Mallya v Government of India

Under section 84(1) of the Extradition Act 2003, the extradition court asks whether, on one possible view of all admissible evidence, a properly directed tribunal could convict at a summary trial. The court need not itself be sure of guilt. In a circumstantial case, the question is whether a reasonable tribunal could exclude realistic possibilities consistent with innocence.

The court may consider hearsay and documentary evidence within the statutory framework, but material based on matters a witness did not see cannot be treated as evidence of those matters. An appellate court should not re-try the evidence or interfere merely because another interpretation is possible. A prima facie case was established for fraud by false representation, conspiracy to defraud and money laundering.

The appellant appealed against the decision of Senior District Judge Arbuthnot, sitting at Westminster Magistrates’ Court on 10 December 2018, to send his case to the Secretary of State under the Extradition Act 2003.

The extradition request concerned alleged conspiracies and fraudulent representations used to obtain loans for Kingfisher Airlines from Indian banks, together with alleged diversion or laundering of loan proceeds. Permission to appeal was granted on the issue whether the evidence met section 84(1). The central issues were the correct prima facie case test, admissibility of the evidence, whether the substantive allegations were made out, and whether the case found in England differed materially from the case being prosecuted in India.

1. Appeal dismissed. The Divisional Court held that the Senior District Judge had directed herself correctly on section 84(1) of the Extradition Act 2003. The question was whether a properly directed tribunal could reasonably convict on one possible view of all admissible evidence. The extradition court was not required to be sure of guilt itself.

2. The court rejected the submission that the Senior District Judge had to exclude realistic possibilities consistent with innocence herself. In a circumstantial case, the relevant question was whether a reasonable tribunal could exclude them. The Senior District Judge had considered the relevant evidence and had, if anything, applied a more demanding approach by making positive findings rather than merely asking whether there was a case to answer.

3. The court upheld the admission of the section 161 statements and related documents. Statements concerning matters not witnessed by their makers could not be evidence of those matters, but could be considered as informed explanation or commentary on documents. Documents were admissible where the statutory requirements were met. Evidence of later conduct could be relevant to the appellant’s intentions at the time of the alleged offences.

4. The court upheld the finding of a prima facie case of fraudulent misrepresentation. The Senior District Judge had identified specific alleged misrepresentations concerning KFA’s financial position, profitability, proposed equity investment, brand valuation, securities, and intended use of the loan proceeds. Although she had made an error concerning pre-tax and post-tax loss figures, other evidence independently supported the conclusion.

5. The conspiracy and misrepresentation cases were not mutually exclusive. Nor was direct evidence that the appellant personally authorised every representation necessary where the evidence supported an inference that he was knowingly behind the applications. The evidence as a whole also permitted a reasonable jury to infer a conspiracy involving relevant IDBI officers, despite the absence of direct evidence.

6. There was also a prima facie case of money laundering because the parties accepted that this allegation followed if either fraud by false representation or conspiracy to defraud was established and the evidence showed dispersal or misapplication of loan funds.

7. The case found by the Senior District Judge coincided in material respects with the allegations in India, including the conspiracy, the weak financial position and non-compliance with lending criteria, false representations concerning investment, brand value and forecasts, inadequate security, and dishonest intention not to repay.

1. High Court (Administrative Court) — The appeal against the extradition decision was dismissed: [2020] EWHC 924 (Admin).
2. High Court — William Davis J rejected the proposed grounds of appeal in writing on 5 April 2019.
3. Divisional Court — Permission to appeal was refused on all grounds save the section 84(1) prima facie case issue: [2019] EWHC 1849 (Admin).
4. Westminster Magistrates’ Court — Senior District Judge Arbuthnot ordered the appellant’s case to be sent to the Secretary of State on 10 December 2018.