QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| TREVOR HEATHFIELD
|- and -
|STAATSANWALTSCHAFT WÜRZBERG, GERMANY
Ben Lloyd (instructed by CPS) for the Respondent
Hearing date: 12th October 2017
Crown Copyright ©
Mr Justice Julian Knowles:
Proceedings before the district judge
The grounds of appeal
Ground 1 - double jeopardy
"... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ..."
"The claim for extradition shall not be complied with if the individual claimed has been already tried for the same offence in the country whence the extradition is demanded …"
"12 Rule against double jeopardy
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."
"The judicial authority of the Member State of execution (hereinafter 'executing judicial authority') shall refuse to execute the European arrest warrant in the following cases:
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State …"
" 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.
 In Connelly, their Lordships reached this position in practical, though not unanimously in formal, terms by, in the main, confining the notion of double jeopardy to the narrow pleas in bar of autrefois acquit or convict,but allowing for a wider discretionary bar through the medium of the protection afforded by the court's jurisdiction to stay a prosecution as an abuse of process. In Humphreys, where their Lordships sanctioned a prosecution for perjury based on the same facts plus evidence of perjury by the Defendant at an earlier failed prosecution for a driving offence, Lord Hailsham of St Marylebone indicated the second broader discretionary bar in the following passage at 41D-E:
'(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly.'
 In R v Beedie  QB 356,  3 WLR 758,  2 Cr App Rep 167, the Court of Appeal, Criminal Division, gave more formal expression and separation to the two routes to preventing a second prosecution where the charges and/or facts relied upon are the same or substantially the same, the first, where the charge also is the same, and the second, where the charge is different. It confined the principle or doctrine of autrefois acquit or convict to the first, and allowed the court a 'discretion' to stay the proceeding where there are 'special circumstances'.
 The semantic bonds that so constrained their Lordships in Connelly and the Court of Appeal in Beedie to confine the notion of "double jeopardy" – the terminology now employed in ss 11 and 12 of the 2003 Act – to the absolute plea in bar of autrefois acquit or convict, were loosened by their Lordships, albeit indirectly, in R v Z  2 AC 483,  3 All ER 385,  3 WLR 117, so as to apply it to a case where, even though the charge is different, it is founded on the same or substantially the same facts as an earlier trial. Lord Hutton, considering the various speeches in Connelly and speaking for their Lordships, said at 497C-D:
'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 offence 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.'
 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'."
"According to German law the now alleged cases of the non-payment of social security contributions are independent offences as compared to the offences of fiscal evasion of tax on salary and wages on which a judgment was passed on in the year 2010 (sic). Moreover, the offences of the non-payment of social security contributions were no point part of the conviction back then."
Ground 2 - passage of time
"A person's extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the offence (where he is accused of its commission …)"
Ground 3 – forum
"(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge—
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice—
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to—
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
(6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D."
"I would construe the word "conduct" in sections 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur "in" the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word "conduct" in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory."
Ground 4 – Article 8