NIRAV DEEPAK MODI v GOVERNMENT OF INDIA

Under section 91 of Extradition Act 2003, oppression requires an overall evaluative judgment on all salient circumstances. The court must consider the requested person’s present condition together with foreseeable deterioration or fluctuation at and after extradition. In suicide-risk cases, the court assesses the risk absent preventive measures, safeguards in the requesting state and the public interest in extradition. The test does not demand a guarantee that suicide is impossible. “Capacity” and “impulse” have ordinary, broad meanings. A rational and thought-through suicide remains voluntary for this purpose. Detailed assurances may suffice even though a formal care plan or pre-existing protocol is not yet in place. The appeal was dismissed.

The appellant challenged an extradition order made after the District Judge found no bar to extradition and sent the case to the Secretary of State. Permission to appeal was granted on whether extradition would breach Article 3 of the ECHR or be unjust or oppressive under section 91 of the Extradition Act 2003 because of the appellant’s physical or mental condition. Extensive fresh psychiatric evidence and further assurances from the Government of India were admitted. The central issues were the appellant’s depressive illness, the risk of suicide following extradition, and whether the proposed Indian safeguards were adequate.

Appeal dismissed.

1. The appeal was brought under sections 103 and 104 of the Extradition Act 2003. Fresh evidence under the alternative route was admissible where it was unavailable below and decisive, applying The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin). Once admitted, the fresh evidence required the court to resolve the evidential disputes and reconsider oppression under section 91 for itself.
2. Section 91 requires a wide-ranging factual and evaluative assessment of all salient circumstances. The present-tense wording does not prevent consideration of likely deterioration or fluctuation at the time of extradition and thereafter. The court followed the approach in Dewani (No 1) v Government of the Republic of South Africa [2012] EWHC 842 (Admin) and Dewani (No 2) v Government of the Republic of South Africa [2014] EWHC 153 (Admin).
3. The court applied the suicide-risk framework in Turner v Government of the United States of America [2012] EWHC 2426 (Admin). A case may fail because the risk is insufficiently serious, or succeed because the risk remains unacceptable despite all safeguards. Most cases require assessment of the risk together with the arrangements in the requesting state. The court also considered the practical importance of preventative measures identified in Polish Judicial Authority v Wolkowicz [2013] 1 WLR 2402. No absolute guarantee against suicide is required.
4. Turner proposition 4 was interpreted in a broad, common-sense way. “Capacity” means ability or capability, and “impulse” does not require a technical psychiatric meaning. A rational and thought-through act is voluntary. Tort or contract concepts of causation should not be imported.
5. The appellant’s depression was fluctuating and generally moderate, although it had previously reached severe levels. The suicide risk in the context of extradition was high or substantial, but the evidence did not establish that suicide would occur whatever measures were adopted. The assurances provided for psychiatric assessment, multidisciplinary care, monitoring, treatment, hospital transfer, private medical care and safe accommodation. The absence of a pre-existing protocol or formal plan did not itself establish oppression.
6. The arrangements were appropriate and materially reduced the residual risk. The court was far from satisfied that any suicide attempt would be involuntary under Turner proposition 4. The public interest in giving effect to extradition treaty obligations was also material. Although aspects of the District Judge’s reasoning were erroneous, including treating the absence of immediate suicidal intentions as determinative, his conclusion was sound. The appeal was dismissed.

• High Court (King’s Bench Division), Divisional Court: appeal under the Extradition Act 2003 dismissed.
• High Court: Chamberlain J granted permission to appeal on the Article 3 and section 91 grounds and rejected the remaining grounds.
• Secretary of State: ordered extradition to India on 15 April 2021.
• Westminster Magistrates’ Court: the District Judge found no bar to extradition and sent the case to the Secretary of State on 25 February 2021.