Barrs v The Financial Prosecutor of the Republic At the Hgher Instance Court of Paris

For the purposes of the double-jeopardy bar under the Extradition Act 2003, the court must examine the substance of the facts said to constitute the offences, rather than their legal labels. Similar methods, participants or commercial structures do not establish that proceedings are founded on the same or substantially the same facts where the apparatus, companies, time periods and victims materially differ.

A risk of suicide or self-harm does not, by itself, bar extradition. The court must assess the seriousness of the risk, the transfer arrangements, conditions in the requesting state, and whether the authorities can provide appropriate treatment and safeguards. Mutual trust between Convention-compliant states remains an important starting point.

The appellant had been convicted in England of money-laundering offences arising from UK VAT frauds. France subsequently sought his extradition on an accusation warrant alleging conspiracy to commit VAT fraud involving French companies and losses to the French Treasury. The District Judge ordered extradition on that count but discharged the appellant on a separate money-laundering allegation because of double jeopardy.

The appellant appealed under section 26 of the Extradition Act 2003, arguing that the French fraud was founded on the same or substantially the same facts as the UK prosecution, that prison conditions in France engaged Article 3 of the Convention, and that his mental-health condition made extradition unjust or oppressive.

The appeal was dismissed.

1. Double jeopardy. Section 12 of the Extradition Act 2003 applies not only where the later offence is precisely the same offence, but also where the later prosecution is founded on the same or substantially the same facts so that a domestic prosecution would ordinarily be an abuse of process. The inquiry is one of substance, not form. The court applied the approach in Fofana v Deputy Prosecutor Thubin [2006] EWHC 744 (Admin).
2. Although the French and UK allegations involved a similar modus operandi and some overlapping individuals and companies, the material apparatus differed. The French allegation centred on ACSYS and Kappa Distribution, French companies said to have defaulted on French VAT. Those companies were not used in the UK frauds or the UK money-laundering offences. The proceedings also involved different periods, VAT liabilities and victims. The shared use of companies higher in the trading chain did not alter that conclusion. The French allegation was therefore not founded on the same or substantially the same facts.
3. The Article 3 argument based on French prison conditions was not pursued after Shumba & Others v France [2018] EWHC 1762 (Admin) and the further decision referred to as Shumba No.2 [2018] EWHC 3130 (Admin).
4. For a suicide or self-harm risk to prevent extradition, there must be evidence that the risk is sufficiently serious, that transfer or the conditions on arrival would create an unmanageable risk, and that the authorities in the requested and requesting states could not satisfactorily address the medical concerns. Applying the framework summarised in Bobbe v Regional Court in Bydgoszcz [2017] EWHC 3161 (Admin), the court held that the risk was not an absolute bar. The French authorities had received the medical evidence and confirmed that necessary treatment and care would be provided. The presumption of mutual trust was not displaced.
5. The District Judge was entitled to order extradition for the French fraud allegation. The double-jeopardy and mental-health grounds were rejected.

• High Court (Administrative Court): appeal against the District Judge’s order of 21 November 2017 dismissed. Extradition on the French VAT-fraud allegation remained ordered.
• Westminster Magistrates’ Court: ordered the appellant’s surrender to France on the VAT-fraud allegation and discharged him on the separate money-laundering allegation on double-jeopardy grounds.