England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 January 2017

1. MR JUSTICE OUSELEY: This is an appeal in relation to bail. The applicant was refused bail for the third time on 8 December 2016, by Senior District Judge Arbuthnot on the basis that there were substantial grounds to believe that he would fail to surrender if granted bail.
2. He was arrested in August 2016, and has been in custody since. He is in custody pending the hearing of an extradition request from the Republic of Colombia, in relation to the murder of two men in Colombia in 1998.
3. He was convicted in his absence in 2003, of the two murders along with firearms possession and was sentenced to 18 years' imprisonment. On the face of it, the bail application is a bold application.
4. What, however, is said is essentially that he has no real incentive to abscond because of the weakness of the Colombian case. The Colombian position as clarified by Mr Caldwell on their behalf is that no prima facie case needs to be proved if they can show that the appellant was deliberately absent from his trial.
5. Those are issues potentially to be examined, and the question of his deliberate absence, if that is where the case ends up, will have to be considered in the light of the fact that the applicant came to the United Kingdom in 1996, aged 18 or so, and was granted asylum and, as at 2003, remained a recognised refugee, which may have the effect of negating the deliberate nature of any absence were he aware of the trial.
6. The District Judge concluded that there was no better than a weak prima facie case. Mr Caldwell accepts that and in the absence of further evidence, there is no prima facie case and invites me to consider the matter on that basis.
7. Although the District Judge anticipated, in saying the matter of bail would be reviewed in January or thereabouts, that further evidence making the prime facie case might be forthcoming from the Republic of Colombia, in fact it appears very unlikely in the light of what Mr Caldwell tells me that further evidence of that nature will be forthcoming.
8. Instead, the focus of such further information as is forthcoming will be directed to the absence of need to show now a prima facie case, because the conviction was in the applicant's deliberate absence.
9. The reason why all that matters is not just because of his refugee status, but because it is the applicant's contention that, having arrived in the United Kingdom as a refugee, he would not have gone back to Colombia in 1998 to commit murder, then to return to the United Kingdom.
10. That, of course, not merely provides an alibi of some distance but also Colombia would need to disprove an alibi that otherwise could be found to exist. It would need to show that he was prepared to go to Colombia to commit murder. Colombia has to show that absence from the trial must have been deliberate, refugee status notwithstanding, which may be difficult without such a prima facie case. It therefore becomes important to all the issues as part of the case to reach a judgment about the state of play on that issue.
11. At present, there is no evidence from the Republic of Colombia about how they are going to demonstrate that the applicant left the United Kingdom, entered Colombia, stayed there for a period around February 1998 and beyond, before returning to the United Kingdom. But unless that issue is tackled, the case, it appears, must fail. So, although on a different basis, there is a very large hole, as yet unresolved, in the way of success for the Republic of Colombia.
12. That feeds into the absence of incentive to abscond but it is not the only string to the claimant's case before the District Judge in due course. Although the Secretary of State revoked his refugee status following conviction for very serious drug offences in the United Kingdom, to which I will return, he successfully appealed that refusal, had his asylum status reinstated and it has only been revoked again on the ground of change of circumstances in Colombia meaning that he was no longer at risk were he to be returned, a claim which he is appealing.
13. He has some prospects of success on that appeal from the material before me but his prospects of success would not be enhanced were he to abscond and become untraceable. Yet, maintaining his refugee status poses a considerable problem for extradition even if hurdle one, deliberate absence, is overcome.
14. There then remains the question of what would happen to him were he to be extradited to Colombia to serve 18 years in Colombian prisons.
15. There are two areas of risk:

1) The conditions of Colombian prisons, where there is an obviously strong debate to be had as to whether they, themselves, involve a real risk of a breach of Article 3. And, there is a continuing argument, to put it as no more than that, that someone in this individual's position will be at a risk from State and non-State actors on account of the position of his father.

16. It is the position of his father and the way State and non-State actors treated them which led to his departure from Colombia. His father was a leading trade unionist in Colombia in the 1990s, who was routinely threatened with violence by State or non-State actors and harassed; the murder of active trade unionists was common place and there is evidence that this sort of the behaviour by the State or non-State continues. The father is still alive and is in Australia.
17. The applicant and sisters left Colombia with the assistance of Amnesty International. The contemporaneous documents make it quite clear that that claim cannot be confounded. That is the reason why they left, those are the problems they were facing and they may not all have gone away.
18. So there are a number of strings to the bow which would provide an incentive not to flee: prospects of success in relation to the deliberate absence, continued refugee status and Article 3 issues.
19. The concerns I entirely understand about risk of flight have to be assessed, first of all, against the fact that, in my judgment, there is no presumption any longer in favour of bail; he is alleged to have been convicted. Indeed, there appears to be no doubt but that he has been convicted, the question is whether there was proper evidence for it.
20. But the loss of the presumption in favour is not the same as a presumption against, to the extent that the factors behind the conviction fall out of the picture, that is to say, the absence of prima facie case and the problems in showing deliberate absence.
21. Particularly troubling is the conviction in 2009/2010 and, on appeal, the 10 year prison sentence for drug offences in relation to cocaine, associated with Colombians, in relation to which he was held to be a lieutenant in the conspiracy. These are clearly very serious offences and attempts to treat them as him falling in with the wrong crowd rather fall, in my case, on cynical, if not entirely deaf ears.
22. However, it is not said that there is a basis for refusing bail on the grounds of his risk of committing further offences. He has undoubtedly shown some degree of rehabilitation. He was not aware of the Colombian conviction, he says, until it was shown to him on the PNC by a probation officer at the end of June 2015, but that did not lead him to go under ground and he has been on immigration bail, although I think with much less incentive to flee.
23. At the end of it all, I have come to the conclusion that this is, with conditions, an appropriate case for bail because I see no real incentive on him to flee at this stage because the case from the Colombian Government seems to suffer from a number of disadvantages which might be overcome, but at present can only be overcome by material not yet in existence and which may never come into existence.
24. There is no indication at all as to how the deliberate absence point will be overcome or, put another way, how the 1998 trip to Columbia might be proved, particularly as in 1998, there appears to be no shortage of murderers if a murderer were required. He was only one of a group of people engaged in this particular gangland murder on the Government case.
25. Although the Government of Colombia has agreed to a prison inspection, there is no basis for showing that the general reporting will be refuted, nor the individualised risk.
26. The last point that caused me anxiety was what is to happen if, against what appeared to be current probabilities, the Government were to come up with rather more convincing evidence in relation to one or more of these issues. I bear in mind what the District Judge said when refusing bail while, having in mind a future hearing, in, say January, if the response from the Colombians was: 'You've got what we've got: She said she would take a different view of bail.
27. Things, as I say have moved on, but what I would not wish to find is that there was no early opportunity for a review of a grant of bail, should it turn out that what I have been hearing from Mr Summers is in fact more optimistic than is going to be the case at the hearing.
28. It seems to be unlikely that, if the Government of Colombia has rather more in its locker than currently appears to be the case, there will be a substantive hearing on 16 and 17 February, which is the current timetable, but the Senior District Judge has said that she is quite happy to contemplate an adjournment for the benefit of the Government, should they so seek it.
29. But I would not wish the opportunity for the Senior District Judge to reconsider the question of bail to pass by. So, in granting bail subject to the conditions suggested, unless there are any others, or variations that Mr Caldwell has in mind, I do so, expressing this.
30. My conclusions are without prejudice to further evidence being produced by Colombia, which goes to the issues, in particular, deliberate absence, which alter the prospects of success. If the Government is of the view that it does indeed have evidence that alters the balance in any significant way, then they can make an application regardless of what I said here to the Senior District Judge for revocation of the bail, in whatever they see as the appropriate form and they are, in my judgment, fully entitled to do that when that information comes in. I express the hope that the Senior District Judge will make a hearing available rapidly should bail be revoked; the issue could be reconsidered at the hearing currently fixed for the 16th which might be a useful hearing date to maintain for a while (but it is not for me to say) so that the bail and future direction of the hearing can be considered.
31. But, at present, I have decided it is not right for this applicant to stay in custody waiting to see what will happen then. I think in this case the boot should be on the other foot.
32. MR JUSTICE OUSELEY: Conditions.
33. MR SUMMERS: Could I just say we hear everything that my Lord just said.
34. MR JUSTICE OUSELEY: Yes.
35. MR SUMMERS: We undertake to co-operate entirely with the spirit of what my Lord has said.
36. MR JUSTICE OUSELEY: Thank you. All right, now, the form of conditions. When bail is granted, I like them to be written out in a form as if they would, if it were an injunction.
37. So the conditions are that, not residence, conditions should be:
38. The applicant [or however you want to describe him] must reside at Flat 9, Norman Court, Lordship Lane. "Reside" should actually be live and sleep at.
39. He shall permit himself to have an electronically monitored curfew attached to him, which he shall continue to wear in accordance with the instructions of whoever is the relevant body.
40. He shall report daily to Walworth Road police station, full address please. He is not to apply for any passport. He has no passport, I take it?
41. MR SUMMERS: No.
42. MR JUSTICE OUSELEY: Not that he is prepared to, anyway, not to apply for any passport, it needs to be said. He is a refugee; refugee travel document, or any other travel permit documents, nor to buy any international transport tickets.
43. He is to notify the court before release of the mobile telephone number of the telephone that he is to keep, that he will then be obliged to keep fully charged, switched on and on his person 24 hours a day and the security is to be paid in whatever is the appropriate form before release.
44. He may not be released today, indeed, I probably think with what has to be done it will not be until Monday.
45. MR SUMMERS: That is almost certain.
46. MR JUSTICE OUSELEY: But if you can get those terms agreed, drawn up, and by all means have something at the start: because I think it is important for him to understand (and also his family and I appreciate they are here) to understand this is not for ever.
47. MR SUMMERS: Yes.
48. MR JUSTICE OUSELEY: Or may not be for ever but some reference to what I said about the Government, may upon receipt of the further information, seek to revoke bail. The hope is expressed that a hearing on the 16th would be appropriate.
49. MR CALDWELL: Might I raise two matters? You did not rehearse Condition E, and I would invite you to include that as part of --
50. MR JUSTICE OUSELEY: Yes, I did not rehearse it simply because I did not have any textual comment to make, apart from the general one: "He shall not."
51. MR CALDWELL: Yes. The second point, there is a hearing, I think it is 2 February.
52. MR JUSTICE OUSELEY: The 2nd?
53. MR CALDWELL: Yes. Listed on "review hearing".
54. MR JUSTICE OUSELEY: Will you be ready by the 2nd?
55. MR CALDWELL: I do not know but that is when the judge is going to look at what we received.
56. MR JUSTICE OUSELEY: I do not mean will you be ready, what I mean is will you have received what you are going to receive?
57. MR CALDWELL: My hope is that we shall have received it by then. Otherwise, what I was going to invite my Lord to do is to ask him attend on that occasion.
58. MR JUSTICE OUSELEY: Yes.
59. MR CALDWELL: He does not have a duty to attend on that occasion and it will be the first opportunity.
60. MR JUSTICE OUSELEY: I think he should attend on that occasion and the Senior District Judge can decide what to do then in the light of whatever is revealed. So he is bailed to appear on 2nd February.
61. MR CALDWELL: I hope I have that date correct.
62. MR SUMMERS: Yes.
63. MR JUSTICE OUSELEY: All right, thank you. I am grateful to you Mr Caldwell for that and for the temperate way that you have expressed your case. You, too, Mr Summers, but you did not lose.
64. All right. Will you get the order up to me on Monday so I can sign it?
65. MR SUMMERS: Yes.
66. (The matter concluded)