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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Voloshchuk v Government of Ukraine [2013] EWHC 727 (Admin) (01 March 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/727.html Cite as: [2013] EWHC 727 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 March 2013

1. MR JUSTICE HOLMAN: Within the context of extradition proceedings the High Court has a statutory power to grant bail, or vary conditions of bail, when it has been withheld by a Magistrates' Court.
2. The essential factual situation in this case is that the applicant is an Ukrainian, now aged 23, who has, however, lived in this country for several years. Regrettably, over a period of several months during 2012 he embarked upon what is in aggregate a significant course of criminal offending. He was caught shoplifting on no less than seven occasions between March and October 2012. The earlier sentences were, as might be expected, of very low severity beginning with a conditional discharge, but as the offending continued so the sentences increased until finally he was sentenced to an aggregate sentence of several months' imprisonment. Side by side with that history of shoplifting there was, and it is particularly relevant to the present case, a history of failing to surrender to custody. On no less than four occasions during 2012 he was separately convicted and sentenced for that failure.
3. It appears that in 2009, whilst visiting the Ukraine, he committed an offence there of stealing a mobile phone. He has been convicted in the Ukraine of an offence, which is characterised there as one of robbery, and sentenced to just over four years' imprisonment.
4. On 14 January 2013 the applicant was released from Brixton Prison, being the due date of release from the custodial sentence here that he was serving for shoplifting lifting and failure to surrender to custody. Outside the gates of the prison he was immediately arrested and redetained because of a warrant for his extradition in relation to the conviction in the Ukraine. As I understand it, he has, in effect, remained seamlessly in detention.
5. There have been several hearings before district judges in Magistrates' Courts, who have refused to grant bail. The most recent substantive hearing was before District Judge Arbuthnot on 4 February 2013. As I understand it, she refused to grant bail for the twin reasons of a risk of failure to surrender and a risk of committing further offences.
6. Section 4 of the Bail Act 1976 creates a presumption of a "general right to bail of accused persons". That presumption applies also in the context of extradition where the purpose of extradition is to face trial for an offence. However, by section 4(2)B the presumption is disapplied in extradition cases when the person concerned has already been convicted of an offence.
7. It has been agreed between the advocates this morning, namely Miss Mary Westcott, on behalf of the applicant, and Mr Daniel Sternberg, on behalf of the Government of Ukraine, that the effect of those statutory provisions is effectively to create a blank sheet of paper. There is no statutory presumption in favour of the grant of bail, but equally there is no presumption either by statute or common law that bail should not be granted.
8. We have had some discussion this morning as to how far it is relevant or appropriate, in the circumstances of this case, to have regard to any risk of the commission of further offences. There is little risk of the commission of further offences in the Ukraine, since the one place to which this applicant is highly unlikely voluntarily to go at the moment is the Ukraine. In so far as further offending in this country is concerned, he has served his sentences for all his offending to date, and it does not seem to me that it could be justifiable to refuse bail simply because his history may indicate some future risk of further objectively low-level offending.
9. So I, for my part, would not base any decision in relation to bail in this case upon any perceived risk of the commission of further offences. The risk of a failure to surrender is, however, a different and much more significant matter.
10. On behalf of the applicant Miss Westcott makes three essential points. First, she points to the applicant's own proof of evidence, signed on 28 January 2013, in which he gives some explanation for the period of shoplifting last year, namely that he had broken up with a long-term girlfriend and was depressed and drank too much. He states that the period in custody has "set me right and I started to act like a model citizen again". So she submits that the history of offending, including the failures to surrender to custody in 2012, was contained within a period of a few months, for which he gives an explanation.
11. Second, she says that there is currently a known reluctance, to put it no higher, on the part of the courts here to extradite people to Ukraine because of concern about conditions in detention there. She draws my attention to the very recent authority of the Divisional Court in Lutsyuk v Ukraine, dated 18 January 2013, in which the effect of the decision of that court was that a person should not be extradited to Ukraine. She says that her instructing solicitors, who have some experience in this field, having indeed acted also in that case, have informed their client of that fact, and that therefore he has a degree of optimism that he will not in fact be extradited. She submits, therefore, that he has every incentive to co-operate with the process here and a degree of optimism that he will not in the end be extradited.
12. Third, she has drawn my attention to a range of proposed conditions as to residence, tagging, a curfew order and reporting to the local police station, which, she says, should sufficiently guard against his absconding.
13. Against that Mr Sternberg says that this is a clear case of a clear risk of absconding. It has to be seen in the context that the sentence that he faces in Ukraine is one of no less than four years' imprisonment for theft or robbery of a mobile phone, and that the spectre of that sentence alone provides a strong incentive to abscond. He points out that the inescapable fact is that recently this applicant has shown a sustained history of disregard for the authority of the law. There is, first, the underlying offence in the Ukraine in 2009. There are the seven offences of shoplifting in 2012, and there are no less than four offences of failing to surrender to custody during the course of 2012. He points out, too, that the antecedent history indicates that this is a man who has chosen to use a range of alias names and indeed a range of alias birth dates.
14. I specifically asked Mr Sternberg whether it might not be possible, by sufficiently tight conditions, to protect against absconding, but he points out that any curfew order would have to permit a period of time out in the community. Electronic monitoring by tag merely indicates that the person is not in a specified location, and during the permitted times in the community he might go anywhere. An earlier suggestion that a significant sum might be deposited by way of security is no longer able to be offered. There is not even scope for surrender of the applicant's passport, because he says he has lost it.
15. I have not found this decision an easy one and I do regard the factors as relatively finely balanced. But in the end it does seem to me that the underlying proceedings at the moment are serious ones. However they may be resolved, this involves a lawful application for extradition to a foreign country to serve a significant sentence of imprisonment. The inescapable fact is that there has been a recent poor history of co-operation with courts and the authorities, and in the end it seems to me simply too risky to allow this applicant now to be released on any of the conditions that have been proposed.
16. So I refuse this application to this court. As I understand it, the substantive hearing of the extradition is fixed for 1 and 2 May and clearly at, or after, that hearing the whole question of bail will fall for reconsideration in the light of whatever is decided at that hearing.
17. MR JUSTICE HOLMAN: So that is the decision. I do not know exactly how it is recorded. Presumably it is just a one liner, that the application is refused.
18. MR STERNBERG: Yes, Mr Voloshchuk is remanded in custody pursuant to the order of the Westminster Magistrates, and now pursuant to your refusal of the application of bail. He will therefore be produced at the court in Westminster, I think, on a date already set in March simply for his custody to be reviewed. Yes, 4 March I think it is.
19. MR JUSTICE HOLMAN: Will the two of you work out an appropriate form of words and lodge it with today's associate. Is there anything else? If not, I am immensely grateful to you, Miss Westcott, and to you, Mr Sternberg, and I am sorry, Miss Westcott, that you do not go away with success. Thank you.