 A
of the Magistrates Courts Act 1980 but, rather, the interpreter's
translation of what had been said. Mr Nicholls also referred to Kruger
v North Ward Prison [1996] CILR 157 where Harre CJ held that there was
no basis on which a prima facie case could be found when, on an
extradition request by Switzerland to the Cayman Islands, statements in
German were submitted to the Cayman court without any translation into
English.

8. As to s78, Mr Nicholls submitted that, in the light of Hughes [1988]
Crim LR 519, the correct approach for the magistrate was a two stage
process: first, determination of the circumstances, including the
primary facts, and then a decision in the light of the primary facts as
to whether admitting the evidence would have such an adverse effect on
the fairness of the committal proceedings that it ought not to be
admitted. In determining the primary facts, there is an evidential
burden on the defendant and then a burden to the criminal standard on
the prosecution ie the prosecution must rebut the facts raised by the
defence beyond reasonable doubt. Accordingly, he submitted that there
is no difference in this respect between s78 and s76 of PACE which
expressly confers such a burden on the prosecution in relation to
confessions. Mr Nicholls referred to Keenan [1992] QB 54 at 63G to 64F
and a reference therein to Delaney The Times 30th August 1988 and
submitted that those judgments contemplated the prosecution having to
disprove allegations under s78 to the criminal standard. This, in our
judgment is an impossible contention. An examination of these decisions
shows that the passage relied on by Mr Nicholls relates to breaches of
the Code of Practice in relation to confessions and s76.

9. The second stage, he submitted, involved the court forming an
opinion, without reference to the burden or standard of proof. In the
present case, if the police had acted in bad faith the evidence should
have been excluded. He accepted, in the light of Lord Hoffman's
speech in R v Governor of Brixton Prison ex parte Levin [1997] AC 741
at 748, that the proceedings here relevant for the purposes of s78 are
the extradition proceedings rather than the trial of the accused and
that the scope of the application of the section is more limited than
in relation to a trial. But, he submitted, evidence had been obtained
in the present case in a way which, in the words of Lord Hoffman,
"outrages civilised values". As in extradition proceedings there is no
opportunity to cross examine and accomplice evidence may be sufficient
to establish a case to answer, a police officer in the requesting state
can disproportionately influence the decision to commit if he produces
evidence obtained in bad faith. Therefore, the consequence of admitting
improperly obtained evidence is more profound at committal than at
trial. The court must have regard to its obligations under the Human
Rights Act 1998 when considering s78. Furthermore breaches of
international and foreign law and rules designed for the protection of
an accused or a witness in the country where evidence was gathered can
be taken into account ( see R v Governor of Pentonville Prison ex parte
Chinoy [1992] 1 ALL ER 317 per Nolan J at 332H). Regard should also
have been paid to the Convention against Torture and Other Cruel Human
or Degrading Treatment or Punishment (1984). Accordingly, the
magistrate should have asked himself whether he was sure that the
police did not coerce Ali Shaikh to give his evidence: if the answer
was `no' the evidence of Ali Shaikh should have been excluded.

10. Mr Nicholls submitted that the Bow Street magistrate failed to make
any finding of primary facts from which he could form an opinion. He
was wrong to say that he did not have to determine every factual issue
and that he need not determine a number of issues which remained
unanswered. He was wrong to rule that the arguments on burden of proof
had no application in relation to s78 and that, in relation to
committal proceedings, there was a lesser test than at trial for
determining the circumstances relevant to a s78 application.

11. In support of his submission that the Bow Street magistrate's s78
decision was perverse, Mr Nicholls identified many facts in dispute and
not in dispute. He also relied on these facts in support of his
submissions as to the sufficiency of the evidence and under s11(3) to
which we will come later. It is convenient at this stage to summarise
these facts.

12. In outline, the applicant's case is that Ali Shaikh is an
uncorroborated accomplice, who made statements implicating the
applicant in return for a pardon for a capital offence, which
subsequently he retracted on more than one occasion. His statements
were the result of physical and mental ill-treatment and coercion
arising during his unlawful detention between 25th and 31st August, and
from pressure on his family, as confirmed by sworn evidence from his
wife and daughter on 26th September 1997. Mr Mokashi, an advocate
compliant to the police, was foisted on him so that he made the
confession which implicated the applicant.

13. The Bow Street magistrate should have made findings about a number
of disputed matters. These included: the date and time of Ali
Shaikh's arrest; whether his wife and children were also arrested
with him; whether he was physically or mentally tortured; whether the
stress which he was under on 18th and 20th September 1997 as observed
by the Magistrate at Ballard Pier was the consequence of police
activity; whether his wife and daughter were required by the police on
21st September to change his lawyer from Sutrali to Mokashi; whether
the police engineered a false confession before Magistrate Palnitkar on
or after 1st October; whether his statements of 27th and 28th November
inculpating Javed Fawda were falsely contrived by the police; whether
Inspector Bagadi and/or Commissioner Rao fabricated evidence thereby
undermining the integrity of the investigation; whether the name
"Nadeem" was properly added to the charge sheet under the guise of a
purportedly accurate translation; and whether the evidence of Prison
Officer Wankhede and Advocate Mokashi, that Ali Shaikh wrote the Hindi
text in the document ABB 10 appointing Mokashi as his advocate and
asking to give evidence for the prosecution, is false. Mr Nicholls
submitted that, if the Bow Street magistrate had resolved any of these
issues, as he ought to have, adversely to the prosecution, this should
have led to the exclusion of Ali Shaikh's evidence under s78, a
consequential insufficiency of evidence and a refusal to commit.

14. Furthermore, Mr Nicholls submitted that a number of undisputed
facts were themselves sufficient to lead to exclusion of the evidence
under s78. These are: breaches of Indian Law, in particular the Police
Manual and rules in relation to the keeping of a diary concerning the
arrest and detention of Ali Shaikh; the lack of any written notes or
statements in relation to Ali Shaikh's alleged admissions prior to
1st October 1997; up to 3rd October, and in particular during a bail
application on 14th September, Ali Shaikh was still protesting his
innocence; the Ballard Pier Magistrate on 18th and 20th September
recorded Ali Shaikh as saying that he was in danger if he did not give
a statement; the incriminating statement was only given after Ali
Shaikh's lawyer had been changed and his wife and daughter
threatened; the offer and acceptance of a free pardon in relation to a
capital offence in return for making the statement; the signs of fear
and intimidation on 1st October before Magistrate Palnitkar; the fact
that, despite being in judicial custody supposedly without police
contact, Ali Shaikh was brought to court without a court order on 5th
November; the introduction of Javed Fawda as a co-conspirator for the
first time in Ali Shaikh's evidence on 27th November; internal
inconsistencies in Ali Shaikh's account, in particular as to whether
he was inside or outside the cabin in which the conspiratorial
conversation allegedly took place; Ali Shaikh's subsequent retraction
of his evidence and the issue of a Writ Petition, not only retracting
the evidence but making allegations against the police of being
threatened and tortured to give the evidence implicating the applicant
and Javed Fawda; and the omission of any reference in the extradition
process to the Ballard Pier hearings on 18th and 20th September.

15. Mr Nicholls also relied on the findings of Justice Aguiar that
Javed Fawda was never involved in this murder and was deliberately
killed by the police by a shot at close range. This decision has been
appealed to the High Court and there is a further appeal pending to the
Supreme Court.

16. Finally, in relation to s78, Mr Nicholls complained that the Bow
Street magistrate gave no reason for not heeding the Torture
Convention.

17. As to sufficiency, it is common ground that the prosecution case
against the applicant depends on the evidence of Ali Shaikh. It is also
common ground that his statements, taken at face value, provide a case
to answer. For they describe in detail visits by the applicant to Dubai
in May 1997, during the first of which he says there was a discussion
involving the applicant and others to the effect that Gulsham Kumar was
troubling the applicant in his business and was therefore to be killed.
Thereafter two guns and a car were acquired and used in the killing.

18. Mr Nicholls submitted, in reliance on R v Governor of Pentonville
Prison ex parte Alves [1993] AC 284 that it was the Bow Street
magistrate's duty to weigh the evidence before him, rejecting that
which was inherently incredible or worthless. At 292B Lord Goff said

7. "If the magistrate concludes, on the evidence before him, that the
previous evidence is such that a jury properly directed could not
properly convict upon it, then on the principle stated in R v Galbraith
[1981] 1WLR 1039, he should not commit. This was the approach approved
by the Divisional Court in R v Governor of Pentonville Prison ex parte
Osman [1990] 1 WLR 277 at 299 to 300, where it was stated that the
magistrate should reject any evidence which he considers to be
worthless".

8. In ex parte Alves the House of Lords held that the retraction by a
witness in extradition proceedings of evidence previously given in the
requesting state did not, in itself, discredit that evidence and,
unless it was worthless, the magistrate was entitled to act upon it in
deciding whether there was sufficient evidence to justify an order for
committal. But subsequent retraction of itself does not render previous
evidence worthless, because it may be that the later retraction is not
worthy of belief. Mr Nicholls distinguished the facts of the present
case from those in Alves in a number of respects. In that case, the
magistrate saw the witness, who had a motive to help the accused,
retracting his evidence. In the present case, the original evidence was
motivated by promise of pardon for a capital offence; and it contained
inconsistencies as to whether Ali Shaikh was inside or outside the room
at the time of the crucial conversation, as to the date when he was
arrested and in relation to the late introduction of the name Javed
Fawda. Furthermore, Ali Shaikh's evidence against the applicant came
after he had protested his innocence until the failure of his 14th
September bail application and there was sworn evidence from his family
on 26th September tending to support his claim of police coercion.

19. In the evidence on oath given by Ali Shaikh in his Writ Petition
and to the National Human Rights Commission from March 1998 onwards, he
claims to have been arrested on 25th not 31st August 1997, to have been
tortured and intimidated by the police, to have been deceitfully
induced to change his lawyer to another chosen by the police, to have
been promised bail if he implicated the applicant and to have been
tortured and intimidated to introduce the name Javed Fawda, which had
not appeared earlier, into his final statements to the Magistrate in
late November 1997. Mr Nicholls submitted that, if he had lied about
any of these matters, his evidence was worthless. If, on the other
hand, his retraction is not worthy of belief, so, equally, is his
earlier evidence implicating the applicant. His later account is
confirmed, in part, by the evidence of his wife and daughter on 26th
September 1997 that they had been arrested with him and that, contrary
to Mokashi's evidence, they had not instructed Mokashi to represent
Ali Shaikh. Furthermore, there was evidence from Mr Vanjara, the highly
respected lawyer who later represented him on his Writ Petition, that
Ali Shaikh could not read or write. Even if it was not necessary for
the Bow Street Magistrate to make specific findings for the purpose of
the s78, submission it was necessary for him to do so when looking at
sufficiency. It ex parte Osman [1990] 1 WLR 277 at 299H in the passage
approved in ex parte Alves Lloyd LJ said

9. "In our judgment it was the magistrate's duty to consider the
evidence as a whole and to reject any evidence which he considered
worthless. In that sense it was his duty to weigh up the evidence. But
it was not his duty to weigh the evidence. He was neither entitled or
obliged to determine the amount of weight to be attached to any
evidence or to compare one witness with another. That would be for the
jury at trial. It follows that the magistrate was not concerned with
the inconsistencies or contradictions in Jaafar's evidence unless
they were such as to justify rejecting or eliminating his evidence
altogether".

10. Accordingly, Mr Nicholls submitted that the Bow Street
magistrate's reasons in relation to the sufficiency of the evidence
are inadequate. No reasonable jury properly directed on such evidence
could convict upon it.

20. As to s11(3), this provides, omitting immaterial words,

11. "The court shall order the applicant's discharge if it appears to
the court in relation to the offence or each of the offences in respect
of which the applicant's return is sought that ...... (c) because the
accusation against him is not made in good faith in the interests of
justice, it would, having regard to all the circumstances, be unjust or
oppressive to return him".

12. It is common ground that this confers original jurisdiction on this
court.

21. Mr Nicholls again relied on the facts referred to in his
submissions in relation to s78. He submitted that, even if the Bow
Street magistrate did not have to come to any conclusion in relation to
those facts, this court must. He also relied on material subsequent to
the magistrate's decision, namely the evidence bearing on the
genuineness or otherwise of ABB 10 given in India in July and October
2000 by Ali Shaikh's wives and daughters, Prison Officer Wankhede and
Advocate Mokashi and the further affidavits from Ali Shaikh's
relations on 2nd November 2000. Mr Nicholls relied on a number of
matters as demonstrating bad faith on the part of the police and the
prosecution authorities in relation to the applicant. First, as appears
from newspaper reports, on 31st August 1997 the Mumbai Police
Commissioner and on 2nd September the Mumbai Deputy Chief Minister
asserted that there was evidence of the applicant's guilt, at a time
when no legally admissible evidence was available. Secondly, in
relation to extradition proceedings, neither the first request in
November 1997 nor the second in January 1998 made any reference to the
pressure and tension exhibited by Ali Shaikh and recorded by the
Magistrate on 18th, 20th and 26th September. Nor were Ali Shaikh's
retractions of his evidence in his petition to the Human Rights
Commission in March 1998 and his Writ Petition in April 1998 disclosed
to the applicant until part way through the committal proceedings in
the Summer of 1999, although the prosecution were well aware of those
matters from the Spring of 1998. In consequence, there was a failure
properly to present Ali Shaikh "warts and all" to the Bow Street
magistrate to enable a proper assessment of his credibility to be made.
Thirdly, the original of ABB10, the authority to Mokashi to act and the
expressed wish to give evidence for the prosecution, has never been
produced and the explanations for its non-production, proffered by the
prosecution, conflict: in July 2000 Mr Nikkam, the prosecutor, claimed
that Mokashi had refused to hand it over; in October 2000 Mokashi said
he had never been asked for it by the police and he failed to produce
it to the court. Ali Shaikh's family denied ever instructing Mokashi
to act for him. Fourthly, the literacy of Ali Shaikh has been
challenged by the defence ever since a copy of ABB 10 was produced, but
the prosecution have refused requests for an independent investigation
of his literacy. Furthermore, ABB10 was never mentioned by Mokashi to
the Magistrate on 26th September, in the pardon order on the 27th
November, in the request for extradition, or by Inspector Bagadi in his
affidavit in response to Ali Shaikh's Writ Petition in April 1998.
Fifthly, there was evidence before the Bow Street magistrate from Mr
Vanjara, that Ali Shaikh signed instructions to act in broken Urdu, did
not read any of the documents which Mr Vanjara showed him and said that
he could not write in any language. There is also evidence before this
court from Ali Shaikh's educated daughter Shabnam that her father can
write his signature in Urdu but cannot write in Hindi. In addition,
there is expert evidence before us that the signature on ABB 10 in
broken Urdu was not written by the educated writer of the Hindi text
and was made on a blank sheet of paper before the text was written.
Sixthly, there was a breach of the Maharashtra Prison Rules, in that no
records were made, or if made kept, in the Gate Register or otherwise,
of the visit to the prison of Mokashi and his alleged interview there
with Ali Shaikh, with Prison Officer Wankhede 10 to 15 feet away; it
was also inappropriate for Wankhede to countersign ABB10 on the basis
that it had been voluntarily made. Seventhly, as to the date and
circumstances of Ali Shaikh's arrest, during a bail application on
14th September it was claimed he had been illegally detained, on 20th
September he broke down in the presence of the Magistrate and said he
was in danger that, if he did not give a statement, he might be "sent
somewhere very long" and he requested to be kept away from "gangsters".
The Magistrate recorded that he appeared to be under tremendous
pressure. On 1st, 3rd and 4th October he said he had been arrested on
25th August and he did not change that date to 31st August until making
amendments to his October statements on 5th November. There are also
discrepancies in the Remand Sheet as to the time of Ali Shaikh's
arrest. Finally, it was Mr Assistant Commissioner Rao who applied for
extradition.

22. Mr Nicholls submitted that if, on the balance of probabilities, it
is established that Ali Shaikh is illiterate or that Wankhede and
Mokashi may be lying in relation to ABB10 there has been a want of good
faith requiring the applicant's discharge under s11(3). He relied on
observations of Woolf LJ in re Osman 25th February 1992

13. "Good faith has to be given a reasonably generous interpretation so
that if the proceedings were brought for a collateral purpose or with
an improper motive and not for the purposes of achieving the proper
administration of justice they would not be regarded as complying with
the statutory requirement. Likewise, accusations would not be made in
good faith and in the interests of justice if the prosecution
deliberately manipulates or misuses the process of the court to deprive
the defendant of the protection to which he is entitled by law".

14. In Union of India v Narang [1978] AC 247 at 293H to 294A Lord Keith
of Kinkel said it would be sufficient to establish the primary facts on
the balance of probabilities and for the court to form an opinion upon
the facts established. Furthermore, Mr Nicholls submitted that it would
be unjust or oppressive to return the applicant because of the
circumstances in which he came to be charged in India and the conduct
of the Indian authorities in the extradition process both in India and
the United Kingdom. The word "accusation" in s11(3)(c) is apt to
embrace not only the state which prosecutes but those involved in the
investigation and the witnesses relied on: in Murat Calis (Divisional
Court transcript 9th November 1993) the court held that a
complainant's corrupt motive in continuing to press a complaint
demonstrated want of good faith in the accusation.

23. As to s6 of the Act, omitting immaterial words, it provides as
follows "(1) a person shall not be returned .........if it appears to
an appropriate authority.........(d) that he might if returned be
prejudiced at his trial or punished, detained or restricted in his
personal liberty by reason of his ........ religion".

24. Mr Lewis, for the applicant, submitted that the voluminous material
before this court, in particular the reports from Mr Martin Lau dated
17th April 1998, 19th May 2000, and 17th November 2000 (which, he said,
should be preferred to the reports of Dr Chitnis for the respondents)
demonstrate that, although in general the judiciary in Maharashtra is
independent, the Mumbai Police are biased against Muslims. The words of
s6 (1)(d) are not limited to the trial process but embrace the
investigatory and prosecuting processes as well. He relied on the 1994
Amnesty International Report, the Indian People's Human Rights
Commission Report into the December 1992 and January 1993 Bombay riots
and the Shri Krishna Commission Report into the same riots which was,
initially, repressed by the Maharashtra Government. Those Reports
catalogue an appalling series of incidents in which Muslims were killed
or injured and their property destroyed in circumstances demonstrating
active participation, acquiescence, or conspicuous failure to
intervene, by the Bombay police. Mr Lau, in his report of 17th April
1998 expressed the view, in reliance upon the Human Rights Watch World
Report 1997, that the situation in relation to Muslims had worsened in
1996. In February 1998 Mr Lau went to Bombay and, in the light of the
interviews which he then had with a number of witnesses, concluded that
the then ruling coalition of BJP and Shiv Sena created a situation
where the authorities were demonstrably anti-Muslim. In consequence,
the legal system was not able to protect the Muslim minority adequately
or at all: the problem is not that the trial judge himself would be
prejudiced against a Muslim but that the investigatory process is so
tainted by anti Muslim bias that a Muslim might not receive a fair
trial. He also added that it was "extremely unlikely that an accused
persons and witnesses who make statements before a Magistrate have not
been tortured or otherwise intimidated by the police". (It is to be
noted that the BJP/Shiv Sena coalition came to an end in October 1999).
Mr Lewis invited us to find, on the basis of Mr Lau's Report, that it
is more likely than not that the applicant will be discriminated
against by the Mumbai Police because he is a Muslim; the legal theory
adumbrated by Dr Chitnis does not coincide with the reality in Mumbai
as identified by Mr Lau, so that it is likely that discrimination will
not be eradicated by the higher judiciary. In this respect, Mr Lewis
took us to the judgment of the High Court, on appeal from Justice
Aguiar, in relation to the alleged extra-judicial murder of Javed Fawda
by the police. The High Court preferred eye witness police accounts
claiming that Javed Fawda was shot from a distance, in the teeth of
expert forensic evidence that the fatal shot was delivered at close
range within one or two feet. That decision is currently the subject of
an appeal to the Supreme Court.

25. For the respondents, Mr Garlick QC did not seek to diminish the
significance of the Human Rights complaints, but urged that they be put
in context with reference to the specific aspects of the applicant's
case. He submitted that this is not an appropriate forum to determine
the wide ranging issues involved. He stressed that, since the murder,
there has been a change of government in India and in Maharashtra.

26. With regard to the background, Mr Garlick stressed that, following
his arrest, Ali Shaikh was taken, in the presence of independent
witnesses, to his flat where he retrieved a set of car keys. Thereafter
he took the police to the firearms and car used in the killing, which
at least confirmed his participation in these events. On 1st and 14th
September, when he appeared in court represented by his chosen lawyer
Mr Sutrali, no complaint was made about his treatment while in custody.
Also, on the latter occasion, he was permitted to telephone his wife
who was in hospital for an operation and the prosecution placed no
obstacle in the way of him communicating with the outside world. On
18th September, when asked by the Magistrate, he said in terms that he
had no complaints against the police, expressed his willingness to make
a confession, and was given 24 hours for reflection. There was no
evidence of any injury to him at that time. On 20th September, when he
was clearly under pressure and asked to be kept away from gangsters, he
made no complaint of mistreatment by the police. On 25th September, he
wrote ABB10 appointing Mr Mokashi as his lawyer and indicated he wished
to confess. When he appeared in court on 26th September represented by
Mr Mokashi and Mr Sutrali both said they jointly represented Ali Shaikh
and there was no dispute between them, which is inconsistent with the
claim that he had been forced to change his advocate. No complaint was
made about his treatment. He spoke to the Magistrate in private in the
absence of his lawyers. On the 1st, 3rd and 4th October, he appeared
before a different Magistrate, said that he had not been pressurised or
ill-treated and provided a confession statement. On 5th November, he
gave additional details of events leading to the murder and he gave
evidence on oath on 27th and 28th November, repeating his earlier
evidence implicating the applicant in the murder. It is against this
background, Mr Garlick submitted, that the retraction first made in
March 1998 should be viewed. Further the Writ Petition to set aside his
confession was dismissed by the Mumbai High Court in April 1999 - a
matter to which the Bow Street Magistrate attached importance in
assessing Ali Shaikh's credibility.

27. As to the translation challenge, Mr Garlick submitted that what s27
requires is, first, a document, secondly that it be authenticated and
thirdly that it purport to set out evidence given on oath. The section
contains no requirement that the evidence be set out in the language of
the witness. The document is a deposition made on oath by Ali Shaikh on
27th and 28th November taken before Magistrate Palnitkar.

28. Mr Garlick submitted that s27 distinguishes between documents and
depositions. Proceedings in India are habitually conducted in more than
one language and the Magistrate was entitled to receive the evidence in
the local language and to translate and record it in English. He
submitted that the position is no different from proceedings in Wales
where a Welsh speaking magistrate receives evidence in Welsh and
records it in English without the assistance of an interpreter. Ali
Shaikh's evidence was read over to him in Hindi. He admitted it was
correct and the deposition was then signed by him as well as by the
magistrate. Mr Garlick submitted that evidence of translation is only
required where the document setting out the evidence on oath is in a
language other than English, because an English Court is not entitled
to translate a foreign language. Accordingly, submitted Mr Garlick, the
magistrate's ruling on 25th February was correct. He directed himself
properly in accordance with ex parte Kirby, He was entitled to draw an
analogy with old-style committal proceedings where the evidence of a
non-English speaking witness would be translated by an interpreter into
English and recorded by the court clerk in English, after which the
deposition would be read back in English by the clerk and translated by
the interpreter in order to obtain the witness's assent. Such a
deposition would not refer to the existence of the interpreter.
Accordingly, the Bow Street magistrate was entitled to conclude that
there was "little difference between a deposition prepared under the
rules of the English courts and six depositions prepared in India".

29. As to s78, Mr Garlick submitted that the Bow Street magistrate's
function was to consider the circumstances and give a reasoned
decision, but this did not involve an obligation to make findings of
fact upon every issue: the state of the evidence might make this
impossible. The magistrate correctly drew a distinction between the
terms of sections 76 and 78. He dealt with the evidence of Ali
Shaikh's wife and daughter and with the literacy issue. He was not in
a position to make findings, because he had not seen the witnesses or
heard any cross examination on the voir dire or otherwise. He bore in
mind the circumstances and reached a reasoned conclusion.

30. The burden of persuading the court to exclude evidence was on the
defence (see R v Cooke 1995 1 Crim App R 318 at 328B per Glidewell LJ).
The Bow Street Magistrate's decision could only be challenged on
Wednesbury principles (see O'Leary 87 CAR 387 at 391 and Christou 95
CAR 264 at 270). Mr Garlick also referred to Khan [1997] AC 558 in
which Lord Nolan, having referred to an apparent breach of the law of a
foreign country being a matter which may be relevant to the exercise of
the s78 power said

15. "This does not mean that the trial judge is obliged to decide
whether or not there is a breach of the Convention or of the foreign
law.. That is not his function and it would be inappropriate for him to
do so.....but if the behaviour of the police in the case amounts to an
apparent or probable breach of some relevant law or Convention common
sense dictates that this is a consideration which may be taken into
account for what it is worth. Its significance however will normally be
determined not so much by its apparent unlawfulness or irregularity as
upon its effect taken as a whole upon the fairness or unfairness of the
proceedings".

16. In Shannon (unreported CACD transcript 14th September 2000) Lord
Justice Potter at paragraph 38 said, in relation to a s78 application
to exclude evidence on the ground of entrapment,

17. "The principal focus of the judge's attention must be upon the
procedural fairness of the proceedings, the nature and reliability of
the prosecution evidence and the fullness and fairness of the
opportunity available to the defence to deal with the evidence which
the prosecution seeks to adduce".

18. At paragraph 39 he said

19. "The ultimate question is not the broad one is the bringing of
proceedings fair (in the sense of appropriate) in entrapment cases. It
is whether the fairness of the proceedings will be adversely affected
by admitting the evidence of the agent provocateur......so for instance
if there is good reason to question the creditability of evidence given
by an agent provocateur....and that question is not susceptible of
being properly or fairly resolved in the course of the proceedings from
available admissible and untainted evidence, then the judge may readily
conclude that such evidence be excluded. If, on the other hand, the
unfairness complained of is no more than the visceral reaction that it
is in principle unfair.....for a person to be prosecuted for a crime
which he would not have committed without the incitement or
encouragement of others then that is not itself sufficient unless the
behaviour of police.....and/or the prosecution authority has been such
as to justify a stay on grounds of abuse of process".

31. Mr Garlick relied on the observations of Lord Hoffman in R v
Governor of Brixton Prison ex parte Levin [1997] AC 741 at 748A

20. "It must be borne in mind that when the section is being applied to
committal or extradition proceedings the question is whether the
admission of the evidence would have such an adverse effect on the
fairness of those proceedings that the court ought not to admit it.
This is not at all the same thing as the question of whether the
admission of the evidence at the trial would have an adverse effect on
the fairness of the trial. On the contrary the magistrate should
ordinarily assume that the powers available to the judge at the trial
will ensure that the proceedings are fair. The question therefore is
whether the admission of the evidence would have an adverse effect on
the fairness of the decision to commit or extradite the accused for
trial even if the trial is a fair one.......In extradition proceedings
there is even less scope for the exercise of the discretion
because......extradition procedure is founded on concepts of comity and
reciprocity. It would undermine the effectiveness of international
treaty obligations if the courts were to superimpose discretion's
based on local notions of fairness upon the ordinary rules of
admissibility. I do not wish to exclude the possibility that the
discretion may be used in extradition proceedings founded upon evidence
which though technically admissible has been obtained in a way which
outrages civilised values. But such cases are also likely to be rare".

32. Mr Garlick submitted that the magistrate was correct in concluding
that there was no obligation on the prosecution to disprove matters
raised by the defence beyond reasonable doubt and that he correctly
identified his role as being to

21. "carry out an evaluation of the evidence tendered by both the
government and the accused as to the circumstances in which the
evidence was obtained and ultimately to decide on that evidence whether
its admission would have such an adverse effect on the fairness of
these proceedings that I should exclude it".

22. Mr Garlick submitted it would be entirely inappropriate, in the
absence of the principal witnesses, for the magistrate to make specific
findings of fact on every issue. The disputed facts were properly for
determination at trial and not on the extradition application.

33. Accordingly, submitted Mr Garlick, the magistrate did not err in
his approach to s78. He did not mis-direct himself and his decision was
not perverse. Furthermore the magistrate specially referred to the
Torture Convention which raised precisely the same factual issues as
under s78.

34. As to sufficiency, Mr Garlick submitted, in reliance on ex parte
Alves, that retraction in itself did not discredit Ali Shaikh's
evidence. Sufficiency was essentially a matter for the decision for the
magistrate whose decision is only susceptible to challenge on
Wednesbury grounds. The magistrate considered ex parte Alves and
accepted that it was necessary to look at the evidence with great care.
He commented that if the original evidence was the product of
inducement by way of pardon it was curious "that he would wish to
retract his evidence, lose the offer of a free pardon and place himself
once again in jeopardy of the severest penalty". The magistrate
considered the possibility that it might be the retraction rather than
the original evidence which was false, as a result of Ali Shaikh's
fear of gangsters. He referred to the remarkably detailed account which
Ali Shaikh gave over a three day period. He concluded, applying the
Galbraith test set out in Alves, that a properly directed tribunal
could find Ali Shaikh's evidence capable of belief. This approach,
submitted Mr Garlick, cannot effectively be challenged.

35. As to s11(3), Mr Garlick submitted that there is no basis for
concluding that the requisition for extradition was made for a
collateral purpose or improper motive. It comes, he said, from the
Union of India not the police, the prosecutor or the state. He accepted
this did not end the matter. But the burden is on the applicant to show
that the accusation was not made in good faith and, because of this, it
would be unjust to return him. He referred to the well known
observations of Lord Diplock in Kakis v Government of the Republic of
Cyprus [1978] 1 WLR 779 who at 782H, in the context of delay, said

23. "unjust" I regard as directed primarily at the risk of prejudice to
the accused in the conduct of the trial itself, "oppressive" as
directed at the hardship to the accused resulting from changes in his
circumstances that have occurred during the period to be taken into
consideration; there is room for overlapping and, between them, they
would cover all cases where to return him would not be fair".

24. He pointed out that Justice Aguirar, who had concluded that Javed
Fawda was executed by the police, is one of the judges at an
appropriate level in Maharashtra to try the applicant if he is
returned.

36. He submitted that the "accusation" in the present case is made by
the state of Maharashtra. He accepted that if the state were tainted
this would taint the accusation. But he submitted that "accusation" in
s11(3) refers to the state, not those involved in investigation or
prosecution or the witnesses. He sought to distinguish Murat Calis on
the basis that in that case it was a complainant rather than a witness
whose motive was tainted. In the present case, he pointed out, it was
not until March 1998, after the request for extradition had been made,
that the retraction occurred and serious allegations were made against
the independent prosecutor. There is no suggestion that the judiciary
is partial and every indication that they are vigorous in investigating
impropriety, so there will be no injustice in the trial process: this
is particularly so as the applicant is very well known and there has
been much publicity in relation to the case already, so the judiciary
will be particularly alert to investigate matters thoroughly.

37. In relation to the evidence of impropriety, Mr Garlick submitted
that this is far from conclusive. Ali Shaikh's statements have not
been tested in cross examination. On the literacy point, Prison Officer
Wankhede and Advocate Mokashi are both credible witnesses who have
given evidence and been thoroughly cross examined. Their account
gainsays that of Ali Shaikh and the conflict should properly be
resolved by an impartial, competent, vigilant judiciary in India. A
trial in such circumstances will avoid any possibility of prejudiced
from the prior investigation and prosecution. In this respect, Mr
Garlick made the separate submission that, even if the accusation were
made in bad faith, it would not, as s11 requires, cause injustice
because of the Indian judiciary's rigorous examination of the matter.
He referred to a judgment of Sedley J in Re Ashley-Riddle (Divisional
Court transcript 27th November 1993) where at 8G, in relation to
s11(3)(b), there is reference to the need for a link between delay and
whether return would be unjust or oppressive.

38. Mr Garlick referred to In re Schmidt [1995] 1 AC 339 and the speech
of Lord Jauncey of Tullichettle at 371A where he refers to the majority
view in the House of Lords in ex parte Narang [1978] AC 247 that the
powers of the court to discharge a person are restricted to situations
falling within the three categories identified in s11(3). Although the
Secretary of State has a wider discretion, unfettered by the words of
s11(3), the Divisional Court, although its jurisdiction is wider than
that of the magistrate, "has no inherent common law supervisory power"
(see per Lord Jauncey at 379A).

39. As to s6(1)(d), Mr Garlick submitted, by reference to the speech of
Lord Diplock in Fernandez v Government of Singapore [1971] 1WLR 987
that the proper test is whether there is "reasonable chance"
"substantial ground for thinking" or "serious possibility" that the
applicant will be detained or restricted by reason of his religion if
returned. There is, he submitted, no basis on which it can be said that
the applicant will be prejudiced at his trial in the light of Mr
Lau's acceptance that the judiciary is not prejudiced and the Report
and evidence of retired Chief Justice Pendse, who, referring to the
State of Maharashtra, said that "it is impossible to even consider the
suggestion that the legal system is unable to protect the Muslim
minority adequately or at all". Mr Garlick also relies on the expert
evidence of Dr Chitnis that, since the BJP-Shiv Sena government was
replaced in 1999 by the government of the Congress Party and its
secular allies, a Minorities Commission for the protection and
interests of minorities and a state Human Rights Commission have been
established. Furthermore, there are now openly pro-Muslim parties in
the government. The high profile of the applicant will ensure
particular vigilance by the judiciary at trial and there can be no
possibility of further questioning if the applicant is returned,
because he will be taken before a Magistrate.

40. Accordingly, Mr Garlick submitted that this court should take the
view that there is no reason under s 6(1)(d) for the applicant not to
be returned.

41. In his reply, Mr Nicholls submitted that, if Mr Garlick's
construction of "accusation" in s11(3) were correct, the section would
be sterile: the word must extend to persons responsible for presenting
and maintaining prosecutions including the police: he referred to
Propend Finance Ltd v Singh [1998] International Law Reports 611 where,
in relation to s14(1) of the State Immunity Act 1978, the Court of
Appeal held that the activity of a Police Superintendent involved acts
of a sovereign or governmental nature.

42. In the light of these competing submissions we turn to our
conclusions.

Section 27(1) The Extradition Act 1989 (The Act)

43. Section 27 of the Act is an enabling provision. S27(1) deals with
evidence contained in depositions or in affidavits and enables a
deposition or affidavit to be given in evidence, thus obviating the
necessity to call the maker. To that extent the sub-section creates an
exception to the rule that evidence is given orally in court. But we
reject the submission that it creates any wider exception to the
hearsay principle. Nor can the distinction between documents and
depositions assist the respondent. In the normal course, where a
magistrate or an examiner takes a deposition he records the evidence of
the witness, given on oath, in response to questions. Frequently the
deposition takes the form of a narrative and does not record the
question and the answer in verbatim form, although it has been said
that the better course is that the question and answer should be
recorded verbatim. (See Lloyds Bank Limited v Markan [1973] l WLR 339
at 348 F-H).

44. At the conclusion of taking the evidence the record is read to or
by the witness and, if accepted, signed by the witness as the record of
his evidence. It purports to be his evidence. Having regard to the
nature of extradition proceedings, it is unlikely that the defendant
will be present when a deposition is taken, nor, generally, will his
advocate be there to question the witness, or challenge the accuracy of
any translation. The precise circumstances in which depositions are
taken in foreign jurisdictions will vary according to the procedures of
the jurisdiction but in order for the document to be admissible, the
evidence it records must be given on oath and the document
authenticated. Such requirements go to the admissibility of the
document, not its contents.

45. In the present case, after the magistrate (or his clerk) had taken
the deposition, by translating Ali Shaikh's evidence into English, he
translated it back into Hindi to secure Ali Shaikh's agreement to the
terms of what was written in English. Ali Shaikh then signed the
deposition and the respondent relies upon this signature. But in our
judgment the signature adds nothing to the character of the deposition.
Ali Shaikh could not adopt the deposition as a record of his evidence,
because he did not know what the English record set out. There is
therefore no record of the evidence given by Ali Shaikh. Nor, contrary
to the submission of Mr Garlick, does the deposition "purport to set
out evidence given on oath". It purports to set out an English version
of what was said on oath. In our judgment the word "purports" cannot
bear the weight of the argument and introduce a further exception to
the hearsay rule, by enabling what purports to be secondary evidence of
a witness's evidence to be admissible in extradition proceedings.

46. Furthermore, if the interpretation of s27(1)(a) were as Mr Garlick
contends, there would be nothing in the section to limit the
admissibility of secondary evidence to instances of translation. In any
event, we are satisfied that, in the case of unchallengeable
translation, errors could arise causing real prejudice. We have already
drawn attention to an error in the translation of a telephone call on 9
August 1997. In our judgment, fairness requires that the actual
evidence of the witness should be available to the defendant otherwise
a case could proceed to trial without the defendant ever having an
opportunity of seeing a record of the evidence of the witness and his
ability to demonstrate inconsistencies could be significantly affected.
The analogy with proceedings in Wales before a Welsh speaking
magistrate is not in point because the defendant or his lawyers are
present and can challenge the accuracy of the translation. As Mr
Garlick recognised, faced with clear authority (Reg v Governor of
Pentonville, ex parte Kirby [1979] l WLR 54l, R v Governor of
Pentonville, ex parte Osman [1990] 1 WLR 277, R v Stipendiary
Magistrate, ex parte Dokleja, CO/523/93) that the substantive rules of
evidence apply to the contents of a document admitted under s27(1)(a),
the resolution of the issue turns upon whether the proper construction
of the section permits secondary evidence to be admitted. As we have
stated, we reject his submission that it does.

47. This conclusion is consistent with other statutory provisions.
Although hearsay was made more widely admissible in criminal cases by
the Criminal Justice Act l988, that Act nevertheless contained
protective provisions (see ss 23, 24 and 25), enabling the court to
control the admissibility of such evidence. Again, under the provisions
of the Criminal Justice (International Co-operation) Act 1990, where
international co-operation is achieved by a Letter of Request, the
admission of the evidence is subject to the discretion conferred by s25
of the Criminal Justice Act 1988, (see s3(8) of the Criminal Justice
(International Co-operation) Act 1990), the court being required to
have regard:

25. "(a) to whether it was possible to challenge the statement by
questioning the person who made it, and

26. (b) if proceedings had been instituted, to whether the local law
allowed the parties to the proceedings to be legally represented when
the evidence was being taken."

27. Where a deposition or affidavit tendered under s27(1)(a) contains
the first hand evidence of the witness, no equivalent discretionary
basis for exclusion is available. A defendant in extradition
proceedings would be in a peculiarly disadvantageous position if this
procedure could be adopted to render secondary evidence admissible.

48. Mr Nicholls placed some store by the fact that the Magistrate was
someone who was not independent and not qualified to act as an
interpreter. It is not in dispute that in India, judges and magistrates
conduct their proceedings in English as well as in such local language
as may be necessary. We incline to the view, without deciding the
point, that the fact that a deposition is recorded in a foreign
language but unaccompanied by a certified translation, may not
necessarily lead to the deposition being inadmissible although,
generally speaking, certified translation is necessary.

49. But, in our judgment, the proferred deposition of Ali Shaikh in the
English language is not admissible.

28. Section 78 of the Police and Criminal Evidence Act 1984

50. The purpose of the section is to enable the court to achieve
fairness in the conduct of its proceedings, not by reference to the
particular character or type of evidence but by having "regard to all
the circumstances". The exercise of the power is unlikely to achieve
its aim if encased in a rigid framework. That said, the outcome of the
argument depends upon the proper interpretation of the section.

51. It is obvious that, since the court cannot infer there would be
unfairness without having regard to all the circumstances, there are in
our judgment two aspects, rather than two stages, to the exercise of
the power, namely consideration of the circumstances and assessment of
their impact on fairness. But the words of the section provide no
support for the applicant's contention as to onus and standard of
proof. The enactment in s76(2) of PACE of a burden on the prosecution
to prove beyond reasonable doubt that a confession was not obtained by
oppression or other circumstances affecting its reliability, is a clear
pointer against the validity of the argument. The operative words of
s78 are:

29. "In any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances .... the admission of the
evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it."

52. Section 78 confers a power in terms wide enough for its exercise on
the court's own motion. The power is to be exercised whenever an
issue appears as to whether the court could conclude that the evidence
should not be admitted. The concept of a burden of proof has no part to
play in such circumstances. No doubt it is for that reason that there
is no express provision as to the burden of proof, and we see no basis
for implying such a burden. The prosecution desiring to adduce and the
defence seeking to exclude evidence will each seek to persuade the
court about impact on fairness. We regard the position as neutral and
see no reason why s78 should be understood as requiring the court to
consider upon whom the burden of proof rests.

53. In this case it is said that the magistrate should have made
findings of fact. If the section places a burden of proof upon the
prosecution this would advance the applicant's fundamental attack on
the magistrate's refusal to make specific findings and his failure to
apply the criminal standard of proof to the prosecution's rebuttal of
issues raised by the defence. In our judgment these submissions are
inconsistent with the breadth of purpose of s78. Unlike the words of
s76(2), where the burden and standard of proof is directed towards a
specific issue, namely whether or not the prosecution has proved that
the confession was not obtained by oppression, or in circumstances
rendering it unreliable, the reach of the protection provided by s78 is
broader, namely the prevention of unfairness from the admission of any
evidence, not just a confession. The objective being broader, so also
is the range of circumstances having a bearing on it. The ambit is not
confined to what emanates from the defence. Circumstances may appear to
the court other than those raised by the defendant. In this instance,
issues of fact were raised by the defence as to whether Ali Shaikh had
been coerced, and whether the police had perverted the course of
justice by falsifying evidence. But findings on these issues were not a
pre-condition to the proper exercise of the s78 power.

54. The magistrate stated his reasons for rejecting the submission as
follows:

30. "I share the view expressed by the Government that my role in
deciding whether to exclude evidence under s 78 is to carry out an
evaluation of the evidence tendered by both the Government and the
accused, to the circumstances in which the evidence was obtained and,
ultimately, to decide on that evidence whether its admission would have
such an adverse effect on the fairness of these proceedings that I
should exclude it. I do not accept, in relation to every issue raised,
that I need to make a specific finding."

31. For the reasons we have given we consider this direction
impeccable.

55. The words in s78 "if it appears to the court" are also found in
s11(3) of the Extradition Act. (And, in s6(1) there is a similar phrase
"if it appears to an appropriate authority").

56. In Union of India v Narang [1978] AC 247, section 8(3) of the
Fugitive Offenders Act 1967, the precursor of s11(3), was considered.
The material conclusions were:

(1) The task for the court is to consider all the materials before it
and then to decide whether or not the inference is to be drawn that
return would be unjust or oppressive. (p.273 G-H). This chimes
harmoniously with our view as to the correct approach under s78.

(2) The words "having regard to all the circumstances" enjoin the court
to have "regard" to all the circumstances which reasonably can have a
bearing on the question whether "by reason of the passage of time" an
order to return would be unjust (p.280 C-E). Similarly, under s78, it
is all the circumstances which could reasonably have a bearing on the
issue of fairness to which the court must have regard.

(3) In extradition proceedings there is no proof of fact, in the proper
sense of the word, and in certain cases there might be difficulty in
deciding as to the primary facts upon which the court should proceed
(p.259H - 296B). Exactly the same consideration applies to s78 in
extradition proceedings.

57. In R v Khan (Sultan) [1997] AC 558, which was concerned with s78,
two separate acts were said to constitute invasions of privacy, namely
fixing a device to the wall of the flat of an occupier and recording
what was said. Ultimately the argument for exclusion depended upon the
alleged breach of privacy, the absence of statutory authorisation and
an alleged infringement of Article 8 of ECHR. At page 581H - 582C, in
the passage already set out at paragraph 30 above, Lord Nolan rejected
the need for the judge to determine whether a breach of the Convention
had occurred or that criminal damage had been caused, and emphasised
the significance of the conclusion to which the court was required to
come rather than the character of findings of fact upon which that
conclusion had to be based.

58. Under s78 any circumstance which can reasonably have a bearing on
fairness should be considered. The weight to be attached to an
individual circumstance may increase or decrease because of the
presence of other related or unrelated circumstances. The preponderance
of all the circumstances may show that the admission of the evidence
would have such an adverse effect on fairness as to require its
exclusion.

59. The absence from s78 of words suggesting that facts are to be
established or proved to any particular standard is, in our judgment,
deliberate. It leaves the matter open and untrammelled by rigid
evidential considerations. It may well be impossible for a court to
make a finding on the issues raised. For example, the contention that
the magistrate should have found as a fact either that the prosecution
had proved to the criminal standard that Ali Shaikh was arrested on 3l
August 1997 or that, on the balance of probabilities, he was arrested
on 25 August was, as the magistrate said, not something that he could
decide without having Ali Shaikh before the court and questioned. The
undesirability of such an approach is demonstrated by the purpose for
which this specific submission was raised. It was but a step towards
another stage of fact finding. If it could be established that Ali
Shaikh was arrested on 25 August, then, according to relevant Indian
law, a presumption was raised that Ali Shaikh had been intimidated. But
this stage, even if it had been reached, would have simply raised
another issue for the magistrate to resolve, namely whether that
presumption was to be rebutted, or could be rebutted by any other
evidence in the case. In our judgment, investigation in the nature of a
full trial to determine such facts is not practical, desirable or
intended by the terms of s78.

60. The magistrate considered R v Governor of Brixton Prison ex parte
Levin [1997] AC 741 and referred to the dictum of Lord Hoffmann to the
effect that the exclusion of evidence under s78 is likely to occur very
rarely. Before embarking upon a consideration of the circumstances
which the magistrate regarded as bearing upon the fairness of the
proceedings before him, he referred to the objective background
material received from the experts. He rightly regarded it as providing
an important contextual framework in which to consider the
circumstances. He summarised those circumstances comprehensively,
weighing conflicting accounts. He dealt first with the question of Ali
Shaikh's literacy, on which he heard evidence from an Indian lawyer
now representing Ali Shaikh. He weighed and considered the impact of
that evidence. He next turned to the manner in which Ali Shaikh came to
make a confession. He concluded:

32. "When considering the manner in which Magistrates Garde and
Palnitkar dealt with the hearings between 18 September 1997 and 25
November 1997 and bearing in mind the purpose of those hearings, I find
it impossible to say that they were not conducted other than in a
completely fair and exemplary manner."

33. Thereafter he concluded that, whilst some questions remained
unanswered, the admission of Ali Shaikh's evidence would not have
such an adverse effect on the proceedings before him as to merit
exclusion either under s78 or Article l5 of the Torture Convention. In
our judgment reference to the Torture Convention adds nothing to the
case. The intent of Article l5 has been ensured in our law, by the
common law and statute.

61. Although there were a number of circumstances which would cause
considerable difficulty for the prosecution if the issue under s78 fell
to be decided in trial proceedings in this country (see Proulx v
Governor of Brixton Prison and another Div Court Transcript 28 July
2000), in our judgment, for the magistrate to conclude that the
circumstances did not "outrage civilised values" was one which was
within the margin of opinion open to him and is not susceptible to
challenge on Wednesbury grounds.

34. Insufficiency

62. The magistrate correctly regarded R v Galbraith [1981] l WLR 1039
as the authority which laid down the proper approach. He was taken to
Ex parte Alves [1993] AC 284. He concluded:

35. "I have considered its reliability along with the later retraction
but have come to the conclusion, applying the Galbraith test as set out
in ex parte Alves, that a properly directed tribunal could find Ali
Shaikh's original evidence capable of belief."

36. We accept the submissions of Mr Nicholls summarised in paragraphs
18 and 19 above. In particular we consider there is considerable force
in the submission that Ali Shaikh's retraction has been repeated on
four occasions, including on oath in his Writ Petition to the National
Human Rights Commission, and that his retraction placed him in jeopardy
of being convicted of a capital offence. In our judgment, the
magistrate's review of the evidence bearing on the issue of
sufficiency was not comprehensive enough. He was not dealing with the
mere retraction of a confession. He should have considered all the
circumstances surrounding the making of the original confession and its
content, which, on the critical issue as to the applicant's
involvement, contained a significant internal inconsistency as to
whether Ali Shaikh was inside or outside the room at the time of the
alleged conversations. He made no reference to the protestations of
innocence up to the failure of the bail application on l4 September. He
did not consider the evidence from Ali Shaikh's wife and daughter. In
addition to their evidence, there was cogent evidence that, before the
Magistrate, Ali Shaikh felt intimidated, whether by gangsters or the
police. Had he considered all the circumstances of the original
confession and the ambit and character of the retraction, the
magistrate would, in our judgment, have been bound to conclude that no
judge, properly directing himself, could convict on Ali Shaikh's
evidence, because it was worthless.

S11(3) Extradition Act

63. "Accusation"

37. Mr Garlick submitted that since "accusation" referred to the
request for extradition and the request was being made by the Union of
India on behalf of the state of Maharastra and the State was acting
through an independent Public Prosecutor, there was no evidence that
any party who could property be regarded as making the request had
acted in bad faith. We do not consider that the ordinary meaning of the
word "accusation" is a request, notwithstanding that the nexus between
accusation and request may well be obvious. Such a nexus appears from
the terms of s11(3) of the Act because the sub-section refers in turn
to the following:

38. (1) ".... the offence, or each of the offences";

39. (2) the request, namely " .... in respect of which the
applicant's return is sought ..."

40. (3) "the accusation against him".

41. But the words of the sub-section are against the accusation meaning
the request because 3(c) refers to "good faith in the interests of
justice" in relation to the accusation not the request.

42. A request for extradition is not in character an accusation. It is
an exercise of sovereign power pursuant to a treaty in respect of an
alleged offence. Whether or not it could ever be regarded as an
"accusation", for the purposes of an allegation that such an exercise
of power was not in good faith, does not arise in this case. But we are
satisfied that, even if it could be so regarded, that is not the limit
of the meaning of accusation nor the most obvious reflection of what is
referred to in the sub-section. Accusation is broad enough to encompass
the accusation of a witness or witnesses and the offence charged in
consequence.. By making a request for extradition, reliance is placed
upon the evidence of any witness and the offence disclosed thereby. The
protection afforded by the sub-section would be rendered "sterile", as
Mr Nicholls submitted, if the issue of bad faith could be divorced from
the underlying facts supporting the request. Certainly Sedley J in
Murat Calis (Divisional Court, Transcript 19 November 1993) examined
the good faith of the complainant to determine the issue under sll(3).
No one appears to have argued to the contrary. Having heard such
argument we reject it.

64. We turn to our conclusion on s11(3). This court has received
evidence on this issue over and above that which was before the
magistrate. We find the following circumstances bear upon whether the
accusation is made in good faith and in the interests of justice, and
whether it would be unjust or oppressive to return him.

(1) There was no legally admissible material available to the Mumbai
Police Commissioner to provide reasonable grounds for his statements
that witnesses "quite clearly indicated that Nadeem (the applicant)
hired Abu Salem gang's services to eliminate Kumar .... " and "we
have ample evidence to prove Nadeem's involvement ...." This court is
placed on inquiry as to what motive there could have been for such an
unsubstantiated statement to be made at a press conference. Indeed,
even if grounds existed for such a belief, the making of such a
statement would raise questions about its underlying motive.

(2) The assertion of the Mumbai Deputy Chief Minister gives rise to
like concern. .

(3) Having regard to the vital importance to be attached to the
circumstances surrounding the confession made by Ali Shaikh, the
absence of any reference in the requests for his return to the pressure
recorded by the Magistrate on 18th, 20th and 26th September, is
remarkable. This non-disclosure on such a central feature of the case
has not been explained. It is to be inferred that it was deliberate and
calculated to leave those considering the case with the impression that
it was stronger than the true facts merited.

(4) Equally, the failure to disclose Ali Shaikh's retractions until
part way through the committal proceedings causes this court
astonishment. No explanation has been provided. It is to be inferred
that it, too, was deliberate and calculated to leave the impression
that the case against the applicant was stronger than the true facts
merited.

(5) The above circumstances have to be considered in the light of the
further evidence, since the committal, about the obtaining of Ali
Shaikh's confession, his literacy and the genesis of ABB10. In our
judgment a pattern of events emerges, which is consistent with (a) a
pre-conceived desire to blame the applicant when no evidence existed;
and (b) the use of improper pressure to obtain a statement from Ali
Shaikh to make good the allegations. Whereas the evidence of Ali
Shaikh's lawyers may have provided some reassurance about the
propriety of what happened, the evidence of Prison Officer Wankhede and
Advocate Mokashi give added cause for anxiety. Further, we note, so far
as these two witnesses are concerned, that the police plainly
disregarded Mr Garlick's direction that no approach should be made to
them before they gave evidence. We infer that the police have an
improper interest in interfering with the evidence in this case.

(6) The expert evidence points to ABB10 as having been signed by Ali
Shaikh in blank. The language of the document shows that, unless he is
more educated than anyone suggests, it could not be his own confession.
We infer that this document could not have been created without
interference from those responsible for holding Ali Shaikh.

(7) The evidence of Mr Vanjara supports the conclusion that Ali Shaikh
is illiterate. His daughter's evidence is consistent with the
document being the construct of another, placed above his signature
after this had been obtained from him on a blank sheet of paper.

(8) The inclusion of Javed Fawda's name in Ali Shaikh's deposition,
at a late stage and where there are grounds to connect it with unlawful
and unjustified action by the police requiring false justification,
leads us to question the role of the police in relation to the
appearance of Javed Fawda's name.

65. The cumulative effect of all these circumstances causes us to infer
that the accusation of murder and conspiracy made against this
applicant is not made in good faith and in the interests of justice.

66. Having reached this conclusion we are also satisfied that it would
not be fair and would be unjust to return the applicant, because of the
appearance of misbehaviour by the police in pursuing their inquiries
and the significant risk that the activities surrounding that
misbehaviour have so tainted the evidence as to render a fair trial
impossible.

Section 6(1) of the Act

67. In view of our other conclusions in this case, it is unnecessary to
reach any decision on this aspect. It suffices to say that the
background material to which we were referred does not establish that
every Muslim on trial in Mumbai, at the suit of a prosecution
instigated by the Mumbai police, is at risk of being prejudiced by
reason of his religion and we are not satisfied that the bad faith,
which we have found to be present in the accusation, has a religious
basis or motive.

Conclusion

68. We therefore order that a writ of habeas corpus issue to procure
the production before this court of the applicant, Nadeem Akhtar Saifi,
and that he be discharged forthwith in relation to the offences in
respect of which his return is sought by the Union of India.

© 2000 Crown Copyright

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