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The judgment of the High Court is not yet reported Extradition Extradition Act 2003 - European Arrest Warrant - public prosecutor whether a judicial authority The cause occupied the time of the High Court (Administrative Court) for 10 hours and 31 minutes (excluding delivery of reserved judgment)

In The Supreme Court of the United Kingdom


Neutral citation of judgment appealed against: [2011] EWHC 2849 (Admin)




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Extradition request
1. The Appellant is an Australian citizen and is 40 years of age (born 3rd July 1971).


The extradition of the Appellant has been requested by a Public Prosecutor in Sweden. Sweden is designated a Category 1 territory pursuant to section 1 of the Extradition Act 2003 (by The Extradition Act 2003 (Designation of Part 1 Territories) Order 2003, SI. 2003 No. 3333). Part 1 of the Extradition Act 2003 (the 2003 Act) applies, as amended by schedule 13 to the Police and Justice Act 2006 and by Part 6 of, and Schedules 7 & 8 to, the Policing and Crime Act 2009.

3. On 13th August 2010, the Appellant entered Sweden as a visitor.

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During his visit he had sexual intercourse with two women [AA and SW]. After AA and SW spoke to each other and realised that they had both had intercourse with the Appellant during the currency of his visit in circumstances where respectively they had or might have been or become unprotected against disease or pregnancy, SW wanted the Appellant to get tested for disease. On 20th August 2010 SW went to the police to seek advice. AA accompanied her for support. The police treated their visit as the filing of formal reports for rape of SW and molestation of AA. F E

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APPENDIX A 5. The reports were filed as:



Case No. K246314-10 [complainant SW] as rape.

B 6


Case No. K246336-10 [complainant AA] as molestation.

On 20th August, police related the reports to the on-duty assistant prosecutor (Maria Kjellstrand) over the telephone who, at 5pm, ordered that the Appellant should be arrested.

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C 7. A preliminary investigation was commenced and both women were interviewed (SW on 20

August, and AA on 21 August). At the



conclusion of those interviews, on 21st August 2010, the case was taken over by the Chief Prosecutor of Stockholm (Eva Finne). Having assessed the evidence, she cancelled the arrest warrant against the D Appellant; she having made the assessment that the evidence did not disclose any offence of rape (against SW).
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The preliminary investigation continued in respect of:


Whether the conduct alleged by SW could constitute some lesser offence,


Whether the conduct alleged by AA could constitute molestation.

F 9.

On 25th (sometimes erroneously referred to as 23rd) August 2010, the Chief Prosecutor determined that:


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APPENDIX i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed. A


The preliminary investigation into the conduct alleged by AA would continue (on suspicion of the offence of molestation only). B



On 30th August 2010, the Appellant, who had voluntarily remained in Sweden to cooperate with the investigation, attended for police interview in respect of the ongoing Preliminary Investigation in respect of AAs report. He answered all questions asked of him. Meanwhile, on 27th August 2010, the counsel for SW and AA appealed the Chief Prosecutors decision to a Senior Prosecutor in Goteborg. On 1st September 2010, that prosecutor (Marianne Ny) decided that: D C



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The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of rape.


The preliminary investigation into K246336-10 [AA] would be expanded to include all the conduct in the complaint. E

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The Appellant instructed Mr Hurtig to act for him as counsel. Between 8th 14th September 2010, the Appellants counsel requested that he be interviewed. That request was deferred by the prosecutor. On 14th September 2010, the Appellants counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellants counsel that he was free to leave Sweden. She advised him that investigations were ongoing. The Appellants counsel asked whether the interrogation could G 4

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take place in the next few days but was told it could not because the investigator was ill. On 21st September 2010, the prosecutor contacted the Appellants counsel by text message to ask whether the Appellant could be made available for an interrogation on 28th September 2010. The date was provisionally agreed. On 27th September 2010, the Appellants counsel advised the prosecutor that he had been unable to contact the Appellant. The




prosecutor stated that she would consider how to proceed. Later that day, the prosecutor ordered that the Appellant should be arrested. On 30th September 2010, the Appellants counsel was advised of the existence of the arrest warrant. He advised the prosecutor that the Appellant was by then abroad. The Appellant had left Sweden on 27th


September 2010. The Appellant offered to return to Sweden for interview on Sunday 10th October or on any date in the week commencing 11th October 2010. The Sunday was rejected as inappropriate. The week commencing 11th October 2010 was later rejected as being too far away.

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E 18. The Respondent believed that the Appellant was attending a lecture in Stockholm on 4th October 2010. Plans were made to detain him then but that information proved inaccurate. Therefore, on 5th and 8th October 2010, the prosecutor again contacted the Appellants counsel to discuss possible appointments for interview. The Appellants counsel offered to speak to the Appellant about whether he would be able to attend on 14th October 2010. During the same conversation, the Appellants counsel offered a telephone G interview (telephone interviews with suspects abroad are lawful in 5


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APPENDIX Sweden and qualify for the purposes of the Preliminary Investigation). That offer was declined, the prosecutor insisting that the Appellant be interviewed in person in Sweden. A

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At around the same time, the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was not a wanted man and would be able to attend an interview discreetly. On 12th October 2010, the Appellants counsel advised the prosecutor that he had been unable to contact the Appellant. The prosecutor indicated her intention to issue an EAW if the Appellant did not attend for interview. C B



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Statements issued by the Respondent throughout September, October and November confirmed that the investigation was ongoing and that no decision had been taken to charge or prosecute. Investigations were being undertaken and witnesses were interviewed. On 12th November 2010, the Appellants counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy, all of which are permissible in Sweden, all of which were declined; the prosecutor insisting that the Appellant be interviewed in person in Sweden. E D

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The prosecutor decided that it was inappropriate to take the same steps under the Mutual Legal Assistance treaty. On 18th November 2010, the prosecutor applied to the Stockholm District Court for a detention order in absentia upon the prosecutors assertion of reasonable suspicion of the commission of: 6

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APPENDIX A i. In case No. K246314-10 [complainant SW]; the offence of rape.


In case No. K246336-10 [complainant AA]; the offences of unlawful coercion and two instances of sexual molestation.

B 26. On the same date, the Stockholm District Court granted the prosecutors application for a domestic detention order in absentia. On 19th November 2010, the Appellant appealed that order to the Svea Court of Appeal. On 24th November 2010, following written argument on behalf of the parties, in which it was argued on behalf of the Appellant that the domestic arrest was not proportionate and not based on sufficient evidence giving rise to probable cause, but without an oral hearing, the D order was upheld by the Svea Court of Appeal (albeit that the rape allegation concerning complainant SW was reduced to minor rape).
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27. C 28.


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The prosecutors written submissions to the Svea Court of Appeal on 24 November 2010 confirmed that she was;


E requesting the arrest of Assange is in order to enable implementation of the preliminary investigation. On 26th November 2010, an EAW was issued by the prosecutor pursuant 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).

30. F

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APPENDIX 31. The EAW was submitted to the United Kingdom, and received by, the Serious Organised Crime Agency (SOCA); an authority designated by the Secretary of State for the purposes of Part 1 of the 2003 Act (by The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI 2003 No. 3109) as amended by the Serious Organised Crime & Police Act 2006 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No. 594)). B A


SOCA declined to certify the EAW because it was not a valid Part 1 Warrant in that it failed to specify the punishability in respect of each offence. On 28th November 2010, the Appellant applied to the Supreme Court for permission to appeal the decision of the Svea Court of Appeal. On 2nd December 2010, that application was refused. On 2nd December 2010, a replacement EAW was issued by the prosecutor and again submitted to SOCA. This EAW was issued by Marianne Ny, a Director of Public Prosecutions, as issuing judicial authority and bears the stamp of the Swedish Prosecution Authority. The EAW refers in box (b) to the decision of the Svea Court of Appeal as being the decision on arrest on which it was based. E D C






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The Appellant's Counsel was permitted to examine part of the investigation file before the hearing in the District Court. The Appellant has not to date not been given the copies of the complete case file relating to the case (save those that were provided to the Swedish court by the prosecutor). Under Swedish law the Appellant is only entitled to have access to this material once a final decision to prosecute is made. F

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The proceedings below (Magistrates Court)

36. The Appellant had instructed lawyers in the United Kingdom to write to the Metropolitan Police extradition squad after he heard that the prosecutor might seek an EAW.

B 37. On 6th December 2010, the EAW was certified by SOCA under s2(7) & (8) of the 2003 Act.

38. C

The Metropolitan police contacted the Appellants then lawyers and arranged to arrest him by consent on 7th December 2010, when the Appellant voluntarily surrendered himself for arrest by appointment. A sample of the Appellants DNA was taken under lawful authority at this time.

39. D

The initial hearing was conducted at City of Westminster Magistrates Court pursuant to section 4 of the 2003 Act. The Appellant was initially refused bail on 7th December but was subsequently granted bail subject to conditions by the High Court on 16th December 2010.

40. E

The extradition hearing took place before the Senior District Judge (Judge Riddle) at City of Westminster Magistrates Court (sitting at Belmarsh Magistrates Court) on 7th, 8th & 11th February 2011. Witnesses gave live evidence before the District Judge. The District Judge reserved judgment. On 24th February 2011, the Appellants extradition was ordered by the Senior District Judge.



G 9


High Court


Within the applicable time limits, on 1st March 2011, pursuant to section 26 of the 2003 Act, the Appellant appealed against the extradition order. B On 12th & 13th July 2011, the Appeal was heard before the High Court, consisting of the Right Honourable Sir John Thomas PQBD and the Honourable Mr. Justice Ouseley.



The High Court considered four appeal grounds:

a. The EAW had not been issued by a "judicial authority".

b. The EAW did not meet the dual criminality test. D

c. The Applicant was not an accused within the meaning of s.2(3) of the 2003 Act.

d. The issue of the EAW and subsequent proceedings were not proportionate. E 45. The High Court reserved judgement. On 2nd November 2011, the High Court dismissed the appeal, pursuant to section 27(1)(b) of the 2003 Act. The Court held that: F




The Swedish prosecutor was a judicial authority, because the term judicial was not limited to a judge who adjudicates and could also include a prosecutorial body, as envisaged by Article 6 of the Framework Decision (judgment 20-54); G 10

APPENDIX A b. The offences in the EAW did meet the dual criminality requirement, having regard to ss.74, 75 and 76 of the Sexual Offences Act 2003 (55-127);
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The Applicant was an accused person, applying the House of Lords decision in Re Ismail [1999] 1 AC 320 (128-154);



The decision to issue the warrant and the failure to take up the offer of video link questioning were not disproportionate



Point of Law of General Public Importance

47. D On 5th December 2011, the High Court certified that the following point of law of general public importance was involved in its decision, pursuant to section 32(4)(a) of the 2003 Act:

Whether a European Arrest Warrant (EAW) issued by a public prosecutor is a valid Part 1 Warrant issued by a judicial authority within the meaning of sections 2(2) & 66 of the E Extradition Act 2003?...


The High Court refused to certify another point of law.


48. F

The High Court refused leave to appeal to the Supreme Court.


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Supreme Court
49. Within the applicable time limits, on 15th December 2011, pursuant to section 32 of the 2003 Act, the Appellant applied to the Supreme Court for permission to appeal against the High Courts ruling.

B 50. On 16th December 2011, the Appeal Panel of Supreme Court (Lord Hope DPSC, Lord Mance JSC and Lord Dyson JSC) granted the Appellant permission to appeal to the Supreme Court.

Grounds of appeal left undetermined

51. No grounds of appeal were left undetermined by the High Court.

The issues
D 52. Whether a public prosecutor is a judicial authority.





HANNAH PYE F Counsel for the Appellant Counsel for the Respondent

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