Vijay Mallya loses leave to appeal against extradition in UK Supreme Court
London, May 14
In a major setback, embattled liquor baron Vijay Mallya on Thursday lost his application seeking leave to appeal in the UK Supreme Court, weeks after the London High Court rejected his appeal against an extradition order to India on charges of fraud and money laundering related to unrecovered loans to his now-defunct Kingfisher Airlines.
The 64-year-old businessman had 14 days to file this application to seek permission to move the higher court on the High Court judgment from April 20, which dismissed his appeal against a Westminster Magistrates’ Court extradition order certified by the UK Home Secretary.
The latest ruling will now go back for re-certification and the process of extradition should be triggered within 28 days.
The UK Crown Prosecution Service (CPS) said Mallya’s appeal to certify a point of law was rejected on all three counts, of hearing oral submissions, grant a certificate on the questions as drafted, and grant permission to appeal to the Supreme Court.
The government of India’s response to the appeal application was submitted earlier this week.
The leave to appeal to the Supreme Court is on a point of law of general public importance, which according to experts is a very high threshold that is not often met.
“The High Court effectively ruled that even if the approach of the Chief Magistrate was wrong, her decision was not wrong. It is therefore clear that Mallya now faces a significant hurdle in getting it to the Supreme Court,” said Toby Cadman, co-founder of Guernica 37 International Justice Chambers and an extradition specialist.
As a further step, in principle, Mallya can also apply to the European Court of Human Rights (ECHR) to prevent his extradition on the basis that he will not receive a fair trial and that he will be detained in conditions that breach Article 3 of the European Convention on Human Rights, to which the UK is a signatory.
The threshold for an ECHR appeal is also extremely high, with very limited chance of success in Mallya’s case because he would also have to demonstrate that his arguments on those grounds before the UK courts have been previously rejected.
Therefore, the dismissal of this appeal marks a major turning point for the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) case against the businessman, who has been on bail in the UK since his arrest on an extradition warrant in April 2017.
The Supreme Court’s ruling came hours after Mallya asked the Indian government to accept his offer to repay 100 per cent of his loan dues and close the case against him.
“Congratulations to the Government for a CVOID-19 relief package. They can print as much currency as they want BUT should a small contributor like me who offers 100% payback of State-owned Bank loans be constantly ignored?” he said in a tweet.
Mallya, who is wanted in India over alleged fraud and money laundering charges amounting to estimated Rs 9,000 crore, added, “Please take my money unconditionally and close.”
India and the UK have an Extradition Treaty signed in 1992 and in force since November 1993. Two major extraditions have taken place under this Treaty so far – Samirbhai Vinubhai Patel, who was sent back to India in 2016 to face trial in connection with his involvement in the post-Godhra riots of 2002, and more recently alleged bookie Sanjeev Chawla, sent back in February this year to face match-fixing charges.
COVID-19 pandemic may impact Mallya extradition timeline
The COVID-19 pandemic might cause a temporary delay, due to the UK’s Article 3 obligations under the European Convention on Human Rights, relating to inhuman and degrading treatment or punishment.
“There is a question now that the UK could be in breach of Article 3 if it were to extradite a person to a country where they could be at risk of being detained in an environment where they are at risk of contracting COVID-19,” said barrister Toby Cadman, co-founder of Guernica 37 International Justice Chambers and an extradition specialist.
In principle, Vijay Mallya does have a legal route remaining before his removal, which is to appeal to the European Court of Human Rights in Strasbourg, France, seeking an interim order against his extradition.
“It is likely that he will apply to the European Court of Human Rights to issue an interim order to prevent imminent removal. The issuance of interim orders barring extradition is quite rare and the threshold is relatively high,” said Cadman.
“If unsuccessful, his legal team may also seek to suspend removal due to the extraordinary circumstances caused by the COVID-19 pandemic, but that is a temporary bar rather than a permanent solution,” he added.
If Mallya applies to the ECHR, he will argue that he will not receive a fair trial and that he will be detained in conditions that breach Article 3 of the European Convention on Human Rights, to which the UK is a signatory. This was a route also used by wanted bookie Sanjeev Chawla just days before his extradition but he failed to secure the interim order and was finally extradited to India in February to face charges of match-fixing, involving former South African cricket captain Hansie Cronje in 2000.
Earlier on Thursday, Lord Justice Stephen Irwin and Justice Elisabeth Laing, the two-member bench at the Royal Courts of Justice in London presiding over Mallya’s appeal, pronounced their judgment against any further appeals in the UK courts.
It marks the final phase of a three-year-long legal battle since Vijay Mallya was arrested on an extradition warrant in April 2017. He remains on conditional bail, believed to be dividing time between a plush apartment near Baker Street in London and his Hertfordshire mansion in the village of Tewin.
In her verdict at the end of a year-long extradition trial in December 2018, Chief Magistrate Emma Arbuthnot at Westminster Magistrates’ Court in London found “clear evidence of dispersal and misapplication of the loan funds” and accepted a prima facie case of fraud and a conspiracy to launder money against Mallya, which was accepted by the High Court in its ruling last month.
“The High Court effectively ruled that even if the approach of the Chief Magistrate was wrong, her decision was not wrong,” said Cadman.
The Chief Magistrate had also dismissed any bars to extradition on the grounds of the prison conditions under which the businessman would be held at Barrack 12 of Arthur Road Jail in Mumbai. Her decision to accept the Indian government’s assurances that Vijay Mallya would receive all necessary medical care behind bars had also been accepted by the UK High Court, as it had refused permission to appeal on human rights grounds last year. PTI
