AC-2024-LON-002545 - [2025] EWHC 2948 (Admin)

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.”

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.

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.”

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.”

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 Councilof Europe countries are subject to article 6 ECHR and should readily be assumed capable of protecting an accused against an unjust trial.

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.

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.

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.

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.

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

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 s19B of the 2003 Act to which I now turn.