Fofana & Anor v Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France

The rule against double jeopardy in sections 11 and 12 of the Extradition Act 2003 extends beyond the formal pleas of autrefois acquit and autrefois convict. It includes the court’s jurisdiction to stay a second prosecution as an abuse of process where it rests on the same or substantially the same facts.

Extradition is barred where the proposed foreign prosecution substantially overlaps an earlier domestic prosecution and a corresponding prosecution in England would be stayed. The court may consider the prosecuting authority’s prior knowledge of the wider allegations and its decision to pursue a deliberately narrow domestic case.

A European arrest warrant need not match the particularity of an English indictment. It is sufficient if, read as a whole, it identifies an extradition offence and states the alleged conduct, time and place with adequate accuracy.

Both appellants were subject to European arrest warrants seeking their extradition to France for fraudulent conduct involving two transactions with Serviware SA. The warrants also referred more generally to similar frauds against other French companies.

Before the extradition hearing, the appellants were prosecuted at Southwark Crown Court for offences concerning false instruments used in the second Serviware transaction. Fofana pleaded guilty to custody or control of two false instruments. Directed acquittals were entered for Belise on all counts and for Fofana on the original counts.

The Deputy Senior District Judge subsequently ordered both appellants’ extradition. On their appeals under section 26 of the Extradition Act 2003, the principal issue was whether extradition was barred by double jeopardy. They also challenged the accuracy and adequacy of the warrants’ description of the extradition offence.

1. Both appeals allowed. The expression “double jeopardy” in sections 11 and 12 of the Extradition Act 2003 encompasses two protections. The first is the formal plea of autrefois acquit or autrefois convict where the later offence is the same in fact and law. The second is the court’s jurisdiction to stay a prosecution founded on the same or substantially the same facts as an earlier trial, unless special circumstances justify another trial.

2. The formal pleas did not apply. The continuing fraud alleged in the warrants described wider criminality than the substantive false-instrument offences charged at Southwark Crown Court. It included the earlier Serviware transaction and alleged a longer course of fraudulent conduct.

3. Nevertheless, a hypothetical English prosecution for the wider Serviware fraud would have been vulnerable to a stay as an abuse of process. Its only significant addition to the June 2005 conduct prosecuted at Southwark was almost identical conduct against Serviware one year earlier. The case was materially different from Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin), where the proposed foreign prosecution concerned substantially wider and more serious offending.

4. The Crown Prosecution Service had known of the pending extradition proceedings and the wider allegations. It nevertheless delayed those proceedings and confined the domestic prosecution to one transaction, despite possessing material concerning the other alleged transactions. That history would have made it difficult for an English court to refuse a stay. Extradition would accordingly be an abuse of process and was barred by the rule against double jeopardy.

5. The alternative challenge to the warrants would have failed. Section 2(4)(c) does not require the description in a European arrest warrant to possess the specificity expected of an English indictment or civil pleading. Read as a whole, each warrant sufficiently and accurately disclosed a conspiracy to defraud, including its conduct, dates and location. Differences in language, translation and national pleading traditions must be approached in a spirit of co-operation and comity.

6. Belise’s acquittals did not make his warrant inaccurate. Their effect upon any French prosecution was a matter for the French court and depended on the evidence advanced there. Sullivan J agreed with Auld LJ.

1. High Court (Administrative Court): Both appeals under section 26 of the Extradition Act 2003 were allowed. The extradition proceedings were barred by the rule against double jeopardy.

2. Bow Street Magistrates’ Court: On 21 December 2005 the Deputy Senior District Judge ordered both appellants’ extradition to France.

3. Southwark Crown Court: Fofana pleaded guilty to two counts of having custody or control of false instruments and received a short sentence of imprisonment. Directed acquittals were entered for Belise on all counts and for Fofana on the original counts.