Khan v Government of the USA

MR JUSTICE OUSELEY: This is an appeal against the refusal of bail to the appellant who is facing extradition proceedings from the United Kingdom to the USA on charges involving conspiracy to import cocaine (from the USA to the United Kingdom) and associated money laundering offences committed in fairly recent months. The hearing into the extradition request before the District Judge is fixed for a date quite early in October.

The question of whether bail should be refused has to be approached in the same way as it would for an ordinary non extradition criminal case: does the court have substantial grounds for believing, in this case, that the appellant would not attend for the hearing or indeed for subsequent hearings and extradition?

The period I propose to focus on for these purposes is the period up to the extradition hearing before the District Judge. The reason for that will become apparent. The case against the appellant is, as Mr Bennathan accepts, a strong one, subject to a matter which I shall come to of some importance. If convicted in the United States the minimum term would be 10 years and the maximum term is a very great deal more. If convicted on this federal indictment, the appellant would face a very long time in custody and his calculations of what he should do, were he granted bail, will be affected by that knowledge.

They will be affected by not merely knowledge that there is a strong case but also by the fact that a co-conspirator is in custody in the United States and co-operating with the United States law enforcement authorities in a way damaging to the appellant.

Mr Bennathan is right to point to the dangers of reliance on various things which that individual may have said entirely out of self interest but the presence of a co-conspirator in the United States, asserting that the appellant is the money man, in a major drugs conspiracy, is clearly something which would weigh with the appellant, when assessing his chances.

The conspiracy involved varying amounts of drugs at varying times but the principal figure appears to be of the order of a 100 kilograms of cocaine and although it is said there is an issue about how much the drugs were actually worth and whether the level agreed to be paid was excessive and shows there was naivety as a result of entrapment, if the sums of money being talked about have any realistic prospect of being made out, Mr Khan was contemplating making, in a fairly short period of time, payments in excess of £3 million pounds to obtain the drugs for onward sale distribution in the United Kingdom.

So there is therefore an admittedly strong case for the appellant to be involved in a conspiracy to import drugs and to provide a substantial amount of money when he has no obvious means of providing for it.

The appellant makes three points. I shall take the merit argument first. It is said by Mr Bennathan that there is a strong case that the appellant would be able to show to the district judge that the case against him was essentially one of entrapment; that the undercover police officers who recorded the incriminating conversations were in effect providing an exceptional opportunity for Mr Khan to commit drug offences which he had not previously been involved in and there is no evidence of any other involvement in drugs beyond the evidence such as it is in relation to this conspiracy.

He contends that if entrapment is made out on the facts that would provide a sound basis for the refusal of extradition on the grounds that there was either a breach of Article 6 involving extradition or an abuse of process because it would not be fair to have a trial.

For present purposes I am prepared to assume that Mr Khan would make his calculations as to whether to stay and abide by the terms of bail or to flee, on the basis that he had some prospects of success but equally on the basis that failure would be likely to be accompanied by a very long term of imprisonment in the United States. Failing the entrapment defence, he goes down for a significant period of imprisonment.

Mr Bennathan next points to the fact that, during the period between charge and trial for a major VAT fraud for which Mr Khan knew he was going to receive a substantial custodial sentence if convicted, he was at liberty on bail and attended his trial. This was all in the United Kingdom. He was given a 7 year sentence. A substantial confiscation order was paid off.

The third point to which attention is drawn is that there are now offered very extensive sureties, principally in the form of equity in houses owned by members of Mr Khan's extended family, who also have the advantage of living fairly close to where he would be required to reside at his parents' house in Slough. The total amount of those property sureties is £617,000 equity in the property plus a further £50,000 cash surety offered by another member of his family. There are other bail conditions: residence; tagging; curfew and the reporting to the police station which are put forward as well.

Mr Bennathan submits that that the concern that Mr Khan would commit further offences on bail is based upon a fallacy that he had a life-style, not supported by any earnings; but the evidence he says for that life-style has been shown to be false because the high value vehicles upon which it was based have now been returned, as the United State's government accepts, to their owners.

In my judgment, although I accept that Mr Khan may regard himself as having some prospect of avoiding extradition by reference to the arguments to which Mr Bennathan refers, he would inevitably recognise the strength of the case against him and the problems that lie in the way of both entrapment being demonstrated sufficiently at this stage to prevent extradition and the high thresholds that also apply to abuse of process cases. So whatever grounds he might have for optimism would be very strongly tempered by a realistic appraisal of prospects and the certainty, as it would appear from the evidence, if that defence fails, that he would be facing a substantial period in prison. The question of what Mr Patel might say in the United States about entrapment would also be relevant to the consideration of that issue by the district judge and where it should be resolved.

It follows that there are substantial grounds for believing that Mr Khan, absent entrapment, has access to a very large amount of money because, absent entrapment, he was participating and providing the money for a major drug importation conspiracy. In those circumstances, and there are inevitably substantial grounds for believing that that is the position, the provision of what is an unusually, I would accept, large number of sureties and the total significant amount pales into insignificance as a basis upon which it might be thought that the incentive to fly would be set aside.

Mr Khan is a dual national, it appears of Pakistan and the United Kingdom although he has lived here for 33 years. He is now 35. His parents are here. But I do not consider that the facility for obtaining passports can properly be controlled by a mere condition in respect of a dual national in any event if there is any solid incentive to fly with the ability to do so. In my judgment there is a very solid incentive to fly, namely the substantial prospects of being extradited, the substantial prospects on extradition of facing a very prolonged custodial sentence and the substantial grounds for believing that he has, in the light of the evidence of the conspiracy a substantial amount of money whereby he could fund his flight and ensure that those who might otherwise forfeit their sureties are protected. The entrapment case may succeed and, if it does, and the decision of the district judge in October goes in his favour, it will then be a different background against which the district judge will be in a position to reconsider bail or matters can then be brought before this court. But until that issue has been ruled upon by the district judge, the incentive to fly is far too great for Mr Khan to be admitted to bail. This appeal is accordingly dismissed.