Krupeckiene v Public Prosecutor's Office Lithuania

For the purposes of the Framework Decision and section 2(2) of the Extradition Act 2003, a public prosecutor is a judicial authority. The meaning of that expression is autonomous in European law and is not determined conclusively by the prosecutor’s classification under national law. The CJEU authorities concerning police services and ministries do not undermine the position concerning public prosecutors. The subsequent CJEU decisions were consistent with, and supported, the Supreme Court’s reasoning in Assange v Swedish Prosecution Authority. A reference to the CJEU or a stay is inappropriate where the appeal is unarguable and the domestic court is bound by that decision.

The appellant faced extradition to Lithuania under an accusation European Arrest Warrant issued by a deputy prosecutor of the Prosecutor General’s Office. The District Judge ordered extradition and held that the issuing office was a judicial authority under section 2(2) of the Extradition Act 2003, following Assange v Swedish Prosecution Authority.

On a rolled-up hearing, the appellant sought permission to appeal and, if permission were granted, pursued an appeal contending that the Lithuanian prosecuting authority was not a judicial authority for the purposes of the Framework Decision or the 2003 Act. She alternatively sought a reference to the CJEU or a stay pending the CJEU’s decision on a reference from Ireland.

1. The court refused permission to appeal. The appeal was not arguable. The application to rely on further expert evidence was also refused.
2. The governing domestic authority was Assange v Swedish Prosecution Authority [2012] UKSC 22; [2012] 2 AC 471. The Supreme Court’s decision was not confined to the Swedish prosecutor. Its majority held that a public prosecutor could be a judicial authority for the purposes of the Framework Decision, and section 2(2) of the 2003 Act was presumed to have the same meaning.
3. The later CJEU decisions did not displace that conclusion. Poltorak concerned a police service, and Kovalkovas concerned a Ministry of Justice. Their reasoning that those executive or police bodies were not judicial authorities said little about public prosecutors.
4. Őzçelik, read with Kossowski, supported the conclusion in Assange. The CJEU had treated a public prosecutor as administering, or participating in the administration of, criminal justice. The reasoning suggested that the CJEU applied no demanding fact-specific test, or that any such test was readily satisfied by a public prosecutor.
5. The expression “judicial authority” had an autonomous meaning in European law. The Lithuanian constitutional classification of the prosecutor, and the pending reference in Lisauskas, were not decisive. It was highly unlikely that the CJEU would treat national law as determinative.
6. There was therefore no proper basis for a CJEU reference or a stay pending the Irish reference. The proposed expert evidence dealt with issues already determined by binding authorities and was irrelevant to the appeal.

1. High Court (Administrative Court): the rolled-up application for permission to appeal and appeal was heard following refusal of permission on the papers by Nicol J and a renewed-hearing order by Wyn Williams J. Permission was refused and the appeal was not arguable.
2. District Judge: on 27 September 2017, District Judge Goldspring ordered extradition and held that the Lithuanian Prosecutor General’s Office was a judicial authority under section 2(2) of the Extradition Act 2003.