Nirav Deepak Modi v Government of India
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 09 August 2021 |
| Neutral Citation | [2021] EWHC 2257 (Admin) |
| Docket Number | Case No: CO/1537/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2257 (Admin)
Mr Justice Chamberlain
Case No: CO/1537/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC & Ben Watson QC (instructed by Boutique Law LLP) for the Applicant
Helen Malcolm QC & Nicholas Hearn (instructed by the Crown Prosecution Service) for the First Respondent
Rosemary Davidson (instructed by the Government Legal Department) for the Second Respondent
Hearing dates: 21 July 2021
Approved Judgment
Introduction
The appellant, Nirav Deepak Modi, is sought by the Government of India (“GoI”). There are three sets of criminal proceedings. The first, brought by the Central Bureau of Investigation (“the CBI”), relates to a fraud on the Punjab National Bank (“the Bank”), which caused losses equivalent to over £700 million. The second, brought by the Enforcement Directorate (“the ED”), relates to the laundering of the proceeds of that fraud.
The GoI submitted requests for the appellant's extradition on 27 July 2018 in relation to the CBI proceedings (“the first request”) and 24 August 2018 in relation to the ED proceedings (“the second request”). The requests were certified by the Home Office on 28 February 2019 and the appellant was arrested on 19 March 2019. He appeared at Westminster Magistrates' Court on 20 March 2019 and has been in custody at HMP Wandsworth since then. On 11 February 2020, the GoI made a further extradition request (“the third request”) in relation to additional offences involving interference with evidence and witnesses in the CBI proceedings. This request was certified on 20 February 2020.
The extradition hearing took place over two weeks (commencing 11 May 2020 and 7 September 2020) before District Judge Goozée (“the judge”), with closing submissions on 7–8 January 2021. On 25 February 2021, the judge handed down his decision. He found that there were no bars to extradition and sent the case to the Secretary of State. Detailed representations were made to her on 7 April 2021. On 15 April 2021, she ordered the appellant's extradition to India.
The appellant seeks permission to appeal pursuant to s. 103(4)(b) of the Extradition Act 2003 (“the 2003 Act”) against the judge's decision. It is said that the judge erred in concluding that:
(a) the GoI had established a prima facie case in respect of each of the requests (“Ground 1”);
(b) the GoI had established an extradition offence in respect of the first and third requests (“Ground 2”);
(c) the appellant's extradition would be compatible with his rights under Article 3 of the European Convention on Human Rights (“ECHR”) (“Ground 3”);
(d) it would not be unjust or oppressive to extradite the appellant by virtue of his physical and mental condition (Ground 4”);
(e) the appellant's extradition would be compatible with his rights under Article 6 ECHR (“Ground 5”).
The appellant also seeks permission to appeal pursuant to s. 108 of the 2003 Act against the Secretary of State's decision of 15 April 2021 on the ground that she was prohibited from ordering the appellant's extradition due to the lack of specialty protection in India (“Ground 6”).
Grounds 3 and 4: Article 3 ECHR and s. 91 of the 2003 Act
Overlapping grounds
The arguments made under grounds 3 and 4 overlap in that they both rely principally on the appellant's mental ill health. Mr Edward Fitzgerald QC, who presented the appellant's arguments on these grounds, accepts that there is a higher threshold for establishing a real risk of a breach of the appellant's Article 3 rights than for showing that his extradition would be oppressive for the purposes of s. 91. I therefore consider these grounds together, as the judge did in his judgment.
The judge's decision
The judge heard expert evidence about the appellant's mental health from a consultant forensic psychiatrist, Dr Forrester. His evidence was that:
(a) the appellant met the criteria for a diagnosis of “recurrent depressive disorder… severe, without psychotic symptoms”;
(b) the appellant's condition had worsened, likely as a result of the prison conditions in HMP Wandsworth, which were particularly restrictive due to the COVID-19 pandemic;
(c) he should be considered “a substantial (meaning high) albeit not immediate, risk of suicide”;
(d) he met the criteria for transfer to hospital under the Mental Health Act 1983;
(e) he “should be considered fit to plea[d] at the present time. However, …with further deterioration… there is a risk he could become unfit to plead in the future”.
The judge also heard evidence from Dr Mitchell, the Chair of the Independent Prison Monitoring Advisory Group for HM Chief Inspector of Prisons in Scotland. His expert opinion was that the Indian prison estate struggles to provide proper psychological care for inmates and that the appellant would not be appropriately cared for in Arthur Road Jail, Mumbai, where he is due to be detained. Despite Dr Mitchell's evidence, the judge concluded that the appellant's extradition was not barred under s. 91 of the 2003 Act and would not be contrary to Article 3 ECHR.
In light of the undisputed diagnosis of severe depression, the question was whether the Indian authorities would be capable of meeting the appellant's current treatment needs and responding appropriately to any anticipated further deterioration of his mental health (see [191] of the judgment). The judge held that they would, relying on assurances provided by the GoI, dated 8 June 2019 and 11 September 2020. These explained that the appellant would be held in a specific part of the prison (Barrack No. 12), there was an on-site hospital as well as a public hospital within 3km and that the appellant “may receive any relevant and necessary treatment from a private doctor or mental health expert of his choice, including treatment or counselling from a psychiatrist, psychologist, as required and paid for him, including coming into prison/over video-link for consultations”.
The judge made the following key findings:
(a) The appellant's condition is “far from unusual”.
(b) A number of people with severe depression can be treated in the community.
(c) There was nothing in Dr Forrester's report to suggest that the appellant lacked capacity to resist the impulse to commit suicide. Whilst the appellant had suicidal ideas, the risk of suicide was not immediate. The high threshold set in Turner v Government of the United States of America [2012] EWHC 2426 (Admin) was therefore not met.
(d) Whilst the appellant's mental health had deteriorated, such deterioration had been significantly attributed by Dr Forrester to the restrictive regime in HMP Wandsworth. The regime in Barrack No. 12 would be an amelioration of his current conditions of detention.
(e) The appellant was, at the time of the extradition hearing, fit to plead. Whilst he could deteriorate and become unfit to plead in the future, that was not sufficient to satisfy the judge that he would be found unfit to plead, such that it would be oppressive to extradite him, applying Republic of South Africa v Dewani (No. 2) [2014] EWHC 153 (Admin), [2014] 1 WLR 3220.
(f) The GoI had provided a comprehensive account of measures taken to deal with the risks posed by COVID-19.
(g) Whilst medical staff resources would be stretched within the prison, there was an assurance in place allowing the appellant to avail himself of private medical treatment and there were hospitals very close to the prison should he require hospitalisation. There was no reason at all to think that the GoI would fail to uphold the assurances provided.
The appellant also submitted evidence from Professor Coker, an epidemiologist at the London School of Hygiene and Tropical Medicine about the high prevalence of the coronavirus in Mumbai and the increased risk of its transmission into and spread within prisons. The judge did not consider that these risks made it oppressive to extradite him or gave rise to a breach of his Article 3 rights, because the GoI had provided a comprehensive account of the protective measures in place.
Submissions for the appellant
The appellant relied on both s. 104(3) and 104(4) of the 2003 Act. Section 104(3) permits the Court to allow an appeal where “(a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge”. Section 104(4) permits the Court to allow an appeal where “(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge”.
The fresh evidence relied on under s. 104(4) is a witness statement from the appellant's solicitor, Mr Doobay, dated 12 May 2021, exhibiting 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. Mr Fitzgerald 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. The judge was wrong to dismiss the concerns raised and placed undue weight on the GoI's response to Professor Coker's report, particularly as that response was unsigned and its author not identified.
The resurgence of coronavirus in India also...
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