Nirav Modi will remain in Wandsworth prison in London after the Chief Magistrate at Westminster Magistrates' Court refused to grant him bail for a third time, concluding that while new evidence had been put before the court and the security offer upped to £2 million, it had not been enough to assuage her concerns.
These centred around the “large fraud” at the heart of the allegations against Modi (including the allegation that “$60 million had been squirrelled away personally” by Mr Modi), his lack of community ties in the United Kingdom (UK), the risk that he would attempt to interfere with witnesses and damage evidence, and the risk that he would attempt to use the substantial means available to him to evade justice.
The next hearing – a case management hearing - is set to take place on May 30, where Chief Magistrate Emma Arbuthnot said she expected the presentation of India’s “perfectly paginated papers.”
The refusal came despite the offer of £2 million in security, and the defence’s contention that Modi would not seek to flee the UK which he regarded as his “haven”. He also cited the “unliveable” conditions at Wandsworth jail as a compelling reason for him not to risk being thrown back in prison. “The experience in custody has been vivid and damaging,” Defence Barrister Clare Montgomery told the court.
'Luring away' potential witnesses
Earlier in the hearing, Judge Arbuthnot had raised the possibility of considering a 24-hour curfew were bail to be granted. She said that while the defence had put forward a very “compelling argument” that witnesses had been lent on not by Modi and his associates but by Indian authorities.
However, the judge pointed to particular transcripts provided to the court, that suggested the “luring away” of potential witnesses (former Abu Dhabi based employees) to Egypt. She also referred to one conversation in which Modi’s brother Nehal, appeared to be telling a witness what to say.
Judge Arbuthnot said that while her “first thought” had been that the risk of evidence and witness tampering had receded because of the passage of time since 2018, on reflection she accepted the argument of the prosecution that there remained a real risk to proceedings set to take place in the UK and beyond that in India. “I won’t be granting bail,” Judge Arbuthnot told Modi, describing the £2 million as “not sufficient’ in the case.
The Crown Prosecution Service, acting on behalf of India, was represented by Nick Hearn of Furnival Chambers, while Modi was represented by Clare Montgomery, who represented Vijay Mallya in his extradition hearings.
Third bail hearings – rather than an appeal lodged at the High Court - are relatively rare and only take place where the applicant can demonstrate a significant change in circumstances that warrants new consideration being given. During the hearing Hearn argued that there was nothing in the new defence bundle on 30 April that amounted to a “material change of circumstances” and that the previous conditions for refusal of bail remained as relevant as ever – in particular Nirav Modi’s access to “substantial” financial resources, an alleged track record of interfering with witnesses and tampering with potential evidence that left the risk that this could happen in the future, the lack of community ties and the possibility that he could seek citizenship elsewhere as he had in Vanuatu.
During the hearing on Wednesday afternoon, much time was spent on both sides about the witness statements provided to Indian authorities by former employees mostly from Abu Dabhi who had, with Modi and his associates’ assistance, moved to Egypt.
This was alongside a statement provided by Suresh Parab, a former employee, to the defence, with a different account of what had happened, contesting the suggestion he was being “unlawfully imprisoned” in Egypt against his will.
While the prosecution insisted the picture built up was one of an attempt to intimidate witnesses, the defence used some of the transcripts of phone calls provided by Indian authorities to attempt to suggest they were simply being assisted.
The defence insisted that they had gone to Egypt voluntarily, fearful of what could happen to them if they remained in Abu Dhabi or returned to the India. Montgomery challenged India’s presentation of Nirav Modi as a “diabolical mechanic,” and a “cold blooded hardened criminal.
Montgomery also suggested that India had changed its stance on Suresh Parab, from initially suggesting that he was being held against his will in Egypt to insisting he was a key co-conspirator now that he had provided a statement for the defence. Instead the defence sought to build up a picture of intimidation of witnesses by the Enforcement Directorate, including with reference to one individual who was questioned in relation to a separate inquiry, but was asked questions specifically about Modi.
The hearing also focused on the prosecution’s contention that Modi had travelled out of the UK on a number of occasions since arriving here in December 2017, most recently in February 2019. Ms. Montgomery told the court that even India had acknowledged that that alleged visit to New York – referred to India at the previous bail hearing -hadn’t taken place, and that he had gone there in 2018. However, they had provided no evidence to back this up, Montgomery insisted.
The defence also challenged the contention that Modi had substantial means to evade justice, referring to the huge amount of assets frozen or confiscated by Indian authorities that exceeded the value of the alleged fraud at Punjab National Bank. India had made the allegations that he had significant assets “without revealing” that there were significant seizures in India, Ms. Montgomery said.
Hearn challenged the defence’s presentation of the case as a simple “white collar” case. “it is not right to treat it as an ordinary corporate case,” he said.