Assange v The Swedish Prosecution Authority

An issuing “judicial authority” for a European arrest warrant includes a public prosecutor who is competent to issue the warrant under the law of the issuing state. The authority need not be a court or be independent of the prosecution in the particular case.

Domestic legislation enacted to implement an international instrument should ordinarily give an expression the same meaning as the instrument, especially where identical language is used. Clear evidence of a contrary parliamentary intention is required to displace that presumption. Consistent and sufficiently widespread subsequent state practice, acquiesced in by the other parties, may establish their agreed interpretation of an instrument.

The Swedish Prosecution Authority issued a European arrest warrant seeking the surrender of Mr Assange for prosecution concerning alleged sexual offences. A Swedish court had previously made a domestic detention order and the Svea Court of Appeal had upheld it.

Mr Assange unsuccessfully challenged the warrant before the Senior District Judge and the Divisional Court. The Divisional Court held in [2011] EWHC 2849 (Admin) that a public prosecutor could be a “judicial authority”.

The appeal in Assange v The Swedish Prosecution Authority concerned whether the warrant was issued by a “judicial authority” within sections 2(2) and 66 of the Extradition Act 2003. This required the Supreme Court to determine the expression’s meaning in both the governing European Framework Decision and the domestic Act.

1. Appeal dismissed by a majority of five to two. Lord Phillips, Lord Walker, Lord Brown, Lord Kerr and Lord Dyson concluded that a public prosecutor could be an issuing judicial authority. The Swedish prosecutor’s warrant was therefore valid under section 2(2) of the Extradition Act 2003.

2. The controlling majority reasoning treated subsequent practice under article 31.3(b) of the Vienna Convention on the Law of Treaties as particularly significant. Numerous Member States had designated public prosecutors as issuing authorities. Other Member States had not objected, while the Commission and Council had criticised executive authorities but not prosecutors. That practice established, or strongly demonstrated, an accepted interpretation that article 6.1 of the Council Framework Decision 2002/584/JHA included public prosecutors.

3. The expression “judicial authority” in the Extradition Act 2003 bore the same meaning. The Act was enacted to give effect to the Framework Decision and used the same expression. The strong common-law presumption that Parliament intended to comply with the United Kingdom’s international obligations had not been rebutted. The contrary parliamentary statements were either inconclusive or insufficiently clear to control interpretation under Pepper v Hart [1993] AC 593.

4. A majority on the point also accepted that the European-law duty of conforming interpretation stated in Criminal proceedings against Pupino (Case C-105/03; [2006] QB 83) did not itself have domestic force in relation to the Framework Decision. The relevant obligation was instead the common-law presumption of conformity.

5. Lord Phillips and Lord Dyson additionally reasoned that the Convention requirements of independence and impartiality governing prompt post-arrest judicial review did not determine who could issue a warrant. Their treatment of that issue was not shown to command the necessary majority. Lord Phillips left open whether a Member State’s designation and the domestic certificate prevented a requested person from challenging the issuing authority’s status.

6. Lord Phillips observed that the European arrest warrant scheme should make proportionality an express consideration at the issuing stage, but that the existing scheme imposed no such requirement. This was not part of the ratio.

7. Lady Hale and Lord Mance dissented. They considered that the domestic Act, read in its natural sense and in light of its parliamentary history, confined “judicial authority” to a court, judge or magistrate. They would have allowed the appeal and set aside the surrender order.

8. The Court subsequently refused Mr Assange’s application to reopen the appeal. The applicability of subsequent state practice had been raised during argument, and counsel had a fair opportunity to address it.

1. United Kingdom Supreme Court: In Assange v The Swedish Prosecution Authority [2012] UKSC 22, dismissed the appeal by a majority of five to two and upheld the validity of the European arrest warrant. A subsequent application to reopen the appeal was refused.

2. Divisional Court of the High Court: In [2011] EWHC 2849 (Admin), dismissed the appeal and held that the Swedish public prosecutor was a judicial authority capable of issuing the warrant.

3. Senior District Judge: Rejected the challenges to the validity of the European arrest warrant. No citation is stated in the judgment.