Advising individuals in cross-border investigations: the limits of double jeopardy

By: Andrew Smith, Corker Binning

If there is an overarching message in the new SFO director Lisa Osofsky’s recent speeches, it is the significance of cross-border cooperation. Corporate crime lawyers will have listened carefully to this message; their clients will always be keen to achieve finality when they negotiate settlements with prosecutors in different jurisdictions. How should individuals faced with cross-border criminal exposure interpret this message?

Individuals are sometimes tempted (or advised) to enter into plea negotiations in one jurisdiction on the basis that a guilty plea in that jurisdiction will act as a barrier to prosecution elsewhere. Unfortunately, the doctrine of double jeopardy does not always protect individuals in this black and white fashion.

Double jeopardy is sometimes referred to as the plea in bar of autrefois. This confuses two distinct legal doctrines. The autrefois doctrine applies where a defendant is tried for the same offence – in law and in fact – for which he was previously convicted (autrefois convict) or acquitted (autrefois acquit). Where the previous trial occurred overseas, the offence for which the defendant was convicted or acquitted will nearly always be different from the offence under investigation in the UK. Because they are likely to be different offences, the defendant cannot plead autrefois, but he can argue that the UK court should exercise its discretion to stay the proceedings as an abuse of process. This species of abuse was identified in Connelly v DPP [1964] AC 1254, in which Lord Devlin held that, whilst sequential trials for different charges would generally be unjust, “a second trial on the same or similar facts is not always and necessarily oppressive and there may be in a particular case special circumstances which make it just and convenient in that case.”

The protection of double jeopardy is also enshrined in UK extradition law.[1] In Fofana & Belize v Deputy Prosecutor Thubin [2006] EWHC 744, double jeopardy in extradition proceedings was held to embrace both the narrow autrefois doctrine and the wider abuse jurisdiction identified in Connelly. The protection of double jeopardy is also enshrined in the civil law doctrine of ne bis in idem, which is an autonomous concept of EU law recognised in Article 54 of the Schengen Implementing Convention (SIC), which provides that: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts […]”.

If a UK prosecution of an individual arises out of the “same or similar facts” (as per Connelly) or the “same acts” (as per Article 54 SIC) as his previous conviction or acquittal in foreign criminal proceedings, when would a UK court identify “special circumstances” (as per Connelly) that would make it “just and convenient” for the individual to be prosecuted again? It is possible to identify the following seven categories of “special circumstances”:

1. In Thomas [1985] QB 604, the accused was tried in the UK for the same conduct for which he had already been convicted in absentia in Italy. The court rejected his defence of double jeopardy, finding on the facts that he had fled to England, and so had never been in jeopardy of being punished in Italy. A finding of foreign guilt is not itself a sufficient condition for the application of double jeopardy; there must be a risk of double punishment. Special circumstances may therefore exist where there is no prospect of the individual being punished by the foreign court for the previous conviction.

 

2. In Young [2005] EWCA Crim 2963, the defendant had previously been convicted of wounding with intent and acquitted of attempted murder. She was subsequently prosecuted for murder following the death of the victim from her injuries. The Court ruled that this second prosecution did not offend double jeopardy since the victim’s death post-dated the conclusion of the first trial. Special circumstances may therefore exist if new facts emerge after the previous conviction justifying a new prosecution for a more serious offence.

 

3. Similarly, the discovery of new evidence after the first conviction may amount to special circumstances. In AG for Gibraltar v Leoni (Criminal Appeal No 4 (1998)), the defendants were seen jettisoning cargo from the side of their boat. It was suspected that the cargo contained cannabis, but this could not be proved until the cargo was discovered, by which time the defendants had already pleaded guilty to an offence of jettisoning cargo. The Court sanctioned a prosecution for the drugs offence because the cannabis was new evidence, the discovery of which post-dated the conclusion of the first trial; the second prosecution did not therefore offend double jeopardy.

 

4. In Kulibaba v United States [2014] EWHC 176 (Admin), the defendants had pleaded guilty in the UK to the offence of conspiracy to defraud four UK-based banks and their customers. Subsequently the US authorities sought their extradition for what the UK court accepted was the same conspiracy committed over the same timeframe, supported by some of the same evidence. However, the fact that the US indictment identified different victims to those referred to in the UK prosecution meant that extradition did not offend double jeopardy. Special circumstances may therefore exist where the second prosecution identifies new victims not identified in the previous conviction.

 

5. A new prosecution mounted on a distinct factual basis cannot logically be based on the same or similar facts as a previous prosecution. However, assessing whether the evidence in a new prosecution discloses a distinct factual basis is not always straightforward. In Ali and others [2011] EWCA Crim 1260, some of the defendants were convicted of two counts of conspiracy: first, conspiring together and with others to “murder persons unknown”; and secondly, conspiring together to “murder persons unknown by the detonation of improvised explosive devices on board transatlantic passenger aircraft.” Although the object of both conspiracies was to commit the offence of murder, the Court held that the second conspiracy was a distinct agreement to murder in a specific way, involving on the evidence a more serious and sophisticated agreement. Thus the defendants could not assert that their conviction on both counts offended double jeopardy. In an attempt to clarify when sequential prosecutions might overlap on their facts, the Court of Justice of the European Union (CJEU) has interpreted “same acts” in Article 54 SIC as being based on “the identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.”[2] In Case C-367/05 Kraajenbrink [2007] ECR I-619, the CJEU held that a defendant who had already been convicted in the Netherlands of the offence of handling the proceeds of drug trafficking could lawfully be prosecuted in Belgium for an offence of money laundering, even though the proceeds being laundered had the same origin as the proceeds handled in the first prosecution (i.e. drug trafficking) and even though the defendant committed both offences with the same criminal intent. Special circumstances may therefore exist – and double jeopardy will not apply – if the acts prosecuted in the second trial do not make up an “inseparable whole” with the acts prosecuted in the first.

 

6. Whilst the rationale of double jeopardy is, in part, to prevent prosecutors from having a second bite of the cherry, the courts have sometimes corrected a prosecutorial charging mistake by permitting a second prosecution of a more serious offence for the same or similar conduct. In Antoine [2014] EWCA Crim 1971, the defendant was convicted of two firearms offences, including possession of a firearm without a certificate contrary to section 1(1)(a) Firearms Act 1968, and received four months’ imprisonment. The next day the prosecution unsuccessfully sought to reopen his sentence. The defendant was subsequently charged with the more serious offence of possession of a firearm contrary to section 5(1)(aba) Firearms Act 1968 based on the same facts as the first prosecution. The Court of Appeal found there was nothing abusive about this second prosecution, holding that “no one with the responsibility for prosecuting the case correctly applied their minds to the appropriate charges and how they should be prosecuted. This was not an escalation from minor charges to more serious charges […] but a move from misconceived charges to correct charges.” Furthermore, the court justified the second prosecution on the basis that the initial sentence of four months’ imprisonment was an “unexpected, astonishing and undeserved windfall.” With respect, this reasoning is questionable. It is clear, contrary to the court’s findings, that this was an escalation from minor charges to more serious charges, particularly as the more serious charges were a reaction by the prosecution to its unsuccessful attempt to reopen sentence on the minor charges. Nonetheless, the decision illustrates that special circumstances may exist where a previous conviction is founded on a prosecutorial charging mistake and/or led to a lenient sentence. By permitting a second trial, the court can correct what it regards as flaws in a previous prosecution to ensure that its sense of justice is not offended.

 

7. Contrast Antoine with Dwyer [2012] EWCA Crim 10. In Dwyer, the court ruled that a charge of conspiracy to supply a Class A drug which relied in part on conduct for which the defendant had already pleaded guilty and been sentenced (a substantive offence of possession of the Class A drug with intent to supply) should be stayed as an abuse. The court’s reasoning was that, given the defendant had made admissions in pleading guilty to the substantive offence, the prosecution had had every opportunity to charge him in the first trial with more serious offences based on his admissions. The prosecution was obliged, before the conclusion of the first trial, to lay charges which captured what was known about the defendant’s criminality. The first trial having concluded, the prosecution should not be permitted to lay new charges arising out of the same conduct. Whilst somewhat at odds with Antoine, Dwyer emphasises that, when assessing whether special circumstances justify a departure from double jeopardy, the knowledge of the prosecutor who seeks a new trial is relevant: the concept of “same or similar facts” refers to the relevant state of affairs as they existed to the prosecutor’s knowledge at the date the first trial concluded. If, for example, a UK prosecutor seeking a new trial knew nothing about the overseas trial which led to the defendant’s previous conviction, this will be a factor in favour of permitting a new trial to proceed, even where it concerns the same or similar facts as the previous trial.

The scope of some of these categories of special circumstances, particularly 5-7, is ambiguous; their application will depend on the facts of the particular case. This reflects the refusal of the common law to interpret double jeopardy as an inflexible doctrine. Because the doctrine is flexible, considerable care must be taken in advising an individual client to plead guilty in an overseas jurisdiction. It is crucial not to be lured by the promise that an overseas jurisdiction may offer a more lenient sentencing regime than that applicable in the UK. Even if the guilty plea overseas encompasses all known criminality, this plea is not necessarily a barrier to a UK prosecutor taking a fresh look at the evidence and persuading the UK court that another prosecution is justified by reference to new facts, new evidence, new victims or an overly lenient sentence in the foreign state, particularly if the UK prosecutor was not consulted about the overseas prosecution.

If the individual facing a fresh prosecution in the UK is overseas, she might well be able to contest her extradition to the UK by reference to double jeopardy. If this argument fails and she is extradited, the English court, whilst not bound by the findings of the foreign court on double jeopardy, would no doubt take them into account in resolving whether the UK prosecution should be stayed as an abuse. In certain cases, therefore, the question addressed in this article will be academic: the overseas defendant charged in the UK with a different offence arising out of the same or similar facts as her previous overseas conviction will only be prosecuted in person in a UK court by virtue of having already lost an argument on double jeopardy in her overseas extradition proceedings.

Finally, in the era of increasing cross-border cooperation envisaged by Lisa Osofsky, it would be artificial to suggest that individuals have a free choice as to where they would prefer to be prosecuted. Doing a quick deal in one country in return for lenient punishment may be impossible if agencies across numerous jurisdictions are already working together to assess where the alleged conduct should be prosecuted. But where a quick deal in one country is possible (perhaps taking advantage of that country’s enthusiasm for expediting its investigation or entering plea deals), the UK courts will never regard an overseas conviction alone as an insurmountable obstacle to a new prosecution in the UK on the same or similar facts. Double jeopardy has its limits.

[1] Sections 12 and 80 of the Extradition Act 2003.

[2] See, for example, case C-436/04 Van Esbroek [2006] ECR I-2333 and case C-288/0 Kretzinger [2007] ECR I06641.