Double jeopardy: which principles apply in EAW cases?

Section 12 (like s. 80 in Part 2 cases) of the Extradition Act 2003 (“double jeopardy”) bars extradition if (and only if) it appears that the requested person would be entitled to be discharged under “any rule of law relating to previous acquittal or conviction” if he were charged with the extradition offence in the relevant UK jurisdiction. In an EAW case, what is or are the relevant rules of law?

The ‘English’ standard: autrefois and abuse of process

Within the “any rule of law” on previous acquittal or conviction sit two related but distinct protections in English law: (i) the plea in bar of autrefois acquit / convict and (ii) the discretion to stop a case as an abuse of process where it is founded on the same or substantially the same facts as a prior disposal.

The formal plea of autrefois convict / acquit is thought to date back to the 12th Century common law (see here, § 1.4) (Westlaw users find the earliest available reference in Barley’s Case 78 ER 549 (decided in 1592)). The reference House of Lords authority, Connelly v DPP [1964] AC 1254, as reviewed in R v Beedie [1998] QB 356, holds that the ancient plea in bar of autrefois applies only where a offence alleged in subsequent indictment is “the same in both fact and law” as that previously tried. There is then a discretion which can be exercised to stay proceedings where the second offence arises out of “the same or substantially the same” set of facts (see also R v Z [2000] 2 AC 483, [24]).

Importantly, the plea and abuse argument are also available where the acquittal is by a foreign court (see Treacy v DPP [1971] AC 537), something which is likely to be relevant in extradition cases.

The extradition law, in effect, applies domestic criminal law principles: see Fofana v France [2006] EWHC 744 (Admin), which confirms that “’double jeopardy’ … as used in the 2003 Act … should now be taken to include both the plea in bar [of autrefois acquit / convict] and the long established jurisdiction of the court to stay proceedings as an abuse of process” ([22]).

In substance, the extradition cases primarily deal with the question whether prior proceedings were for “the same or substantially the same” facts, e.g. where the principal transactions subject to the foreign indictment had already been tried in the UK court (Fofana), or not, e.g. where the conduct in the EAW concerned a failure to pay social security contributions, whereas the previous conviction related to distinct fiscal obligations (see Heathfield v Germany [2017] EWHC 2602 (Admin).

The English extradition case-law does not explore in any great depth what sort of prior decisions may engage autrefois. In R (Kuznecovas) v Lithuania [2012] EWHC 2461 (Admin), [5] Bean J dealt shortly with an attempt to rely upon s. 12 based on an earlier suspension and revival of police investigations, making it clear they did not engage the bar. That position is arguably supplemented, to a degree, by the English criminal case-law, which recognises a range of situations as either engaging (or not) the autrefois plea or the abuse jurisdiction (see the cases discussed in Blackstone’s 2020 at paras. 12.25-12.28). However, these cases relate to situations peculiar to the English legal system, which may (as any user of the parochial s. 12A knows) be nigh impossible to equate with situations in foreign states. In this area, the EU law ne bis in idem principles, which are born from precisely that diverse environment, offer a helpful alternative framework for the assessment of foreign disposals.

The ne bis in idem principle in EU law

The EU law “ne bis in idem” principle is protected through two general provisions and one applicable specifically in the context of extradition. The first is Article 54 of the Convention Implementing the Schengen Agreement (“CISA”), 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 provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party”

The second is Article 50 of the Charter of Fundamental Rights, which provides that:

No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union accordance with the law.

And the third is Article 3(2) of Framework Decision 2002/584/JHA on the European arrest warrant (the “EAW FD”), which requires the refusal of extradition where –

“the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State”

The majority the CJEU case law on the ne bis in idem principle arises from the interpretation of Article 54 CISA, which pre-dates the EAW FD and has its own independent effects vis a vis the internal criminal jurisdiction of Member States – including the UK (details available on request) – where there has been a previous final disposal elsewhere. However, this case-law is all relevant to the extradition process because Article 54 CISA shares the same objective as Article 3(2) of the EAW FD and the latter is to be interpreted the same way (see the CJEU’s judgment in Case C-261/09 Mantello at [40]). The latter provision is clearly relevant to the interpretation of s. 12 of the Act and is the gateway through which the case-law mentioned below can be brought into play. The Charter applies where a Member State acts within the scope of EU law and becomes relevant where Article 3(2) is itself in play.

In substance, as to the idem limb (what will constitute the “same acts”), the general principle is that there is a sole criterion, namely the “identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see, originally, Case C-436/04 Van Esbroek at [36]). An alternative phrasing of the test is whether “the material acts, by being linked in time, in space and by their subject‑matter, make up an inseparable whole” (see Case C-367/05 Kraaijenbrink at [28]). Thus, importing and exporting the same drugs will constitute the same acts (Van Esbroek); conversely, holding the proceeds of drug trafficking and laundering such proceeds through exchange bureaux in another state may not be (Kraaijenbrink).

As to the ne bis limb (when has a matter been “finally disposed of” such as to prohibit repeat proceedings), the general principle is that the first decision must be one “given after a determination had been made as to the merits of the case” (see Case C-469/03 Miraglia); that the said decision must be “such as to preclude the bringing of new proceedings in respect of the same facts against the same person in that Member State” (see Case C-398/12 Criminal proceedings against M); and that it “bring the criminal proceedings to an end and definitively bar further prosecution”, which requires that the act be “final and binding” (see Case C-491/07 Turansky , at [34] and [35]). The principle is engaged by a decision of a pre-trial chamber not to refer a matter to trial due to a lack of evidence (M), or by an out-of-court agreement with a prosecutor precluding further prosecution (Joined Cases C-187/01 and C-385/01 Gözütok and Brügge); conversely, it is not engaged by a decision of a prosecutor to suspend an investigation (Turansky) or to close an investigation due to parallel proceedings (Miraglia).

The case-law develops all the time, with references made from across the EU27. One recent judgment, for instance, confirms that the “enforcement condition” in Article 54 CISA (which conditions that provision’s effect on the enforcement of a penalty being in course or extinguished) is not incompatible with Article 50 of the Charter (which includes no such condition) (see the CJEU’s much-discussed ruling in Case C-129/14 PPU Spasic). Others have explored the cumulation of administrative and criminal proceedings in respect of fiscal matters. There is much more case-law than can be mentioned here, and it is important to search systematically for updates when dealing with the issue.

Relationship between the EU and English law

The CJEU case-law has a very low profile in the English. Fofana did not mention the EU law, and there has not been a clear Divisional Court steer on the relationship between the two. In general, there ought not to be any difficulty interpreting s 12 in such a way as to give effect to the EU law principles discussed above. The expression “any rule of law relating to previous acquittal or conviction” is malleable enough to incorporate the EU law notions of a ‘final disposal’  or being ‘finally judged’ for the ‘same acts’, as would be required by the EU law principle of conforming interpretation (for a recent summary of that principle, and an example of words being read into s 20 of the Act to comply with it, see Szatkowski v Poland [2019] EWHC 883 (Admin), [21]). The issue would arise in the event of a clear conflict between the results required by the English and EU law principles in a specific case.

One salient, theoretical issue lies in the discretionary nature of the abuse discretion, which leaves it open to a prosecutor to demonstrate that there are “special circumstances” which should allow the second prosecution to proceed notwithstanding the first. The EU rule is mandatory, and in a case in which “special circumstances” can be identified that difference could become significant.

In terms of the factual nexus, the test for the abuse argument based on “the same or substantially the same” facts appears reasonably likely to capture the same sort of situations as the EU “inseparable whole” or “inextricably linked” test, though perhaps not invariably so. Suppose that country A seeks extradition for a trafficking offence involving several victims, and there exists a prior conviction in country B for some but not all the victims, with some but incomplete chronological overlap. Those might conceivably be viewed as “substantially the same facts” (as in Fofana, where a substantial overlap in transactions rendered the facts as substantially the same)  but they might nevertheless not be regarded as an “inseparable whole” for EU law purposes. It is unclear whether the English court could presume the issuing state able and willing to limit its prosecution (or disaggregate a sentence) so that it relates only to the untried conduct, pursuant to its specialty and Article 54 CISA obligations.

There is, arguably, also some uncertainty around convictions in absentia. In an English criminal case R v Thomas [1985] QB 604, the appellant was the subject of an in absentia conviction in Italy, in respect of which he could not be extradited, and it was found held not to be abusive to prosecute him for the same facts, the logic being that if the convicted person is beyond the reach of the convicting court, the Connelly principles “do not bite”. On the EU side, the CJEU has also been clear that in absentia convictions in Italy, even though are to be regarded as finally disposing of the case, do not preclude prosecution for the same acts if the sentence is not enforced or being enforced, due to the ‘enforcement condition’ in Article 54 CISA. So far, so consistent, but there may be room for argument in some areas, e.g. in relation to historic in absentia convictions which have become unenforceable over time. For the CJEU, the fact of the sentence effectively becoming spent was determinative in Case C-297/07 Bourquain. However, for the High Court in Zdinjak v Croatia [2012] EWHC 1554 (Admin), a key factor was that the requested person had for a time been liable for arrest in respect of the earlier conviction, and it is not clear that the two analyses would always lead to the same result.

Does any of this matter, given Brexit?

The relationship a between the EU and English principles may be of somewhat transitory relevance, given the imminent change in extradition EU-UK arrangements (discussed by my colleagues Stefan Hyman and Jonathan Swain in a previous post). However, on current arrangements (that is, the Article 62(1)(b) of the Withdrawal Agreement and Reg. 57 of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019/742), the EAW FD and Part 1 of the Act will continue to govern cases where the arrest on the EAW occurred before 23:00 on 31 December 2020. Further, any subsequent arrangements could preserve aspects of the current law, or at least encourage UK courts to have regard to the case-law being developed on the EU side for the sake of harmony (the approach of Article 37 of the EU’s surrender agreement with Norway and Iceland, which is the UK’s baseline model for post-Brexit EU-UK extradition cooperation). So, there may be some shelf life in the topic yet.

Note on Article 4, Protocol 7 to the ECHR (“A4P7”)

It is necessary to mention briefly A4P7, which provides that “no one shall be liable to be tried or punished again under the jurisdiction of the same state for an offence for which he has been finally acquitted or convicted” (emphasis added) – subject important qualifications, including an exceptional possibility to reopen a case based on new evidence or newly discovered facts. The provision is mentioned for completeness only, as A4P7 does not govern cross-border aspects but the internal situation in the trial state. The only point of interest for present purposes is that once a state has tried the matter, for EU law purposes it alone then possesses the exceptional option to reopen based on new evidence, to the exclusion of other EU Member States (see M, [40]). In other words, Member State B could not circumvent section 12 of the Act, read with Article 3(2) EAW FD, by claiming that it was proceeding on newly discovered evidence unavailable to Member State A when it tried the case.

Conclusion

The autrefois plea originates in early French-accented common law after the Norman conquest, seemingly taking root just in time before the Pleading in English Act 1362 addressed the “great mischief” of the law being “pleaded … in the French tongue” in English courts. The EU ne bis in idem case-law, in contrast, has from the outset faced the obstacle of the complex, half-in half-out relationship between EU and UK criminal law, and seems not to have made it much beyond the white cliffs of Dover in the two decades it has bound the UK as a matter of international law. It is perhaps a little surprising that these two substantial bodies of law have long coexisted without greater interaction. The issue may be worth exploring further if post-Brexit arrangements offer space for it. If not, it will have been a case of two fairly big ships passing in the night before parting ways.

Author: Alex Tinsley, 9 Bedford Row

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Updated on 13/10/2020

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