London: Nirav Modi was denied bail by the London high court on Wednesday. Dame Ingrid Ann Simler, presiding over his bail application at the Royal Courts of Justice, was convinced that Nirav Modi has a strong incentive to flee if he is let out from prison.
“The possibility of returning to India is affecting the applicant significantly,” she said, adding that the fear of a likely extradition provides a strong reason for him not to surrender.
Reading out her judgement at 10 am in Court 2, Justice Simler said the increased offer of £2 m provides strong evidence that he has means to abscond. “There are still places in the world that one can escape to if they have means.”
She also observed that while there were inconsistencies in witness statements, “There is evidence that manipulation has occurred and concerted efforts were made to interfere with these witnesses.” She believes that “compelling evidence in the past is a strong basis to reach conclusion about what would happen in future”.
Looking into the mental state of Modi in prison through two confidential letters that were submitted to court by Modi’s counsel, Justice Simler observed that the fugitive billionaire could have been affected significantly by the “possibility of returning to India” and this would also provide a strong reason for him not to surrender and hence she decided to keep him behind bars.
What Nirav Modi’s lawyer had said
“Nirav Modi is no Julian Assange. He is just a jeweller from India,” Clare Montgomery, Modi’s counsel, told Dame Ingrid Ann Simler who was listening to his bail application at the Royal Courts of Justice on Tuesday.
One of the prominent arguments against Modi’s bail was that he will fail to surrender to the authorities when asked to do so. Montgomery told the court that unlike the Wikileaks founder, Modi will not hide in any embassy to evade arrest but willingly cooperate with the authorities, if he is granted bail. The billionaire has been languishing in one of the UK’s most overcrowded jails, Her Majesty’s Prison Wandsworth, since his arrest on March 19.
The case was listed for 10:30 am, but the judge only began hearing the bulk of arguments post lunch, at 2 pm. Considering the complexities of the case and the significance of this judgement, Justice Simler decided to give her verdict on Wednesday.
Modi moved the Royal Courts of Justice to seek bail in the extradition proceedings brought forth by India at the Westminster Magistrates’ Court for defrauding the Punjab National Bank to the tune of Rs 13,300 crore (or £1.2 billion). Modi had made three attempts to seek bail at the district court but was turned down repeatedly and sent back to prison where Chief Magistrate Emma Arbuthnot thought he would be restricted from tampering with evidence, influencing witnesses and fleeing the country where he was “clearly lacking any ties”.
On threatening witnesses and destroying evidence
The Crown Prosecution Service on behalf of India argued the Modi was responsible for coercion and destruction of material evidence and termed it “classic witness intimidation”. Similar arguments were made in the Westminster Magistrates’ Court, which had convinced the district judge to put Modi behind bars.
Montgomery told the high court that the charges of threatening witnesses and destroying evidence holds no water. “The reality is that at worst, his brother provided assistance to frighten employees who might be arrested, to stay in Cairo and to return to India in circumstances when they won’t be harassed.”
The judge interrupted her and said that this was “not the worst” scenario but “only one reading”. Montgomery, however, argued that the employees “were in contact with Indian authorities who were giving them advice throughout this period on what they should do” and as almost 80% of them are graduates, they were consciously “plotting their way through a difficult situation”.
Calling it a “litmus test”, Montgomery urged the judge to focus on the “tone” of the conversation between Ashish Lad (who CPS alleges Modi made death threats to) and his Egyptian handler Mohammed Taufiq. “This is a language of instruction,” she said, where Lad is “dictating arrangements” for his flight to India and does not result in anything that “discernibly identifies as a threat”.
According to the defence, the picture that emerges is one of cooperation to ensure these people return to India and meet with the Enforcement Directorate, and is not “witness intimidation by any stretch of the imagination”.
Montgomery also called the alleged destruction of phones and servers a “red herring” and said that they were “not of any evidentiary significance but means by which people can be tracked”. She also told the court that the Indian government had access to data from the company’s email system.
On access to large funds and the citizenship application
“Nirav Modi pleaded poverty a number of times in these proceeding but the curious thing is that he has increased the offer of surety consistently in the proceedings,” CPS barrister Nicholas Hearn told Justice Simler. In the first bail hearing, Modi had offered £500,000 as bail bond but by the third hearing, this amount had quadrupled to £2 million.
District Judge Arbuthnot did not doubt that considering the scale of the alleged fraud, Modi had access to large funds which cannot be overlooked. Even Justice Simler was carefully considering the scale of the alleged fraud. Montgomery argued that most of Modi’s funds are in companies where office owners hold the group assets and with “enforced procedures all over the world, the amounts are frozen”.
Hearn argued that Modi has funds to flee and the ability to live a life in other jurisdictions. “It’s not at all a fanciful suggestion to say that Modi has the ability to live elsewhere and can make arrangements to do so.” In the previous hearing on March 30, Arbuthnot had also considered Modi’s citizenship application to island country Vanuatu and access to “large resources” to call him a flight risk.
Calling his presence in the UK “fortuitous”, Montgomery highlighted that between the time the Punjab National Bank scam came into public view (February 2018) and India’s extradition request to the UK (August 2018), Modi had plenty of time and opportunity to flee. “That is when you either run or you stay,” said Montgomery, adding that UK is “a place of refuge to him” and as “there is no extradition-free zone anywhere in the world”, if Modi leaves this country he will lose a number of rights.
Justice Simler wanted to know if Vanuatu had an extradition treaty with India, which the defence confirmed it had. She also indicated that she would be considering that such cases usually have “a presumption of bail in the absence of strong evidence” and even if bail is granted now, it could be withdrawn later during the proceedings should the circumstances change.
On health issues and character references
Montgomery produced in court a doctor’s certificate highlighting Modi’s medical conditions. “The reality is that he is not the cold-blooded hardened criminal,” Montgomery told the court indicating that living in prison has taken a huge toll on her client who is willing to subject himself to strict restrictions if he is given bail. She proposed a 16-hour electronic tagging that will also ensure that Modi does not have sufficient time to plan an escape.
The defence also furnished a number of testimonies from those who know Modi including his geography teacher and his secretary Frances Hallworth-Noble, who runs the London Concierge Company, and added to the surety amount a sum of “significance”.
Modi had committed the fraud “in connivance with bank officials,” the prosecution argued adding that there has been “a concerted attempt at witness tampering” during this investigations. “This gives powerful reasons to believe that Modi will fail to surrender,” said Hearn.