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Extradition Act 2003 BETWEEN Julian Paul ASSANGE
Appellant -vDirector of Public Prosecution Sweden Respondent
Respondent’s Skeleton Argument
All bundle references are to those in the Appellant’s bundle, e.g. [1/19] is page 19 of tab 1 of the bundle.
For hearing: 12 and 13 July 2011 Suggested essential reading list: ! ! ! ! ! ! ! ! ! European Arrest Warrant – [1/19-31] Judgment of Senior District Judge Riddle, 24/02/2011 – [1/32-59] Skeleton arguments Further information from Judicial Authority – [4/77-81] Report of Sven Erik Alhem – [13/563-567] Report of Christopher Brunski – [16/753-754] Witness statement of Goran Rudling – [11/339-442] Witness statement of Jennifer Robinson – [18/765-1012] Transcripts of evidence at Magistrates’ Court – [12/443-561, 15/597-751]
Introduction The extradition of Julian Paul Assange (‘the Appellant’) is sought by the Director of Public Prosecution, Sweden (‘the Respondent’), pursuant to a European Arrest Warrant (‘EAW’) issued on 2
December 2010. His surrender is sought so that he
may be tried in respect of sexual offences alleged to have occurred in August 2010.
Sweden is a designated Category 1 territory for the purposes of section 1 of the Extradition Act 2003 (‘the Act’). Part 1 of the Act proceedings.
therefore applies to these
The EAW was certified by the Serious Organised Crime Agency (‘SOCA’) on 6 December 2010. It was executed on 7
December 2010 when the Appellant
surrendered himself to Kentish Town police station where he was arrested. 1.4 The substantive extradition hearing occurred before Senior District Judge Riddle, sitting at Belmarsh Magistrates’ Court on 7 , 8
th th th
judgment dated 24 February 2011, the Senior District Judge rejected the arguments against extradition advanced on the Appellant’s behalf and ordered his extradition. 1.5 On 1
March 2011 the Appellant lodged this statutory appeal against the Senior
District Judge’s decision. 2. 2.1 Summary Since the Appellant’s Grounds of Appeal were lodged his legal representation has changed. The Appellant’s skeleton argument dated 30 issues previously pursued in this appeal. 2.2 The Appellant now only maintains arguments concerning the validity of the EAW pursuant to section 2 of the Act. There are five strands to this argument however: (i) The conduct described in the EAW does not provide a fair, accurate and proper description of what is alleged against the Appellant; (ii) The Appellant’s extradition is sought as part of an investigation, not for the purpose of prosecution, nor is he an accused person; (iii) The use of an EAW is disproportionate when other means of obtaining the Appellant’s assistance in an investigation were available to the Respondent; (iv) The EAW fails to provide adequate particulars of the conduct alleged, in particular the time of the offence described as allegation 3;
June 2011 narrows the
As amended by Schedule 13 to the Police and Justice Act 2006 and by Part 6 and schedules 7 and 8 to the Police and Crime Act 2009. 2
The Public Prosecutor was not entitled to issue an EAW because she is not a ‘judicial authority’.
The Respondent submits that the Senior District Judge correctly decided the issues before him and summarises its response to the Appellant’s arguments as follows: (i) The Appellant is unable to establish that the conduct set out in the EAW is anything less than fair, accurate and proper. Furthermore, the circumstances of this case do not justify an inquiry into the validity or accuracy of what is stated in the EAW; (ii) There is no ambiguity on the face of the EAW therefore the court should not consider any extrinsic evidence. Even if the court were to consider the available extrinsic evidence it does not cast doubt upon the clear purpose of this EAW: The Appellant is sought for the purpose of conducting a criminal prosecution, and is sought as an accused person; (iii) The EAW scheme complies with the principle of proportionality in EU law. Proportionality is not a free-standing bar to extradition in individual cases. In any event, issuing an EAW was plainly a proportionate step on the facts of this case. (iv) The argument is misconceived because it is based on an inaccuracy in the translated EAW; (v) It is for the requesting state to select its own competent judicial authorities. The Public Prosecutor in Sweden has been designated this function in Sweden.
Statutory appeal provisions Sections 26 and 27 of the Act provide as follows: “26 Appeal against extradition order (1) If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order. (2) But subsection (1) does not apply if the order is made under section 46 or 48. (3) An appeal under this section may be brought on a question of law or fact.
(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made. 27 Court’s powers on appeal under section 26 (1) On an appeal under section 26 the High Court may— (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must— (a) order the person’s discharge; (b) quash the order for his extradition.”
Submissions Ground 1: Fair, accurate and proper description of the conduct alleged
Section 2 of the Act provides in so far as is relevant: “(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains— (a) […] (4) […] (c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute The information is— … the information referred to in subjection (4),
Under the extradition regime preceding the 2003 Act it was established that the conduct alleged against a defendant in an extradition request must by fairly, properly and accurately described [see Castillo v The Government of Spain and Anor  1 WLR 1043 (‘Castillo’)]. That general principle has been imported into the current extradition regime [see In The Criminal Court at the National High Court, 1st Division (a Spanish Judicial Authority) v Garikoitz Ibarlucea Murua  EWHC 2609 (Admin) (‘Murua’)]. Therefore a warrant which substantially fails to set out the alleged conduct fairly, properly and accurately will not provide the information required to satisfy section 2(4)(c).
Although the principle in Castillo remains correct, it is relevant to note that the approach adopted to proceedings under Part 1 of the present regime is markedly different to previous extradition proceedings. The introduction of the EAW constituted a “groundbreaking measure intended to simplify and expedite procedures”. The Framework Decision establishing the EAW scheme created presumptions of trust and the mutual recognition of judicial decisions of Member States. These principles lie at the centre of the scheme. In Dabas v High Court of Justice  2 AC 31, Lord Bingham said at : "4. But Part 1 of the 2003 Act must be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA; OJ 2002 L190, p 1). This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial cooperation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions."
It is therefore rarely permissible to go behind a judicial decision or explanation as to law or procedure given by the judicial authority of a requesting state as to the law or procedure in that jurisdiction. Neither does a court often scrutinise evidence within EAW proceedings; that being a matter for a trial court in the requesting state.
Council Frame Work Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002)/584/JHA 5
As a consequence of these core principles, a more restrictive approach is justified when assessing whether the content of an EAW is fair, accurate and proper. This was recognized in Murua, when at  Sir Anthony May, stated: “The court's task -- jurisdiction, if you like -- is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood [counsel for the requesting state] to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002.” [emphasis added].”
In contrast to the present case, the circumstances in Murua warranted an unusual inquiry into whether the conduct was fairly described. Before the court was a positive, unqualified and unilateral statement from a prosecutor, endorsed by a Spanish court, to the effect that the offences in the EAW could not be proved before the Spanish courts. The Appellant therefore asserted that the EAW had been issued on a misleading basis; seeking extradition for offences premised upon a preliminary indictment which the Spanish prosecutor and court had since accepted could not be made out as a matter of fact. The District Judge accepted that assertion. The court’s understanding of the proceedings against the Appellant in Spain was further clarified by having solid information about how cases against identical co-defendants had been concluded. In Murua there were “appropriately clear facts” compelling the type of inquiry normally at odds with the principles of the EAW scheme.
The Appellant’s case here is very different: There is no unqualified, unilateral or similarly conclusive statement from the prosecutor or a court in Sweden conceding that the conduct alleged cannot be prosecuted. Quite the reverse is true. Further information provided by the judicial authority [4/77-81] expressly confirms that the Appellant’s extradition is sought “in order that he may be subject to criminal proceedings” and that “An arrest warrant was issued on the basis that Julian Assange is accused with probable cause of the offences outlined on this EAW”. There is therefore no material comparable to what was available in Murua to justify an inquiry into the fairness of the description of the conduct in the EAW.
Furthermore, even if, despite the powerful emphasis on trust and mutual recognition within the EAW scheme, Castillo remains good law without modification, it does not
assist the Appellant: In Castillo the evidence which the court considered undermined the content of the request was provided by the requesting state to address a criticism leveled by the Applicant in a Habeas Corpus challenge that it had not provided fair and proper information. Producing the evidence was therefore a considered and comprehensive act by the requesting state designed to meet the Applicant’s challenge. The position in the present case is wholly different: Here the Appellant (rather than the judicial authority) has placed before the court evidence obtained from an early stage in the Swedish investigation (20 August 2010; one week after the alleged conduct). That material was produced long before the conclusion of the investigation, before the issue of a domestic arrest warrant (24 November 2010) and before the issue of the EAW (2
nd th th
December 2010). Furthermore, the evidence provided by the Appellant is, on the
Appellant’s own case, incomplete. 4.9 The information relied upon is produced in the witness statement of Jennifer Robinson dated 27 February 2011 [18/765-1012] with the following critical concession: “I must make clear that Mr Hurtig [defence counsel for Mr Assange in Sweden] is informed by the Prosecutor in Sweden that this is not the complete police investigation file but merely those parts which have been disclosed to Mr Hurtig. Obviously the Prosecution will have the original in its entirety” at [at 766 ]. In a similar vein, the Senior District Judge was also alert to the difficulty in forming any views about the quality or conclusiveness of material extrinsic to the EAW: Having found that “The complainants were interviewed several times” [1/40 at ] he stated “The parties have taken me to some further information in the bundle. This appears to consist of an interview with the complainants. I am not sure if this information provides the full extent of the allegation” [1/54 at ]. 4.10 In summary, it is submitted that the introduction of an incomplete, inconclusive body of evidence relating to the early stage of a sensitive and lengthy investigation cannot give rise to one of those rare situations envisaged by Sir Anthony May in Murua which triggers an unusual inquiry into the accuracy, fairness or propriety of the content of the EAW. To conclude otherwise “would undermine the principles to be found in the introductory preambles to the Council Framework Decision”. In principle it would permit any defendant able to obtain any piece of contrary or ambiguous evidence in the possession of the prosecution to seek such an inquiry. Such a situation is not envisaged by Castillo and is even less compatible with the principles in the Framework Decision and the 2003 Act regime. 4.11 In addition to arguing that the content of the EAW gives rise to a jurisdiction point under section 2, the Appellant also submits that his suggested alternative descriptions of conduct fail to establish extradition offences as defined by section 64 of the Act. It is
submitted these arguments are otiose: If the Appellant is right that the conduct is in some significant way not fairly, accurately or properly described his argument is that the EAW would fail to comply with section 2 of the Act and would therefore be void ab initio. The question of extradition offences does not then arise. If the Appellant’s approach is wrong so that the EAW must be treated as containing a fair, accurate and proper description of the conduct then no extradition offence challenge is advanced by the Appellant because his argument is predicated upon his alternative descriptions of conduct. Ground 2: Investigation/prosecution/accusation 4.12 Where a requested person is sought for the purpose of prosecution, by section 2(2) of the Act, the EAW must contain the statements set out at section 2(3), which are: “(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant and; the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted.”
4.13 It is common ground that an EAW may not be issued for the purpose of investigation only, but may be issued where a requested person is accused of committing an offence set out in the EAW, and for the purpose of bringing him to trial to face that accusation. 4.14 In this case there is no equivocal statement or ambiguity on the face of the EAW to cast doubt upon the purpose of the request. Clear offences are alleged, contrary to provisions of the relevant Swedish statutes; the description of the conduct identifies facts that have been established against the Appellant; and the wording of the introductory phrase of the EAW taken in its proper context (which clearly excludes possibility that this is a conviction case) expressly ask for extradition for the purpose of prosecution. For the importance of these features see Fox v Public Prosecutor’s Office, Landshut, Germany  EWHC 513 (Admin) and Mighall v Audencia Provincial di Palma de Mallorca  EWHC 568 (Admin). 4.15 The Appellant contends that ambiguity arises on the face of the EAW due to the use of the word “lagföring”. It is said that the translation of this word as “prosecution” is wrong because it means little more than “legal proceedings”. The difficulty with this criticism is that “lagföring” is the very word used in the Swedish language version of the Framework Decision in Article 1.1 and the annexed form, to mean “criminal prosecution”: “Den europeiska arresteringsordern är ett rattsligt avgörande, utfärdat av en medlemsstat med syftet att en annan melemsstat skall gripa och overlämna en
eftersökt person för lagföring eller för verkställighet av ett fängelsestraff eller en annan frihetsberövande atgärd”, (English version) “The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” 4.16 On this basis it is impossible to suggest that a request for the purpose of “lagföring” is anything other than a lawful request for the purpose of the Framework Decision and the Extradition Act 2003. 4.17 It is settled law that the court should not go behind the content of an EAW by looking at extrinsic material if there is no doubt about the purpose of the EAW on its face . Even were the court to look to extrinsic material in this case, the Appellant’s argument is based upon the assumption that any reference to future interrogation of the Appellant results in ambiguity so that the purpose of the EAW is drawn into doubt. 4.18 This parochial approach to criminal procedure is deprecated in the authorities. There is no room for any assumption that the process of interrogation is distinct from and necessarily prior to the instigation of criminal proceedings in Sweden. To make such an assumption is to reject the cosmopolitan approach which the authorities require the courts to apply: Rytemis v Prosecutor General of Lithuania  EWHC 1048 (Admin), Asztalos v The Szekszard Court Hungary  1 WLR 252. 4.19 The fact that a prosecutor may interrogate a person who she seeks for the purposes of prosecution does not affect the validity of an EAW, see Naczmanski v Regional Court, Wloclawek  EWHC 2023 (Admin). As Elias LJ pointed out at : “there may be other objectives in addition to prosecution; plainly, the authorities may well hope that they can gain valuable evidence from this appellant concerning the activities of other criminals with whom he has been associated, but in my judgment, that does not invalidate the warrant if, as the Polish authorities have said in terms, they wish to secure the defendant’s extradition for the purpose of prosecuting him for various offences which he has committed and which have been identified in the relevant warrants.” 4.20 As is apparent from the extremely limited evidence on Swedish procedural law which was laid before the District Judge, the case is still formally at the stage of preliminary
See Asztalos v The Szekszard Court Hungary  1 WLR 252, as subsequently applied in Herdman & Ors v City of Westminster Magistrates Court  EWHC 1533 (Admin), and The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Warren Bartlett  EWHC 1390 (Admin).
investigation. The preliminary investigation may not in practice be completed until there has been a meeting and interrogation of the accused person. The only exception to this right is where such a process can have no value (See section 18 of the Manual for Swedish Prosecutors [8/275]). The fact that some further pre-trial evidential investigation in Sweden might result in no trial taking place does not mean that the Appellant is merely suspected as opposed to being sought for the purpose of a contemplated prosecution (see Patel v The office of the Attorney General, Frankfurt  EWHC 155 (Admin) ). An application for detention and arrest (such as upheld in this case by the Svea Court of Appeal) can only be made if there is probable cause to establish the commission of an offence by the accused person (see section 1 of the chapter 24 in the Manual for Swedish Prosecutors). 4.21 Although the prosecution did not consider further information necessary to substantiate the purpose of the EAW, it did submit further information, namely Marianne Ny’s statement [4/77-81], confirming that the EAW was issued for the purpose of conducting the criminal prosecution of Mr. Assange. 4.22 As to whether the Appellant is “accused” for the purpose of section 2(3)(a)), the Respondent appears to argue that the concept of “accused” is legally and factually a distinct requirement from “wanted for prosecution” (section 2(3)(b)). As a rigid principle this is artificial. The content of an EAW which fulfills one requirement is inherently likely to fulfil the other. Jack J recognized this in Dabas  EWHC 971 (Admin),  1WLR 145 where at  he observed: "If [a person] is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as "accused" even if there is there no statement using that word. The subject of such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning." Again this approach was approved in The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett (Rev 1)  EWHC 1390, where at , Toulson LJ said: “Following the judgment in Asztaslos , the first step is to examine the EAW without reference to extrinsic evidence. In my judgment it complies with the requirements of s2(3). It is true that the document does not use the word "accused", but I agree with the observation of Jack J in the High Court in Dabas. 4.23 Given the flexible approach adopted when considering whether someone is wanted for the purpose of prosecution, it would be incompatible if the concept of “accused” were subject to limiting and inflexible definition. Reliance cannot sensibly be placed on In Re Ismail  1 AC 320 to argue the contrary. In In Re Ismail Lord Steyn made clear that there is not, and should not be, a definition as to what makes a defendant an
“accused” person for the purposes of our domestic extradition law, not least because of the “divergent systems of law involved and notably the difference between criminal procedures in the United Kingdom and in civil law jurisdictions” [at 326G]. 4.24 Lord Steyn further explained that “accused” “is not a term of art. It is a question of fact in each case.” This fact must be determined in the light that “one is concerned with the contextual meaning of “accused” in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits in order to facilitate extradition.” 4.25 Lord Steyn further stated that, because of this interpretive approach, “it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure…and in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment”. He continued that “It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words it is necessary for courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of being an “accused” person is satisfied…For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasize that ultimately the question whether a person is “accused” within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case.” 4.26 In Re Ismail was a case under the previous extradition legislation. The correct approach in Part 1 proceedings under the current Act has been considered in a number of recent authorities. In Asztaslos, following a review of the authorities, Aikens LJ said at : “The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure... Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
4.27 This approach was applied in Herdman & Ors v City of Westminster Magistrates Court  EWHC 1533, where Blair J said this: “It is clear therefore that in determining whether a person is accused of an offence, as opposed to only being under suspicion or investigation, regard is had to the terms of the warrant. The warrants in this case use the phrases that are used in the English language version of the EAW annexed to the Framework Decision (it has not been suggested otherwise). Applying Asztaslos ,there is accordingly no (or very little scope) for argument on the purpose of the warrant. In the present case, it is in our judgment clear (as has been submitted on behalf of the respondent) that the warrant indicates unequivocally that it is for the purpose of the requested persons being prosecuted for the offence identified. Among other places, this appears from the description of the circumstances in which the alleged offence was committed, which is set out in section E of each of the warrants. This alleges that the appellants (together with Bruckland) intentionally and jointly hit Robert Hughes on the head using a glass bottle. Mr Kyriakides' letter of 4 June 2010 produced by the appellants for the appeal hearing appears to support this view, stating that the case now stands at the stage of the Ordinary Investigation, which takes place in Greece only after the Public Prosecutor presses charges against someone for a specific offence. There are obviously differences of procedure in this jurisdiction and in Greece, hence the importance of the "cosmopolitan" approach referred to in Asztaslos and the earlier case law. In particular, the fact that some further pre-trial evidential investigation in Greece could result in no trial taking place in respect of one or more of the appellants does not mean that they are suspected as opposed to being accused for these purposes. In our view, the conclusions of the District Judge on the s. 2 point were correct.” 4.28 Just as In Re Ismail does not support a rigid or restrictive definition of “accused” nor does, Boudihiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain  1 WLR 124. At - Smith LJ said: “In any event, such ambiguity as there was is removed on the following page where it is made clear that the decision on which the warrant is based is the Order of Commitment dated 18 May 2004 and that there is not yet an enforceable judgment in existence. On the page following, there is a statement that the maximum sentence that can be imposed for the offences is 15 years imprisonment. I would accept Mr Lawson's submission that that was enough in itself to make it plain that the appellant was an accused person and that proceedings had begun. I accept too that the position is confirmed by the Order of Commitment itself which states: 'I order that a European Arrest Warrant be issued to the UK against Boudhiba so that he be placed before the Spanish courts in respect of these proceedings'. It appears to me that that Order puts beyond doubt that there are already
criminal proceedings on foot in Spain and that this appellant is accused within those proceedings.” 4.29 The Appellant relies on a series of French extradition cases under Part 1 of the Act. It is submitted that these authorities in fact demonstrate the true nature of the cosmopolitan approach set out in In Re Ismail in the context of Part 1 warrants. They do not support an argument that, in principle, section 2(3)(a) requires proceedings to have commenced in any formal procedural sense. 4.30 In short, having regard to the EAW in isolation, or (if the court chooses) taking into account the extrinsic information, it cannot be said that the Appellant is not sought for the purposes of prosecution in Sweden. In determining whether he is accused” it is evident that a domestic arrest warrant was issued and upheld by the Court of Appeal in Swede on the basis there was ‘probable cause’ in respect of the allegations the subject of the EAW. 4.31 Applying the cosmopolitan approach expressed in In Re Ismail, the fact that no interrogation of the Appellant has taken place, and that as a result the preliminary investigation phase remains procedurally open, is not determinative of whether the defendant is wanted for the purpose of prosecution or is an accused person. Different jurisdictions have different procedures. Generous allowance must be made for that fact. 4.32 For these reasons it is submitted that the summary of findings in the Senior District Judge’s judgment is correct. He was right to observe that “clear and specific serious allegations have been made against Mr Assange in Sweden. Attempts have been made as long ago as September to interview him. He has not been interviewed. The Swedish system anticipates detention an early questioning in allegations of this type, but this has not taken place…I have no doubt that the defendant is wanted for prosecution in Sweden. On the information before me I cannot say when or what step was taken that can fairly be described as the commencement of prosecution. What I can say is that the boundary between suspicion and preliminary enquiries on the one hand, and prosecution on the other, has been crossed…As Ms Ny says, a formal decision to charge is taken at a later stage in Sweden than it is here” [1/51] and later “As a matter of fact, looking at all the circumstances in the round, this person passes the threshold of being an ‘accused’ person” [1/51 at ].
Ground 3: The use of an EAW is disproportionate 4.33 In relation to this argument the Senior District Judge correctly observed “this is not a free-standing bar to extradition” [1/51]. This principle has variously been expressed by this Court. 4.34 Preamble (1) to the Framework Decision states the purpose of the EAW scheme in the following terms: “the formal extradition procedure should be abolished…in respect of persons who are fleeing from justice…and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.” Article 1(2) then states that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.” Nowhere in those subsequent provisions is it suggested that receiving states should examine the question of proportionality in individual cases. No such provision exists in the 2003 Act either. Furthermore there is nothing in the Framework Decision to suggest an EAW is a device to be used only when other measures of evidence collection have been tried and have failed. 4.35 The question of proportionality, to the extent it touches on the operation of the EAW scheme, is squarely addressed at preamble (7) where the Council states as follows: “In accordance with the principle of proportionality, as set out in the latter Article [Article 5 Treaty on European Union], this Framework Decision does not go beyond what is necessary in order to achieve that objective [the replacing of multi-lateral extradition]. 4.36 Even if the Court were to consider the question of proportionality in individual cases the facts here are against the Appellant. At the time the EAW was issued the Appellant was sought as an accused person and for the purpose of prosecution for serious sexual offences. Issuing an EAW against that background is far from disproportionate. The mere existence of other less invasive means of evidence collection does not require their use prior to the issue of an EAW, even less so in the light of the history, as found by the Senior District Judge, of efforts made to interview the Appellant prior to the issue of the EAW [1/40-41 -]. Ground 4: The EAW does not state when the allegation 3 occurred 4.37 As set out at [2.2] above, section 2(4)(c) requires an EAW to include the time of the conduct alleged. The Appellant’s argument that the EAW is deficient in this regard is founded upon an incorrectly translated phrase in the EAW. At section E, the English wrongly reads: "On 18 August 2010 or on any of the days before or after that date..." In the Swedish original the warrant reads: "Assange har den 18 augusti 2010 eller
dagarna däromkring...". An accurate translation of the Swedish is in fact "On 18th August or on days thereabouts". It is submitted this is a satisfactory and meaningful averment: It establishes that the alleged conduct occurred on or about 18 2010. 4.38 In the light of this accurate translation any argument about a failure to provide a “meaningful averment as to when the offence occurred” cannot be maintained. 4.39 In any event, it is submitted that the inaccurately translated English version would have been sufficient. It is well established that allowances must be made for documents translated between jurisdictions. The Appellant’s literal reading of the inaccurate translation is too unforgiving. The inclusion of the date 18 indicated that the conduct occurred on around that date. Ground 5: The prosecutor is not a judicial authority 4.40 Article 6 of the Framework Decision establishes that determining which authority is competent to issue an EAW is a matter for the internal law of each requesting state: “ Determination of the competent judicial authorities 1. […] 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.” (emphasis added)” 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.
August 2010 plainly
4.41 On 29 May 2009 in accordance with the above, the Council of the European Union published the Swedish list of authorities competent to issue and execute a European Arrest warrant. It states: “Issuing judicial authority. A European arrest warrant for prosecution is issued by the public prosecutor. A European arrest warrant for the enforcement of a custodial sentence or other form of detention is issued by the National Police Board”
4.42 Section 2 of the Act does not provide a separate definition of who may be considered a ‘judicial authority’. Section 66(2) of the Act, which applies for the purposes of sections 64 and 65, provides that an appropriate authority of a category 1 territory is a judicial authority of the territory which the appropriate judge believes “has the function of issuing arrest warrants in that territory”.
10400/09 COPEN 101 EJN 31 Eurojust 33: [see: www.consilium.europa.eu/ueDocs/cms_Data/docs/polju/EN/EJN785.pdf] 15
4.43 It was established in Enander v the Governor of HMP Brixton and the Swedish National Police Board  EWHC 3036 (Admin) that the term ‘judicial authority’ in the Act must be understood against the background of the Framework Decision which leaves each member state to designate its own judicial authorities. Gage LJ stated at : “Mr Hardy points out that the 2003 Act does not define the term "judicial authority". But, in my judgment, whilst that is not determinative of the proper interpretation, it points towards an acknowledgment that it is left to the member states to use their own discretion as to what will or will not be designated the appropriate judicial authority. In my opinion, any other interpretation of the term judicial authority would, as is submitted on behalf of the respondent, undermine the whole purpose of mutual trust and co!operation between member states, which is expressed in the Framework Decision.”
4.44 Openshaw J concurring observed at : “The essential flaw in the applicant's argument, to my mind, is in seeking to define the expression "judicial authority" in section 2(2) of the Extradition Act 2003 as if it stood in isolation; whereas, in my judgment, plainly it is to be interpreted in the light of the Framework Decision of the European Union passed on 13 June 2002, which Part 1 of the Act sought to implement. By Article 6(3) it is for the requesting state to designate who is the competent judicial authority within that state. That concept underpins entirely the co!operation and trust between member states on which the whole scheme of the European Arrest Warrant is based.” 4.45 The Appellant has submitted that Enander is wrongly decided in part because it was decided “without the guidance of the House of Lords” given in Cando Armas. This argument is weak, not least because the full citation for Cando Armas shows that the judicial authority in that case was a prosecuting authority (“Office of King's Prosecutor Brussels v. Cando Armas”. It is therefore submitted that nothing in that case would have led the court in Enander to proceed differently on the issue of the legitimacy of the judicial authority. 4.46 The Appellant’s submission that Enander is wrongly decided was also not the view recently and forcefully expressed by this Court in Harmatos v Office of the King's Prosecutor in Dendermond, Belgium  EWHC 1598 (Admin) when confronted by a similar argument: “For the reasons given by the Divisional Court in Enander, I consider
A brief review of recent case law under the Act shows that EAWs are routinely and uncontroversially issued by prosecuting authorities: See inter alia: Office of King's Prosecutor Brussels v. Cando Armas  2 AC 1; Vey v The Office of the Public Prosecutor of the County Court of Montlucon, France; Thompson v Public Prosecutor of Boulogne Sur Mer  ACD 5; Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille, France  EWHC 2830 (Admin); Parasiliti-Mollica v The Deputy Public Prosecutor of Messina, Italy  EWHC 3262 (Admin). 16
that it is not appropriate for this court to embark on an investigation of the status of the requesting authority in its legal system and in particular to consider whether it meets criteria which we, in our domestic legal system, would normally associate with a judicial body” [per Lloyd-Jones J at ]. 4.47 So far as this jurisdiction is concerned, the primary responsibility for determining the competence of any person issuing a warrant lies with the designated authority under section 2 of the Act. In this case the designated authority is the Serious Organised Crime Agency (‘SOCA’). The certificate issued by SOCA in this case reads: “On behalf of the Serious Organised Crime Agency I hereby certify that the Part 1 warrant issued by Director of Public Prosecution Marianne Ny, Swedish Prosecution Authority…was issued by a judicial authority of a category 1 territory which has the function of issuing arrest warrants” [1/19]. The EAW itself then contains the following unambiguous statement: “This warrant has been issued by a competent authority” [1/20]. No challenge to the certification has been brought by the Appellant, therefore it should be considered conclusive. 4.48 As Lord Bingham observed in Dabas at : “If the authority designated by the Secretary of State under section 2(9) has certified that the foreign authority which issued the Part 1 warrant has the function of issuing warrants in the category 1 territory, and the certificate required by section 64(2)(b) and (c) is contained within the warrant itself, it is difficult to see how the appropriate judge in this country, performing his duty under section 66(2), could do other than believe that the certificate had been issued by a judicial authority of the category 1 territory which had the function of issuing arrest warrants in that territory.” 4.49 It is submitted that, as was the case in Goatley v HM Advocate 2006 SCCR 463 at , the court should refuse to question the authority of the Director of Public Prosecution or look behind her appointment. There is no evidence of Swedish law that suggests the Director of Public Prosecution does not have the power to issue a warrant for prosecution. The prosecutor, Marianne Ny, has provided a statement [4/78] in which she states the legal basis for her to issue an EAW. 4.50 The carefully worked out scheme in the Framework Decision is not to be frustrated by mere descriptions of the officials of the respective countries. In terms of Article 6.1 of the Framework decision, it is plainly the law of the issuing Member State which determines its judicial authority.
Conclusion For the reasons set out above, it is submitted the Senior District Judge decided the questions before him correctly. The Court is therefore invited to reject the appeal pursuant to section 27(1)(b) of the 2003 Act.
Clare Montgomery QC Matrix Aaron Watkns 7 Bedford Row Hannah Pye 5 St. Andrew’s Hill
6 July 2011
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