Khan v Government of the USA

In extradition proceedings, bail is approached in the same way as in an ordinary criminal case. The question is whether there are substantial grounds for believing that the accused would fail to attend the extradition hearing or subsequent proceedings. The court may assess the strength of the case, the likely sentence, the accused’s access to funds, nationality and ability to obtain a passport, and the practical value of proposed sureties and other conditions. Exceptionally substantial sureties do not overcome a powerful incentive to abscond where the evidence indicates access to significant funds and a substantial risk of extradition followed by a lengthy custodial sentence.

The appellant faced extradition to the United States on charges of conspiracy to import cocaine and associated money-laundering offences. The extradition hearing was listed before a District Judge. The appellant appealed against the refusal of bail.

He relied on a proposed entrapment argument, his previous compliance with bail during domestic criminal proceedings, substantial family sureties, cash security, residence, electronic tagging, curfew and reporting conditions. The central issue was whether there were substantial grounds for believing that he would fail to attend the extradition hearing or later proceedings.

1. The appeal was dismissed. Bail had to be considered by asking whether there were substantial grounds for believing that the appellant would not attend the extradition hearing or subsequent extradition proceedings.
2. The court accepted that the appellant might regard the entrapment argument as giving him some prospect of resisting extradition. Nevertheless, the evidence disclosed a strong case involving a major cocaine conspiracy, the provision of substantial funds, and a possible sentence of at least 10 years in the United States. The prospects and consequences of failure therefore created a powerful incentive to abscond.
3. The court took account of the appellant’s previous compliance with bail, his family connections in the United Kingdom and the proposed security of £617,000 in property equity together with £50,000 in cash. Those matters did not outweigh the incentive to flee. The evidence gave substantial grounds for believing that, absent a successful entrapment argument, the appellant had access to substantial funds with which he could finance flight and protect those providing sureties.
4. As a dual national, the appellant’s ability to obtain or use passports could not adequately be controlled by a bail condition if a strong incentive to abscond existed. Residence, tagging, curfew and reporting requirements were likewise insufficient.
5. The position might be reconsidered if the District Judge rejected extradition on the entrapment issue. Until that issue had been determined, the incentive to flee was too great for bail to be granted.

• High Court (Administrative Court): The appeal against the District Judge’s refusal of bail was dismissed.