Purkiss, R (on the application of) v Kenya [2025] EWHC 3655 (Admin)
[1]MS JUSTICE NORTON: Can I begin by recording my thanks to both Mr Joss and Mr Smith for their helpful and cogent submissions, both in writing and orally before me today, which have been extremely helpful.[2]The applicant is the subject of extradition proceedings concerning an accusation warrant issued by the Kenyan Director of Public Prosecutions on 7 October of this year on an allegation of the murder of Agnes Wanjiru on or around 1 April 2012. The warrant was certified as valid and a certificate issued under section 70 of the Extradition Act on 4 November 2025. The applicant was arrested on 7 November and was subsequently remanded into custody. The full extradition hearing has been fixed for 16 to 20 November 2026 and will be contested on the basis as set out in the applicant's grounds.[3]The applicant was, at the relevant time, a serving soldier with the British Army. His battalion was in Nanyuki in Kenya on a 6-week training camp. Overnight on 31 March to 1 April 2012, the applicant, together with other soldiers, having been given some time off duty, went on a drinking spree, those are my words, ending up in the Lions Court Hotel.[4]The deceased and some of her friends were also at the Lions Court Hotel, where they met with a number of the British soldiers. Ms Wanjiru left with one of them at around 2.00 am. She was never seen alive again.[5]The deceased's severely decomposed body was discovered in a septic tank in the grounds of the hotel on 5 June 2012. A subsequent post-mortem examination noted injuries, including a stab wound to the lower abdomen and a right haemothorax with a lung collapse. It is thought likely that she was alive when she was placed in the tank.[6]An inquest was held in Kenya in 2019, which determined that the death had been caused by a criminal act, and an investigation ensued. In the course of that investigation, statements were taken from a number of soldiers who were either present at the Lions Court Hotel on the relevant night or who subsequently had contact with the applicant, and who alleged that the applicant had made admissions that connected him to the killing.[7]Insofar as the bail history in this matter is concerned, there have been 2 previous bail applications in this case. At the first hearing at the Westminster Magistrates' Court on 7 November of this year, bail was refused by District Judge Clark on the twin bases the applicant may fail to surrender and commit further offences.[8]On his second application, the applicant was again refused bail by Senior District Judge Goldspring. On this occasion, Senior District Judge Goldspring found that the reason why bail should not be granted was that, applying paragraph 6ZA of Schedule 1 to the Bail Act 1976, he could not be satisfied that there was no significant risk of the applicant committing, whilst on bail, an offence that would or would be likely to cause physical or mental injury to any person other than, in this case, the applicant.[9]In the hearing this afternoon, Mr Joss reminds me that this is a hearing de novo. He frankly admits that this cuts both ways and that therefore, albeit in the bail application before him, the Senior District Judge found that there was no substantial risk that the applicant would fail to surrender, that in no way fetters the approach that I should take.[10]Nevertheless, Mr Joss submits that the applicant has known for a long period of time that an arrest warrant was imminent but has not sought to abscond. He reminds me that the applicant has substantial community ties. He is married he has a business and has children.[11]A substantial package of conditions has been proposed, which it is submitted would ameliorate any concerns that the court may have; that package includes a pre-release security of £15,000 to be deposited with the court, and proposed conditions to live and sleep at his parents' home address, to submit to an electronically monitored curfew and daily reporting, for identification documents to be retained by the police, not to attempt to leave the jurisdiction, not to apply for or to be in possession of any international travel documents, not to go to any international travel hub, and to keep his mobile phone on and charged 24 hours a day.[12]Insofar as any concern that the applicant would commit further offences, notwithstanding past alleged incidents, to which I will turn in a moment, specifically involving his wife, Mr Joss submits that his wife has made clear that she supports him. He has no previous convictions in the criminal courts, and he submits that the support of the family in fact will provide protective factors. Furthermore, a condition requiring the applicant to live with his parents would be an additional security and, if required, a condition prohibiting him from going to a public house or from drinking alcohol.[13]In response , Mr Smith on behalf of the respondent argues that this is not a case in which the applicant is a good candidate for bail. He submits that, on the face of it, this is a strong case with 2 contemporaneous or closely contemporaneous confessions and, further, that it would appear that many years later, the applicant made comments which may be tantamount to admissions, or which at the very least are not tantamount to denials.[14]Albeit that it is not suggested that I should make any decisions based on the strength or otherwise of the case, nevertheless Mr Smith submits that there is a prima facie strong case here for a very serious offence. Albeit that the applicant has complied or rather has not sought to abscond in the past, that of course was before a warrant was issued. The fact is that proceedings have now been started and, given the seriousness of the offence, there would now be a stronger temptation to abscond than there would have been before that situation arose.[15]Secondly, and this is substantially his main point, he points to the history of violent behaviour of this applicant in conjunction with the consumption of alcohol. It is submitted that there are few, if any, conditions which could be imposed by which the court could be satisfied that that risk had been extinguished.[16]Thirdly, there is a concern whether or not the applicant would comply with conditions given his past conduct. Well, insofar as that past conduct is concerned, on the information before me, and it is not disputed by Mr Joss on the part of the applicant, the following has been recorded:[17]n 2011, the applicant was sanctioned for threatening behaviour. I am told, and indeed it is accepted, that that was in the context of alcohol, where the applicant broke a nightclub window, refused to pay for damage and was aggressive to an officer who had been charged with arresting him.[18]In 2016, the applicante was arrested for the assault of his wife; again that was in circumstances in which he had been drinking,it would appear heavily. It is alleged that he pushed his wife, causing her to fall backwards, banging her head, and punched her on more than one occasion, causing injuries to her head and swelling, bruising, a cut to the eyelid and eyebrow, and pain to her head and jaw. Prior to that, there had been a disturbance in the kitchen in which he was knocking items off a work surface and making inappropriate comments.[19]In 2024, there was a call out to his home address at the request of his wife because he was, "trashing items in the house", and the applicant's wife feared for his safety, thinking that he might have post-traumatic stress syndrome from his time in the army.[20]Although those various incidents are then widely spread out and comparatively few in number; and although, save for the one in 2011, which was dealt with by the military authorities, they have not resulted in charge or conviction; they do display a worrying pattern of behaviour, of the use of significant violence, in particular in combination with alcohol. It is of note that the index alleged offence is one of obvious serious violence in combination with alcohol.[21]Relevant to that particular issue, namely liability to act in a violent manner when under the influence of alcohol, is the relevance and applicability of paragraph 6ZA of Schedule 1 to the Bail Act.[22]The correct test to impose upon an application for bail in extradition proceedings where the allegation is, as here, one of murder, has been the subject of some debate, both in writing and before me this afternoon.[23]Firstly, it is agreed between the parties, and I too agree, that section 115 of the Coroners and Justice Act 2009, which, a) precludes a magistrate from granting bail, and b), requires that the matter be sent to the Crown Court for a determination on bail within 48 hours, does not and cannot apply in extradition proceedings. That of course is for a number of reasons:[24]Firstly, the Crown Court has no jurisdiction in extradition proceedings, and if, as a consequence of that, and if section 115 did apply, then it would follow that no person accused of murder in an extradition case would be able to make any bail application at all.[25]The second reason is allied to the first, certainly insofar as Mr Joss's submissions are concerned, because another reason why it is said that section 115 is not apposite to extradition cases is because of the language that is used in section 115: for example, the word ‘charge’ and the word ‘murder’. Those are words that also appear in paragraph 6ZA of Schedule 1 to the Bail Act. Paragraph 6ZA is inserted into the Bail Act by section 114 of the Coroners and Justice Act. Mr Joss submits it would be illogical if section 115 of the Coroners and Justice Act did not apply, but section 114 did.[26]In response, Mr Smith points out that in fact, of course, section 115 applies in a very different context to section 114. He points to the wording of Schedule 1, which says in terms that, subject to certain sub-paragraphs which are of no relevance in this case, Schedule 1 of the Bail Act applies to a defendant if the offence or one of the offences of which he is accused or convicted in the proceedings is punishable with imprisonment, or his extradition is sought in respect of such an offence. It follows that by paragraph 1 of Schedule 1 of the Bail Act, anything within that part does apply to extradition proceedings and that includes section 6ZA.[27]Section 6ZA states that if the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, whilst on bail, an offence that would or would be likely to cause physical or mental injury to any person other than the defendant. Notwithstanding the use of the word defendant, charged and murder, nevertheless, Mr Smith says that paragraph 1 of Schedule 1 makes it as clear as can be that paragraph 6ZA must apply.[28]In my judgment, paragraph 1 of Schedule 1 of the Bail Act is indeed specific that, save for some exceptions which do not apply in this case, all succeeding paragraphs in the schedule do apply where a person accused of an offence is subject to extradition proceedings. Accordingly, in my judgment, paragraph 6ZA does bite, as indeedwas the conclusion of both of the District Judges in the Westminster Magistrates' Court. However, whether I am right or wrong about that may not, in the present case, make any difference if, notwithstanding the application of that provision or the disapplication of it, there would be strong grounds for withholding bail.[29]In my judgment, in this case, there are such strong grounds. I find that the pattern, as it seems to me it is, of offending, , or alleged offending, certainly of violent behaviour in conjunction with the consumption of alcohol, is extremely concerning. I find as an important factor that this is now a situation in which there has been a warrant certified and that the situation that the applicant is facing is clearly very different to that which he would have been facing at a previous date.[30]I have concerns about whether or not the applicant would comply with orders. This is not a primary ground, but it is certainly a relevant subsidiary ground. That is in reliance on the 2011 matter when he failed to comply with orders imposed by a senior officer, and the 2016 matter, which is the assault upon his wife. In that case, in which it is now accepted he did assault his wife, he was given bail with conditions not to contact her directly or indirectly. In breach of those conditions, he in fact spent time with his wife. It was over the Christmas and New Year period, and she subsequently wrote a withdrawal statement.[31]The information before me is, of course, not sufficient for me to draw any conclusion, and I do not draw any conclusion, that the applicant must have interfered with the course of justice or put any pressure or persuasion on his wife to make a withdrawal statement. Nevertheless, it is of concern that he breached bail conditions in that particular instance.[32]Given all of those matters, in my judgment, bail should be refused in this case. As I have already stated, my primary ground is that he would commit further offences if granted bail, particularly if alcohol, drugs or stress are brought into the equation, as they have been in the past. A subsidiary matter of concern is whether or not he would comply with court orders, whether that be conditions of bail or whether that would be leading on to fears that he would fail to surrender.[33]For those reasons, bail is refused. If paragraph 6ZA of Schedule 1 does apply, which in my judgment it does, then it makes those concerns so much stronger.[34]I should add at this stage that I have considered whether there could be bail conditions that would reduce the risk of the applicant's conduct when subject to stress, drugs or alcohol. But I am not satisfied that there would be any conditions that would remove what seems to me a fairly substantial risk in this case. For all of those reasons, bail is refused. Thank you very much. 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