Julian Assange v Swedish Prosecution Authority
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Phillips'S,Lord Mance,Lord Dyson,Lord Brown,Lord Kerr,Lord Phillips,Lord Walker |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] UKSC 22 |
| Date | 31 May 2012 |
| Court | Supreme Court |
[2012] UKSC 22
Lord Phillips, President
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Dyson
Appellant
Dinah Rose QC Mark Summers Helen Law (Instructed by Birnberg Peirce and Partners)
Interveners (Mr Gerard Batten MEP and Mr Vladimir Bukovsky) Paul Diamond
(Instructed by Chambers of Paul Diamond)
Respondent
Clare Montgomery QC Aaron Watkins Hannah Pye (Instructed by Special Crime Division, Crown Prosecution Service)
Intervener (Lord Advocate)
P Jonathan Brodie QC
(Instructed by The Appeals Unit, Crown Office)
Heard on 1 and 2 February 2012
On 2 December 2010 the Swedish Prosecution Authority ("the Prosecutor"), who is the respondent to this appeal, issued a European Arrest Warrant ("EAW") signed by Marianne Ny, a prosecutor, requesting the arrest and surrender of Mr Assange, the appellant. Mr Assange was, at the time, in England, as he still is. The offences of which he is accused and in respect of which his surrender is sought are alleged to have been committed in Stockholm against two women in August 2010. They include "sexual molestation" and, in one case, rape. At the extradition hearing before the Senior District Judge, and subsequently on appeal to the Divisional Court, he unsuccessfully challenged the validity of the EAW on a number of grounds. This appeal relates to only one of these. Section 2(2) in Part 1 of the Extradition Act 2003 ("the 2003 Act") requires an EAW to be issued by a "judicial authority". Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid. This point of law is of general importance, for in the case of quite a number of Member States EAWs are issued by public prosecutors. Its resolution does not turn on the facts of Mr Assange's case. I shall, accordingly, say no more about them at this stage, although I shall revert briefly to them towards the end of this judgment.
Part 1 of the 2003 Act was passed to give effect to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between Member States of the European Union 2002/584/JHA ("the Framework Decision"). I annexe a copy of the English version of the Framework Decision to this judgment. As can be seen, the phrase "judicial authority" is used in a number of places in the Framework Decision. In particular it is used in article 6, which provides:
"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State."
It is Mr Assange's primary case, as presented by Miss Dinah Rose QC, that "judicial authority" bears the same meaning in the Framework Decision as it bears in the 2003 Act, so that the Prosecutor does not fall within the definition of "issuing judicial authority" within article 6 of the Framework Decision. Alternatively Miss Rose submits that, if "judicial authority" in article 6 of the Framework Decision has a meaning wide enough to embrace the Prosecutor, it has a different and narrower meaning in the 2003 Act. She seeks to support that meaning by reference to parliamentary material.
Miss Rose contends that a "judicial authority" must be a person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a "judicial authority". In effect, Miss Rose's submission is that a "judicial authority" must be some kind of court or judge.
Miss Clare Montgomery QC for the Prosecutor contends that the phrase "judicial authority", in the context of the Framework Decision, and other European instruments, bears a broad and autonomous meaning. It describes any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies, some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of which do not. In some parts of the Framework Decision the term "judicial authority" describes one type, in other parts another. A prosecutor properly falls within the description "judicial authority" and is capable of being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision.
Part 1 of the 2003 Act has unfortunately spawned more than its share of issues of law that have reached the highest level. In Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 Lord Bingham of Cornhill remarked at para 8 that interpretation of Part 1 of the 2003 Act
"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."
Lord Hope of Craighead at para 24 adopted what might appear to be a conflicting approach. He expressed the view that the task of interpreting Part 1 so as to give effect to the Framework Decision should be approached on the assumption that, where there were differences, these were regarded by Parliament as a necessary protection against an unlawful infringement on the right to liberty. Both Lord Bingham and Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 returned to this topic after the Grand Chamber of the European Court of Justice had commented on it when giving a preliminary ruling in Criminal proceedings against Pupino ( Case C-105/03) [2006] QB 83, to which I shall shortly refer. The House was concerned with the effect of section 64(2)(b) of the 2003 Act, which on its face appears to require an EAW to be accompanied by a separate certificate that the conduct in respect of which surrender is sought falls within the Framework list. The issue was whether it was sufficient that the warrant itself so certified. In holding, in agreement with the rest of the House, that it was, Lord Hope, after citing from Pupino, referred with approval to Lord Bingham's statement in Cando Armas and remarked that the imposition of additional formalities not found in the Framework Decision by one member state to suit its own purposes would tend to frustrate the objectives of the Decision.
Article 34.2(b) of the EU Treaty provides:
"Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect."
In Pupino the European Court of Justice held at para 43:
"When applying the national law, the national court that is called on to interpret it must do so 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."
In a well reasoned written joint intervention Mr Gerard Batten MEP and Mr Vladimir Bukovsky comment on the uncertainty of the scope of the phrases "result to be achieved", "purpose of the framework directive" and "result which it pursues". They argue that these should be treated as referring to the specific objectives of the particular Framework Decision and not the wider objectives of the EU Treaty that the specific objectives may be designed to serve. I have concluded that their interesting discussion does not bear on the issue that this Court has to resolve. What is in issue in respect of the construction of the 2003 Act is not a suggestion that the English Court ought, when interpreting the 2003 Act, to follow some general objective that the Framework Decision is designed to advance. It is the narrow issue of whether the words "judicial authority" in section 2(2) of the 2003 Act should, if possible, be accorded the same meaning as those two words bear in the parallel requirement in article 6 of the Framework Decision.
I have read with admiration Lord Mance's analysis of the effect of the decision in Pupino and I accept, for the reasons that he gives, that it does not bind this Court to interpret Part 1 of the 2003 Act, in so far as this is possible, in a manner that accords with the Framework Decision. I consider, none the less that it is plain that the Court should do so. This is not merely because of the presumption that our domestic law will accord with our international obligations. As Lord Mance himself acknowledges at para 201 of his judgment Part 1 of the 2003 Act was enacted in order to give effect to the Framework Decision. The immediate objective of that Decision is to create a single uniform system for the surrender of those accused or convicted of the more serious criminal offences. That objective will only be achieved if each of the Member States gives the same meaning to "judicial authority". If different Member States give different meaning to those two words, that uniformity will be destroyed. In these circumstances it is hard to conceive that Parliament, in breach of the international obligations of this country, set out to pass legislation that was at odds with the Framework Decision. It is even more difficult to conceive that Parliament took such a course without making it plain that it was doing so. For this reason it is logical to approach the interpretation of the words "judicial authority" on the presumption that...
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