Norbert Binder v Public Prosecutor's Office, Memmingem, Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 03 February 2014 |
| Neutral Citation | [2014] EWHC 133 (Admin) |
| Date | 03 February 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12719/2013 |
[2014] EWHC 133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/12719/2013
Joel Smith (instructed by Lawrence & Co Solicitors) for the Appellant
Hannah Hinton (instructed by CPS Extradition Unit) for the Defendant
The Appellant is the subject of a European arrest warrant (EAW) issued by the Chief Public Prosecutor of the Respondent on 25 September 2012 and certified by the Serious Organised Crime Agency on 20 January 2013. The warrant is accusatory; it alleges that the Appellant inflicted substantial injuries on a Melik Yasar by strangling him on 4 December 201On 5 September 2013 District Judge Zani sitting at the Westminster Magistrates' Court made an order for the Appellant's extradition pursuant to section 21(3) of the Extradition Act 2003.
There was but one objection to the order made by District Judge Zani namely that the EAW had not been issued by a "judicial authority" within section 2 of the 2003 Act. The District Judge decided that the Respondent was a judicial authority within the 2003 Act and the issue in this appeal is whether or not that conclusion was correct.
The relevant legislative provisions and European law background are set out in paragraphs 8 to 11 of the judgment of Lord Mance JSC in Ministry of Justice, Republic of Lithuania v Bucnys [2013] 3WLR 1485. In summary, by virtue of section 2(2) of the 2003 Act a EAW is valid only if it is issued by a judicial authority. The Act contains no definition of judicial authority. However, Part 1 of the 2003 Act (which includes section 2) was enacted so as to give effect to a document known as the Framework Decision (as to which see paragraph 9 in Bucnys). Article 6 of the Framework Decision provides:-
" Determination of the competent judicial authorities
(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.
(2) The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that state.
(3) Each member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
The decision of the Supreme Court in Assange v Swedish Prosecution Authority [2012] 2 AC 471
In Assange the Supreme Court considered an appeal from the Divisional Court of the Queen's Bench Division which had held that the Swedish Prosecuting Authority was a judicial authority within the Framework Decision and section 2(2) of the 2003 Act. The Supreme Court was constituted by seven Justices and by a majority of 5 to 2 the court upheld the decision of the Divisional Court.
Mr Smith does not seek to argue that the decision in Assange should be read as referring only to the position of Swedish prosecuting authorities. At first blush, therefore, it seems that I am bound to conclude that the Respondent in this case is a judicial authority. Mr Smith submits, however, that much of the reasoning underpinning the decision in Assange has been held to be flawed in Bucnys. In reality, he invites me to conclude that the effect of Bucnys is that courts at first instance are entitled to revisit the issue of whether or not a public prosecutor is a judicial authority and determine that issue by reference to the evidence available in the particular case in question.
In order to understand the way in which Mr Smith develops his argument it is necessary, first, to consider parts of the judgments in Assange in some detail. Accordingly, what follows is my attempt at an analysis of the parts of the judgments of the majority which throw light on the ratio of the decision.
At paragraphs 4 and 5 Lord Phillips PSC defined the issue for decision. He said:-
"4. 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.
5. 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 a judicial process. The term embraces the 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 of "judicial authority" and is capable of being the judicial authority competent to issue an EAW under Article 6 if the law of the states so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision."
At paragraph 76 Lord Phillips concluded that the phrase was not confined to meaning some kind of court or judge and embraced a prosecutor. That conclusion was underpinned by 5 specific reasons which were articulated in paragraphs 60 to 75. The first reason given by Lord Phillips was that had the Member States intended to restrict the power to issue EAWs to a judge that would have been stated expressly in the Framework Decision. As Lord Phillips observed such a change in arrangements "would have been radical, and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957." The second reason given by His Lordship was that he found it hard to see why the majority of Member States would have wished to restrict the ambit of the issuing judicial authority simply to courts and judges. In formulating his third reason Lord Phillips considered the significance of the fact that the final version of the Framework Decision did not provide a definition of a judicial authority which included a public prosecutor within the ambit of the phrase whereas an earlier draft had defined judicial authority as including a public prosecutor. About this change Lord Phillips said:-
" 65 In the third place I find it likely that the removal of the definition of judicial authority as being a "judge or public prosecutor" was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or public prosecutor. Member States had existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State which involved their domestic arrest procedures. They also had existing procedures for giving effect to extradition requests. The authorities involved in these procedures were not restricted to judges and prosecutors. It seems to me to be likely that the removal of a precise definition of judicial authority was intending to leave the phrase bearing its "sens vague" so as to accommodate a wider range of authorities."
Lord Phillips' fourth reason related to the language of parts of the Framework Decision other than article 6. In his view there were provisions of the Decision which suggested that the meaning of judicial authority was not restricted to a court or judge. The fifth reason was as follows:-
" 67 In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". The EAW process of the Member States was subject to reports by the Commission and Evaluation Reports on the working of the EAW prepared by experts and submitted to the Council (see below). The practices of the Member States in relation to those they appointed as issuing and executing "judicial authorities" coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision."
Lord Walker JSC delivered a very short concurring judgment stating that he agreed with the majority that the appeal should be dismissed. He said, expressly, that the reasoning of the majority which he found most compelling was that "on the application of the Vienna Convention". He said in terms that the "Vienna Convention point [is] to my mind determinative." He declined to offer a view on the other reasons underpinning the judgment of Lord Phillips "on which different members of the majority may take rather different views."
At paragraph 95 Lord Brown JSC expressed himself thus:-
" I too conclude, in common with the great majority of the court, that the term "judicial authority" within the meaning of the Framework Decision is properly to be understood as including public prosecutors. Although, like...
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