Julian Assange v Swedish Prosecution Authority
| Jurisdiction | England & Wales |
| Judge | The President of the Queen's Bench Division,THE PRESIDENT,MR JUSTICE OUSELEY |
| Judgment Date | 05 December 2011 |
| Neutral Citation | [2011] EWHC 2849 (Admin) |
| Docket Number | CO/1925/2011,Case No: CO/1925/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2011 |
[2011] EWHC 2849 (Admin)
The President Of The Queen's Bench Division
(Sir John Thomas)
and
Mr Justice Ouseley
Case No: CO/1925/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London. WC2A 2LL
Mr Ben Emmerson QC and Mr M Summers (instructed by Birnberg Peirce) for the Appellant
Ms Clare Montgomery QC, Mr A Watkins and Ms H Pye (instructed by CPS) for the Respondent
Hearing date: 12 and 13 July 2011
Approved Judgment
This is the judgment of the court
Introduction
In August 2010 the appellant, Mr Julian Assange, a journalist well known through his operation of Wikileaks, visited Sweden to give a lecture. Between 13 August 2010 and 18 August 2010, Mr Assange had sexual relations with two women there, AA and SW. On 20 August 2010 SW, accompanied by AA, went to the police. The police treated their visits as the filing of complaints. On 30 August 2010 Mr Assange, who had voluntarily remained in Sweden to co-operate with the investigation, was interviewed. Mr Assange subsequently left Sweden on or about 27 September 2010 in ignorance of the fact that an arrest warrant had been issued. Attempts had been made by the Swedish prosecutor to interview him.
After proceedings in the courts of Sweden, including a hearing before the Court of Appeal of Svea on 24 November 2010, at which Mr Assange was represented and to which we refer in more detail at paragraph 51, a European Arrest Warrant (EAW) was issued on 26 November 2010 by the Swedish Prosecution Authority (the Prosecutor), the Respondent to this appeal. It was signed by Marianne Ny, a prosecutor. The warrant stated that:
"This warrant has been issued by a competent authority. I request the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
It set out four offences:
"1. Unlawful coercion
On 13–14 August 2010. in the home of the injured party [AA] in Stockholm. Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.
2. Sexual molestation
On 13–14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom he used, consummated unprotected sexual intercourse with her without her knowledge.
3. Sexual molestation
On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.
4. Rape
On 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state.
It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity."
No other description of the conduct was given elsewhere in the EAW.
On 6 December 2010 the EAW was certified by the Serious and Organised Crime Agency (SOCA) under the Extradition Act 2003, (the 2003 Act), as complying with the requirements of the 2003 Act. On 7 December 2010 Mr Assange surrendered himself for arrest. On 7, 8 and 11 February 2011 there was a hearing before the Senior District Judge and Chief Magistrate, Senior District Judge Riddle. Evidence was given by Brita Sundberg-Weitman, a former judge of the Svea Court of Appeal and distinguished jurist, Mr Goran Rudling, an expert in the law relating to sexual offences in Sweden, Mr Sven-Eric Alhem, a retired senior prosecutor, and Mr Bjorn Hurtig, Mr Assange's lawyer in Sweden. The evidence is carefully summarised in the judgment of the Senior District Judge.
In a judgment given on 24 February 2011 the Senior District Judge ordered Mr Assange's extradition.
Mr Assange originally appealed on a number of grounds; these were reduced to five in a skeleton argument served on behalf of Mr Assange on 29 June 2011. As a result of clarification provided by the Prosecutor, and an amendment to the translation of one of the parts of the EAW, one of those grounds was withdrawn. The four issues that arose on the grounds can be briefly summarised as follows:
i) The EAW had not been issued by a "judicial authority".
ii) Offences 1–3 described in the EAW (set out at paragraph 3 above) did not meet the dual criminality test. None was a fair and accurate description of the conduct alleged. As regards offence 4, the conduct, if fairly and accurately described, would not have amounted to the offence of rape.
iii) The condition in s.2(3) of the 2003 Act had not been satisfied as Mr Assange was not an "accused".
iv) The issue of the EAW and subsequent proceedings were not proportionate.
The first issue was argued as the last issue, but it is convenient to consider the issues in the order we have set them out.
Mr Assange did not pursue the allegation made before the Senior District Judge that there had been abuse in issuing the EAW for a collateral purpose or that there had otherwise been an abuse of process.
Our general approach
Before turning to the detail of the issues, it may be helpful to set out the approach we have taken to a number of more general issues, as that approach is material to each of the issues which arises.
(a) Construction of the 2003 Act
The powers of the court in ordering the surrender of a person to another Member State of the European Union are governed by Part 1 of the 2003 Act. It was enacted to implement the Framework Decision establishing the EAW regime —legislation adopted on 13 June 2002 by the Council of the European Union. Although Part 1 of the 2003 Act could be applied to other territories, it has not been so applied. Part 2 of the Act applies to extradition to other States with which the United Kingdom has extradition arrangements.
Although the 2003 Act does not mention the Framework Decision, it is now well established that Part 1 of the 2003 Act must be read in the context of the Framework Decision and that the national courts of the Member States should construe national laws so far as possible to attain the results sought to be achieved by the Framework Decision: see Criminal Proceedings against Pupino ( Case C105/03 [2006] QB 83 at paragraphs 43 and 47 and Dabas v High Court of Justice in Madrid [2007] UKHL 6, [2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15–22 (Lord Hope), paragraph 76 (Lord Brown); a helpful review is made by Professor John Spencer in (2009) 30 Statute Law Review 184.
(b) The differences between the 2003 Act and the Framework Decision
However, although the courts must give effect to the purpose of the 2003 Act as national legislation implementing the Framework Decision, the court has to consider carefully the position where the terms of the 2003 Act and the Framework Decision differ. In Officer of the King's Prosecutor Brussels v Cando Armas [2006] 2 AC 1, Lord Bingham expressed at paragraph 8 his view:
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation 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."
He agreed, however, with Lord Hope who said at paragraph 24:
"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But 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."
Recital 12 of the Framework Decision permitted Member States to apply constitutional rules relating to due process.
(c) The purpose of the Framework Decision
The purpose of the Framework Decision, as set out in the recitals to the Framework Decision and the EU Commission's Explanatory Memorandum (2001/0215 dated 25 September 2001) was to replace the European Extradition Convention of 1957 and other Conventions by a new regime. The new regime was to be a regime for surrender between judicial authorities founded on the basis of the common area for justice and the principle of mutual recognition of judicial decisions and judgments as "the cornerstone of judicial co-operation in both civil and criminal matters". Recital (5) stated:
"The objective set for the Union to become an area of...
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