Extradition hearing – European Arrest Warrant – Appellant being arrested pursuant to European Arrest Warrant
Assange v Swedish Prosecution Authority: SC (Justices of the Supreme Court, Lords Phillips (president), Walker, Brown, Mance, Kerr, Dyson, Lady Hale): 30 May 2012
On 2 December 2010, the respondent Swedish Prosecution Authority issued a European Arrest Warrant (the warrant) requesting the arrest and surrender of the appellant. The appellant was, at that time, in England, where he remained at the time of the instant hearing. The offences of which he was accused and in respect of which his surrender was sought were alleged to have been committed in Stockholm against two women in August 2010. They included sexual molestation and, in one case, rape. At the extradition hearing before the senior district judge, and subsequently on appeal to the Divisional Court, he challenged the validity of the warrant on a number of grounds. One of the grounds was that the warrant had been issued by a public prosecutor who was not a ‘judicial authority’ as required by article 6 of the Council of the European Union framework decision on the European Arrest Warrant and surrender procedures between member states of the European Union 2002/584/JHA (the framework decision) and by sections 2(2) and 66 of the Extradition Act 2003. He argued that a ‘judicial authority’ had to be impartial and independent both of the executive and of the parties and, as prosecutors were parties in the criminal process, they could not be independent and impartial. If, contrary to that argument, prosecutors could issue warrants under the framework decision, then the appellant contended that they fell outside the definition in the act, as it was clear that parliament had intended to restrict the power to issue warrants to a judge or court. Following his unsuccessful challenge, the appellant appealed to the Supreme Court.
The issue was whether a warrant issued by a public prosecutor was a valid warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the 2003 act. The respondent submitted, inter alia, that the phrase ‘judicial authority’, in the context of the framework decision, and other European instruments, bore a broad and autonomous meaning. It described any person or body authorised to play a part in the judicial process. The term embraced a variety of bodies, some of which had the qualities of impartiality and independence and some of which did not. In some parts of the framework decision the term ‘judicial authority’ described one type, in other parts another. A prosecutor properly fell within the description ‘judicial authority’ and was capable of being the judicial authority competent to issue a warrant under article 6 of the framework decision if the law of the state so provided. ‘Judicial authority’ had to be given the same meaning in the 2003 act as it bore in the framework decision. Consideration was given to the 1969 Vienna Convention on the Law of Treaties.
The appeal would be dismissed (Lady Hale and Lord Mance dissenting).
‘Judicial authority’ in part 1 of the act should be accorded the same meaning as it bore in the framework decision, and that term was properly to be understood as including public prosecutors (see ,  of the judgment).
The purpose of the framework decision was to introduce a system of surrender between judicial authorities for those accused or convicted of serious criminal offences which required each of the member states to give a uniform interpretation of the phrase ‘judicial authority’. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permitted recourse, as an aid to interpretation, to ‘any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation’. When one considered the draft September framework decision, it was beyond doubt that ‘judicial authority’ was a term that embraced both a court and a public prosecutor. Although the precise definition of ‘judicial authority’ was removed from the final draft, the overall scheme of the warrant did not change from that proposed in the September draft.
In particular there remained a requirement for an antecedent process before the issue of the warrant. Article 2, under the heading ‘Scope of the European Arrest Warrant’ set out the offences in respect of which a warrant could be issued. Article 8 specified the content of the warrant, which included ‘(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2.’ There could be two possible reasons for removing the precise definition of ‘judicial authority’ that had been included in the September draft. The first was to restrict the meaning by excluding from its ambit the public prosecutor. The second was to broaden the meaning so that it was not restricted to a judge or a public prosecutor. The second explanation was the more probable. Further, there was a strong presumption in favour of interpreting an English statute in a way which did not place the UK in breach of its international obligations (see , , , , , ,  of the judgment).
In the instant case, the respondent judicial authority which had issued the warrant had been a ‘judicial authority’ within the meaning of that phrase in section 2 of the 2003 act and therefore the appellant’s challenge to the validity of the warrant failed (see  of the judgment).
Decision of Divisional Court  EWHC 2849 (Admin) affirmed.
Dinah Rose QC, Mark Summers and Helen Law (instructed by Birnberg Peirce & Partners) for the appellant; Clare Montgomery QC, Aaron Watkins and Hannah Pye (instructed by Special Crime Division, Crown Prosecution Service) for the respondent.