THE GOVERNMENT OF THE UNITED STATES OF AMERICA v MOHAMMAD ZAID AL-SARBEL

On a rehearing of extradition bail, the court must reconsider the risk of failure to surrender afresh. The statutory presumption in favour of bail remains the starting point, but it is rebutted where there are substantial grounds for believing that the requested person would fail to surrender and available conditions would not sufficiently address the risk.

Risk is assessed evaluatively rather than by making findings about guilt. Relevant considerations include the seriousness of the allegations and potential sentence, the requested person’s resources and ability to evade enforcement, the strength of foreign connections, the absence of effective domestic ties, and whether proposed security would operate as a genuine anchor. An assurance preventing legitimate travel does not necessarily prevent illegitimate exit.

The United States appealed against a District Judge’s decision, made two days earlier, granting conditional bail to a requested person facing extradition on an accusation warrant.

The requested person was wanted in connection with five alleged offences arising from computer hacking, trafficking in passwords, access device fraud, identity theft and aggravated identity theft. The proposed bail conditions included substantial pre-release security, residence, a curfew, electronic monitoring, reporting requirements, passport retention and restrictions on international travel. The Kuwait Embassy also assured the court that no international travel document would be issued.

The central issue was whether there were substantial grounds for believing that the requested person would fail to surrender to custody if released on conditional bail.

1. Rehearing. Under Bail (Amendment) Act 1993, section 1(1A) and (9), the question of bail had to be considered afresh. The court’s task was to evaluate risk on the evidence, without determining guilt or making findings of fact about the alleged offences.
2. Presumption and statutory threshold. In an accusation case, section 4(2A) of the Bail Act 1976 created a presumption in favour of bail. The relevant question remained whether there were substantial grounds for believing that the requested person would fail to surrender. The presumption was displaced if the proposed conditions were insufficient to allay that risk.
3. Risk assessment. The seriousness of the alleged conduct and the substantial period of imprisonment that might follow conviction created a significant incentive to abscond. The alleged offending also indicated, for risk-assessment purposes, a person with potentially significant skill, resourcefulness, contacts and means. The requested person’s strong family and personal connections with Kuwait, together with the absence of an extradition treaty between Kuwait and the United States, meant that Kuwait could operate as a safe haven.
4. The United Kingdom provided no substantial pre-existing anchor. The proposed tenancy was arranged for release and did not establish a powerful connection to remaining in the United Kingdom. The proposed security was substantial, but the absence of evidence about its source meant that it did not demonstrate a sum which could not afford to be lost. The Embassy assurance removed legitimate exit but could not eliminate the possibility of illegitimate exit. In the circumstances, no further or more stringent conditions would sufficiently address the risk.
5. The presumption in favour of bail had therefore been convincingly displaced. The appeal was allowed and the District Judge’s grant of bail was overturned.

• High Court (Administrative Court): [2022] EWHC 1294 (Admin). Appeal allowed against the District Judge’s decision granting conditional bail; the grant of bail was overturned.