Binder v Public Prosecutor's Office, Memmingem, Germany

An issuing authority under the Extradition Act 2003 may be a public prosecutor. The question is not confined to whether the authority is a court or judge. The binding effect of Assange v Swedish Prosecution Authority remained intact after Ministry of Justice, Republic of Lithuania v Bucnys. Where the status of another institution is disputed, the court must apply the contextual and purposive approach identified in Bucnys, including consideration of functional independence and the nature of the preceding judicial decision. On the evidence, the German public prosecutor’s office was a judicial authority, despite its interest in the underlying proceedings and its subordination within the domestic prosecutorial structure.

The appellant was the subject of an accusatory European arrest warrant issued by the Public Prosecutor’s Office, Memmingem, Germany. A district judge ordered extradition under section 21(3) of the Extradition Act 2003. The sole issue was whether the respondent had issued the warrant as a judicial authority within section 2 of the Act.

The appellant argued that Bucnys had undermined the reasoning in Assange and required the court to reconsider, on the evidence in each case, whether a public prosecutor could qualify. The central issue was whether Bucnys had overruled or cast doubt on the conclusion in Assange.

1. Appeal dismissed. The respondent was an issuing judicial authority and the extradition order was valid.
2. Section 2(2) of the Extradition Act 2003, read in the light of the Framework Decision, required the warrant to be issued by a judicial authority. Assange v Swedish Prosecution Authority was binding authority that a public prosecutor could be an issuing judicial authority. The judge considered that the ratio of Assange might comprise the fifth reason on which the majority expressly agreed, or all the reasons extracted from the majority judgments. On either view, it remained binding unless Bucnys had expressly or impliedly overruled it.
3. Bucnys did not overrule Assange. Lord Mance’s references to Assange endorsed its conclusion concerning public prosecutors, while limiting the significance of other reasoning. Paragraphs 45 to 48 of Bucnys supplied the approach for assessing institutions such as Ministries of Justice and other bodies not previously considered. That approach included the Framework Decision’s purpose, objectivity, freedom from political or executive influence, functional independence, capacity to make a judicial decision and separation from the designated central authority.
4. Alternatively, applying that approach to the German prosecutor’s office, the risk of executive influence was remote on the evidence. The office’s interest in the underlying criminal proceedings did not prevent it from making an independent and objective decision about issuing the warrant. The domestic court warrant formed the basis of the European warrant, and the prosecutor’s office carried out the judicial decision.
5. The district judge had therefore been correct to treat the respondent as a judicial authority. A detailed assessment of the appellant’s publicly funded costs was directed.

• Supreme Court: Assange v Swedish Prosecution Authority [2012] 2 AC 471 was treated as binding authority on the status of public prosecutors.
• Supreme Court: In Ministry of Justice, Republic of Lithuania v Bucnys [2013] 3 WLR 1485, the court addressed the status of Ministries of Justice and did not overrule Assange.
• Westminster Magistrates’ Court: District Judge Zani ordered extradition on 5 September 2013 under section 21(3) of the Extradition Act 2003.
• High Court (Administrative Court): The appeal was dismissed.