Voloshchuk v Government of Ukraine

In extradition proceedings following conviction, the statutory presumption of bail is disapplied, leaving no presumption either for or against release. The court must assess the circumstances afresh, with the risk of failure to surrender a particularly significant consideration. A risk of further low-level offending in the United Kingdom will not, by itself, justify refusing bail where the applicant has served the relevant sentences. Bail may nevertheless be refused where the seriousness of the extradition proceedings, the prospect of a substantial foreign sentence, and a recent history of non-compliance with courts create an unacceptable absconding risk. Proposed residence, tagging, curfew and reporting conditions must be assessed for their practical ability to prevent absconding.

The applicant, a Ukrainian national, was detained under an extradition warrant after completing a custodial sentence in England for shoplifting and failures to surrender to custody. Ukraine sought his extradition to serve a sentence of more than four years for an offence committed there. Magistrates’ courts, most recently District Judge Arbuthnot, refused bail on the grounds of risks of failure to surrender and further offending.

The applicant applied to the Administrative Court for bail or variation of bail conditions. The central issues were the statutory position following conviction, the relevance of further offending, the risk of absconding, and whether stringent conditions could sufficiently manage that risk.

1. Statutory position. Section 4 of the Bail Act 1976 creates a general right to bail for accused persons. In extradition proceedings where the person has already been convicted, section 4(2) B disapplies that presumption. The resulting position is a blank sheet of paper: there is neither a statutory nor a common-law presumption against bail.
2. Further offending. The court would not base the decision on a perceived risk of further offending in Ukraine, since the applicant was unlikely voluntarily to go there. Nor was it justifiable, on the facts, to refuse bail merely because his history suggested a risk of future objectively low-level offending in the United Kingdom after he had served his sentences.
3. Failure to surrender. The risk of failure to surrender was materially different and much more significant. The seriousness of the extradition proceedings and the substantial sentence facing the applicant in Ukraine provided a strong incentive to abscond. That incentive was reinforced by his recent sustained disregard for court authority, including repeated failures to surrender and the use of aliases.
4. Conditions. Residence requirements, electronic tagging, a curfew and reporting obligations did not adequately eliminate the risk. A curfew necessarily allowed periods in the community, tagging only showed whether the applicant was at a specified location, and no financial security or passport surrender was available.
5. Disposition. Although the factors were finely balanced, release was considered too risky. The bail application was refused and the applicant remained in custody. Bail was to be reconsidered at or after the substantive extradition hearing.

District Judge Arbuthnot refused bail on 4 February 2013. The applicant then applied to the High Court (Administrative Court), which refused the application and continued his detention pending the extradition hearing.