A British court on Tuesday opened the continuation appeal hearing in the extradition case of Nirav Modi, who is wanted in India on the charges of fraud and money laundering amounting to an estimated $2 billion in the Punjab National Bank (PNB) loan scam case.
The 51-year-old diamond merchant had lodged an appeal last year against his extradition order on mental health grounds.
Lord Justice Jeremy Stuart-Smith and Justice Robert Jay presided over an initial hearing at the High Court in December last year to determine whether District Judge Sam Goozee's Westminster Magistrates' Court ruling from February 2021 in favour of extradition was incorrect to overlook the diamond merchant's "high risk of suicide".
The hearing this week is for the continuation of that appeal, with a judgment likely soon.
If Modi wins this appeal hearing in the High Court, he cannot be extradited unless the Indian government is successful in getting permission to appeal at the Supreme Court on a point of law of public importance.
On the flip side, if he loses this appeal hearing, Modi can approach the Supreme Court on a point of law of public importance, to be applied for to the Supreme Court against the High Court's decision within 14 days of a high court verdict.
However, this involves a high threshold as appeals to the Supreme Court can only be made if the high court has certified that the case involves a point of law of general public importance.
Finally, after all avenues in the UK courts are exhausted, he could still seek a so-called Rule 39 injunction from the European Court of Human Rights (ECHR).
According to officials familiar with the case, the Indian government has given assurances about the conditions in which Modi will be detained if surrendered to India and the facilities that will be available to care for his “physical and mental health”.
Both sides will now make submissions on whether those assurances are sufficient and can be relied upon.
"He is at high risk of suicide already and his condition is likely to deteriorate further in Mumbai," Edward Fitzgerald QC had argued on behalf of Modi during the December appeal hearing.
Modi, meanwhile, remains behind bars at Wandsworth Prison in south-west London since his arrest in March 2019.
The high court hearings follow a ruling in August last year by high court Justice Martin Chamberlain that arguments concerning the jeweller's “severe depression” and “high risk of suicide” were arguable at a full appeal hearing.
The appeal against Judge Goozee's ruling to send the case to UK Home Secretary Priti Patel for extradition was granted leave to appeal in the high court on two grounds – under Article 3 of the European Convention of Human Rights (ECHR) to hear arguments if it would “unjust or oppressive” to extradite Modi due to his mental state and Section 91 of the Extradition Act 2003, also related to mental ill health.
Modi's "high risk of suicide" and the "adequacy of any measures capable of preventing successful suicide attempts in Arthur Road prison” in Mumbai were deemed as the focal points for the appeal.
The permission to appeal was denied on all other grounds, including the admissibility of evidence provided by the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) and Patel's extradition sign off.
The high court also noted that the District Judge's approach to the identification of a prima facie case in the PNB fraud case was “correct”.
Modi's legal team have sought to establish that it would be oppressive to extradite him due to his mental condition that could lead to suicidal impulses, given the family history of suicide of his mother, and that he is at risk of “flagrant denial of justice” in India.
The lawyers have also claimed the COVID-19 pandemic is “overwhelming” the Indian prison system.
The Crown Prosecution Service (CPS), arguing on behalf of India, has highlighted the “high level of diplomatic assurance” to provide adequate medical attention to the accused on being extradited to face trial in India.
Modi is the subject of two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon PNB through the fraudulent obtaining of letters of undertaking (LoUs) or loan agreements, and the ED case relating to the laundering of the proceeds of that fraud.
He also faces two additional charges of "causing the disappearance of evidence" and intimidating witnesses or “criminal intimidation to cause death”, which were added to the CBI case.