Double jeopardy bars extradition in rare High Court appeal decision

The High Court has allowed an appeal against extradition, brought by Mary Westcott against the decision of District Judge Sternberg to extradite her client to stand trial on charges of conspiracy to supply drugs in Poland. Mrs Justice Thornton’s decision marks a rare, successful application of the double jeopardy or ne bis in idem principle as provided for at s. 12 of the Extradition Act 2003.

In so doing, the Court agreed that the case must be stayed as an abuse of process. 

The issue arose because the Appellant had previously admitted to the small-scale supply of drugs at broadly the same time and place in Poland, for which he was convicted and sentenced in 2008.  However, an allegedly ‘new’ case against him commenced in 2016 and accused him of the ‘more serious’ offence of conspiracy to supply drugs. However, that conduct included some of the same drugs for which he had already been convicted in 2008. 

The Court agreed that the ‘new’ Polish prosecution should not be permitted, years later, to continue a prosecution for acquiring broadly the same drugs the sale of which had already been prosecuted. The Court agreed that the earlier supply offences “necessarily imply the possession of drugs and hence obtaining them” (para 32 and 46).  

The Polish Court, which was invited to respond to the double jeopardy question, both failed fully to engage with the issue or accept the point, despite conceding that the “allegations may be related”. It argued in vain that, as there was no previous court decision on the new matter, the principle of “res judicata” did not apply and dismissed any risk of double jeopardy.

While the alleged conduct was clearly not identical, the Court agreed that there was enough overlap to show that the extradition charges were based on “substantially the same facts” as the earlier conviction.  

The Court also accepted that there were errors in the magistrate’s analysis of the passage of time and Article 8 ECHR, but the successful double jeopardy ground made detailed reasons on these submissions unnecessary (para 48-49). 

Mary Westcott was instructed by Harry Grayson of Birds solicitors throughout.

The judgment is available here.