McCarthy v Republic of Ireland

In extradition proceedings, the High Court may grant bail where it is satisfied that there are no substantial grounds for believing that the person would fail to surrender. The assessment is fact-sensitive and must consider both adverse matters, such as previous failures to surrender and the seriousness of the alleged offence, and factors which may create a strong incentive to comply. Personal circumstances are not independently relevant to the risk assessment, but they may be relevant to the applicant’s incentive to obey conditions. Stringent conditions, including residence requirements, electronic monitoring, regular reporting, surrender of travel documents and financial security, may sufficiently secure attendance even where the applicant has a poor record, if the circumstances are unusual and the risk is adequately controlled.

The applicant, an Irish national, was wanted under a European Arrest Warrant issued in connection with an alleged sexual assault in Ireland in 2009. He had previously failed to attend court in Ireland and had a history of offending, including offences committed while on bail. His earlier applications for bail had been refused.

He applied to the High Court under section 22(1)(a) of the Criminal Justice Act 1967. He relied principally on his wife’s serious and recent medical condition, his role in caring for her, proposed financial security and stringent reporting and monitoring arrangements. The central issue was whether there were substantial grounds for believing that he would fail to surrender if released.

1. The application for bail was granted under section 22(1)(a) of the Criminal Justice Act 1967, subject to stringent conditions.

2. The question was whether there were substantial grounds for believing that the applicant would fail to surrender if released. The court considered his previous failures to surrender, offending history, offences committed while on bail and the seriousness of the alleged sexual offence.

3. The applicant’s wife had recently suffered a grave medical emergency and required extensive assistance, including 24-hour care, home oxygen therapy and wheelchair support. Her circumstances were not independently relevant to the risk of failure to surrender. They were, however, relevant to the applicant’s own incentive to comply, because of their close relationship, long marriage and shared home.

4. The earlier failures to surrender and bail-related offending were several years old and did not occur against the background of the strong and recent incentive created by the need to support his wife. The seriousness of the alleged offence and the possible sentence were relevant adverse considerations, but did not prevent the court from being satisfied that attendance could be secured.

5. Residence with his wife, electronic monitoring, a police doorstep condition, daily reporting, surrender and non-application for travel documents, a prohibition on leaving England and Wales, financial security of £9,000 and continuous availability by mobile telephone were sufficient safeguards. The applicant could be released once those conditions were met.