Extradition hearing - European Arrest Warrant - Extradition Act 2003

Assange v Swedish Judicial Authority: QBD (Divisional Court) (Sir John Thomas (president), Mr Justice Ouseley): 2 November 2011

The appellant was an Australian national. In August 2010, he visited Sweden to give a lecture. Between 13 August and 18 August, the appellant had sexual relations with two women, AA and SW. On 20 August, SW, accompanied by AA, went to the police.

The police treated their visits as the filing of complaints. On 30 August, the appellant, who had remained voluntarily in Sweden to co-operate with the investigation, was interviewed by police. On or about 27 September, he left Sweden 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 Svea Court of Appeal, at which the appellant was represented, the respondent Swedish Prosecution Authority (the prosecutor) issued a European Arrest Warrant (the warrant).

The warrant set out four offences: (i) unlawful coercion; (ii) sexual molestation; (iii) a further offence of sexual molestation; and (iv) rape. On 7 December, the appellant surrendered himself for arrest in the UK. The appellant appeared before the district judge who ordered his extradition. The appellant appealed.

He submitted that, first, the warrant had not been issued by a ‘judicial authority’. Second, the first three offences described in the warrant did not meet the dual criminality test. None was a fair and accurate description of the conduct alleged. As regards the fourth offence, the conduct, if fairly and accurately described, would not have amounted to the offence of rape. Third, the conditions in section 2(3) of the Extradition Act (the 2003 act) had not been satisfied as he was not an ‘accused’. Fourth, the issue of the warrant and subsequent proceedings were not proportionate. In determining the issues consideration was given to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between member states (the framework decision) and Re Castillo (No 2) [2004] All ER (D) 177 (Jul). The appeal would be dismissed.

(1) It was established principle that part 1 of the 2003 act had to be read in the context of the framework decision and that the national courts of the member states ought to construe national law so far as possible to attain the results sought to be achieved by the framework decision. Nevertheless, it was also established that the expression ‘judicial authority’ had to be read against the background that it was for each member state to designate its own judicial authority under article 6(3) of the framework decision. It was significant that in section 2(2) of the 2003 act parliament had adopted the same term ‘judicial authority’ as that used in the framework decision. It was clear that the term ‘judicial’ as used in several member states did not refer only to a judge who adjudicates. Article 6 of the framework decision had to have been intended to allow member states to designate authorities in their state which were ‘judicial authorities’ having regard to their own national law.

Accordingly, it could not be said that the term ‘judicial’ applied only to a judge who adjudicated. The differing European traditions recognised that others, including prosecutors, could be included within that term for various purposes. It was therefore entirely consistent with the principles of mutual recognition and mutual confidence to recognise as valid a warrant issued by a prosecuting authority designated under article 6 of the framework directive (see [10], [23], [35]-[41] of the judgment).

In the instant case, the prosecutor was a judicial authority, as the term ‘judicial authority’ was not confined to a judge who adjudicates but could extend to a body that prosecuted [43].

(2) On the basis of established authority, it was clear that, ordinarily, the judge in the executing state should scrutinise the terms of the warrant and make the decision to order surrender on the basis of what was contained in the warrant and not to have regard to material extraneous to the warrant. That gave effect to the underlying purpose of the regime and the principles of mutual recognition. It was always possible that there might be circumstances in which extraneous material should be admitted without undermining the principles of the framework decision.

Such circumstances would not arise where the warrant was clear on its face and the evidence sought to be adduced did not show that the case actually being advanced by the prosecutor was different to the case set out in the warrant. The statement as to the admission of extraneous material set out in Castillo did not apply to surrender under the provisions of the 2003 act.

In respect of framework offences, although the court executing the warrant had to scrutinise the warrant to ensure that it complied with the requirements of particularity, it should ordinarily accept the classification of the issuing member state, unless there was an obvious inconsistency which showed that the conduct alleged did not amount to the offence under the law of that state. Conduct for the framework offence of rape did not have to be conduct reasonably capable of amounting to rape as understood in England and Wales (see [68]-[69], [112],[114] of the judgment).

In the instant case, the requirement of dual criminality had been satisfied. In respect of the first three offences, the conduct of which the appellant had been charged had been fairly and accurately described and the offences were offences under the law of England and Wales. In respect of the fourth offence, the Svea Court of Appeal had considered the offence and raised no objection to it. There was no inconsistency with what was set out in the warrant and the classification of rape in Sweden [76], [96], [102]-[103].

(3) The court ought to be very careful in the context of the 2003 act and the framework decision about giving to the word ‘accused’ some technical procedural meaning which would amount to a hurdle which other member states could not match in their own proceedings. It was clear that the statements required by section 2(3) of the 2003 act were essential requirements.

However, it was not necessary for the statement to use the precise terms set out in the 2003 act, so long as it was clear that was what the warrant read as a whole was saying and that it complied with the requirements of section 2(3) of the 2003 act (see [136], [138]-[139] of the judgment).

In the instant case, the terms of the warrant read as a whole made it clear that not only had the warrant been issued for the purpose of the appellant being prosecuted for the offence, but that he was required for the purposes of being tried after being identified as the perpetrator of specific criminal offences. Nothing in the warrant suggested that he was wanted for questioning as a suspect (see [140] of the judgment).

(4) In the circumstances, taking into account the respect the court should accord the decision of the Svea Court of Appeal in relation to proceedings governed by Swedish procedural law, the decision to issue the warrant could not be said to be disproportionate. In any event, it was self-evidently not a case relating to a trivial offence, but to serious sexual offences. It was difficult to see what real scope there was for the argument in circumstances where a Swedish Court of Appeal had taken the view, as part of Swedish procedure, that an arrest was necessary (see [158]-[160] of the judgment).

Ben Emmerson QC and M Summers (instructed by Birnberg Peirce) for the appellant; Clare Montgomery, A Watkins and H Pye (instructed by the Crown Prosecution Service) for the judicial authority.