AIT 1. There is a risk of prosecution or reprosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China. However, the use of those provisions is discretionary and extremely rare. Absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection. The risk of prosecution or reprosecution will be a question of fact in individual cases but is more likely where
(a) there has been a substantial amount of adverse publicity within China about a case;
(b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas;
(c) the offence is unusually serious. Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment;
(d) political factors may increase the likelihood of prosecution or reprosecution; and
(e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.
2. Prosecution under Article 7 or 10 is a fresh prosecution. The discretion to prosecute is exercised in the light of the opinion of the Chinese authorities as to whether the foreign jurisdiction dealt properly, and without undue leniency, with the offence. It can no longer be said that there is no information available on the use of that power: the Chinacourt database of cases and the NPC website guidance are maintained directly by the Chinese Government and provides guidance for judges and lawyers on the use of these powers.
3. The burden of proof does not shift to the Secretary of State in double jeopardy cases. The Court of Appeal decision in Adam v Secretary of State for the Home Department [2003] EWCA Civ 265 is not authority for such a proposition, particularly where the decision to re-prosecute is discretionary.
4. In the light of our findings above, the decisions in WC (no risk of double punishment) China [2004] UKIAT 00253 and SC (double jeopardy ? WC considered) China CG [2006] UKAIT 00007 are no longer to be treated as country guidance on the double jeopardy question.
[2008] UKAIT 00036
Bailii
England and Wales
Updated: 22 July 2021; Ref: scu.268185