Assange v Swedish Prosecution Authority

Under Part 1 of the Extradition Act 2003, national provisions must, so far as possible, be construed consistently with the mutual-recognition purpose of the European Arrest Warrant regime, while preserving safeguards expressly enacted by Parliament. A prosecutor may be an issuing judicial authority. An executing court should ordinarily determine validity from the warrant itself and should admit extraneous material only in exceptional circumstances.

Conditional agreement to intercourse using a condom may be negated by deliberate unprotected intercourse under section 74 of the Sexual Offences Act 2003. A requested person may be “accused” although a formal charge has not been made, if the facts show a sufficiently developed and substantiated accusation for prosecution.

The Swedish Prosecution Authority issued a European Arrest Warrant seeking Julian Assange’s surrender to Sweden for four alleged sexual offences. The warrant followed a decision of the Svea Court of Appeal upholding an order for his arrest in absentia.

The Senior District Judge and Chief Magistrate ordered extradition on 24 February 2011. On appeal, Mr Assange contended that the prosecutor was not a judicial authority, that the warrant failed the dual-criminality or particularity requirements, that he was not an accused person within section 2(3) of the Extradition Act 2003, and that surrender was disproportionate.

1. Appeal dismissed. The Swedish Prosecution Authority was a judicial authority for the purposes of the European Arrest Warrant regime. That expression was not confined to a judge who adjudicates. It could include a prosecuting body designated under the issuing state’s law. The designation was not conclusively determinative if the body was self-evidently non-judicial, but that qualification did not apply here. The prior scrutiny by the Svea Court of Appeal also warranted due respect.
2. The court should ordinarily decide whether a warrant complies with the statutory requirements from its terms. Mutual recognition means that extraneous material should be admitted only exceptionally, such as where there is fundamental error, unfairness or bad faith. The warrant’s descriptions of the four alleged offences were sufficiently fair and accurate. The available material did not show otherwise.
3. For the non-framework offences, the descriptions established dual criminality. In particular, where a complainant agrees to intercourse only with a condom, deliberate intercourse without a condom may negate consent under section 74 of the Sexual Offences Act 2003. Section 76 was confined to its conclusive presumptions and did not prevent reliance on section 74. The fourth offence was a framework offence. Its classification as rape under Swedish law was ordinarily to be accepted absent an obvious inconsistency.
4. Applying the broad and cosmopolitan approach in Re Ismail [1999] 1 AC 320, a person may be accused although the issuing state has not yet made its formal decision to indict. The detailed allegations, the completed investigation to that stage, and the finding of probable cause showed that Mr Assange was accused and sought for prosecution, not merely questioning.
5. The court assumed, without deciding, that proportionality might be a legal requirement. The warrant was nevertheless proportionate: the allegations were serious, the Swedish Court of Appeal had upheld the arrest, and the prosecutor was entitled to proceed under Swedish criminal procedure rather than accept questioning by video link.

• High Court (Administrative Court): Appeal dismissed; the order for extradition was upheld.
• Senior District Judge and Chief Magistrate: Ordered extradition on 24 February 2011.