Ayaz v Court of Milan

For the purposes of Extradition Act 2003, the rule against double jeopardy includes the wider jurisdiction to prevent an abuse of process. The relevant question is whether prosecution for the extradition conduct would be abusive if it occurred in the United Kingdom. Relevant considerations include whether the conduct is the same or substantially overlaps with the conduct already prosecuted, the prosecution authorities’ knowledge and decisions, fairness, and the territorial interests of the states concerned. Separate offending may properly be prosecuted in different jurisdictions. A defendant’s late offer to have foreign conduct added to domestic proceedings does not, without more, make extradition abusive.

The claimant had been convicted and sentenced in England for sexual offences and offences involving indecent images arising from material found on his computers. Italy sought his extradition under a European arrest warrant for alleged involvement in arranging child-prostitution trips to Morocco and Romania with an Italian co-conspirator. The District Judge ordered extradition, rejecting the claimant’s reliance on double jeopardy. On statutory appeal under section 26 of the Extradition Act 2003, the central issue was whether extradition was barred because prosecution of the Italian conduct would have been an abuse of process in England.

The appeal was dismissed. The District Judge had been right to reject the double-jeopardy argument.

1. The court accepted the approach explained in Fofana & Anor v Deputy Prosecutor, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin): section 12 of the Extradition Act 2003 extends beyond autrefois acquit and autrefois convict to the established jurisdiction to stay proceedings as an abuse of process.

2. The decisive question was whether it would be unfair and abusive not to have included the extradition offences in the English prosecution. The comparison required attention to the identity of the conduct, factual or evidential overlap, the prosecution authorities’ knowledge and decisions, and the territorial connection and legitimate interests of the jurisdictions concerned.

3. The English convictions concerned conduct in Pakistan and indecent images found on computers in England. The Italian warrant concerned an alleged conspiracy with an Italian participant to arrange trips to Morocco or Romania. The conduct was not the same, was not based on the same facts, and did not substantially overlap. The common subject matter—sexual abuse of children—was insufficient.

4. The English authorities were entitled to confine the domestic prosecution to domestic offending and leave the Italian allegations to Italy. They were not obliged to accept the claimant’s late request to add the Italian conduct, and a hypothetical prosecution of that conduct in England would not have been abusive.

5. The court regarded the explanation given to the Southwark Crown Court on 25 June 2009 as a proper justification for the separate prosecution. Extradition was therefore not barred by section 12. A consequential direction was made for removal within 10 days after release from the claimant’s existing sentence.

1. City of Westminster Magistrates’ Court: extradition proceedings were commenced following arrest under the European arrest warrant.
2. District Judge Purdy: on 29 July 2010, ordered extradition and rejected the double-jeopardy and abuse-of-process arguments.
3. High Court (Administrative Court): dismissed the statutory appeal under section 26 of the Extradition Act 2003 and upheld the extradition decision.