Krupeckiene v Public Prosecutor's Office Lithuania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE,Thirlwall LJ |
| Judgment Date | 11 March 2019 |
| Neutral Citation | [2019] EWHC 569 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4544/2017 |
| Date | 11 March 2019 |
[2019] EWHC 569 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Thirwall
Mrs Justice Elisabeth Laing
Case No: CO/4544/2017
David Perry Q.C. and Saoirse Townshend (instructed by Lloyds PR) for the Appellant
James Stansfeld (instructed by CPS) for the Respondent
Hearing dates: 5/2/2019
Approved Judgment
Introduction
This is my decision after a ‘rolled-up’ hearing of the Appellant's application for permission to appeal, and, if permission to appeal is granted, of her appeal. This hearing was ordered by Wyn Williams J on 18 January 2018 after a renewed hearing of the Appellant's application for permission to appeal, Nicol J having refused permission to appeal on the papers on 4 December 2018.
The Appellant was represented by Mr Perry QC and Ms Townshend, and the Respondent by Mr Stansfeld. I am grateful to all counsel for their lucid written and oral submissions.
The main issue
The main issue on this appeal is whether or not the Prosecutor General's Office in Lithuania (‘the PGO’) is a ‘judicial authority’ for the purposes of section 2(2) of the Extradition Act 2003 (‘the 2003 Act’), and for the purposes of the Council of the European Union Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States of the European Union 2002/584/JHA (‘the Framework Decision’).
The Supreme Court of Ireland (‘the SCI’) has, in effect, referred that question to the Court of Justice of the European Union (‘the CJEU’). That leads to a further issue, which is whether that reference affects the analysis. If it does, there is a further question, which is what the court should do in the light of that.
The facts
Because the issues on this hearing are narrow, I do not consider it necessary to say much about the facts. The Appellant's extradition is sought pursuant to an accusation European Arrest Warrant (‘EAW’) issued by Zydunas Radisuaskas, the Deputy Prosecutor of the PGO, on 28 April 2016. The EAW was certified by the National Crime Agency on 12 May 2016. She is sought in relation to an allegation that she committed four offences of fraud between 2008 and 2009. Lithuania has been designated a Category 1 territory pursuant to section 1 of the 2003 Act. Part 1 of the 2003 Act therefore applies.
On 14 June and 13 July 2017, there was an extradition hearing in front of District Judge Goldspring (‘the DJ’). He handed down a written judgment on 27 September 2017, ordering the Appellant's extradition.
He held that part of the expert evidence (in a report from Arturas Gutauskas) on which the Appellant wished to rely was inadmissible, in short, because the issue it dealt with had been decided in Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22; [2012] 2 AC 471. That issue, in short, was whether a public prosecutor was a ‘judicial authority’ for the purposes of the Framework Decision. The Supreme Court had decided that a public prosecutor was a judicial authority. The DJ was bound by that decision. As a result, he would not be helped by the part of the expert's report which considered that issue (and came to a different conclusion). He considered the only substantive issue which is relevant to this appeal very shortly. He decided, again, that he was bound by Assange to hold that the PGO was ‘judicial authority’ for the purposes of section 2(2) of the 2003 Act.
The sole ground of appeal, which I have already foreshadowed, is that the DJ erred in deciding that the PGO is a ‘judicial authority’ for the purposes of section 2(2) of the 2003 Act.
The Framework Decision
Recital (5) states that the European Union's objective of becoming an area of freedom, justice and security entails substituting for extradition between member states a system of surrender between judicial authorities. There should be a system of free movement of judicial decisions in criminal matters. Recital (6) states that the EAW is the first concrete measure in the field of criminal law. It implements the principle of mutual recognition which the Council of Europe has described as ‘the cornerstone of judicial co-operation’. Recital (8) says that decisions on EAWs ‘must be subject to sufficient controls, which means that a judicial authority of the member state where the requested person has been arrested will have to take a decision on his or her surrender’.
Article 1.1 of the Framework Decision provides that the EAW is a ‘judicial decision…’. Article 6.1 is headed ‘Determination of the Competent Judicial Authorities’. Article 6.1 provides that ‘The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a [EAW] by virtue of the law of that state’. Article 6.3 requires each member state to tell the General Secretariat of the competent judicial authority under its law.
Article 8 makes provision about the content and form of the EAW. By article 8(1)(c) the EAW must contain ‘evidence of an enforceable judgment, an arrest warrant, or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2’.
The approach of the Supreme Court to the Framework Decision
The question in Assange on the facts was whether the Swedish Prosecution Authority, which had issued an accusation warrant demanding the surrender of the Appellant, was a judicial authority for the purposes of the Framework Decision. But the point of law of general public importance which was certified, as Mr Stansfeld rightly points out, and as Mr Perry accepts, was a more general point about prosecutors. The Supreme Court held that the Framework Decision was not a ‘treaty’ as defined in section 1 of the European Communities Act 1972 (‘the 1972 Act’) and so outside the scope of sections 2 and 3 of the 1972 Act. Decisions of the CJEU were not binding and the only relevant principle was that there was a (strong) presumption that the 2003 Act was to be read consistently with the United Kingdom's obligations under the Framework Decision (see per Lord Mance at paragraphs 198–218, with whom the majority agreed on this issue).
I should say that that position has since changed, the parties agree, as a result of the United Kingdom's opt-in to Title VI of the Treaty on the Functioning of the European Union. The principle of conforming interpretation articulated in Criminal Proceedings against Pupino (Case C-105/03) [2006] QB 83, now applies to the courts of England and Wales when they interpret the Framework Decision. The court must interpret ‘judicial authority’ in section 2(2) of the 2003 Act, in so far as it is possible to do so, but not contra legem, in the light of the wording and purpose of the Framework Decision, in order to obtain the result which it pursues. I am bound by decisions of the CJEU which interpret the Framework Decision.
The appellant's argument in Assange was that a judicial authority had to be independent of the executive and of the parties. The prosecutor was and would continue to be a party in the criminal process, and so could not be a ‘judicial authority’. That argument was rejected by the majority.
Lord Phillips gave the leading speech. He gave five reasons for holding that the Public Prosecutor was a judicial authority. The other members of the majority (Lords Walker, Brown, Kerr, and Dyson SCJ) all agreed with his fifth reason. The majority held (in short) that the role of state prosecutors in issuing (as opposed to executing) arrest warrants was traditional in many member states (see, for example per Lord Kerr at paragraphs 104 and 106) and that the Framework Decision was not intended to change that, and/or that it was legitimate to look at subsequent state practice as a guide the interpretation of ‘judicial authority’. There was sufficient state practice to establish that member states had agreed that a prosecutor was a judicial authority for this purpose. It was to be presumed that ‘judicial authority’ in section 2(2) of the 2003 Act meant the same as ‘judicial authority’ in the Framework Decision. When the decision in Assange was made, it seems that the issuing authority for accusation EAWs was a public prosecutor in 11 member states, a judge in 17, and Ministry of Justice in two (see, for example, per Lord Dyson SCJ at paragraph 129).
The issue in Bucnys v Ministry of Justice of Lithuania [2013] UKSC 31 was whether the Ministries of Justice of Lithuania and Estonia were ‘judicial authorities’ for the purposes of the Framework Decision. The EAWs at issue in the three appeals were conviction warrants. Lord Mance said that the issue was whether ‘judicial authority’ included ‘any category of persons beyond courts, judges, magistrates and (in the light of Assange) public prosecutors’ (paragraph 34).
In paragraph 20, Lord Mance referred to paragraphs 208–217, 201 and 204–6 of Assange [2012] 2 AC 471. He acknowledged that the Framework Decision was not subject to section 3 of the 1972 Act, so that domestic courts are not obliged to treat any question about the meaning of any European instrument as a question of law to be decided in accordance with principles laid down by the CJEU. But, he said, obiter, as an international measure having direct effect at an international level, the United Kingdom must have anticipated that it would be interpreted uniformly and in accordance with European legal principles. In his view it was therefore ‘appropriate to have regard to European legal principles in interpreting the Framework Decision’.
He did not accept, in paragraph 22, that the effect of article 6(3) of the Framework Decision was that the notification by a member state to the Secretariat of the...
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