The oldest truism of the legal profession was underlined heavily in an appeal hearing in the Nirav Modi extradition case on Wednesday: whoever wins or loses a case, lawyers on both sides win. In the Nirav Modi case, as in the Vijay Mallya extradition case before, they’ve won many times over.
So once again much the same arguments made earlier during the course of the hearings in the extradition case at the Westminster magistrates court were hammered in by Nirav Modi’s defence during the hearing on Wednesday. Inevitable to an extent of course: an appeal would seek to bring up the same arguments with renewed vigour before another court, another judge.
Except that the hearing that lasted all day on Wednesday was not the appeal itself; only an oral hearing to determine whether Nirav Modi should be granted leave to have an oral hearing. The same arguments were submitted in writing earlier, and at the written level Nirav Modi’s arguments were rejected. If an oral hearing is allowed, we will hear these all over again.
Only if that is refused would this be the end of the extradition case. Nirav Modi would have lost out, with no recourse for further appeal in the extradition process. The matter would then go back to the Secretary of State for Home, Priti Patel, for her to sign an order to physically extradite Nirav Modi.
But that still may not be the end of the matter, as we saw in the Vijay Mallya case. After losing the extradition battle finally, he simply filed for asylum. That has kept him still in the UK, and may well do for the rest of his days. And on the basis of much the same arguments presented before an asylum court.
Much of Nirav Modi’s defence on Wednesday arose by way of medical defence. He was said by his lawyers to be so depressed that an extradition order would drive him to suicide. Since no one would want that, and the law doesn’t, that scenario was presented as an argument. Against extradition.
We won’t have heard of that either, even if Nirav Modi were to lose the extradition case. Once the matter goes back to the Secretary of State for her to sign an extradition order, Nirav Modi’s team would have the option at that level to file a further appeal to the government to block his extradition on medical grounds.
All this through hearings that are never intended to be a trial to determine whether Nirav Modi is guilty or not. The remit of the court is well short of that. It is to determine only whether it appears to the court on the basis of prima facie evidence, it seems right on the balance of probability for him to be sent back to India to face trial there.
Mr Justice Chamberlain who heard the case at the High Court on Wednesday reminded everyone of that. It was not for his court, he said, to determine guilt or otherwise, as it had not been for the magistrate’s court earlier. The arguments being presented to him, he said, were going into “too much detail”.
That related to the arguments over the issue of fraud as claimed by the prosecution and denied by the defence. Ben Watson appearing for defence presented detailed suggestions in a bid to convince the judge that the Indian government case was contradictory and therefore self-defeating, and should consequently be rejected.
Picking a prison
But the defence hammered away at the other options open to them under law that do not relate to the merit or otherwise of the case against the person whose extradition is being requested. Under law, no one can be extradited to a country where detention conditions do not meet acceptable standards or where the court in England believes he or she may not get a fair trial.
And so it was argued by Nirav Modi’s legal team that it would take too long to get a psychiatrist to him if he needed one, that this would require permission from a judge who may refuse it, that India’s sovereign guarantees cannot be trusted, that the Indian legal system could be trusted as little as Rwanda’s, that government ministers had declared Nirav Modi guilty without regard for the legal presumption of innocence until proven guilty.
It is over these arguments as well as those over the prima facie case of fraud that Mr Justice Chamberlain will give his order, expected within the next few weeks – on whether these issues deserve another and even more extensive oral hearing.