Ninedays v District Prosecutor's Office of Varna Bulgaria

Section 12 of the Extradition Act 2003 incorporates both limbs of the rule against double jeopardy. Extradition is barred where the requested person could plead autrefois acquit or autrefois convict, and also where the requested prosecution would abuse the process because it is founded on the same, or substantially the same, facts as an earlier conviction or acquittal.

The court must closely scrutinise the factual foundation of each offence and determine whether they arise from the same incident. Section 12 applies to both accusation and conviction European Arrest Warrants. Extradition may also be barred where surrender would serve no useful purpose and create a risk that the person would be punished again for conduct already dealt with.

The appellant had been convicted and sentenced in Germany for fraud arising from the transfer of funds obtained through fraudulent instructions concerning a victim's securities. He was subsequently convicted in Bulgaria of receiving, keeping and using those funds, together with funds connected with a second victim.

The Bulgarian proceedings resulted in a single five-year sentence. The appellant challenged the order for his surrender under a conviction European Arrest Warrant on several grounds, but the court heard first the double-jeopardy issue. The central question was whether the German and Bulgarian convictions concerned the same incident and whether surrender could properly occur in respect of the second victim when the Bulgarian sentence had not been increased after that conviction.

1. Appeal allowed. The appellant was discharged because extradition would offend the rule against double jeopardy.
2. Section 12 of the Extradition Act 2003 embraces both autrefois acquit or autrefois convict and abuse of process based on substantially the same facts. The court followed the construction adopted in Fofana v Deputy Prosecutor Thubin Tribunal de Grande Instance to Meaux France [2006] EWHC 744 (Admin).
3. The correct approach requires close scrutiny of the factual foundation of both offences. The question is whether, viewed overall, they are founded on the same incident. Section 12 applies to conviction European Arrest Warrants as well as accusation warrants.
4. The German conviction concerned the appellant's participation in the fraud against Ms Seidel, including making his Bulgarian bank account available so that the proceeds could be transferred. The Bulgarian conviction concerning the same funds therefore arose from the same incident. It constituted double jeopardy.
5. There was no factual double jeopardy concerning the second victim, Ms Mojekwu. However, the Bulgarian Court of Appeal had treated both matters as one continuous crime and had not increased the existing five-year sentence. Surrender would therefore serve no useful purpose and risked either a new substantive sentence or enforcement of the existing sentence for conduct that had attracted no additional sentence.
6. The court distinguished Brodziak v Circuit Court of Warsaw Poland [2013] EWHC 3394 (Admin), which concerned a composite sentence containing an identifiable element attributable to a non-extradition offence. This case involved no sentence attributable to the second matter.
7. Mr Justice Nicol agreed. He additionally considered R v Greaves [2010] EWCA Crim 709; 2011 1 Cr App R (S) 8, observing that a person should not be punished twice for the same conduct where a money-laundering offence adds nothing to the culpability of the underlying offence.

• High Court (Administrative Court): Allowed the appeal against the order of District Judge McPhee dated 21 August 2014 and discharged the appellant.
• District Judge: Ordered surrender under the Bulgarian conviction European Arrest Warrant and rejected the appellant's six objections.