Nirav Deepak Modi v Government of India

In an extradition bail application, the court must assess risk objectively and afresh, while recognising the presumption in favour of bail in an accusation case. Bail may be refused where substantial grounds show a risk of failure to surrender or witness interference, and proposed conditions do not adequately address those risks.

Any freestanding proportionality or arbitrariness argument must be assessed in the particular extradition context. Immigration detention principles do not automatically transfer to extradition remand. The court may consider detention’s human cost, the applicant’s incentive to abscond, access to resources, and the possibility of relocation, but must base its assessment on the evidence available.

This was an application for bail in extradition proceedings brought by the Government of India against Nirav Deepak Modi. Extradition had been ordered in April 2021 after proceedings in the Westminster Magistrates’ Court, and challenges in the Administrative Court had been dismissed in [2021] EWHC 2257 (Admin) and [2022] EWHC 2829 (Admin).

The applicant had been detained on extradition remand since March 2019. He relied on proposed security, sureties, electronic monitoring, his health, the length and human cost of detention, and arguments concerning proportionality and possible future human-rights developments. The central issues were whether substantial grounds existed for failure to surrender or witness interference, and whether detention had nevertheless become disproportionate or arbitrary.

1. Application refused. The court declined to grant bail on the proposed conditions or on any conditions it could properly devise.
2. The application was considered afresh, with a clean slate and the most up-to-date evidence. Previous bail decisions did not control the assessment, except to the extent that the judge independently agreed with them. The starting point was the statutory presumption in favour of bail in an accusation case.
3. There were substantial grounds for believing that the applicant would fail to surrender. The primary consideration was the very strong incentive to avoid extradition, arising from the seriousness of the allegations, his alleged leading role, and the potential sanction. The court also accepted a secondary substantial risk of witness interference.
4. The proposed conditions, including substantial security, sureties, curfew and electronic monitoring, did not allay those risks. The evidence provided an objective basis for concluding that the applicant might have access to very considerable financial resources. The court also rejected the submission that it was fanciful to suppose that he might relocate outside the United Kingdom.
5. The judge assumed in the applicant’s favour that a freestanding question of disproportionality or arbitrariness could be considered. However, there was no direct analogy between executive immigration detention and extradition remand. The Hardial Singh principles did not provide a basis for release where the court could not evaluate the confidential impediment to surrender or determine when extradition might occur.
6. The length and human cost of detention, including health concerns and conditions of detention, had been taken into account but did not outweigh the risks. The decision in Michel did not support a read-across because it involved special and distinct features. Bhandari was distinguishable and could not materially support release on bail.

The judgment describes earlier stages of the same extradition proceedings:

• Westminster Magistrates’ Court: extradition was ordered following a judgment in February 2021.
• High Court, Administrative Court: Chamberlain J dismissed several legal points as unarguable in [2021] EWHC 2257 (Admin).
• Divisional Court: the remaining legal points were dismissed in [2022] EWHC 2829 (Admin).
• High Court, Administrative Court: the present application for bail was refused.