London Eye: Nirav Modi extradition could fail on health grounds

He observed that “it seems to me that there should be a particular focus on whether the judge (at the Westminster court) was wrong to reach the conclusion he did, given the evidence as to the severity of the appellant's depression, the high risk of suicide and the adequacy of any measures capable of preventing successful suicide attempts in Arthur Road prison.”

The government of India represented did not contest medical reports that found that Nirav Modi was suffering from mental health conditions. But it argued that his health conditions can as well be dealt with adequately by medical services that would be available to him in detention in India.

Justice Chamberlain ruled there were no grounds to challenge the findings of the Westminster magistrate that a prima facie case of fraud against Nirav Modi stands established.

He noted that the Westminster magistrate was only concerned to the extent whether a case was established prima facie. “Before descending to the detail, it is important to bear in mind that the judge's conclusions were reached after considering voluminous evidence and submissions at an unusually long hearing,” Justice Chamberlain noted. “The law did not require him to deal with each and every point made in the evidence or submissions. It did not require him to reject the appellant's explanations, merely to find that ‘a reasonable jury, properly directed and considering the evidence, could exclude all realistic possibilities consistent with the defendant's innocence.’

Accordingly, he ruled: “In my judgment it is not reasonably arguable that the judge erred in concluding that this test was met.”

Addressing specific argument raised on behalf of Nirav Modi, Justice Chamberlain ruled: “It is true that the draft charges the subject of the first request related to a much larger number of LOUs than the 150 issued in 2017 (for payment in 2018) on which the GoI's evidence concentrated. But, as Ms Malcolm (Helen Malcolm, who appeared for the Indian government) said, the 150 LOUs the subject of the GOI's evidence were the only ones in respect of which the bank suffered any loss.”

He added: “What was alleged was the creation of a Ponzi-type scheme where — at least in some cases — the earlier LOUs were repaid by later ones. It was only at the end, when the scheme unravelled, that the loss crystallised.” He said it was “not necessary to show that a prima facie case was made out in relation to each and every LOU. What was necessary was simply to show that the requisite elements were made out in relation to each request.”

Justice Chamberlain noted that the Westminster judge “was not required to make a finding about the lack of appropriate commission, even though this was one plank of the bank's case. The central feature of the bank's case was the issue of LOUs without security. As the judge found, it was ‘inherently implausible’ that unsecured borrowing with a value equivalent to £729 million was ‘known about, tolerated or sanctioned’ by bank officials who were not part of the conspiracy.”

He said: “The fact that some LOUs which are not said to have been procured dishonestly were obtained without a 100 percent cash margin did not mean that a jury could not regard the absence of a cash margin generally as an indicator of fraud, particularly if the jury accepted the evidence recorded by the judge. As to the suggested commercial rationale for the arrangement by which LOUs were issued first, with deposits paid later, this was a matter for trial. It did not undermine the judge's conclusion that there was a prima facie case.”

On the issue of dummy directors, Justice Chamberlain said “the Westminster judge had recognised that there were ‘competing versions of events’ and that the witness statements provided ‘an alternative narrative’. He also accepted that some of the directors' statements included verbatim passages. Nonetheless, the judge was entitled to conclude that there was a prima facie case based on witness statements, video recordings and transcripts of audio recordings.”