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INFORMATION FOR BRITISH NATIONALS IMPRISIONED IN

Lead Mission :

British High Commission Consular Section Shantipath Chanakyapuri New Delhi – 110021 Email : [email protected] Tel : 011 24192100 Fax: 011 26116094

Subordinate Missions, BDHC’s: Tourist Assistance Office

British Deputy High Commission 303-304 Casa Del Sol G Block C-32 Naman Chambers Opp Goa Marriott Resort Bandra Kurla Complex Miramar, Panaji - 403001 Bandra East Goa Mumbai : 400051 Tel : 91 832 2461110/246113 Tel No: 91 22 6650 2222/6650 2147/6650 2148 Email: [email protected] Fax No : 91 22 6650 2328 Email: [email protected]

British Deputy High Commission 1A Ho Chi Minh Sarani Kolkata – 700 071 Tel: 91 33 22885172-76 Email: [email protected]

British Deputy High Commission 20 Anderson Road Chennai – 600 006 Tel: 91 44 42192151

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CONTENTS

Page

Acknowledgement and disclaimer 3

1. Introduction 4-5

2. What the Consular Department of the High Commission/Deputy High Commission can/cannot do on Arrest/Detention 6-8

3. Frequently Asked Questions 9-14

4. The Indian Judicial System 15-20

5. The Prison System 21-23

6. Brief note on the Indian Narcotic Act 24-27

7. Information on Prisoners Abroad (Annex I) 28

8. Note on the Prisoner Transfer Agreement (Annex II) 29-32

9. Information about Fair International (Annex III) 33-35

10. Prisoner Mistreatment Allegation Form 36

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ACKNOWLEDGEMENTS

We would like to record our thanks and appreciation to all our Honorary Legal Advisers for their assistance in preparing this document.

IMPORTANT – DISCLAIMER

While every effort is made to ensure that the information in this guide is accurate and up-to- date, the information provided is for guidance only and neither HMG nor any official of the British High Commission can take responsibility for any errors or omissions.

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1. INTRODUCTION

This guide aims to explain the Indian legal and prison system to British nationals who are imprisoned in India.

About the British High Commission/Deputy High Commissions and Tourist Office.

We are impartial and we do not . We are interested in your welfare and aim to ensure that you are treated properly and fairly in accordance with Indian /. We cannot get you better treatment than other prisoners but we will try to ensure that you are treated no less favourably than other prisoners are.

We can answer questions about your welfare and about prison regulations but not questions about legal matters which must be directed to your or to the . We cannot appoint a lawyer for you. However, we have a list of English speaking lawyers practicing in India and for convenience that list is attached at Annex A. Please note the disclaimer on the list. You are not obliged to choose one of these lawyers. It may be worth discussing your options with other prisoners and meeting the lawyer before making a final decision.

Who are my consular representatives in India?

The person with responsibility for Consular matters in India is our Consul, Ms Michaela Williamson, based in Delhi.

If I need to contact someone who do I make contact with?

This will depend where in India you are, Consular officers are to be found at each of the missions mentioned on the front page.

In Northern India your case will be handled by the “Delhi Team” comprising:-

Mrs Rhona Royle (Head of Consular Operations, Northern India)

Mr Jah Dev Dorairaj (Consular Officer)

Mrs Glenna Gomes (Consular Officer)

Mrs Rebecca Samuels (Consular Officer)

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In Western India your case will be handled by the “Mumbai Team” comprising:-

Ms Daisy Chinoy (Head of Consular Operations, Western India)

Mrs Navaz Antia (Consular Officer)

Mr Zubin Luth (Consular Officer)

In Southern India your case will be dealt with by the “Chennai Team” comprising:-

Mrs Petula James (Head of Consular Operations, Southern India)

Ms Sharon D’Sylva (Consular Officer)

In Eastern India your case will be dealt with by the “Kolkata Team” comprising:-

Mrs Rhona Royle (Head of Consular Operations, Eastern India) based in Delhi.

Mr Manaspratim Basu (Consular Officer)

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2. WHAT WE CAN/CANNOT DO ON ARREST/DETENTION AND WHAT YOU SHOULD DO FOR YOURSELF

British consular officers stand ready to do what they possibly can to help during what would be a considerably stressful time. The /detaining authority may permit you to make one phone call after they have arrested you. It would be helpful if you use that call to contact us so we can inform your family members in the UK of your arrest/detention (if you want us to do so), rather than leaving it to your family members outside India to establish contact with us, which may cause some delay in us assisting you.

What we can do for you-

 We will try to contact you as soon as we can after being notified of your arrest by the local authorities. Please note whether we are able to visit you/speak to you on the telephone immediately varies from area to area. It is sometimes possible to do so whilst you are at a police station, if we learn of your arrest after you have been sent to a prison we usually require prior written permission from the Ministry of External Affairs. It can sometimes take two to three weeks to obtain this permission however, be assured that (where needed) we will apply at the earliest opportunity.

 We can give you the names and contact details of suitably qualified English speaking local lawyers and the legal system. This includes details of any legal aid available and prosecution, remand, bail and appeal procedures. This is to help you to understand what is happening and to be aware of your rights.

 We can help you to find an interpreter, if you need one, to help to ensure that you understand the charges against you and can understand what is being said at Court hearings.

 We can explain about the prison system, visiting arrangements, telephone calls and mail.

 We can ensure that any medical problem you might have is brought to the attention of the prison doctor.

 We can make appropriate representations to the local authorities if you are not treated in accordance with international standards. This may include where your is unreasonably delayed or is not conducted according to due process.

If you wish, we can also:

 Pass on a message to your family, but consular confidentiality means that we will not (not) discuss your case with others unless you give us your permission to do so. To save costs, families can also find out what is happening to you and how to send money for prison comforts by contacting London. They should phone the India desk, Consular

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Directorate at the Foreign and Commonwealth Office on tel. (0044) 0207 008 0140, Fax (0044) 0207 008 0161.

 Take up any justified and serious complaint about ill treatment or alleged discrimination by the police or prison authorities and will inform your lawyer to take legal steps to address the complaints.

 Put you in touch with a prisoner’ welfare charity called Prisoners Abroad.

In the longer term, we will continue to monitor your welfare. This will include:

 Visiting you every 4 months or more often if necessary.

 Helping you to buy prison comforts with money forwarded by your family, friends or Prisoners Abroad (note restrictions in Chapter 5).

 Taking up any appropriate complaints or other serious difficulties with the local prison authorities on your behalf. If necessary, we may visit you to help resolve these problems.

 Depositing money from your family and if they come to visit, giving them details on how to arrange for them to visit you.

 Explaining how to apply to transfer to a prison in the UK, the UK/India Prisoner Transfer Agreement (PTA) came into force on the 21st November 2005.

What we cannot do for you

Our role is essentially to look after your welfare while you are detained. We cannot

 Get you out of prison,  Get you bail,  Pay your fines,  Stand as or find you a surety,  Give or pay for legal advice or appoint a lawyer,  Start court proceedings on your behalf,  Interfere in local judicial procedures to get you out of prison,  Secure an early trial,  Investigate a crime,  Forward parcels to you on behalf of friends or family. The system has been abused in the past when drugs have been sent to prison,  Pay for prison comforts,  Get better treatment for you than is provided for the local or other nationals

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What you can do for yourself

Prison life can be difficult, but there are things that you can do to make it easier:

 Learn the language, Prison guards may be more helpful if you make an effort to learn the language. If you can’t get the books you need from the prison, contact the Consul. Prisoners Abroad may also be able to help.

 Find work within the prison. Most people find that work helps to pass the time more quickly. Note: You may not be able to work while on remand.

 Keep in touch with friends and family. Prisoners Abroad may be able to help find you a pen pal. Make sure you know how many letters you are allowed to send. It is important to get your affairs in order before a trial.

 Try to keep healthy in prison. We can give you information on how to do this. If you are ill, or have ongoing medical problems, contact the prison doctor in the first instance. If you think you are not getting adequate treatment, contact the Consul or ask someone to contact the Consul for you. Prisoners Abroad may also be able to send you vitamins (banned in the majority of prisons in India but they may send the money for you to purchase them) and help with some medical bills.

 If you are HIV positive or have AIDS, you should tell us. We can give you the guidelines used in British prisons. You should remember that we are not medical experts and cannot ensure that these guidelines are used overseas. But we can ensure that you get medical treatment.

 Many British nationals are detained abroad for drug offences (over half the total). The British Government is determined to stamp out the problems of drugs and co-operate with other Governments to stop traffickers and smugglers. If you are arrested for a drug offence, it is likely that the local police will contact the police in the UK.

 The local police may contact the police in the UK if you are arrested for a violent or sexual offence.

Advice for friends and relatives – money transfers

The FCO can help your friends and family to transfer money to you overseas. Please note that this may take 2-3 weeks.

 Relatives in the United Kingdom can send postal orders, bankers draft and building society cheques (made payable to the Foreign and Commonwealth Office) to: Consular Directorate, Foreign and Commonwealth Office, Old Admiralty Building, London, SW1A 2PA. Personal cheques cannot be accepted.

 When sending money transfers, relatives must include your full name, the address where you are being held and the name of the sender.

 When the FCO advise the High Commission that money has been deposited, we will hold it until we receive your requests. We can deposit money in your prison account during our visits (within the maximum deposit amount set by the prison authorities), send the money to your prison account by money order (up to a maximum of Rs 5000), use it to buy the shopping you have requested or to make payments direct to your lawyer or Doctor.

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3. FREQUENTLY ASKED QUESTIONS

 Who can detain you?

India has various policing agencies. Apart from the local police, other investigating agencies include Customs and Excise, Central Bureau of Investigation (CBI), The Department of Revenue Intelligence, The Narcotic Control Bureau, The A.I.U (Customs) and The Narcotic Cell Customs (P). Officers of these agencies have the power to detain or arrest.

 Who will know that I have been detained?

When a British Citizen is arrested or detained in India, the Indian authorities are obliged to inform the British High Commission in Delhi. However, this is done through the Indian Ministry of External Affairs and it takes time.

 How can I contact my family or friends?

In India you do not have the right to make a telephone call when you are arrested. However, you are allowed to write to us or to your family. Remember that all mail into or out of a prison is censored. If you forward messages to us for onward transmission, we will try to ensure that they reach the intended person.

If you wish to make a telephone call yourself, you must apply to the Judge trying your case for permission. normally grant such permission and may also specify the duration of the call, but remember that the final decision rests with them.

 What will my family be told?

For reasons of confidentiality we will not tell anyone that you have been detained, or what charges are levelled against you without your permission.

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 What will we do?

As soon as we have been notified of your arrest or detention by any source, we will visit you. However, we will need to apply for permission to do so through the Indian Ministry of External Affairs, we do so as soon as we become aware that you have been arrested but obtaining the permission can take several weeks.

We will offer to contact your family or next of kin to inform them of the situation. We can also pass on any messages from you.

 Where will I be tried?

You will be produced before the court in the area in which the offence you have been charged with occurred. Police stations within a defined geographical area have designated . However, certain offences such as possession of narcotic substances could be heard at specially designated courts set up in large towns/cities.

 Is the Indian Judicial System the same as in the UK?

The Indian Judicial System follows the British model but it is not the same. Please see detailed notes in Chapter 4.

 What happens when I am arrested?

When you are arrested, you must be produced before a judicial magistrate or a Judge within 24 hours of your formal detention. The Judge may remand you into police or judicial custody. This will normally happen when the Police Authorities argue that they need time for further investigations. Ordinarily the period of each custody order is 15 days. You will have to be produced before the Judge on each date set by him. (Please see chapter 4)

 How long can I be remanded into custody?

The Prosecution has up to 60 days for investigation of normal offences and 90 days for investigations of serious offences including possession of narcotic substances before charge sheets are actually filed in the court. However, the period can be extended with judicial authority (Please see Chapter 4).

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Trial and Conviction

 When will my trial begin and how long will it last?

It usually takes a year for the charge sheet to be filed; the trial usually starts soon afterwards. Trials do not have a time limit. Disposal of a case for a criminal offence can take anything from months to years for completion. You may be detained for the entire period if you are charged with a non-bailable offence such as, murder or possession of narcotics or psychotropic substances.

Once convicted by a magistrate’s court or a Judge in a Special court, you have the right (usually within 60 days) to appeal to the High Court of each State. The High Court is a court of appeal. During appeal hearings in the High Court, you will not normally be able to be present. The arguments will be between your lawyer and the (for the State/Central Government) before a High Court Judge.

The highest court of appeal in India is the Supreme Court, situated in Delhi. Appeals against High Court decisions can be made to this court.

 Acquittal After Trial

If you are found not guilty and acquitted of all offences, the prosecution can appeal against the judgement through the High Court. The time in which an appeal can be lodged varies according to the offence but it can take several months before the appeal is heard. During this time, the authorities will normally retain your passport and you will be unable to leave India. Your lawyer will need to follow the appeal to ensure that it falls within the permitted time period.

 Legal Representation

You can employ a lawyer to represent you at any time after your arrest. We suggest that you seek legal advice before talking at length to the authorities. Think carefully before signing any document especially if it is not in English. Your statements can be used against you in your trial.

Lawyers may appoint assistants or colleagues to handle your case from hearing to hearing. You should discuss with them at the start what you expect and how they will deal with your case. Unlike the UK, they are unlikely to pay you frequent visits in prison. You will normally need to brief your lawyer in court about your next court date and to keep them focussed on developments in your case.

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 Does legal aid exist in India?

Legal aid exists but the commitment of the lawyers is likely to be less than if appointed privately. In some areas, the lawyers may not be of a high calibre. The judge will assign lawyers enrolled on the legal aid panel of the court only if you cannot afford to engage your own lawyer.

 What do I need to do when appointing a lawyer/advocate (both terms are used synonymously in India)?

You are free to appoint a lawyer of your own choice but do so carefully. A representative list is attached at Annex II. Please note the disclaimer.

If a lawyer is willing to represent you, he will ask you to sign a Vakalatnama (power of attorney in UK). The Vakalatnama is then produced in the court and filed with your case papers and this lawyer will remain as your advocate on record, unless his services are terminated by you.

 Can I change my lawyer?

Yes you can. To do so you or your new lawyer has to obtain a no “objection certificate” from your old lawyer for the record. (Lawyers normally give their consent, but you may not get a refund for fees already paid).

If your old lawyer refuses to give you a “no objection certificate” for any reason, you can make an application to the court in writing stating that you wish to change your lawyer. This is normally granted.

 What is a charge sheet?

A charge sheet is a formal document filed in the court at the start of your trial. It will contain the following documents:

 The (FIR) or the complaint from the detaining authority including the sections of the Indian Penal Code under which you are charged;

 Statements from independent witnesses (referred to as the Panchnama);

 A record of search and seizure ;

 Chemical analyser’s report or the forensic report;

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 List of witnesses whom the prosecution desires to examine in support or their case along with their statements, if recorded.

 What is framing of charges?

The prosecution formally submits a draft charge against you. If required the Judge may then make amendments to it after hearing from both the prosecution and defence on charge. The Judge then frames the charge against you, citing the sections of the Indian Penal Code or other Acts under which you are charged. This will be read to you after which the judge will ask whether you wish to plead guilty or not guilty. If not guilty, then you will be tried.

Once the charges are framed the Judge will direct the prosecution to issue summons to the witnesses. [In practice the trial actually starts from this point]

 Can an accused person be examined by the court?

Yes. The Judge can at any stage of the trial put such question he considers relevant to you. Section 313 of the Cr.P.C. covers this point.

Quote: “ 1. In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the against him, the Court –

(a) may at any stage, without previously warning the accused put such questions to him as the court considers necessary.

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

1. No oath shall be administered to the accused when he is examined under sub-section (1)

2. The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

3. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry or trial for, any other offence which such answers may tend to show he has committed.” Unquote

You can also be treated as a competent witness in your own defence under oath. For this, you should write (a hand-written letter) to the Judge. [This is risky because it exposes you to cross-examination by the prosecution]

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 Preventive Detention

The State or the Central Government has powers to apply preventive detention. This is covered by the following Acts:- The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (abbreviated to COFEPOSA) and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (abbreviated to PITNDPS). Once the provisions of any of these Acts are applied, the local authorities can hold you for up to two years without trial. It also gives the investigating authorities that much time to file a charge sheet in the court. Once this order is in place, bail is often denied.

The High Court or the has the authority to review detention under these Acts.

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4. THE INDIAN JUDICIAL SYSTEM

The Indian legal system largely follows the British model. You may experience lengthy delays in being brought to trial as the number of cases allotted to any one Court can exceed the capacity of the court set up to handle them. However, you may be able to apply for bail pending trial, provided that you are not accused of smuggling, terrorist activities or possession of narcotics.

The Judge, depending on the crime, can set bail terms but they are usually hesitant to grant bail to foreign nationals because of the risk that they will abscond. If granted, bail usually involves a cash surety. However, the court may not accept personal sureties. Bail may also include conditions such as periodic reporting to the local police and almost certainly, the retention of your passport.

Three principal Acts govern the relating to trial of offences:

(I) The Code 1973, (abbreviated to Cr.PC) which came into effect on 1 April 1974. This code is a comprehensive set of rules that defines the powers of the police and the and lays down the procedures to be followed in the conduct of an inquiry/trial;

(II) The Indian Penal Code 1860 which lists offences and the corresponding punishment that a Judge can award; and

(III) The Indian Evidence Act, 1872 which details the rules of evidence which are applicable in the conduct of trials.

In India the judiciary is independent of the .

The Criminal Procedure Code 1973 classifies offences as “Cognisable Offences” and/or “Non Cognisable Offences”. An exhaustive classification of offences is listed in the First Schedule of this Act. The important difference between these 2 types of offences is that the police can arrest/detain anyone suspected of a cognisable offence without a warrant. A cognisable offence is generally a serious crime for example murders possession of illegal arms and ammunition and includes possession of narcotics drugs and psychotropic substances. Non cognisable offences are of a less serious nature and attract lesser punishment for the offence.

 COURTS

You will first be produced before a Judicial Magistrate’s court (in districts) or the Metropolitan Magistrate’s Court (in cities). Judicial have the power to hear cases and convict, acquit or transfer a case to another court. If convicted you have the right of appeal to the High Court. If acquitted the prosecution has an equal right of appeal. Each

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S:\Consular\GOV.UK\Prisoners Pack - India.docx UNCLASSIFIED state in India has a designated court of appeal, which is called the High Court. The High Court is set up in the principal city of each State in the Indian Union.

The final court of appeal is the Supreme Court of India. The Supreme Court is in Delhi. Judgements of the High Court of a State and the Supreme Court are considered as Judgements and often cited by the prosecution and defence in their arguments advanced before Judges.

 ARREST/DETENTION

Procedures relating to trial of offences committed in India are governed by the Code of Criminal Procedure 1973 as enacted by the Indian Parliament. It came into force on 1 April 1974.

While this code extends to whole of India with certain exceptions, it has incorporated certain amendments added by The State .

Definitions: [as defined in the Cr.P.C] These are terms that you will frequently come across during the court proceedings:

(a) “bailable offence” means an offence which is bailable as laid down in the “First Schedule”, or which is bailable by any other law for the time being in force; “non bailable offence” means any other offence where is bail is generally not granted;

(b) “charge” includes any head of charge when the charge contains more heads than one;

(c) “cognisable offence” means an offence for which, and “cognizable case” means a case in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without a warrant;

(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report.

[Note: - A report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant].

(e) "High Court" means –

(i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the of the High Court for a State has been extended by law, that High Court;

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(iii) in relation to any other Union territory, the highest court of criminal appeal for that territory other than the Supreme Court of India;

(f)“India” means the territories to which this Code extends

(g)“inquiry” means every inquiry other than a trial, conducted under this Code by a Magistrate or a Court;

(h)”investigation” includes all the proceedings under this Code for collection of evidence conducted by a police officer or by any other person (other than a Magistrate) who is authorised by a Magistrate in this behalf. (unquote)

Note: The First Schedule is not attached but it is a comprehensive table of offences, which are classified as Cognizable and Non Cognisable as explained previously. Possession of Narcotic substances under section 37 of the Narcotic Drugs and Pyschotropic Substances Act (abbreviated to NDPS Act) is deemed to be cognizable and non- bailable. The provisions of Section 47 of the NDPS Act 1985 override the provisions of Section 437 of the Code of Criminal Procedure, 1973 pertaining to grant of bail. The provisions of Section 37 of the NDPS Act are more stringent on bail.

 PROCEDURAL REQUIRMENTS FOR DETENTION

In the case of “D K Basu – vs- State of West Bengal (1997) “ the Supreme Court of India laid down the following requirements, which are to be strictly followed in all cases of arrest or detention by the police and all Governmental authorities with the power to detain and interrogate in connection with the investigation of offences:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-ups, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular

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place, unless the attesting witness of the memo of arrest is himself such friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisations in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest for major and minor injuries, if any present on his/her body, must be recorded at the time. The "Inspection Memo” must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State of Union Territory concerned. Director, Health Services, should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest referred to above should be sent to the Local Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) The police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

The Supreme Court has held further that failure to comply with the requirements above shall render the official concerned liable for departmental action and render him liable to be punished for contempt of court. Proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

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The Supreme Court of India further directed that these requirements be forwarded to the Director General of Police and the Home Secretary of every State, who were to circulate them to every police station under their charge, with an instruction that they be displayed in the police station where arrestees can see them.

In view of the directive of the Supreme Court of India any person, including the Consulate of any Foreign Country, who is aware of the violation of these conditions, can lodge a complaint to the Chief of the concerned High Court.

Under section 41 of the Cr.PC the police may arrest without a warrant any person suspected of an offence classified as a Cognizable Offence.

 Under section 57 of the Cr.P.C 1973 and Article 22 of the of India

 No police officer can arrest and detain you in custody without warrant for a period more than 24 hours.

 If detained, you are legally entitled to be produced before the nearest Magistrate within 24 hours from the time of detention, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.

 If arrested, you have a right to be informed of the grounds of arrest immediately, to consult, and to be defended by, a legal practitioner of your choice.

If arrested, under section 51 of the Cr.PC the police or other officer making the arrest is bound to search you immediately and to place in safe custody all articles, other than the clothes you are wearing. A receipt showing the articles taken into safe custody must be issued.

But in the case of a female, the search must be made by another female with due regard to decency.

In practice a police officer or any other officer who has been given the relevant powers under the Cr. P.C. or any of the other acts such as the Narcotic and Customs Acts will be required to produce the case diary or the First Information Report (abbreviated to FIR) or a copy of the remand application giving details of the offence you are alleged to have committed along with a copy of the Panchnama and your statement before the Magistrate or Judge when you are produced before him. If the police plead for more time for their investigation, the Magistrate, after examining the papers and if satisfied that an offence has been committed, will remand you into police custody.

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 Under section 167 of the Cr.P.C. you cannot be remanded into police custody for more than15 days for the purpose of investigation. If the investigation is not completed within 15 days the prosecution may ask for custody for a further period. It is entirely left to the discretion of the Judge trying the case to grant further police custody or to remand you into judicial custody.

But you cannot be detained in custody for investigation purposes for more than:

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or for imprisonment for a term of not less than ten years.

(ii) sixty days, where the investigation relates to other offences,

(iii) one hundred and eighty days in NDPS cases (proviso see Sec 36-A 4) where time to file the charge sheet may extend beyond 180 days for the reasons stated therein.

on expiry of the above periods you are legally entitled to be released on bail, if the investigation is not completed or no Charge Sheet (Complaint) has been filed in Court.

 Confession

Under section 164 of the Cr.P.C. if arrested, you have a right to make a confession or statement before any metropolitan or Judicial Magistrate.

Although all confessions/statements made by a person who is arrested to a police officer are generally considered inadmissible under sec 25 of the Indian Evidence Act. Statements/confessions recorded under sec 164 Cr PC are exceptions, as they are recorded by Magistrates after giving the person so arrested time to think about his decision, and without the presence of any police officers.

BUT

Statements or confessions made to a Customs Officer or an officer of the Narcotic Control Bureau are admissible in evidence as the officers of this cadre are not considered police officers under the Indian Evidence Act. The confession/statement is therefore held as having evidentiary value by a Judge – provided that the statement or confession is corroborated by independent evidence on record.

 Confession of a co-accused before a court

Confession of a co-accused before a Judge are admissible in evidence and may be taken into consideration by a Judge for convicting you, provided that there is sufficient corroborative evidence on record to convict the accused person.

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5. THE PRISON SYSTEM

The prison system and regime vary from State to State, reflecting the socio- economic and cultural diversity. All prisons have a comprehensive written prison manual. This manual covers governance and treatment of prisoners including rations for each prisoner and disciplinary actions that may be taken if prisoners step out of line.

Each state has one or more central prisons where you can be held in judicial custody. A Prison Superintendent governs each prison and he has administrative and disciplinary powers within his prison. The following guidance may not apply to your prison. If in doubt, check with the superintendent.

 Who can visit me?

Your family and friends can visit you, but an application will have to be made to the respective prison superintendent. Most prisons have designated visiting hours and visitors areas. However, you are unlikely to be able to meet visitors in private. Separate visiting areas are usually available for you to meet your lawyer and Consular officials. If requested, the Superintendent may give permission for you to meet your relatives from overseas in the lawyer/consular visiting area.

A prison guard is often present during family and consular visits.

 What can a visitor bring?

Prisoners can receive presents from visitors only with the prior permission of the court or the prison superintendent. All items will be checked before being handed to you.

Items in glass/tin containers, knives, blades, shaving equipment and medicines of any description (some prisons do not allow tobacco and matches) are not normally permitted. Medicines are allowed only if prescribed by the prison medical doctor.

 Can I receive medical and dental treatment?

Yes. Many central prisons have small hospitals attached where there is a resident medical officer (MO). You may need to make an appointment with him. Smaller prisons may not have a resident MO but each state has a MO with regional responsibility.

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If you need medical facilities, which are not available within the prison hospital, the MO can refer you to a government hospital outside the prison. Private treatment normally requires the court’s permission and all costs including the cost of a police escort will have to be met by you.

 Food and Diet

Most prisons only serve vegetarian food. Some include eggs and or milk. As mentioned in earlier chapters, consular staff can bring permitted foods, paid for from your deposits. Check with the superintendent what food is permitted and in what quantity before making requests.

 Who can I ask for help in prison?

Social workers who come to prison are generally more focussed on the needs of Indian nationals but in Central Jails, Non-Governmental Organisations (NGOs) may offer assistance. You can ask senior jail officials for help and of course, you can contactus, either by letter or email or through an NGO. We cannot override prison rules but we can raise medical and welfare issues.

 Can I work in prison?

If you are on remand/under trial you are not required to work. However, convicted prisoners are often required to work for which daily wages are paid, within the prison rules. The wages are likely to be minimal.

Most Central prisons have workshops in carpentry, cooking and weaving and prisons with larger areas may have farming.

We suggest that if work is available, you give it some consideration as it is a means of keeping yourself mentally and physically fit and you may be able to use your earnings for additional prison comforts from the prison shop.

 Mail

You can send and receive mail in prison, but all mail into and out of prison will be censored, hence there will be delays.

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 Can I receive parcels?

You can receive parcels with the permission of the prison superintendent or an officer so designated by him. However all parcels will be examined and items which are not permitted will be confiscated.

You are allowed reading material such as newspapers, magazines and books, provided that they do not contain any pornographic material – or what the prison superintendent deems pornographic.

Parcels sent from outside India are also subject to customs check. You may expect delays in receiving parcels through normal postal channels.

 Money

You may earn some money by working in prison, but this is unlikely to be enough for your needs. Please refer to chapter 2 for advice on what the Consul can do as this explains how friends and family can transfer funds to you.

Prison authorities have administrative control over the money in your prison account and it may be released in controlled amounts as specified in the prison manual.

 Can I be transferred to another prison?

You can be transferred to any prison within the State’s jurisdiction but you cannot normally be transferred to a prison outside the State (some exceptions exist such as for those detained under the National Security Act).

 Can I have my own cell?

Overcrowding, as in other countries, is also a problem in Indian prisons. It is unlikely that you will be able to have your own cell. However you may be held in a single cell if the authorities consider that your life may be in danger or if you are charged under the National Security Act.

 Parole and Early Release (see also acquittal in chapter 3)

Indian law makes provisions for early release for good behaviour, but these do not apply if you are charged with possession of narcotic substances.

Parole is not normally considered for foreigners.

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6. A BRIEF NOTE ON THE NARCOTICS AND PSYCHOTROPIC SUBSTANCES ACT (NDPS ACT 1985)

Note: This is not intended to take the place of sound legal advice but covers some important points of the Act, which you may find useful.

 The Act covers the whole of India.

 The Act prohibits any person from cultivating, producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, Interstate importing/exporting, International importing/exporting or transhipment or any narcotic drug or psychotropic substances covered by the Act.

Some exceptions are made such as where there is a medical or scientific use but permits/licences/authorisation are required.

 Sections 42 and 43 of the Act give Police and other officers (described in Chapter 3) wide powers of entry, search and seizure. In short, the officers empowered under the Act can arrest/detain/search anyone including personal belongings and other goods, anywhere if they suspect possession of drugs. They can also detain companions, even if they do not have drugs on them.

 Offences and penalties

 Sections 15 to 18 cover contravention of licences or permits granted in cultivation, production and distribution of poppy straw, opium, coca plant and coca leaves.

 Section 20 covers cultivation/production, manufacture and possession of Cannabis. **

 Section 21 covers manufactured drugs such as heroin and mandrax.

 Section 22 covers psychotropic substances.

 Section 23 covers illegal import /export/transhipment of narcotic drugs and psychotropic substances.

 Section 24 covers trade in illegal drugs and psychotropic substances.

 Section 25 covers punishment for allowing premises etc. to be used for commission of an offence under this Act.

 Section 27A covers financing of illicit traffic and harbouring offenders.

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The Punishment prescribed under the sections mentioned above is rigorous imprisonment for a period not less than ten years but this may be extended to twenty years. A fine is also likely to be levied of not less than one lakh rupees but may be as much as two lakh Rupees or more if the court decides (if more, the reason must be recorded in the judgement.

 Section 27 covers punishment for the illegal possession of a small quantity of narcotic/substance for personal consumption as follows:–

“Whoever, in contravention of any provision of any provisions of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance shall notwithstanding anything contained in the Act, be punishable, --

(a) where the narcotic or psychotropic substance possessed or consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the official Gazette, with imprisonment for a term which may extend to one year or with fine or with both, and

(b) where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under Clause (a), with imprisonment for a term which may extend to six months or with fine or both.

Explanation –

(1) For the purposes of this section “small quantity” means the quantity specified by the Central Government by notification in the official Gazette. Eg. A small quantity of cocaine is 2gms, Heroin 5gms and Cannabis (Charas) 25 gms.)

(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for personal consumption falls to that person.

 Criminal Conspiracy

Attempts to commit any offence punishable under the Act, to cause such an offence to be committed and as such to attempt to do anything towards committing the offence shall be punishable with the punishment provided for the offence.

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Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Act, shall, whether such offence be or be not committed of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with punishment provided for the offence.

A person who abets or is a party to a criminal conspiracy to commit, an offence within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which: -

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all legal conditions required to constitute it such an offence the same as analogous to the legal conditions required to constitute it an offence punishable under this Act, if committed within India.

These are catch all legal phrases, which are often used by the prosecution, and policing authorities to arrest/detain a person.

 Previous Record

If any person who has been convicted of contravention of Narcotic or Psychotropic Substances in India (or a similar law outside India) is subsequently convicted again, under the present NDPS Act they will be liable for punishment with rigorous imprisonment for a period not less than fifteen years. This can be extended to thirty years. A fine is also likely to be imposed of not less than one lakh fifty thousand Rupees but which may be increased to three lakh Rupees. Note: A death sentence may be imposed if the quantity of drugs/substances involved is substantial.

 Remission of sentence

The Act does not provide for the suspension, remission or commutation of the minimum sentences prescribed.

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 Bail

Notwithstanding anything contained in the Code of Criminal Procedure 1973:-

(a) every offence punishable under this Act shall be cognisable;

(b) no person accused of an offence punishable by imprisonment of five years or more under this Act will be released on bail on his own bond unless :-

 the Public prosecutor has been given an opportunity to oppose the application for such release and

 if the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that the alleged offender is not guilty and is unlikely to offend while of bail.

The limitations on granting bail specified in above are in addition to the limitations under the Cr.P.C or any other law in force at the time bail is considered. Foreigners are unlikely to get bail as the Public Prosecutor will always oppose it on the grounds that the accused may flee.

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ANNEX I. INFORMATION ABOUT PRISONERS ABROAD

Prisoners Abroad is a UK charity partly funded by the FCO, which provides information, advice and support for prisoners and their families. They can provide information, limited financial assistance in certain situations, vitamins, a regular newsletter and support for families. Prisoners Abroad are working collaboratively with the FCO to deliver services to British nationals held in prisons overseas. They can keep in touch with you and your family throughout your time in prison and help you on release. We strongly advise you to contact them and authorise us to share information about your case with them.

Prisoners Abroad 89-93 Fonthill Road

Finsbury Park

London N4 3JH

Telephone : + 44 (20) 7561 6820

Fax : + 44 (20) 7561 6821

E-mail : [email protected]

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ANNEX II

UK/INDIA PRISONER TRANSFER AGREEMENT

This document/leaflet outlines how British nationals sentenced to a term of imprisonment in India may be able to transfer home to serve the rest of their sentence in a prison in the United Kingdom. It is intended to be a brief introduction. It is not a statement of your legal rights.

The general information set out in this document may be subject to change. If you have any questions about how the Prisoner Transfer Agreement specifically affects you, please contact the Consul or Vice Consul in your Consular District. Please note that the Consulate cannot provide you with legal advice. If you have any questions about your legal rights under the Agreement, you will need to consult an independent legal adviser. The Consulate would be happy to provide you with a list of local lawyers upon request.

The UK/India Prisoner Transfer Agreement (PTA) was ratified in London on 21 November 2005. This means that the Agreement has now come into force.

To be eligible under the terms of the PTA, each of the following conditions must be satisfied:

 The sentenced person is a UK national;

 The death penalty has not been imposed on the sentenced person;

 The is final in India (in other words, no inquiry, trial or other proceeding is pending against the sentenced person in India. This includes any outstanding appeals filed by the sentenced person);

 At the time of the receipt of transfer, the sentenced person still has at least six months of the sentence to serve or is undergoing a sentence of life imprisonment. However, in exceptional circumstances, normally involving a seriously ill prisoner or close family member, both India and UK may agree to the transfer even if the remaining period to be served is less than 6 months;

 The acts or omissions (offences) for which that person was sentenced in India are those which are punishable as a crime in the UK, or would constitute a criminal offence if committed on its territory;

 The sentenced person has not been convicted for an offence under law;

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 Transfer of custody of the sentenced person to the UK is not prejudicial to the sovereignty, security or any other interest of India;

 Consent to the transfer has been given by the sentenced person or, where in view of his/her age or physical or mental condition either India or UK considers it necessary, by any other person entitled to act on his/her behalf in accordance with Indian law; and  Both India and the UK agree to the transfer.

Release in the UK following transfer

The United Kingdom will continue to enforce the sentence imposed by the Indian courts, providing the sentence does not exceed the maximum sentence available under UK law for the same offence. If the sentence imposed in India does exceed the maximum UK sentence, then the Indian sentence will be adapted to the maximum provided under UK law for the particular offence. The UK authorities have no power to reduce or otherwise adapt sentences that do not exceed the maximum sentence available in the UK for the same offence. On return to the UK, Indian release arrangements will cease to apply. UK early release arrangements will apply instead, in relation to the balance of the sentence remaining at the date of transfer (they cannot apply to that part of the sentence served in India). The balance of the sentence is calculated by deducting from the total number of days in the sentence, the time served in India(including time spent in pre-trial detention, if this is credited by the Indian authorities), and remission or credits earned up to the date of transfer. The release arrangements in England and Wales are as follows:

Prisoners who committed their offence(s) before 4 April 2005 (i) Sentence (i.e. that imposed in India) is for less than 4 years

In relation to prisoners serving a sentence of less than 4 years, upon transfer to the UK they will be conditionally released once they have served one half of the balance of the sentence remaining at the date of transfer to the UK. They will be released on licence and will remain under the supervision of the Probation Service until they have served three quarters of the balance of the sentence. They may be returned to custody should they breach the conditions of their licence or commit a further offence before the end of the sentence.

ii) Sentence (i.e. that imposed in India) is for4 years or more

In relation to prisoners serving a sentence of 4 years or more, upon transfer to the UK they will be conditionally released once they have served two-thirds of the balance of the sentence remaining at the date of transfer. They will be released on licence and will be supervised by the Probation Service until three-quarters of the balance has been completed. They may be returned to custody should they breach the conditions of their licence or commit a further offence before the end of the sentence.

Prisoners serving a sentence of 4 years or more are eligible for consideration for release on parole licence once they have served one half of the sentence. A prisoner serving a sentence of 10 years will be eligible for consideration for release on parole after serving 5 years. This will include the time served in India. Parole is discretionary and is a matter for the Parole Board. There is therefore no guarantee that parole will be granted.

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(iii) Sentence of Life imprisonment

Prisoners serving sentences of life imprisonment will have a tariff imposed. A tariff is the minimum period a prisoner must serve for the purposes of retribution and deterrence. The tariff will be set by the High Court following transfer. Only when the tariff period has been completed can a life sentence prisoner be considered for release on life licence. Consideration for release on life licence is a matter for the Parole Board. There is therefore no guarantee that release on licence will be approved. A life sentence prisoner may be detained for the whole of his or her life. If released from custody, a life sentence prisoner is subject to a life licence and may be recalled to custody at any time should s/he breach the conditions of his/her licence or commit a further offence.

Prisoners who committed their offence(s) on or after 4 April 2005

Prisoners who have committed their offence on or after 4 April 2005 will be automatically released on licence once they have served one half of the balance of the sentence remaining at the date of transfer. They will then be under the supervision of the Probation Service until they have completed the whole of the sentence. They will be at risk of being returned to custody to complete the sentence should they breach the conditions of the licence or commit a further offence before the end of the sentence.

Release arrangements in Scotland and Northern Ireland differ from those of England and Wales. Details of these can be provided on request.

Frequently asked questions

 When can I apply for transfer under the PTA? You may apply now.

 Am I eligible to apply for transfer under the PTA? You are if you have been sentenced and all avenues of appeal have been exhausted. You must also normally have at least 6 months of your sentence left to serve.

 I have decided not to appeal against my sentence - can I still apply for transfer? Yes, you can if you have decided not to appeal. You can immediately lodge an application since there will be no further court proceedings surrounding that case.

 I have an outstanding appeal in the courts. When can I apply for transfer? When the appeal has been heard, and assuming that you do not wish to make any further appeals (if available).

 Would you advise me not to appeal against my sentence to speed up my transfer under the PTA? The High Commission are unable to advise you on what is a legal matter. You would need to consult your lawyer on that.

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 How do I apply? All those eligible will receive an application form. Once this has been completed you should send it to the Consul/Vice Consul in your Consular district who will forward it to the Ministry of Home Affairs. It is also possible to submit your form via your Prison Superintendent, but we recommend that you inform consular staff if you do this.

 Who will pay for the transfer? Most of the costs related to your transfer will be the responsibility of the UK and Indian authorities. However, before your transfer can take place you will be required either to pay the cost of your own airfare or to give an undertaking to repay the money as soon as possible after arrival in the UK. If you choose the second option your passport will be retained until repayment has been made.

 How long will it take for my application to be processed? This is the first PTA the Indian Government has signed. At this stage impossible to say. We will encourage the Indian authorities to deal quickly with applications.

 Is there any guarantee that the Indian and UK Authorities will accept my application for transfer? No there is not. Both Authorities need to agree to your application. All applications will be dealt with on a case-by-case basis.

 Can I appeal against my conviction or sentence through the UK courts? No. Your conviction and sentence remain a matter for the Indian authorities. The British courts have no jurisdiction in this matter.

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ANNEX III INFORMATION ABOUT FAIR TRIALS INTERNATIONAL

The Right to a Fair Trial

It is a key role of any government to maintain law and order on behalf of the whole society; to hold people to account for crimes they have committed and to ensure that justice is done – and seen to be done. But this carries with it a grave responsibility, because convicting someone of a criminal offence and potentially taking away a person’s liberty is one of the most serious steps any government can take against an individual. This step can only be justified after the person has been given a Fair Trial.

The Right to a Fair Trial means that people can be sure that processes will be fair and certain. It prevents governments from abusing their powers. A Fair Trial is the best means of separating the guilty from the innocent and protecting against injustice. Without this right, the and public faith in the justice system collapse. The Right to a Fair Trial is one of the cornerstones of a just society.

In response to the horrors of the Second World War, the United Nations was formed and set out the fundamental rights of human beings in the Universal Declaration of Human Rights. The Right to a Fair Trial was at its heart:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial , in the determination of … any criminal charge against him.”

The international community proclaimed the Right to a Fair Trial to be a “foundation of freedom, justice and peace in the world”.

The Right to a Fair Trial is recognised internationally as a fundamental human right and countries are required to respect it. Different countries have developed different ways of doing this, but regardless of how a particular legal system operates, the principles below are core to all fair justice systems and they all form part of the Right to a Fair Trial.

About Fair Trials International

Since 1992 Fair Trials International has worked for the better protection of fair trial rights and defended the rights of people facing criminal charges in a country other than their own. Our vision is a world where every person’s right to a fair trial is respected, whatever their nationality, wherever they are accused.

Imagine that you are arrested in a foreign country. You don’t speak the language, you have no idea of your rights and you are far from home. Fair Trials International was established to help people in this terrifying predicament to defend their right to a fair trial.

Every year we help hundreds of people and their families to navigate a foreign legal system by offering practical advice, including referrals to local lawyers; guidance on key issues encountered by people arrested abroad; and basic information on different legal systems and local sources of support.

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We believe that respect for fundamental rights and the rule of law are the hallmarks of a just society and that the right to a fair trial is at the heart of this. Sadly, our clients’ shocking cases of injustice demonstrate how, time and again, this most basic human right is being abused.

We fight against injustice by lobbying for the legal reforms needed to ensure that the right to a fair trial is respected in practice. Working with our clients and international networks we also campaign for changes to laws which are being abused and overused.

Fair Trials International (first established as Fair Trials Abroad) is a registered charity (No 1134586). We are governed by a board of volunteer Trustees and our staff team (based in London) is supported by a broad and growing network of experts across the globe.

Fair Trial International - Arrested Abroad

What we can and cannot do

We aim to provide information, advice and referrals to every person that contacts us for help and do not charge for any of the assistance that we provide.

We may be able to help you in the following ways:

 Helping you to identify a local criminal defence lawyer  Providing basic, practical guidance about a criminal trial outside your own country, for example, how to appoint a local lawyer  Provide you and your local lawyer with advice on fair trials guarantees under  Share our concerns about your case with Consular Services  Help you to identify other sources of support  Advise you on generating political or media interest in your case  Identify patterns of poor practice and seek to address these by wider campaigning and lobbying

We cannot, however:

 Provide financial assistance with your case  Act as your lawyer (whether in the UK or overseas) or provide legal advice  Commit to liaise with lawyers, your family or consular services  Guarantee the quality of the service you will receive from lawyers we help you identify or negotiate lawyers’ fees  Track hearing or appeal dates  Assist with non-criminal cases  Provide translation services  Hold or receive original legal documents or evidence  Tackle welfare problems on prisoners’ behalf (for this you should contact your local Consul or specialist prisoner-welfare agencies).

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Requesting our help

In order for us to decide how we can help, we need you to answer a few questions about your case. This information also helps us understand the barriers to justice facing people arrested far from home which we can then tackle through our campaigns.

Contact us:

Fair Trials International 3/7 Temple Chambers Temple Avenue London EC4Y 0HP

Tel: +44 (0) 207 822 2370

Fax: +44 (0) 207 822 2371 e-mail: [email protected]

If you have any further questions, please contact us details are given on the front page..

British High Commission New Delhi

February 2013

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Prisoner Mistreatment Allegation This form should be completed and sent to Human Rights Adviser in London (by e-mail) within 24 hours of receiving the allegation, copying in key contacts. See Guidance for more detail.

Consular Officer Name…………………………………………………….Date………………..

Name of detainee

Name of alleged perpetrator of abuse

Prison/ detention facility, including whether it remains their current detention facility

Allegations made and date of incidents, including:

1) whether it was a single incident or numerous incidents; 2) and whether the alleged mistreatment has now stopped, or whether it is continuing Any additional signs (physical/ emotional) of mistreatment during this visit.

Is medical treatment required?

Any additional vulnerabilities or disabilities to be aware of?

Do we have permission from detainee to raise abuse with authorities?

Have we informed detainee of any local complaints procedures and checked they have a lawyer?

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