The proceedings against Mr. Assange were founded on complaints made by two women on 20 August 2010. A Preliminary Investigation conducted by the Chief Officer, in which Mr. Assange co-operated, concluded that there was no case against him in respect of the alleged rape. The complainants appealed against this decision to the Prosecutor, who re-opened the full Preliminary Investigation.
Mr. Assange instructed counsel to represent him. He then left the country, which he was free to do. On 18 November the Prosecutor applied to the Stockholm District Court for a domestic detention order in absentia. The Stockholm District Court granted the order. The following day Mr. Assange, by his counsel, appealed to the Svea Court of Appeal against the order on the grounds that the domestic arrest was not proportionate and was not based on sufficient evidence to give rise to probable cause. The Prosecutor informed the Court of Appeal that she intended to issue an European Arrest Warrant (“EAW”). The Court of Appeal dismissed Mr. Assange’s appeal on the papers and without an oral hearing on 24 November. On 26 November the Prosecutor issued an EAW. This was submitted to Serious Organised Crime Agency (SOCA) and rejected because it failed to specify the potential sentences in respect of the offences alleged. A replacement EAW was issued on 2 December 2010 and this was certified by SOCA under section 2(7) and (8) of the 2003 Act on 6 December 2010.
Under Swedish law the issue of a domestic detention order in absentia was a precondition to the issue of an EAW. That order was issued by a court which had to be satisfied that there was sufficient evidence giving rise to probable cause and that domestic arrest was proportionate.
On 2 December 2010 the Swedish Prosecution Authority (“Prosecutor”), who is the respondent in the appeal, issued a EAW signed by Marianne Ny, a prosecutor, requesting the arrest and surrender of Mr. Assange, the appellant. Mr. Assange was, at the time, in England. The offences of which he was accused and in respect of which his surrender is sought are alleged to have been committed in Stockholm against two women in August 2010. They include sexual molestation and, in one case, rape. At the extradition hearing before the Senior District Judge, and subsequently on appeal to the Divisional Court, he unsuccessfully challenged the validity of the EAW on a number of grounds. The appeal related to only one of these. Section 2(2) in Part 1 of the Extradition Act 2003 require an EAW to be issued by a “judicial authority”. Assange contended that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid.
Part 1 of the 2003 Act was passed to give effect to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between Member States of the European Union 2002/584/JHA (“the Framework Decision”). The phrase “judicial authority” is used in a number of places in the Framework Decision. In particular it is used in article 6, which provide:
“1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.”
It was Mr. Assange’s primary case that “judicial authority” bear the same meaning in the Framework Decision as it bear in the 2003 Act, so that the Prosecutor does not fall within the definition of “issuing judicial authority” within article 6 of the Framework Decision. Alternatively it was submitted that, if “judicial authority” in article 6 of the Framework Decision has a meaning wide enough to embrace the Prosecutor, it has a different and narrower meaning in the 2003 Act.
Assange contended that a “judicial authority” must be a person who is competent to exercise judicial authority and that such competence required impartiality and independence of both the executive and the parties.
The Prosecutor contended that the phrase “judicial authority”, in the context of the Framework Decision, and other European instruments, bear a broad and autonomous meaning. It describe any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies, some of which have the qualities of impartiality and independence and some of which do not. In some parts of the Framework Decision the term “judicial authority” describe one type, in other parts another. A prosecutor properly fall within the description “judicial authority” and is capable of being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides. Judicial authority must be given the same meaning in the 2003 Act as it bear in the Framework Decision.
In 1957 a minority of the parties to the European Convention on Extradition had no judicial involvement in the issue of an arrest warrant.
As the issue in the appeal was whether a public prosecutor constitute a “judicial authority” under Part 1 of the 2003 Act, it is appropriate to consider the nature of that office. Public prosecutors as their name suggest are public bodies that carry out functions relating to the prosecution of criminal offenders. On 8 December 2009 the Consultative Council of European Judges and the Consultative Council of European Prosecutors published for the attention of the Committee of Ministers a joint Opinion (2009) that consisted of a Declaration, called the Bordeaux Declaration together with an Explanatory Note. This comments at para 6 on the diversity of national legal systems, contrasting the common law systems with the Continental law systems. Under the latter the prosecutors may or may not be part of the “judicial corps”. Equally the public prosecutor’s autonomy from the executive may be complete or limited. Para 23 of the Note observe:
“The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other state powers. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings.”
Both the function and the independence of the prosecutor must be borne in mind when considering whether, under the Framework Decision, the term “judicial authority” can sensibly embrace a public prosecutor.
The purpose of the Framework Decision, its general scheme, the previous European extradition arrangements, the existing procedures of the Member States at the time that the Framework Decision was negotiated, the preparatory documents and the variety of meanings that the French version of the phrase in issue naturally bear, the manner in which the Framework Decision has been implemented and the attitude of the Commission and the Council to its implementation all lead to the conclusion that the “issuing judicial authority” bear the wide meaning for which the prosecution contend and embrace the Prosecutor in the present case. The Court concluded that the Prosecutor in the present case fell within the meaning of “issuing judicial authority” in the Framework Decision.
It is necessary, if possible, to give “judicial authority” the same meaning in the 2003 Act as it bears in the Framework Decision. The Act does not make clear the overall nature of the EAW scheme for which the Framework Decision provides. It does not make clear the vital part that the antecedent process plays in the scheme. The scheme is founded on the mutual recognition of the decision that is taken in that process. Article 8 of the Framework Decision provides that the EAW must contain evidence of “an enforceable judgment, an arrest warrant or other enforceable judicial decision having the same effect”. Section 2 of the 2003 Act require the arrest warrant to give “particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence”.
Under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW. To interpret “issuing judicial authority” as meaning a court or judge would result in a large proportion of EAWs being held to be ineffective in the country, notwithstanding their foundation on an antecedent judicial process.
For these reasons the Court held that there is no impediment to according to “judicial authority” in Part 1 of the 2003 Act the same meaning as it bear in the Framework Decision. On the contrary there is good reason to accord it such meaning. The Court concluded that the Prosecutor who issued the EAW in the present case was a “judicial authority” within the meaning of that phrase in section 2 of the 2003 Act and thus Assange’s challenge to the validity of the EAW failed.