Tomasz Weiss & Anor v Regional Court in Gliwice, Poland

Mr Justice Hilliard: Introduction

1. The Regional Court in Gliwice, Poland, (Judicial Authority (JA)) seeks the surrender of Tomasz Weiss (TW) and Adrian Pietraszewski (AP) (the Requested Persons) to stand trial in relation to offences arising from the alleged murder of a Polish national, Andrzej Mucha (AM), between 29 th and 30 th November 2021 in the United Kingdom.

2. Poland is a category 1 territory for the purposes of the Extradition Act 2003 . These proceedings are governed by Part 1 of the Extradition Act 2003 ( the 2003 Act ).

3. The warrant in relation to TW was issued on 28 th February 2023 and certified by the National Crime Agency on 28 th April 2023. The warrant in relation to AP was issued on 3 rd April 2023 and certified by the National Crime Agency on 25 th April 2023.

4. On 22 nd July 2024, the District Judge in the Westminster Magistrates’ Court ordered TW’s surrender to Poland to stand trial for murder and assault and AP’s surrender to Poland for assault and perverting the course of justice.

5. The appellants now appeal against those decisions on two grounds with the permission of McGowan J. I am extremely grateful for the very helpful and comprehensive oral and written submissions which Counsel on both sides have provided. Background

6. I can take much of the background from the recital given by the District Judge although I have included some further details of the events surrounding the alleged offences which I was taken to by Mr Summers KC for the appellants.

7. On 29 th November 2021, AM was last seen in Slough. AM was subsequently classified as a missing person until April 2022 when Thames Valley Police began a homicide investigation into his disappearance. The investigation suggested that the victim died at an address in Slough where he had been living with AP. Also living at the address, 68 Greystoke Road, were AP's partner Kamila Wojcik (KW) and Adrian Nikiel (AN). TW was an associate of AP and would regularly visit the flat. All are Polish nationals who were resident in the UK at the time.

8. The police recovered CCTV from an address which was opposite 68 Greystoke Road. AM was last seen returning to the address at 14.38 on 29 th November 2021. AM’s son, Marcin Mucha (MM), alleged that he was assaulted at another address in Slough at some point between 15.34 and 16.30 on 29 th November by the appellants in the presence of KW and her daughter. MM also alleged that the appellants had assaulted him previously. At 17.33 on 29 th November, AM’s daughter, PM, spoke to AM on the telephone. He said he knew that MM had been assaulted.

9. During the evening, CCTV showed that the appellants, KW and her daughter, AN and AM were present at 68 Greystoke Road. At 20.06, AM telephoned PM. This is the last contact anyone outside the house had with him. PM called him back at 20.10 but his telephone was answered by someone giving the name Adrian.

10. On 2 nd December 2021, Norbert Kukla (NK) drove his van to 68 Greystoke Road. The appellants said that they wanted his help to remove a dead dog from the premises. NK did not see what was put in the back of his van by the appellants but he drove to a woodland area under their direction. They removed something from the van. He then left as they said they would get a taxi back. NK subsequently tried to show the police where he had stopped but was unable to be certain about the area.

11. There has been no sign of AM since the evening of 29 th November 2021. His body has not been found.

12. By the time the homicide investigation began in April 2022, KW and AN had left England and returned to Poland. TW was arrested in July 2022 and AP was arrested in January 2023 by Thames Valley Police on suspicion of murder and preventing a lawful burial. Both were bailed pending police enquiries. There was insufficient evidence to establish how the victim died or who was responsible. TW and AP were subsequently charged on 31 st January 2023 and 27 th January 2023 respectively with preventing the lawful burial (PLB) of AM and perverting the course of justice (PCJ) on the grounds that they had concealed a murder.

13. A separate investigation into the circumstances of AM’s death began in Poland between July 2022 and November 2022, resulting in KW and AN being called for interview in January 2023. During interviews with the Polish authorities, KW and AN implicated TW as the person responsible for AM’s death. TW and AP were also said to have assaulted AM at a time before the incident which resulted in AM's death. The Polish authorities informed Thames and Chiltern Crown Prosecution Service (TCCPS) that the interview accounts given by KW and AN would be admissible against TW and AP in Poland. However, they also indicated that if proceedings against KW concluded, she could not be compelled to give evidence against AP due to their previous relationship.

14. On 20 th February 2023, the JA issued an order in Poland for TW and AP’s temporary arrest and detention for periods of three months and 30 days respectively. The European Arrest Warrants (EAWs) were issued on 28 th February 2023 and 3 rd April 2023. TW and AP were arrested on the EAWs on 16 th May 2023 and appeared at Westminster Magistrates’ Court on the same day for their initial hearing. At the hearing, the proceedings were opened and adjourned pursuant to s8 of the 2003 Act .

15. At the time of the EAWs, TW and AP were in custody to the Reading Crown Court pursuant to the charges of (a) preventing AM’s lawful burial and (b) perverting the course of justice on the grounds that they had concealed the murder of AM, including by disposing of the body. The trial was listed to commence before a High Court judge in October 2023.

16. The Crown Prosecution Service undertook concurrent jurisdiction discussions with Poland. As a result of those discussions, a decision was made to cede jurisdiction to Poland where KW and AN had been arrested and charged with an equivalent offence of perverting the course of justice and other offences linked to the death of AM. The purpose of this was to enable a joint trial in Poland for all four co-accused for offences arising out of AM’s murder.

17. The warrant for TW relates to two offences: i) On 29 November 2021, in Slough in the United Kingdom, TW jointly and in concert with AP took part in the battery of a Polish national, AM, “namely he used violence against the victim, hitting him with his fists all over his body, as a result of which [AM] suffered an injury with bleeding from the nose and was exposed to immediate risk of suffering”. (The assault offence). ii) On 29/30 November 2021 in Slough in the United Kingdom, “acting with motivation deserving particular condemnation, namely contempt for a vulnerable person, a desire to humiliate that person and a general desire to cause harm to another person and to demonstrate dominance, acting with the direct intention of depriving a Polish National [AM] of his life by exerting direct pressure with his hands on the front surface and organs of the victim’s neck, he violently suffocated him and caused the death of [AM] in the mechanism of strangling”. (The murder offence).

18. The warrant for AP relates to two offences: i) On 29 November 2021, in Slough in the United Kingdom, AP jointly and in concert with TW took part in the battery of a Polish national, AM, namely he used violence against the victim, hitting him with his fists all over his body, as a result of which [AM] suffered an injury with bleeding from the nose and was exposed to immediate risk of suffering. (The assault offence). ii) In the period from the night of 29/30 November 2021 in Slough and other towns in the United Kingdom acting in short intervals, executing a premeditated intent, he aided and abetted [TW] the perpetrator of the murder of [AM] to evade criminal liability. He also impeded criminal proceedings related to that act by failing to immediately notify the British and Polish law enforcement authorities that [TW] had committed a crime under Article 148 §2(3) of the Criminal Code…despite having reliable information that the above act had been committed. Further, he and [TW] devised and then executed a plan to cover up traces of the crime, namely the transportation in a suitcase to the forest of the victim’s body and the subsequent burial of [AM’s] corpse. Further, he, together with [TW] and other persons whose identities were established, removed traces of the murder and the victim’s presence in a flat rented by [AP] and deleted data from telephone devices that provided evidence of their communication with the victim. The plan also included establishing a version of the events related to the disappearance of [AM] which was then presented by the involved persons to the British authorities conducting the search and to the victim’s family. He aided [TW] in giving instructions to Kamila Wojcik and Adrian Nikiel, who were then staying in the Republic of Poland, concerning their further dealing aimed at concealing the fact of the murder and misleading law enforcement authorities; they were both giving instructions and personally deleting correspondence with the above-mentioned persons. (The perverting the course of justice offence).

19. The District Judge summarised further information from Poland served on 7 th July 2024 as follows: i) The act alleged against KW and AN concerning the obstruction of proceedings was committed both in the UK and the Republic of Poland. ii) The first findings as to how to erase the traces of the crime, dispose of the body of AM and his personal objects took place immediately after the crime, ie from November 30 2021. Active efforts to hide and destroy evidence of the crime took place over the next few days. It took place in the United Kingdom. iii) At the time TW, AP, KW and AN also agreed a common version of events and the scope of information to be provided to the family of AM and the police in the event of launching a search. iv) AN returned to Poland on 24 December 2021 and KW in March 2022. After her return, KW met with AN, providing information on the development of the British investigation. During the meeting, they also made findings on further proceedings related to the obstruction of proceedings. v) When KW was in Poland, AP contacted her regularly via WhatsApp installed on her phone intended exclusively for those contacts. After each conversation, KW on the instructions of AP and TW deleted the account and all correspondence. Only when she needed to contact AP, did she reinstall it. vi) AP provided KW with information on how she was to testify when she was summoned by the authorities in Poland. After KW received a summons for January 12, 2023 to appear at the provincial police headquarters in Katowice, AP showed her how to behave during the interrogation. vii) AP instructed KW on how to testify and obstruct proceedings both when she was in UK and when she returned to Poland. At the same time, AP instructed AN how to testify and obstruct proceedings while he was in the UK. After AN returned to Poland, AP gave him instructions via KW. viii) The allegations of obstruction presented to KW and AN include activities both in the UK and in the Republic of Poland, namely Bielsko – Biala, Katowice and other towns in the Silesian Voivodeship.

20. An expert witness, Mikolaj Pietrzak, was called on behalf of the appellants in the lower court. He gave evidence about the trial process in Poland, some of which the District Judge summarised as follows: “Mr Pietrak (sic) explained that if both TW and AP were extradited, based on his experience and knowledge, they would most likely be tried with KW and AN especially as they refer to the same act or acts committed in joint cooperation between the defendants. The investigation of KW and AN was suspended on the 5th of March 2024, after the prosecutor could not be sure how long these proceedings would take. KW and AN were released from pre-trial detention as a result. The prosecutor has the ability to try them separately, however Mr Pietrak does not know what evidence the prosecution have, but assuming they have sufficient evidence they could try them separately. Instead, they have chosen to suspend the investigation. In the event that TW and AP were tried at the same time and in one joint trial with the other co-defendants, all the evidence would be joined into one case file. This means that all the collected evidence referring to all of the accused would be used and assessed in this joint trial, and it would include any evidence given by co-defendants of TW and AP. There are no legal obstacles to the use of such co-defendants evidence against TW and AP. The assessment of the admissibility of evidence belongs to the adjudicating court. It should be noted that such assessment does not require any special procedure and decision that evidence is inadmissible hardly occurs.”

21. Six issues were argued for the appellants in the lower court. Four of them are no longer pursued. The hearing lasted for three days. The District Judge was presented with a large number of different arguments which she resolved in a reserved judgment, extending over 81 pages. She evidently gave all the matters very careful attention.

22. Mr Summers now renews two of the arguments which he advanced in the court below and which he says the District Judge resolved incorrectly. He submits that extradition is barred by reason of forum in accordance with s19 B of the 2003 Act . He also submits that extradition would be an abuse of the extradition process because the Polish and UK authorities have engaged in “forum shopping”.

23. Mr Summers crystalised the alleged abuse of process for the District Judge as follows: “TCCPS thought the evidence of KW and AN would be outright inadmissible under UK law, and jurisdiction was ceded because of that belief. Poland and TCCPS have brought about a situation (cede jurisdiction to Poland) designed to expose TW and AP to prosecution and conviction based on evidence which it knew would not be tolerated by any UK court. In other words, the Polish authorities and TCCPS were seeking to circumvent UK law by finding a more favourable jurisdiction which would permit such hearsay evidence.”

24. I should record that at an earlier stage Mr Summers had applied to the District Judge for a witness summons pursuant to s97 of the Magistrates’ Courts Act 1980 in an effort to obtain documents relating to the process by which the decision was taken to discontinue the domestic prosecution so as to allow the extradition proceedings to go forward.

25. In the event, the District Judge refused the application and her refusal was upheld by the Divisional Court – see R (on the application of Tomasz Weiss and Adrian Pietraszewski) v Westminster Magistrates’ Court [2024] EWHC 1256 (Admin) .

26. I ought to make some reference to the judgment of Julian Knowles J in the Divisional Court with which Bean LJ agreed. He referred to a submission made by Mr Summers to the effect that the Crown Prosecution Service had misled the Crown Court at Reading in correspondence. This concerns the existence (or not) of a bar on Poland extraditing its own nationals to the UK. Julian Knowles J said this: “24. In the court below, it was said that [TCCPS] had misled the Reading Crown Court about the existence of this bar when, in correspondence on 31 March 2023 in connection with the then extant domestic prosecutions of [the appellants], the bar was mentioned and it was said Poland would not extradite the two co-accused in Poland and, hence, that there could not be a trial of all four co-accused in the UK. A Senior Crown Prosecutor wrote: “A joint meeting was held between the Polish and UK prosecution and investigative teams with a view to establishing the most appropriate venue for the joint trial of all 4 defendants. There is currently an extradition bar from Poland to the UK which means that however we end up, we do not currently anticipate any trial here of all four defendants.”

25. [The appellants] maintained that the bar had never existed and that the CPS assertion was wrong and misleading. Paragraph 19 of their Skeleton Argument before the district judge argued: “To remind, the defence case under Tollman abuse [R (Tollman) v Bow Street Magistrates’ Court [2007] 1 WLR 1157 ] is that Poland worked with [TCCPS] to procure the 2023 [TCCPS] decision to cede jurisdiction over an ongoing Crown Court trial via …. and which was brought about by Poland and/or [TCCPS] having misled the Crown Court into believing Polish law did not allow the extradition of the co-accused [KW] and [AN] to the UK.”

26. They relied on expert evidence of Polish law.

27. [TCCPS’s] position is as follows. The decision to discontinue the domestic prosecution was taken by it on 29 June 2023. Prior to that, as the 31 March 2023 letter indicated, there had been meetings and communications involving Eurojust (the EU’s Agency for Criminal Justice Cooperation), the CPS, Polish prosecutors and the police about the case. The CPS’ understanding as set out to Reading Crown Court in March 2023 was based on a notification made by Poland in April 2021 under the Trade and Cooperation Agreement between the UK and the EU, and notified to the UK by the EU that month. This was reflected in internal CPS guidance and memoranda prior to this case, which stated that the nationality bar was in force.

28. By the time that the decision to discontinue was taken in June 2023, it was known to the CPS from internal guidance that the bar was to be removed in August 2023. On 26 July 2023 Poland (through the EU) notified the UK of a partial withdrawal of the notification that its nationals would not be extradited, with effect from 3 August 2023. The CPS’s guidance on nationality bars for EU member states, as updated at 15 August 2023, states in relation to Poland, ‘No bar. Absolute bar previously in place was lifted 3 August 2023’.

29. [TCCPS] therefore says that the position as set out to Reading Crown Court in March 2023 was correct.”

27. At para 41 of his judgment, Julian Knowles J set out part of a letter written for the purposes of s19 B(3)(c) of the Extradition Act 2003 [prosecutor’s belief statement] on behalf of the CPS by Mr Gregor McGill. At para 42, Julian Knowles J said this: “In light of this very full document (and its equivalent in [AP’s] case), in my judgment it is clear why the CPS took the decision to discontinue the domestic proceedings against [the appellants]. Although they could be prosecuted here for lesser offences, there was insufficient evidence to charge them with homicide or violence offences. The Full Code Test was not met for these. To prosecute them for those lesser offences could put in jeopardy their prosecution in Poland for those more serious offences, where the relevant evidence would be admissible. Thus for that reason, and the other reasons given, the decision had been taken to discontinue the prosecutions here in the public interest.

43. I am bound to observe that given Mr McGill’s seniority and the extensive briefing he had obviously received before he prepared his statements, it is difficult to see what a record of the actual decision taken at the CPS meeting on 29 June 2023 would or could have added.”

28. Julian Knowles J concluded (at para 82) that the material sought had no proper role to play in the evaluation of the matters specified in s19 B(3). He said that Mr McGill had given a very full explanation of why the decision had been taken and that the District Judge would have to decide whether or not it amounted to an abuse of process. Abuse of process

29. Mr Summers advanced this ground first although it is a residual category which falls to be considered after the various statutory bars have been excluded. The perfected grounds of appeal describe the suggested abuse in this way: “The current position of the TCCPS is that the Applicants cannot be tried (fairly) in this jurisdiction for murder and assault because the hearsay statements of KW and AN would be inadmissible here, pursuant to the ‘general rule of law’ in R v Hayter [2005] 1 WLR 605 which exists to protect the fairness of English trials. The ceding of jurisdiction to Poland (and engaging the process of extradition to facilitate that ceder) is being undertaken in order to avoid the operation of English laws. Forum shopping of this sort is recognised by law to be abusive, and for good reason. The Applicants’ over-arching case on this appeal (and which is accordingly addressed as their first ground of appeal) is that what is happening in this case is abusive because it is designed to circumvent the fair trial rights that would otherwise be imposed and enforced in this jurisdiction. That is to say that the EAWs are ill-motivated.”

30. The District Judge adopted the procedure set out in Tollman [2007] 1WLR 1157 which identifies the steps to be followed when there is an abuse of process challenge, namely for the conduct alleged to constitute the abuse to be identified with particularity; for the Judge to consider whether the conduct, if established, is capable of amounting to an abuse of process; and if it is, for the Judge then to consider whether there are reasonable grounds for believing that such conduct may have occurred; and if so, the Judge should not accede to the request for extradition unless satisfied that such abuse of process had not occurred.

31. The District Judge dealt with the issue in the following paragraphs: “242. When considering what conduct is alleged to constitute the abuse, Mr Summers crystalised it as ‘TCCPS thought the evidence of KW and AN would be outright inadmissible under UK law, and jurisdiction was ceded because of that belief. Poland and TCCPS have brought about a situation (cede jurisdiction to Poland) designed to expose TW and AP to prosecution and conviction based on evidence which it knew would not be tolerated by any UK court. In other words, the Polish authorities and TCCPS were seeking to circumvent UK law by finding a more favourable jurisdiction which would permit such hearsay evidence’.

243. Initially the Polish authorities were not involved in the investigation into the disappearance or murder of AM. They became involved after AN and then KW left the UK to return to Poland in December 2021 and March 2022 respectively. KW was arrested at the airport on her way out to Poland at the time for an unrelated matter of assault (against one of AM’s son’s but not prosecuted). In April 2022 the UK investigation changed from a disappearance to a Homicide investigation. Following that, Thames Valley Police began working with the Polish police from July 2022. Officers from the Criminal Department of the Provincial Police Headquarters in Katowice received information on 20 October 2022 from the Polish Embassy in London indicating that at 68 Greystoke Road, between 29 and 30 November 2021, AP and TW committed murder or deadly assault against a Polish national, AM. In November 2022, PM, the daughter of AM based in Poland filed a report at Katowice Police Headquarters regarding AM’s murder. Meanwhile, both TW and AP were arrested in July 2022 and January 2023 (AP having been on the run and having removed his electronic tag in relation to other matters). It appears that AP anticipated that there may be an investigation into their conduct evidenced by his instructions to KW (and later AN through KW) in relation to a summons to appear for questioning in Poland in January 2023.

244. Both TW and AP were charged in January 2023 with PCJ and PLB. It was not until February 2023 that a JIT was set up to consider issues relating to jurisdiction in line with Eurojust guidelines. The evidence before me was clear that there was a nationality bar in place at that time, but by the time matters were discontinued at the end of June, this was to be lifted by August 2023. Having been informed that KW and AN had implicated TW and AP in the assault/murder of AM, TCCPS concluded that their evidence would be inadmissible or not admitted in this jurisdiction. I have also set out why those accounts are not ‘evidence’ when considering forum. The decision to cede jurisdiction was transparent with the same reasoning provided to RCC [Reading Crown Court] and in these proceedings.

245. There was a lengthy Witness Summons application before me on 21 March 2024 where Mr Summers sought to obtain disclosure of a number of documents relating to the decision-making process to cede jurisdiction. He argued that TW and AP’s extradition was an abuse of the extradition process as a deliberate attempt was being made to prosecute them in bad faith. He submitted in those proceedings, that the TCCPS and the Polish authorities had lied and misled RCC as to a nationality bar in place when that was not the case, and TCCPS and the Polish authorities were using evidence (interviews of KW and AN) that was known to them to be inadmissible in the UK. I note Mr Summers’ argument in these proceedings now seems to be that same evidence is admissible and TCCPS are mistaken on the law.

246. On 27 March 2024, given the seriousness of the allegations asserted by Mr Summers, I generously reviewed the minutes of the internal CPS meeting on 29 June 2023 (where the decision was taken to discontinue proceedings); two briefing notes compiled prior to the meeting and the CPS charging decision in relation to TW and AP and having found nothing of relevance to the issues of forum or abuse, I refused the application in its entirety. On an application for judicial review Knowles J in a lengthy judgment, refused permission. See, Tomasz Weiss & Adrian Pietraszewski v WMC [2024] EWHC 1256 (Admin) .

247. In my judgment, having reminded myself that the abuse jurisdiction is very limited and residual in nature, there is nothing improper, nor any action or inaction complained of, that comes close to amounting to an abuse of this court`s extradition process for the Polish authorities to retain jurisdiction over the ongoing prosecution of assault/murder and PCJ. The reality is, had KW and AN not gone to Poland during the course of the investigation, the Polish authorities would have had little to no reason, based on the facts to investigate a crime committed here in the UK, by UK residents. But they did go to Poland, and as a result AP, KW and AN sought to mislead, obstruct, interfere with the proper investigation into AM’s alleged murder which is what has brought about the evidence in Poland for a charge of assault/murder against TW and AP. The fact that other countries have different evidential regimes to us does not mean there is a detriment to TW and AP. They will be afforded legal representation throughout the trial, and in fact at all stages of the proceedings to ensure their rights and interests are protected.

248. Having carefully considered the EAW and chronology of both criminal investigation here in the UK and Polish investigation from all the documents provided in this case, I am entirely satisfied that there is no cogent evidence that the Polish authorities have sought to usurp the statutory regime of the EA or its integrity been impugned for me to consider it an abuse. Accordingly, the Abuse of Process challenge must fail.”

32. Mr Summers has advanced a number of points in support of his case and a number of criticisms of the District Judge’s judgment.

33. Mr Summers sets some store by the contents of the letter written by the Senior Crown Prosecutor to the Crown Court at Reading on 31 st March 2023, referred to in the judgment of Julian Knowles J. Mr Summers maintains that the Crown Court was at the least not properly updated and that the reference to the nationality bar was never withdrawn. Mr Pietrzak gave some evidence which is not entirely clear to me but may mean that in April or May 2023, Poland indicated that the nationality bar was to be lifted. Assuming this to be so, the letter was nonetheless accurate when it was written. It was not until August 2023 that the nationality bar was lifted. The decision to discontinue the proceedings had been taken on 29 June 2023. It was still the case that the CPS thought that there should be a joint trial against all four suspects in Poland. In the event, nothing ever turned on the particular passage in the letter about the nationality bar and it falls far short of constituting any evidence at all of bad faith or manipulation.

34. As Julian Knowles J pointed out at para 114 of his judgment, very many of the facts relating to the suggested abuse are agreed. It is agreed that the CPS discontinued the prosecution in the UK for offences of perverting the course of justice and preventing lawful burial so that the appellants might be prosecuted in Poland for conduct arising from the same incident, including in the case of TW a homicide offence. When doing so, the CPS knew that the Polish authorities could rely on the evidence of two co-accused, KW and AN. I do not think that there are any grounds at all for supposing that the CPS did not believe that the available evidence would be insufficient to provide a realistic prospect of conviction here for offences of violence. It is clear beyond doubt to my mind that that is what they did believe. They were entirely transparent about that. An important question is then whether the CPS and the District Judge were right to conclude that a prosecution was not viable here.

35. The District Judge dealt with the matter on the basis that the accounts from KW and AN were not “evidence” as regards TW and AP. Mr Summers is critical of her conclusion and of her reasoning. He argues that if KW and AN were jointly tried here with TW and AP, the accounts given by KW and AN to the Polish authorities could be admissible evidence against TW and AP. He relies upon Y [2008] 1WLR 1683 and the judgment of Hughes LJ (as he then was) at para 57 where he said that in the great majority of cases it would not be in the interests of justice for the statement of one accused in a police interview to be admissible against a co-accused pursuant to s114(1) (d) of the Criminal Justice Act 2003 . Mr Summers points out that Hughes LJ was not ruling it out entirely and had said that in an unusual case it might be possible. Mr Summers submits that this possibility could provide the evidential basis for prosecuting TW and AP here for the offences of violence in the warrants in a joint trial with KW and AN.

36. Alternatively, Mr Summers argued that the prosecution could seek to call KW and AN to give evidence against TW and AP in a trial here for offences of violence after KW and AN had been prosecuted in a separate trial. He says that they could be compelled to come to court and if they refused to answer questions in the witness box, an application could then be made by the prosecution to read their statements to the Polish police pursuant to the Criminal Justice Act 2003 .

37. I am satisfied that these possible courses of action are unrealistic and could not have led a conscientious prosecutor to conclude that there was a realistic prospect of conviction, in other words, to conclude that a conviction was more likely than not for the offences of violence. The Code for Crown Prosecutors requires prosecutors to consider whether there is any question over the admissibility of evidence and the likelihood of evidence being ruled as inadmissible by the court.

38. I am satisfied that the CPS could not properly have decided to launch a prosecution against TW and AP on the basis of a joint trial with KW and AN where the statements of KW and AN to the Polish police would be deployed against TW and AP by the prosecution as the critical evidence. It would at the very least be extremely unusual for out of court statements to the police to be deployed in this way in a joint trial in this jurisdiction and the CPS could not have said that a conviction in these circumstances was more likely than not, even if there was a theoretical possibility of admissibility under the rules here.

39. The alternative of seeking to adduce evidence from KW and AN as prosecution witnesses after they had faced their own trials would be beset with uncertainty at every turn. Where would KW and AN be tried for any offences they are said to have committed in the aftermath of the alleged homicide of AM? Wherever it was, could their subsequent attendance as witnesses here be secured? Suppose they were acquitted. Could their movements then be effectively controlled? Would they be willing and cooperative witnesses for the prosecution? KW and AP had been partners and had a child together. TW, AP, KW and AN had all lived at the same address together. It is alleged that they had agreed a common but untrue version of events to be given to the police and to the family of AM if a search for him was launched. Could KW and AN properly be called as prosecution witnesses about the violence if they did not admit the PCJ aspect? If they did come to the witness box or to a video link but then refused to answer questions, how would that affect the admissibility here of their statements to the Polish police? If they did answer questions, could the prosecution conclude that they would do so truthfully? What would they say about what they had said to the Polish police? There are so many uncertainties that again, it is not arguable that a diligent prosecutor could say that a conviction in these circumstances was more likely than not. I have looked at some of the issues which would have arisen in our system. Having done so, I am satisfied that the judge was entirely right to conclude that a prosecution here of TW and AP for assaulting AM and in TW’s case for a homicide offence was not viable.

40. That leaves what I think is the central submission of Mr Summers, namely that it is just completely wrong for TW and AP to be prosecuted in Poland when they would not be prosecuted on the same material here. He would no doubt say that if the various considerations I have mentioned in paras 38-39 above are valid, then they demonstrate why a prosecution should not be entertained anywhere on the same material.

41. In my judgment, this approach is too narrow. Different jurisdictions have different criminal processes and different rules about the admissibility of evidence. Nowadays, I anticipate that most people who gave it any thought would have no difficulty in accepting that fair trials and safe convictions are routinely secured in other jurisdictions with different procedures and rules from our own. That is certainly the legal position. No doubt any particular system has its advantages and disadvantages when compared with another system.

42. Mr Perry KC for the Respondent drew my attention to the decision of the Divisional Court in Proulx v Secretary of State for the Home Department [2003] EWHC 1502. It had been argued that the Claimant in that case could not have a fair trial in Canada because his confession to an undercover officer was unlikely to be excluded in a trial in that jurisdiction. At para 49 of his judgment, Scott Baker LJ said: “In my judgment, [Counsel’s] argument confuses the objective of a fair trial with the means of achieving it. Criminal procedure and evidential rules differ from one country to another, but two countries, despite having differing procedure and differing rules of evidence, may, nevertheless both provide defendants with a fair trial. True it is that Canada does not have the codes under PACE, nor does it have section 78 of PACE. But that does not mean that its trials are not fair, either by their standards or ours. Article 6 is not about the admissibility of evidence, it is about the procedures whereby fairness is ensured.”

43. Mr Perry submits, correctly in my judgment, that these observations are consistent with the principle that whilst Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed; these are primarily matters for regulation by national law and national courts – see Garcia Ruiz v Spain [GC] 31 EHRR 22 at para 28.

44. Mr Perry argues that it would undermine the effectiveness of international treaty obligations if courts were to use domestic rules of admissibility as the touchstone of fairness in an international context. He relies on R (Ullah) v Special Adjudicator [2004] 2 AC 323 where Lord Bingham explained the operation of the rights guaranteed by the ECHR in the context of extradition. He said (at p352 B-C) that where reliance is placed on Article 6, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state.

45. In Othman v UK (2012) 55 EHRR 1 , the ECtHR at para 258 emphasised the stringency of the test: “A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.”

46. Clearly there are different rules of admissibility of evidence in a criminal trial in England and Wales and in Poland, but it has not been suggested that the different rules in Poland mean that trials there in the sort of situation that has arisen here (where statements of co-accused to investigators are admissible against all defendants) are not fair. The expert evidence did not suggest that it was regarded as a matter of concern in Poland. And Mr Perry relied upon Gomes v Governor of the Republic of Trinidad and Tobago [2009] UKSC 21 for the proposition (at para 35) that Council of Europe countries are subject to article 6 ECHR and should readily be assumed capable of protecting an accused against an unjust trial.

47. In Belbin v Regional Court of Lille [2015] EWHC 149 (Admin) , the Divisional Court said (at para 44) that there would be an abuse of the extradition process if the statutory regime in the 2003 Act was being usurped by bad faith on the part of the Judicial Authority in the extradition proceedings or by a deliberate manipulation of the extradition process. It has to be shown that as a result of the usurpation of the statutory regime, the requested person will be unfairly prejudiced in his subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there. But the court added that any issues relating to the internal procedure of the requesting state are outside the abuse of process jurisdiction in extradition proceedings.

48. Mr Perry submits that the position here is that the appellants cannot be tried in this jurisdiction for murder and assault because there is insufficient evidence against them in accordance with domestic rules to provide a realistic prospect of conviction. That, he says, is the conclusion the CPS came to for good reason. But Mr Perry says that it does not follow from this that the appellants’ trial in Poland would be unfair or that it would be wrong to order their surrender. He argues that a fair trial is achieved in Poland by different means. And he says that there is no evidence of bad faith, manipulation or usurpation.

49. I am not persuaded that the District Judge was wrong in her treatment of the facts as regards abuse of process or that her overall evaluation of the issue was incorrect. In my judgment, she came to the right conclusion. The Polish authorities had made a lawful request for the extradition of the appellants following the alleged commission of serious offences by them. There is no evidence of bad faith, manipulation or usurpation of the statutory scheme. In this case, there was a decision to cede jurisdiction to the Polish authorities in circumstances where for good reason a prosecution for murder and assault was not regarded as viable here but where the surrender of the appellants to Poland would ensure that their alleged involvement in serious criminal offending would be determined in a single trial involving all four suspects – and by a tribunal in a jurisdiction which would be familiar with evaluating anything one suspect had said to investigating officers as part of the case as a whole. The expert evidence in the lower court was that “all collected evidence referring to all of the accused would be used and assessed in this joint trial” and that that is the practice in Poland. This was not a case of “forum shopping” as Mr Summers has suggested. The CPS were not choosing that they would prosecute a case for murder and assault in one jurisdiction in preference to another. They had correctly concluded that a prosecution was not viable in this jurisdiction. It was, however, viable in Poland where all the suspects could be tried, and in one joint trial which was also highly desirable if possible. The Polish authorities were seeking to prosecute in Poland. In those circumstances, the CPS ceded jurisdiction. This meant that the Polish authorities could proceed in one trial with the charge of murder against TW and of assault against TW and AP and for the offences said to have been committed after AM’s death.

50. Mr Summers is critical of the District Judge’s reference to her review of material generated during the course of the domestic criminal proceedings. She had looked at some material as part of the application for a witness summons. She had satisfied herself that nothing in the material which she had seen supported the appellants’ arguments. That is why it had not been provided to them or seen by them. She simply confirmed the position again. Mr Summers also criticises her observation that the appellants would be afforded legal representation to ensure that their rights and interests were protected. That seems to me to be an accurate statement about one aspect of the position. She was not suggesting that that was a complete answer to all the arguments which had been advanced. As to those, she had set out her factual findings and conclusions comprehensively and was plainly satisfied that nothing “came close”, as she put it, to amounting to an abuse of the extradition process. When she said she was satisfied that there was no cogent evidence that the Polish authorities had sought to usurp the statutory regime of the 2003 Act or of its integrity being impugned for her to consider it an abuse, she was making it clear that in her view, there were no reasonable grounds for believing that abusive conduct may have taken place. She had earlier made references to the procedure set out in Tollman.

51. Thus, having heard all the competing arguments, I am satisfied that she came to the correct conclusion.

52. For the sake of completeness, I should say that the Eurojust guidelines for deciding which jurisdiction should prosecute do not alter the position. Mr Summers took me to one part of the guidelines which says that judicial authorities should not decide to prosecute in one jurisdiction rather than another simply to avoid complying with the legal obligations that apply in one jurisdiction but not in another. This does not mean that the rules of admissibility of evidence must be ignored. They will not be the same in different jurisdictions. Another part of the guidelines specifically says that the admissibility of evidence should be considered. The guidelines are said not to constitute binding rules and to be without prejudice to applicable national law. In the present context, our Parliament has enacted s19 B of the 2003 Act to which I now turn. Forum bar

53. Section 19 B of the Extradition Act 2003 provides as follows: “(1) The extradition of a person (“D”) to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice. (2) For the purposes of this section, the extradition would not be in the interests of justice if the judge— (a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place. (3) These are the specified matters relating to the interests of justice— (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victims of the extradition offence; (c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence; (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom; (e) any delay that might result from proceeding in one jurisdiction rather than another; (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to— (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom; (g) D's connections with the United Kingdom. (4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned. (5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum. (6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D.”

54. The appellants’ arguments on this ground are in large part directed towards the District Judge’s consideration of the seven factors identified in section 19 B(3)(a)-(g).

55. The District Judge’s conclusions were as follows: “207. Overall, I remind myself of the overarching test prescribed by section 19 B which is whether extradition would not be in the interests of justice, Dibden at [§18], Shaw v USA [2104], Love v USA [2018].

208. Having ruled that the threshold condition imposed by section 19 B is satisfied I must then have regard to the seven specified matters in order to determine whether extradition should not take place. The seven specified matters have no necessary hierarchical weight. There are matters that the court must consider to reach an overall evaluative judgement as to whether extradition would not be in the interests of justice.

209. The factors which significantly fall in favour of extradition, the strongest being that it is in the interests of AM and his family that a trial in relation to his alleged assault/murder takes place at all. That is strengthened by the fact that it is desirable and practicable for one trial in relation to TW, AP, KW and AN to take place and the evidence, which is necessary for a prosecution for all the offences is in Poland, and fundamentally cannot be made available in the UK. The reasoning for this decision is clearly set out in a well reasoned PBS where the Director of Legal Services, has expressed a detailed belief that the UK is not the most appropriate jurisdiction for a prosecution, which further strengthens the position in favour of extradition. Weighed against that is the weightiest factor against extradition that the alleged harm was immediately caused in the UK, which is diluted by the secondary harm to AM’s family members resident in Poland. Overall, the conclusion I am drawn to forcefully, is nothing taken alone, or together outweighs the overwhelming factors that fall in favour of extradition.

210. In terms of PCJ, the same reasoning applies in part; the most harm felt by the PCJ was a neutral factor as it was felt equally in both jurisdictions but a weighty factor is that there is evidence necessary to prosecute the offence available in the UK (which did start but was discontinued) or could be made available if prosecuting the offence covering both the UK and Polish acts alleged. This is weighed against the factor which significantly falls in favour of extradition, the strongest being, the desirability and the practicability for all offences to be tried together with all co-defendants in one trial in the same jurisdiction and encompassing the most serious offending. This is strengthened further by the PBS which expressed a belief that the UK is not the most appropriate jurisdiction for a prosecution, such that the overall position falls in favour of extradition.

211. The other factors such as delay and connections to the UK are marginal in that they do not sufficiently change the overall assessment of where the interests of justice lie.

212. I find this bar fails.”

56. The Prosecutor’s Belief Statement (PBS) was made by Mr Gregor McGill. His conclusions as to TW were as follows. There was a corresponding statement in respect of AP. “9. I have considered s19 B(3) of the Extradition Act 2003 and the factors set out in subsections a) to g) therein, as summarised below and corresponding to the subsection of the Act . a. All of the harm occurred in the UK. b. It is believed that the victim’s family are resident in Poland. It is in their interests that those suspected of being responsible for the offences committed against the victim are tried. c. It is my belief that the UK is not the most appropriate jurisdiction in which to prosecute TW in respect of the conduct constituting the extradition offence. d. I understand that there is insufficient admissible evidence to prosecute TW in the UK for the offences of murder and assault. e. Proceeding in the UK with Perverting the Course of Justice and Preventing a Lawful Burial may have impeded the Polish prosecution for murder and associated offences, including by causing potential delay. f. It is most desirable for one prosecution of all offences, having regard to the location of the two key witnesses and other suspects (all believed to be in Poland) and the fact that the evidence of the other suspects (KW and AN) would not be admissible against TW and AP in UK proceedings. g. TW is a Polish national with no known existing connections to the UK.

10. It is my belief that although the UK would ordinarily have been the most appropriate forum for the offences with which TW was charged (namely Perverting the Course of Justice and Preventing a Lawful Burial), as proceeding with such offences could risk impeding the Polish prosecution for homicide and associated offences, I am led to the conclusion that the UK would therefore no longer be the appropriate forum. I have also considered the highly relevant factor that the Full Code Test is not met for any homicide or violence offence in the UK.”

57. As to s19 B(3)(a), Mr Summers submits that the District Judge was wrong to conclude that the fact that AM’s daughter PM and other family resided in Poland was relevant to the place where most of the loss or harm occurred or could dilute the weight to be attached to the fact that all the immediate harm arising from murder and assault occurred here; and was also wrong to find that “harm is felt in both jurisdictions in equal measure” as regards the allegation of perverting the course of justice. I think that the location of loss or harm resulting from a homicide offence is wide enough to include the place of residence of the victim’s family but the judge was in any event clear that the balance on this aspect fell against extradition for murder and assault. The evidence was that attempts were made here and in Poland to cover up what had happened and the judge was entitled to take account of that.

58. As to s19 B(3)(b), it is said that the judge was wrong to find that there was no prospect of a trial for assault or murder here. For the reasons I have already given, I am satisfied that she came to the right conclusion about this and that she was entitled to conclude that the victim’s family were victims of the offence of murder and that a trial in Poland for murder was very much in their interests as against no trial for murder here. This was an important factor in circumstances where a single trial for all alleged offences and alleged offenders was viable in Poland but not here.

59. As to s19 B(3)(c), Mr Summers criticises the fact that the judge took into account the PBS of Mr McGill. He says that Mr McGill had no personal knowledge of the domestic prosecution and had not personally reviewed the evidence. He argues that it was not a statement of belief at all, merely a statement of fact that the CPS would not prosecute here for offences of violence. It is argued, relying on Scott v Government of the USA (DC) [2019] 1 WLR 774 , that the fact that the CPS took the view that they could not prosecute here for murder and assault meant that there was not a statement of belief about the most appropriate jurisdiction for a prosecution. Mr Summers says that there is an air of unreality about comparing prosecutions in two jurisdictions when one of them is not going to happen. In Scott, the SFO had said that they had not and were not going to investigate the appellant’s conduct. That is what caused Lord Burnett CJ to say at para 35 that there would be “an air of unreality about making a solemn comparison between two states of affairs, one of which has been discounted as a possibility, without taking that into account in assessing the weight (if any) to attach to the outcome of the comparison.” Mr Summers says that the judge should have used a possible trial here of TW and AP for offences of violence as one part of the comparison exercise.

60. I do not think that the same air of unreality applies to the comparison exercise in this case as in Scott . There had been an investigation here. The conclusion was that there was insufficient admissible evidence here to provide a realistic prospect of conviction of TW and AP for any offence of violence against AM. The Polish authorities however did have sufficient evidence for a viable prosecution for such offences in accordance with their rules and procedures.

61. When comparing what appears to be a viable single trial for all offences against all four suspects in Poland on the one hand, and on the other, a trial somewhere of KW and AN for PCJ, a trial here of TW and AP for PCJ and PLB, and a prosecution of TW and AP here for homicide and assault which was not viable, such a comparison could properly lead to the conclusion that the former was preferable to the latter.

62. Mr McGill went straight to the conclusion that there was insufficient admissible evidence here for a prosecution of TW and AP for murder and assault without spelling out the various problems which would demonstrate how such a prosecution was likely to fail for the reasons I have given earlier. But even adopting Mr Summers’ contention (at the end of para 59 above) and making a comparison which includes attempting to deploy evidence for the prosecution in a trial here from KW and AN, the almost certain failure of that process would inevitably favour very strongly the single prosecution in Poland.

63. In my judgment, the judge was entitled to attach weight to the statement of belief from Mr McGill. He was a Domestic Prosecutor. He did not work in the Extradition Unit. It was a legitimate conclusion from the contents of his statement that he had been properly briefed. Even if he went straight to the conclusion that there could not be a viable prosecution for offences of violence here without spelling out all the insurmountable hurdles, those difficulties would have led any experienced prosecutor to the same conclusion. Mr McGill explained why proceedings here were being discontinued.

64. As to s19 B(3)(d), Mr Summers says that the judge was wrong in her assessment of whether the evidence of KW and AN could be made available in the UK. Mr Perry submits that in relation to murder and assault, the judge was correct to conclude that there was no guarantee KW and AN would give evidence in a trial in this jurisdiction or that they could be compelled to do so, and that this factor weighed overwhelmingly in favour of extradition to Poland. For the reasons I have already given, in my judgment that is an accurate assessment of the position and the judge was entitled to give it great weight. It was very likely that evidence from KW and AN in any form would not be available in a prosecution here for offences of violence and that weighed very strongly in favour of extradition to Poland.

65. As to s19 B(3)(e), it was open to the judge to conclude that even taking account of the need to interview TW and AP following surrender, any delay would be of no consequence. Evidence from the UK had been shared with Poland. Evidence was available in Poland in relation to PCJ. Bringing a prosecution in the UK for offences of violence and trying to rely upon KW and AN for that purpose, as Mr Summers suggests, was likely to be very protracted whilst various steps were gone through with no realistic prospect of success. But delay was not determinative. In her final analysis, the judge described it as marginal.

66. As to s19 B(3)(f), Mr Summers is critical of the judge’s assessment of the desirability and practicability of all prosecutions relating to the extradition offences taking place in one jurisdiction. The position now is that KW and AN are awaiting trial in Poland. TW and AP are no longer awaiting trial here and could not be prosecuted here for murder and assault. A single trial in Poland of all prosecutions relating to the extradition offences is practicable and desirable. The subject matter is very closely connected and a single trial means that all the decisions will be made by one and the same tribunal, applying the same law and procedure.

67. As to s19 B(3)(g), it is said that the judge was wrong to “downplay” the connections of TW and AP to the UK. The respondent points out that neither of them had given evidence to contradict that they had only limited ties to the UK. But again, the judge described this factor as marginal in the overall balance.

68. The judge concluded that there was nothing in isolation or in combination to outweigh what she regarded as factors which overwhelmingly favoured extradition in the interests of justice. In my judgment, on the evidence and the arguments, she came to the correct conclusion. As Mr Perry submitted, it was entirely reasonable in all the circumstances of this case to find that it was in the interests of justice for Polish nationals charged with the assault and murder of a Polish national in the UK to be tried in a single trial in Poland with other Polish nationals who had allegedly sought in the UK and Poland to cover up the murder. The fact that extradition was in the interests of justice in accordance with s19 B is another reason for rejecting the submission that there was an abuse of process by “forum shopping”. Two cases Mr Summers referred me to where forum shopping is mentioned – Re Campbell [2009] NIQB 82 and Dubinsky v Russia (2014) App 4892908 – concerned very different facts and I do not find them of assistance.

69. For all these reasons, these appeals are dismissed.