Barrs v The Financial Prosecutor of the Republic At the Hgher Instance Court of Paris

Factual and Procedural Background

This appeal arises pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Baraitser dated 21st November 2017, which ordered the extradition of the Appellant to France under a European Arrest Warrant (EAW) issued on 19th June 2017 and certified in the UK on 1st August 2017. The extradition was ordered for a single offence of premeditated conspiracy to commit VAT fraud. A second offence relating to premeditated conspiracy to launder was discharged on double jeopardy grounds, and that discharge was not appealed.

The Appellant, born in France in 1985, has a history of mental health issues and was previously convicted in the UK in 2015 for money laundering offences linked to VAT frauds. The French EAW relates to an alleged VAT fraud in France involving different companies and a different victim (the French Treasury) than the UK prosecution (which involved the UK Treasury). The Appellant was initially remanded but later granted bail during the extradition proceedings.

The District Judge found that the French fraud allegation was not barred by double jeopardy as it was not based on the same or substantially the same facts as the UK offences, although extradition was barred for the money laundering offence due to double jeopardy. The District Judge also rejected human rights arguments related to mental health and risk of suicide, concluding that extradition was compatible with the European Convention on Human Rights (ECHR) and not unjust or oppressive.

Legal Issues Presented

1. Whether the District Judge erred in concluding that the offence of premeditated conspiracy to commit VAT fraud was not barred by the rule against double jeopardy.
2. Whether the Appellant's extradition would be incompatible with Article 3 of the ECHR due to conditions in French prisons, in light of the judgment in Shumba and others [2018] EWHC 3130 (Admin) ("Shumba No.2").
3. Whether the Appellant's mental health and risk of suicide render extradition unjust or oppressive under section 25 of the Extradition Act 2003.

Arguments of the Parties

Appellant's Arguments

• The double jeopardy rule applies because the French VAT fraud prosecution arises from the same or substantially the same facts as the UK money laundering convictions, involving overlapping individuals, companies, and conduct.
• The District Judge's reasons for rejecting double jeopardy were flawed, including an overemphasis on the legal classification of offences rather than the underlying facts, and underestimation of the overlap between companies and individuals involved.
• Extradition would breach Article 3 ECHR due to the risk of inhumane and degrading treatment in French prisons and the Appellant's fragile mental health.
• The Appellant faces a real risk of suicide or self-harm if extradited, supported by updated medical evidence indicating a high risk of relapse and deterioration in mental state, including expressed suicidal plans.

Respondent's Arguments

• The District Judge properly applied the law and made findings entitled to respect, concluding that the French fraud allegation is distinct from the UK offences and not barred by double jeopardy.
• Conditions in French prisons no longer raise a real risk of inhuman or degrading treatment following the judgment in Shumba No.2 and subsequent information from French authorities.
• The risk of suicide or self-harm does not prevent extradition because the physical transfer can be managed safely and French authorities are capable of providing appropriate mental health care.
• There is a strong presumption of mutual trust that France, as an ECHR signatory, will fulfill its obligations to prevent harm to the Appellant.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined the double jeopardy issue by comparing the factual matrix underlying the UK convictions and the French fraud allegation. Although there was overlap in persons and some companies, the Court found significant and material differences in the apparatus of fraud, the companies principally involved, and the victim states (UK Treasury versus French Treasury). The French fraud involved French-registered companies ACSYS and Kappa Distribution, which were not central to the UK prosecution. The Court emphasized the necessity of focusing on substance over form and concluded that the French fraud was not based on the same or substantially the same facts as the UK offences. Consequently, the double jeopardy bar did not apply, and extradition was not barred on this ground.

Regarding Article 3 ECHR claims about French prison conditions, the Court relied on the judgment in Shumba No.2, which addressed and alleviated concerns about overcrowding and treatment in French prisons. The Appellant did not pursue this ground further, and the Court found no substantial grounds to refuse extradition on this basis.

On the mental health and suicide risk ground, the Court applied the framework from Bobbe and CK, requiring objective evidence of serious risk and inability of the transferring and receiving states to manage that risk. The Court acknowledged updated medical evidence indicating the Appellant’s fragile mental health and risk of self-harm but found deficiencies and gaps in this evidence. The Court accepted that the physical transfer could be managed safely and that French authorities had adequate arrangements to provide medical care and mitigate risks. The Court also noted the presumption of mutual trust between ECHR states that France would fulfill its obligations. Therefore, the Court concluded that the risk did not amount to an obstacle to extradition.

Holding and Implications

The Court DISMISSED the appeal in its entirety.

The direct effect of this decision is that the Appellant’s extradition to France on the charge of premeditated conspiracy to commit VAT fraud will proceed as ordered by the District Judge. The double jeopardy bar was upheld only in respect of the money laundering offence, which was not appealed. No new precedent was established beyond the application of existing legal principles to the facts of this case. The Court also indicated that parties should consider directions to ensure the Appellant’s medical needs are properly addressed during the extradition process.