Request for extradition - Bar to extradition

Zdinjak v Croatia: Queen's Bench Division, Divisional Court (Lord Justice Laws and Mr Justice Wilkie (judgment delivered extempore)): 3 April 2012

In 1994, the appellant was convicted in his absence in the respondent requesting state of the offence of armed rebellion (the 1994 conviction). The offence was alleged to have taken place between October 1991 and May 1992 and the appellant was said to have been involved in the ethnic cleansing of a village in the requesting state. At the time of that conviction the appellant had been residing in an area of the requesting state that was not under the control of the requesting state until January 1998. In June 1998, the appellant travelled to the UK.

In 1997, an amnesty was granted in respect of a number of the people involved in that incident including the appellant. In February 2009, the appellant was convicted in his absence in the requesting state of the offence of war crimes (the 2009 conviction). The offence was alleged to have taken place at the same time and in the same village as the offence with which the 1994 conviction had been concerned. In 2010, the requesting state issued an extradition request in respect of the appellant. In November 2010, the appellant was arrested in the UK.

In September 2011, following a contested extradition hearing, a district judge referred the case to the secretary of state. The appellant had resisted his extradition on the basis, inter alia, that his extradition was barred by reason of the rule against double jeopardy pursuant to section 80 of the Extradition Act 2003 (the act). In November 2011, the secretary of state ordered the appellant's extradition. The appellant appealed.

The appellant submitted, inter alia, that his extradition was barred by reason of the rule against double jeopardy pursuant to section 80 of the act as the 2009 conviction had been founded on essentially the same facts as the 1994 conviction. The requesting state contended that as the appellant had been convicted in his absence in 1994, he had never truly been in jeopardy. Further, under international law a person tried for a offence might be subsequently tried by an international court for the same offence as an 'international' offence if the original offence had been tried as an 'ordinary' offence; that had the effect of overruling section 80 of the act. The appeal would be allowed.

It was established law that the rule against double jeopardy operated as of right only where the offences were the same in both fact and law (the narrow jurisdiction). However, it was also established that the law recognised a broader duty to look at the facts of the case in considering whether the rule against double jeopardy should apply (the wider jurisdiction). Both the narrow and the wider jurisdiction were embraced by section 80 of the act.

In the instant case, it was inescapable that the two cases had been founded on substantially the same facts and that the appellant could seek only to rely on the wider jurisdiction of the rule against double jeopardy. The appellant had been in the requesting state at the time of the 1994 trial and further, he had been amenable to arrest by the requesting state between January and June 1998. Consequently, the appellant had been in jeopardy as a result of the 1994 conviction. Further, in all the circumstances, there was nothing in international criminal law that gave rise to special circumstances for the disapplication of the rule against double jeopardy.

The appellant had been put in double jeopardy and section 80 operated as a bar to his extradition. Connelly v DPP [1964] 2 All ER 401 applied; Fofana v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] All ER (D) 61 (Apr) applied; R v Thomas [1984] 3 All ER 34 distinguished.

Rajiv Menon QC and Rebecca Hill (instructed by Russell Cooke) for the appellant; John Jones (instructed by the Crown Prosecution Service) for the requesting state.