Spell in custody, will help Mallya cut down on alcohol, says UK court: Read full order here
London, Dec 10: A court in the UK today ordered that Vijay Mallya will be extradited. The court said in its verdict that it is not of the opinion that courts in India are there to do what politicians tell them to do.
The judge said, "I would expect that were the Indian court able to allow Dr Mallya a bed and home cooked food it would enable him to face the trials ahead in a more healthy state than otherwise.
Certainly, his doctors will need to watch what he eats to help manage his diabetes and coronary artery disease. A spell in custody is likely to help him cut down on alcohol. A regular exercise routine will need to be worked out by his doctors to keep him healthy. I noted that he is taking a whole range of medications which the GOI will ensure he has access to.
Here are some of the key observations:
- Having accepted the assurances in principle, I turn next to the prison conditions which in the light of the assurances will apply in this case. I find that Dr Mallya will be held in Barrack No. 12 of Arthur Road in Mumbai. I find that the video of the cell and the approach to the cell is an accurate portrayal of the conditions which will apply. The cell is large, far larger than the 3m square minimum set out in a number of authorities. The cell has been recently redecorated. It has a very high ceiling, some natural light from grilled windows, a couple of fans and strip lighting. I accept that the fans go off when the lights go off.
- I find that the RP will be provided with a thick cotton mat, a pillow, sheet and blanket. He will be able to apply on medical grounds to have a bed. He will have access to "sufficient" water and I bear in mind that his doctor's expectation is that he receive three litres a day. He will have access to the bathroom which is attached to the cell and appears to be clean and is newly decorated. It has a lavatory, shower and the basin has a constant supply of water. He will be able to wash each day and will receive adequate food. He may be allowed food from home if the court permits.
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- There is sufficient security, a prison officer and a guard are on duty 24 hours a day and the inmates of Barrack No. 12 do not mix with other prisoners. I accept that there has never been any violence in the cell because of the high-profile nature of the prisoners held there.
- The major concerns the court had was in relation to the many medical conditions the RP suffers from; the RP is far from healthy. The doctors and nurses in a prison of the size of Arthur Road have a lot of work on their hands and the assurance given that Dr Mallya could consult his own private doctors seems to this court to be a necessary one in all the circumstances. It is an assurance which this court considers to be an important one in all the circumstances. I accept that there are hospitals very close to the prison were VJM to require hospitalisation.
- I would expect that were the Indian court able to allow Dr Mallya a bed and home cooked food it would enable him to face the trials ahead in a more healthy state than otherwise. Certainly, his doctors will need to watch what he eats to help manage his diabetes and coronary artery disease. A spell in custody is likely to help him cut down on alcohol. A regular exercise routine will need to be worked out by his doctors to keep him healthy. I noted that he is taking a whole range of medications which the GOI will ensure he has access to.
- The Defence says that there is great political capital invested in the successful prosecution of the case and his discharge or acquittal will "be viewed as a political failure". The corollary of that is that his guilt has been prejudged by the press. The defence witness Professor Lau presented a number of prejudicial press reports which seemed to be based on comments made by the Indian Finance Minister.
- The case would test any judiciary but would particularly test the Indian judiciary where any decision made in Dr Mallya's favour would be followed by accusations that the judge concerned had been bribed. There are suggestions of pressure already brought to bear on the judges involved in the RP's case. The Supreme Court itself is not immune from suggestions of corruption. In the case of the CBI court which will hear the case against Dr Mallya Professor Lau said there is a particular inherent risk of partiality given its close relationship with the CBI.
- Ms Montgomery and Mr Watson submitted it is particularly vulnerable to abuse given the CBI's lack of independence. They rely on the evidence of Professor Lau that in the CBI court, the CBI framed parents for a murder they did not commit. The CBI was criticised by the High Court in India. The CBI was said to have failed to disclose exculpatory material, deliberately mislead experts and tutored a witness. The CBI court was not able to protect the defendants in that case.
- The Professor relied too on research which said that there were concerns in India about media trials. There was an emergence of powerful television commentators and the media can affect all aspects of a criminal trial from the judge to witnesses and the police.
- The criticism made of the possible effect of the considerable media attention which would attend a prosecution of Dr Mallya, is not significant enough for this court to find he would not have an Article 6 compliant trial. There is insufficient evidence for this court to find that he will not be tried by a competent and fair court.
- Any suggestion that CBI courts are too pliable when it comes to CBI cases is not borne out by reliable evidence. It would be like saying because Southwark Crown Court hears the majority of SFO cases that means it would lack independence in some way or because Westminster Magistrates' Court deals with all extraditions at first instance it lacks independence from the Crown Prosecution Service extradition unit which brings these specialised.
- I accept the GOI's contention that because Dr Mallya has such a high profile that his trial will be under great scrutiny. I find that Dr Mallya will be able to raise with the court any overly prejudicial publicity. I accept the criticisms that there has been much political commentary made about his prosecution and the lending that was sanctioned by the banks, nevertheless it will not be a trial by politicians. Courts are used to dealing with high profile cases which are accompanied by often ill-advised political.
- I do not accept that the courts in India are there to do what the politicians tell them to do. As I have already said, the court will be under great scrutiny. I do not find any international consensus which would enable me to find that the judges in India are corrupt. The most the Professor could do was give me a handful of individual examples where the process appeared to be defective in one way or another. Such defective processes came to light and were corrected by the senior.
- Professor Lau's criticised the Supreme Court for dealing with the civil case against Dr Mallya too quickly. I found this is not a relevant criticism as it was clear that the proceedings were an ex parte application for an interim injunction. The Professor made it clear that he had the highest respect for the Indian Supreme.
- There was no evidence which allowed me to find that if extradited Dr Mallya was at real risk of suffering a flagrant denial of justice. The argument in relation to Article 6 fails.