London: Fugitive businessman Nirav Modi, who has been in prison in London for over five years, on Tuesday made a new bail application which was rejected by a UK judge who ruled that he continued to pose a “substantial risk” of absconding justice.
The 52-year-old diamond merchant, who lost his extradition battle to face fraud and money laundering charges in India, did not appear for the bail hearing at Westminster Magistrates Court in London but his son and two daughters were present in the gallery.
District Judge John Zani accepted their legal team’s submission that the long passage of time since the last bail application three and a half years ago constituted a change in circumstances to allow the hearing to go ahead.
“However, I am satisfied that there remain substantial grounds against bail. There continues to be a real, substantial risk that the applicant [Nirav Modi] would fail to attend court or interfere with witnesses,” concluded Judge Zani in his judgment after a short hearing.
“This case involves, by any footing, a very substantial fraud allegation… not one where bail can be granted and the application is refused,” he said.
The court heard that while Modi had lost his legal fight against being extradited, there were “confidential” proceedings ongoing which had been instigated by him. This would indicate an asylum application but the only indirect reference made to it in court was when the Crown Prosecution Service (CPS), appearing on behalf of the Indian authorities, dismissed the assertion that the UK Home Secretary may “never be able to order extradition” as incorrect.
“He has demonstrated his complete determination to not face the allegations in an Indian court and it is no exaggeration to say the fraud in question is over USD 1 billion, of which only USD 400 million has been seized. Therefore, he could still have access to significant resources in various jurisdictions,” CPS barrister Nicholas Hearn told the court.
A joint Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) team had arrived from India for the hearing and followed the proceedings in court. There are three sets of criminal proceedings against Modi in India – the CBI case of fraud on the Punjab National Bank (PNB), the ED case relating to the alleged laundering of the proceeds of that fraud and a third set of criminal proceedings involving alleged interference with evidence and witnesses in the CBI proceedings.
He was arrested on an extradition warrant on March 19, 2019, and then UK Home Secretary Priti Patel ordered his extradition in April 2021. Modi has since exhausted his legal appeals in the case up to the Supreme Court and made six separate bail applications, offering up to GBP 4 million as security in his last attempt in October 2020.
His barrister Edward Fitzgerald told the court that Diamond Holdings, where he remains CEO, has since suffered losses due to the pandemic and global recession and is able to offer only GBP 500,000. However, he offered several strict limits on liberty for the purpose of bail, including an electronic tag, connectivity by phone at all times and a ban on him applying for any form of travel documents.
“His detention has simply been too long for allegations of economic offences,” argued Fitzgerald, claiming that his client no longer posed any alleged threats of interfering with witnesses as there had been no such activity despite him having phone access in prison over the years.
He also pointed to the “well established” history of Modi’s mental problems, including depression and suicide risk, which had deteriorated further due to incarceration first at Wandsworth prison, south-west London, and now at Thameside, south-east London.
The judge acknowledged that Fitzgerald had made the case “forcefully and fairly” and that Modi had not yet been convicted of any crime as that was a “matter for the Indian judicial system”. However, he aligned with the CPS assertion that he was at the “epicentre” of the fraud allegations in which many of his co-defendants in India had been granted bail.
The defence also sought to raise reports of alleged Indian secret agent involvement in incidents in Canada and the US, claiming that Modi faced a risk to his life from Research and Analysis Wing agents and was safest in the UK. The fact that his younger daughter now had admission to study in the country and his two other children could visit him frequently from New York meant he had no incentive to flee the jurisdiction.
He also dismissed the CPS highlighting the diamond merchant’s previous attempt to invest funds in favour of a Trade Commissioner’s role in Vanuatu in the South Pacific Ocean to acquire citizenship in a jurisdiction without an extradition treaty with India, saying he would not be safe from Indian reach anywhere other than the UK.
However, the judge was unconvinced and handed down his ruling after a few minutes of consideration, leaving his children visibly distraught.
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