Socha v District Court Ostravia (Czech Republic) & Ors

The forum bar in section 19B of the Extradition Act 2003 must be applied consistently with the European arrest warrant system’s principles of mutual recognition, speed and effectiveness. Section 19B(3)(d) does not ordinarily require extensive disclosure or satellite litigation about material held by prosecuting authorities. The question whether evidence is or could be made available in the United Kingdom is only one specified matter within the overall interests-of-justice assessment. It does not create a route to bypass ordinary criminal disclosure rules or to obtain review of a prosecutor’s decision not to prosecute. Disclosure will be justified only in compelling specific circumstances.

The appellant appealed against a Westminster Magistrates’ Court decision ordering his extradition to the Czech Republic on drug-trafficking allegations. He also sought judicial review of a refusal to issue a witness summons requiring an NCA officer to attend and produce material from an English investigation.

The domestic investigation had not resulted in a charge. The CPS considered that prosecution should take place in the Czech Republic, where the investigation was more advanced and much of the evidence was located. The central issue was the proper approach to section 19B(3)(d) of the Extradition Act 2003, concerning evidence necessary to prove a corresponding offence being or becoming available in the United Kingdom.

1. The appeal was dismissed. The refusal to issue a witness summons and the extradition decision were upheld.

2. The court began with the mutual-recognition principle underlying the European arrest warrant system. The domestic safeguards introduced by section 19B did not justify an interpretation that would undermine a system intended to remain swift and effective. Extensive secondary litigation about individual specified matters would be inconsistent with that structure.

3. Section 19B(3)(d) requires consideration of whether evidence necessary to prove an offence corresponding to the extradition offence is or could be made available in the United Kingdom. It is not a freestanding disclosure regime. The evidence issue is one of a range of matters relevant to the overall interests-of-justice judgment. 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), although concerned with section 19B(3)(c), provided useful guidance because similar considerations arose.

4. Ordering disclosure would risk satellite disputes about confidentiality, public interest immunity and legal professional privilege. It could also give an accused access to witness statements and unused material before the ordinary disclosure stages prescribed by statute and the Criminal Procedure Rules. Section 19B(4) confirmed that Parliament intended regard to be had to restrictions on disclosure abroad; it was implausible that Parliament intended ordinary English disclosure limits to be bypassed.

5. The proposed disclosure would also require the district judge to review the CPS decision not to prosecute in England. The courts have a well-established reluctance to interfere with decisions of properly constituted prosecuting authorities: R v DPP ex parte Manning, [2001] QB 330; R (Purdy) v DPP, [2010] 1 AC 345; and R v DPP ex parte Kebilene, [2000] 2 AC 326.

6. The application for disclosure was ill-founded. The district judge was right to reject it, and the remaining grounds of challenge did not undermine the extradition order.

• High Court (Administrative Court): the court dismissed the appeal against the Westminster Magistrates’ Court extradition order. The linked challenge concerning the witness summons was rejected in substance.
• Westminster Magistrates’ Court: District Judge Blake ordered extradition on 6 August 2015. District Judge Purdy refused the witness-summons application on 29 June 2015.