England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/02/2016

Mr Justice Irwin :

Introduction

1. This case concerns 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 the Appellant 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 the Appellant.
2. In each case the point at issue is the proper approach to Section 19B(3)(d) of the Extradition Act 2003. The relevant parts of Section 19B read:

"19B Forum

(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—

…

(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;

(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."

Background

3. The facts are drawn from the papers and do not appear to be in dispute.
4. On 20 December 2014, the National Crime Agency ["NCA"] certified a Part 1 warrant issued by Judge Smuk of the District Court in Ostrava, Czech Republic on 18 December 2014 for the arrest of the Appellant/Claimant in relation to a series of drugs offences. The Appellant was arrested in relation to an English domestic criminal investigation on 30 December 2014. This investigation concerned the importation into the UK of Methamphetamine. On the following day the Appellant was arrested pursuant to the EAW and was brought before the Westminster Magistrates. His extradition case was opened and adjourned. The allegation in the EAW is quite detailed, and given the arguments advanced in these linked cases it may be helpful to give some of that detail.
5. The EAW alleges that, for an uncertain period but at least between the beginning of July 2014 until 25 November 2014, the Appellant was involved with:

"a group of offenders operating at least in the Czech Republic, Armenia, Japan, Turkey, Slovakia and England…. Organising methamphetamine imports from Armenia or Turkey to England, or its transport from Armenia to Japan".

The alleged associates in criminality are named. It is alleged that the Appellant instructed others "to arrange couriers for import or transportation of methamphetamine" and sent money for travel expenses and for payment of couriers. It is said the Appellant organised the handover of methamphetamine to the couriers in Armenia and Turkey. It is alleged that the Appellant "instructed the hired couriers travelled (sic) by designated means of transport along specified routes", the drugs being "concealed in suitcases according to prior instructions to target destinations, and this at least to England and Japan". It is alleged that in August/early September 2014, about 2kg of methamphetamine was delivered to Japan and that the Appellant purchased the necessary flight tickets for the drug run. It is further alleged that between 30 September and 11 October 2014 the Appellant, with others, organised the import of 2kg methamphetamine from Armenia to England, for which purpose the Appellant and others met at named premises in the Slovakian Republic to agree the arrangements. It is further alleged that in the period 8 to 22 November 2014, the Appellant, with others, reached an agreement for further imports of 2-3kg of methamphetamine from Turkey to England.

6. Repeatedly in the EAW it is stated that a man named Pallai, one of the key associates of the Appellant, lived and stayed in the Czech Republic. It is alleged that in November 2014, the Appellant sent £2,500 from England to Pallai in the Czech Republic for the facilitation of the importation. Finally, it is alleged that in late November 2014 Pallai flew from Vienna to Turkey, where he contacted a further named man by arrangement with the Appellant, to collect the methamphetamine: in the course of which it is said there was direct communication with the Appellant to facilitate the handover. Shortly after the handover, Pallai and that other man were both arrested and 2.2kg of methamphetamine found.
7. I have summarised the content of the EAW. Although there is some further detail contained in the text, it will already be clear that a reasonably particularised account of the allegations is set out in the warrant. The international nature of the alleged offending is also clear.
8. So far as domestic criminal investigation is concerned, the evidence appears to be as follows. On 30 December 2014, the Appellant was arrested with another man named Stretavski. Stretavski was subsequently charged with importation of methamphetamine, but the Appellant was bailed, and no action was taken against him. We were informed that the Appellant had a first police interview, but there is no evidence as to the content of that interview. It is presumed that he would have been given a taped record of the interview as the law requires.
9. On 29 March 2015, the Appellant was arrested for conspiracy to import Class A drugs and interviewed a second time. Produced in evidence is a document entitled "Record of Pre Interview Briefing" relating to this interview. Despite the fact that the document is marked "Restricted (when complete)" it seems clear that the completed document was given to the Appellant's solicitor on the day of interview, since the copy in the Court's hands has manuscript markings which are said to be those of the solicitor.
10. The document begins:

"Mr Socha is suspected of being involved in the organisation and facilitation of smuggling metamphetamine from Turkey into the UK and on to Japan."

A number of individuals are said to be linked to the Appellant, including Pallai and Stretavski. There are then short details of the questions to be asked.

11. Admitted in evidence before the District Judge was the Appellant's proof of evidence, signed and dated by him on 4 March 2015. It is not clear when this statement was filed and served. In paragraph 36 and following he deals with some of the people named in the EAW and his role in the alleged offending. It is not necessary to repeat the detail. The statement admits many of the allegations in the EAW, although he does not accept the case as put. He does admit engagement in international import and export of drugs.
12. On 25 March, the Appellant's solicitors issued an application for a witness summons in the extradition proceedings, seeking an order compelling DC Ian Revell of the NCA to attend Court and produce the evidence arising from the domestic investigation. This was not pursued at that stage. The hearing in the extradition proceedings scheduled for 31 March was vacated by consent, since the domestic investigation was still on foot.
13. On 29 May, the Crown Prosecution Service 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 follows broadly the matters set out in Section 19B(3) of the Extradition Act 2003. It was signed by a reviewing prosecutor, a Mr James.
14. Key points in the decision were as follows. The planned destination for the drugs "appears to be Japan", with the UK amongst other countries being "transit locations". The evidence gathered in the UK was "not extensive" and the bulk of the evidence came from other jurisdictions. Mr James understood that the Czech authorities had obtained evidence from Germany and Slovakia, and that requests were outstanding to Turkey and the UK. The Czech evidence already obtained was extensive, including many telephone intercepts in the Czech language. Three other named defendants were already in custody in the Czech Republic. The Czech investigation was "advanced". Prosecuting the proposed defendant in England would cause considerable delay. The prosecutor then went on to say:

"A decision has not been made at this stage to charge Ludovit Socha in this jurisdiction. On the existing evidence there is insufficient evidence presented to me as the reviewing lawyer to charge Socha at this stage. This is in direct contrast to the apparent position in the Czech Republic."

15. The prosecutor went on to emphasise the international nature of the criminal activity, the presence of three other suspects in the Czech Republic, the importance of Czech language evidence and the need for comprehension of Czech by the relevant tribunal, all supporting the proposition that the case should be heard in the Czech Republic.
16. On 10 June, in answer to their request, the Appellant's solicitors were informed that the CPS would provide no further information. On the same day the application for a witness summons was renewed.
17. DJ Barrie refused the application, although leaving open a possible renewal if written submissions were made.
18. Although the initial application had been very bald, subsequent written submissions made it clear that the application was focussed on Section 19B(3)(d), and the question whether evidence necessary to prove the offence was or could be made available in England. It was submitted that the Appellant was at a significant disadvantage in addressing this "specified matter", since he had no access to the material forming the basis of the decision not to proceed with an English prosecution. There should be "equality of arms" on the point. It was still not made clear what documentation was sought, in the sense of witness statements, exhibits or "unused material", whether exclusively English, or foreign, or both.
19. At that stage DJ Purdy took over the case, and adjourned the application to enable the NCA to make representations, if they chose. On 26 June, a lawyer from the NCA emailed the Appellant's solicitors stating:

"For the avoidance of doubt: (1) It remains unclear as to what documents/information you precisely require and why (2) In any event you are already in possession of all the material you are entitled to have at this stage (3) You are not entitled to sensitive operational documents (should such documents exist). Mr Revell shall not be attending on Monday and the NCA shall not be sending any legal representation."

20. DJ Purdy refused the application on 29 June 2015. He was referred in the course of argument to three authorities: Dibden v Tribunal de Grande Instance de Lille, France [2004] EWHC 3074 (Admin), Piotrowicz v Regional Court in Gdansk, Poland [2004] EWHC 3884 (Admin) and Atraskevic v Prosecutor General's Office, Lithuania [2015] EWHC 131 (Admin). These cases bear directly on Section 19B(3)(c) and the consideration of prosecutorial "belief" as to forum, but DJ Purdy took those authorities to be "strongly analogous" to the issue under Section 19B(3)(d), and as pointing against further disclosure.
21. The full extradition hearing took place on 10 July. On 6 August DJ Blake handed down a reserved judgment ordering extradition. In addressing the forum bar and section 19B(3), the district judge took each subparagraph in turn. It must be borne in mind that these are not discrete bars to extradition, but the specified matters to which the judge must have regard when considering whether extradition would not be in the interests of justice (Section 19B(2)). In relation to Section 19B(3)(d), the District Judge said simply:

"(d) Were the RP to be prosecuted in the UK could the evidence be available in the UK?;-

It is submitted that there is a substantial body of evidence in the UK.

The JA submits in reply that the view of the CPS is that the evidence in this jurisdiction is very limited especially in contrast to the investigation in the Czech Republic. Letters of Request could be made and evidence sought from the Czech Republic but this is not desirable given the other factors in favour of extradition."

22. As indicated, the Appellant appealed, and in addition challenged the refusal to issue a witness summons by way of judicial review. Although other matters were initially raised in the appeal, they have now fallen away. The linked questions of the witness summons and Section 19B(3)(d) encapsulate the case. In order to sidestep what would ultimately be an academic argument as to the propriety of such a challenge by way of judicial review, we agreed to treat the question of evidence as a decisive point in the appeal, bearing on the substantive decision to extradite.

The Parties' Submissions

23. Mr Gledhill for the Appellant began by seeking to distinguish the approach established in the authorities in relation to Section 19B(3)(c) from that which he says is called for by the language of Section 19B(3)(d). There is no good analogy between the subparagraphs, and authority in relation to the one should not guide the approach to the other. Whereas Section 19B(3)(c) is concerned with a subjective matter, the "belief" (or opinion) of the prosecutor, Section 19B(3)(d) is focussed on an objective question: "whether evidence necessary to prove [an offence corresponding to the extradition offence] is or could be made available in the United Kingdom". It must be in the interests of justice to permit an Appellant to have access to the evidence, so as to address the point from a position of knowledge not ignorance.
24. Mr Gledhill submitted that was particularly so on the facts of this case. Here there has been an investigation in England and a decision on prosecution here, and on the preferable forum. A defined body of evidence must have been reviewed before that decision was taken. Both the Court and an Appellant's representative must have access to the material. The wording of the subsection calls for an "objective" judgment.
25. Mr Gledhill refined his argument during oral submissions. If the relevant body of material contained matters which were confidential, or in respect of which public interest immunity might properly be claimed, that should not affect the primary obligation to disclose the material. Such specific matters should be addressed on their merits as they arise.
26. Mr Gledhill was asked if he was seeking only the material which "is" in the United Kingdom, or whether he was pursuing disclosure relating to evidence which "could be made available in the United Kingdom"? In the latter case would material held in the Czech Republic (or elsewhere), have to be disclosed? Mr Gledhill stated that his application was limited to the evidence which was already here. I confess I found it difficult to follow why Mr Gledhill made that distinction, or what principle might underpin it.
27. Mr Gledhill conceded that the examination of the material, even if confined to evidence that was already available here, might be an extensive process, in this case and in others. However, such practical considerations should not deflect the Court from an exercise which arose from the language of the statute and was clearly in the interests of justice.
28. Ms Pottle for the Respondent began by entering a note of caution as to whether the domestic proceedings "mirrored" the offending alleged in the EAW. The two investigations were "not really the same" although there were common aspects. It was not established that the witness sought to be summoned could give material evidence about the extradition offence. The Czech investigation was on the face of it wider in scope than the matters considered in England. Thus the potential prosecution did not "correspond" to the extradition offence within the language of the sub-section. That submission could be made out by looking at the "Pre Interview Briefing" communicated to the Appellant, which focussed on a smaller number of individuals and a lesser range of offending.
29. Ms Pottle argued that DJ Purdy was correct in finding that there had been disclosure of all that was necessary. The application, if granted, would mean disclosure of material to the Appellant which, if he were prosecuted in England, he would either not be entitled to until a much later stage in the proceedings, or would not be entitled to at all. Such an approach would be likely to compromise the security of "operational" material. She affirmed that the approach to Section 19B(3)(c) as laid down in the authorities already cited was a good analogy for the approach here, and the District Judge had been right to rely upon those cases.

Analysis

30. It is important to begin with basic principle. The fundamental approach underpinning the system of European Arrest Warrants is of mutual recognition of the acts of judicial authorities in Category 1 territories. The Czech Republic is a designated Category 1 territory for the purposes of Part 1 of the Extradition Act 2003. Although Section 19B introduced some additional safeguards to the system, that change in no way undermines the fundamental principle of mutuality. It must still be taken to be Parliament's intention that the system is swift and effective. This intention is detectable in the tight time limits laid down in Sections 6, 8, 35 and 36 of the Extradition Act 2003, reflecting the provisions of the Framework Decision of 2002, and by the decision of the UK to "rejoin" many of the non-Schengen measures forming part of and affecting the system of the European Arrest Warrant, laid before Parliament in Cm 8671 of July 2013.
31. As Aikens LJ observed in Atraskevic (paragraph 10), Section 19B was inserted into the Act by the Crime and Courts Act 2013. The section was not based on either of the relevant EU framework decisions and the statutory provisions are thus purely domestic in origin. Nevertheless, in my judgment there is no basis for reading the safeguards in such a way that would subvert the mutuality and effectiveness of the system. The importation of extensive secondary litigation would have that effect.
32. Were the Appellant to succeed in his application for a witness summons or in his submissions as to the proper approach to evidence in this case, extensive secondary litigation would become inevitable. It would first be necessary to receive an account of the evidence and/or other material held by the CPS when making the decision not to conduct an English prosecution. It is clear there could be extensive argument about what should or should not have been produced. It is likely that important questions of confidentiality, public interest immunity and legal professional privilege would arise. All that is so, even were the application to be confined, as Mr Gledhill says he intends, to English rather than foreign material. For myself, I find it difficult to see how, if such an approach was indeed appropriate in relation to English material, it would not very rapidly emerge that there was an application to see foreign material. The argument would be that it was necessary to see what material might be made available in the United Kingdom.
33. It is also worth re-emphasising that the question of evidence in the United Kingdom is only one of the range of matters which a district judge has to consider in the course of the overall decision as to the justice of extradition. In the absence of compelling specific circumstances, it seems to me that the structure of Section 19B itself points against extensive secondary litigation as to the individual "specific specified matters" which must be considered. For all those reasons, I take the view that the decision of the Divisional Court in Dibden, my own judgment in Piotrowicz, and the decision of the Divisional Court in Atraskevic, whilst not direct authority on this subsection, do represent useful guidance when interpreting the approach to Section 19B(3)(d). Similar considerations arise in each case.
34. However, it seems to be that there are at least two additional serious problems with the submissions made by Mr Gledhill. The first concerns the effect on disclosure if such an application were to succeed and subsequently extradition were refused in favour of English prosecution. The outcome would be that an Appellant such as this would have subverted or bypassed the careful arrangements for disclosure in criminal proceedings laid down in statute and in the Criminal Procedure Rules. Set aside any question of operational material, or material subject to the legal professional privilege of the Crown: the Appellant would have obtained sight of the existing witness statements and potentially the "unused material", whether inculpatory or exculpatory, before he had even been charged, never mind served a defendant's case statement which, in the normal course of criminal proceedings, would be necessary before much of such disclosure would be triggered. It can hardly have been the intention of Parliament to override the criminal law and Criminal Procedure Rules in that way.
35. In this context Section 19B(4) is relevant. For convenience I repeat the wording here:

"(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."

In my view it is inconceivable that Parliament could have intended to protect the normal rules governing disclosure in criminal proceedings in a relevant foreign jurisdiction, whilst intending to abrogate the limits on disclosure in England and Wales. If that is right, then a further argument would arise from an application such as that made by the Appellant. The Crown could legitimately argue that the Appellant should have no more disclosure than that to which he would be entitled under normal English criminal law and procedure. Unless that argument failed, the outcome of the application would be a circularity.

36. A further difficulty arising from this application was conceded by Mr Gledhill in the course of argument. He agreed that the outcome of his approach would mean, on the facts of this case at least, the district judge would be asked to review the decision by the appropriate prosecutor not to instigate a prosecution in this jurisdiction. As I have set out above, there was in this case a clear decision not to proceed. There is no need to rehearse the well-established reluctance of the Courts to interfere with the decisions of properly constituted prosecution authorities: see R v DPP ex parte Manning [2001] QB 330, at paragraph 23; R (Purdy) v DPP [2010] 1 AC 345, at paragraph 99; R v DPP ex parte Kebilene [2000] 2 AC 326.
37. For all the above reasons, in my judgment the application for disclosure made by this Appellant was ill-founded. The district judge was entirely right to reject it. Given that the Appellant now maintains no other criticism of the decision of DJ Blake, I therefore dismiss the appeal. I should add for completeness that, given the other material before the magistrates' court bearing on the other "specified matters" under Section 19(B), it seems to me that there was a very strong basis for the Court's decision that the interests of justice favoured extradition and trial in the Czech Republic.

Lord Justice Burnett:

38. I agree.