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

Section 19B 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.”

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

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.

I find this bar fails.”

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 s19B(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.”

As to s19B(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.

As to s19B(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.

As to s19B(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.

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.

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.

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.

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.

As to s19B(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.

As to s19B(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.

As to s19B(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.

As to s19B(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.

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 s19B 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.

For all these reasons, these appeals are dismissed.