CO/1339/2018

Neutral Citation Number: [2018] EWHC 964 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Thursday, 5 April 2018

Before:

MR JUSTICE CHOUDHURY

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B E T W E E N :
	McCARTHY	Applicant

-  and  -

		REPUBLIC OF IRELAND	Respondent

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This transcript has been approved by the Judge.

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MS K O’RAGHALLAIGH (instructed by Lawrence & Co) appeared on behalf of the Applicant.

MISS E POTTLE (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.

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J U D G M E N T
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MR JUSTICE CHOUDHURY: 

1	This is an application for bail brought by Mr McCarthy.  Mr McCarthy is subject to a European Arrest Warrant issued on 15 January 2018, certified by the National Crime Agency on 19 January 2018.  
2	The background to the matter is as follows:  Mr McCarthy is an Irish national.  He is accused of committing a sexual assault in Tralee on 21 October 2009.  The circumstances of the alleged offence are that he had followed a young woman walking home from a nightclub.  The woman knew Mr McCarthy by the name of Paddy.  She told him to go away.  He ignored her and continued following her.  The woman thought that she was about to be hit.  Whilst walking backwards, she tripped over and fell down.  Mr McCarthy is then accused of assaulting her whilst pulling her up from the ground, restraining her with one arm and indecently assaulting her by putting his other arm inside her top and inside her pants.  The victim managed to get away and reported the matter to the police.  
3	Mr McCarthy was arrested a couple of days later on suspicion of sexually assaulting the victim.  He was charged and bailed, but he then failed to attend the circuit court in contravention of his bail conditions and a warrant was issued for his arrest on 3 November 2010.  A number of attempts were made to locate Mr McCarthy within the jurisdiction but these were unsuccessful.  
4	It appears that Mr McCarthy left the jurisdiction at that stage knowing that he was subject to criminal proceedings.  However, he contends that he did not seek to hide from the authorities at any time and was living openly.  In support of that contention, it is submitted on his behalf that he has lived in this country for many years with his wife, Ms Quilligan, to whom he has been married for 14 years.  He has lived in the UK apparently with Ms Quilligan since 2010.  His family, including his mother, also live here on a permanent basis.
5	Mr McCarthy has a long history of offending even before the 2009 accusation, and he continued to offend after his arrival in the UK.  His antecedents include convictions for failing to surrender to custody at the appointed time and a series of less serious offences in recent years.  However, there was a conviction for voyeurism in late 2017, for which he was given a suspended sentence of 12 weeks.  I am told that the circumstances of that offence involved him accidentally stumbling upon a lady who was changing in a private cubicle whilst he was in a unisex changing room.  It seems that he has been complying with the conditions imposed as a result of the suspended sentence since then.  These include a drug rehabilitation requirement, a rehabilitation activity requirement and regular attendance at probation.
6	A further development of note is the medical condition of Ms Quilligan.  Ms Quilligan went back to Ireland over Christmas 2017.  Unfortunately, whilst there, she suffered a collapsed lung and, as a result, fell into a coma.  She remained in intensive care for 52 days, finally being discharged from hospital on 13 March 2018.  She returned to the UK to her home in Dagenham (which she shares with Mr McCarthy) on 21 March.  I am told that she requires 24‑hour care.  She is also undergoing long‑term home oxygen therapy and is wheelchair‑bound.  The medical notes record that she requires high levels of assistance.  She is unable to go to hospital unless somebody can help her, and her complex health condition makes it difficult for her to get around.  She has managed to attend court this morning with, I am told, assistance.
7	The applicant was arrested on 28 February 2018 whilst reporting at Romford probation office.  Upon being told that he was being arrested under a European Arrest Warrant relating to a sexual assault in 2009, he replied that, “This is old, and yes I know about it”.  His passport was seized on that occasion.
8	Applications for bail made on 1 March and 16 March were refused.  The reasons for this were that there had been past failures to surrender, that he was a fugitive from justice and that the conditions offered were not sufficient to secure his attendance. 
9	Section 22(1)(a) of the Criminal Justice Act 1967 provides that where the magistrates’ court withholds bail in extradition proceedings, the High Court may grant bail or vary the conditions.  It is under that provision that the applicant seeks bail before me today.  
10	Ms O’Raghallaigh submits that bail should be granted for the following reasons.  The serious medical condition of Ms Quilligan undermines any suggestion that Mr McCarthy might abscond or fail to surrender.  She is in need of his assistance and he is anxious to look after her.  There is a security put forward now of £9,000.  This comprises Mrs McCarthy’s life savings.  There has been reference to a deposit book which suggests that £9,000 security would comprise almost the entire amount held on deposit.  Furthermore, there is an undertaking that Mrs McCarthy would move from Hounslow to the address in Dagenham in order to ensure that Mr McCarthy reports to police and complies with any electronic curfew.  Whilst it is accepted that there is a record of offending, it is submitted that they do not show a strong record of failing to comply.  The failure to attend offences are, it is said, fairly old, dating back some nine or ten years.  The offences committed on bail, most recently in 2012, were also fairly historic, it is said.  Reliance is also placed upon Mr McCarthy’s compliance with current probation conditions; indeed, it was whilst reporting to probation that he was arrested.  There is also reference to Mr McCarthy’s own fragile state of mind whilst in prison.
11	Miss Pottle, who appears for the Judicial Authority, objects to bail being granted.  She says that he is a fugitive from justice, having sought to evade the jurisdiction of the Irish authorities.  He failed to surrender to bail there in 2010.  There is a long history of offending, clearly a failure to report, and offences committed on bail, and there are, for those reasons, serious grounds to believe that he would fail to surrender to custody.
12	The question for me is whether there are substantial grounds for believing that Mr McCarthy would fail to surrender if released on bail.  I am satisfied that in the circumstances of this case, which are quite unusual, the conditions of bail are such that the court may be satisfied Mr McCarthy would surrender to custody.  In particular, the current and recent health developments in respect of Ms Quilligan provide a very strong incentive for Mr McCarthy to comply.  These conditions, I am told, are not long‑standing.  It is not the case that Mr McCarthy has committed numerous offences whilst being required to take care of his wife.  The need to take care of his wife has arisen very recently.  Those needs are, according to the medical evidence, very great indeed.  I note what is said by Miss Pottle that, should I be satisfied that there are substantial grounds for believing that he would not comply, the personal circumstances or the personal impact on Ms Quilligan are not relevant.  I accept that, but it is also relevant, as she has very fairly pointed out, that those circumstances may be relevant to a consideration of Mr McCarthy’s own incentive to comply.  Given the close relationship, the long marriage of 14 years and residence in the same home, it seems to me that there is no reason to suppose that Mr McCarthy is not inclined to want to support his wife during these difficult times, and that, to my mind, does provide a strong incentive for him to comply with conditions that may be imposed.  
13	I do, of course, bear in mind that Mr McCarthy has a sorry record of offending, including failures to report to custody and committing offences whilst on bail.  However, those do date back a number of years.  They are not recent, and they are not against the background of  the strong incentive to comply which he now has.  I do bear in mind, of course, that the offence with which he is charged is a serious one which carries a maximum sentence of up to ten years, and that, of course, may provide some sort of incentive to abscond, as it is a considerably more serious offence than those which he has been convicted of to date.  However, it seems to me that in the unusual circumstances of this case, the court can be satisfied that stringent conditions such as those suggested at para.47 of the applicant’s submissions would suffice in the circumstances to secure his attendance.  I also note that the date for the extradition hearing has been set for the end of this month.  That is not a particularly long period, and the extensive conditions which are suggested, and which I shall impose, suffice to ensure his attendance at the end of this month.  
14	The conditions which will be imposed are as follows:
14.1.	that Mr McCarthy continues to reside at the address set out in the order; 
14.2.	that Ms Quilligan also resides at that address;
14.3.	that he be subject to electronically monitored curfew between midnight and 7 am; 
14.4.	that he be subject to a police doorstep condition; 
14.5.	that he reports to Dagenham police station every day between 7 and 9 pm; 
14.6.	that he is not to be in possession of any travel documents; 
14.7.	that he is not to apply for any international travel documents or to leave England and Wales; 
14.8.	that security should be provided prior to release of £9,000; and
14.9.	that his mobile phone remain on and fully charged 24 hours each day; 
15	Should these conditions be met, then Mr McCarthy may be released on bail. 
16	I note that I have also taken into account the following undertakings although of course these are not conditions of bail: The court has received an undertaking from Mrs McCarthy about moving in to the Dagenham address and from Ms Quilligan and Mrs McCarthy to surrender their passports to the police.