By Gaggan Sabherwal
South Asia Diaspora Reporter, BBC
London
Indian businessman and diamond merchant Nirav Modi’s five-day extradition trial at London’s Westminster Magistrates Court concluded yesterday (Friday). This was the second phase of his trial with the first phase having taken place in May.
(Picture credit: GETTY IMAGES)
The 49-year-old is fighting extradition charges related to the estimated 2-billion dollars Punjab National Bank (PNB) fraud and money laundering case brought by the Indian government.
Nirav is subject to two sets of criminal proceedings, the first brought by the CBI relating to a large-scale fraud said to have been committed upon PNB and the ED case, relating to the laundering of the proceeds of that fraud.
A further extradition request was made in February this year, certified by UK Home Secretary Priti Patel, of two additional offences relating to allegations that Nirav Modi interfered with the CBI investigation by causing the disappearance of evidence and intimidating a witness.
The Crime Prosecution Service (CPS) team that is representing the Indian government must establish a prima facie case against Nirav to allow the judge to rule that he has a case to answer before the Indian courts. If the judge finds a prima facie case against him (not a judgement of conviction or guilt), it will then go back to UK’s Home Secretary Priti Patel to formally certify his extradition to India to stand trial.
Now since his arrest in March 2019, Nirav has been residing at Wandsworth Prison in London and has so far been appearing in court for his trial from Wandsworth Prison via video link due to the current corona virus pandemic.
At the start of the trial on Monday this week, District Judge Samuel Mark Goozee refused an application by Nirav’s lawyer Claire Montgomery to hear further evidence in favour of Nirav by former high court judge Abhay Thipsay in private this week.
Montgomery claimed Thipsay has been subjected to a ‘’disgraceful personal attack’’ by Indian Union Law Minister Ravi Shankar Prasad in India the day after he gave evidence at Nirav’s first hearing in May. Judge Goozee referred to precedents and details presented to say that the circumstances did not justify holding Thipsay’s next deposition in secret or to impose reporting restrictions. He also noted that the former judge had not refused to give further evidence.
A new video of Barrack 12 at Arthur Road Jail in Mumbai where Nirav will be housed once he is sent back to India was also shown on the first day to the court to illustrate how the 300-sq-foot had ‘’free passage of natural light and air’’ with three ceiling fans, six tube lights, an LED TV and an attached shower, the PTI reported.
On the second day of Nirav Modi's five-day extradition hearing on Tuesday, the court was told about a "marked decline" in Nirav’s mental health at Wandsworth Prison where stricter coronavirus curbs have meant a lack of access to inhouse counselling facilities and very limited contact with family, with only 25 minutes allowed outside his cell in July.
Nirav Modi's counsel Clare Montgomery told the court that Nirav was increasingly suffering from severe depression and that the latest assessment shows he is on the threshold of being subject to hospitalisation unless given proper treatment. She further claimed that the availability of psychiatric help in Indian prisons was "utterly inadequate".
Clare Montgomery QC also went on to describe Indian prisons as ‘’shameful’’ and Arthur road Jail in Mumbai where Nirav will be kept upon his extradition as ‘’humanly degrading’’. She also added that the Mumbai prison was ‘’grossly overcrowded’’ and showed Judge Samuel Goozee pictures of ‘’prisoners sleeping on top of each other’’.
She then pointed out that there had been a Covid outbreak at the Arthur Road Prison in May where 182 inmates and 46 staff tested positive and sarcastically said the government of India’s claims that it had been resolved- leaving just one-person Covid positive – demonstrated ‘’near miraculous control over the outbreak’’ and were ‘’improbable’’.
Ms Montgomery also told the court that the Nirav Modi case has been made a "political issue, with no presumption made of innocence,". She claimed that because the jeweller had been made into a "hate figure" in India, there was an "overwhelming political necessity" to condemn him and see him convicted.
CPS barrister Helen Malcolm who is representing the government of India, told Judge Goozee through detailed witness statements by so-called "dummy directors" including Ashish Lad, who recorded a video back in June 2018 to say that his life had been threatened by Nirav Modi. She laid out details of how as the details of the fraud were beginning to emerge, the jeweller started by hiding most of the evidence, in particular the originals of "letters of undertaking" (LoUs) from PNB, and then went on to "threaten, intimidate, cajole and bribe officials". "He destroyed mobiles of dummy directors and threatened one of the witnesses with death," Ms Malcolm told the court.
On Wednesday which was the third day of the five-day hearing was devoted to the defence laying out further arguments against a prima facie case of fraud and money-laundering against Nirav, who saw the court proceedings via videoconference from Wandsworth Prison in London.
Nirav’s lawyer Clare Montgomery, raised further issues around the conditions at Barrack 12 at Arthur Road Jail claiming it is covered in its entirety in a blue metallic cover since it housed a terrorist in 2007. This makes the barrack "incredibly hot", with other problems such as damp, dust, insects and rodents. Nirav's defence team also claimed their client had been the subject of a "trial by media" and would not receive a fair trial in India, the PTI reported.
After the judge had turned down a defence request earlier this week to allow retired Indian high court judge Abhay Thipsay to give his video link expert statement privately, his written statement was briefly presented in court to highlight assertions against the admissibility of certain evidence presented by the Indian government.
At the hearing on Thursday which was the fourth day of the trial, the court heard expert views on Nirav’s personal family history of suicide and his deteriorating mental health in prison, which they said would only further deteriorate in solitary confinement.
"Coupled with a severe condition of depression, in my view, he presents a high risk of suicide albeit not immediately," said Dr Andrew Forrester, a forensic psychiatrist who has examined Nirav on four occasions between September last year and August this year.
Referring to the "suicide of his mother", Dr Forrester stressed that as a "significant feature" as Nirav’s mental health condition was on a deterioration trajectory and meets the criteria for hospital treatment in the absence of a multi-professional plan involving anti-depressants and psychotherapy. The medical expert revealed that while Nirav is currently on anti-depressants, the lack of supportive therapy or counselling due to COVID-19 lockdown restrictions in prison meant he was displaying signs of psychomotor retardation, a more severe form of depression which involves a manifest slowing down in movement and speech.
"If by contrast, he was given full access to multi-professional mental health care, better than he is currently getting at Wandsworth, would that assurance be helpful," asked CPS barrister Helen Malcolm, implying that the government of India may be open to providing such an assurance. Dr. Forrester agreed to take that into account and discuss Nirav’s treatment with any medical professionals appointed in India in the future. He separately also dismissed the possibility of Nirav "faking his symptoms" in an attempt to mislead or deceive the court.
His testimony in court followed a live videolink evidence from Thailand by Richard Coker, an Emeritus Professor at London School Hygiene and Tropical Medicine and an expert in epidemiology and infectious disease, in support of defence arguments over the high COVID-19 risk Nirav would be exposed to at Arthur Road Jail – which has had an outbreak back in May.
While the Indian government had earlier submitted data to highlight that the outbreak has been fully contained, Coker countered: "COVID spreads extremely effectively through prisons and the risk increases if community prevalence of disease is high." He assessed a 0.75 per cent risk of death should Nirav contract COVID-19 at Arthur Road Jail, a figure the CPS sought to compare with other infectious diseases such as malaria. Better ventilation
and space at Barrack 12 were also flagged as a positive, as opposed to the overcrowded setting at Wandsworth Prison where Nirav Modi currently resides.
Inadequate prison conditions once again remained at the heart of the defence arguments as they also deposed Dr Alan Mitchell, a medical practitioner and prisons expert as chair of the Independent Prisons Monitoring Group in Scotland. Dr. Mitchell, who has in the past given evidence on the unsuitability of Barrack 12 in the extradition case of Kingfisher Airlines boss Vijay Mallya, reiterated some of his concerns around the lack of natural lighting. Asked about the Indian government's latest video of the Barrack played in court earlier in the week, he said: "Those are the elements you don't pick up in a video."
The Crown Prosecution Service (CPS) however argued that the conditions at Barrack 12 in Arthur Road Jail would be better than those the jeweller is currently faced with in a COVID-19 locked-down Wandsworth Prison cell in London.
On the last day of his hearing yesterday, the court heard from retired Supreme Court of India Judge Markandey Katju who while deposing as a defence witness claimed that Nirav Modi will not get a fair trial in India if extradited. Appearing via video link from New Delhi, Katju alleged in his two-hour long deposition that the judicial system in India had collapsed, claiming that the CBI and Enforcement Directorate were acting at the behest of political masters.
Katju also talked about several cases and issues to substantiate his allegations, including the 2019 Ayodhya judgement by a Supreme Court bench headed by former chief justice Ranjan Gogoi, the latter’s subsequent nomination as a Rajya Sabha MP, the post-retirement appointment of judges, media trials and alleged corruption in the judiciary.
“The government of India has made up its mind that Nirav Modi is a criminal. How can we expect a fair trial?”
“All ministers have pronounced him (Modi) guilty and the courts will do what they say. The present government needs a scapegoat to divert attention from other issues. Nirav Modi is the scapegoat, blamed for all ills,” the retired top court judge claimed.
“They have already pronounced him a criminal. I am definite that he will not get a fair trial in India. No lawyer will pick up his case. The justice system has collapsed; it is beyond redemption.”
CPS barrister Helen Malcolm questioned Katju about speaking to the news media in India on Thursday about his court appearance, and wondered if it was anything to do with him being a “self-publicist” keen to exploit the high-profile case.
She also read out Katju’s remarks published in the past on same-sex relationships, about single women allegedly being prone to psychological problems, about “90% Indians are fools”, provoking agitated responses from Katju. At one point, he said: “I know more English literature than you”. Katju further added that Malcolm’s accusation that he is motivated by personal vanity or vainglory is not fair.
With this the five-day long extradition trial concluded and Nirav was remanded in custody and sent back to his cell in Wandsworth Prison. The next date of the hearing in the high- profile extradition case will be on 3rd November and the judgement on Modi’s extradition is expected in December after lawyers from both the sides will make their final submissions.
I spoke to Leicester based solicitor Kally Sahota, Director of Sahota & Sahota Solicitors that specialise in the defence of serious criminal offences and extradition matters and asked him what happens if in December the district judge decides to extradite Nirav back to India then what legal options does Nirav have?
‘’If the District Judge decides to approve extradition, and Mr Modi does not appeal then:
When extradition has been ordered by Westminster Magistrates’ Court on the basis of an extradition warrant, the requested person must be extradited: -
within 10 days of the expiration of the 7 day notice period for applying for permission to appeal; or
a date agreed by the judge and the foreign authority’’.
‘’If the District Judge decides to approve the extradition of Mr Modi and he appeals which he can do so and such appeals against the decision of the magistrates’ court to extradite a Requested Person, may be made to the country’s High Court’’.
‘’But if the requested person makes an unsuccessful appeal, then he must be extradited within 10 days of:
the High Court’s decision becoming final; or
any later date agreed between the court and the foreign authority’’.
‘’If the High Court was to also decide to extradite Mr Modi then his next recourse would be to challenge his extradition in the UK Supreme Court. The leave to appeal to the Supreme Court is on a point of law of general public importance, which according to experts is a very high threshold that is not often met’’.
‘’This whole appeal process could take around 12 months. But the current COVID-19 pandemic has slowed things down considerably’’.
When asked about what legal options does the Government of India have if the district judge decides not to extradite Nirav back to India, he said:
‘’If it is decided by Westminster Magistrates’ Court not to extradite Mr Modi then that is the end of that! It would be very difficult for India to obtain permission from the Secretary of State to seek to reopen proceedings’’.
BBC Hindi's published link : https://www.bbc.com/hindi/international-54131841
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