England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		21st October 2005

1. LORD JUSTICE SCOTT BAKER: Mr Justice Newman will give the first judgment.
2. MR JUSTICE NEWMAN: This is an appeal against an order for extradition made by District Judge Evans sitting at Bow Street Magistrates' Court. The decision is challenged on two grounds: (1) that there is a bar to extradition by reason of the rule against double jeopardy (see sections 79 and 80 of the Extradition Act 1973 ("the 2003 Act")); and/or (2) that the application for extradition constitutes an abuse of process.
3. The appellant arrived in the United Kingdom from the United States of America on 7th November 2003. He travelled to Birmingham and made two telephone calls to young girls. One of them, aged 13, who has been referred to as MB, lived in Birmingham. He phoned her to arrange to have sexual relations with her. Her father overheard the contents of the call, informed the police and they arrested the appellant at his hotel. They seized his laptop computer and other items, including a child pornography magazine. Analysis of the laptop computer revealed over 10,000 images depicting sexual abuse of children and babies. There were e-mails to and evidence of chat sessions with girls, including MB; another young girl in the United Kingdom referred to as CR, to whom he had made a telephone call after arrival in the United Kingdom; and a young girl resident in the United States of America, referred to as MH.
4. The material on the computer showed that he had sent pornographic material to MB and incited her to engage in sexual relations with him. It also showed that he had incited CR and MH to engage in sexual relations. Further, he had requested MH to provide nude photographs of herself and photographs of her engaging in sexually explicit conduct. These were found on the laptop. Online communications indicated that he had had contact with young girls over the world.
5. The appellant's arrest was promptly communicated to the FBI in the United States of America. The custody record shows that contact was made within hours of his arrest. His home in Florida was searched the next day. Thereafter, matters proceeded in the United Kingdom with a view to his prosecution here for offences arising out of his conduct in the United Kingdom. It is not in dispute that in the course of this process discussions took place with the FBI. As a result, he was charged on an indictment containing 20 counts at Birmingham Crown Court on 16th March 2004. At that date the authorities had received a provisional warrant for his arrest and an indictment in support of a proposed application for his extradition, but the appellant was not served.
6. As a result, the details of what was proposed were not supplied to the appellant, but prosecuting counsel informed Her Honour Judge Fisher at the Crown Court that the indictment at the Crown Court had been drawn so as not to:

"... cause any impediment to the authorities in the United States dealing with him for any other offence committed within their jurisdiction ..."

7. Counsel also stated that the 20 counts were drawn from a larger number of images found on the computer, but:

"... we do not invite the court to sentence him on a basis wider than the specific indictment ..."

8. He added that there was no schedule of matters to be taken into consideration, and that the counts were not sample counts. He observed:

"I hope that that is fair and clear to all and I have explained it to my learned friend who knows our stance."

Counsel who then appeared was not Miss Malcolm, who has appeared in this court and before the District Judge.

9. Miss Malcolm has suggested that the position was not clear. The appellant understood that any other offence committed in the United States of America was a reference to matters unconnected with images and revelations disclosed by the material on the laptop. At the very least, she suggests, the position was ambiguous and that it should have been clear. Had it been so, the appellant could have considered asking for offences to be taken into consideration. In addition, she submitted the judge fell into error and appears to have sentenced by reference to the larger number of images and the totality of the conduct known to the Crown Prosecution Service.
10. The 20 counts on the indictment comprised 18 offences of the possession of indecent material on 8th November 2003, namely during the period of 24 hours that he had been in the United Kingdom. The remaining two counts comprised a charge of distributing an indecent photograph of a child on 3rd November 2003 and the publication of an obscene article on a day between 2nd November 2003 and 6th November 2003. Both were sent via computer to MB and, as appears from the dates, whilst he was in the United States of America.
11. In my judgment, nobody could have believed, or reasonably have understood, that the United States of America authorities did not intend to seek to prosecute him in connection with offences which the material on his laptop disclosed that he may have committed in the United States of America. It would have been obvious to the Crown Court, since the offences of possession were limited to 20 specific images, when thousands existed, and to a period of 24 hours, when plainly he had possessed them for a much longer period prior to his arrival in the United Kingdom, that counsel was inviting the court to exclude the appellant's conduct in the United States, save as to the two charges of distribution which did encompass actions taken by him in the United States of America, but which had resulted in MB receiving the images in the United Kingdom. It is to be noted that the conduct in connection with this allegation was confined to acts of distribution and did not involve an allegation of incitement.
12. Miss Malcolm submitted that the total sentence of 30 months' imprisonment, comprising a sentence of two years for the 18 offences of possession and a sentence of 30 months for the offences of distribution, such sentences to run concurrently, when it is considered by reference to the guideline case of R v Oliver [2003] 1 Cr App R 28 it can be seen as excessive for the 20 offences, and that it was plain the judge had sentenced taking into account the larger number of images and the wider conduct to which the material pointed. That being so, she submitted unfairness had occurred and that if he is sentenced in the United States of America he will be subjected to double punishment.
13. I am bound to say I am wholly unimpressed by this contention.

(1) Had it been the case that the appellant was sentenced for offending beyond the proper ambit of the 20 offences to which he had pleaded guilty, he should have appealed the sentence. His failure to do so does not support the submission now made to this court.

(2) It is clear that the judge was at pains to follow the case of Oliver. She adjourned to consider her sentence for that very purpose. Her sentence for 18 offences of possession of level 4-5 material was not out of line with the guidelines: they are guidelines. Her sentence of 30 months for distribution was appropriate. She was entitled to take account of the context in which the English offending occurred, namely a visit to the United Kingdom with the intention of engaging in sexual relations with a young girl, and being in possession of pornographic material in connection with that visit. The sentence of 30 months was, in my judgment, an appropriate sentence.

14. Despite my firm rejection of the suggestion that unfairness can be shown to have arisen from the course the proceedings took at Birmingham Crown Court, I must now turn to the more principled argument advanced by Miss Malcolm. In this regard her arguments on double jeopardy and abuse of process, which she has repeated in this court, secured a measure of success for the appellant in the Magistrates' Court; and the result is not under challenge by way of cross-appeal in this court. That is not because the United States government accepts the District Judge was right to rule as he did, but when the complexities of procedural process for the government to appeal are taken into account with the minimal effect the order has had on the request for extradition, on balance the view was taken an appeal was not necessary. The District Judge ruled:

"... Mr Bohning should not face any charge or be at risk of imprisonment, if sent to Florida, in respect of any allegation that he had indecent photographs of children on his computer if such a photograph featured in any of the counts on the Birmingham indictment."

15. The net effect of the judgment has been set out in an explanatory note scheduled to the extradition charges as they now stand. The District Judge's reasoning involved acceptance that the double jeopardy principle and the abuse of process principle were in play.
16. It follows that the District Judge declined to draw a distinction between charges relating to possession of indecent material in the United States of America and charges concerning possession of the same material in the United Kingdom. He accepted that possession charges relating to the 10,000 or more images not included in the indictment at Birmingham could be proceeded with in the United States of America. He ordered that an image, the subject matter of count 19, a distribution charge in the United Kingdom, could not be the subject matter of a distribution charge in the United States of America.
17. The categories of offending laid out in the United States' indictment broadly speaking fall into the following categories: (1) incitement of the three girls, MB, CR and MH; (2) distribution charges; (3) possession of images with intent to distribute; and (4) possession charges.
18. So far as the incitement charges are concerned, the judge ruled that it is one thing to have images on your computer, and quite another to initiate approaches with a view to engaging in sexual conduct with specific young girls. I agree with the judge's approach. Further, it is clear from the extradition application that the proposed prosecution in the United States of America on incitement charges depends to a significant extent upon e-mails and chat sessions which took place whilst the appellant was in the United States of America and which did not fall within the ambit of the United Kingdom court's consideration.

The appellant's submissions

19. Miss Malcolm's argument involved the following steps:

(1) that cross-border criminality arising out of one course of conduct should, so far as possible, be prosecuted in one jurisdiction. In the United Kingdom prosecuting authorities should consider, as a matter of duty, in which forum the defendant can most conveniently be prosecuted. The principle of forum conveniens established in civil cases should be adopted;

(2) if it can be seen where the majority of the criminality occurred or where the majority of a loss occurred, that jurisdiction should be selected;

(3) that the underlying principle of double jeopardy is fairness; and unfairness can arise in a variety of circumstances, not confined to the narrow situation giving rise to the application of autrefois convict or acquit;

(4) that in international law there has not been consistency between a strict approach to non bis idem, or double jeopardy, and there is much to be said for it applying to any charge arising out of the same or largely the same facts, or to charges which could have been brought, but were not brought;

(5) that undesirable confusion exists can be seen from different interpretations which have been given by member states to Article 54 of the Schengen Convention. She submits that fairness requires the adoption of a conduct-based analysis;

(6) that the case of Connelly v Director of Public Prosecutions [1964] AC 139, if it is to be regarded as limiting the deployment of fairness in extradition proceedings in the manner she suggests, should be reassessed so as to take account of technological advances. She submits that this appeal presents an opportunity for the court to carry out that reassessment.

20. Despite the care and degree of learning involved in these arguments, they do not represent the law. Nor am I persuaded, so far as it matters, that the law requires assessment. I would be very slow to introduce into extradition law principles applied in civil proceedings between private parties. Extradition proceedings bring the public interest of sovereign states in the criminal sphere into play. Parliament has recently considered the law on extradition and the product is the 2003 Act. So far as the matters which can bar extradition are concerned, specific provision has been made (see section 79-83 inclusive). Most pertinently section 80 provides:

"A person's extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises his jurisdiction."

21. I am satisfied that the rule against double jeopardy is to be found in the speeches in Connelly, and in particular the speech of Lord Morris of Borth-y-Gest at page 1305. He set out nine principles attaching to the rule. The fundamental principle is that a man cannot be prosecuted twice for the same crime. It does not extend to create a bar to prosecution for offences arising out of the same facts, or to offences which could have been but were not charged. That said, such circumstances could involve consideration in connection with the principle of abuse of process.
22. However, since the 2003 Act bars extradition where, by reason of the passage of time it would be unjust and oppressive to extradite and where extraneous considerations such as race, religion, nationality, gender, sexual orientation or political opinion undermine the application, the categories of misconduct, which is at the heart of an abuse of process allegation, and which might establish an abuse of process, are already provided for by the scheme of the 2003 Act. But more than that:

"... extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; ..." (see Rose LJ in Regina (Kashamu) v Governor of Brixton Prison [2002] QB 687)

23. Since the passing of the Human Rights Act the court is obliged to consider the lawfulness of a defendant's detention under Article 5(4) of the ECHR. But as Rose LJ held in Kashamu, paragraph 34:

"What is pertinent ... is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English courts' procedure. The scope of the inquiry is, therefore, narrow. ... I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process has rendered the detention unlawful under article 5(4)."

24. The thrust of Miss Malcolm's submission is that the deliberate conduct of the authorities in tailoring the United Kingdom charges to the 20 which most closely related to this jurisdiction, in the knowledge that the Government of the United States of America intended to prosecute him in connection with his activities on the computer as well, has in fact given rise to unfairness and constitutes an affront to justice, namely an abuse of process.
25. I disagree. The United Kingdom authorities had a legitimate public interest to serve in prosecuting him for his possession here and his contact with the English girl, MB, in particular. No dispute arises in connection with the prosecution of MH, namely the girl in the United States, because no prosecution could have taken place here. His wider activities in connection with the girls, which involve chat room sessions and e-mails, are capable of supporting enticement charges. The Crown Prosecution Service were not bound to prosecute him for enticement and, having regard to the date of the offences, an issue may have arisen as to whether the conduct said to amount to enticement took place in the United States of America, even though it was communicated to the girls here, could have been tried here, namely before changes in the law introduced by the Sexual Offences Act 2003. But that aside, in my judgment, the serious charges of enticement not having been laid here, the authorities in the United States of America have a legitimate interest in prosecuting him there.
26. As to the possession charges, he now faces a trial, if returned, in connection with the gathering and the use of a vast amount of pornographic material, which plainly gives rise to public interest considerations which would deeply concern the United States Government. Just as the United Kingdom had an interest in punishing someone who deliberately entered the country so as to bring pornographic material here and seeing that he was prosecuted here in order to deter others from acting in a similar way, equally, the United States Government has an interest in investigating and punishing such a vast scale of offending which occurred in the United States of America.
27. For the above reasons, in my judgment, this appeal should be dismissed.
28. LORD JUSTICE SCOTT BAKER: I agree.
29. In the result the appeal is accordingly dismissed.
30. MR PONTE: My Lord, there is no application for costs.
31. LORD JUSTICE SCOTT BAKER: Thank you.