Bohning v Government of the United States of America

The rule against double jeopardy bars a second prosecution for the same crime. It does not generally bar prosecution for different offences arising from the same facts, or for offences which could have been charged but were not. Such circumstances may nevertheless be relevant to abuse of process.

In extradition proceedings, the court should apply the statutory bars in the Extradition Act 2003 and should be slow to import the civil law concept of forum conveniens. Abuse of process has a narrow scope where the complaint concerns the fairness or adequacy of a future foreign trial. Different states may have legitimate interests in prosecuting distinct aspects of cross-border criminality.

The claimant appealed against an extradition order made by District Judge Evans at Bow Street Magistrates’ Court. He had been prosecuted and sentenced in England for possession and distribution offences relating to indecent material, after his computer revealed extensive communications and material connected with conduct in both England and the United States.

The United States sought his extradition for further offences, including incitement, distribution, possession with intent to distribute, and possession. The claimant argued that extradition was barred by double jeopardy and that the way the English charges had been selected constituted an abuse of process. The central issues were whether the foreign charges concerned the same crimes as the English convictions and whether the circumstances made extradition legally abusive.

1. Appeal dismissed. The District Judge’s order remained effective, subject to the restrictions already imposed.
2. The rule against double jeopardy is derived from Connelly v Director of Public Prosecutions [1964] AC 139. Its fundamental principle is that a person cannot be prosecuted twice for the same crime. It does not extend to offences arising from the same facts, or to offences which could have been charged but were not. Those circumstances may, however, be relevant to abuse of process.
3. The statutory scheme is decisive. Section 80 of the Extradition Act 2003 bars extradition for double jeopardy only where the person would be entitled to be discharged under the applicable domestic law relating to previous acquittal or conviction. The court rejected the proposed broad conduct-based analysis and was slow to introduce civil principles of forum conveniens into extradition law.
4. Abuse of process in extradition proceedings has a narrow scope. As explained in Regina (Kashamu) v Governor of Brixton Prison [2002] QB 687, the inquiry concerns unlawfulness under domestic law or arbitrariness arising from bad faith or deliberate abuse of the English courts’ procedure. The fairness of the foreign trial, including admissibility and sufficiency of evidence, is ordinarily for the foreign court.
5. The English and United States authorities each had legitimate public interests. The English proceedings addressed possession and conduct occurring in or connected with England. The United States charges concerned, among other matters, communications with specific girls, conduct involving a United States resident, and the gathering and use of a large quantity of material in the United States. These were not rendered abusive merely because the matters arose from a wider course of conduct.
6. The challenge to the English sentence did not establish unfairness. The sentence was consistent with the applicable guideline authority, R v Oliver [2003] 1 Cr App R 28, and any complaint that the English judge sentenced on an improper basis should have been pursued by appeal against sentence.

• High Court (Administrative Court): appeal against an extradition order made by District Judge Evans at Bow Street Magistrates’ Court; appeal dismissed.