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

Applications for witness summonses in extradition proceedings require material that is genuinely likely to constitute material evidence. The forum bar does not ordinarily permit secondary litigation about the internal process by which a prosecutor decided not to prosecute in the United Kingdom, or disclosure of the underlying CPS papers. A prosecutor’s belief may be placed before the extradition judge in a reasoned statement from an appropriate domestic prosecutor. Its weight may be reduced if the reasoning is flimsy, ill-considered, irrational or given in bad faith, but that limited review does not create a right to disclosure of the underlying decision-making material. In an abuse-of-process case, the requested person must first identify the alleged abusive conduct with particularity and show reasonable grounds for believing that it may have occurred.

The claimants were the subject of Polish extradition warrants concerning the death of a man in England. Domestic prosecutions for lesser offences had been discontinued after concurrent-jurisdiction discussions, and the claimants sought a witness summons under section 97 of the Magistrates’ Courts Act 1980 for CPS decision-making records and related correspondence.

A district judge refused the summons after inspecting certain documents. The claimants sought judicial review, alleging inadequate reasons, irrationality, abuse of process and an error in applying the statutory test. The central issues were whether the requested material was likely to be material evidence concerning the forum bar or alleged abuse, and whether the district judge had lawfully refused the application.

1. Permission refused. The court was concerned only with the lawfulness of the refusal of the witness summons, not with the merits of the forum-bar or abuse-of-process arguments.
2. Under section 97 of the Magistrates’ Courts Act 1980, a summons requires material likely to be material evidence and must be in the interests of justice. In appropriate cases the provision may be used in extradition proceedings, but the present application sought extensive process material concerning the CPS decision to discontinue domestic proceedings.
3. The application was contrary to the established approach under Socha [2016] EWHC 139 (Admin). The forum bar under section 19B of the Extradition Act 2003 requires an evaluative judgment based on the specified statutory matters. It does not ordinarily justify secondary litigation into the evidence and internal reasoning underpinning a prosecutor’s decision. Such litigation would create disputes about confidentiality, privilege, public interest immunity and criminal disclosure, and could undermine the intended speed and effectiveness of extradition.
4. A reasoned prosecutor’s belief statement may be sufficient. It need not be the original decision record or come from the prosecutor who made the earlier decision. The statements made by Mr McGill, a Director of Legal Services, explained the relevant considerations and satisfied the requirements identified in Shaw [2014] EWHC 4654 (Admin). The extradition judge may assess the weight of the belief, but underlying CPS materials are not thereby disclosable.
5. For an alleged abuse of process, Tollman [2007] 1 WLR 1157 requires the alleged conduct to be identified with particularity, considered capable of amounting to abuse, and supported by reasonable grounds for believing that it may have occurred. The claimants had not crossed that threshold, so no further inquiry or disclosure was required at that stage.
6. The district judge’s reasons were adequate when read with the submissions and material before her. Her reference to “relevance” instead of “likely to be material evidence” was an immaterial slip. The refusal of the applications was lawful.

• Westminster Magistrates’ Court: District Judge Rai refused the claimants’ applications for witness summonses on 27 March 2024.
• High Court (Administrative Court): Judicial review permission was refused. The Divisional Court upheld the legal basis of the district judge’s refusal.