Mallya, R (on the application of) v Government of India & Anor

On a renewed application for permission to appeal in extradition proceedings, an appellate court must not rehear the facts. Intervention requires a material error of law or reasoning, an absence of reasonable evidential basis, or a conclusion no reasonable judge could reach.

A challenge based on political opinions requires evidence that prosecution is based on an actual or imputed political opinion. Assurances from a requesting state are accepted in accordance with the presumption of good faith unless cogent evidence calls them into question. Fresh evidence on appeal must satisfy the statutory availability and reasonable-diligence requirements. Speciality arrangements are not undermined merely because other proceedings or arrest warrants exist, absent evidence of a real likelihood that the person will be detained or tried for offences outside the permitted scope.

The applicant sought permission to appeal against a senior district judge’s decision sending his extradition case to the Secretary of State and against the Secretary of State’s order for his extradition to India.

The extradition request concerned alleged conspiracy, fraud by misrepresentation and related money-laundering offences arising from loans made to Kingfisher Airlines. The applicant challenged the prima facie case, alleged political motivation and an unfair trial, relied on prison conditions under article 3, and argued that India’s speciality arrangements were ineffective.

The court therefore considered whether any ground was reasonably arguable and whether the Secretary of State’s decision was legally vulnerable.

1. Permission against the senior district judge. The court granted permission to appeal on ground one only. The applicant’s challenge to the prima facie case under section 84(1) of the Extradition Act 2003 was reasonably arguable. The court emphasised that an appellate court does not repeat the lower court’s fact-finding exercise. Intervention requires a material error of law or reasoning, findings without a reasonable evidential basis, or a conclusion no reasonable judge could have reached.
2. Ground two, based on section 81(a), was not reasonably arguable. Even on the broad interpretation of political opinions explained in Gomez v Secretary of State for the Home Department [2000] INLR 549, evidence was required that an actual or imputed political opinion formed the basis of the prosecution. Alleged public anger about the collapse of Kingfisher Airlines and loss of public funds did not meet that threshold. Ground two could not independently succeed because it depended on success on ground one.
3. Grounds three and four were refused. There was no evidence undermining the senior district judge’s conclusion that the applicant would receive a fair trial in India. Media attention did not displace evidence of the independence of the Indian judiciary.
4. Ground five was refused. Reliance on assurances about detention conditions and medical treatment was in principle proper, as confirmed in Government of India v Chawla. Under the presumption of good faith, assurances were to be accepted unless cogent evidence called them into question. Fresh evidence could be admitted only if section 104(4) of the Extradition Act 2003 was satisfied. The proposed evidence did not meet the reasonable-diligence requirement.
5. Secretary of State’s decision. Permission to appeal was refused. The 1992 extradition treaty, India’s domestic law and section 95 of the Extradition Act 2003 provided effective speciality arrangements. Outstanding warrants did not themselves establish a breach. A breach might arise only if steps were taken to detain or try the applicant for other offences, and there was no evidence of a real likelihood of that occurring. The circumstances relied on concerning Abu Salem Ansari did not provide a reasonably arguable basis for challenging the arrangements.

• Senior District Judge: found the statutory prima facie-case requirement satisfied and rejected the applicant’s objections to extradition.
• Secretary of State: ordered the applicant’s extradition to India on 3 February 2019.
• High Court (Administrative Court): William Davis J refused permission on the papers on 5 April 2019. On renewal, the court granted permission against the senior district judge on ground one only and refused permission on all other grounds and against the Secretary of State’s decision.