Tomasz Weiss v Westminster Magistrates' Court

Hearing date: 21 May 2024

Approved Judgment

This judgment was handed down remotely at 14:00 on 24 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

On 21 May 2024 we heard a ‘rolled-up’ permission hearing by the Claimants (Cs) on their application for judicial review of District Judge Rai's decision on 27 March 2024 to refuse to issue a witness summons under s 97 of the Magistrates' Court Act 1980 (MCA 1980) in connection with their extradition proceedings.

At the conclusion of Mr Summers KC's submissions Lord Justice Bean indicated that we did not need to hear from the Interested Parties (IPs); that permission would be refused; and that we would put our reasons into writing. This we now do.

Background

Cs are UK residents who are presently the subject of extradition arrest warrants (EAWs) issued by IP2 on 28 February 2023 and 3 April 2023 respectively.

The extradition of C1 is sought to prosecute him for two offences, namely, the assault and murder of Andrzej Mucha, alleged to have been committed in Slough, UK, on 29–30 November 2021. The extradition of C2 is sought to prosecute him for the same assault on Mr Mucha, and for an offence equivalent to our offence of perverting the course of justice relating to the disposal of Mr Mucha's body. All the conduct allegedly occurred in the UK.

At the time of the EAWs, Cs were in custody to the Reading Crown Court pursuant to two domestic charges pertaining to the same incident: (a) preventing Mr Mucha's lawful burial, and (b) perverting the course of justice on the grounds that they had concealed the murder of Mr Mucha, including by disposing of the body.

The trial was being prosecuted by IP1, and was listed to commence before a High Court judge in October 2023.

IP1 undertook concurrent-jurisdiction decision-making discussions with Poland, which culminated in IP1 discontinuing the domestic prosecution under s 23A of the Prosecution of Offences Act 1985 on 2 July 2023 (the date of the notice; the decision was taken by the CPS on 29 June 2023). Extradition proceedings were accordingly opened against Cs in July 2023.

There are two co-accused in custody in Poland for alleged offences in relation to the same matter (I will refer to them as KW and AN). Hence, if Cs are extradited, there will be a joint trial in Poland of all four co-accused for offences arising out of Mr Mucha's murder.

In their extradition proceedings, Cs are resisting extradition on a number of grounds. For present purposes two in particular are relevant:

a. Their extradition is barred by s 19B of the Extradition Act 2003 (EA 2003) on grounds that the UK, not Poland, is the proper forum for their trial and so extradition would not be in the interests of justice; and

b. Their extradition is an abuse of the extradition process, being a deliberate attempt to prosecute them using evidence (namely the accounts of the Polish co-accused) that was known to both IPs to be inadmissible in this jurisdiction. They accuse the Polish authorities and IP1 of ‘forum shopping’ which they say is inherently objectionable so as to amount to an abuse of process.

Cs tried to obtain disclosure from IP1 and the CPS' Extradition Unit (which represents IP2 here) (CPSEU) of documents relating to the process by which the decision was taken to discontinue the domestic prosecutions (and so to allow the extradition proceedings to go forward). Disclosure was refused, and so Cs applied for a witness summons directed against IP1 under s 97 of the MCA 1980 for production of the material.

The application before the district judge

Section 97(1) of the MCA 1980 provides:

“(1) Where a justice of the peace is satisfied that –

(a) any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information or hearing of a complaint … by a magistrates' court, and

(b) it is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing,

the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing.”

It is uncontentious that s 97 can be used in appropriate circumstances – and I emphasise those words — in extradition proceedings to secure the production of documents: see eg R (Gambrah) v Crown Prosecution Service [2013] EWHC 4126 (Admin), [15], an extradition to Ghana, where Mitting J said:

“As I understand it, what the claimant seeks is the record of the criminal trial involving the victim in England, together with other information that the Metropolitan Police may have about his record and aliases and materials of that nature intended to show that he had other enemies. Because of the provisions of section 84 of the Extradition Act 2003, any statement about such matters would potentially be likely to be material evidence. There is therefore no reason why the claimant's solicitors should not seek a witness summons themselves to fulfill the duty which they seek to impose upon the CPS.”

Aikens LJ agreed at [22].

In her decision, the district judge described the material sought by Cs in their application as follows:

“1. The domestic CPS's charging decisions, including the decisions not to charge murder or assault.

2. The evidence and allegations adduced by the domestic CPS before the Reading Crown Court.

3. Details of the two defendants detained in Poland.

4. All records, and correspondence, concerning the CPS' liaison with UK police, Polish police and prosecutors, and the CPS Extradition Unit concerning the jurisdiction for Mr Weiss' prosecution.”

In the event, category (2) was not pursued.

The material in question was described in Cs' Statement of Facts and Grounds (SFG) at [6] as:

“material held by [IP1], including the records of the 2023 concurrent-jurisdiction decision-making process.”

In their Skeleton Argument for this judicial review application, the material sought is described as:

“records (decision-making records, minutes of meetings (including in February and June), and briefing notes) concerning the concurrent-jurisdiction decision-making process, excluding Treasury Counsel's advices over which TCCPS asserts LPP.”

and compendiously referred to as ‘the concurrent jurisdiction decision-making material’.

IP1 opposed the application, and on 21 March 2024, District Judge Rai sitting at the Westminster Magistrates' Court, heard argument on the applications. She had detailed written submissions and heard from leading counsel for Cs and IP1. The material sought was said to be relevant to the issue of double jeopardy (another bar being relied on by the Cs in the extradition case), as well as forum and abuse, but before us the argument was limited to its supposed relevance to the latter two grounds.

She adjourned the matter to 27 March 2024, whereupon she requested sight of some of the material held by IP1. Following a review of that material, she gave an ex tempore judgment refusing the application in its entirety. It is this decision which is the subject of this challenge. We were told by Mr Smith KC in his Skeleton Argument – and her judgment made clear — that the material that she viewed was limited to the minutes of an internal meeting of CPS lawyers on 29 June 2023 (at which the decision to discontinue proceedings against Cs was taken); two briefing notes compiled prior to that meeting; and the CPS charging decision (known as the MG3) in relation to Cs. Mr Smith said that there had been redaction of passages of material subject to LPP and marking of confidential material in the documents the judge inspected.

We have an agreed note of the district judge's judgment. We can quote the relevant part as follows ( sic):

“In relation to abuse and forum:

• MSKC allegation it was submitted there was bad faith on part of the Judicial Authority and on part of the CPS who have misled the Crown Court in respect of the nationality bar.

• That the CPS and police and judicial authority lied to the Crown Court, to secure jurisdiction amounting to an abuse. It was also submitted that the Crown seek to expose the defendants to a trial in Poland on the basis of evidence inadmissible here, but admissible there.

JSKC: nationality bar was in force at the time of making the decision, that was the understanding of CPS at time and it cannot amount to bad faith. Evidence admissible in one jurisdiction is not abusive, but in line with established case law – prosecutor entitled to consider admissibility regimes and does not amount to bad faith.

I have carefully considered the application, the submissions, and the authorities provided, and for the following...