Weekly Digest: 18 May 2018

The Government of India sought the extradition of the respondent, Mr Chawla. It was submitted on his behalf that the prison conditions in India would violate his rights under Article 3 of the ECHR. An expert gave evidence that there was overcrowding, poor management and staff violence in the prison to which the applicant would be detained. The Government provided an assurance letter guaranteeing that the conditions in the prison would be humane. The District Judge concluded that the assurances that were provided and the lack of an effective system of protection meant that the assurance was insufficient in its current form to ensure that the risk to the applicant’s Article 3 rights were mitigated.

In considering whether the District Judge was entitled to find a real risk of inhuman and degrading treatment contrary to Article 3, the Administrative Court stated that there is a presumption of good faith in extradition requests received from India. As a result of the presumption, the applicant needed to establish on clear and cogent ground that there was a real risk of inhuman and degrading treatment. Even where there is evidence that there is a real risk of impermissible treatment contrary to article 3 of the ECHR the requesting state may show that the requested person will not be exposed to such a risk by providing an assurance that the individual will be held in particular conditions which are compliant with the rights guaranteed by Article 3 of the ECHR.

It was submitted on behalf of the Government that the evidence of the expert could not be relied upon because he had never visited the prison in question. The Administrative Court rejected this characterisation of the expert’s evidence and stated that there was evidence on which the District Judge was entitled to make findings about a real risk of violence and the absence of sufficient medical staff to provide adequate medical assistance. The court agreed with the District Judge’s findings that there was a real risk of inhuman and degrading treatment contrary to Article 3 should the applicant be extradited to India.

The court concluded, however, by stating that it would be possible to meet the real risk of Article 3 treatment by offering a suitable assurance that the respondent would be kept in Article 3 compliant conditions in prison before, during trial and, in the event of conviction and sentence of imprisonment, after trial. Dingemans J stated that such an assurance would need to: address the personal space available to Mr Chawla in Tihar prisons; the toilet facilities available to him; identify the ways in which Mr Chawla would be kept free from the risk of intra-prisoner violence in the High Security wards; and repeat the guarantee of medical treatment for Mr Chawla.

The court therefore stayed the appeal to give the Government the opportunity to provide further assurances.  The CPS was ordered to provide a response within 42 days of the date of the handing down of the judgment.

The claimant sought judicial review of a decision not to charge the interested party, B, with rape. The claimant was a woman with learning difficulties who had regularly been driven to college by B, who was a taxi driver. At some point between 2004 and 2006 the claimant and B had sexual relations. In 2010 B was charged with sexual activity with a person with a mental disorder impeding choice, but at his trial the prosecution offered no evidence. Shortly before the trial, the defence had served on the prosecution a report from a psychologist contending that the claimant had the capacity to choose to engage in sexual activity. While the Crown had expert evidence to contradict that view, the Crown Prosecutor concluded that there was no longer a good prospect of securing a conviction. In 2013, the victim sought a review of the decision to discontinue the prosecution, relying upon the Victim’s Right to Review Scheme. The CPS agreed to conduct a full review. In 2016 the Chief Crown Prosecutor concluded that no prosecution would take place. He concluded that there was sufficient evidence against B and that the public-interest test was satisfied. He also concluded, however that any prosecution would be founded on the same facts as those which formed the basis for the original charges and that it could therefore only go ahead if there were special circumstances to avoid offending the principle against double jeopardy as enunciated in Connelly v DPP [1964] AC 1254. He found that no special circumstances existed because consideration had been given to whether B should have been charged with rape by both the initial reviewing prosecutor and the barrister attending the trial.

The Administrative Court stated that the prosecutor had to be satisfied before reaching the decision not to prosecute that an abuse of process argument by B would invariably succeed. The court found that he had been correct to conclude that a court faced with an abuse of process argument would invariably conclude that prosecuting B would amount to an abuse of process and that proceedings would be stayed. This was not an irrational decision or one that was based upon some other type of fundamental error. Consideration had been given to charging B with rape, but there were evidential difficulties with doing so. The fact that B denied rape would likely make any claim for a stay on grounds of abuse of process stronger, as would the fact that over 8 years had elapsed since the decision was made not to proceed.

Britain’s biggest nuclear waste storage and reprocessing site is facing a potential multimillion-pound fine after an employee was exposed to dangerously high levels of radiation. The nuclear regulator said its investigation had led it to prosecute Cumbria-based Sellafield Ltd, which handles the waste from the UK’s nuclear power stations as well as spent fuel from Japan and the US.

The full story can be read here.

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The full story can be read here.