Hearing – Bar to extradition – Rule against double jeopardy

Osaikhwuwuomwan v Court of Ancona Italy: Queen's Bench Division, Administrative Court (London) (Collins J (judgment delivered extempore)): 3 October 2012

Section 12 of the Extradition Act 2003, so far as material, provides: 'A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption - (a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction; (b) that the person were charged with the extradition offence in that part of the United Kingdom.'

The appellant was a Dutch national. In 2007, he was extradited from the United States to be tried in the Netherlands for charges including human trafficking of females for the sex industry. Following a trial in the Netherlands he was acquitted of some charges and convicted of others. One of the charges he was convicted of was being part of a criminal organisation involved in human trafficking. He was sentenced to four-and-a-half years' imprisonment. Following an appeal to the Dutch Supreme Court in 2012, the decision was reversed and the appellant was sentenced to seven years' imprisonment. He had served part of the sentenced in pre-trial custody. He then came to the United Kingdom.

Whilst in the UK, he was made the subject of a European arrest warrant issued by the Italian judicial authority for the various offences of which he had been found guilty of under Italian law. The offences were similar to those under Dutch law. The appellant was arrested and imprisoned prior to his extradition. He challenged the extradition on the basis that to extradite him for the offences in the warrant would be double jeopardy contrary to section 12 of the Extradition Act 1996. The district judge was of the view that the decision of the Dutch Supreme court had not been a final decision and that therefore the appellant should be extradited to Italy. However, he stated that if it had been a final decision section 12 of the Act would be applicable and the appellant could not be extradited for the relevant offences. The appellant appealed.

The appellant submitted that the decision of the Dutch supreme court had been a final decision and therefore section 12 of the Act applied. The judicial authority submitted that even though the judgment might have been a final judgment nevertheless section 12 of the Act did not apply to the instant circumstances. Consideration was given to the Framework Decision of Jun 2002, articles 3 and 4 of which had been implemented by the 2003 Act. The appeal would be allowed.

The term 'double jeopardy', as a generality - and as used in the 2003 Act, given its wider European origins - was to be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent was a means of protecting a defendant from 'double jeopardy'.

In the instant case, contrary to what the district judge had thought, the decision of the Dutch Supreme Court had been a final decision. Therefore, if a domestic court had been dealing with the matter it would have had no option but to apply the concept of autrefois acquit. In the circumstances therefore, section 12 of the Act applied as the appellant had been convicted and sentenced and that sentence could be enforced.

B Lloyd (instructed by DPP Law) for the appellant; Peter Caldwell (instructed by the Crown Prosecution Service) for the judicial authority.