Kulibaba & Anor v Government of the United States of America

Double jeopardy in extradition proceedings is not established merely because two prosecutions arise from a common criminal scheme or rely on overlapping evidence. The court must examine whether the offences are founded on the same or substantially the same facts, including the victims, losses and transactions relied upon. Separate prosecutions directed at different domestic victims may therefore proceed.

An alleged failure to follow concurrent-jurisdiction guidance does not, without more, amount to abuse of process. The court must identify specific abusive conduct, establish that it is capable of constituting abuse, and show reasonable grounds for believing that it occurred. Article 8 will rarely bar extradition for serious international crime without compelling evidence of disproportionate interference.

Two Ukrainian nationals appealed against a District Judge’s orders under Extradition Act 2003, section 87(3), sending their cases to the Secretary of State for a decision on extradition to the United States.

The appellants had pleaded guilty in England to conspiracy to defraud UK banks and customers. The United States sought extradition in respect of alleged frauds against US banks and customers arising from a wider scheme. The central issues were whether the US proceedings were barred by double jeopardy, whether failures concerning UK-US concurrent-jurisdiction guidance constituted abuse of process, and whether extradition would disproportionately interfere with Article 8 rights.

1. Appeals dismissed. Under Extradition Act 2003, section 104, the question was whether the District Judge ought to have decided an issue differently and, if so, would have been required to discharge the appellants.
2. The double-jeopardy ground failed. The English proceedings were confined to frauds against UK banks and customers. The US indictment concerned different banks, victims, losses and transactions. Although the chat logs were common evidence and there was some overlap in the alleged conduct, overlap in evidence was not the same as overlap in the facts founding the offences. The US proceedings were not founded on the same or substantially the same facts as the English proceedings.
3. The District Judge was wrong to suggest that US complaints could not have been tried in England as a matter of law. Nevertheless, he reached the correct conclusion on the evidence. The issue was decided on the distinct factual scope of the two prosecutions, not on the legal impossibility of including US victims in an English indictment.
4. The abuse-of-process ground also failed. The guidance concerning concurrent UK-US jurisdiction encouraged early consultation but created no rights for third parties. Applying the approach identified in R (Government of the United States of America) v Bow Street Magistrates’ Court (Tollman) and Haynes v Malta, an applicant must identify the alleged abuse specifically, show that it is capable of amounting to abuse, and establish reasonable grounds for believing that it occurred. The evidence showed separate investigations, no bad faith, no manipulation of due process, and no misleading or unfair disadvantage. Failure to consider the guidance did not itself trigger an investigation or bar extradition.
5. The Article 8 ground could not succeed independently. The information concerning family circumstances was sparse, and the exceptional threshold identified in Norris v Government of the United States of America (2), as further considered in HH v Deputy Prosecutor of the Italian Republic, Genoa, was not met.

High Court (Administrative Court): dismissed both appeals against the District Judge’s orders dated 20 June 2013 under section 87(3) of the Extradition Act 2003.