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, WC2A 2LL
		16/03/2017

Mr Justice Holroyde:

1. On the 14^th September 2016, in the Westminster Magistrates' Court, District Judge (MC) Ashworth ("the DJ") ordered the extradition of Mr Besaran Zada to Italy. Mr Zada appeals, with leave, against that order.
2. Italy is a category 1 territory for the purposes of part 1 of the Extradition Act 2003. The relevant judicial authority in these proceedings is the public prosecutor's office attached to the Ordinary Court of Trento, Italy ("the JA"). On 14^th April 2014 the JA issued a European Arrest Warrant ("EAW") requesting the arrest and surrender of Mr Zada for the purposes of executing a custodial sentence which the Court of Trento had imposed upon him in his absence on 11^th June 2010 and made final on 31^st October 2010. That sentence had initially been one of 4 years 6 months' imprisonment, but as a result of what appears to have been a general amnesty in Italy it was substantially reduced, with the result that the remaining sentence to be served is a term of 18 months' imprisonment.
3. The EAW specified that it related to two offences, namely criminal association for the purposes of facilitating illegal immigration and facilitation of illegal immigration. The Warrant stated the applicable statutory provisions under the Italian criminal code. In the Framework list of offences, the EAW was marked to show "participation in a criminal organisation" and "facilitation of unauthorised entry and residence".
4. The EAW summarised the circumstances of the offences and the degree of participation in them by Mr Zada, who was said to be also known as Omar Mast Frosh. His role was described in the following terms:

"Participant in the criminal association, 'cashier' for the criminal association in the United Kingdom. He administers personally the proceeds of crime of the criminal association. On behalf of Ako Ali and Arih Murat he collects most of the money paid for arranging the trips by the family members of the illegal immigrants, already resident in the United Kingdom and other countries. He is in contact with his brother, who lives in Kurdistan, to whom he transfers, on behalf of Ako Ali, a part of his gains, which are subsequently collected by family members or persons trusted by the leader of the association."

The warrant then identified a number of "single episodes" which "may be directly ascribed to" Mr Zada. These single episodes comprised financial transactions through companies such as Western Union and Money Gram: the dates and amounts were specified, together with references to text messages confirming them. The list of single episodes ended in these terms:

"Moreover, the entry and transit of other illegal immigrants who have not been checked.

Date: September 2004 until April 2005

Place: Iraq, Turkey, Greece, Italy, France, United Kingdom"

5. The EAW was certified in this country by the National Crime Agency on 21^st July 2015. Mr Zada was arrested, pursuant to it, on 15^th October 2015. He has been in custody since his arrest. At the extradition hearing, it was submitted on Mr Zada's behalf that his extradition was barred by the rule against double jeopardy, and/or because it would be oppressive as a result of delay. The DJ ruled against Mr Zada on both those issues. The second of them has not been pursued on appeal, and I need say no more about it. It follows that, subject to the issue of double jeopardy, it is accepted that the EAW is valid in all other respects.
6. The grounds of appeal are that the DJ -

"1. erred in determining that the conduct for which [Mr Zada] is sought was not the same in fact and law or alternatively founded on the same/substantially the same facts as a matter for which he had been dealt with previously;

2. erred in his findings of fact regarding the French and Italian judgments and the underlying alleged conduct."

7. The appeal is brought pursuant to section 26 of the Extradition Act 2003, which permits an appeal, with the leave of the High Court, on a question of law or fact. This court's powers on hearing the appeal are set out in section 27 of the 2003 Act:

"(1) On an appeal under section 26 the High Court may-

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that-

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that-

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must-

(a) order the person's discharge;

(b) quash the order for his extradition."

8. Sections 11 and 12 of the Extradition Act 2003 set out the circumstances in which extradition may be barred on the ground of double jeopardy. So far as is material for present purposes, those sections are in the following terms:

"11. (1) … the judge … must decide whether the person's extradition to the category 1 territory is barred by reason of —

(a) the rule against double jeopardy; …

12. 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."

9. In Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) Auld LJ (with whom Sullivan J agreed) reviewed previous authorities and said at para18 –

"In summary the authorities establish two circumstances in English law that offend the rule against 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. On behalf of Mr Zada, Mr Kivdeh and Mr dos Santos submit that the EAW issued against Mr Zada by the JA relates to the same, or substantially the same, facts and law as were the subject of his earlier conviction and sentence by a court in France. His first ground of appeal is, accordingly, that his extradition is barred by the rule against double jeopardy. His second, alternative ground of appeal is that the DJ failed correctly to analyse the facts and circumstances of the French and Italian prosecutions, and so failed to identify that they were founded on the same or substantially the same facts. It is therefore necessary to summarise those matters.
11. Mr Zada was born on the 22^nd November 1976, and so is now forty years old. He is an Iraqi Kurd. He came to this country in October 2003, sought asylum, and in October 2005 was granted leave to remain for five years. In late 2005 an EAW was issued against him, and two others named Azad Hosseini and Omar Ahmed, by the Head of the Prosecution Department of the Courts of Higher Instance, Paris. His extradition was sought by France for the purposes of conducting a criminal prosecution for an offence described in the EAW as follows:

"by direct or indirect assistance, facilitated or attempted to facilitate the illegal entry, circulation or stay in France with the circumstance that the facts were committed by an organised gang"

The EAW identified the offence as a Framework list offence, namely 'assistance in illegal entry and stay'. It stated that under French law, the maximum sentence for such an offence is life imprisonment.

12. The background to the issuing of that EAW is that an investigation began in France in October 2004, when French police arrested a number of Afghani illegal immigrants and identified the existence of a people-smuggling ring. Telephone intercepts identified Mr Zada as a banker for the operation, based in England. Men called Sada and Kouhi were identified as returning regularly from France to Italy, or picking up in France persons who were entering illegally via Italy. The investigation was referred to a specialist inter-regional court in Paris, and was conducted by OCRIEST^[1]. As the investigation progressed it identified links with investigations which were ongoing in Italy.
13. On 29^th April 2005 there was a meeting, instigated by the French, of representatives from France, the UK, Italy, Belgium, Greece, Turkey, Europol^[2] and Eurojust^[3]. The participants agreed on coordinated action aimed at "the eradication of the ring, beyond frontiers".
14. On 7^th December 2005 the court at Trento made an order in Mr Zada's absence for his remand in custody.
15. On 15^th December 2005 arrests were made in several countries, including the arrest in England – pursuant to the EAW issued by France – of Mr Zada; the arrest in Italy of Ako Ali and Ali Murat (referred to in the Italian EAW as persons with whom Mr Zada engaged in money transfers); and the arrest in France of Sada and Kouhi.
16. On 10^th January 2006 an Italian investigating judge declared Mr Zada unlawfully at large.
17. On 12^th April 2006 a District Judge ordered that Messrs Zada, Hosseini and Ahmed be extradited to France. All three appealed against that order. Their appeal was heard by a Divisional Court comprising of Richards LJ and Toulson J: see [2006] EWHC 1333 (Admin). The grounds of appeal raised issues as to whether the alleged conduct constituted an extradition offence, and whether extradition would be compatible with the convention rights of Mr Zada and his co-accused. In each case, the appeal was dismissed.
18. A second meeting of international law enforcement bodies took place on 14^th June 2006. This referred to the investigations in various states, including Italy, but made no reference to any agreement or decision about prosecution of all or any of those who had been arrested.
19. On 3^rd August 2006 Mr Zada was extradited to France. This court has been provided with copies of judgments relating to the pre trial investigation before the Tribunal of First Instance, Paris (in which Mr Zada was one of 25 persons under investigation), the verdict of the Tribunal of First Instance, Paris and the decision of the Paris Court of Appeal. The lengthy order of the Vice President charged with the pre trial investigation indicated in broad terms that the persons before the court were accused of facilitating illegal immigration in France, unauthorised residence in France, and concealing or converting the proceeds of crime. The relevant acts were said to have been committed "in Paris, Reims, Calais, Oyonnax and on the national territory, in London and Birmingham and in inseparable manner with the facts committed in France, sometime in 2004 and 2005". Mr Zada's role was said to be that of "organiser and main financier".
20. Before the Paris Tribunal of First Instance, Mr Zada was convicted after a trial of an offence later recorded by the Court of Appeal as "assisting the illegal entry or stay of a foreign national in France, or in a state party to the Schengen Agreement, as member of an organised group, during 2004 and 2005, in Birmingham, and inseparably from the offences committed in France". His sentence was one of imprisonment for 7 years together with a permanent ban on entering French territory, which sentence was confirmed on appeal.
21. In the course of the trial Mr Zada made limited admissions to the court, but it was found that he had understated his true role. An account of the workings of the illegal immigration ring was given by one of his co-accused. This account was to the effect that Mr Zada, living initially in Greece and latterly in England, arranged the transfer of funds received from the illegal immigrants, through Western Union and Money Gram, to Iraq or to the countries crossed by the people smugglers for the purpose of ensuring the remuneration of the smugglers and the survival of the illegal immigrants themselves.
22. The judgment of the Tribunal of First Instance referred also to an account of Mr Zada's role which had been given by Ali Ako when he was interviewed in Italy. It referred to money transfers which Mr Zada had made to Ali Ako in Italy.
23. In a section of the judgment headed "On his culpability", the court said:

"The investigations showed that Besaran Husin Zada, named with Sheik Hussein and Khaled Dallo in the intercepted telephone communications as being one of the 3 main bankers of the ring, was in reality playing a central role, quite crucial in the proper functioning of this organisation by enabling the receipt and prior check of the funds before any transit as in his capacity as banker, he was the only one to authorise and then proceed to a return of part of the funds to different smugglers who had contributed to the transit, but equally made possible the survival of the illegal immigrants, by the transfers of funds he made, in the various countries they crossed.

The investigations have furthermore established that this was an ancient activity exercised on behalf of the ring, first in Greece, then in Great Britain after transit in France.

Those elements characterise the offence of assistance to the illegal entry and stay in France.

In order to enable the arrival on the national territory of numerous candidates to illegal immigration having chosen Great Britain as country of destination, he was in contact with the major stakeholders not only in France but also abroad, as it results from the agreement which characterises the aggravated circumstance of organised gang.

The offences he is blamed for, committed in Great Britain, inseparably jointly with the offences committed in France are described perfectly. Besaran Hussain Zada will therefore be remanded in order to prevent further offences."

24. In the proceedings before the appeal court in Paris, in May 2008, Mr Zada argued that the conduct with which he was accused was organised from England, which is not a party to the Schengen Agreement, and that it was accordingly not possible to sustain his conviction under the provisions of the French penal code. In rejecting that argument, the court referred to an article of the penal code to the effect that "an infringement is regarded as committed in the territory of the Republic, as long as one of its constitutive facts took place on this territory". The court upheld the conviction and sentence, stating

"it is apparent in fact from the phone-tapping recordings transcribed in the case file that he was in permanent contact with the main individuals responsible for the network in France, in particular smugglers, and gave his guarantee, as the 'guarantor' banker, on the arrival in France of numerous people, in an illegal situation, wanting to live either in France or other countries in northern Europe, via France; the funds that he contributed therefore made possible not only payment of smugglers working in France, but also the upkeep and survival in France of numerous illegal immigrants;

… the procedure also establishes that the person concerned himself went to France on several occasions in the context of his illegal activity; in particular, he was questioned on two occasions in Coquelles in 2005; whereas consequently, offences constituting the infringement of assisting the illegal entry, movement and stay in France as member of an organised group of which he is accused were, indisputably, committed in France; …

Whereas the offences of which Husin Besaran Zada is accused are extremely serious, the procedure establishing indisputably that he is one of the network's three 'bankers' and that, as such, he played a central and determining role in the operation of the said network; these offences, in breach of public policy in that they seriously compromise the national immigration policies and contribute to creating related crime, justify a significant non-suspended prison sentence …".

25. On 11^th June 2010 Mr Zada was convicted in his absence by the court in Trento. This court has been provided with a copy of the judgment of the court which shows that although absent, Mr Zada was represented by a lawyer. Mr Zada and others were charged, pursuant to certain specified provisions of Italian law, as follows:

"They associated one another and with persons not identified for the purposes of committing more offences of facilitating unlawful immigration under aggravated circumstances; and, with a view to gaining profit, in furtherance of the same criminal plan, in participation with one another, committed actions aimed at facilitating the entry of foreign nationals in the territory of the State in breach of law provisions of Consolidated Act 286/98, as well as facilitating the unlawful entry into other states (France, United Kingdom, Sweden, Netherlands, and northern Europe more in general) of persons not nationals or not having the residence in those countries; with the following aggravating circumstances:

transports for more than 5 persons;

entry and accommodation of persons subject to inhuman and degrading treatment:

Facts committed by more than 3 persons in complicity with each other using counterfeited documents

Availing themselves of the conditions set out in Article 416 bis of the Criminal Code and with a view to facilitating the activity of the association described…".

26. The particulars of the offending went on to list specific occasions on which the accused had "facilitated the entry and the transit in the territory of the state" of illegal immigrants. These particulars referred to some 211 illegal immigrants who had been detained on 16 occasions between August 2003 and October 2005. On all but one of those occasions, the immigrants were detained in Italy. The exception was an occasion when a group of immigrants who had travelled from Italy were detained by the English authorities when they landed at Harwich.
27. After setting out those particulars, the judgment stated:

"Offence currently committed in several EU and non EU countries (Iraq, Turkey, Greece, France, Italy and United Kingdom) and ascertained in Trento starting from March 2003 until today. Association linked to the activity described in the charge made in the framework of criminal proceedings 1036/2000 RGNR of which this is a separate proceedings and in respect of which some judgments have already become final".

28. Ali Ako was said to be the head and promoter of the association. Mr Zada's role was described as being a "member of the association" and "cashier of the association" in the United Kingdom. The judgment said:

"He is the one who personally manages the proceeds of the criminal organisation. He receives, on behalf of Ali Ako and Murat Arih, the majority of the money of the relatives of migrants already living in the United Kingdom or in other countries transfer as a payment for the journey. The same person speaks with his brother living in Kurdistan to whom, by express order by Ali Ako, he transfers part of his earnings, which are directly withdrawn by relatives or people trusted by the heads of the organisation"."

Certain specific transit financial transactions said to be directly traceable to Mr Zada were then particularised.

29. Mr Sternberg submitted that the court was clearly concerned only with events which occurred in, or had their effects in, Italy.
30. The Italian EAW was, as I have said, issued on 11^th April 2014. Further information was provided by the JA on 4^th April 2016. On Mr Zada's behalf, particular reliance is placed on the following passage –

"This office doesn't know if the French judicial authority charged the above mentioned Zada with the acts with which he has been convicted in Italy. I don't think so, because of the kind of acts and places where they have been committed, which are indicated in the judgment hereby attached."

31. I turn to the issues in this appeal. The effect of section 12 of the Extradition Act 2003 is that the DJ at the extradition hearing must assume that the extradition offence is an offence under English law and that Mr Zada is charged here with the extradition offence. The DJ must then consider whether it appears that Mr Zada would be able to succeed in a submission that such proceedings should be stayed as an abuse of the process of the court. On appeal, this court has to consider whether the DJ should have given a different answer to that question.
32. It is important to note the following features of the jurisdiction of criminal courts in England and Wales to stay proceedings as an abuse of the process:

i) The defence bear the burden of establishing abuse on the balance of probabilities.

ii) A stay of proceedings on the grounds of abuse of process is an exceptional remedy, and only rarely granted.

iii) The 2 main categories of abuse of process are cases where the court concludes that an accused cannot receive a fair trial and cases where the court concludes that it would be unfair for the accused to be tried: see Connelly v DPP [1964] AC1254, Maxwell [2011] 4 All ER 941 and Warren v Attorney General for Jersey [2012] 1AC 22.

33. In the present case, the DJ correctly summarised the legal position as being that it was "for Mr Zada to establish on the balance of probabilities that the Italian conviction was based on substantially the same facts as that in the French case, such that further proceedings would amount to an abuse of process". In a careful judgment, the DJ summarised the submissions by counsel on each side and analysed the judgments of the French and Italian courts. At page 10 of his judgment he concluded -

"that the French prosecution was for offences that related solely to Zada's involvement with the French network and the criminality that flowed from its activities. The judgments repeatedly stress that the behaviours in the UK were 'inseparable' from those in France. The facts of the case which amount to the offence for which he was convicted and punished in my assessment are limited to the organisational and banking activities of Zada that assisted the French network, and not any wider role such as his transactions with the Italian cell. "

34. At page 11 the DJ went on to say -

"The Italian prosecution I find as a fact relates solely to the activities that the RP undertook for the benefit of Ali Ako and Murat Ali in relation to the transit of illegal immigrants in Italy and not to any activity in France or involvement in the wider network activities. This is because the EAW and judgment of the Court of Trento are so specific as to what facts and transactions are stated to make up the offending behaviour."

35. The DJ acknowledged that the dates of the activity in both countries are substantially the same but found as a fact that Mr Zada

"was providing assistance to the two cells separately. There is no evidence that he was providing any kind of co-ordination between the two and indeed had a different level of involvement of the French network, being more of an organiser. The money from each organisation went back to its own smugglers and so his assistance to the two cells was distinct. The fact that he was using a similar method of money transfers does not advance the defence case far, that was simply a tool the RP used to transfer money".

36. Then at page 12 of his judgment the DJ said this -

"The Italian and French organisations, I find, were part of a wider network. However, their actions were undertaken in the very large part within the countries they operated in, and were identified by the investigators as separate organisations. The two countries I find were only intent on prosecution of their respective organisations, and not in punishing the separate organisations for the entirety of the network's activities. … I am not persuaded on the balance of probabilities that either the existence of an overarching network or a joint investigation of a number of countries of that network would inevitably lead to identical prosecutions of those involved if more than one country proceeded. It may be a matter of evidence, but there would be no difficulty in one prosecuting authority identifying individuals involved in a discrete sub-group and prosecuting them for their activity. In fact, Mr Zada was providing assistance to more than one sub group. That he faces more prosecutions than individuals that only operate in one sub group is a risk he took by engaging in the actions that he took. He is not being prosecuted by either country for being the 'banker' to the network at large, in fact they have been quite precise as to what activity they are specifying in their respective prosecutions.

I cannot discern any evidence that would suggest the sentence he was given in France incorporated any enhancement for his activities in Italy. Further, the accusation of money laundering against the RP was discharged at the committal stage. On the balance of probabilities, bearing in mind the continual reference to the French based nature of offences and activities, I find there was no such enhancement. The Italian sentence, I find, also had no such enhancement. The EAW and judgment of the Court of Trento are clear as to the activity penalised, which relates solely to the organisation in Italy.

The individual sentences for each country do not seem particularly incongruous bearing in mind the activity in each territory he was convicted of. The combined effect of the sentences (even before the reduction) reflecting his actions in more than one territory, would not appear to be manifestly excessive albeit it that no process to consider totality has been undertaken. Bearing in mind the general amnesty, the eventual sentence was 8.5 years for providing banking services in two countries and organisation in France cannot be said to be unfair or to amount to an abuse."

37. The DJ repeated that the allegations in the two countries are similar, and said –

"…it would have been preferable if one country could have been able to deal with Zada for his behaviour overall. That legally may not have been possible due to the fact that he acted remotely in the UK which presented a legal hurdle that could not be crossed if any one country (other than the UK) decided to prosecute him for his assistance to the network in both Italy and France".

He rejected a submission that Mr Zada could end up being prosecuted in multiple countries over substantially the same offending, and would thereby suffer unfairness. The DJ reiterated that it was in his judgment abundantly clear that France and Italy had dealt only with Mr Zada's criminal conduct relating to their respective countries, and pointed out that

"if an offender commits an offence that affects a number of different countries, he must also bear the burden of facing justice in each of them, providing the countries are clear about what behaviour they are dealing with".

38. Thus the DJ concluded that Mr Zada had not shown on the balance of probabilities that he had been prosecuted in France on substantially the same facts as in Italy or had been punished twice for the same offence, or that the Italian proceedings would amount to an abuse of process.
39. In challenging that conclusion, counsel for Mr Zada submit that the allegation against him is that he was a member of an organised criminal group assisting illegal immigration to a number of EU countries, including France and Italy, but also other states. Those who illegally entered France did so, at any rate in many of the cases, by travelling from Iraq across Turkey, Greece and Italy, eventually entering France through Ventimiglia. From there they would travel to Paris and eventually be transferred to Calais with a view to entering the United Kingdom. There was an international investigation into this international criminal activity. The Investigating Magistrate of the Specialised Inter-Regional Courts organised co-operation between a number of countries affected by the criminal activity. At the meeting on 29 April 2005 an agreement was reached on the implementation of a co-ordinated action aimed at eradicating the criminal ring across frontiers. Arrests were made in France, Italy, Greece, Turkey and the UK. The DJ agreed that the criminal activity in both countries occurred during substantially the same period, and that the organisations in France and Italy were part of a wider network. Against that background, it is submitted that the Italian EAW relates to the same, or substantially the same, facts and law as those which founded the French prosecution.
40. Mr Kivdeh submitted that Mr Zada and others acted throughout pursuant to a single conspiracy. Basing himself on that premise, he advanced three broad arguments:

i) Following the international meetings, there was an agreement between the states concerned as to which state would prosecute those involved in the criminal conspiracy, and France elected to take on the responsibility of prosecuting Mr Zada for all his criminal activity in relation to facilitating illegal immigration into EU member states. That election was made, or evidenced, by France's issuing of the EAW and requesting Mr Zada's extradition from the UK. France did then prosecute, convict and sentence Mr Zada for all of his criminal activity, including that in Italy.

ii) Alternatively, if France did not in fact prosecute Mr Zada for all his criminal activity, then pursuant to what had been agreed at the international meetings she could and should have done so, and it would be an abuse of the process for any other state now to prosecute or sentence him for some of his activity in furtherance of the single conspiracy.

iii) If neither of the above submissions succeeds, there is in any event such a close overlap between the subject of the French prosecution, and the subject of the Italian prosecution, that they must properly be regarded as prosecutions founded on the same or substantially the same facts, and the Italian EAW thus exposes Mr Zada to double jeopardy.

He submits that the DJ should therefore have concluded, applying s12 of the 2003 Act, that an application to stay proceedings against Mr Zada as an abuse of the process would succeed, and it was not properly open to the DJ to reach any other conclusion.

41. I accept that the material which was before the DJ makes it clear that there was a coordinated international investigation into people trafficking which facilitated illegal immigration into, and through, a number of member states. I also accept that, as the DJ found, there was a wider network of which the French and Italian subgroups were parts. But I cannot accept the submission that the DJ ought to have concluded that the Italian EAW exposes Mr Zada to double jeopardy. It seems to me that the flaw in the submissions made on behalf of Mr Zada is that they fail to focus on the words in s12 of the Extradition Act 2003 referring to "the conduct constituting the extradition offence". It is clearly the case that those activities for which the Italian court tried and convicted Mr Zada were part of a wider overall conspiracy. It does not follow, however, that "the conduct constituting the extradition offence" is in this case the full extent of the overall international criminal activity. Mr Zada has put nothing before the court to show that the Italian judicial authority prosecuted Mr Zada for conduct which had already been the subject of the French prosecution. Nor, indeed, has he even shown that the French court would have had jurisdiction to try conduct occurring within Italy.
42. As I have indicated, a defendant who applied to the courts of England and Wales to stay the proceedings against him as an abuse of the process would bear the burden of proof. It follows that, in considering pursuant to s12 of the Extradition Act 2003 whether it appears that the requested person would be entitled to be discharged, on grounds of abuse of process, a DJ must have regard to that burden of proof in an English prosecution for the extradition offence. There is no doubt as to the principle stated in Fofana. In applying that principle, issues of double jeopardy are inevitably fact-specific. In Fofana itself, Auld LJ at paragraph 19 quoted the following passage from the speech of Lord Hailsham in R v Humphreys [1977] AC 1 at p41D:

"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 arising 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."

43. Examples of situations in which the court accepted that two prosecutions had certain common features, but nonetheless declined to find double jeopardy on the facts, are provided by Ayaz v Italy [2010] EWHC 2650 (Admin) and Kulibaba v United States [2014] EWHC 176 (Admin). It is relevant to note that in the former case, Sir Anthony May PQBD said –

"there was, in my judgement 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 request to bring the European arrest warrant Italian conduct into the English prosecution. Nor would it be an abuse if punitively 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 here"

44. Thus each case involves a fact-specific assessment of whether there is double jeopardy. That was the exercise which the DJ properly undertook in this case.
45. The DJ carefully compared and contrasted features of the prosecutions brought against Mr Zada in France and in Italy. He identified features of similarity and points of distinction between them. In their written and oral submissions, counsel identified a number of categories of points in respect of which it is contended that the DJ either misunderstood the evidence or failed to give sufficient weight to certain aspects of it. I can deal with these criticisms briefly.
46. As to the first category, it is in my view clear that the DJ was fully alive to the point that there was an international investigation and that some of the criminals were mentioned in both the French and the Italian court documents. I have no doubt that he was equally alive to the further information from the Italian JA which I have quoted in paragraph 30 above. But neither of those points provides any cogent support for Mr Zada's case. The DJ was in my view plainly entitled to find that references in the French court documents to events and persons in Italy were by way of setting the international context of the wider criminal activity, but were not indications that the French courts were prosecuting Mr Zada for all of that wider activity. Neither the existence of an international investigation, nor the fact (if it be the case) that Mr Zada first came to the attention of the Italian authorities as a result of that international investigation, provides any reason why the Italian authorities should not prosecute Mr Zada for his conduct taking place in, or having its effect in, their country. The expressed uncertainty of the Italian JA as to the ambit of the French prosecution is plainly inconsistent with the primary submission that France had, by agreement with the other member states concerned, taken on the responsibility of prosecuting Mr Zada for all of his criminal activities.
47. As to the second category, I am not persuaded that the DJ made any errors of such individual or collective significance as to undermine his decision. None of the suggested errors provides any basis for doubting his conclusion that the French and Italian subgroups were distinct the one from the other, and that each of the French and Italian JAs was focused upon the criminality occurring, or having its effect, in their respective countries alone.
48. One specific criticism which I should mention is that the DJ wrongly said that the French courts were constrained by the fact that Mr Zada was operating from the UK and therefore could only be liable in UK law for actions partly in the UK and partly in France, which would rule out transactions between him and the group in Italy. That is said to be an incorrect statement, because a criminal conspiracy, triable in this country, can involve overt acts in other countries. I accept that this point is correct as far as it goes, but in my view the DJ's remark has been taken out of context. It was made in the context of his statement that "due to the requirement of dual criminality, the 2006 EAW request would only have permitted prosecution in the French courts of offending behaviour that related to the transfer of money between France and the UK". The DJ went on to make clear that the rule against speciality was also relevant. The effect of that rule is that the French court could not have prosecuted Mr Zada for any matter other than those for which he had been extradited from England to France. I accept Mr Sternberg's submission on behalf of the JA that Mr Zada has provided no evidence to show that he was extradited to France on charges involving conduct occurring in Italy.
49. Where a sophisticated and highly organised criminal gang engages in criminal activity which takes place in, or has its effects in, a number of different states, it would in principle be possible for one of the states concerned to prosecute some or all of those involved for their overall activity. Whether such a course would be possible in practice would, of course, depend upon the law of the individual state as to the jurisdiction of its courts in relation to the relevant persons and the relevant acts. In this case, however, there is simply no evidence that either France or Italy sought to prosecute Mr Zada, or indeed anyone else, for his overall criminal activity across a number of member states. Mr Zada was extradited to France with a view to his prosecution in relation to his activities in the UK and in France which had the effect of bringing illegal immigrants into France. The Italian courts prosecuted Mr Zada for, and now seek his extradition in respect of, his conduct in this country and in Italy which had its effects in Italy. There were plainly similarities in Mr Zada's role in relation to each of the two states. But that does not mean that either state has prosecuted him for his conduct in being the banker to the overall criminal organisation, wherever its activities had their effect.
50. I am unable to accept any of the three broad submissions summarised at paragraph 40 above, for the following reasons.
51. I accept that the evidence showed that there was an overall course of criminal activity, involving acts in a number of member states, and that Mr Zada played a leading role in that criminality. But it does not follow that all of the criminal acts in a particular member state must necessarily be regarded as acts in furtherance of a single conspiracy. The position may be considered by reference to an analogy with the supply of controlled drugs: a small group of highly-organised criminals may import drugs and then supply them within the UK to a number of different wholesalers pursuant to a number of distinct conspiracies. In the circumstances of this case, the DJ was entitled to conclude that within the overall activity there were sub-groups and distinct conspiracies. The premise of Mr Kivdeh's submissions is therefore incorrect.
52. Even if the premise were correct, and the overall criminal activity should all be regarded as acts in furtherance of a single conspiracy, it does not follow that France both had jurisdiction to prosecute Mr Zada, and did in fact agree to prosecute Mr Zada, for all his criminal activity, wherever in the EU it occurred and wherever in the EU its consequences were felt.
53. As to jurisdiction, there was no evidence before the DJ as to the precise extent of the French courts' jurisdiction to try Mr Zada for conduct by him in England which had its effects in a member state other than France. Mr Kivdeh sought to argue by analogy with section 25 of the Immigration Act 1971 which, as amended with effect from 31^st January 2008 by s30 of the UK Borders Act 2007, provides –

"(1) A person commits an offence if he –

a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,

b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual,

c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union."

54. "Immigration law" is defined by s25(2) in terms which include the immigration laws of all member states. By s25(4), subsection (1) "applies to things done whether inside or outside the United Kingdom". The Explanatory Note published by the government when the 2008 amendment was made said that the new s25(4) would remove existing limitations on the territorial application of the offence "to cover acts of facilitation committed inside or outside the UK, irrespective of the nationality of the person carrying out the act". Mr Kivdeh submits that the English court therefore has jurisdiction to try an offence under s25 whether or not the circumstances of the offence have any connection with England.
55. I am not immediately convinced that s25 of the 1971 Act goes that far, and would permit, for example, a prosecution in England of a Croatian national who (without ever leaving Croatia, and without doing anything which in any way involved or affected anyone or anything in the UK) did acts facilitating the illegal immigration of a number of Afghanis into Greece, and I would want to hear detailed submissions before reaching any decision on the point. But in any event, whatever may be the true ambit of s25 of the 1971 Act, there was in this case no evidence as to the true ambit of any corresponding provision in French law.
56. It may well be, as Mr Kivdeh argued, that both France and Italy have provisions of their criminal law which are analogous to s25 of Immigration Act 1971 in this country. But in the absence of any evidence as to the precise terms and effect of those provisions, the fact that analogous legislation exists does not mean that the DJ was required to assume that French law, at the material time, permitted a prosecution of Mr Zada in France for sending money from England to Italy to facilitate illegal immigration into Italy.
57. As to whether France did in fact undertake to prosecute Mr Zada for all his criminal activity, and whether the other member states concerned agreed to that course, there was no evidence before the DJ of any such undertaking or agreement. Mr Kivdeh's submissions were in my view largely founded on the proposition that because France was aware of the investigation in Italy, and the French courts referred in their judgments to at least two of the men in Italy to whom Mr Zada sent money, the French courts must therefore have been prosecuting the whole of his criminality. That proposition involves far too great a leap from the facts established by the evidence before the DJ, and in my view Mr Kivdeh was unable to show any basis for it.
58. On the contrary, I accept Mr Sternberg's submission that the judgment of the Divisional Court in 2006, dismissing Mr Zada's appeal against the order for his extradition to France, shows plainly that there was no such agreement as Mr Kivdeh suggests. Richards LJ in his judgment set out the issues in relation to the appellant Hosseini and dealt with them in detail. He then dealt with Mr Zada's case comparatively briefly, because "the allegations in the European Arrest Warrants relating to Ahmad and Zada are very similar to those in Hosseini's warrant". Thus in the passages on which Mr Sternberg relied, references to Mr Hosseini could be taken to apply equally to Mr Zada.
59. Submissions were made that Mr Hosseini's Article 8 rights had been infringed because of the circumstances in which the decision had been made to prosecute him in France. Reference was made to "Guidelines for deciding which jurisdiction should prosecute", published by Eurojust. Those guidelines state that in cross-border cases, in which it would be possible for two or more states to prosecute, there should be a preliminary presumption that if possible, a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained. Prosecutors should however balance carefully all the factors for and against commencing a prosecution in each jurisdiction where it is possible to do so. In that context, the evidence before the court in Hosseini's case showed that

"There was a meeting on 7^th October 2005 … . This dealt with negotiating and agreeing the co-ordination of the arrests which subsequently took place on 14^th December 2005. There was no discussion at Eurojust or involvement of Eurojust in deciding in which jurisdiction prosecutions should take place or with regards to which jurisdiction should issue European Arrest Warrants, either at the meeting on 7^th October 2005 or subsequently."

60. Thus the evidence at the time of Mr Zada's extradition to France established that France had not undertaken to prosecute Mr Zada for the whole of his criminal activity. That evidence, in my view, is fatal to this aspect of Mr Zada's submissions to this court.
61. Nor was there any evidence before the DJ that Italy had ever agreed that France should prosecute Mr Zada for his criminal acts in, or affecting, Italy. On the contrary: the very fact that Italy prosecuted Mr Zada, and sought his extradition, is inconsistent with any such agreement.
62. Nor was Mr Kivdeh able to show any basis for his submission that the sentence imposed by the French court was so severe that it must have been imposed in relation to all Mr Zada's criminality. His conduct in and affecting France was a very serious example of an offence which it appears carries a maximum sentence in France of life imprisonment. In the absence of any evidence as to French sentencing practice, there is no reason to regard it as manifestly excessive on the basis of the French criminality alone.
63. Mr Zada is not assisted by the mere fact that he was the subject of a multi-national police investigation. Nor is he assisted by the mere fact that there was co-operation and co-ordination between the police and prosecuting authorities of different States. What matters is the nature of the conduct in respect of which his extradition is sought, and whether he can show that such conduct has probably already been the subject of prosecution, conviction and sentence in France. With respect to Mr Kivdeh's submissions, they were premised on an assumption that the subject matter of the international investigation was all included within the subject matter of the French prosecution. The DJ was plainly entitled, and in my view correct, to find that it was not.
64. I do not accept the underlying submission that in circumstances such as these, it is inherently and necessarily unfair, so as to constitute an abuse of process, for an international criminal to face prosecution in more than one state. If, on a proper analysis of the facts, there is no double criminality, and no agreement between the states concerned that there should be one prosecution in relation to all the criminality, then there is in my view no reason in principle to view a second prosecution, by a different state, as necessarily unfair. To assume unfairness, regardless of the circumstances of the case, would be to put something of a premium on offending which is so well-organised and extensive that it is able to cross state boundaries.
65. If sequential prosecutions do take place, there may be a distinct argument that the sentence of the second court should take into account the extent (if any) to which the sentence imposed by the first state had been increased to reflect an aggravating feature of international activity; but that would be a matter for submission to the second court as to the application of the principle of totality in all the circumstances of the particular case. It would not, in my view, be a reason for refusing extradition.
66. In relation to the first and second broad submissions, it is in my view instructive to ask two simple questions: what conduct, the subject of the Italian EAW, has already been the subject of the French prosecution? What sentence has been imposed by the French court in respect of criminal conduct which is the subject of the Italian EAW? The simple answer to both questions, in my judgment, is that Mr Zada is unable to identify any such conduct. That, in my view, is because the DJ was correct to conclude that the French prosecution was not concerned with any of the criminality which occurred in or had its effects in Italy. Each of France and Italy has focused, in order to protect the public interest in its own state, on the conduct occurring in or having its effect in that state. Moreover, it would in practice be extremely difficult for one state to carry out investigations into activities in another state.
67. Similarly, it is instructive to consider Osunta v Germany [2007] EWHC 1562 (Admin), in which a District Judge excised from the EAW conduct which did not amount to an extradition offence. Here, the written submission was made on behalf of the JA that, if the court were to find any error on the part of the DJ, this court could so far as was necessary excise relevant conduct from the extradition order. Whatever be the merits of that submission, the suggested approach raises the question of whether any specific conduct covered by the Italian EAW could be identified as offending the rule against double jeopardy and therefore to be excised. In my judgement, for the reasons already given, it is not possible to identify any such conduct. All that can be identified are elements of the overall criminal activity which, unsurprisingly, are common to the activities in the states of France and Italy respectively.
68. Mr Kivdeh's first and second broad submissions therefore fail.
69. As to the third broad submission, the overlap between the conduct charged in the Italian EAW, and the conduct for which Mr Zada has been convicted and sentenced in France, is in reality no more than the sharing of common features of the method by which those at the head of the overall criminal activity chose to operate. As the banker for both the French and Italian sub-groups, Mr Zada unsurprisingly adopted similar methods as to the mechanics of money transfer, etc; but that does not show that the offending in Italy and France was the same or substantially the same conduct. To return to my analogy with offences involving controlled drugs: the high-level drug dealers might well make repeated use of a particular method of smuggling drugs into the UK; but it does not follow that their subsequent supplies of the imported drugs, pursuant to a series of conspiracies with different wholesalers, were all the same or substantially the same offence.
70. For those reasons, I reject the submission that the DJ should have reached any different decision. His findings of fact, and his conclusions from those findings, were plainly open to him on the evidence and are in my view unassailable. I would therefore dismiss this appeal.

Lord Justice Elias:

71. I agree with the cogent and comprehensive judgment of Holroyde J.

Note 1   Office Central de Répression de l’Immigration Irrégulière et de l’Emploi d’Etrangers Sans Titre    [Back]

Note 2   European Police Office    [Back]

Note 3   European Judicial Cooperation Unit    [Back]