Assange v Swedish Prosecution Authority

Issues: 
(A) Whether the term "judicial authority" within the meaning of the Council Framework Decision of 13 June 2002 on the European arrest warrant (the "Framework Decision") and the surrender procedures between Member States include public prosecutors;
(B) Whether the same meaning shall be given to the relevant provisions in Extradition Act 2003.

LORD PHILLIPS: 
(A) Interpretation of the Framework Decision 
(1) the natural meaning of "judicial" given in the Oxford English Dictionary does not include public prosecutors, however, according to Vocabulaire Juridique, 1990 European Convention on money laundering and council framework decisions in respect of European evidence warrant, the French word "judicaire" has a broader meaning and includes public prosecutors in certain circumstances. Since the French version was prepared first, in the event of conflict, the meaning of French version prevails. (Paras 16-21)       
(2) the purpose of the Framework Decision is to facilitate movement of judicial decisions in criminal matters in member states, by removing the political phase and the administrative redress phase in the traditional extradition process and promoting direct co-operation between relevant authorities in different Member States. (Paras 22-25) 
(3) 1957 European Convention on Extradition:
(3.1) the system established by the Framework Decision is more similar to the system introduced by the 1957 European Convention on Extradition rather than the traditional extradition process ? the European Arrest Warrant ("EAW") aimed to replace the traditional extradition arrangements and had to have the same scope of application as the system of extradition built on the 1957 Convention (paras 42-43). For the traditional extradition process, more materials are needed, including the evidences supporting the intended arrest. In contrast, there was no requirement under the 1957 Convention for a requesting State to adduce any evidence to support the allegation. There was only an antecedent process that resulted in "a warrant of arrest or other order having the same effect," in accordance with the law of the requesting State. (Paras 26-29)  The authority initiating a request under the 1957 Convention can be a court or a public prosecutor (para 32). 
(3.2) The U.K. acceded to the 1957 Convention in as late as 1991. By way of reservation, the U.K. required foreign documents supplied pursuant to article 12 to be authenticated by being signed by a judge, magistrate or officer of the State where they were issued and certified by being sealed by a Minister of State. This antecedent process aimed to afford more protection to persons against deprivation of liberty. (Paras 31-34) 
(3.3) Historically, some European countries do not provide enough protection to persons against deprivation of liberty. Progress happened over the years. At the time when the Framework Decision was negotiated, in the majority of Member States, the power to arrest was subject to judicial safeguards similar to, or even more stringent than, those in the U.K.. (Paras 34-35)  
(4) As stated by the Bordeaux Declaration, at pre-trial stages the status of public prosecutors shall be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially. The function and independence of public prosecutors must be borne in mind when considering the issues in concern here. (Paras 36-38) 
(5) September Draft: 
(5.1) In the September draft for the Framework Agreement, by definition, the "issuing public authority" and the "executing judicial authority" for European arrest warrant ("EAW") both include judges and public prosecutors (para 46). Regarding the "executing judicial authority", the Explanatory Note made it plain that the scope would depend upon whether the fugitive was challenging extradition. If yes, then the challenge should be resolved by a judge; if no, then the executing judicial authority might be prosecution service (para 47).
(5.2) Before an EAW was issued, there would be an antecedent process that would result in an enforceable judicial decision involving deprivation of liberty. In most Member States (e.g. Sweden) but not all, this antecedent process would involve a judge. The subsequent decision to issue an EAW might be taken by the same judicial authority or another. (Para 50)
(6) The Final version
(6.1) The overall scheme of the EAW did not change from that proposed in the September draft. In particular there remained a requirement for an antecedent process before the issue of the EAW. (Para 59)  
(6.2) The definitions for the "issuing public authority" and the "executing judicial authority" were removed in the December draft and the final version. (Paras 55-57) 
(6.3) Except article 19.1, the articles dealing with execution make no reference to a hearing before a court, but Lord Philips opined that the English word "court" was result of inaccurate translation as the corresponding word in the French version (which prevails) had a broader meaning. Article 19.3 of the September draft hints that more than one type of judicial authority may be involved. (Para 58)
(6.4) By a comprehensive analysis, Lord Phillips concluded that the removal of definitions was driven by an intent to broaden rather than to narrow the scope. Key points are as follows: 
(6.4-a) If there was an intention to restrict the power to issue/execute an EAW to a judge, this should have been clearly stated as it was a radical change from the September draft (para 61); 
(6.4-b) The significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW, the nature of the EAW issuance entity is less important (para 62) ? this statement is supported by an Italian case and a relevant expert evaluation report (paras 62 and 63); 
(6.4-c) The authorities involved in the then existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State were not restricted to judges and prosecutors, Lord Philipps opined that the removal of definitions of "issuing public authority" and the "executing judicial authority" was because some Member States thought the definitions were too restrictive (para 65);  
(6.4-d) Some wording in the December draft also suggesting the meaning of "judicial authority" was not restricted to a court or judge (para 66); 
(6.4-e) The subsequent practices of the Member States, the European Commission and the European Council were in conflict of the definition of "judicial authority" that restricts its meaning to a judge. (i) 11 Member States designated a prosecutor as the issuing judicial authority in relation to fugitives sought for prosecution and 10 designated a prosecutor as the issuing judicial authority in respective of fugitives who had been sentenced. (ii) Neither the Commission nor the Council has ever, in the evaluation reports or elsewhere, criticized such practice of designating prosecutors. (Paras 67-71) 
(7) Article 5 of ECHR
(7.1) Article 5(1): 
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
?
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
?
Article 5(3): Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(7.2) The appellant's counsel submitted that 17 decisions of the Strasbourg Court established that the "competent legal authority" referred to in article 5.1(c) is shorthand for the "judge or other officer authorized by law to exercise judicial power" in article 5.3. The Strasbourg Court made it plain that those involved in the prosecution of a defendant lacked the necessary independence to qualify as "competent legal authorities." (para 73)
(7.3) The appellant's counsel submitted, but the court rejected, that the line of authorities mentioned above established the meaning of "judicial authority" in the Framework Decision. The Article 5 ECHR authorities apply to the stage of pre-trial proceedings at which the suspect has to be afforded the opportunity to challenge his detention. These do not apply to the stage at which a request is made by the issuing State for the surrender ? that is more an administrative step, not a stage at which there is any adversarial process between the parties. (para 74) 
(7.4) The appellant's counsel also submitted that the phrase "judicial authority" shall have the same meaning across the Framework Decision ? the court disagreed, the presumption that the same term has the same meaning in a single document is rebuttable. In the Framework Decision the same phrase is used to describe different authorities performing different functions at different stages of the overall process. (para 75) 
(8) the 2003 Act 
The 2003 Act does not make clear the important of the antecedent decision, it can give the impression that the decision to issue the EAW is the step in the procedure at which are considered all the matters that will be taken into account in the course of the antecedent process ? this impression is wrong. To interpret "issuing judicial authority" as meaning a court or judge would result in a large proportion of EAWs being held ineffective in the U.K.. The court so concluded that the term in the 2003 Act shall have the same meaning as in the Framework Agreement, i.e. shall include prosecutors. (paras 77- 80)
(9) Proportionality 
(9.1) Under Swedish law, the issue of a domestic detention order in absentia was a precondition to the issue of an EAW. That order was issued by a court and there should have been probable cause. The only additional discretion is whether it is proportionate. (para 84) 
(9.2) the question of proportionality should not be reviewed as part of the process of execution, instead, it should be considered when issuing an EAW. (paras 85-90) 
The appeal shall be dismissed.

Lord Brown: 
The U.K. legislated the 2003 Act to implement the Framework Decision, the Court is bound to construe the identical term in the 2003 Act no less widely than the Framework Decision. Pepper v Hart does not apply here, as the application requires the "uncertainty and ambiguity about what Parliament meant." As European courts and authorities have always acted in a way that "judicial authority" in the Framework Decision encompasses prosecutors, the 2003 Act shall also be interpreted like such. Appeal dismissed. (paras 95-100)

Lord Kerr: 
(1) Lord Kerr phrased the issues to be slightly different, they are (1) whether the Framework Decision in its use of the term must be taken to have intended that those who decided whether a EAW should be issued did not require to have the attributes of independence and impartiality, and (2) whether the 2003 Act can and must be read so as to reflect that intention. (para 102)
(2) Public Prosecutors in many jurisdictions had traditionally issuing arrest warrants to secure extradition for many years, to bring that practice to an end would mean a radical change. If this change is intended by the Framework Decision, it should have been drafted more clearly. Instead, article 6 of the Framework Decision is actually to leave to member states to determine which body or person should constitute a judicial authority within its legal system for the purpose of issuing a EAW. There is no requirement of the body or person being independent and impartial, otherwise, such discretion left for member states seems otiose. (paras 104-105) 
(3) Taking subsequent practices into consideration, as required by Article 31.3(b) of the Vienna Convention, fortifies the above-mentioned conclusion. It is a sufficiently widespread and uncontroversial practice in relation to issuing authorities, and the continuing widespread of prosecutors as issuing judicial authorities have not been opposed by the European Commission or those members states which had only nominated judges or courts as their own issuing judicial authorities. (paras 106-109) 
(4) It is presumed U.K.'s relevant domestic law (i.e. the 2003 Act) is enacted to be consistent with the Framework Agreement. The Parliament had to express its intention very clearly if it intended otherwise. Considering that the phrase "judicial authority" is directly copied from the Framework Agreement, it is hard to conclude so. The MPs' and ministers' statements that "judicial authority" had to be judges or magistrates are their individual aspiration rather than Parliament's intention. (paras 112-115) 
(5) As Parliament is the sovereign, it has the power to restrict the meaning of judicial authority to a narrower compass than that intended by the Framework Decision, though it would be destructive of relevant intentional cooperation. However, nothing indicated that Parliament had done so. Appeal dismissed. (paras 116-119)

Lord Dyson
(1) The U.K. is not obliged to interpret the 2003 Act consistent with the Framework Decision, but there is a strong presumption in favor of such interpretation. Therefore, it is necessary to first determine the meaning of "issuing judicial authority" in the Article 6.1 of the Framework Decision. (paras 121-123) 
(2) Background of the Framework Decision: the EAW system built by the Framework Decision is different from the traditional extradition process. It is the first concrete measure in the field of criminal law implementing the principle of mutual recognition ? assistance is requested and provided in the context of a supranational, harmonized legal system. In contrast, in the case of extradition, contact is initiated between two sovereign states, and cooperation is on a case-by-case basis. The intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different plances. (paras 124-125) 
(3) From a literal reading perspective, the phrase "judicial authority" in article 6.1 of the Framework Decision is unclear, since the phrase was translated from the French phrase "autorite judiciaire", which is capable of bearing a narrow meaning as well as a wide meaning. (paras 126-127)  
(4) It is necessary to refer to subsequent practices to understand the meaning. In a large number of states, the issuing authorities are not courts, but prosecutors or ministry of justice. The practice of issuance by ministry of justice had been criticized by a few Member States, but the practice of issuance by prosecutors had never been criticized by any Member States, nor had any warrant issued by a prosecutor been rejected for the reason that prosecutors cannot be the issuing authority. According to Vienna Convention, such subsequent practice indicates "issuing judicial authority" shall include prosecutors. (paras 128-137)
(5) It is instructive to consider other instances where the term "judicial authority" has been adopted in other analogous EU instruments which (like the Framework Decision) seek to further a system of "free movement of judicial decisions within an area of freedom, security and justice." In the Council Framework Decision 2008/978/JHA on the European Evidence Warrant ("EEW"), it is provided that public prosecutors belong to "issuing authority" for EEW. In the Council Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement agencies of the Member States, it is also provided public prosecutors are included in "judicial authorities". (paras 138-141) 
(6) It shall be borne in mind that these EU instruments, whose aim is to promote co-operation and mutual recognition by Member States in criminal matters within the EU area, which define a judicial authority as including a public prosecutor. This is evidence that there is a common understanding among the Member States that, at any rate in the context of instruments whose purpose is to promote such an aim, a public prosecutor may be a judicial authority. (para 142) 
(7) Human rights consideration: 
(7.1) It is of no doubt that human rights protection guaranteed by ECHR is a general principle for EU law and must be complied by the Framework Decision. (paras 143-145) 
(7.2) The appellant's counsel referred the court's attention to article 5(3) of ECHR and relevant cases, which provided that an officer authorized by law to exercise judicial power must be independent of the executive and of the parties. The counsel submitted, to conform to ECHR principles, a public prosecutor shall not satisfy the definition of "judicial authority" in the Framework Decision. (paras 146-147)
(7.3) The appellant's counsel's argument was of no foundation. There is no principle of ECHR law which requires decisions to arrest to be made by an impartial judge. The protection provided by article 5 is that the individual arrested is brought promptly before a judge or other officer authorized by law to exercise judicial power and that he is able to take proceedings by which the lawfulness of his detention is decided quickly by a court and his release ordered if the detention is not lawful. (paras 148-150) 
(8) Meaning in the 2003 Act 
There is a strong presumption that the language of the domestic law implementing Council decision is the same as that of the corresponding provision of the international instrument to which it gives effect. There is nothing in the 2003 Act itself which suggests that the term shall bear a different meaning, and there is no ambiguity to trigger the application of Pepper v Hart. (paras 160-161)
Even if the record of Parliament exchange is referred to, the relevant minister's statement is not a clear rejection of including public prosecutors in definition of "judicial authority". (paras 162-170)
Appeal dismissed.