England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 October 2010

1. SIR ANTHONY MAY PQBD: Sohail Ayaz, the appellant, is a Pakistani national, who arrived in the United Kingdom in about August 2008 on a two year highly skilled migrant visa. He was a qualified accountant. He obtained employment with the charity Save The Children. Shortly after that, on 4 February 2009, he was arrested as part of a widespread international investigation concerning child sex offences. His address in London was searched, and his work and home computers were looked at. The material uncovered led to criminal proceedings against him being brought in this jurisdiction.
2. Meanwhile, on 10 February 2009, Judge Frederica Centonze in the court of Milan, issued an European arrest warrant for the arrest and surrender of the appellant to Italy. His extradition is sought for prosecution in Italy in relation to two allegations concerning sexual offences against children committed, one in 2005 and the other in 2007. In summary, it is alleged that the appellant conspired from Pakistan, with one or more other men in Italy, to organise a trip to Morocco, aimed at exploiting the activity of prostitution to the detriment of children under the age of 16 -- that was the 2005 matter -- and of organising a trip to Romania for the same purpose in 2007. The organisation is said to have taken place in Milan and elsewhere, and to constitute offences of sexual exploitation of children and child pornography.
3. In due course, the appellant was prosecuted at Southwark Crown Court for the offences arising from the examination in this jurisdiction of his computers after he was arrested. He was not prosecuted for the conduct set out in the European arrest warrant. There was a plea and case management hearing in the Southwark proceedings on 25 June 2009, at which an application was made on his behalf for an adjournment, it being indicated that he wished the conduct set out in the European arrest warrant to feature in the Southwark proceedings so that he might plead guilty to those offences. The prosecution was not prepared to accede to that, and the judge refused the application for an adjournment.
4. Accordingly, on 25 June 2009, the appellant pleaded guilty to three counts of sexual activity with a child, contrary to Section 9 of the Sexual Offences Act 2003, and five counts of taking or distributing indecent photographs of children, contrary to Section 1 of the Protection of Children Act 1978. He was sentenced to a total of four years imprisonment, and is now coming to the end of serving that sentence. Of the counts to which he pleaded guilty, one or more of the counts of sexual activity with a child had taken place in Pakistan, and the material available to prosecute those came from images derived from his computers. The other five counts related to indecent photographs, again derived from material from his computers which had been seized in this jurisdiction.
5. In July 2009, after he had pleaded guilty to the eight counts, but before he was sentenced, representations were renewed by solicitors on his behalf that he should be re-interviewed in relation to the European arrest warrant conduct, with a view, no doubt, to the English sentencing court taking account of that conduct. This did not happen. He was subsequently sentenced a few days after that letter was written.
6. Following his imprisonment in the United Kingdom, the appellant was arrested on 31 March 2010 pursuant to the European arrest warrant. He was produced at City of Westminster Magistrates court where extradition proceedings were started. Those proceedings were contested because it was argued that extradition would be barred by the rule against double jeopardy under Section 12 of the Extradition Act 2003. In summary, the appellant contended that he could or should have been prosecuted before the Southwark Crown Court for the conduct set out in the European arrest warrant, and to do so now in Italy would amount to an abuse of process.
7. District Judge Purdy heard the extradition proceedings, and ordered his extradition on 29 July 2010, giving a reserved judgment rejecting the double jeopardy arguments raised on the behalf of the appellant. The appellant now appeals, renewing those arguments against his extradition by way of statutory appeal under Section 26 of the 2003 Act. Section 11(1) of the 2003 Act provides that…

"…the judge in part 1 extradition proceedings must decide whether the person's extradition to the category 1 territory is barred by reason of; (a) the rule against double jeopardy ... "

Section 12 provides that:

"A person's extradition to a category 1 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 on the assumption; (a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction; (b) that the person were charged with the extradition offence in that part of the United Kingdom."

On this topic, the decision in Fofana & Anor vs Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin) explains that the bar of double jeopardy in extradition proceedings extends beyond the narrow autrefois acquit and autrefois convict doctrine to a wider abuse of process jurisdiction.

8. In Fofana, a European arrest warrant issued by a French prosecuting authority against two appellants, specified two specific and one more generalised allegation of fraudulent conduct against French companies. Orders for goods were placed by fax and purportedly paid for by bank transfers which were fraudulent. The appellants were arrested in this jurisdiction in June 2005, following a controlled delivery. The French authorities issued the European arrest warrant, but the City of London police decided to prosecute them here, initially for substantially the whole range of the transactions alleged in the European arrest warrant. They were committed to Southwark Crown Court where the indictment was confined to the second only of two specific deliveries with one French company, but not to the more serious general conduct. Fofana eventually pleaded guilty on re-arraignment to two lesser charges and was sentenced to a short period of imprisonment. The extradition proceedings on that case were resisted on the grounds of double jeopardy. It was said that the English indictment and the European arrest warrant were based on the same conduct, but as Lord Justice Auld said in paragraph 11, the indictment related only to the specific June 2005, not the wide…and more lengthy course of fraud against a number of French companies of which the June 2005 Serviware transaction was only part.
9. Lord Justice Auld considered a number of authorities going back to Connolly vs DPP [1964] AC 125, HL, and later authorities, including R vs Humphries [1977] ACT 1, HL. He said in paragraph 18 of his judgment:

"In summary, the authorities establish two circumstances in English law that offend the principle of double jeopardy:

(i) Following an acquittal or conviction for an offence which is the same in fact and law - autrefois acquit or convict; and

(ii) Following a trial for any offence which was founded on 'the same or substantially the same facts', where the court would normally consider it right to stay the prosecution as an abuse of process, and/or unless the prosecution can show special circumstances why another trial should take place."

10. Later in the judgment, having referred to other authorities including R vs Z [2000] 2 AC 483, where Lord Hutton had said:

"In my opinion, the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first defence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded."

In paragraph 22 Lord Justice Auld said:

"Thus, as Mr Pepper and Mr Watson submitted and Mr Caldwell agreed, the term 'double jeopardy' as a generality - and as used in the 2003 Act, given its wider European origins - should now be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent is a means of protecting a defendant from 'double jeopardy'."

11. Having set out the facts and the arguments, this is the heart of Lord Justice Auld's decision on the case before the court on that occasion. Paragraph 26:

"The contemplated French proceedings were a continuing offence of fraud against Serviware, of which the two described fraudulent transactions could be regarded as overt acts, concern a longer and more serious course of criminality than the second of them, to which the Southwark indictment was confined. Prosecution in France with such a continuing offence would not, of itself, offend against the double jeopardy rule."

Leaving out a bit and going to the second sentence of paragraph 27:

"A hypothetical attempt to prosecute both men again in this country on a broader charge based on both Serviware transactions, would, in my view, be vulnerable to the court directing a stay as an abuse of process. The only significant addition to the June 2005 Serviware conduct giving rise to the Southwark indictment would be the almost identical conduct described in the warrant against Serviware a year before, albeit subject to some confusion in that instrument as to the relative values of the two transactions. The case is clearly distinguishable on its facts from that considered by Smith LJ and Newman J in Boudhiba.

In addition, as I have indicated earlier in this judgment, it is an unhappy feature of the case that the Crown Prosecution Service proceeded with and narrowly confined Southwark prosecution to the June 2005 Serviware transaction, not only in the full knowledge of the pending and more broadly based extradition proceedings, but also causing them to be delayed until after the completion of that prosecution. In doing so, the Crown Prosecution Service was also already aware as a result of the information provided in the warrant, and other information provided by the French authorities, not only of the earlier Serviware transaction alleged, but also the allegations in respect of other French companies, none of which, despite its inclusion of documentation relating to them among the exhibits prepared for the Southwark prosecution, it chose to rely upon as a basis for charging in the indictment. The fact that it chose to frame a prosecution on only one transaction, notwithstanding the material as to others available to it and lying, albeit unused, in prosecution papers, would, I think, make it difficult for an English judge to resist an application for a stay as an abuse of process such a prosecution as that now sought by the French authorities in these extradition proceedings.

Accordingly, I am of the view that although the extradition offence specified in the warrant is not based on exactly, or only partly, on the same facts as those charged on the Southwark indictment, there would be such significant overlap between them as to have required the District Judge to stay the extradition proceedings as an abuse of process. But in any event, given what was known, and the material available, to the Crown Prosecution Service when committing this matter to the Southwark Crown Court, and when framing the indictment on which they were respectively convicted and acquitted, extradition of these men would be an abuse of process, and on that account in the words of Section 11(1)(a) and 12 of the 2003 Act would be barred 'by reason of the rule against double jeopardy'."

12. As will appear, there are some general similarities, but quite a lot of quite important differences between the case of Fofana and the one presently before the court. Mr Hearn, on behalf of the appellant, submits that in the present case, as in Fofana, to establish whether it would offend the rule against double jeopardy for the requested person to be extradited to the requesting judicial authority to stand trial for the offences described in the European arrest warrant, the court must ask the following question; if the defendant were arraigned at Southwark Crown Court on an indictment reflecting the conduct described in the European arrest warrant, could the defendant successfully apply for the proceedings to be stayed as an abuse, due to the fact of his previous conviction at the Southwark Crown Court? He submits in writing that if the Crown produced the appellant at Southwark Crown Court, and purported to arraign him on an indictment containing counts reflecting the conduct described in the European arrest warrant, any such prosecution would be vulnerable to an application to stay proceedings due to three factors. Those three factors, Mr Hearn submits, are the commonality of conduct between the conduct that resulted in Mr Ayaz's domestic convictions, and the conduct described in the European arrest warrant, and the substantial evidential overlap between the two sets of proceedings. Secondly, because the Crown Prosecution Service's decision not to prosecute the European arrest warrant offences, despite being aware of them, and being asked to re-interview the defendant regarding those offences, contributed to a situation of abuse. Thirdly, he submits the fact that Mr Ayaz has already served a lengthy custodial sentence for offences discovered in this jurisdiction as a result of the original international investigation.
13. As to the commonality of conduct, he submits that both sets of charges relate to sexual offences involving children; that the dates of the offences in the European arrest warrant overlap with the period of the indictment in the original domestic proceedings; that the conduct in each was discovered in the same investigation into Mr Ayaz's activities on the internet; that he was interviewed by the British police about the European arrest warrant offences as part of the their investigation; and that the indictment did include an extra-territorial offence which Mr Ayaz had admitted in interview. That refers to the one or more charges on the indictment relating to conduct in Pakistan. Mr Hearn proceeds to submit that it was wrong and an abuse for the Crown Prosecution Service not to prosecute Mr Ayaz for the Italian offences, if I can use that composite expression. He had been interviewed, he says, about the conduct described in the European arrest warrant. As I understand the facts, that is a slight overstatement. Certainly, the British prosecuting authorities knew about the allegations in the European arrest warrant, and they were mentioned in interview when he was being interviewed on the matters for which he was prosecuted in this jurisdiction. But at that stage, the appellant made no comment about the Italian matters, and the police, as I understand it, did not proceed to attempt to interview him further. It was clearly, at that stage and subsequently, their view that the Italian matters should be left to be dealt with in Italy. Certainly, it is the case that his counsel on 25 June, and his solicitors by letter in July 2009, invited the prosecution and the court to bring the Italian matters within the Southwark prosecution, and he offered himself for interview, and he offered to plead guilty to them. But the CPS had decided and maintained their decision not to do that. It is submitted that he was prepared fully to cooperate with the police investigation in the United Kingdom, and reasonably expected that the Southwark Crown Court would bring finality to the proceedings. It is submitted that an attempt to prosecute him in this jurisdiction at the end of his existing sentence for offences that could properly have been prosecuted as part of the Southwark indictment of 2009, would have been stayed as an abuse of process.
14. The judicial authority, through Mr Watkins, reject and resist these arguments. They say that the only real link is the general subject matter. On this topic, Mr Watkins writes that at Southwark Crown Court:

"The appellant faced counts of sexual activity with a child committed in Pakistan, and taking, making, possessing and distributing indecent images of children. This evidence derived from his computers when he was arrested in England."

15. By contrast, the conduct in the European arrest warrant does not concern this, rather it relates to the appellant's role in a conspiracy with another co-defendant based in Italy, to engage in sexual activity with children in Morocco and Romania. This is, it is submitted, far from the conduct with a degree of overlap, or in one instance almost identical conduct, contemplated by Lord Justice Auld in Fofana. It is submitted that there is no commonality other than the general subject matter of the conduct alleged. The time periods only overlap because the United Kingdom indictment alleged dates "on or before" the date that the appellant was presented. The conduct presented at Southwark arose directly and exclusively from materials seized on the appellant's arrest. The conduct in the European arrest warrant did not arise out of the arrest. When he was interviewed, he was informed of the subject matter of the European arrest warrant, but not told that it would be dealt with in this jurisdiction. Quite the reverse; he was told that it would not, and there was no question of him being misled.
16. The extra-territorial offence which was dealt with in the United Kingdom concerns sexual activity in Pakistan, who were not seeking his extradition. Knowledge of the Pakistan offences arose from photographs seized from his home in the United Kingdom. It is submitted that the commonality between the offences of conduct between the offences prosecuted in Southwark, and the conduct alleged in the European arrest warrant, is extremely limited, and the court should not conclude that proceedings for the European arrest warrant conduct would be stayed if that conduct were charged as offences in this jurisdiction.
17. By contrast with Fofana in the present case, the arrest of the appellant, it is said, disclosed a range of offences committed in the United Kingdom, entirely separate from the subject matter of the European arrest warrant, which concerned the possession of distribution and making of indecent images. Those images also, as I have said, included sexual activity with children which occurred in Pakistan. This conduct, once it was within the knowledge of the United Kingdom authorities, derived from materials seized in this jurisdiction, had to be prosecuted in the United Kingdom. It was entirely right that it should be. In Fofana, it is said the defendants were charged with the full range of conduct of interests to the French judicial authority, and Mr Watkins submits that it was, in retrospect at least, a mistake for the United Kingdom prosecuting authorities to bring proceedings in this jurisdiction. Only later when the indictment was drafted, did a large extent of that conduct disappear to create a prosecution for part only of the material available. By contrast, in the present case the appellant was never charged with the conduct subject to the European arrest warrant. The prosecuting authorities in this jurisdiction have always made it clear that there was no intention of trespassing on the Italian judicial authorities' intended prosecution. It is further submitted that although the United Kingdom prosecuting authorities knew of the conduct alleged in the European arrest warrant, there is no suggestion that they had the evidence required to prosecute serious sexual offences which occurred in another jurisdiction. Mr Hearn suggests that material to that effect was available in a document deriving from Norway, and to some extent that may be correct. Mr Watkins says that no sentencing judge in this jurisdiction could properly proceed to sentence the appellant on the appellant's plea alone, without much greater information as to what had happened in relation to the Italian offences. He submits that the United Kingdom authorities were not obliged to accede to the appellant's late request to bring the essentially unconnected Italian conduct into the United Kingdom prosecution.
18. In my judgment, and it is agreed, the heart of the issue before the court is whether it was unfair, so as to be an abuse, not to bring the extradition offences within the Southwark prosecution. As to that, Mr Hearn submits that it was unfair, because the appellant was arrested in the United Kingdom as part of an investigation covering at least three jurisdictions, the offences were extra-territorial, and there was a risk, he submits, that the appellant could be passed from state to state. There was no feature, he suggests, that gives to Italy the prerogative to deal with the matters concerning Italy. He was first arrested in the United Kingdom. Matters in Pakistan were dealt with, and the Milanese matters are in much the same position as those arising in Pakistan. It is unfair, because he is coming to the end of a sentence imposed in Southwark, and now faces, if he is extradited, further prosecution. If this were to happen in the United Kingdom, which is the test, he would be subject to sequential prosecution for the same kind of offences, which ought to have been, if they were to be prosecuted at all, included in the Southwark indictment. It is submitted that it is unfair, if the appellant is past -- as Mr Hearn put it -- from pillar to post. There is available to the court an abuse discretion that could encompass a wider state of affairs than in Fofana, where Lord Justice Auld was concerned to see the extent to which the French and the English prosecutions would overlap. If there is a rule of law that would prevent prosecution, he is entitled to be discharged. Mr Hearn submits that there is such a rule of law, that of relating to abuse of process. That is a matter he agrees for the court's judgment and is fact specific.
19. Mr Watkins resists those submissions, and points firstly to passages in the decision of this court in the course of Raymond George Bohning vs The Government of the United States of America [2005] EWHC 2613 (Admin), which he suggests gives rise to similar considerations. He refers to paragraphs 24 to 26 of the leading judgment in that case, which I will not read out in full. But in broadly similar circumstances the court there held that the United Kingdom authorities had a legitimate public interest in prosecuting the appellant for matters concerning the English jurisdiction and that the United States judicial authorities had a legitimate public interest in prosecuting him for matters which had centred on the United States. Mr Watkins then refers helpfully to a passage in counsel's submission before HHJ Testar on 25 June 2009, when counsel was explaining why it was that the Crown Prosecution Service were not minded to bring the Italian conduct within the Southwark prosecution. What counsel there said, page 192 of the bundle, was this:

"Well, your Honour, the position is this; the case in Italy is again against a Mr Di Gregorio. Mr Di Gregorio is being prosecuted by the Italian Prosecutor's Office for child sex offences, as a result of material, addresses and contacts provided to him by this defendant, Mr Ayaz, and I do not think that that is the source of any dispute between the Crown and the defence. In other words, the prosecution case in Italy appears to be that Mr Ayaz, having been provided with names and addresses of contacts in Romania by a Norwegian national, then provided those names and addresses to Mr Di Gregorio, who then made use of those names and addresses to further his sexual interests in children."

The judge said:

"Right. So that is the Italian interest?"

And counsel proceeded:

"Yes, and it would appear -- we do not know, but it would appear that the prosecutor in Italy is anxious to have Mr Ayaz in Italy to stand before an Italian court with Mr Di Gregorio in the furtherance of that particular prosecution. In other words, facilitating Mr Di Gregorio's sexual offending against children, which so far as the officer is aware, led to some 15 or so children being sexually abused by Mr Di Gregorio and others."

The judge asked:

"In which country?"

And the answer was:

"Romania, or -- and I do not know the detail, Romania or Italy. But as far as Mr Ayaz's involvement, is that it would appear that whilst he was in Pakistan and not within Great Britain or within the jurisdiction of England and Wales, provided the material to Mr Di Gregorio, who then acted upon it to abuse children. This indictment stands alone of that internet paedophile ring."

20. In my judgment the District Judge was right to reject the double jeopardy submission in the present case. The conduct comprising the offences to which the appellant pleaded guilty in this jurisdiction was not the same as, nor was it based on the same facts as, nor did it overlap, the conduct alleged in the European arrest warrant, which was for practical purposes completely separate. The only connection is that it was the appellant's conduct in each case, and that the general nature of the separate contact was the sexual abuse of children. Sexual activity with a child in Pakistan and making or possessing indecent photographs of children as found on the computer in England, has no substantial overlap with alleged conduct of conspiring with an Italian in Milan to organise a trip to Morocco or Romania for the purpose of child prostitution. There was, in my judgment, speaking generally, no abuse in the United Kingdom prosecuting authorities deciding to confine the United Kingdom prosecution to the United Kingdom offences, leaving it to the Italian authorities to proceed with the European arrest warrant conduct as alleged in Italy. They were not, on the facts of this case, in my view, obliged to accede to the appellant's late request to bring the European arrest warrant Italian conduct into the English prosecution. Nor would it be an abuse if putatively the appellant were to be prosecuted in this jurisdiction, on charges reflecting the conduct alleged in the European arrest warrant. There were substantial reasons, as articulated by counsel on 25 June 2009 why it was right that the matters alleged in Milan should be dealt with in Italy, not least because there was no substantial connection with the matters alleged in this jurisdiction, and because the allegation was that this appellant was concerned with a co-conspirator in Italy in the matters that were alleged against him there.
21. Counsel's explanation to the judge on 25 June 2009 provided, in my judgment, a proper justification for the course taken, which was not, as I find, an abuse, and would not putatively give rise to an abuse, such as to bring into play the double jeopardy provided for in Section 12 of the 2003 Act. For these reasons, the appeal is dismissed. Mr Hearn, Mr Watkins, thank you.
23. MR HEARN: My Lord, I do have one further application, the defendant, Mr Ayaz, was being (inaudible) in this matter. May I ask for a detailed assessment of costs.
24. SIR ANTHONY MAY PQBD: Yes.
25. MR HEARN: I am grateful.
26. MR WATKINS: My Lord, may I trouble the court with one other matter.
27. SIR ANTHONY MAY PQBD: Yes.
28. MR WATKINS: May I take my Lord to Section 36 of the Extradition Act, as the defendant is a serving prisoner at the moment.
29. SIR ANTHONY MAY PQBD: Sorry, I haven't got my copy of it here.
30. MR WATKINS: May I hand up my copy?
31. SIR ANTHONY MAY PQBD: Yes, thank you. Section 36 --
32. MR WATKINS: Section 36(3)(b), obviously now that my Lord has rejected Mr Ayaz --
33. SIR ANTHONY MAY PQBD: We have to make some consequential orders, do we?
34. MR WATKINS: He falls to be removed within 10 days from today, my Lord. But because he is a serving prisoner that presents some complications. I would ask my Lord to set a further date, permitting him to be removed 10 days from the date when he is to be released from his prison sentence.
35. SIR ANTHONY MAY PQBD: So the application is that I should fix a date for his removal, within a period of 10 days from the date on which he is released from his current sentence?
36. MR WATKINS: My Lord, yes. Yes, it is something that to which the judicial authority consents as well. Although it technically does not involve my learned friend, I understand there is no objection to that.
37. SIR ANTHONY MAY PQBD: That must be convenient.
38. MR HEARN: Yes, my Lord.
39. SIR ANTHONY MAY PQBD: In that case I will make that -- yes, I see, the authority in that is the judicial authority, is it?
40. MR WATKINS: Yes, that's correct.
41. SIR ANTHONY MAY PQBD: And they agree to it?
42. MR WATKINS: Yes, my Lord.
43. SIR ANTHONY MAY PQBD: That is obviously sensible. We will make that direction.
44. MR WATKINS: I am grateful, thank you very much.
45. SIR ANTHONY MAY PQBD: Thank you very much.