Fugitive diamond merchant Nirav Modi has been allowed an oral appeal to be heard in the London High Court on the state of his mental health as a basis for refusing extradition to India. This claim had been made earlier but was refused by the Westminster Magistrates court, and then again by the High Court on the basis of written submissions. Nirav Modi then appealed to the HC to be granted an oral hearing. Following this appeal, an oral hearing has been allowed on grounds principally of mental health.
In his order on Monday, Justice Martin Chamberlain allowed the appeal on two of the grounds claimed by Modi under Article 3 of the European Convention of Human Rights, and on grounds that his extradition would not be compatible with his state of physical and mental health. Justice Chamberlain ruled that these two grounds overlap, and allowed an appeal to be heard.
“At this stage, the question for me is simply whether the appellant’s case on these grounds is reasonably arguable. In my judgment, it is,” the judge ruled. He added that “it seems to me that there should be a particular focus on whether the judge (the Westminster magistrate) was wrong to reach the conclusion he did, given the evidence as to the severity of the appellant’s depression, the high risk of suicide and the adequacy of any measures capable of preventing successful suicide attempts in Arthur Road prison.”
Justice Chamberlain was given fresh evidence from Anand Doobay, the solicitor for Nirav Modi. The judge noted that this fresh evidence exhibited “newspaper articles describing the effects of the ‘second wave’ of coronavirus in India, particularly in the State of Maharashtra, where the appellant would be detained”.
On the issue of prison conditions as hit by Covid, Justice Chamberlain ruled that “the admissibility of the evidence of Mr Doobay will be a matter for the court considering the substantive appeal”.
The judge noted that Edward Fitzgerald who argued on behalf of Nirav Modi “submitted that this fresh evidence merits reconsideration of the judge’s decision on s. 91 and Article 3 and throws into doubt the judge’s finding that the pandemic presents no barrier to extradition”. Fitzgerald had argued that the Westminster magistrate was “wrong to dismiss the concerns raised”.
He argued that “the resurgence of coronavirus in India also undermines the judge’s conclusion that the Indian authorities will be able to provide adequate care for the appellant and that his conditions will be ameliorated by his transfer to India. The already stretched healthcare facilities will be stretched further by the pressures of the pandemic and the overall conditions in India will deteriorate.”
It was contended for Nirav Modi, successfully as it turned out, that the Westminster court’s finding that the appellant’s condition was “far from unusual” was a gross minimisation of his serious condition. Fitzgerald argued, the judge noted, that “the unchallenged evidence is that the appellant has a serious depressive condition. He has a recurrent depressive disorder with psychomotor slowing, his condition is severe enough to warrant detention, there is a high risk of suicide and his condition has been deteriorating. The appellant’s mental illness was not merely a reaction to the current proceedings; he has a history of mental ill health.”
Fitzgerald had also attacked the Westminster magistrate’s observation that the conditions in Arthur Road jail in Mumbai were better than in Wandsworth prison. He argued that it was perverse to find that the appellant’s condition would improve if he were extradited to India.
The final appeal will now take up the issue of the seriousness of Nirav Modi’s health condition and determine whether it could become worse in detention in India were an extradition order to be made.
The Government of India represented by Helen Malcolm did not contest medical findings that Nirav Modi was suffering from mental health conditions. Its case is that these conditions, such as they are, can as well be dealt with by medical services that would be available to him in detention in India.
The verdict brings reprieve for Nirav Modi but not is in itself a win. Vijay Mallya too was allowed an oral appeal that in the end was turned down. Nirav Modi’s appeal could potentially be turned down as well; the ruling Monday determines only that it be heard.
Nirav Modi and his uncle Mehul Choksi are accused of taking huge loans from overseas financial institutions using forged Punjab National Bank (PNB) Letters of Undertaking (LoU). Both fled India in January 2018, weeks before investigations into the scam began.
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