The High Court in London will hear evidence from two psychiatrists on their differing views over the level of suicide risk posed by fugitive diamond merchant Nirav Modi if he were to be extradited to India, a two-judge panel ruled on Tuesday at a continuation appeal hearing.
Lord Justice Jeremy Stuart-Smith and Justice Robert Jay concluded that three days, expected in October, will be set aside for a substantial hearing to address a change in the "evidential landscape" in the extradition case involving the 51-year-old diamond merchant.
He is wanted in India to face charges of fraud and money laundering amounting to an estimated $2 billion in the Punjab National Bank (PNB) loan scam case and had lodged an appeal last year against a lower court's extradition order on mental health grounds.
"If even a significant proportion of this evidence is admissible, the evidential landscape has changed substantially since the District Judge’s decision (in favour of extradition)," said Lord Justice Stuart-Smith, with reference to the “massive material” presented as evidence in the case.
The court noted a "difference of opinion" between two psychiatrists who gave their expert opinion on Mr. Modi's mental health and directed the barristers on both sides to facilitate a meeting between the experts to produce a "memorandum on matters on which they are agreed".
Helen Malcom QC, appearing for the Crown Prosecution Service (CPS) on behalf of the Indian authorities, referred to the case as a "many headed hydra" as she called for a limit on any additional material being introduced by the defence in the case.
Edward Fitzgerald QC, arguing on behalf of Mr. Modi, claimed that the wrong test had been applied by District Judge Sam Gozee in ordering his client’s extradition in February last year and initially sought the case to be remitted back to Westminster Magistrates’ Court to make further arguments.
However, it was agreed that the hearing would remain as an appeal at the High Court as the judges indicated in their provisional observation that it did not seem evident beyond argument that the District Judge had applied the wrong test.
Some of the other issues to be considered at the next three-day hearing later this year will cover the relevance of the Indian government’s assurances and access to private healthcare at Barrack 12 of Arthur Road Jail in Mumbai, where Mr. Modi is to be held pre-trial.
If Mr. 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, Mr. 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 U.K. courts are exhausted, the diamantaire could still seek a so-called Rule 39 injunction from the European Court of Human Rights.
According to officials familiar with the case, the Indian government has given assurances about the conditions in which Mr. Modi will be detained if surrendered to India and the facilities that will be available to care for his "physical and mental health".
Mr. 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. Mr. Modi's "high risk of suicide" and the "adequacy of any measures capable of preventing successful suicide attempts in Arthur Road prison" 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’.
Mr. 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, an argument the High Court dismissed as not "compelling".
Mr. 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 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.
