Nirav Modi granted permission to appeal his extradition to India on mental health grounds and suicide risk – Times of India
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LONDON: Fugitive diamantaire Nirav Modi has been granted permission to appeal against his extradition to India on the grounds that he suffers from severe depression and is a high suicide risk and it could be oppressive and a breach of his human rights to extradite him.
Justice Martin Chamberlain at the high court on Monday handed down judgment saying that Nirav had an arguable case that Arthur Road Jail was inadequate to deal with his depression and risk of suicide.
He gave permission to appeal on the grounds that Nirav’s extradition could breach his rights under Article 3 of the European Convention on Human Rights (ECHR) and it could be unjust or oppressive to extradite him by virtue of his physical and mental condition.
Nirav will now be able to argue these grounds at a full appeal hearing and if he loses that, he could also approach the Supreme Court if his case involves a point of law of general public importance, meaning he will remain in the UK for many more months. His legal team may try to move the court to seek bail for him now too. Nirav has been held in custody at HMP Wandsworth since his arrest in London on 20 March 2019.
Nirav had on 21 July this year sought permission at the London high court to appeal against the decision of district judge Goozée handed down on 25 February 2021 at Westminster Magistrates’ Court who found there were no bars to extradition. He sent his case to the Home Secretary Priti Patel.
On 15 April 2021 Patel ordered his extradition to India. Nirav was also appealing against Patel’s decision on the ground that she was prohibited from ordering his extradition “due to the lack of specialty protection in India.”
Chamberlain gave permission to Nirav to appeal on the grounds that his extradition could be a breach of Article 3 of the European Convention on Human Rights (ECHR) (meaning torture or inhuman or degrading treatment) and it could be unjust or oppressive to extradite him by virtue of his physical and mental condition (section 91 of the Extradition Act 2003 Act).
In his written judgment Chamberlain wrote: “The question for me is simply whether the appellant’s case on these grounds is reasonably arguable. In my judgment, it is. I will not restrict the basis on which those grounds can be argued, though it seems to me that there should be a particular focus on whether the judge 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.”
Chamberlain said a key question was whether the Indian authorities would be capable of meeting Nirav’s current treatment needs and respond appropriately to any anticipated further deterioration of his mental health. Goozée held that they would, relying on assurances provided by the Government of India, dated 8 June 2019 and 11 September 2020.
At the permission to appeal hearing, Nirav’s laywer, Edward Fitzgerald QC, had submitted newspaper articles describing the effects of the second wave of Covid-19 in India, particularly in Maharashtra, where Nirav would be detained which he said threw into doubt the judge’s finding that the pandemic presents no barrier to extradition. He said the “already stretched healthcare facilities will be stretched further by the pressures of the pandemic and the overall conditions in India will deteriorate.” He also argued that Goozee’s finding that Nirav’s condition was “far from unusual” was a gross minimisation of his serious condition and that whilst his current risk of suicide was not immediate, that might change were he extradited to India.
Fitzgerald also argued that “the level of medical care afforded to prisoners at Arthur Road Jail had been completely inadequate for over 20 years, and the deficiencies are particularly acute in respect of experienced psychiatric staff.” He said the problems will be exacerbated by the pandemic.”
Nirav is sought by the Indian government to face three sets of criminal proceedings in India. The first, brought by the CBI, relates to a fraud on the Punjab National Bank which caused losses equivalent to over £700 million (Rs 7,000 crore). The second, brought by the ED, relates to the laundering of the proceeds of that fraud. The third relates to additional offences involving interference with evidence and witnesses in the CBI proceedings.
Chamberlain did not grant permission to Nirav to appeal on the other grounds he was seeking, namely that the government of India had not established a prima facie case in respect of the three extradition requests, or that the government of India had not established an extradition offence in respect of the first (prima facie) and third requests (interfering with evidence and witnesses), or that he would not face a fair trial and face a flagrant denial of justice in India (breach of Article 6 of the ECHR.)
He said: “In my judgment it is not reasonably arguable that the judge was wrong to conclude that there was no real risk of a flagrant denial of justice in India. In any event, the appellant will have an opportunity to place his narrative before a trial court in India.”
He said it was not Goozee’s job to deal with each and every point made in the evidence and submissions but merely to find that “a reasonable jury, properly directed and considering the evidence, could exclude all realistic possibilities consistent with the defendant’s innocence.”
He also dismissed Justice Thipday’s evidence given in the main hearing as “irrelevant.” Thipsay had sought to argue that the extradition offences Nirav is accused of are not offences under the Indian Penal Code.
“It is not necessary or appropriate to consider foreign law to determine whether the elements of the offence under the law of India can be established. That is a matter for the courts of India,” he said. He also refused permission to appeal against the Home Secretary’s decision.
Justice Martin Chamberlain at the high court on Monday handed down judgment saying that Nirav had an arguable case that Arthur Road Jail was inadequate to deal with his depression and risk of suicide.
He gave permission to appeal on the grounds that Nirav’s extradition could breach his rights under Article 3 of the European Convention on Human Rights (ECHR) and it could be unjust or oppressive to extradite him by virtue of his physical and mental condition.
Nirav will now be able to argue these grounds at a full appeal hearing and if he loses that, he could also approach the Supreme Court if his case involves a point of law of general public importance, meaning he will remain in the UK for many more months. His legal team may try to move the court to seek bail for him now too. Nirav has been held in custody at HMP Wandsworth since his arrest in London on 20 March 2019.
Nirav had on 21 July this year sought permission at the London high court to appeal against the decision of district judge Goozée handed down on 25 February 2021 at Westminster Magistrates’ Court who found there were no bars to extradition. He sent his case to the Home Secretary Priti Patel.
On 15 April 2021 Patel ordered his extradition to India. Nirav was also appealing against Patel’s decision on the ground that she was prohibited from ordering his extradition “due to the lack of specialty protection in India.”
Chamberlain gave permission to Nirav to appeal on the grounds that his extradition could be a breach of Article 3 of the European Convention on Human Rights (ECHR) (meaning torture or inhuman or degrading treatment) and it could be unjust or oppressive to extradite him by virtue of his physical and mental condition (section 91 of the Extradition Act 2003 Act).
In his written judgment Chamberlain wrote: “The question for me is simply whether the appellant’s case on these grounds is reasonably arguable. In my judgment, it is. I will not restrict the basis on which those grounds can be argued, though it seems to me that there should be a particular focus on whether the judge 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.”
Chamberlain said a key question was whether the Indian authorities would be capable of meeting Nirav’s current treatment needs and respond appropriately to any anticipated further deterioration of his mental health. Goozée held that they would, relying on assurances provided by the Government of India, dated 8 June 2019 and 11 September 2020.
At the permission to appeal hearing, Nirav’s laywer, Edward Fitzgerald QC, had submitted newspaper articles describing the effects of the second wave of Covid-19 in India, particularly in Maharashtra, where Nirav would be detained which he said threw into doubt the judge’s finding that the pandemic presents no barrier to extradition. He said the “already stretched healthcare facilities will be stretched further by the pressures of the pandemic and the overall conditions in India will deteriorate.” He also argued that Goozee’s finding that Nirav’s condition was “far from unusual” was a gross minimisation of his serious condition and that whilst his current risk of suicide was not immediate, that might change were he extradited to India.
Fitzgerald also argued that “the level of medical care afforded to prisoners at Arthur Road Jail had been completely inadequate for over 20 years, and the deficiencies are particularly acute in respect of experienced psychiatric staff.” He said the problems will be exacerbated by the pandemic.”
Nirav is sought by the Indian government to face three sets of criminal proceedings in India. The first, brought by the CBI, relates to a fraud on the Punjab National Bank which caused losses equivalent to over £700 million (Rs 7,000 crore). The second, brought by the ED, relates to the laundering of the proceeds of that fraud. The third relates to additional offences involving interference with evidence and witnesses in the CBI proceedings.
Chamberlain did not grant permission to Nirav to appeal on the other grounds he was seeking, namely that the government of India had not established a prima facie case in respect of the three extradition requests, or that the government of India had not established an extradition offence in respect of the first (prima facie) and third requests (interfering with evidence and witnesses), or that he would not face a fair trial and face a flagrant denial of justice in India (breach of Article 6 of the ECHR.)
He said: “In my judgment it is not reasonably arguable that the judge was wrong to conclude that there was no real risk of a flagrant denial of justice in India. In any event, the appellant will have an opportunity to place his narrative before a trial court in India.”
He said it was not Goozee’s job to deal with each and every point made in the evidence and submissions but merely to find that “a reasonable jury, properly directed and considering the evidence, could exclude all realistic possibilities consistent with the defendant’s innocence.”
He also dismissed Justice Thipday’s evidence given in the main hearing as “irrelevant.” Thipsay had sought to argue that the extradition offences Nirav is accused of are not offences under the Indian Penal Code.
“It is not necessary or appropriate to consider foreign law to determine whether the elements of the offence under the law of India can be established. That is a matter for the courts of India,” he said. He also refused permission to appeal against the Home Secretary’s decision.
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