India, UK review permission granted to Nirav Modi to appeal against extradition

The UK’s Crown Prosecution Service (CPS) on Tuesday said it is reviewing the London High Court ruling to grant fugitive diamond merchant Nirav Modi permission to appeal against his extradition order with the Indian government for the next stage in the legal process.

The CPS, which represents the Indian authorities in court, highlighted that the appeal can be heard at a full hearing on two grounds related to the mental health of the 50-year-old diamantaire, who is lodged at Wandsworth Prison in south-west London as he fights his extradition to face charges of fraud and money laundering in the estimated USD 2-billion Punjab National Bank (PNB) scam case.

“Nirav Modi has been granted permission to appeal his extradition to India on two grounds. The CPS is reviewing the next steps with the Government of India,” a CPS spokesperson said.

On Monday, High Court judge Martin Chamberlain granted Modi permission to appeal against a Westminster Magistrates’ Court order in favour of extradition to India on mental health and human rights grounds.

The permission to appeal was denied on all other grounds, including leave to appeal against UK Home Secretary Priti Patel’s extradition order, a legal avenue which is now closed.

The appeal against District Judge Sam Goozee’s February decision to send the case to the Home Secretary was granted leave to appeal in respect of two of the grounds – under Article 3 of the European Convention of Human Rights (ECHR) to hear arguments if it would be “unjust or oppressive” to extradite him due to his mental state and Section 91 of the Extradition Act 2003, also related to mental ill health.

“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 (Nirav Modi’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’s ruling notes.

If Modi wins that 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 that appeal hearing, Modi can approach the Supreme Court on a point of law of public importance, to be applied to the Supreme Court against the High Court’s decision within 14 days of a High Court verdict.

However, this marks 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. Therefore, the legal process for his extradition still has a long course ahead.

Monday’s High Court verdict followed a remote hearing on July 21, when his counsel Edward Fitzgerald QC had argued that Judge Goozee’s February extradition order was wrong to hold that there was “nothing unusual” about his mental condition.

“The judge was wrong to discount the high risk of suicide on the basis that it was not ‘immediate’,” Fitzgerald had argued.

CPS barrister Helen Malcolm QC, arguing on behalf of the Indian authorities, had countered to reiterate the assurances provided by the Indian government of adequate mental health care for the accused on being extradited to Barrack 12 at Arthur Road Jail in Mumbai.

Meanwhile, all other grounds raised by the defence, including the admissibility of evidence provided by the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI), were dismissed.

“The judge’s approach to the identification of a prima facie case was correct. Given the test he had to apply, and the volume of evidence relied upon against the appellant, he was entitled to conclude that each of the requests disclosed a prima facie case,” the High Court ruling notes.

Modi is the subject of two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon the 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.