TREVOR HEATHFIELD v STAATSANWALTSCHAFT WÜRZBERG, GERMANY

Under section 12 of the Extradition Act 2003, double jeopardy may arise either where the later charge is the same offence or where it is founded on the same or substantially the same facts and a second prosecution would constitute an abuse of process. Separate statutory obligations create separate episodes of conduct. For the forum bar, transnational criminal conduct may occur in the requesting state where acts performed elsewhere were intended to cause harm there. In Article 8 extradition cases, the public interest in honouring extradition obligations is weighty. Family interference will ordinarily be outweighed unless the consequences are exceptionally severe. Hardship and delay alone are insufficient.

The appellant appealed, with permission, against District Judge Bayne’s order at Westminster Magistrates’ Court on 30 January 2017 for his extradition to Germany under an accusation European arrest warrant. The warrant alleged failure to pay German social security contributions in respect of employees supplied by an English company to work in Germany.

Before the district judge, the appellant relied on double jeopardy, passage of time, the forum bar and human rights grounds under the Extradition Act 2003. The central issue on appeal was whether his earlier German conviction for wage tax and solidarity surcharge offences barred the later prosecution for non-payment of social security contributions.

1. Appeal dismissed. The appellant’s earlier German conviction concerned wage tax and solidarity surcharge obligations. The requested prosecution concerned separate obligations to pay social security contributions. Although both arose from his involvement with the same company and German business, they constituted separate and distinct episodes of conduct. The section 12 double-jeopardy bar was therefore not engaged.
2. Section 12 also extends beyond the narrow pleas of autrefois acquit and autrefois convict. It may apply where the later prosecution is founded on the same or substantially the same facts as the earlier prosecution and would normally be stayed as an abuse of process. That wider test was not satisfied on the facts.
3. Under section 14, “unjust” concerns prejudice to the fairness of the trial, while “oppressive” concerns hardship caused by changes in circumstances during the relevant period. A fair trial was not shown to be impossible, and the evidence did not meet the high threshold of oppression. Germany’s investigative explanation and the appellant’s continuing involvement in the investigation supported the district judge’s conclusion.
4. For section 19B, the location of transnational conduct is not determined simply by where the defendant was when he acted. Applying the approach in King’s Prosecutor, Brussels v Cando Armas, acts in the United Kingdom may constitute conduct in the requesting state where their intended effect was to cause harm there. The alleged failure to pay German contributions was therefore conduct in Germany for forum purposes.
5. Even if the statutory threshold had been met, the specified interests of justice favoured Germany. The loss and victims were there, the evidence and co-defendant were connected with Germany, a United Kingdom prosecution would cause delay, and no United Kingdom investigation had been initiated. Those factors outweighed the appellant’s United Kingdom connections.
6. The district judge’s Article 8 assessment was not wrong. Extradition engages qualified private and family-life rights, but there is a constant and weighty public interest in extradition. The case disclosed no exceptionally severe consequences capable of outweighing that public interest.

The appeal was dismissed.

• High Court (Administrative Court): appeal against the extradition order was dismissed: [2017] EWHC 2602 (Admin) .
• Westminster Magistrates’ Court: District Judge Bayne ordered extradition on 30 January 2017.