Mitchell v High Court of Boulogne Sur Mer

Under Part I of the Extradition Act 2003, conduct partly occurring in a category 1 territory may constitute an extradition offence. Double jeopardy extends beyond technical autrefois acquit and autrefois convict to abuse of process, but extradition is barred only where the overlap between the domestic and foreign proceedings makes the foreign prosecution abusive. Under section 14, lapse of time alone is insufficient. The person resisting extradition must provide evidence capable of showing that extradition would be unjust or oppressive because of the delay, unless the delay is so extreme that prejudice is self-evident.

The claimant appealed against District Judge Evans’s order of 4 June 2007 requiring his extradition to France to face proceedings before the High Court of Boulogne Sur Mer. He had previously been convicted in England of an offence connected with cigarette smuggling and sentenced to imprisonment. The French proceedings concerned the dishonest receipt and use in France of stolen cars and forged credit cards connected with the same wider enterprise.

The appeal alleged that no relevant conduct occurred in France, that extradition was barred by double jeopardy, and that delay made extradition unjust or oppressive.

1. The appeal was dismissed. The preliminary issue concerning service of the appeal notice was accepted by the Crown Prosecution Service and did not require determination.

2. Under Part I of the Extradition Act 2003, it was sufficient that part of the relevant conduct occurred in France. The use of the stolen cars and forged credit cards occurred there. The fact that the cars or cards may earlier have been stolen elsewhere, or that the claimant may have organised those earlier acts, did not prevent the subsequent receipt or use from constituting separate conduct in France. The principle in Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67 was applied.

3. Double jeopardy under section 12 was not confined to the technical rules of previous acquittal or conviction. It included proceedings which would amount to an abuse of process, as explained in Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC Admin 744. The English proceedings concerned cigarette smuggling into the United Kingdom, whereas the French proceedings concerned the receipt of cars and use of credit cards in France. The overlap was insufficient to make the French proceedings abusive.

4. Section 14 imposed no fixed period after which extradition was barred. The question was whether extradition would be unjust or oppressive by reason of the delay. A bare assertion that delay would make the defence more difficult was insufficient. Evidence of actual prejudice was required, unless the lapse of time was so extreme that the impossibility of preparing a proper defence was obvious. The claimant had produced no such evidence.

5. The possibility of seeking a retrial or mitigation before the French court, and the assumed availability of Convention-compliant safeguards, were relevant considerations. The extradition order therefore stood.

• High Court (Administrative Court): the appeal from District Judge Evans’s order of 4 June 2007 was dismissed.