Tomasz Weiss & Anor, R (on the application of) v Westminster Magistrates’ Court

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.

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:

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.

Section 97(1) of the MCA 1980 provides:

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:

Aikens LJ agreed at [22].

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

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:

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

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 CPScharging 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):

I need to explain two points in relation to this.

Firstly, the reference to the prosecutor’s belief statement are to two letters (one in respect of each C) written by Gregor McGill, a Director of Legal Services with the CPS, dated 15 March 2024 pursuant to s 19B(3)(c) of the EA 2003. I will return to this provision, and to the statements, later.

Second, the reference to the nationality bar. This requires a slightly convoluted explanation but, in simplified terms, is as follows. (The full details are in IP1’s Summary Grounds of Defence (SGD) at [9]-[17] and its Skeleton Argument at [8]-[11]). It refers to the existence (or not) of a bar on Poland extraditing its own nationals to the UK.

In the court below, it was said that IP1 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 Cs, 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:

Cs 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:

They relied on expert evidence of Polish law.

IP1’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.

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’.

IP1 therefore says that the position as set out to Reading Crown Court in March 2023 was correct.

Section 19B provides:

Where it applies, therefore, s 19B requires the district judge to make an assessment of where the interests of justice lie, having regard to the matters in s 19B(3), and only those matters. The analogue of s 19B in cases under Part 2 of the EA 2003 (eg those involving requests from the United States) is s 83A. Both provisions were inserted into the EA 2003 by the Crime and Courts Act 2013.

In Atraskevic v Prosecutor General's Office, Republic of Lithuania [2015] EWHC 131 (Admin), Aikens LJ said at [13]-[14]:

More recently, in Hamilton v Government of the United States of America [2023] EWHC 2893 (Admin), [47]-[53], the Court said of s 19B and s 83A:

In relation to s 19B(3)(c) (belief of a prosecutor, etc), in the present case there were, as I have said, two statements made on behalf of the CPS by Mr McGill as to what his belief was in respect of each of the Cs. The statements were in the form of letters addressed to Westminster Magistrates’ Court. They were in similar terms and were dated on the same date (15 March 2024). Mr McGill was not involved in the decision making process directly but explains that CPS guidance requires that all statements of belief are approved and signed by a Director of Legal Services. His statements were made on the basis of material provided to him. They are quite lengthy, but can be fairly summarised as follows.

The victim was believed to have died on or around 29 November 2021 at an address in Slough, where he lived with the four co-accused, together with the child of one of them. All are Polish nationals. The victim was originally classified as a missing person, and a homicide investigation did not begin until April 2022. By the time that investigation began, two of those living at the house (KW and AN) had returned to Poland. KW (who is female) had been in a relationship with C2. Despite the homicide investigation, there was insufficient evidence to establish how the victim died or who was responsible.

KW and AN subsequently became suspects in a Polish investigation and were charged in Poland with offences which are akin to perverting the course of justice in relation to the victim’s death. In their interviews with the Polish authorities, both KW and AN implicated C1 as the person responsible for the victim’s death. C1 and C2 are said to have separately assaulted the victim at a time before the incident which led to his death.

Mr McGill understood that the position as conveyed to IP1 was that the interview accounts given by KW and AN would be admissible against the Cs in Poland. However, he also understood that the Polish authorities informed IP1 that if proceedings against KW concluded then she could not be compelled to give evidence against C2 due to her previous relationship with him.

In January 2023, the allocated CPS reviewing lawyer authorised charges of perverting the course of justice and preventing a lawful burial against Cs. On 28 February 2023 the extradition warrant for C1 was issued for murder and assault. On 3 April 2023 the extradition warrant for C2 was issued for assault and an offence akin to perverting the course of justice.

In order to keep the court and the defence informed of the state of the continuing UK proceedings, information was provided by way of update to the court and the defence including:

A subsequent decision was made in June 2023 to discontinue proceedings in the UK, on the basis that a prosecution was no longer needed in the public interest as the most appropriate location for all offences to be tried was thought to be in Poland.

I will quote Mr McGill’s ‘Conclusion’ section in his C1 letter verbatim (the conclusion in his letter regarding C2 is virtually identical mutatis mutandis):

In light of this very full document (and its equivalent in C2’s case), in my judgment it is clear why the CPS took the decision to discontinue the domestic proceedings against Cs. 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.

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.

On behalf of Cs, Mr Summers submitted as follows.

He said that the district judge’s decision was vitiated by errors of law and that Cs’ application should be remitted to a different district judge for re-determination. Alternatively, he submitted (at least in writing) that we should inspect the material for ourselves and order appropriate disclosure.

At the heart of Mr Summers’ submissions was the contention (disputed by the IPs) that the material the Cs sought before the district judge as to the process by which the decision in relation to concurrent jurisdiction was reached, are disclosable; are of the type that are always disclosed in extradition cases where forum is in issue; and hence that the district judge somehow took an irrational course in this case by refusing the witness summons. He said there was no transparency in how or why IP1 had reached its discontinuance decision. As he put it orally, ‘transparency has become the orthodox position’.

The four grounds of challenge are (Cs Skeleton Argument, [15]):

As to Ground 1, Mr Summers criticised the judge because he said that the whole focus of the substance of her judgment was the abuse argument. He said there was no recognition at all of the distinct issues under the forum bar and potential relevance of the material to those issues. He also criticised her for only looking at some of the material (and not, for example, material from earlier in 2023 when it is known there were meetings with the Polish authorities) and for not explaining why they were not relevant or why she had not inspected them.

In relation to Ground 2, Mr Summers argued (Skeleton Argument, [34]):

He went on to assert (at [38]) that ‘disclosure of concurrent-jurisdiction decision-making materials occurred, in one form or another’ in the following cases: Government of the United States v Osborne [2022] EWHC 35 (Admin); Lynch v Government of the United States of America [2023] EWHC 876 (Admin); Wyatt v Government of the United States of America [2019] EWHC 2978 (Admin); Socha v District Court, Ostravia (Czech Republic) [2016] EWHC 139 (Admin), Shaw v Government of the United States of America [2014] EWHC 4654 (Admin); Dibden v Tribunal de Grande Instance de Lille (France) [2014] EWHC 3074 (Admin). He said at the end of the same paragraph: ‘In fact, the Claimants are unaware of any case in which a concurrent-jurisdiction decision has been made and not disclosed to the extradition court’, a claim repeated in [44]. Paragraph 42 argued (original emphasis):

In his oral submissions Mr Summers took us to these cases in an attempt to make good his submission. Recognising, I think it is fair to say, that some of them contain passages which at first blush are against Cs’ case, he sought to distinguish them. I will therefore need to examine some of them later.

For now, however, I note the apparent shift in [38] of Cs’ Skeleton Argument from the initial claim about disclosure of materials arising from the process by which a concurrent jurisdiction decision was reached (which is how the case was pleaded and put below and before us as to what should have been produced under the witness summons), to an assertion about disclosure of the decision simpliciter. Reflecting this shift, in his oral submissions Mr Summers said that the decision was all he was seeking. As I noted it, his submission was, ‘I want the record of the decision, nothing more, nothing less.’ He also said: ‘If there were a template record we would just want that’; and (as I understood him) that it would be acceptable if the reasons for the decision were to be disclosed by IP1 in gisted form. This position, however, would appear to be inconsistent with what was said at [53] under the heading ‘Extent of the application’ where again it was asserted that process materials should be disclosed, including going back to February 2023 (and so encompassing discussions with the Polish authorities) and not just the decision taken by IP1 (and only IP1) to discontinue the domestic prosecutions at a meeting here in June 2023. It is also inconsistent with [54] et seq, where confidentiality of discussions with the Poles is argued not to be a reason not to order disclosure. I have considered Mr Summers’ submissions on both bases.

At [49] Cs posed the rhetorical question:

In relation to Ground 3, Cs re-iterated that their case was the extraditions are an abuse of process because they are a deliberate attempt to prosecute them for murder/assault in Poland using evidence from the co-accused in Poland which is admissible against them there, but understood by the IPs not to be so here, and that this amounts to ‘forum-shopping’ which – it is said – is ‘offensive’ or ‘odious’.

The position of IP1 is that the evidence of murder/assault against Cs provided by KW and AN to investigators in Poland would plainly not be admissible or else not admitted in England, being accusations made against them in their absence. At a trial here, they would not become admissible against Cs unless and until KW and AN went into the witness box and repeated them. Unsurprisingly, Polish rules of evidence would appear to be different and the material would be admissible against Cs for murder/assault at a trial there. This is accepted by IP1 (IP1, Summary Grounds of Defence (SGD), [56]).

Cs argue in light of this, there is an ipso facto arguable claim of abuse, and that the district judge gave ‘no sensible reason’ for saying the material sought was not relevant to that argument.

In relation to Ground 4, Cs say the judge erred when she assessed the material by reference to its ‘relevance’. They argue (Skeleton, [68]), that the difference between ’relevance’, and the applicable test of ‘likely relevance’ in the sense of ‘real possibility’, is significant.

Finally, Cs submitted that this is not a case where we could or should apply s 31(2A) of the Senior Courts Act 1981 on the basis that it is highly likely that the outcome for them would not have been substantially different if the conduct complained of had not occurred.

In his Skeleton Argument on behalf of IP1, Mr Smith submitted as follows.

He began by listing the underlying material in IP1’s possession which we might wish to see. It is extensive. It includes, for example: items relating to a Eurojust meeting in February 2023; working notes from that meeting; email correspondence with Poland; briefing notes for the June 2023 CPS meeting at which the decision to discontinue was taken; and the minutes of that meeting.

For reasons which will become clear, I did not need to inspect this material in order to reach my conclusions.

In relation to Ground 1, Mr Smith said the district judge’s ruling and reasons were, assessed in the context of the case, the material she viewed and the submission she heard, proper. She had detailed written and oral submissions from the parties and would have had them well in mind. She measured the material against the bases advanced by Cs for why it should be disclosed. The decision to discontinue proceedings was the June 2023 CPS meeting and precursor notes. The district judge assessed this material and plainly did not accept that the material satisfied the statutory criteria, by reference to Cs arguments. Accordingly, her reasons were adequate.

In relation to Ground 2, he said that in substance what Cs were seeking to do was to obtain internal CPS materials in order to scrutinise the decision to discontinue proceedings in this country, and to challenge the prosecutor’s statements of belief that have been issued in these proceedings by reference to those documents. This is not permissible. This is not to say that these statements have to be automatically accepted. Instead, courts can and do scrutinize them by reference to their reasoning, rigour and consideration of relevant issues. Attempts to obtain witness summonses for the production of such material (or material said to be relevant to other specified factors in s 19B(3)) have failed. The CPSEU have confirmed that the kind of extensive material sought in this case has not been provided in previous cases. The Divisional Court has consistently refused to countenance the sort of application that the Cs have made in this case.

In relation to Ground 3, he said that the witness summons application had been premature and/or academic and that the Tollman process should be gone through at the extradition hearing. There is no dispute about the central facts which Cs say amount to an abuse.

On Ground 4, he said it had been an ex tempore judgment, and a degree of latitude had to be afforded to the district judge. She had viewed the material, and come to the conclusion that there was nothing which would support ‘in any way’ the basis for disclosure. This amounted to the application of the ‘likely to be relevant’ test, or if anything applied a test which was generous to Cs. If there was an error, we should apply s 31(2A) of the Senior Courts Act 1981.

IP2 also resists the claim. In its Skeleton Argument (not settled by Mr Evans), it submitted that courts should not issue a summons for the production of material underpinning a prosecutor’s statement of belief, nor for internal CPS material which is said to be relevant to the forum bar more generally. Such an approach is contrary to s 19B and to the caselaw interpreting s 19B. There is no precedent for the provision of such material in previous cases, as was confirmed in IP2’s response to Cs pre-action protocol letter. Applications for a witness summons to produce material said to be relevant to the specified factors in s 19B(3) are inappropriate generally (and not limited to applications for material underpinning the prosecutor’s belief): see Socha.

Despite Mr Summers’ able, sustained and forceful submissions, I was satisfied at their conclusion that Cs case was not arguable and that permission should be refused. For the substance of the reasons advanced by IPs, and for the following reasons (reached following further reflection), it seemed and seems to me that the whole premise of Cs case on forum – namely that process materials are routinely disclosed in forum cases in the interests of ‘transparency’ – is wrong. I was and am further satisfied that there are a number of cases that are firmly against Cs position. I was and am also satisfied that the other grounds advanced by Cs were not arguable.

Mr Summers posited, given what he said was the paucity of reasoning on the part of the judge, that it was to be inferred she had accepted IP1’s submission that Socha foreclosed his application, at least on forum. He said if that is what she had done, she had been wrong. I am of the view, which I shall explain, that far from being wrong, the district judge was right, and indeed on one view adopted an approach to forum which was more favourable to Cs than is warranted by the cases in as much as she inspected the material for relevance, when it would have been open her to say that the cases establish that defendants are not entitled to the type of material sought (save perhaps in an exceptional case); hence it was not ‘likely to be material evidence’ within the meaning of s 97 of the MCA 1980; and thus that the summons application should be refused.

I begin by making the preliminary point, if my Lord agrees, that we are not concerned with the merits of Cs’ forum or abuse of process arguments. Whilst we probed aspects of them in our questioning of Mr Summers, that was done in the firm knowledge that resolution of those issues lies in the hands of the district judge at the extradition hearing (and this court, should there be an appeal thereafter). We are solely concerned with the correctness in law of the district judge’s decision to refuse the application before her.

The district judge was faced with a wide-ranging application for material relating to the decision making process by which the CPS made its ultimate decision in June 2023 to discontinue the domestic proceedings, and not just an application for the decision itself made at the CPS meeting in June 2023 (at which, we are told, no Polish prosecutors were present). For our purposes, this was said to be likely to be material evidence in relation to forum and abuse of process.

Paragraph 20 of Cs’ Skeleton Argument below said:

Paragraph 29 asserted:

There are a number of decisions of this Court which have rejected applications for production of the type which Cs made.

I begin with Socha, a decision of this Court (Burnett LJ and Irwin J (as they then were)). The leading judgment was given by Irwin J. This was an appeal against a decision of 6 August 2015 taken by District Judge Blake sitting in the Westminster Magistrates’ Court to order the extradition of Mr Socha to the Czech Republic, and a challenge by way of judicial review to a linked decision by District Judge Purdy, made on 29 June 2015, to refuse a witness summons to compel attendance at court and production of material by a police officer responsible for an English investigation into offending by Mr Socha. The Court said that in each case the point at issue was the proper approach to s 19B(3)(d). The offences in question were trans-national drugs offences.

During the proceedings, the CPS served a record of their ‘decision on concurrent jurisdiction’, announcing that no further criminal proceedings would be prosecuted in England, and that the better course would be for prosecution to follow in the Czech Republic. The document followed broadly the matters set out in s 19B(3). It was signed by a reviewing prosecutor.

From this, I take it that the document served was broadly similar to Mr McGill’s statements in the present case, albeit that its title was different and Mr McGill was (as he accepted) not involved in the decision to discontinue the domestic prosecutions.

In relation to the witness summons, Irwin J said at [18]:

Despite the qualification towards the end of this paragraph, I think it is tolerably clear that what was being sought was not wholly dissimilar to the process material sought by Cs in their application below.

At [20] Irwin J said:

Having referred in the previous paragraphs to the need for extradition to be swift and effective, Irwin J noted at [31] that Aikens LJ had observed in Atraskevic, [10], that although s 19B was a purely domestic provision, not reflected in the EU legislation on the European arrest warrant, nonetheless, there was no basis for reading the safeguards in such a way that would subvert the mutuality and effectiveness of extradition and that, ‘The importation of extensive secondary litigation would have that effect.’

He went on to say at [32]-[37], and this was the crux of his judgment:

I regard this decision as conclusively against Cs’ case for production of process material on the basis it was likely to be material evidence in relation to the issue of forum. It shows that it was not and could not be, because such material has no proper role to play in the evaluation of the specified matters in s 19B(3). I reject Mr Summers’ attempt to distinguish Socha including on the basis that there had been service of a ‘decision on concurrent jurisdiction’, and in the present case (he said) there had not. In fact, as I said earlier, Mr McGill has given a very full explanation of why the decision was taken. Whilst his statements were titled differently and not in a standard CPS template format (a point made by Mr Summers), they served the same functional purpose. There is also no basis for any suggestion Socha is somehow wrongly decided.

It is possible to cite passages from other authorities which are also against Cs’ case.

In Piotrowicz v Regional Court of Gdansk, Poland [2014] EWHC 3884 (Admin), forum had been raised as a bar before the district judge and rejected. The case was an appeal against that decision. Criticisms were made of the refusal by the CPS of disclosure of case files (see at [15]). Irwin J said at [21]-[24]:

It seems to me that this passage, and the quoted passage from Dibden, are also plainly against Cs’ case. Mr Summers made observations about Dibden, and I acknowledge it was an early decision on s 19B, as he said. However, I respectfully consider that Simon J should be taken to have meant what he said and that the thrust of his dictum in [35] is clear.

On the secondary litigation point, it is clear to me that what the witness summons in the present case was aimed at was the production of material with a view to its deployment to undermine Mr McGill’s stated conclusions. So, for example, [34] of Cs’ Skeleton Argument said:

Paragraph 49 said:

Although Mr Summers disavowed the suggestion, it is easy to see where the disclosure sought could lead. Suppose the minutes of the CPS June 2023 meeting were disclosed and they showed that some present thought the domestic prosecutions should continue, and that extradition would not be in the interests of justice. What then? One possibility is that it would trigger applications for summonses for their attendance for them to be questioned on whether they agreed with Mr McGill and if not, why not. The aim would be to show that they were right and he was wrong. If for some reason that did not happen, then no doubt an abuse of process application would follow. Or suppose communications with Poland were disclosed and they revealed differing views from prosecutors there about what should happen. Would this trigger requests for further information from Poland? If so, this again could lead into a thicket of issues.

We were also taken to the case of Shaw by Mr Summers, and he cited it to support his argument that transparency required the disclosure sought. However, again, I do not consider it assists him. There, the prosecutor’s belief had first been presented in a letter from a (named) CPS lawyer, and then via counsel appearing on behalf of the Government on the basis of instructions emanating from other counsel and an unnamed CPS lawyer. As recorded by the Court at [44]:

Of this process, the Court commented at [56]-[57] (my italics):

The Court went on at [58]-[59]:

In my judgment these paragraphs provide no support either for the proposition that there has to be an actual record of the decision on concurrent jurisdiction before the court where forum is raised, let alone that there can or should be wide-ranging disclosure of underlying process documentation so that the merits of the belief can be tested.

As to the first point, adducing the record of the decision is just one way of putting a prosecutor’s belief before the court. But the words I have italicised in [56] contemplate that it is sufficient if the decision is explained in a document with reasons. There is no suggestion that this has to be from the person who took the decision, and the reasons why are obvious: that person may have retired, died, moved departments, etc. Read with [58]-[59] it is sufficient that there is such a document akin to a decision letter, from a named person who is a prosecutor in the sense explained by the Court at [48]:

As Mr McGill made clear, it is CPS policy that prosecutor’s belief statements have to come from a Director of Legal Services who, I take it, will in many cases not have been involved in the decision making process.

I consider that Mr McGill’s letters in the present case satisfied these requirements. It will be open to Cs to say that they do not. They will no doubt suggest, for example, that because he was not involved in the decision, his views ought to carry no weight. If they are right about this, or any other argument, then the district judge will discount the weight to be given to his views appropriately. As the court in Shaw said at [53]:

On this point, the Divisional Court in Hamilton said at [86]:

As for other cases to which we were referred, I consider that they did not provide any assistance to Cs’ case. They did not bear out the proposition that process materials are disclosable, let alone that they are always disclosed. The following illustrate this.

In Wyatt the CPS served a prosecutor’s statement of belief (which contained a quoted section from the prosecutor’s earlier review note), along with a copy of the indictment and the sentencing note from the domestic case. There was no service of any other supporting documents relating to the decision making, such as the original review note, records of meetings or internal briefing notes.

In Osborne the prosecutor’s belief in the extradition proceedings was provided by way of two ‘records of a decision on concurrent jurisdiction’, ie, there had been two decisions made at different times by the same prosecutor (see at [8]). Both were put before the district judge ([22]) and, on appeal, Lane J compared and considered both statements in assessing the weight to be given to the latter (see [52]-[53] and [78]).

In Hamiltona statement was provided by a different prosecutor (a Ms Graves) to the prosecutor who had previously been involved in the underlying investigation; Ms Graves had not considered the available evidence. No underlying material was provided to the Court or the defence and there was no application for such material. The fact that Ms Graves had not been involved in the investigation was a factor which diminished the weight to be attached to her statement of belief (see at [88]), however there is no trace in the judgment that this should have triggered the sort of disclosure sought in the present case.

In Lynch (where I was part of the Court), as Mr Summers reminded us, a statement from the SFO was provided but no underlying material accompanied it, nor was sought.

In short, I consider that there is no support in the case law or the statute for the submission that because the district judge will need to assess the weight to be given to the statement of the prosecutor’s belief, this should be a trigger for underlying materials including, in this case, internal CPS meeting notes, and details of confidential meetings with foreign prosecutors.

I also agree with IP1’s submission (Skeleton Argument, [32]) that it is clear that in different cases, the district judge has been provided with a statement from a prosecutor or a record of decision on concurrent jurisdiction which served the same purpose. There is no support in the case law for the proposition that, where a prosecutor’s statement of belief is provided but no ‘record of decision on concurrent jurisdiction’ is provided, then disclosure of underlying materials is triggered.

It follows that I consider that the district judge did not err in law when she refused the application in relation to forum. She was right to conclude, as she did in substance, that there was no basis in law for disclosure based on the forum argument. There may have been a shorter route to the conclusion which the judge reached, principally Socha, but it was the right conclusion, and that is what is important. As I remarked earlier, the judge was perhaps more generous to the defence by inspecting some of the material than she needed to be. The application was contrary to settled law, even without the material being inspected in whole or in part. That is why I, for my part, did not need to inspect it.

Ground 2 therefore fails.

I turn next to Ground 3. So far as disclosure on the basis of abuse was concerned, in my view the judge was again plainly right to refuse the summons.

Before any disclosure obligation arises in connection with an alleged abuse of process in an extradition case the defendant must make an arguable case that there has been abusive conduct. In other words, they must show that something may have happened that is arguably abusive. In Tollman the Court said at [84] (my italics):

The Court then analysed the process that should be followed by way of disclosure following from that preliminary showing. It then said at [93]:

In this case, Cs chose to make their allegation of abuse not at the extradition hearing, but on an interlocutory witness summons application. Their case was pitched clearly and strongly, namely, that this is a case of bad faith verging on dishonesty. Paragraph 8 of their Statement of Issues stated:

Paragraph 19 of its Skeleton Argument below put the matter as follows:

Paragraph 10(b) as referred to said:

The district judge’s ruling referred to Cs’ thesis in the following terms:

In other words, per Tollman, the district judge did not consider on the basis of the materials and argument then before her that there was reason to believe that an abuse may have taken place. She was entitled to reach that conclusion. That being so, no further enquiry was required at that stage and she was right to refuse the application on the basis of abuse.

It should not be overlooked that very many of the facts relating to the suggested abuse are agreed. IP1’s Skeleton Argument at [44]-[45] makes clear the facts that have been conceded by it in Mr McGill’s statements; in correspondence for this claim; and in submissions in the court below. The parties agree that IP1 discontinued the prosecution in the UK for offences of perverting the course of justice and preventing lawful burial, in order that the Cs might be prosecuted in Poland for conduct arising from the same incident including (in the case of C1) a homicide offence. When doing so, IP1 knew that the Polish authorities could rely on the evidence of two co-accused individuals in Poland, and that this evidence would either be inadmissible or not admitted in England. This is said by the Cs to be abusive.

It therefore seems to me that Cs have what they need. It is open to them to argue abuse at the extradition hearing and the judge will go through the Tollman procedure including deciding, first, whether there is reason to believe that an abuse may have taken place in the manner alleged.

Ground 3 therefore fails. The judge was right to refuse the summons on the basis of alleged abuse. As already indicated, but for the avoidance of doubt, nothing in this judgment should be taken as indicating my view one way or the other about the merits of the abuse argument.

So far as Ground 1 is concerned I consider that the judge’s reasoning was not inadequate. The reasons for her decision can be understood when read in light of the submissions made to her and the materials before her, which is how the adequacy of reasons is to be assessed: see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, [26]:

But in any event, given the judge was right in my judgment as a matter of law to refuse the summons, this ground is, in a sense, now academic.

So far as Ground 4 is concerned, it is right that the judge referred to ‘relevance’ rather than the statutory test in s 97 of ‘likely to be material evidence’, however I regard this as an immaterial slip given that, in any event, the judge was right in law for the reasons I have given to reject the application.

I agree.