Feb-June 2012 Supreme Court

On 14 June 2012, the British Supreme Court rejected Julian Assange’s 12 June application to reopen the case. Five days later, he sought applied for protection from a politically motivated persecution in the United States in Ecuador’s embassy in London. Mr. Assange was given 14 days by the Court to appeal to the European Court of Human Rights. The Crown Prosecution Service (CPS) however attempted to cancel his period of application, so that he would have to go into custody immediately and lose his right to appeal in the UK.

Appeal to re-open the case

Mr. Assange submitted on 12 June 2012 an argument that his case should be reopened before the Surpeme Court, because the judgment of the majority opinion rested on an argument that the parties had not had an opportunity to argue.

This is the Appellant’s application for that judgment to be set aside, and the appeal reopened, on the ground that the decision of the majority was reached on a basis which was not argued before the Supreme Court, and on which the Appellant was accordingly not given a fair opportunity to be heard.

In the submission to reopen the case, it was argued that:

"...the right of each party to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is...one of the most fundamental rules of natural justice...". - Hadmor Productions Ltd v Hamilton, cited in Assange submission to reopen Supreme Court Appeal

- The application includes a request that the Supreme Court corrects the false statement that #Assange "stands charged" in Sweden. The correction sought is of particular importance to the Appellant because this false statement was subsequently reported by the international press.

- The points being made as to the applicability of the Vienna Convention on the Law of Treaties (VCLT) are serious issues in international law. The submission includes a contribution from Prof. James Crawford, an expert in International Law. Prof. Crawford’s contribution has been key in the submission.

"It is notable that, following the hearing, the Court on three occasions wrote to the parties seeking further written submissions on points which the Court was considering including in its judgment, but which had not been argued before it,including elements of the Parliamentary process, and the applicability of Pupino. The applicability and effect of Article 31(3)(b) of the VCLT was not raised even at that stage. It is of particular note that the issues upon which the parties were afforded the opportunity to make subsequent written submissions were ultimately determined against the Respondent. The Respondent thus was afforded an opportunity to make submissions upon new issues which were adverse to the Respondent’s interest. By contrast, the Appellant was afforded no opportunity to make submissions upon the single issue, arising post-hearing, that was to be decided adversely to him, and determinatively so." (Para 20, Submission to reopen Supreme Court appeal, 12 June 2012)

Contents

The Swedish prosecutor is not a judge, nor does she possess or exercise any judicial function (Bell, Judiciaries within Europe, 2006), cited in the submission by the appellant para 23.

Summary of the judgment

Download the full judgment.

View the Supreme Court’s further statement, following Dinah Rose QC’s request for an application to reopen the appeal.

Transcript of judgment by WLCentral and further WLCentral Resources

Source: UK Supreme Court

Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] UKSC 22

On appeal from [2012] EWHC Admin 2849 JUSTICES: Lord Phillips (President), Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Dyson

BACKGROUND TO THE APPEALS The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape.

Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assange’s absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (’EAW’) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(’the Framework Decision’), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (’the 2003 Act’).

Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a ’judicial authority’ as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance.

JUDGMENT The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act.

REASONS FOR THE JUDGMENT

References in square brackets are to paragraphs in the judgment

Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result tobe achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208-217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase ’judicial authority’ [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114-119][160-170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to ’competent judicial authority’ which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155-159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104].

Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase ’judicial authority’ had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161].

Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UK’s international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of ’judicial authority’ in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].

Source: UK Supreme Court

Other News

  • Barbara Gunnell, The Unintended Consequences of the Assange Hearing’, ABC The Drum, 7 February 2012

Submission to the UK Supreme Court for the Appellant Julian Assange

Sweden does not follow the so called "investigating judge model", and Swedish public prosecutors have very strong powers compared with the situation existing in other Member States: They may decide on any kind of measures during investigations, including coercive measures... e.g. phone surveillance, or detention. (European Commission Evaluation Report on Sweden, Doc 99227/2/08 REV 2. October 2008, para 2.1., cited in the submission by the Appellant to the Supreme Court, paragraph 24)

As can be seen from the history of these proceedings, the Swedish prosecutor takes an adversarial stance towards the person under investigation. For example, in this case, the prosecutor applied to the Stockholm District Court for a detention order in absentia for the purposes of interrogation. When the Appellant appealed to the Svea Court of Appeal against the making of that order, the Swedish prosecutor made written submissions in opposition to this appeal. The same prosecutor (Marianne Ny), having participated as a party to these proceedings before the Swedish courts, later issued the EAW, purportedly as a "judicial authority". Cited in the submission by the appellant para 25

Assange Appellant Submission to Supreme Court

Submission to the UK Supreme Court for the Respondent, Swedish Prosecution Authority

Agreed facts of the case

Agreed_Facts_Assange_Case

URL: http://www.scribd.com/swedenversusa...

Written Intervention to the UK Supreme Court submitted by Gerard Batten, MEP, and Vladimir Bukovsky

Assange Intervention

Summary of the intervention for the Press: Summary_Independent_Intervention

Supreme Court Appeal: the big picture

Julian Assange has been held without charge for 500 days. His case before the Supreme Court on 1 and 2 February 2012 is of ’great public importance’ in the words of the UK Supreme Court.

Philosophically, the significance of the case lies in the robustness of the separation of powers in the UK and the power of the UK courts to invalidate a European Arrest Warrant (EAW) that would be considered unlawful if it were issued in the UK. The case tests the basic legal principle that an individual’s liberty may only be deprived as a result of due process authorised by a court of law, or in its absence, an independent and impartial judicial authority. This is a basic principle of fairness. The impartiality of the decision and the separation of powers intersect in this case where a Swedish partisan prosecutor has issued the EAW for Julian Assange.

Politically the case is significant because it highlights the differing tendencies of the UK common law system, which traditionally provides strong due process safeguards and upholds individual liberties, and the more centralising, executive tendencies of EU countries such as Sweden, within the context of the ’harmonisation’ of a common EU extradition regime.

Unless the Supreme Court case succeeds, the current regime will allow a person who has not been charged, and who is wanted for the purposes of questioning (and not prosecution) to be deprived of their liberty and extradited to any EU country. This is in spite of the fact that the UK 2003 Extradition Act was drafted with the intention of preventing the current state of affairs. Police and partisan prosecutors, who are members of the executive, are issuing EAWs that have not been authorised or reviewed by a court of law. The individual by contrast will be unable to effectively challenge the EAW on any grounds, including those provided for by the UK Extradition Act. The EAW by design eliminates the ability of the courts to examine even the basic evidence of the case. The only effective challenge to the EAW is a provable challenge that the EAW is issued for the wrong person.

The EAW issued for Julian Assange on 2 December 2010 will be challenged on the basis that Marianne Ny, who issued the arrest warrant, cannot be said to be an independent and impartial ’judicial authority’. According to the UK 2003 Extradition Act, if the EAW is not issued by a ’judicial authority’, the UK courts cannot consider it valid. The Swedish Prosecution Authority will argue that the Swedish prosecutor is a ’judicial authority’ within the meaning of the UK 2003 Extradition Act.

If Julian Assange were to win the case, it would not prevent the Swedish investigation from progressing: the prosecutor would simply have to use existing EU mechanisms (such as Mutual Legal Assistance) to question Assange, in person or remotely, from the UK. Alternatively, the arrest warrant would have to be issued by a court in Sweden or an ’independent and impartial’ judicial authority.

The question before the court is, in short, whether the Swedish prosecutor can be considered a ’judicial authority’, and ultimately, the definition of a ’judicial authority’ according to the 2003 Extradition Act. A win for Julian Assange will impact the UK’s extradition regime, it will allow the courts to enforce the rights of individuals exposed to abusive EAWs issued by partisan prosecutors or other members of the executive, it will reduce the incidence of EAWs issued for the purposes of interrogation, and it will raise the legal safeguards for individuals across the board in the EU.

Background to the Supreme Court Appeal

Julian Assange travelled to Sweden on 11 August 2010 after being informed that the FBI had raided Bradley Manning’s family home in Wales. The raid came just after WikiLeaks had released the Afghan War Diaries. By this stage Julian Assange had announced that WikiLeaks was going to release hundreds of thousands of secret documents on the war in Iraq and classified US diplomatic cables. In order to safely leave the UK, where WikiLeaks’ work was under threat, a formal invitation was arranged to speak at a conference about the war in Afghanistan in Stockholm, Sweden.

A Supreme Court summary of the agreed facts of the case can be found here:

"The Appellant, a journalist well known through his operation of Wikileaks, visited Sweden to give a lecture in August 2010. He had sexual relations with two women. Both women went to the police who treated their visits as the filing of complaints. The Appellant was interviewed by police and subsequently left Sweden in ignorance of the fact that a domestic arrest warrant had been issued for him. Proceedings were brought in the Swedish courts in the Appellant’s absence, although he was represented, in which a domestic warrant for the Appellant’s detention for interrogation was granted and upheld on appeal. Subsequently, an EAW for the Appellant was issued by the Swedish Prosecution Authority that set out allegations of four offences of unlawful coercion and sexual misconduct including rape. The EAW was certified by the UK Serious Organised Crime Agency under the Extradition Act 2003. The Appellant surrendered himself for arrest in the UK and, following an extradition hearing, his extradition to Sweden was ordered. The order was upheld on appeal to the Divisional Court."

Further to this summary, it has been established that both women consented to sexual relations with Assange, both before and after the alleged incidents. There is no allegation that the women refused consent at any point, either through word or through action. In an interview to a Swedish tabloid, one of the women [AA] stated that neither she nor the other woman [SW] were afraid of Julian Assange, and that he was not violent. According to the two women, they did not want to report Julian Assange to the police. One of the women (SW) went to the police on 20 August 2010 in order to enquire about compelling Julian Assange to take an STD test, as a result of unprotected sex. The other woman, AA, claimed she only wanted to accompany SW for support. AA is a Social Democrat politician and the woman who offered Assange accommodation in Stockholm, while she was away campaigning for her political party. Police records show that the police officer who interviewed SW disagreed with the classification of ’rape’ but was not allowed to challenge the duty prosecutor’s (Maria Haljebo Kjellstrand) decision. The duty prosecutor decided the nature of the allegation and authorised Julian Assange’s immediate arrest. When SW learned of the arrest, while being questioned, she was upset and interrupted the interrogation.

The investigation into ’rape’ was dropped the next day (21 August 2011) by Chief Prosecutor Eva Finné, and Julian Assange’s domestic arrest warrant was canceled. One of the witness statements described how SW had told her friend that she felt ’railroaded’ by police and others. Julian Assange cooperated with the investigation into the allegation of molestation for AA, and submitted himself for questioning in Stockholm on 30 September 2010, when he answered all the questions posed to him.

The ’rape’ allegation was only revived after a Social Democrat politician, Claes Borgström, took on the case on behalf of the two women. Borgström was familiar with the interrogating officer of SW, who is also a Social Democrat politician. In an interview Borgström claimed that it was irrelevant whether the women felt they had been raped or not - they could not tell whether they were raped "because they are not jurists". At the time Borgström got involved in the case, all the newspapers in the world were reporting on the allegations against Julian Assange. Media attention on the case both within and abroad put Borgström in the spotlight, only a month before Sweden’s general elections, for which he was running for the Social Democrat party. Borgström appealed to a senior prosecutor to revive the ’rape’ investigation of SW. The senior prosector in question, Marianne Ny, is in charge of a legal development centre for family law and gender-based violence in Gothenburg. Ny does not normally actively act for the prosecution in individual cases, and yet her senior position allowed her to overrule the prosecutor who had thrown out the ’rape’ investigation. This was the third prosecutor involved in the case over the course of ten days: extraordinarily, the ’rape’ investigation had been activated, dropped and revived between 20 August and 1 September 2010.

Julian Assange stayed in Sweden and made himself available to be interviewed throughout the 4 weeks of his stay in relation to the ’rape’ allegation, from the moment the ’rape’ allegation was re-activated by Marianne Ny. The prosecutor delayed his questioning. While in Sweden he continued to ensure WikiLeaks publishing schedule would proceed. On 28 September, he attended a meeting in Berlin. He had been authorised to leave Sweden, but when he left, Marianne Ny issued a new domestic arrest warrant for him. Although appointments were suggested by Julian Assange’s lawyer for his voluntary questioning in Sweden, a date was not agreed.

Marianne Ny broke a verbal agreement with Julian Assange’s lawyers (that the matter would be handled discreetly if Assange was cooperative) when the Swedish police were instructed to arrest Julian Assange at a Stockholm venue where he was scheduled to speak on 5 October 2010. Julian Assange then instructed his lawyers to continue to cooperate with the investigation, but requested that the questioning be made remotely, as is provided by the Mutual Legal Assistance and other judicial cooperation treaties within the European Union. This mechanism is considered appropriate and proportionate, particularly at a preliminary phase of an investigation.

On 26 November 2010, two days before WikiLeaks commenced publishing Cablegate, the Swedish prosecutor issued an invalid EAW for Julian Assange, which was rejected by the UK’s Serious Organised Crime Agency, SOCA. Marianne Ny also issued an Interpol red notice for Assange, despite the fact that he had not been charged with any offence, despite the fact that he was cooperating with the investigation, and despite the fact that Gaddafi at the time was only issued with an orange notice. (Reports suggest that Interpol disputed Julian Assange’s red notice internally.) The issuing of these international arrest warrants was contemporary with media smears and vitriol against Assange in the US as a result of the publishing of Cablegate. There were over 20 million google hits for "Assange+rape". US politicians and news presenters described Assange as a terrorist and a traitor, calling for his assassination.

Swedish prosecutor Marianne Ny issued a new EAW on 2 December, the same day that the extra-judicial banking blockade began against WikiLeaks. On 5 December, SOCA certified the arrest warrant, and two days later Julian Assange voluntarily submitted himself to UK police. He spent 10 days in solitary confinement in Wandsworth prison. By the time of the Supreme Court appeal, Julian Assange will have spent 422 days under house arrest in the UK, without charge. He has an electronic tag around his ankle, and must report to the police daily. He must also meet a curfew.

The Court has decided that seven Justices will hear the appeal given the great public importance of the issue raised, which is whether a prosecutor is a judicial authority.

It added:

"A panel of three Supreme Court Justices - Lord Hope, Lord Mance and Lord Dyson - has considered the written submissions of the parties; this is the court’s usual practice for considering applications for permission to appeal.

"The Supreme Court has granted permission to appeal and a hearing has been scheduled for two days, beginning on 1 February 2012."

On 5 December 2011, the UK High Court of Appeal certified one of the two points raised by Julian Assange’s team as one of "general public importance" that should be considered by the Supreme Court. The point that succeeded was the question of whether a partisan public prosecutor is a ’judicial authority’ as required by the 2003 Extradition Act. The issue revolves around the notion there must be a separation between the executive and the judiciary when depriving a person of liberty - in this case when the person concerned has not even been charged and the device used to deprive liberty is extradition to another state. The court considered this to be a point of general public importance that may affect any person facing similar extraditions to the EU. The point transcended the facts of the case and the Supreme Court decided that seven judges (usually there are five) would hear the case on 1 and 2 February 2012, because the issue raised was of ’great public importance’.

Mark Summers, representing Mr. Assange, said that since 2005, 60 different cases have challenged the European Arrest Warrant (EAW) at this court on the grounds that it had been issued by a prosecutor, and not by an independent and impartial member of the judiciary. Both the issue of whether a person who has not been charged can be extradited and the point of who is a "judicial authority" authorised to issue an EAW were debated in the UK Parliament.

On 5 December 2011, Julian Assange attended the extradition debate after his presence at the High Court, but had to leave before it was over in order to make the curfew. At least three MPs mentioned Julian Assange’s case and the fact that he had not been charged, as well as the judicial authority point.

The decision by the Supreme Court panel came on the same day as Bradley Manning’s pre-trial Art. 32 hearing commenced in Fort Meade, near Washington D.C. (16 December 2011)

Application to the Supreme Court

Julian Assange’s legal team applied on 15 November 2011 to the High Court for leave to appeal two points of law of general importance at the Supreme Court. The same judges who dismissed Julian Assange’s case at the High Court decided whether to certify these points, which must be of public importance and go beyond the specific facts of this case. They decided this in open court on 5 December 2011. A decision is expected the same day.

Julian Assange challenged the July 2011 High Court Appeal on two grounds, which are interlinked. He succeeded on the first:

1) European Arrest Warrant issued by a partisan prosecutor working for the executive (i.e. not an independent judge or investigating magistrate in the civil law system) is not a valid Part 1 Warrant issued by a "judicial authority" within the meaning of sections 2(2) & 66 of the Extradition Act 2003, because it goes against the UK Parliament’s intent when enacting this domestic legislation.

2) The High Court decision allows for a person in respect of whom no decision to prosecute has been taken to be extradited. Does this imply that this person has passed the test of being ’accused’ within the meaning of sections 2(3)(a) of the Extradition Act 2003?

Below are the points that the appellant argued in the July 2011 High Court Appeal relating to these points:

Appellant’s Arguments relating to ’judicial authority’

These can be found on pp. 64-71 of the skeleton argument (see July 2011 High Court Appeal):

6.1 Section 2 of Act provides, in pertinent part, that:

"...(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory ... (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory..."

6.2 The "designated authority", for the purposes of the Act, is the Serious Organised Crime Agency ("SOCA").

6.3 It is submitted that a public prosecutor cannot be regarded as a "judicial authority" (emphasis added). A prosecutor is, by definition, not a judge, and hence not a judicial authority. To describe a prosecutor as a "judicial authority" is a contradiction in terms. The latter must, as an essential feature, be independent and impartial. Prosecutors are partisan. On ordinary principles of statutory construction, a warrant issued by a prosecutor is not a warrant issued by a judicial authority.

The words of the 2003 Act

6.4 Article 6 of the Framework Decision (Determination of the Competent Judicial Authorities) defines the issuing "judicial authority" as "...the judicial authority of the issuing member state which is competent to issue an European arrest warrant by virtue of the law of that state...". Article 6(3) requires that "[e]ach Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law".

6.5 However, that is not reflected in the 2003 Act. There is no definition of "judicial authority" in the 2003 Act, and no provision which deems "judicial authority" to be e.g. "any law enforcement authority" or "any authority notified by the member state to the Council of Europe general secretariat pursuant to Article 6(3) of the Framework Decision". The plain meaning of the term "judicial authority" is a person or body independently exercising judicial power - i.e. a magistrate, judge or court.

• This is the meaning which Parliament, in the absence of any contrary indication, must be taken to have intended in passing the Act.

• It is this meaning that has been acted upon in relation to the issue of EAWs in this country, where the "judicial authority" is the "appropriate judge" (Section 142). A prosecutor is, understandably, partisan. That is why even the CPS, despite its high professional standards, is not authorised to issue Part 3 EAWs; a judge must do so (section 142 of the Act).

• Far from there being any contra-indications in the Act itself, the plain meaning is supported by a ejusdem generis construction of Section 202(4)(a), which refers to ratification of a document "signed by a judge, magistrate or other judicial officer of the territory".

The Parliamentary intent

6.6 Moreover, examination of Hansard confirms that Parliament specifically intended (and assured) that judicial authority would mean a judge.

6.7 The phrase ’judicial’ was not included in the Extradition Bill as originally drafted. It referred merely to ’an authority of a category 1 territory’. In response to an tabled amendment in Standing Committee to insert the term ’judicial authority’, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th January 2003, that;

"...Article 6 [of the Framework decision] could not be clearer. There is no suggestion, nor even the possibility, that a police officer can issue a European arrest warrant without being in breach of the Framework decision...There is no attempt to renege on any commitments that were given in previous Committees . The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way that the hon. Gentleman suggests we should...we expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country...The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for many years. Extradition requests come from a variety of sources...the examining magistrate at Liege, the magistrate at the public prosecutor’s office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palocios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change...the only people who are allowed to issue a European arrest warrant are those who have that function under the framework document. That document spells out that such people must be judicial authorities. I accept that the fears raised by the Opposition Members are real, but I hope that if they are prepared to read the two documents together, they will be satisfied that the sort of abuses that they believe may arise cannot do so..."

6.7 In response to those concerns, the government introduced an amendment on Report "...to make it absolutely clear that all European arrest warrants must come from a judicial source. The relevant provisions can be found in subsections (7) and (8) of Clause 2..."

6.8 In Grand Committee in the House of Lords, a further amendment was tabled to add the words "after a judicial decision" so as to;

"...make it clear-as it is in Article 1 of the framework decision-that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amounts to a judicial decision. A case in point might be that a body which was a judicial authority acted as a matter of course-as a matter of formality-on the request of a public prosecutor. If that could be shown-at least beyond reasonable doubt-I apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill; namely, that this is a judicial authority-and, as my noble friend the Minister mentioned, information as to who the authorities are will be sent by the other state-and that that judicial authority must be acting, as it normally would, in terms of a procedure which can be said to be a judicial decision..."

6.9 In resisting that proposal, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th June 2003, that;

"...As I said in response to the earlier debate, there will be a central register in which the approved issuing authorities in each country will be listed so that it will not be unduly difficult for the UK designated authority to carry out the necessary checks. I should also make it clear that, as I said earlier, we expect to receive incoming European extradition requests from exactly the same people as we get them from at the moment. We currently receive requests from a wide range of judges and magistrates across the European Union, and we see absolutely no reason why that should change. Amendment No. 24 would provide that the decision to issue a warrant has to be a "judicial decision". I have to confess that I am not wholly clear what is meant by that. As I have already explained, all warrants will have to be issued by a judicial authority. I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding a judicial office-such as a judge or magistrate-is a judicial decision. So I cannot see what the amendments would add to the Bill. I certainly hope that my noble friend is not suggesting that in order to qualify as a "judicial decision" the decision to issue a warrant should be taken in court with some kind of formal procedure or hearing. That may be what my noble friend and his supporters want, but that is not how we do things in the United Kingdom. It is not our practice. An arrest warrant can be issued, on application from the police, by a justice of the peace. Clearly the justice needs to be convinced that the arrest would be justified, but he does not have to hold any kind of formal hearing for that purpose. Nor does that process need to happen in court. After all, a justice can sign an arrest warrant at home in his pyjamas if necessary, and there have been occasions when that has happened...

...justices take every warrant application very seriously and that they give them very careful consideration. That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity...

...we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. That is why we will be clear and ensure clarity as to what constitutes a judicial authority. The judicial authorities will be properly listed. As I said, we do not see the need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. Yes, it will be a judicial process in the sense that the noble Lord, Lord Stoddart, understands, but that process will be similar to ours. We expect it to operate very similarly to ours..." .

6.10 The amendment was accordingly withdrawn.

The ECtHR approach

6.11 This interpretation of "judicial authority" is compatible with Convention rights and any interpretation that extends judicial authority to prosecutors and police is not. This is clear from the European Commission case of Skoogstrom v Sweden (1984) 6 EHRR CD77, where it was held that a Swedish prosecutor could not be "a judge or other officer authorised by law to exercise judicial power" for the purpose of Article 5(3) of the Convention, because she lacked the essential quality of independence. This distinction between executive and judicial power is recognised by legal systems throughout the world. If Parliament had been made aware that "judicial authority" was to be interpreted as including executive authority, it is plain from Hansard that it would not have passed legislation that gave European policemen and prosecutors power to affect the liberty of persons present in this country.

The Framework decision

6.12 The framework decision itself does not on its face contradict the plain meaning of "judicial authority" in the Act. Preamble 5 describes "a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions ..." whilst Article 1(1) refers to the EAW as a "judicial decision" and Article 1(3) guarantees respect for fundamental rights and legal principles - among which the distinction between judicial and executive power is perhaps the most fundamental. The principle of mutual recognition upon which the EAW is based is, in this context, a mutual recognition of the decisions of the courts of member states, not of their policemen or prosecutors. See, for example, Preamble 6 which provides for:

"...The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ’cornerstone’ of judicial cooperation..."

The supremacy of the 2003 Act

6.13 In any event, the Framework Decision is not part of UK law. While a few member states have adopted the Framework Decision verbatim, others have implemented it in different ways in their domestic legislation . The UK parliament deliberately chose to implement the Framework decision indirectly by a statute that deviated from a number of its provisions and, whilst it may be used for background purposes in cases where the UK statute is imprecise or ambiguous, it cannot be used to circumvent or override the plain language of the statute.

6.14 Preamble 12 of the Framework decision expressly permits member states to include additional ’due process’ safeguards and provisions in their domestic laws. The 2003 Act contains a number of such additional safeguards (such as section 14 for example).

6.15 In the early days of the 2003 Act, the proper approach to be taken to these ’additional’ provisions was a matter of controversy. However, the matter was quickly settled by the House of Lords which held that the construction of the 2003 Act must be approached in the following manner:

i. First, it "...must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less..." (Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL per Lord Bingham of Cornhill at para. 8).

ii. However, where the "wording of Part 1 of the 2003 Act does not...match that of the Framework Decision to which it seeks to give effect in domestic law...the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty..." (ibid. per Lord Hope of Craighead at para. 24).

6.16 This is precisely one of those cases envisaged by Lord Hope. Article 6 of the Framework Decision was not transposed directly into UK law. The 2003 Act could have provided that "A Part 1 warrant is an arrest warrant which is issued by an authority of a category 1 territory notified to the secretariat under Article 6(3) of the Framework Decision". It did not. Instead, the 2003 Act purposely preserved the ability of the UK, as executing member state, to determine whether a Part 1 warrant is issued by suitably independent - judicial - body (albeit premised upon the - now erroneous - assumption that other EU member states understood that ’judicial’ meant ’judicial’). The 2003 Act is abundantly clear. Section 2(2) requires a Part 1 warrant issued by a judicial authority, irrespective of whether a state has chosen to make an executive or other non-judicial body competent to issue an EAW and has notified it to the secretariat under Article 6(3) of the Framework Decision.

6.17 To have a warrant accepted and acted upon in the UK, the 2003 Act mandates that it must on its face have been issued by a category 1 judicial authority and not by a category 1 politician or policeman or prosecutor or lay person or intelligence officer or any other partisan state functionary to whom local law may give competency and who may for that reason have been notified to the secretariat under Article 6(3) of the Framework Decision.

Enander

6.18 This issue was taken in the court below but not argued or mentioned in the judgment presumably because the District Judge was bound by the decision in Enander v the Governor of HMP Brixton and the Swedish National Police Board [2005] EWHC 3036 (Admin) ("Enander"). In his Skeleton Argument for the court below, the Appellant "reserved his position on whether Enander was decided per incuriam".

6.19 Enander was an application for habeas corpus where the Divisional Court in an unreserved judgment rejected the argument that an executive official (a Swedish policeman) could not be a "judicial authority". It ruled this expression must be read against the background of the Framework Decision and what it was intended to put in place. The Framework Decision leaves to the individual member state the right to designate its own "judicial authority" (per Gage L.J. at para 24). Any other interpretation of the term "judicial authority" would undermine the mutual trust and cooperation between member states (at para 25) and cause uncertainty and practical difficulty (per Openshaw J. at para 30).

6.20 The High Court used the Framework Decision not as an aid to construing the term, "judicial authority", but as an alternative to construing it at all. In short, Article 6 was read as authorising an approach whereby there is no enquiry by the Court at all into the meaning of "judicial authority": section 2 is emptied of meaning, and simply refers to whatever body the foreign state has decided to call a "judicial authority". Thus, if a foreign State designated a layperson, a political commissar, an intelligence officer or a politician as a "judicial authority", section 2 is construed so as to avoid any enquiry into the matter.

6.21 Significantly, however, the decision in Enander was arrived at without consideration of:

i. Hansard, or

ii. The guidance of the House of Lords in Cando Armas (which was delivered the following day).

6.22 The High Court was called upon to determine the issue of principle of the proper approach to the construction of this additional due process protection, without the guidance of the House of Lords. Cando Armas now shows that the High Court was wrong to use a (deliberately) unincorporated provision of the Framework Decision and override an express due process additional safeguard introduced into the 2003 Act. Applying Lord Hope’s approach, the High Court should have;

"...approached [the difference between section 2 and Article 6] on the assumption that...these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty..."

6.23 The Divisional Court in Enander thought that giving judicial authority its plain meaning would undermine the "mutual recognition" principle. But that principle applies to the recognition of judicial decisions, which for the purpose of EAW system must be presumed correct, rather than mutual recognition of partisan police and prosecutorial decisions. If "judicial authority" means what it implies, namely independence of the issuing authority, then "mutual trust and cooperation" is strengthened rather than undermined - there can be much greater trust in a system that pivots on independent judicial decisions than one which allows state officials the discretion to issue extradition warrants.

6.24 The argument from inconvenience relied on by Openshaw J may also be questioned: there is surely no difficulty in establishing whether a warrant has been issued by a court or judge, as distinct from a government agent or agency. Due process is meant to ensure that deprivation of liberty should come about only through the decision of a judicial authority independent of the state. The issue of an EAW has draconian consequence for the liberty of the individual, keeping him in custody or on restricted bail, preventing an independent judicial authority discharging him until the provisions of the Extradition Act have been complied with. Preamble 12 of the Framework Decision promises respect for fundamental rights and for the principles of the Charter of Fundamental Rights of the European Union: it is therefore appropriate and proportionate that the lengthy encroachment on individual freedom inevitably suffered by the EAW suspect should be authorised by a judicial rather than an executive authority.

6.25 In sum, Enander was wrongly decided and should not be followed (R v HM Coroner for Greater Manchester Ex p. Tal [1985] QB 67).

6.26 Enander did not seek to take his case to the House of Lords, notwithstanding that he was entitled to seek leave directly from the House of Lords as his application to the High Court was for habeas corpus, having decided in the meantime to return to Sweden for his own reasons.

[Note: the High Court judgment conceded that Enander was wrong and the court would not follow the precedent.]

Appellant’s Arguments relating to ’accused’ and the fact that no decision has been made in Sweden as to whether to prosecute

These can be found on pp. 33-60 of the skeleton argument (see July 2011 High Court Appeal):

4.1 As stated above, the House of Lords has repeatedly observed that section 2 ’validity’ is a jurisdictional prerequisite of a Part 1 warrant under the 2003 Act. If an EAW does not conform to the requirements set out in section 2 of the 2003 Act, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the 2003 Act will not apply to it. The House of Lords has also emphasised the requirement for strict compliance with section 2.

Section 2(3) of the 2003 Act

4.2 Section 2(2) of the 2003 Act provides, so far as is relevant, that:

"...(2) A European Arrest Warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains- (a) the statement referred to in subsection (3)..."

4.3 Section 2(3) provides that:

"...(3) The statement is one that- (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."

4.4 The requirement is unequivocal. Section 2(2) states that a Part 1 warrant is an arrest warrant which contains the statement referred to in subsection (3); "...If it does not do so it is not a Part 1 warrant and the provisions of that Part cannot apply to it..." (Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra) per Lord Hope of Craighead at para. 42). See also Lord Scott of Foscote at paras. 56-57;

"...An arrest warrant which contains neither the section 2(3) statement nor the section 2(5) statement does not, it appears to me, comply with the requirements of the Act and, if that is right, would not constitute a warrant on which an extradition under Part 1 of the Act could be ordered...the state seeking extradition can be, and under section 2 of the Act is, asked to commit itself to the propriety of the extradition. These statements are not, in my opinion, formalities. They form an important part of the new extradition procedure..."

The purpose and origin of section 2(3)(b)

4.5 Section 2(3)(b) gives effect to Article 1.1 of the Framework Decision.

The distinct purpose and origin of section 2(3)(a)

4.6 However section 2(3)(a) contains an additional requirement, over and above the requirements of the Framework Decision.

4.7 The Framework Decision permits the Member States to impose additional ’due process’ requirements in its national legislation (see recital 12).

4.8 Where the 2003 Act imposes additional requirements, over and above those contained in the Framework Decision, such as for example section 14, different principles of construction apply. Here, the provisions are to be approached upon the assumption that they were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty. They are thus to be strictly construed (Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra) per Lord Hope of Craighead at para. 24).

4.9 Section 2(3)(a) is such an additional requirement. It imports the pre-2003 concept of "accused" and the established meaning of that, as explained by the House of Lords in In re: Ismail [1999] 1 AC 320, HL per Lord Steyn at p327G;

"...It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is required...the competent authorities in the foreign jurisdiction have taken a step which can fairly be described as the commencement of a prosecution..." (per Lord Steyn at p326F-327G) (emphasis added)

4.10 It is a well-established principle of extradition law that mere suspicion should not found a request for extradition. A person’s extradition must not be sought merely or primarily in order for him to be questioned. An order for extradition must not, therefore, be made where the requested person is sought for the purpose of questioning, even if questioning is to take place in custody, and may be followed by a charge i.e. a prosecution.

4.11 In Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra), Lord Hope of Craighead observed that;

"...The fact that Part 1 of the 2003 Act does not match the requirements of the Framework Decision is confusing to the unwary, and it appears likely that it will be a source of continuing difficulty. Steps should be taken to remind the authorities in the category 1 territories that the statements referred to in section 2(2) of the Act are a necessary part of the procedure that has been laid down in Part 1 of the Act..." (at paras. 43 & 48).

4.12 Lord Scott of Foscote observed that;

"...Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant..." (at para. 54).

4.13 The authorities on this issue were considered and affirmed in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin), where the Court stated, at para 16:

"...If an EAW has been issued by a requesting state as an "accusation case" warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote..."

The combined effect of sections 2(3)(a) & (b)

4.14 If Article 1.1 of the Framework Decision is construed as permitting an EAW to be issued prior to the commencement of proceedings and the formulation of an accusation, by the express addition of section 2(3)(a), Parliament has ensured that the 2003 Act is more restrictive than the Framework Decision; "as a necessary protection against an unlawful infringement of the right to liberty". Under section 2(3)(a), an EAW issued prior to the point at which the criminal prosecution has actually commenced is not a valid Part 1 warrant.

4.15 This was a deliberate decision to prevent the use of an EAW in cases where no decision had been made as to whether an accusation would proceed to trial and where the purpose was facilitate interrogation or investigation before any process of trial had started. It was repeatedly made clear by the Government that its intention was to maintain and strengthen the existing substantive protection for requested persons:

• In response to a tabled amendment to replace ’accused’ with ’faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th January 2003, that

"...We are both clear that in an accusation case, which is a case where a person has yet to be convicted, extradition should be possible only for the purpose of putting the person on trial. It should not be possible for the purpose of interrogation or evidence gathering. Clause 2(3) is drafted to achieve that result. It does not talk about a person being ’’suspected’’ of an offence or of having evidence to give about the offence. It is quite clear that the person must be accused of the offence...the wording proposed by the hon. Gentleman would make no material difference..." . The amendment was accordingly withdrawn.

• In response to a tabled amendment to clarify ’accused’ and ’for the purpose of being prosecuted’, which would have explained that section 2(3) requires "that sufficient evidence has already been gathered to bring a prosecution and to commit to trial" and that "extradition is sought...only for the purpose of putting the person on trial, and not for the purpose of interrogation or evidence gathering", the Parliamentary Under-Secretary of State for the Home Department government stated, on 25th March 2003, that

"...With regard to accusation cases, both sides of the House are agreed that extradition should only be possible for the purpose of putting a person on trial. It should not be possible for the purpose of interrogation or for the purposes of evidence gathering...If Opposition Members examine the Bill, they will see that it already achieves that. A part 1 warrant is an arrest warrant that contains two key elements: the statement and the information. The contents of the statement and the information vary slightly depending on whether it is an accusation or conviction case. The information includes such details as the particulars of the person’s identity or any other warrant, the circumstances of the offence, the particulars of the sentence that would be available to the court, or, in a conviction case, the sentence that has already been imposed. Of more importance for present purposes, however, is what is contained in the statement. If hon. Members look at clause 2(3), they will see that what is required, first, with conviction (sic) cases, is that not only must a person be accused of an offence in a requesting state, but the warrant must have been issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence. That is unambiguous language: it is not about interrogation, and it does not allow extradition for the purpose of evidence gathering or fishing expeditions; it is about putting a person on trial. No other meaning can be attached to those words..."

• Later on the same date, the Parliamentary Under-Secretary of State for the Home Department government stated

"...[t]he warrant that requires the arrest will be clear...It will use a clear and specific allegation in French law, Spanish law or German law, stating that "this person is accused and wanted to stand trial for this offence... The warrant will clearly state that people are sought in order to bring them to trial..."

• On the 2nd Reading in the House of Lords, on 1st May 2003, the Parliamentary Under-Secretary of State for the Home Department government stated

"...The warrant will also have to be accompanied by a statement that, in accusation cases-cases where the person has not been convicted-the warrant has been issued for the purpose of putting the person on trial. That is important because there have been suggestions that EAWs-I shall use that shorthand form-will be used to bring people back for interrogation or evidence-gathering. In fact, the reverse is true. Our current legislation simply requires a person to be "accused of" of a crime. The Bill, for the first time, makes it clear that extradition to another EU country will be possible only for the purpose of putting a person on trial...Whether the EAW will be used for interrogation or evidence gathering is an important question. The Bill makes it clear that extradition is possible only for the purpose of putting a person on trial. That is a change from existing legislation which is silent on this point. If countries with the inquisitorial system want to extradite people for the purpose of interrogation that ought to be a problem at the moment..."

• In Grand Committee, on 9th June 2003, in response to a tabled amendment to replace ’accused’ with ’faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated that

"...I think that all sides of the Committee are clear that in an accusation case-a case where the person has yet to be convicted-extradition should be possible only for the purpose of putting the person on trial; it should not be possible for the purpose of interrogation or evidence gathering. In fact, the Bill goes much further than our current extradition legislation. The 1989 Act, which governs how extradition requests to other European member states are handled, simply requires a person to be accused of an offence in the requesting state-no more, no less. The Bill goes beyond that by placing a positive onus on the requesting state to say that the person’s extradition has been sought for the purpose of being prosecuted. I refer the Committee to Clause 2(3)(b), which states: "the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence". I do not believe that that could possibly be clearer. It is for the purpose of the prosecution that the person is being extradited. The legislation goes much further than the 1989 Act...It is clear that a Part 1 warrant under Clause 2(3)(b) can be valid only if it is for the purpose of a prosecution. A request from a member state to this country for extradition for the purpose of investigation or interrogation would not be lawful...If on the initial application, whereby the judge was essentially testing the issues under Clause (2)(4)(a) to (d), there was then a doubt in the district judge’s mind that the request was for a prosecution case-if he believed that it might be for a fishing trip or an interrogation-I should have thought that he had the power to strike out the application...The fact that since 1991 there has been no requirement to have prima facie evidence that sets out the case in full does not mean that there is not a requirement that the extradition should be for a trial as a result of a charge that has been levied...". The amendment was accordingly withdrawn.

• At Report stage, on 22nd October 2003, in response to a tabled amendment to replace ’accused’ with ’faces charges’, Baroness Scotland stated that

"...I repeat that this Bill, as it is currently drafted, allows extradition for the purposes of prosecution only in accusation cases. The Bill does not allow extradition for the purposes of questioning, investigation or, of course, interrogation...it is worth looking at what the current extradition legislation says. Section 1 of the Extradition Act 1989 provides for extradition procedures where a person "is accused" of the commission of an offence. It goes no further than that on the subject and the phrase "is accused" is not qualified in any way. Your Lordships will know that that is the law that we have had for the past 14 years since 1989 and that it has not been an issue between ourselves and our partners. In contrast, the Bill is very explicit. It goes on to say that a warrant must have been issued, "for the purpose of being prosecuted for the offence". Those additional words strengthen and underline the purpose of the warrant. As I say, this is more than we have at the moment and we are pleased to have had the opportunity to make that point very clear...we are making the provision stronger, not weakening it... As now, [in 1989] the term "accused" was in operation, but without the extra safeguard of making absolutely clear that it is for the purpose of being prosecuted for the offence. It is on that basis that we can be confident on how the issues will be interpreted.... there are already a number of instruments concerning mutual legal assistance and judicial co-operation with our international partners. The relevant authorities in each country have dedicated contacts and systems for such work. It is that route, rather than abuse of the extradition system, by which we co-operate with other countries on investigative work. If a warrant were issued for the purposes of investigation, which is clearly the point at issue, that warrant could not be certified or executed in the United Kingdom. It would not be a Part 1 warrant as defined in the Bill.... I have sought to explain that the Bill imposes a much more stringent test than we have at the moment. The words, "for the purpose of being prosecuted for the offence" are new and far more explicit than anything that can be found in previous extradition legislation..." . The amendment was accordingly withdrawn.

• On Third Reading, on 12th November 2003, in response to a tabled amendment to replace ’accused’ with ’faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated that

"...We all know what we want the clause to do: to allow extradition to take place only where there will be a prosecution. Clearly, we are talking about accusation not conviction cases. We believe that the clause as drafted has this effect. I add that the Extradition Act 1989 provides for extradition where a person "is accused" of an offence. We currently operate under legislation which has the same terminology and thrust. The Extradition Act 1989 goes no further than that. Our present legislation uses the term "is accused". That has not given rise to a problem. However, the Bill goes further than the 1989 Act...trying to ensure that procedural reasons for avoiding extradition and facing trial for a properly laid charge can no longer be allowed to frustrate justice...However...the Bill also puts in place powerful safeguards...the power of the courts in this respect is strengthened...our present legislation uses the term "is accused". Notwithstanding that, the Bill goes further than the 1989 Act in saying that a warrant must have been issued, "for the purpose of being prosecuted for the offence". I do not see how that can be ambiguous in any way. Of course the court, which makes the decision, must be satisfied that that is the case. We do not anticipate any difficulties regarding fishing trips or warrants issued for investigatory purposes. Extradition in accusation cases is for prosecution. That is the basis on which extradition is currently run with our international partners and that was the basis on which the European arrest warrant framework decision was agreed. If a warrant was issued for the purpose of investigation, it could not be certified or executed in the UK. It would not be a Part 1 warrant as defined in the Bill...We have stronger protection in the Bill than in current legislation, by giving the judge powers to be satisfied that someone taken to trial will be met with ECHR conditions. That is progress, not reversal..." . The amendment was accordingly voted against.

Ismail

4.16 The question for the Court under section 2(3)(a) of the 2003 Act, therefore remains the Ismail question; namely whether the Swedish proceedings in this case have reached the stage at which it may properly be said that a criminal prosecution has commenced. See Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) per Aikens L.J. at paras. 16-19;

"...16. If an EAW has been issued by a requesting state as an "accusation case" warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote...

17. How does an English court decide, in the international context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "purposes of being prosecuted" (in the language of section 2(3)(a) and (b)), as opposed to a warrant which requests surrender of the requested person only for an investigation? The starting point for a consideration of this issue must be the decision of the House of Lords in Re Ismail [1999] 1 AC 320,..

18. This "cosmopolitan approach" to construction has been approved in relation to Part 1 of the Act by Lord Hope of Craighead in the Armas case at paragraph 24. Lord Hope also emphasised, however, that the liberty of the subject (and indeed, we might add, that of foreign nationals) is at stake and so generosity must be balanced against the rights of persons who are sought to be surrendered under the procedures laid down by the Framework Decision and the Act. The other law lords agreed with Lord Hope.

19. The effect of Lord Steyn’s analysis, as applied to section 2(3)(a) and (b) must be as follows: first, the phrases "...is accused...of the commission of an offence" in paragraph (a), and "for the purpose of being prosecuted" in paragraph (b), are not to be treated as terms of art. Secondly, it is a question of fact whether the surrender sought is of an accused person and for the purpose of the requested person being prosecuted. Thirdly, it would be wrong to approach the construction of the phrases "accused" etc and "for the purposes of being prosecuted" solely from the perspective of English (or Scottish or Northern Irish) criminal procedure; in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment. Fourthly, it is necessary to adopt a purposive construction of the words "accused...of the commission of an offence" and "for the purpose of being prosecuted" to accommodate the differences between legal systems. Lastly, the question of whether a person is "accused" and is to be surrendered "for the purpose of being prosecuted" will require an intense focus on the facts in each case..."

4.17 The United Kingdom is not alone in the imposition of a higher threshold in these circumstances. Section 7(3) of Gibraltar’s European Arrest Warrant Act 2003 also imposes a higher threshold. The Supreme Court of Gibraltar held in Fletcher v The Government of France [2007] Criminal Appeal No. 8, that;

"...despite the difference in language there is in my view no substantive distinction between "a decision to try" [in the Gibraltan Act] and "accused" [in section 2 of the UK 2003 Act]...".

Extrinsic evidence is admissible

4.18 This court summarised at paragraph 38 of Asztaslos v The Szekszard City Court, Hungary (supra) what it believed to be the effect of the authorities:

(1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal.

(2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act.

(3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.

(4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure.

(5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.

(6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.

(7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases.

4.19 Pursuant to point (6), where an EAW is ambiguous on its face as to whether the foreign proceedings have reached the requisite stage at which it may properly be said that a criminal prosecution has already commenced, extrinsic evidence is admissible; Asztaslos v The Szekszard City Court, Hungary (supra) at para. 38; The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin).

4.20 The Appellant does not accept that Asztaslos and Bartlett were correctly decided.

i. Asztaslos (which Bartlett followed) purported to summarise existing case law. The Appellant does not accept that the Court’s summary in Aszataslos of the effect of the authorities is entirely accurate. For example, in neither Vey nor Trenk (discussed below) did the High Court consider that factual and/or expert evidence regarding whether a person is an accused person in the Requesting State should only be introduced "in exceptional cases". On the contrary, in both those cases, the Court evidently considered it perfectly proper to consider the evidence bearing on the subject. As Vey and Trenk are both decisions of the High Court, Aszataslos is of no greater precedential value than those, more numerous, authorities.

ii. The effect of this aspect of Asztaslos is that, in the event of a serious fundamental misstatement, going to the heart of an extradition request, the Court is impotent to act. That is entirely inconsistent with the Court’s approach to section 2 in other contexts; see above paragraphs 3.31-3.41. It is an approach that flies in the case of Caldarelli v Court of Naples [2008] 1 WLR 1724, HL.

"...Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer..."

iii. Moreover, there is an inherent illogicality about the Asztaslos approach. It permits the Court to act upon the true factual position where the EAW (fairly and properly) gives some hint as to the reality but prohibits the Court acting upon (and mandates extradition in the face of) the true factual position where the EAW (unfairly and improperly) conceals the position entirely.

4.21 In any event, even if the Asztaslos hurdle is upheld, this EAW crosses it; in that it is ambiguous on its face;

i. The only thing that this EAW says about the stage of the Swedish proceedings is the usual pro-forma heading . However, in this case, the pro-forma heading is itself ambiguous. The EAW states that "...This warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution ["för lagföring"] or executing a custodial sentence or detention order...". This translation of "för lagföring" as "prosecution" is wrong; As explained in the witness statement of the qualified and experienced linguist and translator, Mr. Christophe Brunski:

"...4. I have been asked about the use of the word lagföring. The translation of the word lagföring as criminal prosecution in the EAW of 2 December 2010 is too narrow. Lagföring is a general term which relates to the entire legal process and can be used in either civil or criminal context. It is something of an umbrella term that encompasses other stages and legal procedures that are more strictly defined in and of themselves. There are more precise terms for prosecution in Swedish, namely åtala or åklaga, both meaning to prosecute or indict..." (emphasis added)

ii. Properly translated, the EAW itself states, in the Swedish original, that it has been issued for the purposes of legal proceedings; not that it has been issued specifically for prosecution. That is ambiguous: Thompson v Public Prosecutor of Boulogne Sur Mer [2008] ACD 5.

iii. Nowhere is that ambiguity cured in the EAW; for example, nowhere in the EAW is the Appellant referred to as an "accused" (unlike the requested person in Asztaslos). Instead, and, it is submitted, significantly, he is consistently referred to simply by his surname, "Assange". In Aszataslos, the Court considered that the position was made clear in box (e) of the warrant, where the requested person was referred to as an "accused". The Appellant is nowhere referred to in the EAW as an "accused", nor as having been charged with the offence, and the preamble to the EAW does not refer unequivocally to "prosecution" but rather refers generally to the entire legal process.

4.22 The District Judge found, first, that "...there is nothing equivocal about the English version [of the EAW]" because it "refers to offences, indicates the relevant provisions of Swedish criminal law; and identifies specific conduct against Mr. Assange..." (page 14, Judgment). It is submitted that this reasoning is not sound; an EAW may contain all those details and yet nonetheless seek the requested person’s extradition for questioning and not for prosecution. Trenk is a case in point. Indeed, if the EAW did not contain those details, it would in any event be deficient in terms of section 2(4)(c) and (d) of the 2003 Act. The fact that an EAW provides details of conduct alleged and the relevant foreign law provisions does not remove the requirement for it also to contain the statement provided for in section 2(3) of the 2003 Act.

4.23 The District Judge found, secondly, that the Swedish language version of the EAW was not equivocal, by virtue of the use of the word, "lagforing", because it was the word used in all Swedish language versions of the EAW:

"...As for the Swedish language version, ’lagforing’ is the term used in the official Swedish language version of the Framework Decision. Mr. Robertson says [that] this is not to the point: it simply indicates that all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A request for the purpose of ’lagforing’ is a lawful request for the purpose of the Framework Decision and the Extradition Act 2003..." (page 15, Judgment)

4.24 It is submitted that the District Judge erred in excluding the possibility that there was indeed a systematic translation error in the Swedish language versions of the EAW. He had no basis for so doing, particularly in the absence of any explanation emanating from the Swedish authorities and in the absence of any expertise to counter that of Mr. Brunski.

The extrinsic evidence

4.25 The "extrinsic" evidence clearly shows that this particicular EAW has in fact been issued for the purposes of securing the Appellant’s physical presence in Sweden so that he may be questioned there in person, not so that he may be put on trial.

4.26 The Prosecutor herself has explicitly stated, on numerous occasions, that no decision has been yet taken as to whether to prosecute the Appellant and that the EAW has been issued for the purpose merely of carrying out an interrogation of the Appellant. The Swedish prosecution service has repeatedly and publicly stated (quite correctly) that she has sought an EAW in respect of the Appellant simply in order to facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him.

4.27 On 18th November 2010, the Swedish prosecutor explained her reasons for seeking an arrest warrant in these terms;

"...Ny...told AFP: ’I requested his arrest so we could carry out an interrogation with Assange..."

"...We have exhausted all the normal procedures for getting an interrogation (and) this investigation has gotten to a point where it is not possible to go further without interrogating Assange himself,’ Ny said..."

4.28 That is further confirmed by media reports of the Prosecutor’s public statements at the time;

"...I requested his arrest so we could carry out an interrogation with Assange. That is the reason..."

"...Director of Public Prosecution Marianne Ny said Thursday the reason for the request [for extradition] is that investigators have not been able to bring Assange in for an interrogation..."

4.29 The prosecutor’s written submissions to the Svea court of appeal on 24th November 2010 further confirmed that she was;

"...requesting the arrest of Assange is in order to enable implementation of the preliminary investigation and possible prosecution...".

4.30 Subsequently, in her communications with the Australian Embassy in Stockholm in December 2010, after the EAW was issued, the Swedish prosecutor wrote:

"...Your request to obtain copies of the investigation against Julian Assange has been denied. This is mostly due to the confidentiality of the bulk of the requested documents which are only available in Swedish. Assange’s lawyer Bjorn Hurtig received a copy of the majority of the investigation documents during his detention hearing in the Stockholm District Court on November 18. The same documents were also filed in court. The Stockholm District Court and defendant [sic] were verbally given a detailed explanation of the contents of the small number of documents not included in the written material that was submitted. The defence has asked for copies of all materials. Under Chapter 23, paragraph 18 of the Code of Judicial Procedure, I have decided to reject the defence’s request to obtain copies of the documents not surrendered before the detention hearing. I consider it would be detrimental to the ongoing investigation into the matter.

I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation...".

4.31 On 16th December 2010, the Australian Ambassador to Sweden spoke directly to the Swedish prosecutor who conveyed that;

"...if a decision is made to charge Mr Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage)..." (emphasis added)

4.32 The Appellant has, to this day, not been "given the right to examine all documents relating to the case", from which it follows that a decision to prosecute him has still not been made.

4.33 It is, therefore, clear from official diplomatic communications between the Swedish prosecutor and the Appellant’s consular representatives, in December 2010 (after the issuance of the EAW on 2 December 2010), with reference to the underlined passages above, that:

• "A decision to prosecute the defendant" has not been made yet. In other words, the Swedish Prosecutor has not yet decided whether or not to prosecute Mr. Assange;

• "A decision to charge Mr. Assange" has not yet been made. "...No such decision has been made at this stage...".

• "No such decision will be made until Assange and his lawyers are given an opportunity to examine all the documents"; an opportunity that has not yet been given and had not been given at 2 December.

Exceptional case

4.34 Alternatively, Asztaslos recognises (at point (7)) the possibility of extrinsic evidence being admissible in an ’exceptional’ case even absent ambiguity in the EAW

4.35 This case is entirely unlike Aztaslos itself or any of the cases discussed there. In this case, the Prosecutor herself has made clear, unequivocal public statements to the media and to the Australian High Commission to the effect that no decision has been taken yet as to whether to prosecute the Appellant and that the EAW has been issued for the purpose merely of questioning him further. This is a highly unusual, if not unprecedented, state of affairs, and clearly an exceptional case enabling the Court to consider that evidence.

The issue

4.36 The issue ultimately therefore boils down to a legal one; namely whether, as a matter of UK law, an EAW issued prior to the point at which a criminal prosecution has commenced, is a valid Part 1 warrant under the 2003 Act?

4.37 As explained above, the answer to that question is two-fold.

4.38 The Appellant accepts that, under the Framework Decision (and section 2(3)(b) of the 2003 Act) , the words ’for the purposes of a criminal prosecution’ may be broad enough to encompass a prosecution that will commence in the future. Literally read, Article 1.1 can be interpreted as having elided the concepts of pre-charge investigation and post-charge prosecution. Therefore, the Appellant does not challenge under this heading the ability of EU member states that have enacted the Framework decision into national law (such as Sweden) to issue an EAW prior to the point at which the criminal prosecution has commenced.

4.39 However, section 2(3)(a) of the 2003 Act goes beyond any provision of the Framework Decision and, applying In re: Ismail, deliberately restricts the circumstances in which the UK may execute EAWs to those where the criminal prosecution has already commenced; which is accepted by Sweden not to be the case here. By section 2(3)(a), the concepts of pre-charge investigation and post-charge prosecution are separated.

Case law

4.40 It is submitted that the case law under the 2003 Act clearly supports the analysis advanced above.

4.41 From the earliest decisions under the 2003 Act, the courts have acknowledged that In re: Ismail continues to govern the application of section 2(3)(a). See, for example, Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2007] 1 WLR 124, DC per Smith L.J. at para. 19. The Courts have therefore also recognised that it is necessary to determine whether the criminal proceedings have actually begun (ibid, per Smith L.J. at paras. 21); there the Appellant’s committal for trial in Spain had already been ordered. A similar approach was taken in Dabas v High Court of Justice Madrid Spain [2007] 1 WLR 145, DC at paras. 9-16 per Latham L.J. In neither of those cases was the Appellant able to establish, by evidence, that the proceedings remained at the investigatory pre-charge stage.

4.42 That the effect of section 2(3)(a) was to add a requirement (namely, for the criminal prosecution to have already commenced) over and above the requirements of the Framework Decision was expressly recognised in The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett (supra), where Toulson L.J. observed that;

"...49. Lord Hope noted in Cando Armas at 24 that the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision and that the task of statutory construction has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty. There is a linguistic difference between s2(3) and the Framework Decision. As already noted, preamble (5) refers to the surrender of "...suspected persons for the purposes of...prosecution" and article 1.1 refers to "the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution...". The term "accused" does not appear in the Framework Decision. The 1989 Act section 1 referred to a person being "accused", but the Act made no reference to the extradition being for the purposes of conducting a criminal prosecution.

50. In the 2003 Act the requirement in s2(3)(a) that the person is "accused" of the offence specified in the warrant and the requirement in s2(3)(b) that the warrant is issued for the purpose of prosecution, when read together, emphasise that it is not enough that the criminal investigation has reached a stage where the person concerned merely faces suspicion of having committed an office and that the authorities in the requesting state wish to be able to question him with a view to determining whether there is a sufficient case to put him on trial. The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial. This has to be made clear by the language of the EAW, however it is expressed..."

4.43 Recognition of this also runs through a series of French cases under the 2003 Act where the matter has crystallised. The French language version of Article 1.1 of the Framework decision defines ’criminal prosecution’ as ’poursuites penales’. Therefore, the courts have held that it is incumbent upon the UK court to determine (at least where the issue is raised) whether ’poursuites penales’ have actually commenced in France (Vey v The Office of the Public Prosecutor of the County Court of Montlucon, France [2006] EWHC 760 (Admin)). That is so even in a case, such as Vey, where the EAW asserts that the Appellant is ’accused’ (see para. 38).

4.44 As a matter of French law, the commencement of ’poursuites penales’ is closely allied to whether a defendant has been declared ’mise en examen’. Therefore, in Vey (supra), Moses L.J. observed that;

"...39. In order to reach a conclusion it is important to bear in mind the principles identified by Lord Steyn in re Ismail [1999] AC 320. The dichotomy is between those who are merely sought for the purposes of enquiry and those who are accused following an enquiry. The different legal systems concerned in the Framework Decision require a purposive interpretation of "accused" (see Lord Steyn at page 327). In the instant case the appellant contends that she is wanted merely for questioning, that she is not accused and that the purpose of the extradition is not to prosecute since no decision to prosecute has been taken...

41. The essential issue between the experts is as to the stage which the proceedings against the appellant have reached. The appellant’s expert, M. Serres, Avocat à la Cour de Paris, contends that she is not mise en examen. She is therefore not accused and her extradition is not sought for the purposes of taking proceedings against her. The Public Prosecutor disputes the contention that the appellant is not mise en examen...

55. It seems to me that the appellant, supported by M. Serres, has raised a serious doubt as to whether the appellant is properly to be regarded as having the status of mise en examen. Analysis of whether she has that status does not seem to me to offend the principle prohibiting the courts in the United Kingdom from enquiring into the merits of a proposed prosecution in France. Rather, such analysis is necessary in order to determine whether it has been established that extradition is sought for the purpose of being prosecuted. Resolution of that issue is not easy when the process of questioning may itself be part of a judicial criminal procedure...

59. Whilst, I repeat, it is not for this court to question or examine the adequacy of the evidence which forms the foundation of the request for extradition, it is the function of this court to be satisfied as to the stage at which the proceedings have reached. Absent clarity remains the risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. Whilst that dichotomy might become blurred because of the difference in penal procedure, mere suspicion should not found a request for extradition..."

4.45 In Fletcher v The Government of France [2007] Criminal Appeal No. 8, the evidence showed that the Appellant had not yet been declared mise en examen. The Supreme Court of Gibraltar therefore held that (even though criminal proceedings had commenced), no decision had been taken to try Ms. Fletcher. The procedural stage required by Re: Ismail and Vey had therefore not been reached. Ms. Flecther was not ’accused’ (that bearing the same meaning as a decision to try her having been made).

4.46 In Thompson v Public Prosecutor of Boulogne Sur Mer [2008] ACD 5, the materials indicated that Appellant had not been placed under formal examination (mise en examen). Scott Baker L.J. held that;

"...16. Mr Yeo has a much stronger argument, that as an accusation warrant it is invalid because it does not state that the warrant is issued with a view to his arrest and extradition for the purpose of being prosecuted (my emphasis). There is all the difference in the world between being wanted for questioning and being wanted for the purpose of being prosecuted. See, for example, Lord Scott in Office of the King’s Prosecutor, Brussels v Armas [2005] UKHL 67 at paragraph 54...

17. The English translation of the warrant refers not to the purpose of being prosecuted, as required by section 2(3)(b), but instead uses the much broader words "for legal proceedings". We were referred to the original French version of the warrant, which uses the expression "poursuites pénales". We were also referred by Miss Rebecca Hill, who has appeared for the respondent, to the judgment of Maurice Kay LJ in McCormack v the Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin). That was a case in which the court had had the benefit of expert evidence from Professor Jacqueline Hodgson of Warwick University. There has been no such evidence in the present case...

21. Miss Hill submits that the reference to poursuites pénales in the French version of the warrant is sufficient to clarify any uncertainty arising from the English translation of being wanted "for legal proceedings". The English translation leaves it unclear what stage the French proceedings have reached. Some help is to be found at the top of page 4 of the warrant, under the heading "Procedure":

"the preliminary investigation initiated by the Examining Magistrate is still in progress regarding Robert THOMPSON, but in the meanwhile other persons involved were placed under formal examination and appeared before [the] court or were sentenced in spite of being absent."

The clear implication is that the Appellant had not been placed under formal examination and I would find it difficult to conclude on the scant material before the court that the point had been reached where he was wanted for the purpose of being prosecuted. Section 2(3)(b) requires the warrant to contain a statement to that effect, and in my view this warrant does not. I am not persuaded, absent any evidence, that the mere appearance of the words "poursuites pénales" in the French warrant is sufficient to cure the deficiency.

22. Moses LJ had touched on the issue of complying with section 2(3)(b) 2 years before Maurice Kay LJ in Vey v The Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin)...."

4.47 In the same case, Aikens J. held that;

"...31. It is clear, taking the wording of the warrant, as a whole, that this is what Lord Hope in the Armas case at paragraph 27 called an "accusation case" warrant as opposed to a "conviction case" warrant. But, as Lord Hope emphasised at paragraphs 27 and 28 of his speech in the Armas case, if the warrant does not comply with the requirements of section 2 of the 2003 Act, then it is not a warrant within the meaning of that section and the terms of Part 1 of the Act will not apply to it. Accordingly, there will be no jurisdiction to send the person sought to the requesting judicial authority: see Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2006] EWHC 167 (Admin), at paragraph 15 per Smith LJ.

32. The terms of section 2(2)(a) and section 2(3)(a) and (b), which apply to arrest warrants in "accusation" cases, are clear. A Part 1 warrant in an "accusation" case is an arrest warrant which will contain the statement [in sections 2(3)(a) and (b)] ...Given the statement in recital (5) of the Council Framework Decision of 13th June 2002 that the principal object of that decision is to abolish "extradition" between Member States and to replace it with a system of "surrender" between judicial authorities, the reference to "extradition" in section 2(3)(b) may seem a little odd, but that is the wording of the United Kingdom statute.

33. My Lord has already quoted from the speech of Lord Scott of Foscote, at paragraph 54 of the speeches of their Lordships in the Armas case. I need not repeat it. It is an important passage. In two recent cases in the Divisional Court concerning European arrest warrants, problems have arisen over the issue of whether the European arrest warrant in question stated unequivocally that it was issued by the requesting judicial authority for the purpose of prosecuting the person named in the warrant for the offence identified in the warrant. Those cases are, chronologically, Vey v The Office of the Public Prosecutor in County Court of Montluçon, France [2006] EWHC 760 (Admin) and McCormack v the Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin).

34. In each case the dichotomy considered was whether the person whose extradition being sought was an accused as opposed to someone who was merely wanted for questioning. (For the distinction, see the speech of Lord Steyn in re Ismail [1999] AC 320 at page 327). In both the Divisional Court cases I have referred to, this court considered that the question of whether the arrest warrant stated unequivocally that the person whose extradition was sought was for the purpose of being prosecuted turned upon the stage the criminal proceedings had reached in the French criminal court concerned. In each case expert evidence as to French criminal procedure was before the court. In the Vey case the experts did not agree on whether, given the stage of the procedure reached, it warranted the conclusion that the person whose extradition was sought was an accused as opposed to somebody who was merely wanted for questioning.

35. In deciding whether the requirements of section 2(3)(b) of the Act are fulfilled, the court in each case did so on the basis of the wording of the warrant, such extraneous material that it was prepared to admit (such as the further information from the requesting authority sought under Article 15 of the Framework Decision) and expert evidence on French Criminal procedure. In this case we have no extraneous material or expert evidence.

36. The heading of the European arrest warrant in the English version in this case states that the arrest and delivery of Mr Thompson is requested "to the judicial authorities for legal proceedings". That does not follow the English language wording of the pro-forma European arrest warrant that is annexed to the Framework Decision. That refers to a person being arrested and surrendered "for the purposes of conducting a criminal prosecution". That language would obviously satisfy the statutory test under section 2(3)(b), as explained by Lord Scott in the Armas case.

37. Miss Hill points to the French version of the warrant in the present case, which uses the case phrase "soit arrêtée et remise aux autorités judiciaries aux fins de l’exercice de poursuites pénales". She points to the fact that this accords with the French language version of the pro-forma warrant annexed to the Framework Decision. So, she submits, that should be sufficient to satisfy the statutory test in this case. The problem, however, is that there is nothing in the remainder of the warrant, including the section in box E on procedure, which leads to the unequivocal conclusion that the purpose of the arrest and extradition of Mr Thompson is for conducting a criminal prosecution against him. Indeed, both the English and French versions of the statement concerning procedure in box E suggest that the position is undecided as regards Mr Thompson.

38. The English courts are duty bound to interpret national law, particularly Part 1 of the Act, "as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU": see criminal proceedings against Pupino (Case C-105/03) reported at [2006] QB 83, which was quoted in the speech of Lord Bingham of Cornhill in the Dabas case at paragraph 5. Nevertheless, we cannot get away from the plain wording of the statutory requirements. Like my Lord, on this point I am not satisfied that in this case those requirements are fulfilled...".

4.48 In Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille, France [2009] EWHC 2830 (Admin), the High Court found, on the facts of that case, that;

"...In my view it is plain in this case that extradition is sought for the purpose of prosecuting the appellants. There is nothing in the warrants to suggest that they are wanted for questioning only....Significantly, in Thompson, there was a paragraph in the warrant entitled "Procedure" in which it was stated that the preliminary investigation initiated by the examining magistrate was still in progress regarding Thompson, who was alleged to have been involved in tobacco smuggling, while his alleged accomplices were placed under formal examination. It is not surprising that, given that contrast, this court said that the clear implication was that Thompson had not been placed under formal examination. Scott Baker LJ said that that being the case, he would find it difficult to conclude on the scant material before the court that the point had been reached where Thompson was wanted for the purposes of being prosecuted...It is accepted that there is no comparable section contained in these warrants seeking the extradition of these appellants..." [paras. 18-19, per Cranston J.]

"...I agree. The District Judge observed that at face value Thompson creates difficulties in all French accusation cases. I do not accept that this is so. As my Lord has pointed out, the present case is clearly distinguishable from Thompson, where the outcome turned on the particular ambiguity in the warrant. Where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning..." [para. 22 per Scott Baker L.J.].

4.49 The same principles can be seen in play in a recent Czech case, R (Trenk) v District Court In Plzen-Mesto, Czech Republic [2009] EWHC 1132 (Admin), where Davis J. held that;

"...5. The essential issue is whether or not this case has crossed the boundary from investigation into prosecution. Both counsel are agreed on that. It is not seriously disputed that here the appellant may be described as an accused; but what is very much in issue is whether his extradition is for the purposes of prosecution. Further, these matters are common ground: first, that by no standard has the applicant been charged, although it is accepted that that of itself cannot be conclusive of the issue before me; second, he is at least wanted for questioning; and third, it cannot be disputed but that, by the standards of Czech criminal law, the preparatory proceedings leading up to a possible charge have not been concluded..."

6. Miss Nice, appearing on behalf of the respondent, accepts that the European Arrest Warrant cannot, of itself, be conclusive of the matter. She accepts that it is for the country seeking extradition to establish its case that an individual should appropriately be extradited, although she does draw attention to the wording of the European Arrest Warrant and to the fact that the charge is particularised and that it is signed by a judge...

8. ...[having considered supplementary materials concerning the status of the Czech proceedings] The other answers would tend to indicate that what is desired is that he be questioned further before a decision is made as to whether or not to prosecute him...

11. Pausing there, that makes clear, as is made clear elsewhere, that before a criminal charge can be brought the prosecuting attorney first must judge the legitimacy of the suspicion of the committed crime. It seems to me that there is considerable force in the observation of Mr Jones here that while there may be [an] abundance of material to show the police had reasonable grounds for suspicion (and indeed the material shows that they could not have sought to arrest Mr Trenk had they not had reasonable suspicion under Czech law), still it remains for the prosecuting attorney to assess the materials before deciding whether or not the reasonable suspicion was justified and charges should be brought. That has not happened here...

17. ...Ismail sets out the general approach that this court should adopt. True it is that Ismail was a decision under the previous Act, but nevertheless what is said there remains relevant and instructive. I accept that a broad, generous and purposive approach to construction should be adopted in this context, and likewise this court should adopt a cosmopolitan approach and should not seek practically to apply an English and Welsh kind of approach to different systems which prevail elsewhere in Europe.

18. Reviewing the materials that have been put before me, it seems to me that it simply is not established that this case has crossed the boundary from investigation into prosecution. Miss Nice, at one stage in her argument, was in effect reduced to submitting that "the notice of institution of prosecution" under the Czech procedure was, of itself, enough to show that the boundary had been crossed. But one only has to look at the answers given by the Czech authorities to realise that the concept of notice of institution of prosecution simply does not have its literal meaning as translated, in the sense that it does not mean that a "prosecution", in any substantive sense of the word, has actually started in the Czech Republic. On the contrary, it is in substance a formal initiation of the investigatory process, by way of preliminary procedures, enabling Mr Trenk to be arrested in consequence.

19. ...[A]s I read the materials, at least one can deduce that it is nothing like the bringing of charges. Indeed it obviously is not, because (as I have already indicated) charges can in the Czech Republic only follow, first, after the necessary preliminary procedures, second, after the necessary preparatory procedures and third, at the conclusion of the preparatory procedures, when a prosecuting attorney has reviewed the evidence and decided that charges should be brought. None of that has happened here. Miss Nice points out that has not happened here just because Mr Trenk has chosen to absent himself from the Czech Republic. So be it. That does not justify the court in departing from the requirements of the 2003 Act. The position is thus different from, for example, McCormack where police and Public Prosecutor had concluded their investigations and had passed the matter on by requisitoire introductif to the examining Magistrate.

20. It seems to me, reading such materials as have been placed before the court, that what is sought to be done here is to question Mr Trenk further to enable the prosecuting authority to decide whether or not a sufficient case has been established to justify placing the matter before a judge and bringing charges. It may well be that the police have formed their own preliminary view on that in the Czech Republic but that, under Czech law, is not the test. It is the prosecuting attorney who has to decide whether a case can be commenced. That has not happened just because questioning of Mr Trenk has not taken place. Indeed, it is clear enough to me that the reason why Mr Trenk is required to be extradited to the Czech Republic is to enable him to be questioned further to see whether or not charges can or should be brought.

21. Accordingly, and expressing myself relatively shortly, it does seem to me, with all respect, that the District Judge did reach a conclusion which he should not have reached and he ought to have decided this matter differently. Therefore I will allow this appeal..."

The decision of the District Judge

4.50 The District Judge concluded, "I have no doubt that this defendant is wanted for prosecution in Sweden" (page 20, Judgment). The evidence did not show that. The evidence demonstrably showed that the Appellant is wanted in Sweden for the purposes of being interviewed in order to make a decision concerning prosecution.

4.51 But, even if the prosecutor has formed a subjective or provisional intention to prosecute, that does not answer the separate, and additional, objective question posed by section 2(3)(a) read with In re: Ismail [1999] 1 AC 320, HL, namely, have the competent authorities in the foreign jurisdiction have taken a step which can fairly be described as the commencement of a prosecution?

4.52 The evidence before the District Judge unequivocally confirmed that no such step had been taken. For so long as the investigation remains open, and the prosecutor does not yet have available to her all the evidence upon which to make a properly informed decision, no prosecution has commenced. In fact, there exists very good evidential reasons in the present case why a prosecution may never be commenced.

4.53 The evidence of Mr. Sven-Erik Alhem, a Swedish former prosecutor, before the District Judge on 8th February 2011, unchallenged on this point, confirms that:

i. Section 20 of the Swedish Criminal Code states categorically and in terms that "...upon the conclusion of the preliminary investigation, a decision on whether to institute a prosecution shall be issued."

ii. The Svea Court of Appeal issued the warrant for Mr Assange’s arrest as a "suspect" and not as the "accused". Mr Assange is, as a matter of Swedish law, at this stage a "suspect" and not an "accused".

4.54 There was ultimately no dispute that the preliminary investigation in this case has not concluded, and it follows that no decision to prosecute has been taken. This is precisely what the Swedish prosecutor confirmed to the Australian ambassador in December 2010, shortly after the EAW had been issued:

"...I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case..." .

4.55 The learned District Judge rightly observed that "...I cannot say when or what step was taken that can fairly be described as the commencement of a prosecution...", but nonetheless concluded that "...the boundary between suspicion and preliminary inquiries on the one hand, and prosecution on the other, had been crossed...". Such an approach is, for the reasons detailed above, legally flawed.

4.56 The importance of Ismail threshold cannot be overemphasised. It is the only House of Lords’ authority on this vexed area of extradition law and is repeatedly cited and followed in later decisions. It is a unanimous decision of their Lordships’ House and it unambiguously establishes the boundary between suspicion and preliminary inquiries on the one hand, and prosecution on the other. It requires "a step which can fairly be described as the commencement of a prosecution". Since Swedish law does not describe the step of seeking to arrest and interrogate as the commencement of a prosecution, and in fact expressly precludes that description, it is inappropriate for an English court to take a different view.

4.57 Lord Steyn’s term "cosmopolitan approach" does not mean a "lowest European denominator" or broad brush sense or feeling from the evidence that a foreign prosecutor is likely to charge. It means that the judge must avoid parochial comparisons with English police/CPS practice, and examine the actual law in the issuing state. An examination of the Swedish Criminal Procedure Code establishes that the prosecutor simply cannot bring her mind to bear in any concluded way as to whether she will charge or not at this stage before she has offered the defendant various opportunities to provide further evidence and to re-direct her investigations. She cannot make a judgment part-way through her preliminary investigation. That is the law in Sweden, and however much she may think she is likely to prosecute, and however much the district judge thinks she is likely to prosecute, this does not alter the fact that at this stage the law does not permit her to make that decision, and the objective of the warrant can only be to extradite for arrest and interrogation.

The time for assessment of validity

4.58 The District Judge observed that;

"...I am not helped by comments Ms. Ny may have made before the warrant was issued. Her position may have changed over time, for example after Mr. Assange did not present himself in Sweden for interview..." (Judgment, page 18)

4.59 The Appellant would make two points in respect of that observation. First, Ms. Ny’s confirmations as to the purpose of the warrant include statements made after the warrant was issued.

4.60 Secondly, it is established law that the validity of an EAW falls to be determined at the date of its issuance. If the competent authorities in the foreign jurisdiction take a step which can fairly be described as the commencement of a prosecution, after an EAW is issued, the prior invalid EAW is not capable of being recalled into action to deal with this new and changed set of factual circumstances; it is already invalid.

4.61 Put another way, an invalid EAW cannot be cured by subsequent information. See above paragraphs 3.32-3.36 and Dabas v High Court of Madrid per Lord Hope of Craighead at para. 50).

4.62 Thus an EAW issued for an invalid purpose, or at an inappropriate stage in proceedings, cannot be cured by the subsequent emergence of a valid purpose or the progression of the case to an appropriate stage in proceedings. What is required in those circumstances is a fresh EAW (in respect of which the validity requirements of the 2003 Act can be properly assessed).

Paschayan

4.63 Moreover, this is not a case comparable to, say, Paschayan v Government of Switzerland [2008] EWHC 388 (Admin) at paras. 27-28 or McCormack v Tribunal de Grand Instance, Quimper, France [2008] EWHC 1453 (Admin), where a decision to charge had been taken and only remained unimplemented because, under the law of the Requesting State, the case could not legally proceed until the defendant was physically there.

4.64 In her statement of 4th February 2011, the Swedish prosecutor states that:

"...7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently act. Julian Assange’s case is currently at the stage of ’preliminary investigation’. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated..."

4.65 The unchallenged evidence before the District Judge demonstrated that that is not quite accurate. True it is that the preliminary investigation will only be concluded when the Appellant is interrogated, but Sven Erik-Alhem confirmed on aoth that under Swedish law that interrogation may be conducted by;

• Telephone,

• Video-link,

• In person at an Embassy in the United Kingdom, or

• In person in the United Kingdom by means of Mutual Legal Assistance provisions. The EU Convention on Mutual Legal Assistance in Criminal Matters (2000, C197/01) and Protocol (2001/C326/01) make arrangements for a witness in one country to give evidence in proceedings in another.

4.66 The Appellant has offered all of the above. The Swedish prosecutor has declined them all; without substantive reason. There exists no legal or procedural obstacle to the Swedish authorities taking the Appellant’s evidence now in any of the above forms and ending the preliminary investigation. In the Swedish Supreme Court decision in (2007) NJA s.337, a Swedish national resident in Dubai was suspected on reasonable grounds of tax fraud. The investigation, like here, was at the preliminary investigation stage. The Supreme Court ruled that an arrest warrant in absentia was disproportionate given that the prosecutor could carry out the investigation via telephone or in writing.

4.67 The Appellant’s absence from Sweden constitutes no legal bar to his interview occurring. Indeed, it has occurred in respect of the AA allegations. Insofar as it has not occurred in respect of the SW allegations, that is for reasons that have not been explained. In both cases, there exists no legal or procedural obstacle to the Swedish authorities proceedings in any of the above forms and ending the preliminary investigation should they see fit.

Submission 2A

4.68 This entire issue can be assessed another way.

4.69 Prior to being charged (or a step being taken that can fairly be described as the commencement of a prosecution), a criminal suspect is someone to whom the Mutual Legal Assistance treaty provisions (and Chapters 2-3 of Part 1 of the Crime (International Co-Operation) Act 2003) are capable of applying. His account may (and should) be taken pursuant to those provisions.

4.70 So long as that option is available to a foreign prosecutor, there is no need to use the extradition system at all. On the contrary, the use of the extradition system in those circumstances is wholly inappropriate.

4.71 In legal terms, it is disproportionate and contrary to Article 52 of the EU Charter of Fundamental Rights.

4.72. The Framework Decision as an EU instrument is now subject to the provisions of the Charter of Fundamental Rights, pursuant to Article 6(1) of the Treaty om European Union. The Court of Appeal recently noted that the Charter is binding on UK courts whenever they are interpreting or applying EU law, as this court must do at this hearing: see R (NS) v Secretary of State for the Home Department [2010] EWCA Civ 990.

4.73 Article 52 of the Charter provides that:

"...Scope of guaranteed rights: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others..."

4.74 The Charter provision makes proportionality a key feature of the Framework Decision and applies to cases like this in which UK courts must apply European law: the UK has not been relieved of this duty by Protocol No. 30 (R (NS) v Secretary of State for the Home Department (supra)). The EAW is a draconian instrument which affects individual liberty, freedom of movement and private life: it should only be resorted to if other, less invasive, measures for achieving the general interest have failed or are unavailable. If they are available, the court must decide whether the issuance of an EAW was necessary, given its impact on Mr. Assange, its occupation of the time of the court and its expense - which must be borne by the UK (Framework Decision, Article 30).

4.75 The principle of proportionality is well established and a High Court in Germany has recently held, specifically in respect of EAW, that

"...the principle of proportionality of criminal offences and penalties ... is a general principle of the Union’s law..." (GPPS v C, 25th Feb. 2010).

4.76 The Council of the European Union in 2008 issued the "European Handbook on how to issue the EAW", chapter 3 of which ("The principle of Proportionality") states;

"...When it comes to issuing an EAW, in each case an evaluation should be made which takes into account all the various elements, including the seriousness of the offence, the measures and resources to be deployed in the executing state and, in particular, the fact that it involves depriving an individual of his or her freedom..." (Council of Europe document 8216/2/08 18th June 2008).

4.77 Applying for the EAW without resorting first to voluntary cooperation and secondly mutual legal assistance is plainly disproportionate. The results sought to be achieved by this EAW could have achieved the same result by much less draconian means.

4.78 No floodgates argument arises from the application of Article 52 in this context. In any case where a prosecution has commenced, the EAW is appropriate and proportionate. This issue only arises in cases where, as here, no prosecution has commenced. Such EAWs should ordinarily be barred by section 2(3). But if, for some reason, they are not (such as by virtue of the operation of the illogical ’ambiguity’ threshold in Asztaslos), then Article 52 provides redress.

4.79 If the court permits this extradition to go ahead, prosecutors throughout Europe will be encouraged to eschew mutual assistance and issue EAWs prior to the commencement of any prosecution. The courts can, by using their power to dismiss EAWs for proportionality, encourage prosecutors to make use of mutual legal assistance treaties and to follow the prescription of the European Council handbook.

1326 days under house arrest.

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