England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th August 2021

Judgment as delivered in open court at the hearing

Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.

MR JUSTICE FORDHAM :

1. This is an application for bail in an extradition case, bail having been refused in the magistrates' court. The mode of hearing was a remote hearing by MS Teams. This was the preference of both parties and I am satisfied that it was appropriate and involved no risk of injustice. The open justice principle has been secured in all the usual ways including publication of the case and its start time in the cause list together with an email address usable by any member of the press or public who wished to observe the hearing.
2. The Applicant is aged 36 and is wanted for extradition to Romania. That is in conjunction with a conviction European Arrest Warrant (EAW). It being a conviction warrant case, there is no presumption in favour of the grant of bail. My jurisdiction involves considering bail afresh.
3. The index offences to which the EAW relates were described as aggravated thefts (shoplifting involving removing security tags) in 2015 and 2016 and an offence of driving without a licence and 2018. The sentence was two years but was part-served between January and October 2018. Some 14 months remained to be served, according to the Respondent. The Applicant has been on qualifying remand since 13 July 2021. The Respondent says there are just under 14 months to serve, were the Applicant extradited today. It follows that, were he released on bail today, it would be in the context where according to the Respondent he faces that period of custody. Mr Sharma for the Applicant had calculated a period of 8 months to serve. He had done so from the Respondent's own description of the relevant facts. I am quite satisfied that nothing turns on any disagreement between the parties. But if it mattered, this Court would in my assessment have no reason to question or go behind the 14 months calculated and explained by the Respondent.
4. The essence of the case for bail, as I see it, is as follows. These are not offences of the greatest seriousness. The period to be served, whether 8 or 14 months, is not a significant one. Extradition is not imminent. Stringent bail conditions are put forward which allay any concerns which arise in relation to failure to surrender. These include a significant pre-release security of £10,000 which it is said can be properly evidenced as to its provenance – from family members (that is in circumstances where a question had been raised by the Respondent who says that the Applicant's partner (or former partner) is herself wanted on a Romanian arrest warrant to serve a sentence exceeding 4 years custody for trafficking children). Although the Applicant is under investigation, he has not been charged and no charging decision has been made, nor is it understood to be imminent. Others have been charged. He was on police bail previously and there is no evidence that he did not comply with those police bail conditions. There is a bail address, to which he was previously bailed by the police. He can be required to report to the police station. He would be electronically monitored and under a curfew. His travel documents have been retained and there would be the usual conditions as to travel documents and travel hubs. Previous convictions in Romania are historic. In all the circumstances, there are no substantial grounds for believing that the Applicant, if released on bail on appropriate conditions, would fail to surrender. That, then, is the essence of the case put forward for granting bail.
5. I am not prepared to grant bail in this case. In my assessment, there are substantial grounds for considering that if released on bail – and notwithstanding the conditions put forward and which the Court could impose – the Applicant would fail to surrender. There are clearly some factual controversies and uncertainties. Most obviously, there is a question-mark about the past partner or present partner. I am not making findings of fact but I am assessing risk, on the basis of the material before the Court and what I have heard. I am satisfied that there is no need to adjourn for further material to be provided or any matters clarified. Nothing turns on any issue which further information or clarification would decisively resolve.

i) The first point which weighs with me is that the custodial period is not insignificant. It stands as a powerful incentive to avoid having to serve it if possible.

ii) The second point is that there is, on the face of it, an evidenced basis for treating the Applicant – for the purposes of the objective assessment of risk – as having come to the United Kingdom as a fugitive. I am not making any finding of fact, nor should my observations serve to influence any judge who is doing so. I am assessing risk. But on the face of it the Applicant served part of the sentence and was well aware of the relevant matters. On the face of it, he came to the United Kingdom as a fugitive in relation to these very matters, knowing the scale of the custodial sentence and acting to avoid it, and crossing borders. Even if the effect of the arrangements and the part-serving of custody in Romania were that it meant the lesser 8 months left to serve – given that it is known and clear what are the date of arrest and period of qualifying remand in this country –that was the very circumstance which on the face of it the Applicant avoided by crossing borders and leaving as a fugitive.

iii) The third point is that there is no 'anchoring' link to the United Kingdom which in my assessment prevents concerns from arising or which allays them having arisen. That is so, independently of the factual issue about the partner or former partner. The Respondent says that the Applicant's partner – whether present or former partner has, as I have explained, not been confirmed – is herself wanted to serve a custodial sentence in Romania in excess of 4 years. The Applicant's position is that the relationship in which he is currently is a more recent one with a different partner. Either of those circumstances serves to undermine the 'anchoring' that might arise from any relationship. I have seen no other material or identified no other circumstance which would present an 'anchor', still less one which could prevent concerns arising or allay them.

iv) The fourth point is that, on the face of it, the Applicant is an individual who is mobile so far as his location is concerned. That is supported by the fact that he has a conviction in Italy in 2016 for theft which led there to a four-month sentence suspended for 5 years.

v) The fifth point is that the Applicant has robbery convictions in Romania in 2002 and 2006 which led to custodial sentences of 3½ years and 6 years respectively. Those are in my assessment relevant features notwithstanding that they are "historic". He also has a conviction in the United Kingdom in 2019 for driving without a licence or test certificate or insurance, conduct which mirrors one of the index offences in the extradition case. He was on police bail for serious matters – kidnapping and keeping a brothel – albeit that I accept that he has not been charged and that it counts in his favour that there is no evidence of non-adherents to those bail conditions.

vi) Finally, the extradition hearing can in my assessment properly be characterised as "imminent". I am told that it has been fixed for 7 September 2021, which is less than two weeks away. The Applicant may very well perceive himself as facing the very real prospect of extradition in the near future. Whatever the precise timing, nothing I have been shown indicates that his case for resisting extradition through compliance and the legal process is one that is or would be perceived by him to be a strong case. Again, I am not making findings on matters which will need to be considered by another judge or judges. I am assessing risk, on the basis of the position as it appears to me.

6. It is in the light of all those considerations that bail is refused. My assessment is that, notwithstanding the proposed conditions, that are substantial grounds in this case for believing that if released on bail the Applicant would fail to surrender.

26.8.21