Assange v Swedish Prosecution Authority

The Supreme Court considered whether an issuing "judicial authority" for the purposes of the Council Framework Decision on the European arrest warrant (2002/584/JHA) and section 2(2) of the Extradition Act 2003 must be a court, judge or magistrate, or whether it can include a public prosecutor. The majority concluded that, in the Framework Decision, the phrase "judicial authority" bears a wide autonomous meaning that can embrace public prosecutors and that the same meaning may be given to the phrase in the 2003 Act so far as compatible with the statute. The majority relied on the purpose and scheme of the Framework Decision, subsequent state practice and Council/Commission material.

A minority (Lady Hale and Lord Mance) would have allowed the appeal. They placed primary weight on the domestic parliamentary history and concluded that Parliament in enacting the Extradition Act 2003 intended the words "judicial authority" to have their ordinary domestic meaning—a court, judge or magistrate—and that a public prosecutor issuing an EAW therefore did not satisfy section 2(2).

The appellant, Mr Assange, challenged the validity of a European Arrest Warrant issued on 2 December 2010 by the Swedish Prosecution Authority (signed by Marianne Ny) and certified in the United Kingdom under the Extradition Act 2003. He contended that the Framework Decision and section 2(2) of the 2003 Act require an EAW to be issued by a "judicial authority" in the strict sense of a court, judge or magistrate and that a public prosecutor cannot be such an authority, rendering the warrant invalid.

Procedural posture: the issue arose at the extradition hearing before the Senior District Judge, was rejected on appeal to the Divisional Court ([2011] EWHC 2849 (Admin)) and then came before the Supreme Court.

Issues framed by the Court:

• What meaning should be given to the phrase "judicial authority" in the Framework Decision and in Part 1 of the Extradition Act 2003 (section 2(2))?
• If the Framework Decision permits public prosecutors to be issuing judicial authorities, should the 2003 Act be interpreted to have the same meaning?
• Whether SOCA's certificate under section 2(7)-(9) precludes a defendant from challenging the status of the issuing authority (left open for future argument).

Majority reasoning (dismissing the appeal): the Court emphasised the Framework Decision's purpose of mutual recognition and surrender between judicial authorities, the multilingual drafting (including the French term "autorité judiciaire"), the preparatory materials and, importantly, subsequent practice by member states and the Council/Commission's evaluative material which showed Member States routinely designating public prosecutors as issuing authorities without adverse comment. That practice, together with the Framework Decision's text and purpose, supported the view that a public prosecutor can fall within the Framework Decision's concept of "issuing judicial authority". The Court further held that, as Part 1 of the 2003 Act was enacted to give effect to the Framework Decision, the phrase "judicial authority" in section 2(2) should, if possible, be given the same meaning. Accordingly the Swedish Prosecutor was within the Act's meaning and the EAW was valid.

Dissent (allowing the appeal): the dissenting Justices gave decisive weight to the domestic parliamentary history and the ordinary English meaning of "judicial authority". They considered the ministerial assurances and the Bill amendments introduced during passage of the Extradition Bill, and concluded Parliament intended the term in the 2003 Act to mean a court, judge or magistrate. On that basis they would have held the Swedish Prosecutor not to be a qualifying issuing judicial authority under the 2003 Act.

The Court left open for future argument whether an executing state must look behind a Member State's designation notified under article 6.3 of the Framework Decision or whether SOCA's certificate conclusively establishes the issuing authority's competence.

Appeal dismissed. The majority held that the phrase "judicial authority" in the Framework Decision bears a wide, autonomous meaning which can include a public prosecutor and that the Extradition Act 2003 should, if possible, be read to give the same meaning; accordingly the EAW issued by the Swedish Prosecutor fell within section 2(2) of the 2003 Act. A dissenting minority would have allowed the appeal on the basis that parliamentary material and the ordinary domestic meaning showed Parliament intended "judicial authority" in the 2003 Act to mean a court, judge or magistrate.

On appeal from the Divisional Court decision reported at [2011] EWHC 2849 (Admin); the appeal to the Supreme Court was heard 1–2 February 2012 and judgment delivered 30 May 2012. Prior extradition proceedings were before the Senior District Judge at first instance (not separately reported in the judgment).