Public prosecutor can issue arrrest warrant

Supreme Court

Published June 19, 2012

Assange v Swedish Prosecution Authority

Before Lord Phillips of Worth Matravers, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance, Lord Kerr of Tonaghmore, Lord Dyson and Lord Brown of Eaton-under-Heywood

Judgment May 31, 2012

A European arrest warrant issued by a public prosecutor was a valid Part 1 warrant issued by a “judicial authority” within the meaning of section 2(2) of the Extradition Act 2003.

The Supreme Court so held, Baroness Hale and Lord Mance dissenting, when dismissing Julian Assange’s appeal from the Queen’s Bench Divisional Court (Sir John Thomas, President of the Queen’s Bench Division, and Mr Justice Ouseley) which, on November 2, 2011, dismissed his appeal from Senior District Judge Riddle, sitting at the City of Westminster Magistrates’ Court on February 24, 2011, who directed his extradition to Sweden following the issue of a European arrest warrant by the Swedish Prosecution Authority in respect of alleged offences including sexual molestation and rape.

After judgment was given counsel for Mr Assange was granted a stay of 14 days in which to consider whether to apply to reopen the decision. On June 14, 2012, the Supreme Court dismissed the application.

Ms Dinah Rose, QC, Mr Mark Summers and Ms Helen Law for Mr Assange; Ms Clare Montgomery, QC, Mr Aaron Watkins and Ms Hannah Pye for the authority.

LORD PHILLIPS referred to Part 1 of the 2003 Act and the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between member states.

The phrase “judicial authority” was used in various places in the Decision and in particular in article 6.1 where it provided that the issuing judicial authority was to be the judicial authority of the issuing member state which was competent to issue an arrest warrant by virtue of the law of that state.

Ms Rose contended, that “judicial authority” had to be some kind of court or judge: it had to be a person who was competent to exercise judicial authority, such competence requiring impartiality and independence of both the executive and the parties. In Sweden the prosecutor remained a party in the criminal process against Mr Assange and could not qualify.

Ms Montgomery contended that the phrase, in context, bore a broad, autonomous meaning, describing any person or body authorised to participate in the judicial process. Some, but not others, would have qualities of independence and impartiality.

His Lordship had read with admiration Lord Mance’s analysis of the effect of Criminal proceedings against Pupino (Case C-105/03) (The Times July 14, 2005; [2006] QB 83) and accepted that, for the reasons he gave, it did not bind the Supreme Court to interpret Part 1 of the Act, in so far as possible, in a manner that accorded with the Decision.

But the court should plainly do so; not merely because of the presumption that domestic law would accord with the United Kingdom’s international obligations. Part 1 had been enacted to give effect to the Decision.

The immediate objective of the Decision had been to create a single uniform system for surrender of those accused or convicted of the more serious offences. That objective would only be achieved if states gave the same meaning to “judicial authority”.

It was hard to conceive that Parliament, in breach of the UK’s international obligations, had set out to pass legislation at odds with the Decision; and even more difficult to conceive that it had done so without making that plain.

The requirement to give the phrase the same meaning in the Act as in the Decision should resolve any ambiguity in the statutory language.

The approach to interpretation of the phrase in the Decision itself had to be acceptable to all member states who had to strive to identify a uniform meaning.

The Decision had not set out to build a new extradition structure, but to remove from it the diplomatic or political procedures encumbering it. The objective was that the process should involve direct co-operation between the authorities responsible on the ground for the process.

Under the Decision draft of September 2001 it was beyond doubt that “judicial authority” embraced both a court and a public prosecutor. While it was a precondition to the issue of a valid arrest warrant that there had been an antecedent process leading to an enforceable judicial decision involving a deprivation of liberty, there was nothing to indicate that the subsequent decision to issue an arrest warrant might not be taken by a public prosecutor.

The December amendment, which formed the basis of the final Decision, obfuscated the position. The “issuing judicial authority” and “executing judicial authority” in the final version were no longer defined as being a judge or public prosecutor.

There were two possibilities as to the effect of the changes: either the meaning was to be restricted to exclude a prosecutor or it was to be broadened so that it was not restricted to a judge or prosecutor.

His Lordship considered the latter the more probable. The manner in which member states, the Commission and the Council had acted after the Decision had taken effect had been in stark conflict with a definition restricted to a judge. Subsequent practice was a legitimate guide to interpretation.

Prosecutors were designated as the issuing judicial authority in a number of states and that practice had not been criticised in the reports made by the Commission and to the Council on the operation of the system.