ceroi nu /

/ n1 t '. v- r,
IN THE HIGH COURT OF ruSTICE
Case No: CO/1

ADMINISTRATIVE COURT
BETWEEN:

IN THE MATTER of an appeal pursuant to section 26 of the Extradition Act2O03.

ruLIANPAUL ASSANGE
Appelle4

SWEDISH PROSECIJTION AUTHORITY

Respondent

SKELETONARGUMENT
ON BEIIALF OF TI{E APPELLANT

Date of hearing:

12ft

& t3s

July zol I

Time estimate:
Essential Reading:

2 rlays (1 day pro-ieading) Skeleton Arguments

EAW and supplemental information (4.2.1 1) Witress staternents of Mark Stephens (14.12.10; 10.1.11; 28.1.r1 &7.2.1r) Wihess statement of Andrew Ashworth (25 . I . I 1 ) Report of Sven Erik Alhem (28.1.1 1) Witness statment of Goran Rudling (3 1 .1 .l 1) Report of Christophe Brunski (2.2.11) Transcripts of evidence in Magistrates' Court (7 & 8.2.1 1) Witness statmont of Jennifer Robinson (22.2.11) Judgment of the District Judge Q4.2.11)
Chronology:
See below, paragraph 2

2.13

On 27rtr September 2010, the Appellant's counsel advised the prosecutor that he had been unable to contact the Appellanf. The prosecutor stated that she would consider how to proceed. Later that day, t}re prosecutor ordered that the Appellant should be detained 'in absentia'. On 301h September 2010, the Appellant's counsel was advised of the existence of the arrest order. He advised the prosecutor that the Appellant was abroad. The Appellant offered to rctum to Swcden for interview on Sunday 10m October or on any date in ttre week commencing 11* October 2010. The Sunday was rejected as inappropriate. The week commencing 1l'October 20i0 was later rejected as being too far away.

2.14

2.15

That was probabiy because police believed that the Appellant was attending a lecture in Stockholm on 6'o October 2010. Plans were made to detain him then but lhat information proved inaccurateTherefore, on 8th October 2010, the prosecutor again contacted the Appellant's sounsel to discuss possible appointunents for interview. The Appellant's counsel offered to speak to the Appellant about whether he would be able to attend on 14e October 2010. During the same conversation, the Appellant,s counsel offered a

2.16

telephone interview" which was declined (the prosecutor insisting that the Appellant be interviewed in person).

2.17 At around the same time, the prosecutor

stated tlat, notwithstanding the extant anest order, that the Appellant was 'not a wanted man, and would be able to attend an interview 'discreetly'.

2.18

On 12tb October 2010, the Appellant's counsel advised the prosecutor that ho had been rmable to contact the Appellant. The prosecutor indicated her intention to issue an EAW if the Appellant did not attend for intsrview.

2.79

On 2"d November 2010, the Appellant tavelled to Switzerland (to lecturo the U.N.) and on 10th November 20i0 to the United Kingdom. counsel invited the prosecution to propose dates for interview and offeted, in the altemative, a telephone or videolink interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embasst' which were all declined (the prosecutor insisting tlat the Appellant be interviewed in person in Sweden).
Owing to ongoing developments in the United States of Ameriaa, the Appellant had been keeping

2.20 On 12th November 2010, the Appellant's

a deliberately low public profile and avoiding use of communication devices that could track lris location- He had leff Sweden for Berlin on 27t September 2010, without knowledge of the issuance of the arrest warrant and in accordance with the permission to Ieave granted by the
prosecutor on 15s Septsmber 2010. Telephone interviews with suspects abrcad arc lawful in Sweden and qualify for the purposes the Preliminary Investigation. All ofwhich are lawful in Sweden and qualify for the purposes ofthe Preliminary Investigation.

of

2.2I
2.22

The prosecutor decided, without offering reasons, that it was inappropriate to take the same steps under the mutual assistance teaty.

On 18th November 2010, the prosecutor successfully applied to the StockholmDistict Court for an arrest warrant in absentia upon the prosecutor's assertion of reasonable suspicion of the commission of:

i. ii.
2.23 On

In case No. K246314-10 [complainant SW]; the offence ofrape'

In

case

No. ifJ46336-l} [complainant AA]; the offences of unlawful

coercion and sexual molestation x 2

22"n November 2010,

the Appellant

appealed

that order and, on

24'o

the rape offence conceming complainant SW was reduced to the lesser offence

November2010,theorderwasupheldbythesveaCourtofAp'peal(albeitthat
'minor rape')-

of

2.24

On 26,h November 2010, an EAW was issued by the prosecutor pursualt to the Council of the European lJnion Framework Decision on the European arrest warranl and surrendir procedures between member states of the European Union2002/584IJHA ("the Fiamework decision'). The EAW was submitted to, and received by, the Serious Organised Crime Agenoy C'SOCA ); - T$gtt? clesignated ly the Secretary of state for the puposes ofPart 1 of the 2003 Act" SOCA ileclinecl to certif' the EAW because it was not a valid Part 1 Warrant (it failed to speci$ the prmishability in respect of each offence) '

2.25

On 28th November 2010, the Appellant applied to the Supremc Court for permission to appeal the dscision oi the Svea Court ofAppeal' On 2"" December
2010, that application was refused.

2.26 2.27

On 2od December 2010, a replacement EAW was issued by the prosecutor and submitted to SOCA. On 6* December 2010, the EAW was certified by SOCA under s2(7) the 2003 Act.

& (8) of

The Exffadition Act 2003 (Pad 1 Designated Authorities) Order 2003 (SI 2003

No

3109)

as

amended by the Serious Organised Crirne & Police Act 2006 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No 594)

2.28

On 7th December 2010, the Appellant voluntarily surrendered? himself for arrest by appointrnent in the United Kingdom and the 'initial hearing' was conducted at City of Westminster Magishates' Court. He was initially refused bail on 7h December but subsequently was granted bail subject to conditionss.

Following an extradition hearing on 7ft, 8ft & 116 February 2011 at City of Westminstet Magistrates' Court (sifting at Belmarsh Magistrates' Court), the Appellant's extradition was ordered on 24th February 2011 by the Senior District
Judge. 2.30

Within the applicable time limits, on 1" March 2011, putsuant to section 26 of the 2003 Act, the Appellant appealed against the exhadition order on the grounds set out in the Grounds ofAppeal and firrther developed below.

Whilst in the UI{, and as early as 2no November 2010, the Appellant had instucted lawyers to
write to the Metropolitan Police extradition squad after he heard that the prcselutor might seek an EAW. When it did come, the extradition squad called his lawyers and aranged to arrest bim by consent the following day. They took a DNA sample at this time. The Respondent appealed the grant ofbail to $e High Court; which appeal was rejected with costs by Ouseley J. on l6'December 2010.

Submission
f _I

The EAW alleges the following factual conduct:

1- "...Unlawful coercion
On 13-14 August 2010, in the home of the injured pafiy [AA] in Stockholm, Assange, by usi:rg violence, forced the injured party to e.ndure bis resticting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading ofher legs whilst lying on top of her ald with his body weight preventing her ftom movfug or shifting.

2.

Sexual molestation

On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, AssaDge deliberately molested the injured party by acting in a manner designed to violate her sexual integrity- Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consunmated unprotected sexual intrcourse with her without her knowledge.

3.

Sexual molestatio!

On 18 Auglst 2010 or on any of the days before or after that date, in the home ofthe injured party [AA] in Stocftholrn, Assange deliberately molested the injured party by acting ir a manner designed to violate her sexual integrity, i.e. lying next to her ard
pressing his naked, erect penis to her body.

4.

Rape

On 17 August 2010, in the home of the injured party [SW] in Enkiiping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that
she, due to sleep, was in a helpless state.

an aggravating cfucumstance that Assange, who was aware that it was the of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotecied sexual iltercourse with her. The sexual act was designed to violate the injured party's sexual integrity.. .."

It is

expressed wish

The Senior District Judge found that those factual allegations would establish dual criminality for the purposes ofsection 64 ofthe 2003 Act; on the basis that lack of consent (and lack of reasonable belief in consent) may properly be inferrede ftom the conduct described, padicularly the references to 'violence' and a 'design' to

'violate sexual integrity'.

Pursuant to

(Kulig) v Regional Cot rt in Tamou,, Poland l20l1l EWIIC 791 (Admin); Ncczraazs&i I' Regional Court in Moclavek l20l0l EWHC 2023 (Admin\; Zak v Regional Court of BJ'deoszcz
Poland l2DOSlEWHC 470 (Adrnin).

Balir1v Municipal Coart

Prague, Czeclt Republic [20] I] EWHC 498 (Admin);.R

3.3 3.4

However, that description ofconduct is not accurate.

The EAW misstates the conduct alleged and is, by that reason alone, an invalid warrant. Further, properly described, the conduct alleged in the EAW does not establish dual criminality pursuant to section 64 of the 2003 Act.
The Appellant does not (and does not need to) allege bad faith or ulterior motive on t}re part of the Swedish authorities. So far as the Appellant is concemed, tlese were genuine attmpts to summarise long statements. However, the fact remains that the conduct described in the EAW does not accuratelv reflect the accounts of the complainants.

3.5

3.6

The established law

ln Castillo v The Government of Spain & held, at paragraph 25, that;

Anor

l2OO5l 1

WLR 1043, this Court

"...the description of the conduct alleged must be made in the request and that description will be considered by the Seuetary of State and the coud in the decisions each has to rnake in respect of the offences rmder the law of the UK which are constituted by the conduct described. It is in my view very impodant that a state requesting extadition from the UK fairly and properly describes the conduct alleged, as the accuracy and faimess of the descn'ption plays such an
important roie in the decisions that have to be made by the Secietary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the oflence alleged, whereas here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concemed to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concemed, if materials are put before it which call into question the accuracy and faimess of the description, to see if the description of the conduct alleged is fair and accurate..."

l-d

Apply*g
that;

those principles to the facts of that case, Thomas L,J. proceeded to hold

"...26. It is clear that in the light of the dossier held by the Court in Spah that description in the request of the conduct which it is alleged constituled
offences was not a proper, accurate or fair description.

the the

27.

It did not make clear that the policeman was in his house and not near the car and that the device was not a timed device but one requiring a fuse to be lit. If the
description had made that clear, (as it plainly should have done if the conduct alleged was to have been described propedy ald faidy), it would in my view have been quite impossible for anyone to conclude that the description could cover the offences under the law of the IIK of attempted murder of the police officer or an attempt to cause him grievous bodily harm; a proper description of

ofthe place where the policeman was at the time as taken from the dossier would have shown that there was no basis for charging him with an offence under the law of the UK in respect of an attempt to kill the policeman or
the device and an attempt to do grievous bodily harm to the policeman.

28.

have reached that view in relation to those two charges (charges 6 and 7), it seems to mc that on, what I consider to be a fair description of the conduct alleged, the description would cover the charge of attempting to cause an explosion likely to endanger life [offence 5] .." However, although
...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) lhat the offences under the law of the IJK of attempted murder of ihe police officer and attempt to cause serious bodily injury to the police offrcer cannot be made out. Although the District Judge had determined that the

...46-

conduct described amounted to the crimes set out i]l charges 6 and 7, in my judgment that determination caflnot stand in the light of the wrong description contained in the request..."

3.9
3.10

Castillo was a case blought under the European Convention on Extadition 1957 (the "ECE"). The ECE had been incorporated into UK law in 1990'". Under the ECE, the requirement upon a Requesting State to establish a prina facie case had been abolished (Article 3). What existed instead (under Article 12) was an obligation to set out a description ofthe offence(s) and the conduct alleged to constitute the offence(s) for which extradition was requested; "...It is the obligation of a state making a request under the Convention, il the light of Article 12, to set out a description of the conduct which it is alleged constitutes the offence or offences for which exhadition is requsted. That requftement does not mean that the evidence has to be provided, because Article 3 of the Convention provides the state requesting extradition does not have to provide the courts of the state to which the request is directed with evidence and tle court in that state does not have to be satisfied that there is suf8cient evidence; as reflected in s 9(4) of the Act ald paragraph 3 of the European Convention Extradition Order 2001 there is no requircment of evidential sufficiency. As the House of Lords made clear in re Evans [1994] I WLR 1006 at 1013 "The magistate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for triaL."..." (Castillo (supra) per Thomas L.J. at para. 24).

3.11 A

request that did not set out a description of the offence, or tie conduct constihrting the offence, properly, accurately or fairly, was, by definition, one that did not comply with Article 12 ECE. It was, therefore, the obligation to set out a description of the offence and conduct constituting the offence which, the Court held in Castillt, carried with it an obiigation to do so properly, accurately and

fairly.

See

Sl. 1990 No. 1507; the various amendmcnts to whicb were consolidated in SL 2001 No. 962.

10

How the Castillo principles operate under the 2003 Act

3.12 3.13

The legal requirement for a proper, accurate and fair description of offence and conduct has become, if anything, morc concrete under the 2003 Act.

In 2003, the ECE was superseded in respect ofmany ofits member s!ates", by the Framework decision. The Framework decision has two underlying purposes; it seeks to encourage speedy transfer while ensuring that sufficient safeguards are in place so that fundamental rights are respected (Ballan, Re Judicial Review 120081 MQB 140 per Ken L.C.J. at para. 15).
Pursuant to the first purpose, the Framework decision maintained the ECE abrogation of the requirement upon a Requesting State to establish a prima facie case (and introduced further abrogations such as in respect of dual criminaiity in certain circumstances).
Pursuant to the second pupose, Article 8 of the Framework decision provides mandatory minimum content requirements of an EAW, which include (so far as is relevant to this case);
The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex: a descrilion of the circumstancbs in which the offence was committed, including the tirne, place and degree ofparticipation itr the offence by the

3.14

3.15

...e.

.
3.16 3.17

requested prson..."

That 'due process requirement' (per Kingilom of Spein v Arteaga [2010] .NIQB 23 atpan. 19) is enacted in the 2003 Act by section 2(4)(c) of the 2003 Act"'
Section 2(4) of the 2003 Act provides, so far as is relevant, that an EAW must contain:

"...(4)

The information is-.

..

c.

particulars of the cAcumstances in which fte person is alleged to have committed the offence, including the conduot alleged to constitute the offence, the time and place at which he is alleged to ha\'e committed the offence and ar:y provision of the law of the category I territory under which the conduct is alleged to constitute an offence . ..",

The ECE remains the operative extradition teaty with the UK in respect of 19 of its signatories (Albaniq Andona, Armeni4 Azerbatan, Bosnia-Herzegovin4 Croati4 Georgi4 lceland, Israel' Liechtenstein, Macedona FYR, Moldova, Montenegro, Norway, the Russian Federation, Serbi4 Switzerland, Turkey and the Ukaine); tlre remainder have since become signatories to t}le Framework decisionThe position is the same under Part 2. The Particulars of conduct required by section 78(2)(c) are now the same as those required by section 2(4)(c); Dadko v The Government of the Russian

Federatian [2010] EWHC I 125 (Admin)

11

3.18 3.19

The requirements of section 2(4)(c) ofthe 2003 Act and of Article 8.1(d) or (e) the Framework Decision are the san'rc (Arteaga (s\Wa)).

of

The House of Lords has repeatedly observed that compliance with section 2's 'validity' provisions is a jurisdictional prerequisite of a Part 1 warrart under the 2003 Act. Ifan EAW does not conform to the requirements set out in section 2 of thc 2003 Act, it will not be a Psrt I warrsnt rvithin the meaning of that section and Part 1 of the 2003 Act will not apply to it (OfJice of lhe King's Prosecutor, Brassels v Cando Armos p006f 2 AC l, HL per Lord Hope of Craighead at paras. 28 & 421' Dabas v High Court of fustice, Madrid 1200'71 2 AC 3 I, HL per Lord Hope of Craighead at para. 50; Pilecki v Circuit Court of Legnica, Poland [2008J i WLR 325, HL per Lord Hope ofCraighead at para. 14)
The burden of proving that the EAW complies with section 2 of the Act is on the Prosecution and the standard ofproofis beyond a reasonable doubt (section 206 of the Act; Mitoi v Government of Romania [2006] EWHC i977 (Admin))". The llouse of Lords has also ernphasised the principle of strict compliance with the requirements of section 2 of the 2003 Act

3.20

3.21

"...The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be eamed by a careful obsewance of the procedures that have been laid down. . .the liberty of the subject is at stake here, and generosity must be balanced agaiist the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to aocording to the requirements laid dow:r in the statute..." (OfJice of the King's Prosecato4 Brussels y Cando Amds & another (sttpra) per Lord Hope ofCraighead at paras.23-24)".

3.22

That principle is crucial in respect of territories in respect of which thers exists no

inquiry into evidential sufficiency. Thus,

compliance with the provisions of the 2003

it is imperative that there be strict Act

"...Since Parliament has delegated to the executive the power to include any states it thinks fit - a power it has exercised generously - fhe need for rigour at this elementary level is far more than merely technical..." (Bentley v The Government of the Uniteil States of Arneficd [2005] EWHC 1078 (Admin) per SedleyL.J. at parz' l7).
This was accepted by the District Judge $t 12 - "unless I am sure the \rarrant is valid, I must discharge") al+J|,ough he seemed to think that certification by SOCA shifted the burden and placed at least an evidential burden on the appellant to demonstrate that SOCA had made a mistake (p

ftegrza (Guisto) v Goten or of Brixtott Ptison and another [2004] I AC 101, HL per Lord Hope of Craighead at para. 4l; "...il is a fundamental point ofprinciple that any use ofthe procedures that exist for depriving a person of his liberty must be carefully $crutinised.-..the couds must be vigilant to ensure that the exhadition procedures are strictly observed...The
importance ofthis principle cannot be over-emphasised... ".

13), See also

12

Seetion 2(4)(c)

3.23

In basic terms, section 2(4)(c) requires the provision of sufficient particulars of the applicable law and alleged conduct so as to enable the defendant to understand the nature and extent of the allegations against him in relation to the offence, and in order that he may exercise a:ry of the Act's bars to, or restrictions upon, extradition (Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at para. 7). An EAW that misstats the conduct alleged, or the applicable legal provisions, is, by definition, one that does not provide sufficient particulars so as to nable the defendant to rmderstand tlte nature and extent of the allegations against hirn. Such an EAW is not an EAW that complies with Article 8.i(d) or (e) of the Framework Decision, nor is it a valid part I wanant for the purposes of section 2(a)(c) of the 2003 Act. As was the position in Castillo rnder Article 12 ECE, so it is under the 2003 Act; see The Ciminal Court at the Nartonat High Courl, Id Division (A Spanish judicial Authorifl v Murua. [2010] EWHC 2609 (Admrn).
Other requirements ofthe 2003 Act

3.24

1.25

In some case, the particular misstatement will engage other provisions of the 2003 Act. Such was tle case in Castillo itsel{ where, upon t}e true faots, dual criminality was not made out. Such is also the case here

The treatnent of Castillo under the 2003 Act

1.26 3.21

The case law of both England and Scotland has consistenfly applied the Castillo principles to section 2(4)(c) of the 2003 Act.

In Palar v Court of First Instance Btussels [2005] EWHC 915 (Admin), Iaws
L.J. held, at paras. 7-8, that;

"---7-

it the trafflation of the warrant which I have read poses some difficuldes...It is far from clear to me how it could be said that these facts are capable of constituting conduct which amounts to the extradition offences alleged. It is be noted (albeii in the context of the eadier legislation contained in the Extradition Act 1989) that in Castillo v the Kingdom of Spain and the Government of HM Prison Belmarsh [20041 EWHC (Admin) 1676, Thomas LJ said: "25- However the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect ofthe offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition ftom the tlK fairly and properly describes the conduct alleged, as the accuracy and faimess of the description plays such an important role in the decisions that have to be made by the
Qn the face of

I')

Secreta4r of State and the Court in the UK. Scruiiny of the description of the conduct alleged to constitute alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess tlre quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair aud accurate."

8.

bear fully in mind that the background to the relevant provisions made in the 2003 Act is an initiative of European law and that the proper adminishation of those provisions requires that fact to be bome firmly in mtnd. It goes without saying that the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Waflant scheme. However, it remains the case that the conduct said to constitute the extradition offence in question has to be specified in the warrant (section 2(4((c))..."

'

3.28

In La Torre v Her Majesty's Advocate 12006l HCJAC 56, in construing section 2(4)(c) of the 2003 Ac! the High Court of Justiciary (per Clerk L.J, Lord McFadden & Lord Nimmo Smith) observed, at para. 92, that; "...[section 2(4)(o)] includes, and expands upon,

trarsposition

of

the

requirements of article 8(1)(e) of the Framework Decision. We accept that the conduct must be fafulv and properlv described (i (Cdsrillo) v Spdrtt. per Thomas LJ at 1052. para 25). We acceot that that is so as a matter of first orinciples of faimess, as well as to allow the rule of speciality to be given content (Aronson, per Lord GrifEtbs at pp 594D and 595D). But we also accept the submission of couxel for the Lord Advocate that one purpose of the 2003 Act was to simpli& and streamline procedures for extradition to EU countries, and that a practical, rather than a tecbnical, approach should be adopted to the specification given in the warrant (Welsh awl Thrasher, per Laws LJ at para 26). As Lord Hope of Craighead said m Arnas (at para .14):"The purpose of the siatute is to facilitate exhadition, not to put otstacles in the way of the process which serve no useful purpose but are based on technicalities.".. ." (emphasis added).

3.29

This Court recently reviewed this area of the law tn The Cfiminal Court dt the National High Court, ln Division (A Spankh judicial Authority) v Marua

proper, fair and accurate descripfion of the conduct alleged requirement of section 2(4)(c) ofthe 2003 Act:

[2010j EWHC 2609 (Admin). Sir Anthony May P. held that the requirement for a is a validity

Other app'lications of Castillo under Part I of tbe 2003 Act include Fofana & Belise v Deputy Prosecutor Thabin Tribural De Grande Instsnce De Metw, France [2006] EWHC 744 (Admin) and Centrdl Exdmining Court of lhe Nuliot dl Court of Madlid , Cillt of lVestminster Ma.gistrates' Coart & Anor 120071EWHC 2059 (Admin).

14

"...56. Authority for the proposition that a European Arrest Warrart does not
sufficiently conform with the requirements of section 2 of the 2003 Act is to be found in such House of Lords cases as Dabas and Pilecki, to which I have referred. Q4g!!!!9 tells us that sufficient confonuity requires a proper, fair and accurate description of the conduct alleged. I respectfully agree with ihe Scottish Appeal Court in La Torre that the need to describe the conduct fairly, properly and accuately is a matter of first principles of faimess . . -

58.

jurisdiction, 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 frm regard to mutual co-operation, recognition and respdct. 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 The court's task

if

alleged extradition offence

is far,

proper and accurate.

understood Ms

Cumberland to accept this, agreeing that it was in the end a matter of fact and degree. She stessed, however, a variety of floodgates arguments with which in general I agree, that this kind of irquiry 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...

60. 64.

...The question to be asked is whether the description sufficiently conforms with the requirements set out ia section 2 by gling proper, accurate and fair padiculars ofthe conduct alleged to constitute the exhadition offences....

The 2010 warant does not, therefore, give particulars of conduct capable of
constituting a viable extradition offence, so that it does not contain a descriotion of the conduct alleeed which is oroper. fair and accurate. It is not proper or fair because it is imptgper aild unfair to seek the extadition of a person uoon charees which the court's om document show cannot be proved in their most material oarticular; that is to say, risk to life. It is not accurate because the lesser charges which could properly be alleged are not those alleged in the warrant..." (emphasis added)

3.30

What the court is not permitted to entertain is "a debatable analysis of arzuably discrepant evidence". So, conflicting evidence will not engage this analysis. However, where it is tlro case tlat the underlying evidence is available and, taken at its highest, carmot sustain the description afforded to it in tle EAW, then this jurisdiction is firm1y engaged.

Proving misstatement

3.31

of the 2003 Act, that in the event of a serious fi;ndamental misstatement, going to the head ofan extradition request, the Court is (and should be) impotent to look at'extraneous materials'. As a matter of law, the 'invalidity' of an EAW can be established by reference to extraneous materials.
has never been the law, even under Part

It

l5

3.32 As stated

of Lords had established in Office of the King's Prosecutor, Brussels t Canilo Armas 120061 2 AC 1, HL, per Lord Hope of Craighead at paras. 28 & 42, that section 2 'validity' is a jurisdictional prerequisite ofa Part 1 wanant under the 2003 Act. If an EAW does not conform to the requirements set out in section 2 of the 2003 Act, it will not be a Part I warrant within the meanine of that section and Part 1 of the 2003 Act will not
above, the House opply to it. Extraneous materials are only receivable in proceedings under the 2003 Act by virtue of section 202 of the 2003 Act. An invalid EAW is not one to which tlre provisions of the 2003 Act (including s202) can apply.

3.33

3.34

The House of Lords in Dahas (supra) thercfore confrrmed the necessary implication tha! as a matter of law, an 'invalid' EAW cannot be cured or saved
by reference to extraneous materials;
"
..

.I wish to stress, however, that the judge rnust frst be satisfied that the warrant

with which he is dealing is a Part 1 warrant withil the meaning of secnort 2(2). A wdrrant which does not contain the statement\ referued to in that subsection cannot be eked out by exlraneous information. The rqutements of section 2(2) axe mandatory. If they are not met the warrant is not a Part I warrant and the rernaining provisions of that Part of the Act will not apply to it. ..-" (Dabas v High Court of M&tritl (supra) per Lord Hope of Craighead at para. 50)
(emphasis added).

3.35 Lord Hope

was not stating a novel proposition'". And

it is a principle that

continues to apply. Ia Zakowski v Regional Court in Szczecin, Poland 12008) EWHC 1389, Maurice Kay L.J. observed at paras .3-4 that;

"...[coursel for the Polish authority] submits that the passage that proscribes
eking out by extraneous infornation is not part of the ratio in Dabas. However at the very least it is stongly persuasive authority, and no dissent to it is to be found in the odier speeches. To my knowledge it has been followed in othet cases in this court. I do not feel able to depart from it. nor would I wish to do so..."

3.36 3.37

Thus, Dalas (supra) establishes tlat an 'invalid' EAW cannot be cured by reference to extraneous materials (because section 202 camot apply).
However, as this Court held in Murua (supra) the converso is not true. It is not tle law that the 'invalidity' ofEAW cannot be establishedby reference to exhaneous materials.
See the following cases to similar effect; all considered by the House of Lords; Dabas v High Co rt of Madr l 120071 1 WLR 145, DC per Jack J. at para. 45. Parasiliti-Mollaca v. The Depullt Public Prosecutor of Messina, IraU [2005] EWHC 3262 (Admin) per Hooper L.J- at para. 15; .R (Pillar & Pillar) v The Proviacial Court at Klagenfurt, Avstria [2006] EWHC 1886 (Admin) per

May LJ. atparc127-28.

It)

3.38

'valid' on its face, such that it can properly be described as a Part 1 warrant, unlike in Ihe Dabas situation, section 202 does apply' Evidence may therefore be adduced which demonstrates that an EAW in fact
Where an EAW appears
contains errors (and is thus invalid).

3.39

The courts are not slavishly bound by the content of an EAW, even in respct of thc legal (as opposed to factual) propositions contained within it. For example, on a proper evidential showing, a defendant who is subject to an 'accusation' EAW is plainly permitted to be heard to say "...in fact I have been convicted of ttris offence, and that EAW is therefore not valid...". See, for example, Caldarelli v Court of Naples [2008] I WLR 1124,HL.

"...Under article

I of the Framework

Decision the EAW is

judicial decision

issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recogn.ition .I/

might in some circumslances be necessary to queslion stdtements made in the EAW by the foreign judge who issues it" even where the judge is duly authorised to issue such warrants in his category.I territory,b\t ordinatlly statements made by the forcign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer. . ."

3.4Q Thus it is that there exist numerous examples of the courts receiving and considering evidence which may demonstrate that an lAW in fact contains errots (and is thus invalid). See, for example, Michahk v The Arcuit Court, Second
Crimiaal Division in Olsa4tn, Poland [2010] EWHC 2150 (Admin).

3.41

As the court has repeatedly held, whether a given error has tle effect of rendering an EAW invatid will be mat0er of degree. Minor errors do not afflect validity' However, signilicant effom can. See, for example, Nowak v Disttict coaft in

Koszalin Poland 12009'j EWHC 3519 (Admin) eind Aryantash e Trih nal De Bdndsinski v Grand Instance, LiIIe, France [2008] EWHC 2115 (Admin) ^ad District Court of Sanok l2OO8l EWHC 3626.

Bad

faith not necessary

3.42

The Criminal Court at the Nfltbnal High Court, In Division (A Spanish

iuilicial

Authoity) v Murua [2010] EWHC 2609 (Admin) turther confirms

(at para. 59)

that cases of misstatemedt are not necessarily to be categorised as allegations of bad faith and/or abuse ofDrocess''.

Eerminghom & otherc v Direclor of the SFO and others 120071 QB 727 and R (Ihe Governn enl of the United Stutes ol AmericL) v The Senior Disttict Judge' Bott' Street MogistrateEt Coart & Ors 12007] I WLR I 157.
P[rrsnar:d to

17

3.43

Of course, a misstatement may also carry such an implication. But it is not legally necessary. That is because Castillo itself is express authority to the effsct that the
principles of misstatement apply independently from those of abuse of process" and are applicable regardless ofthe motivation behind the misstatement.

3.44 Having

registered (at paragraphs 26-28), the factual conclusion that the

description ofconduct in the request was not a ploper, accurate or fair description, the Iligh Cotrt t:'t Castillo wcnt on to consider (at paragraphs 31-45) whether the misstatement had been the result ofbad faith. Thomas L.J. concluded that;

'...43. In my view, even giving the

subsection a generous construction as suggested in Osman,1 do not consider that it can be said the accusation was not made in good faith. I have no doubt that those framing the description of the conduct alleged against the applicant for tfe purposes did not have proper regard to the requirements of Article 12- That is most regrettable as, given the fact there is no enquiry into evidential sufficiency, is of the utnost importance that the

description of the conduct alleged is ftamed with the greatest care; it is an essential protection to the person whose extradition is sought. It is to be expected that the description will be framed with very considerable care and expressed in terrns in which it can be easily understood by the court in the state to which the
request is addressed.

it

44.

But although there was a lack of care on the part of those framing the requesl I do not consider that it can be inferred that those responsible were deliberately exaggerating the losition or otherwise failing to act in good faith when drafting the description of the conduct in the request. Indeed, their subsequent behaviour is wholly inconsistent with a lack ofgood faitl. It is important to note that they made the Court dossier available to the applicant's lawyer in Spain and have produced it to this Court; they have been entirely open. There is nothilg to suggest that in continuilg to maintain their position in the light of ttre new materials which the Spanish authorities themselves made available that tbey have acted other than in accordance with the advice ofthe CPS and counsel.

46.
3.45

am therefore unable to conclude in respect of charges 6 and 7 that there was a Iack ofgood faith...".

Nonetheless, Thomas L.J. went on to conclude,

atpan.46,thal;

"...46.

...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences rmder the law ofthe ItK of attempted murder of the police officer and attempt to cause serious bodily injury to the police offlcer cannot be made out. Although the District Judge had determined that the conduct described amounted to the crimes set out in charges 6 and 7, in my judgnent that determination cannot stand in the light of the wrong description contained in the reouest..."

Well established by then by the decision in

-R (Kashamu) v

oB

Govenor of Brixton Prison f2002)

887^ DC.

t8

3.46 A defendant would only need to rely upon the principles

bad faith

if tlle misstatement

of abuse of process or was not sufficiently important to the integrity of the

extradition request. That is absolutely correct as a matter ofpri::ciple;

Serious fundamental misstatement, going to tle heart of an extradition request, should be actionable regardless of its motivation. Neither the provisions of section 2 of the 2003 Act, nor Article 8 of the Framework decision, are dependcnt upon findings ofbad faith.

Conversely, minor immaterial errors, not going to tle heart of an extradition request (such as, for example, the misstatement of immaterial dates in th EAW) should not be fatal of themselves. In such cases, it should only be in cases where the defendant is able to additionally establish bad faith that the Couft'3llorld be able ro act.

Olfence

(unlawfal coercion - AA)

3.4'7

The EAW avers that:

"...On l3-14 August 2010, in the home of the iqjured party [AA] in Stockholrn, Assange, by using violence, forced the injued party to endure his reshicting her freedom of movement. The violence consisted in a firrn hold of the injured party's axms and a forceful spreadrng of her legs whilst lying on top ofher and
wilh his body weight preventing her from moving or shifting..."

!r

3.48

Whereas, the defence have been able to gain access to the Swedish court dossierle. Examination of that dossier reveals that an accurate summarv of tlo conduct alleged by AA in her interview on 20h August 2010 would have been
that:

as a press and political secretary of tle Swedish Association of Christian Social Democrats. As such, she helped to organise the seminar on 1 4fr August 20 1 0 at which the Appellant was invited to speak;

AA worked

She offered her aparhnent for the Appellant to stay in ftom 11fr-14s August when she was away, however she retumed early, on Friday 13'August. She had never met the Appellant before. They went out for dinner. They agreed that the Appeliant would remain at AA's apartment even though she had retumed one day early;

evening, 136 / 14s August. The Appellant's physical advances were initially welcomed but then it felt awkward since he was "rough and impatient";

They had sex on

tlat first

Exhibit JR/4 to the witness statement of Jennifer Robinson.

19

"-.. they lay down in bed. [AA] was of her...";

llng

on her back and Assange was on top

"...tAAl felt that Assange wanted to insert his penis into her vagina direcfly, which she did not want since he was not wearing a condom...". She did not articulate this. Instead "...she therefore tried to tum her hips and squeeze her legs together in order to avoid a penefation. ..";
several times to reach for a condom which Assange had stopped her ftom doing by holding her arms and bending her legs open and try to penetrate her with his penis without a condom. [AA] says that she felt about to cry since she was held down and could not reach a condom and felt that 'this could end badly'. When asked [AA] replied that Assange must have known it was a condom ALwas reaching for and that he held her arms to stop her...";

"...lAA] tried

After a while Assange asked what [AA] was doias and whv she was . [AA] told him that she wanted him to out on a sq!9944g_bq condom before he enterod her. Assanse let go of [AA's] arms and put on a
condom which

Atl

found for him

...

" (emphasis

added)

Invalidi4,

3.49

Thus, the sumnary oontained within the EAW ("by using violence, forced the injured party to endure his toskicting her freedom of movement') is not accr[ate. Accurately described, the Appellant held AA during consensual sexual foreplay and, when actually asked to put on a condom, did so. The EAW does not contain a description of the conduct alleged to constitute tle alleged extadition offence that is fair, proper and accurate. It is therefore an invalid EAW pwsuant to section 2(4)(c) of the 2003 Act; The Ctiminal Court at the National High Court, ld Division (A Spankh jutlicial Authotity) v Murua [2010] EWHC 2609 (Admtu). and Castillo were clearly relied on

3.50

3.51 Murua

in the Appellant's oral and written

yet the leamed Diskict Judge nowhere referred to Muraa or Castillo n his Judgmen! nor to the argument that the EAW did not contain a proper, fair and accurate description ofthe alleged conduct. In fact, the leamed District Judge held that it was "unnecessarlf' to consider this "extraneous material". In so ruling, the leamed Dishict Judge plainly ened in law (and consequently also in fact).

submissions, and cited to the District Judge and supplied in the authorities bundle,

20

J.52

When the allegations as set out in the Swedish court dossier, which constitute the Prosecution case, are examined, it is clear that the allegations in the EAW are not a "proper, fair and accurate description ofthe conduct alleged".

Section 64

3.53

Furthcr or altcmatively, occurately described, the conduct would also not establish dual criminality pursuant to section 6a(3) of the 2003 Act: Caslillo v The Kingdom of Spain [2005] 1 WLR 1043. Section 64(3) of the 2003 Act provides

a&I

*...(3) The

conduct also constitutes an extradition offence

in relation to the

category 1 tenitory ifthese conditiors are safisfiedthe conduct occurs in the category 1 tefiitory;

(") (b)

(c)

relevant part of the United Kingdorn the United Kingdom;

the conduct would constitute an offence rmder the law of the if it occured in that part of

the conduct is punishable under the law of the category I territory with imprisonment or another forrn of detention for a terrn of 12 months or a grcater punishment (however it is described in tlnt law)..."

3.54

As the House of Lords laid down in Narris v. Government of the USA and others [2009] AC 920, HL, the "conduct test' for double criminality should be applied consistently throughout the 2003 Act. The conduct relevant under Part I of the

Act is that describod in the EAW and extaneous materials, ignoring

mere

narrative background but taking account of such allegations as are relevant to the description of tle corresponding UK offence. The burden of proof is on tle

Prosecution to prove that the offenoes are extradition offences beyond a Hertel v Governrrtent of Candda reasonable doubt (section 206 of the Act ^nd EWHC 2305 (Admin). [2010]

3.55

The High Court has shown itself to be rigorous in the application of the double criminality test (see, example, Hertel Governmmt Canada

(*pra); Elbqati v Federation of Bosnia and Herzegovina [2011] EWHC 625

(Admln); Hoholm v Government of Norway p0091EWHC 1513 (Admin).

for

of

3-56
3

"Rough and impatient" but consensual sexual foreplay does not constihrte an offonce pursuant to the Soxuai Offences Act 2003.

-51

An offence contrary to section 3 of the Sexual Offences Act 2003 (see generally Archbold 22-24) is committed when A intentionally touches B in a sexual manner

i. ii.

and:

B does not consenl and A does not reasonably ftaving regard to all the circumstances) believe that B consents.

21.

3.58

There is no allegation in the EAW either that AA refused consent or that the Appellant did not reasonably believe that she had consented. That is because ihe Swedish court dossier shows that AA told the police that she had consented to sexual intercourse. The description in the Swedish dossier does not pemit the inference that the Appellant had a subjective intention to have sex irrespective of AA's consent. On the contrary, even though she never articulated anything orally, when he realiscd that shc was physically resisting, he "...asked what [AA] was doinq and whv she was squeezinq her less together. [AA] told him thai she wanted him to put on a condom before he entered her. Assange let go of [AA's] arms and rrut on a condom which A- found for hirn...". The Swedish dossier demonstrates compliance with AA's wish for a condom to be used as soon as that wish was articulated,
They agreed to have sex. AA did not mention her wish that the Appellant should wear a condom; he "roughly and impatiently" sought to penetrate her without one and she squeezed her legs together and tried to reach for one. FIe then asked her what she was doing and she said she wanted him to war a condom. At that point he put one on. There is no allegation, then, of "violence", ofthe kind required by section 75 of the Sexual Ofences Act 2003, deducible or inferable from this material.

3.59

Offence 2 (sexual molestation

- AA)

3.60

The EAW avers that:

"...On

13-14 August 2010, in the home of the injured party [AA] in Stockholn, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual inlercourse with her without her

knowledge..."

3.6I

Whereas, an accurate surnmary of the conduct alleged by 20* Ausust 2010 would have been that:

AA in her interview

on

o .

During the same consensual sexual encounter mentioned above;

"...1-AA] felt a strong sense of unexpressed resistance on Assange's part against using a condom which made her feel that he did not in fact put on the condom he had been given. She therefore felt with her hand to check that Assange had really put it on. She felt that the edse of tle condom was in the right place on the root ofAssange's penis...";

22

. "...[AA] and Assange .

"...After

continued

to have sex and [AA]

with'...";

says that she

thought she lust wanted to get it over

a while [AA] noticed that Assange pulled out ofher and started to arange the condom. Judging by the sound [AA] t}ought Assange was removing the condom. He then penetrated her again and continued the intercourse. [AA] aeain felt with her hald that the edqe of the condom was. as previously. zround the root of the penis which is why she let him

continue.

..."i

. "...A while later Assange ejaculated inside her and pulled out. When

Assange rernoved the condom from his penis [AA] saw it was empty of semen. When [AA] later started to move her body, she noticed something

was 'seephg' out of her vagina. [AA] understood rather quickly that it must be Assange's sperm....";

e . .
3.62

"...She mentioned this to Assange, who denied it and replied that she was

wet...";

"...[AA] is convinced that

Assange, when he pulled out of her the first time, broke the condom by the glans and then continued the intercourse with tlte subsequent ejaculation. . . ";

When asked, [AA] replied that she did not take a closer look at the condom, whether it was btoken in the manner she believes but that she believes she still has the condom at home and will examine this...".

The true allegation underlying offence two is therefore that AA believes that the Appellant deliberately tore the condom he was wearing during consensual sex. Given that fhe allegation is for.rnded solely upon AA's subjective perception of these events, a fair factual summary might also tlercfore have mado mention of the facts that:

/"{

permitted the Appellant to stay at 2010.

AA's aparhnent until Friday 20 August

AA threw a craldsh pafiy at her apartment in the Appellant's honour on the night of Saturday 14' Augusq which is the day after tle alloged sexual assaults referred to in offences I and 2 above.
During the course of that party, she posted an online tweet reading "...sitting outdoors at 02.00 and hardly fteezing with the world's coolest smartest people, it's amazing..."

ZJ

3.61

This is, of course, the sole offence that survived the examination of the Chief Prosecutor (and in respect of which the Appellant was interviewed on 30* August and answered all questions).
However, a fair proper and accurate of this conduct would unquestionably have made mention of the subsequent laboratory's conclusion, upon its examination of

3.64

the condom

in

question, that the damage

to the condom was not

caused

deliberately but was rathor caused by "...wear and tear..

Invalidity

3.65 Thus, again the summary contained within the EAW ("deliberately molested.-.acting in a marner designed to violate her sexual

integriq/...consummated mprotectid sexual intercourse with her without her knowledge") is not accurate. Accurately described, the Appellant used a condom as requested whicll it seems, split.

3.66

The EAW does not contain a descnption of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is tltetefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Acl The Criminal Court at the National High Court, Id Division (A Spanish jutli.cial Authority) v Maruo [2010] EWHC 2609 (Admin).

Seclion 64

3.67

Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of tle 2003 Acl: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Consensual sex in which a condom splits does not constitute an offence pursuaat to the Sexual Offences Act 2003.

3.68

However, for the avoidance of doubt, even ifthere existed a rational or reasonable basis to allege that the condom was deliberately split, the allegation nonelheless does not amount to an offence in consent-based English law. It does not engage the "presumed non-consent" provision of Section 76Q)@) of the Sexual Offences Act 2003 because there is no allegation or available inference that he deceived her "as to the nature and purpptg of the relevant acf'because the relovant act is that of sexual intercourse: R v B [2007] 1 WLR 1567, CA. The District Judge therefore erred in his decision on tlis issue by entirely overlooking the effect of the case of .R v B. althoueh it had been cited to him:

24

"...The obvious and straightforward way ofreading that allegation [allegation 2] is that the complainant had made it clar that she would not consent !o unprotected sex, and yet it occurred without her knowledge and therefore without her consent. Mr. Assa:rge was aware of this. Unprotected sex is whollv different from protected sex in that its potential repercussions are not confled to disase and include pregnancy. Again this meets the criteria for section 64(3) set out above. In addition the terms 'molested' and 'violated' are inconsistent with
consent.
.

." (Judgment, page 23, ernphasis added)

3.69

"...the defendant intentionally deceived the complainant as to tle nature or purpose of the relevant act..." This is a restrictive provision, confined to cases where the deception concems "nature and purpose." AA was not decoived as to the "nature and purpose" ofthe sexual act, namely an act ofsexual i.ntercourse. v B, if the complainant agrees to the act of intercourse, this constitutes consent for tle purpose of the SOA 2003 even if she would not have consented, had she known all ofthe facts' As the Court of Appeal held in
-R

Section 76(2)(a) ofthe SOA 2003 conclusively presumes a lack ofconsent where

3.lO

Offence 3 (sexual molesldtion

- AA)

3.71

The EAW avers that:

18 Auglst 2010 or on any of the days before or after that ilate, in the homb of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner clesigned to violate her sexual integrity' i.e. lfng next to her and pressing his naked, erect penis to her body..."

"...On

3.72
I

\.

Obviously, context is essential in an allegation of this nature' Ifa stranger climbs through the victim's bedroom window and presses his naked, erect penis to the victim's body, an offence has plainly been committed. If, on tho other hand, a husband tries to intercst his spouse in sexual intercourse by that overhrre, evgn if the overture tums out not to be welcome at that particular moment, then clearly there can be no zuggestion of a criminal offence having been committed, any more tlran if the spouse had pressed her naked body to her husband's on an occasion when he tumed out not to be interested in sex. an accuratE surnmary of the conduct alleged by AA in her interview on 20* Auzust 2010 would have been that:

3.'73 In Act,

her, every day after

"...According to [AA], Assange tried to make sexual advances towards that evening when they had sex. For example, he touched her breasts. [AA] had rejected Assange on al1 these occasions
which Assange had accepted..
.

"

25

"...On one occasion, Wednesday 18 August, he suddenly took all his clothes off on the lower part of his body and rubbed it and his erected penis against tAA]. tAA] says she felt it was very stranse behaviour and awkward and had therefore moved to a matftess on the floor where she
sleot instead of in the bed with Assange...".

3.74

That is to say that AA had continued to share a (single) bed with the Appellant for days after tirc cvents mentioned in offcnccs 1 and 2 above, and that this incident (offence 3) occurred whilst they were vohmtarily sharing a single bed together. It is worthy ofnote that this conduct was never classified as criminal by the Chief
Prosecutor.

3.75

There is no suggestion whatsoever, in this account, that the Appellant did not accept being rejected sexually by AA, as he had done "on all these occasions". AA herseff merely regarded tt as "very strange behaviour and awkward', requiring her simply to move to a mattress on the floor rather than to call in the police.

Invalidity

3.76

The summary contained witlin the EAW ('deliberately molested...acting in a manner designed to violate her sexual i"trg.rty... lying next to her and pressing his naked, erect penis to her body') is not accurate. Accurately described, the Appellant pressed his naked body against AA whilsl they were voluntarily sharing
a single bed.

3.7'7

The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence tlat is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Acl; The Criminal Court at the National High Court, Id Divkian (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin).
To present this, therefore, as an instance of '\saryal molestation" and to describe it without any refereace to the impoitant de.tail in AA's statement that this was basically just "strange" and "awl*vart' behaviour is to fall foul of the principle

3.78

that the EAW should provide a "proper, fail and accurate description of the
conduct allesed".

LO

Section 64

3.79

Further or altematively, accurately described,

dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingitom of Spain [2005] i WLR 1043. Bodily contact whilst consensually sharing a single bed does not constitute an offence pursuant to the Sexual
Offences Act 2003.

tlo

conduct would also not establish

Offence 4 (minor rape -

Sl/)

3.80

The EAW avers that:

"...on 17 August 2010, in the home of the injured party [SW] in Enk0ping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state lt is an aggravating cicuflstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisiG of sexual intercourse tlat a condom be used, still consummated unprotected sexual intelcoune with her. The sexual act was designed to violate the injued party's sexual integri!..."

3.81

Whereas, an accurate sunmary of the conduct alleged by SW in her interview on 20h Ausust 2010 would have been that:

o r

SW became captivated by the Appellant when sho saw a television interview with him;
She later discovered that he had been invited to SWeden to give a talk organised by the Swedish Association of Christian Social Democrats. She found out ftom an advertisement v/here and when the talk would be held and went along on Saturday 14fi August 2010. She attended the talk and helped by buying a computr cable for the Appellant. She then attended an intimate iunch attffided by the Appellant and the joumalists who had organised the talk. She was flattered that the Appellant flirted with her at the hmch.

After the lunch, she, the Appellant and one other person went for a walk' She invited the Appellant to see the Swedish Museum of Natural History, where she worked. She bought a train ticket for him. They went alone to the Museum and went to soe a film at the Cosmonova cinema They started kissir:g and fondling in the cinema. They went for a walk afterwards and agreed to meet after the crayfish party being thrown by AA in the Appellant's honour that evening (see above paragraph 3.62). They did not meet because SW had stomach pains
due to a sandwich that she had eaten.

27

The Appellant did not contact her on the Sunday (15'n August). On Monday 16 August 2010 she was urged by her friends to make a play for him; "...the ball is in your court. . .".
SW phoned the Appellant and they met that evening. They decided to go to her house She paid for their train tickets to Enkdping (where SW lived). "...She had suggested that they should chcck into a hotel but he had said he wanted to see 'girls in natural habitat'. . . ". They went to SW's house.

Although he was at first uninterested, and fell asleep snoring - while SW text-messaged her friends - they later woke up and, during the evening of 16'' August 2010, the Appellant and SW had consensual sex and fell
asieep.

In the morning, they woke up and had sex again.

SW then went out to get him breakfast and then they had sex for a third time; "...they were sitting in bed talking and he took her clothes off again. They had sex again and she suddenly discovered that he had put the condom only on the glans ofthe penis but she let it be...". They fell asleep
again.

"...She was woken by his (4fr) penetration ofher- She immediately asked: 'Are you wearing anything?' and he answered 'You'. She told him 'You better don't have HIV' and he answered 'Of course not'. She felt it was too late. He was already inside her and she let him continue. She didn't have the energy to te1l him one more time. She had been nagging him all night..."

"...SW has never had unprotected sex. He said he wanted to come inside her, he didn't say when he did i! but he did it. A lot of liquid seeped out of
her afterwards..."

Afterwards SW initiated jokes about the prospect of her being pregnant. She told him 'what [if] I get pregnant?' He answered 'Sweden was a good country to have kids in'. She said that he would have to pay her student loans. Theyjoked about what they would call the child. She asked whether he would call her and he said he would.

28

3.82

A fair and accurate summary of the conduct would also have included

reference

to text messages (shown to the Appellant's counsel but not copied to him) and evidence'u in which SW states that she was "half asleep" when the sex began, which of course also means "half awake" or sleepy. SW was re-interviewed conceming these and confirmed that "...she wasn't fast asleep but wasn't awake either. . . ".

Invalidity

3.83

The summary contained within the EAW ("deliberately consummated sexual intercourse with her by irnproperly exploiting that she, due to sleep, was in a helpless state') is not accurate. Accurately described, in the context of repeated
acts ofconsensual sexual intercourse, ihe Appellant penetrated SW whilst she was

'half-asleep", which penebation was met by consent on the part of SW.

3.84

The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence which is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of tle 2003 Act; The Criminal Courr at the National High Court, I"t Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). The requirement for a clear description of the facts is crucial in Framework List cases where the requirement to establish dual criminality 1s abrogated (Ministerfor Justice, Equality and Law Reform v Desjatuikovs [2008] IESC 53 por Denham J. at para. 21).

Section 64

3.85

Further or altematively, accurately described, the offence would also not satisff the requirements of section 64 ofthe 2003 Act: Castillo v The Kingdont of Spain

[2005]

WLR i043.

3.86

It is surprising, to say tle very leas! in the context ofrepeated acts of consensual sexual intercourse, penetlation commenced whilst the parhelwas 'half-asleep",
which penehation was met by consen! should be said to amormt to rape.

3.87

Ofcourse, offence 4 is certified as a Framework List offences. Section 64(2) of the 2003 Act orovidos that:

See evidence

ofKalerina Soqja Christina

Svensson.

29

"...(2)

The conduct constitutes an exkadition offence in relation to the category I tenitory ifthese conditions are satisfiedthe conduct occurs ir the category I terlitory and no part of it occurs in the United Kingdom; a certificate issued by an appropriate authority ofthe category I teritory shows that the conduct falls within the European

(a)

(b) (c) 3.88

framework list;
the certificate shows that the conduct is punishable under the law

ofthe category I territory with imprisonment or anotler forln of detention for a term of3 yearc or a geater punishmenl.,."2l
reasonably capable of constituting the exkadition ollence specified mustbe described in the Part I Warrant (Palar (Gheotghe) v Court of First Instdnce of Brussels [2005] EWHC 915 (Admin) per Laws L.J. at paras. 7-11). Where boxes are ticked flre offence must nonetheless at least be recognisable as "rape" as that term is used in the language and law of European countries- The fact that tJrese Framework List offences do not require a dual criminality check does not remove t}te court's responsibility to satisfy itselfthat the conduct described in the warrant can reasonably qualifu as a

It is settled law tha! even in Framework list cases, conduct

list offence.

3.89

So, regardless of the of consensual sexual conduct that Sweden terms ^breadth 'rape' or 'minor rape"', conduct reasonably capable ofconstituting the Framework

It Off,ce of the Ki g's Prosecato\ Brussels v Cando Arnas f20061 2 AC 1, HL, para. 5, I-ord Bingham stated that "[u]nderlying the fiizmework] list is an urstated assumption that offences of this character will feature in the criminal codes of all Mernber States" Sweden's definition of rape as sex with a person in a "helpless state", without a rcquirement that force was used or consent withheld, is in fact highly atypical of European st4tes' laws. Sweden's Crirninal Code, Chapter 6, Section I is not defined on ths basis ofa lack-of-consent by the victim. The word "cmsent" and indeed the concept of coruent are not included in Swedish se-rual offence law at all. Broadly spe:aking, the defining faature of these crimes is the escalating arnount of violence, coercion, or threat that is usedr excpt for one clause, known as "minof rape", which is the one exclusively relied on in the EAW, which defines rape as a sexual acl with a person who is in a "helpless state". There appears to be no mens rea for this offerrce: once penetration and helplesmess are proved it would be a fachral decision for the court as to whether these had been "improper exploitation". The elements oftbis crime do not correspond to what is generally defined as 'tape" in national laws, the jurisprudence of the European Cowt of Human Rights or intemational law, all of which rely on the use or threat of force or a lack of consent by victims to defile the criminality of the conduct. See, e,g,, the recently published study fimded by the
Earope*n Commissian shot's, Dilfercnl syster s, simildr outcomes? Tracking aAr ion in reporled.spe cuses across Europe. Jo Loveu & Liz Kel$. 2009- 1T-ondon: CWASU, 2009,
funded by the European Cornrnission). Other European countries define rape as requiring either the threat or use offorce or lack of consent by the victim (or both, but not neither). The European Court ofHuman Rights stated in M.c' v. Bulgaria (2005) 40 EHRR 20, that, in most Eurcpean counhies influenced by the continental legal tradition, the definition ofrape contains references to

the use of violence or tlrreats of violence by the peryeftator. It noted howevef that there is "a universal trend towards regarding lack of consent as the essontial element of rape and sexual abuse" (para. 163) and that ilvstigations into rape in counfies that are part of the Council of Europe, as well as the "conclusions" of such investigations, "must be centred on the issue ofnoDconsent" Gara l8l). The Court held that although States that are members of the Council of Ewope have a "wide margin of appreciation" in enactiog rape laws, they are nonetheless limited

30

List offence of'rape' as understood in this country must nonetheiess be described in the Part 1 Wanant.

3.90

T\e Palar approach is one that is:

i. ii. iii. iv.

Echoed in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) at paras. 50-54

Followed in Northern Ireland; MQB 23.

see

Kingdom of Spain v Arteaga [2010]

Reflected in tlre case law of the Republic of Iteland; see The Minister Justice Equality and Law Reform v Tighe 120101 IESC 61.

for

Adopted in the Netherlands; District Court of Amsterdam 26 October 2010, LJN 807884. Where there is a manifest discrepancy between the factual and legal description ofthe offence in the EAW and the ticked box, the Court will hold that the issuing judicial authority could not reasonably have designated the offtjnce as a Framework List offence. For example, in Disttict Court of Amsterdam 7 July 2006, LIN AY2623 the issuing judicial authority could not reasonably designate the offence of using drugs as the Framework List offence "illicit tafficking in narcotic drugs and psychotropic substances". Using drugs does not oquato with trafficking in drugs. Therefore, in the Netherlands, if ttre Disaict Court finds that the issuing judicial authority has wrongly ticked the box of a Framework List offence, the Couil will go on to verifr the double criminality of the offence as described in the EAW.

by the requirements of the European Convention, as intergeted by the Coult. Some Council of Europe countries that do recognise the 'trelpless state" of the victim as an elmert of mPe do so only where this is combined with either proofthat force was used or tltreatened or that the lack of consent can be demonstrated. Other Europeali countries requfue that the defendant himselfput the victim into the helpless state in order for criminal sanations to. attach. See ltI-C v. Bulgaria (supra) paras. 74, 79 and 102. The ECHR also noted that intemational criminal law definitions of rape, like those ofnational or regional systems, rely on either force or lack-of-consent as the basis of qriminalisation, This, in the ECTIIR's view, "also reflects a rmivelsal trend towards regarding lack of cotrsent as the cssntial elemert of rape and sexual abuse" (para. 163). As summarised in a leading manual on intemational criminal law (Roberl Cryet d aI, An Intruduction to httemstionol Crtminal Law and Prucedure, 2"4 Ed,2010, p. 255) "...the crime of rape [under intemational lawl has two components. The fust is a physical invasion of a sexual rature. The second component is, according to some authorities, the presence of coercive circumstances, or
according to other auihorities, the absence ofconsent.,.'. In P/osecutor v Kunarac,lT-9G23&231, para. 460 (approved on appeal, Proscutor v. Kunarac, Case No. IT-96-2311, AC (12 Jrme 2002), para. 128) the ICTY reviewed the law of various legal systems and concluded that the correct commqn-denominator element was lack ofconsent ofthe victim, and that the sam should be recognised under intemational law. In its words, '1he actus rcus of the crime of rape in international law is constituted by .-. sexual penetration ... where [it] occus without the consent of the victim .-. The mens rca is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent ofthe victim.,.",

JI

3.91 In the context of repeated acts of consensual

consent, is:

sexual intercourse, penekation commenced whilst the partner was 'half-asleep", which penetration was met by

i. ii.
3.92

Not conduct reasonably capable of constituting the Framework List offence of 'rape' as understood in this country (such that section 64(2) may not be relied upon), and Not conduct constituting the offence of'rape' as understood in this country (such that section 64(3) may not be relied upon).

In fact, it is worthy ofnote that, even if(for the sake of argument) the description of the conduct had been fair an accurate, and the Appellant had "deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state", that would nonetheless still not disclose conduct reasonably capable of constituting the Framework List offence of rape in any event. The fact (if it was so) that the complainant was asleep means that she is taken not to have consented 'unless sufficient evidence is adduced to raise an issue' as to whether she consented: section 75(1) of ttre 2003 Act The facts of this case would remove the operation ofsection 75; stemming from several previous acts of intimacy. SW stated that they had sex several times that night, that on a previous occasion she notioed that he had not wom the condom properly but 'she let it be'; and that when she awoke to find his penis inside her vagina, she decided to let him continue even though she knew he rvas not wearing a condom.

3.93

lr

One of the reasons why Parliament enacted that the presumption in section 75(2)(d) is rebuftable (rather than placing it in the category of irrebuttable presumptions, set out in section 76 of the Act) was to presewe the possibility of cases where consent was reasonably presumed as a result of previous sexual relations. For instance, ifa wife had made it clear that she enjoyed the sensation of waking up with her husband penetrating her, it would surely be entirely reasonable for the husband to proceed on this basis. If the presumption were inebuttable, however, the husband would commit the offence of rape simply because consent was aot given on the particular occasion. It should be added that this appears also tc have been the position at colrrmon law1'1n Page (1846) 2 Cox CC 133, at p. 134, Coleridge J held that there was no lack of consent when the defendant penetrated the complainant whilst she was asleep, since he had done so on several previous occasions and she had always acquiesced as she was waking. On ihis occasion she pushed him away on waking, when she saw that a wornan
was watching them, but that did not convert the offence into rape.

3.94

Moreover, the effect of having intercourse without the use of a condom does not affect the analysis. As detailed above at paragraph 3.68-3.70, applying rR r B, this does not affect the complainant's consent to sex, since there is no deception as to the 'nature and purpose' of what is being done.

32

Submission 2
4.1

As stated above, the House of Lords has repeatedly observed that section 2 'validity' is a jurisdictional prerequisite ofa Part 1 warrant under the 2003 Act. If an EAW does not conform to tle requirements set out in section 2 of the 2003 Act, it will not be a Part I warrant within the meaning of that section and Part I of the 2003 Act will not apply to it. The House of Lords has also emphasised the
requirement for strict compliance with section 2.

Section 2(3) of the 2003 Act

/t 't

Section 2(2) of the 2003 Act provides, so far as is relevant, that:

"...(2) A Europear Arest

Warrant is an arrest warrant which is issued by a judicial authority ofa category 1 territory and which containsthe statement refered to in subsection (3)- -."

(a)
4.3

Section 2(3) providos that:

"...(3)

The statement is one thatthe person in respect of whom the Part 1 warrant is issued is accused in the category I territory of the cornmission ofan offence specified in the

(a) (b)

warrant, and
the Part

category
offence."

I warrant is issued with a view to his arrest alld extradition to the 1 tErritory for the purpose of being prosecuted for the

4.4

The requirement is unequivocal. Section 2(2) states that a Part I warrant is an arrest warrant which contains the statement referred to in subsection (3); "...If it does not do so it is not a Part I warrant and the provisions of that Part cannot apply to i1..." (Oftice of the King's Prosecalor, Brussels v Cando Armas & another (s:upra) per Lord Hope of Craighead at para. 42). See also Lord Scott of Foscote at paras. 56-57;
contains neither the section 2(3) statement nor the section 2(5) statement does not, it appeaG to me, comply with the requirements

"...An arrest warrant which of the Act and,

if that is right, would not constitute a warrant on which an extradition under Part I of the Act oould be ordered...the state seeking extradition can be, and undet section 2 of the Act is, asked to commit itself to tle propriety of the extradition. These statements are not, in my opiniou, formalities. They form an importart paxt of the new extradition procedue.. ."

33

The purpose and

origin of section 2(3)(b)

Section 2(3)(b) gives effect to Article 1.1 ofthe Framework Decision.

The distinct purpose anil origin of section

2(j)(a)

4.6 4.1 4.8

Ilowever section 2(3)(a) contains an additional requirernent, ovor and above the
requirements of the Framework Decision.

The Framework Decision permits the Member States to impose additional 'due process' requirements in its national legislation (see recital l2).

Where the 2003 Act imposes additioncl requirements, over and above those contained in the Framework Decision, such as for example section 14, different principles of construction apply. Here, the provisions are to be approached upon the assumption that they were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty. They are thus to be strictly construed (Ofjlce of the King's Prcsecator, Brussels v Cando Armas & another (stpra) per Lord Hope ofCraighead atparu.24).
Section 2(3)(a) is such an additional requirement. It imports the pre-2003 concept of "accused" and the established meaning of that, as explained by the House of Lords in 1n re: Ismail119991 1 AC 320, HL per Lord Steyn at p327G;

4.9

"...It is common

ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persoru. It is also cornmon ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is
required...the competent authorities in the foreign jurisdiction have taken a stp which san fairlv be described as the conmencement.of a nrosecution..." (per Lord Steyr at p326F-327G) (emphasis added)

4.10

It is a well-established principle of extradition law that mere suspicion should not found a request for extradition. A person's extadition must not be sought merely or primarily in order for him to be questioned. A:r order for extradition must ro! therefore, be made where the requested person is sought for ttre purpose of quesfioning, even if questioning is to take place in custody, and may be followed
by a charge i.e- a prosecution.

4.11

ln Office of the King's Prosecutor, Brassels v Cando Armas & another (srpra),
Lord Hope ofCraigtread observed that;

1A

"...The fact that Palt I of the 2003 Act does not match the requirements of the Framework Decision is confusing to the unwary, and it appears likely that it will be a source of continui:rg difficulty. Steps should be taken to remind the authorities in the category I territories that the statements referred to in section 2(2) of the Act are a necessary part of the procedure that has been laid down in Part 1 ofthe Act..." (at paras. 43 & 48).

4.72

Lord Scott ofFoscote observed that:

"...Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a
legitimate purpose of an arrest waxrant

..." (at para.

54).

4.13

The authorities on this issue were considered and affirmed in Asztaslos v The Szekszaril City Coart, Hungary [2010] EWHC 237 (Admin), where the Court stated, at para 16:
an EAW has been issued by a requesting state as ar "accusation case" warant, but its purpose is, in fact, the surrender of the requesied person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part I of the Act will not apply to it see thc Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott ofFoscote.-."

"...If

The combined effect of sections 2(3)(a)

4

& (b)

.74

i:

1 . 1 of the Fraruework De cision is construed as permitting an EAW to be issuedpnor to the commencement of proceedings and the formulation of an accusation, by tlle express addition of section 2(3)(a), Parliament has ensured that the 2003 Act is more restrictive than the Framework Decisioq "as a necessary protection against an unlawfirl infringement ofthe right to liberty". Under section 2(3)(a), an EAW issued prior to the point at which the criminal prosecution has actually commenced is not a valid Part 1 warrant.

If Article

4.15

This was a deliberate decision to prevent the use ofan EAW in cases where no decision had been made as to whetler an accusation would proceed to trial and where thg purpose was facilitate intenogation or investigation before any process of trial had started. It was repeatedly made clear by the Govemment that its intention was to maintain and strengthen the existing substantive protection for
requested persorls
:

35

In response to a tabled amendment to replace 'accused' with'faces charges', the Parliamentary Under-Se cretary of State for the Home Deparhnnt govemmnt stated, on 9'n January 2003, that
"...We are both clear that in an accusation case, which is a case where a person has yet to be convicted, extradition should be possible onlv for tie nuroose of puttine the oerson on trial. It should not be possible for the pumose of inlerrosation or evidence gatherins, Clause 2(3) is drafted to achieve that result. It does not talk about a person being "suspecied" of an offence or of having evidence to give about the offence. It is quite clear that the person must be accused of the offence...the wordin-g proposed by the hon. Gentleman would make no material difference..."". The amendment was accordingly withdrawn.

In response to a tabled amendment to clariff 'accused' and 'for the purpose of being prosecuted', which would have explained that section 2(3) requires "that sufficient evidence has already been gathered to bring a prosecution and to commit to trial" and that "extradition is sought...only for the purpose of putting the person on trial, and not for the purpose of interrogation or evidence gathering", the Parliamentary Under-Secretary of State for the Home Deparhnent govemment stated, on 25* March 2003, that
accusation cases, both sides of the House are aqreed that extradition should only be possible for the pumose ofbutting a nerson on trial. It should not be possible for the purpose of inlerrogation or for the purposes of evidence gathering. ..If Opposition Members examine the Bill, they will see that it already achieves that. A parl I warrant is an arrest warrant that coutains two key elements: the statement and the information. The contents of the statenent and the information vary slighfly depending on whether it is an accusation or conviction case. The information includes such details as tle particulars of the person's identity or any other warrant, the ciroumstances of the offence, the particulars of the sentence that would be available to the courl or, in a conviction case, tlte sentence tltat has already been imposed. Of more importance for present purposes, however, is what is contained in the statemenl Ifhon. Members look at clause 2(3), they will see that what is requiied, firsl with conviction (sic) cases, is that not only must a person be accused of an offence in a requestiag state, but the warrart must have been issued with a view to his arrest and extadition to the category 1 tefiitory for the purpose of being prosecuted for the offence. That is unambiquous lanzuaqe: it is not about interroqation. ap.d it does not allow extradition for the pumose of evidence eaihering or fishing exoeditions: it is

"...With regard to

t'

2t
24

Hansard, House ofCommons, Standing Conmittee D, 9 January 2003, Col 52-55, Mr Ainsworth. Hansard. House ofCommons. 25 March 2003. Col 165. Mr Ainsworth.

JO

Later on the same date, the Parliamentary Under-Secretary Home Deparfonent govemment stated

of

State for the

"...[t]he warrant that requires the arrest will be clear...It will use a clear and specific allegation in French law, Spanish law or German law, stating that "this person is accused and wanted to stand trial for this offence... The=lvarrant will
clearlv state that people are sousht in order to brins them to

al.,."25

On the 2od Reading in the House of Lords, on l't May 2003, the Parliamntary Under-Secretary of State for the Home Departinent government stated

"...The warrant will also have to be accompanied by a statement that, in accusation cases----{ases where the person has not been convicted-the warrant
has been issued for the prupose of putting the nerson on trial. That is important

because there have been suggestions that EAWs-I shall use tiat shorthand form-will be used to bring people back for intenogation or evidence-gathering. In fact, the reverse is true. Our current legislation simplv requires a oerson to be "accused of' of a crime. The Bill. for the fust time. makes it clear that extradition to another EU countrv will be possible onlv for the oumose of outtine a person on trial...Whether the EAW will be used for interrogation or evidence gathering is an important question. The Bill makes it clear that extratlition is possible only for the purpose of putting a person on bial. That is a change from existin! legislation which is silent on this point. If countries with the inouisitorial system

want to extradile people

plqblglq at fte moment..."zo

f9r the puloose of intenoedtidir that

oughtJtg-bg-g

kr Grand Committee, on 9fr June 2003, in response to a tabled amendment to replace 'accused' with 'faces charges', the Parliamentary Under-Secretary of State for tle Home Departonent govemment stated that

'...I
I

think that all sides ofthe Committee are clear tlat in an accusafion case-a case where the person has yet to be convicted-.-96@!tr995!99!l!9-pggqi!! onlv for the pumose of puttinq the oerson oir trial; it should not be oossible for the purpose of interrosation or evidence eatherine. In fact the Bill eoes much firther than our current extradition legislation. The 1989 AcL which sovertrs how

extradition requests to other European membgr states are handled. simolv requires a oerson to be accused of an offence in tle requesting stats-no more.
state to sav that the oerson's extradition has been soueht for the purpose ofbeing prosecuted. I refer the Comrnittee to Clause 2(3)O), which states: "the Part 1 warrant is issued with a view to his arrest a:rd exiradition to the category 1 teritory for the purpose of being prosecuted for the offence". I do not believe that that could possibly be clearer- It is for the numose ofthe orosecution that the person is beinq extradited. The legislation goes much further than the 1989 Act...It is clear that a Part 1 wanant under Clause 2(3)(b) can be valid only if it

25

Hansard. House of Corrunons. 25 March 2003. Col207-209. Mr Ainsworft. Hansard, House of Lords, I May 2003, Col 854 & 912, Lord Filkin-

31

is for the purpose ofa prosecution. A request ftom a member state to this country for extradition for the purpose of investigation or interrogation would not be lawful...If on the initial application, whereby the judge was essentially testing the issues under Clause (Z)(+)(a) to (d), there was then a doubt in the distdct judge's mind that the request was for a prosecution case.-if he believed that it might be for a frshing hip or an interogation-I should have thought that he had the power to strike out the application...The fact that since l99l there has been no requirement to have prima facie evidence that sets out the case in full does not mean that there is not a requirement that t}g extradition should be for a trial as a result of a charse that has been levied...".'' The amendment was accordingly

withdrawn.

At Report stage, on 22d October 2003, in response to a tabled amendment to replace 'accused' with 'faces charges', Baroness Scotland stated that
repeat that this Bill as it is curently drafted, allows extradition for the purposes of prosecution only in accusation cases. The Bill does not allow extradition for the purposes of questioning, investigation or, of course, interrogation. . .it is worth lookine at what the current extradition lesislation says. Seotion I ofthe Extradition Act 1989 provides for extradition procedures where a person "is ascused" of the conmission of an offence. It gos no further than that on the subject and the phrase "is accused" is not qualified in any way- Your Lordships will know that thai is the law that we have had for the past 14 years since 1989 and that it has not been an issue between ourselves and our partners. In contrast. the Bill is verv explicit. It soes on to say that a warrant must have been issued, ''for the ouqrose of beins orosecuted for the offence". Those additional words strenqthen and undedine the pr.tpose of tle warrant. As I say, this is more than we have at the moment and we are pleased to have had the opportunity to make that polrt very clear. ..we are making the orovision stronqer. not weakening it... As now, [in 1989] the term "accused'' was in operafion, but without the extra safeguard of making absolutely clear that it is for the purpose of being prosecuted for the offence. It is on that basis that we can be confident on how the issues will be interpreted.... there ale aheady a number of instruments

"...I

concerning mutual legal assistance arrd iudicial ce-ooeration with our intemational oartners. The relevant authorities in each countrv have dedicated contacts and svstems for such work. It is that route. rather than abuse of the extradition svstem. bv which we co-operale with other corutries on investisative work. If a warrant were issued for the puposes of investigation, which is clearly the point at issue, that warrant could not be certified or executed in the United Kingdom. It would not be a Part 1 warranl as defined in the Bill.... I have sought to explain that the Bill imooses a much more stinqent test than we have at the momenl The words. "for the pumose of beinp nrosecuted for the offence" are
. The amendment was

accordingly withdrawn.

Hansard, House of Lords, Grand Committee, 9 June 2003, Col GC2l-24, Lord Filkin. Hansard, House of Lords, Report, 22 October 2003, Col 1666-1671, Baroness Scotland.

38

. On Third Reading, on

12h Novemb et 2003, in response to a tabled amendment to replace 'accused' with 'faces charges', the Parliamentary
Under-Secretary of State for the Home Deparhnent govemment stated t}rat

"...We all know what we want the clause to do: to allow extradition to take Dlace onlv where there will be a prosecution. Clearly, we are talking about accusation not conviction cases. We believe that the clause as drafted has this effect. I add that the Extradition Act 1989 provides for exhadition where a person "is accused" of an offence. We currenfly operate under legislation which has the same terminology and thrust. The Exhadition Act 1989 goes no firther than that. Our nresent lesislation uses the term 'is accused". That has.not given rise to a problem. However. the Bill eoes firrther than the 1989 Act-..Fying to ensue that procedural reasons for avoiding extradition and facing trial for a properlv laid charge can no longer be allowed to frustrate justice'..However. -.the Bill also outs in place nowerful safezuards...the power of the courts in this respect is
strengthened,
,
.

Notwithstandinq that. the Bill eoes fiuther than the 1989 Act in savinq that a warrant must have been issued. "for the oumose of being prosecuted for the offence". I do not see how that can be ambisuous in any way. Of course the court, which makes the decision, must be satisfied that that is the case. We do not

our

present legislation uses

the term "is

accused".

anticipate any difficulties regarding fishing trips

or warants

issued for

investigatory purposes. Extradition in accusation cases is for prosecution. That is the basis on which extradition is currently run with our intemational parhers and that was the basis on which the European arrest watrant framework decision was agreed. If a wamnt was issued for the purpose of investigation, it could not be certified or executed in the UK. It would not be a Part 1 warrant as defiied in the Bill...We have stronger protection in the Bill than in current legislation, by giving the judge powers to be satisfied that someone taken to tial will be met with ECHR conclitions- That is progress, not reversal...'i9. The amendment was accordingly voted against.

Ismail

i,

4.16

The question for tJre Court under section 2(3)(a) of the 2003 Acl therefore remains the lsnrail question; namely whether the Swedish proceedings in this case have reached the stage at which it may properly be said that a criminal prosecution has commenced. See Asztaslos v The Szeksza City Coufi, Hungary
[2010] EWHC 237 (Admin) per Aikens L.J. at paras. 16-19;

"...16. Ifan EAW

has been issued by a requesting state as an "accusation case" warant, purpose is, in fact, the surrender ofthe requested person for the purpose of but its conducting ar investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warr-ant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part I ofthe Act will not ap'ply to it: see the Armas casq paragraph 28 per Lord Hope of Craighead and paragraph 54 per

Lord Scott of Foscote...

Hansard, House ofLords, Third Reading, 12 November 2003, C-ol 1418-1422, Lord Filkin.

39

17.

How does an English court decide, in the intemational context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "puqnses ofbeing prosecuted" (in the language of section 2(3)(a) nd (b)), as opposed to a

warrant which requests surrender of the requested penon only for an investigation? The starting point for a consideration of this issue must be the decision of the House of Lords in Re lsm ail 119991 | AC 320,..

18.

This "cosmopoliian approach" to construction has been approved in relation to Part 1 of the Act by Lord Hope of Cr aighead in the Armas case at paragraph 24 . Lord Hope also emphasised, however, that the liberty of the subject (ald indeed, we might add, that of foreign nationals) is at stake and so generosity must be
balanced against the rights ofpersons who are sought to be surrendered under the procedures laid down by the Framework Decision and the Act. The other law lords agreed with Lord Hope.

19.

The effect of Lord Steyn's analysis, as applied to sectiar 2(3)(a) ar.d (6) must be as follows: first, the phrases "...is accused...ofthe comniission ofan offence" in paragraph (a), arrd "for the purpose of being prosecuted" in paragaph (b), are not to be heated as terms of art. Secondly, it is a question of fact whether the surrender sought is of an accused person and for tlte purpose of the requested person bei:rg prosecuted. ThAdy, it would be wrong to approach the construction of the phrases "aocused" etc and "for the purposes of being prosecuted" solely from the perspective of English (or Scottish or Northera Irish) criminal procedure; in particular ftom the point ofview of the formal acts of the laying of arr information or the preferring of an indictrnent. Foudhly, it is necessary to adopt a purposive conshuction ofthe words "accused. .. of the commission of an offence" and "for ttre purpose of being prosecuted" to accommodate the differences between legal sysiems. Lastly, the question of whether a person is "accusedlr and is to be surrendered "for the purpose of being prosecuted'' will
require arr intense focus on the facts in each case
.-

."

4.17

The United Kingdom is not alone in the imposition ofa higher t}reshold in these circumstances. Section 7(3) of Gibraltar's European Arrest Warrant Act 2003 also imposes a higher threshold. The Supreme Court of Gibraltar held in Fletcher v The Government of Frdnce [2007] Criminal Appeal No. 8, thaq

"...despite the difference in language there is in my view no substantive distinction between "a deoision to try" [in the Gibraftan Act] and "accused" [in section 2 ofthe UK 2003 1'd"1...".

Extfinsic evidence is admissible

4.18

This court summarised at paragaph 38 of Asztsslos v The Szekszald Cily Court, Hungary (stpra) what it believed to be the effect of tlte authorities:

40

(1)

The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may
well be equivocal.

(2)

In the case ofan "accusatiori case" warrant, issued under Part I of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested pcrson is an "accused" within section 2(3)(a) ofthe Act. Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.

(3)

(4)

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.

(5)

the wanant uses the pbrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.

If

(6)

Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to inhoduce a possible doubt as to fhe purpose where it is clear on the face of the warrant itself. Consideration of extrinsic factual or expert evidence to ascertain t}te purpose of the wanant should be a last rcsort and it is to be <liscouraged. The introduction ofsuch 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 extinsic factual and expert evidonca must be discouraged, except in exceptional cases.

0)

4.19

Pusuant to point (6), where an EAW is ambiguous on its face as to whether the foreign proceedings have reached the requisite stage at which it may propetly be said tlat a criminal prosecutiol has alreadv commenced, extrinsic evidence is admissible; Asztaslos v The Szekszaril Cily Court, Hungary (supra) at para. 38; The ludicial Authority of the Court of Fitst Instance, Hasselt' Belgium v Bartlen l20IOl EWHC 1390 (Admin).

41

4.20

The Appellant does not accepi that Asztaslos artd Bartlett were conectly decided. Asztaslos (whrch Bartlett followed) purpoded to summarise existing case

law. The Appellant does not accept that the Court's summary in Asutaslos of the effect of the authorities is entfuely accurate. For example, in neither Vey nor Trenk (discussed below) did the High Court consider that factual and./or expert cvidcncc rcgarding whether o person is an accused person in the Requesting State should only be introduced "in exceptional cases". On the contrary, in both those cases, the Court evidently considered it perfectly proper to consider the evidence bearing on the subject. As Vey and Trenk are both decisions of the High Court Aszutaslos is of no greater precedential value than those, more numerous,
authorities.

ll.

The effest of this aspect of Asztaslos is that, in the event of a serious fundamental misstatement, going to the head of an extradition request, tlre Court is impotent to act. That is entirely inconsistent with the Court's approach to section 2 in other contexts; see above paragraphs 3.31-3.41.1I is an approach that flies in the case of Caldarelli v Coart of Ndples [2008] 1 WLR 1724. HL.

of the Framework Decision the EAW is a judicial decision issued by tle requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to
"...Under article
question stdtements made in the EAW by the foreign judge who issues it, qven where the judge is duly authorised. to issue such warrants in his category I teftitory, b.ut ordiffirily statements made by the foreign judge

in the EAW, being

to administer..."
111.

a judicial decision,

will be

taken as accurateb

descdbing the procedures rmder the system of law he or she is appointed

Moreover, there is an inherent illogicalif abotl the Asztaslos approach. It pemits the Court to act upon the true factuai position where tle EAW (fairly and properly) gives some hint as to the reality but prohibits the Court acting upon (and mandates extradition in the face oD the true factual position where the EAW (unfairly aad improperly) conceals tho position entkelv.
even

4.21, In any event,

if

the Asztaslos hurdle is upheld; this

EAW crosses it; in that

it

is ambizuous on its face

42

The only thing that this EAW says about the stage of the Swedish proceedings is the usual pro-forma heading'. However, in this case, the pro-forma heading is itself ambiguous. The EAW states that "... ?ftrs warranl has been issued, by a competent authority. request that the person mentioned below be arrested and. surrendered. for the purposes of

conducting a criminal proseaiion ["ftlr lagft]ring"] or execating a custodial sentence or detention order...". This translation of ']br Iagftringi' as "prosecution" is wrong; As explained in the wibress statement of the qualified and experienced linguist and translator, Mr. Christophe Brunski:

".-.4. I

have been asked about the use of the word lagftiring. The translation of the word lagfiirhg as crimiaal prosecution in the EAW of 2 December 2010 is too nanow Lasfijring is a eeneral term ]vhich relates to the entire leml orocess and can be used in either civil or criminal context. It is something of al umbrella term trat encompasses other stages and legal procedures that are more strictly defrned in and of themselves. There arc more precise terms for prosecution in $wedish. namelv elah or aklasaboth meaning to prosecute or indict..." (emphasis added)

11,

Ptoperly translated, the EAW itself states, in the Swedish original, that it has been issued for tJre purposes of legal proceedings; not tlat it has been

issued specifically for prosecution. That is ambiguous: Thompson v Public Prosecutor of Boulogne Sur Mer 120081 ACD 5.
111,

Nowhere is that ambiguity cured in the EAW; for examplo, nowhete in

tle

lr

EAW is tlre Appellant refened to as mt, "accused' (unlike the requested person in Asztaslos). Instead, and, it is submitted, significantly, he is consistently reforred to simply by his sumamo, "Assangd'.ln Aszataslos, the Court considered that the position was made clear in box (e) of tle warrant, where the requested person was referred to as an "accused". The Appellant is nowhere referred to in the EAW as an "accused', nor as having been charged with tle offence, and the preamble to the EAW does not refer r:mequivocally to "prosecution" but ratler refers gonerally to the
entire legal process.

"...This warrant has been issued by a competent judicial authority, I request that the peIson mentioned below be arrested and sunendered for the purposes of conducting a criminal prosecution or executing a custodial senlence or detention order..." - rnere failure to delet the

altematives is commonplace and gives rise to no submissions (see Mighall v Audencia Prcvinciul da Pqlmo de Mallorca Seccion Segunda 12010] EWHC 568 (Admin)).

43

4.22

The District Judge found, first, that "...there is nothing equivocal about the English version [of the EAW]" because it "refers to offences, indicates the relevant provisions of Swedish criminal law; and identifies specific conduct against Mr. Assange. .. " (page 14, Judgment). It is submitted that this reasoning is not sound; an EAW may contain all those details and yet nonetheless seek the requested person's extradition for questioning and not for prosecution. Trenk is a case in point. Indeed, if the EAW did not contain those details, it would in any event bc dcficient in terms of scction 2(4)(c) and (d) oftho 2003 Act. The faot that an EAW provides details of conduct alleged and tlre rolevant foreign law provisions does not remove the requirement for it also to contain tie statement provided for in section 2(3) of the 2003 Act. The District Judge found, secondly, that the Swedish language version of the EAW was not equivocal, by virtue of the use ofthe word, "lagforingl', because it was the word used in all Swedish language versions of the EAW:

4.23

"...As for the Swedish language version, 'lagforing' is the term used in the official Swedish language version of the Framework Decision Mr. Robertson says lthat] this is not to the poinl it simply indicates that all Swedish EAWs that
use this formula are ambiguous.

cannot accept that. When the Framework

Decision was agreed the Swedish authorities would undoubtedly have considered it ard undersiood its meaning. A request for the purPose of'lagforing' is a lawful

of the Framework Decision a:rd the Extradition Act 2003..." (page 15, Judgm.ent)
request for the pu4rose

4.24

in sxsluding tle possibility that there was indeed a systematic translation error in the Swedish language versions of the

It is submitted that the District

Judge erred

EAW. He had no basis for so doing, partioularly in the absence of any explanation emanating from the Swedish authorities and in the absence of any expertise to counter that of Mr. Brunski .

The

xtrinsic

evidence

4.25

The "exlrinsic" evidence clear$ shows that this particicular EAW has in fact been issued for the purposes of securing the Appellant's physical ptesence in Sweden so that he may be questionod there in person, 49i so that he may be put on trial.

4.26

The Prosecutor herself has explicitly stated on numrous occasions, that no

decision has been yet taken as to whether to prosecute the Appellant and that the EAW has been issued for the purpose merely of carrving out an interroqation of the Aooellant. The Swedish prosecution sewice has repeatedly and publicly staled (quite correctly) that she has sought an EAW in respect of the Appellant simply in order to facilitate his questioning and without having yet reached a decision as to whether or not to orosecute him.

4.2'7 On

18'n November 2010, the Swedish prosecutor explained seeking an arrest warrant in these terms;

her reasons for

"...Ny...told AFP: 'l

with Assanse..."

requested h.is affest so we could carrv out an interrogation

"...We have exhausted all the normal procedures for gehing an intenogation (and) this investigation has gotten to a poitrt where it is not possible to go fi[ther without interroqating Assanqe himself.' Ny said..."

4.28

That is further confirmed by media reports of the Prosecutor's public statements at the time;

"...I

requested his arest so we could carrv out an intefoqation with Assanee. That is the reason..."

"...Director ofPublic Prosecution Marianne Ny said Thursday the reason for the reouest [for extadition] is that investieators have not been able to brine Assange in for an interrogation. . ."

4.2g

The prosecutor's witten submissions to the Svea court of appeal on

November 20 1 0 further confirmed that she was;

24m

"...requesting the arrest of Assange is in order to enable implementation of the preliminarv investisation ard possible prosecution...".

4.30

Subsequently, in her communications with tbe Australian Embassy in Stoclfiolm in December 2010, after the EAW was issued, the Swedish prosecutor wrote:

"...Your request to obtain copies ofthe investigation against Julian Assange has been denied. This is mostly due to the confidentiality of the bulk ofthe requested documents which are only available in Swedish. Assange's lawyer Bjom Hurtig received a copy of the majority of the investigation documents during his detention hearing in the Stockholm Dishict Court on November 18. The same documents wi:re also filed in court.3l The Stocktrolm District Court and defendant [sic] were verbally given a detailed explanatiou of the contents of the sma1l number of documents not included in the written material that was submitted.3z The defence has asked for copies ofall materjals. Under Chapter 23, paragrdph 18 of the Code of Judicial Procedure, I bave decided to reject the defence's request to obtain copies of the documents not surrendered before the detention hearing. I consider it would be detrimental to the onsoins investieation hto the matter.

I want to emphasise that before a decision to orosecute the defendant has been made, he will be given the right to examine all documents relating to the case. the prosecution qoes ahead, the suspect will have the right to receive a copy of the investisation...".

l!

This is the prosecution dossier or case file which includes the complainants' statements. These are the text messages sbown to Mr. Hurtig.

45

4.31

On 16'December 2010, the Australian Ambassador to Sweden spoke directly to the Swedish prosecutor who conveyed that;

"...if a decision is made to charee Mr Assanqe, he ald his lawyers will be granted access to all documents related to the case @o-sleh-dggisis!-h4!-b99! made at this staee)--." (emphasis added)

4.32

The Appellant has, to this day, not been "given the righi to examine all documents

relating to the case", from which

it follows

that a decision to prosecute him has

still not been made.

4.33 It is, therefore, clear from

official diplomatic communications between the prosecutor and the Appellant's consular representatives, in December Swedish 2010 (after the issuance of the EAW on 2 December 2010), with reference to the underlined passages above, that:

. "A decision to prosecute . .

the defendanf'has not been made yet. In other words, the Swedish Prosecutor has not yet decided whether or not to prosecute Mr. Assange;
'iA, decision to charge Mr. Assange" has not yet been madedecision has been made at this staqe. . . ".
'1.{o such decision

"..-No

such

will be made until Assange and his lawyers are given an opporhmity to examine all the documents"; an opportunity that has not yet been given and had not been given at 2 Decernber.

Exceptional case

4.34

Altematively, Asztaslos recognises (at point (7)) the possibility of extinsic evidence being admissible in an'exceptional' case even absent ambiguity in the EAW
This case is entirely unlJ.ke Aztaslos itself or any of the cases discussed there. In this case, the Prosecutor herselfhas made c1ear, unequivocal public statements to the media and to the Aushalian High Cornmission to the effect tlat no decision has been taken yet as to whether to prosecute tle Appellant and that the EAW has been issued for the purpose merely of questioning him further. This is a highly unusual, if not unprecedented, state of affairs, and clearly an exceptional case enabling the Court to consider that evidence.

4.35

46

The issue

4.36

The issue ultimately therefore boils down to a legal one; namely whether, as a matter of UK law, an EAW issued prior to the point at which a criminal prosecution has commenced, is a valid Part I warrant under the 2003 Act?
As explained above,

4.31 4.38

tle

answer to that question is two-fold.

The Appellant accepts that, under the Framework Decision (and section 2(3Xb) of the 2003 Act) , the words 'for the purposes of a criminal prosecution' may be broad enough to encompass a prosecution that will coarnence in the future. Literally read, Article l.l can be interpreted as having elided the concepts ofprecharge invesfigation and post-charge prosecution. Therefore, the Appellant does not challenge under this heading the ability of EU member stats that have enacted the Framework decision into national law (such as Sweden) to issue an EAW prior to the point at which the criminal prosecution has comrnenced.

4.39

However, section 2(3)(a) of the 2003 Act goes beyond any provision of the Frarnework Decision and, applying In re: Ismail, deliberately resticts the circumstances in which the UK may execute EAWs to those where the criminal prosecution has alreadv cQmmenced; which is accepted by Sweden not to be the case here. By section 2(3)(a), the concepts of pre-charge investigation and postcharge prosecution are separated.

Case

law
case law under the 2003

4.40 4.41
i

It is submitted that tle

advzrnced above.

Act clearly supports tle analysis

From the earliest deoisions under tle 2003 Act the courts have acknowledged thrt In re: lsnrail continues to govem the application of section 2(3)(a). See, for example, Boudhiba r Centrdl Exdmining CAun No 5 of the National Coun of Justice Mailriil Spain l20}7l I WLR 124, DC per Smith L.J. at para. 19. The Courts have therefore also recognised that it is necessary to deternrine whether the criminal proceedings have actually begm Qnid, per Smith L.J. at paras. 2l); there lhe Appellant's committal for trial in Spain had already been ordered. A similar approach was taken in Dabas v High Court af fastice Madriil Spain [2007) 1 WLR 145, DC at paras. 9-16 per Latham L.J. In neither of those cases s/as the Appellant able to establish, by evidence, that the proceedings remained at the
investigatory pre-charge stage.

47

4.42

That the effect of section 2(3)(a) was to add a requirement (namely, for the criminal prosecution to have already commenced) over and above the requirements of the Framework Decision was expressly recogrdsed in Zre Jutliciql Authorily of the Court of First Instance, Hasselt' Belgium v Bartlett (supra), where Toulson L.J. observed that; "...49. Lord Hope noted
1n Cando Armas at 24 that the wording of Part I of the 2003 Act does not in every respect rratch that of the Framework Decision and that the

task of statutory construction has to be approached on the assunption that, where there are differences, tlese were regarded by Parliament as a necessary protection agaiDst an unlawful infringement of the right to liberty. There is a linguistic

difference between s2(3) and the Framework Decision.

As already noted

preamble (5) refers to the surrender of "'..suspected persons for the purposes of...prosecution" and article 1.1 refers to "the arest and surrender by another Member State of a requested person for the purposes of conducting a crinrinal prosecution. . . ". The term ''accused" does not appear in the Framework Decision. The 1989 Act section I referred to a person being "accused'', but the Act rnade no

reference

to the extradition being for the purposes of conducting a criminal

prosecution.

50.

In the 2003 Act the requirement in s2(3)(a) that ihe person is "accused" of the olfence specified in the warrant and the requircment in s2(3)ft) that the wanant is issued for the purpose of prosecution, when read together, emphasise that it is not enough that the criminal investigation has reached a stage ur'here tIIe person concemed merely fices suspicion of having committed an office and that the authorities in the requesting strate v/ish to be able to question him with a view to deteffdning whettrer there is a sufficient case to put him on trial. Ibq investigation must have reached the stase at which the requestins judicial authoritv is satisfied that he faces a case such tlat he oueht to be tried for the
soecified offence or offences. and the purpose of the request for exhadition must be to place hin on trial. This has to be made clear by the language of the EAW, however it is expressed . . "
.

4.43

Recognition ofthis also runs through a series of French cases under the 2003 Act where the matter has crystallised. The French language versiol of Article 1.1 of the Framework decision defines 'criminal prosecution' as 'poursuites penales'.

Therefore, the courb have held that it is incumbent upon the UK court to determine (at least where the issue is raised) whether 'poursuites penales'have actuallv commenced in France (Vq' v The Offrce of the Public Prcsecutot of the CounE Court of Montlucon, France l2006f EWHC 760 (Admin). That is so even in a case, such as Vey, wherc the EAW asserts that the Appellant is 'aocused' (see para. 38).

4.44

As a matter of French law, the commencement of 'poursuites penales' is closely allied to whether a defendant has been declarcd 'mise en examen'. Therefore, in
Zey (supra), Moses L.J. obsewsd that;

48

'...39. In

order to reach a conclusion it is important to bear in mind the prrnciples identified by Lord Steyn tn re Ismail [1999] AC 320. The dichotomy is between those who are merely sought for the purposes of enquiry and those who are accused following an enquiry. The different legal systems concerned in the Framework Decision require a purposive interpretation of "accused" (see Lord
Steyn at page 32?). ln the instant case the appellant contends that she is war:ted merely for questioning, that she is not accused and that the purpose of the extradition is not to prosecute since no decision to prosecute has been taken-.
.

41.

The essential issue between the experts is as to the stage which the proceedings against the appellant have reached. The appellant's exped, M. Serres, Avooat i la Cour de Paris, contends that she is not mise en exatnen. She is therefore not accused and her extradition is not sought for the purposes of taking proceedings against her. The Public Prosecutor disputes the contention that the appellant is

lot

mise en examen

.,.

55.

It

seens to me that the appellant, supported by M. Serres, has raised a serious doubt as to whether the appellant is properly to be regarded as having the status of mise en examen, Analysis of whether she has that status does not seem to me

to offend the principle prohibiting the courts in the United Kingdom ftom enquiring into the merits of a proposed prosecution in France. Rather, such analysis is necessary in oider to determine whether it has been established tlat
exhadition is sought for the purpose ofbeing prosecuted. Resolution ofthat issue

is not easy when the process of questioning may itself be part of

criminal procedure-.
.

a judicial

59.

Whilst, I repeat, it is not for this court to question or examine tlie adequacy ofthe evidence which forms the foundation of the request for extadition, it is the
firnction of this court to be satisfied as to the stage at which the proceedings have reached. Absent clarity rernains the risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. Wlilst that dichotomy might become blurred because of the

difference in penal procedure, mere suspicion should not fou:rd a request for extradifion..."

4.45 ln Flctcher v The Government of France

[2007] Criminal Appeal No. 8, tho eyidence showed tlat the Appellant had not yet been declared mise en examett. Tho Suprome Court of Gibraltar tlerefore held that (even though criminal proceedings had commenced), no decision had been taken to ky Ms. Fletcher. The procedural stage required by Re: Ismail ar,d Vey had therefore not been reached. Ms. Flecther was not 'accused' (that bearing the same meaning as a decision to try her having been made).
Thompson v Public Prosecutor of Boulogne Sur Mer [2008] ACD 5, the materials indicated that Appellant had not been placed under formal examination (mise en examen). Scott Baker L.J. held that;

4.46 ln

49

".-.16. Mr Yeo

has a much stronger argument, that as an accusation warrant it is invalid because it does not state that the warant is issued with a view to his arrest and

extradition for the pumose of beine nrosecuted (my emphasis). There is all the
difference in the wo d between being wanted for questioning and being wanted for the purpose of being prosecuted. See, for example, Lord Scott in Office of the King's Prosecutor, Brussels y Armas [2005] IJKHI' 67 atparagraph 54...

17.

judgment of Maurice Kay LJ in McCormack v the Tribunal de Grande Instance, Quimper, France 12008] EWHC 1453 (Admin). That was a case in which the court had had the benefit of expert evidence from Professor Jacqueline Hodgson of Warwick University. There has been no such evidence in the present
case...

The English hanslation of the wanant refen not to the purpose of being prosecuted, as required by section 2(3)(b), but instead uses the much broader words "for legal proceedings". We were referred to the original French version of tle warnnt, which uses t}te expression "poursuites p6nales". We were also referred by Miss Rebecca Hill, who has appeared for the respondent, to the

21.

Hill submits that the reference to poursuits p6nales in the French version of the warrant is sufhcient to clarifu any uncertainty arising ftom the English translation of being wanted "for legal proceedings"- The English translation leaves it unclear what stage the French proceedings have reached. Some help is
Miss
to be found at the top ofpage 4 of the wara:rt, under the heading "Procedure":

"the preliminary investigation initiated by

tle Ex:mining

Magistrate is still in

progress regarding Robert THOMPSON, but in the meanwhile other persons involved were placed ulder formal examination and appeared before [the] coutt or were sentenced in spite ofbeing absent."

The clear implication is that the Appellant had not been placed under formal examination and I would find it difficult to conclude on the scant material before the court that the point had been reached where he was vr'anted for the purpose of behg prosecuted. Section 2(3)(b) requires the wanant to contain a staiement to that effect, and in my view this warant does not. I am not pelsuaded, absent any evidence, that the mere appearttrce of the words "poursuites p6nales" in the

French warrant is sufficient to cure the deficiency.

224.4'7

Moses LJ had touched on the issue of complying with section 2(3)(b) 2 yeats before Maurice Kay LJ in Vey v The Oflice of the Public Prosecutor of the County Court of Motrtlugon, France [2006] EWHC 760 (Admin)...."

In the same case, Aikens J. held that;

'...31. It

is clear, taking the wording ofthe warra:rt, as a who1e, that this is what Lord Hope in the Armas case at pangraph 27 called an "accusation case" warrant as opposed to a "conviction case'r walrant. But, as Lord Hope emphasised at paragraphs 27 all,d 28 of his speech in the Armas case, if the warrant does not comply with the requirements of section 2 of the 2003 Act, then it is not a warrant within the meaning of that section and the tenns of Part 1 of the Act will not apply to it. Accordingly, there will be no jurisdiction to seud the person

50

sought to the requesting judicial authority: see Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2006] EWHC 167

(Adrnin), at paragraph 15 per Smith LJ. The terms of section 2(2)(a) and section 2(3)(a) and (b), which apply to arest warrants in "accusation" cases, are clear. A Part I warrant in an "accusation" case is an arrest warrant which will contain the statement fin sections 2(3)(a) and (b)] ...Given the statement in recital (5) ofthe Council Framework Decision of l3th June 2002 that the principal object of that decision is to abolish nextraditionu between Member States and to replace it with a system of "surrender" between judicial authorities, the reference to "exhadition" in section 2(3)(b) may seem a little odd, but that is the wording ofthe United Kingdom statuie.

My Lord has already quoted from the speech of Lord Scott of Foscote, at paragraph 54 of the speeches of their Lordships in the Armas case. I need not rpeat it. It is an important passage. In two recent cases in th6 Divisional Court concerning European arrest warants, problems have arisen over the issue of whether the European arrest warrant in questiori stated unequivocally that it was issued by the requesting judicial authority for the purpose of prosecuting the person named in the warrant for the offetrce identified in the warrant. Those cases

v The Office of the Public Prosecutor in County Court of Montlugon, France [2006] EWHC 760 (Admin) and McCormack v ttre Tribunal de Grande Instance, Quimper, France [2008] EW]IC 1453 (A&nin).
are, cbronologically, Vey

34.

Li each case the d.ichoiomy considered was whether the person 'ffhose exhadition being sought was an accused as cpposed !o someone who was merely wanted for questioning. (!or the distiriction, see the speech of Lord Steyn in re Ismail [999] AC 320 at page 327). In both the Divisional Court cases I have refened to, this court considered that the question of whether tle arrest wanant stated unequivocally ihat the person whose extradition was sought was for the purpose of being prosecuted tumed upon the stage the criminal proceediflgs had reached in the French criminal coud concemed. In eaoh case expert evidence as to French criminal procedure was before the court- In the Vey case the experts did not agree on whether, given the stage of the procedure reached it warralted the conclusion that the person whose exkadition was sgught was an accused as opposed to somebody who was merely wanted for questioning. In decidhg whether the requremeuts of section 2(3)(b) of the Act are fiilfilled, the court in each case did so on the basis of the wording of the warrant such exhaneous material that it was prepared to admit (such as the further information from the requesting authority sought u:rder Article 15 of the Framework Decision) and expert evidence on French Criminal procedure. In this case we have no extraneous material or exDert evidence.

35,

51

36.

The heading of the European arrest warrant in the English version in this case stales that the arrest and delivery of Mr Thompson is requested "to the judicial authorities for legal proceedings". That does not follow the English language wording of the pro-forma European arrest warrant that is annexed to the Frarnework Decision. That refers to a person being arested and surrendered "for the purposes of conducting a criminal prosecution". That language would obviously satis$, the statutory test under section 2(3)(b), as explained by Lord Scott in the Armas case.

3'7.

Miss Hill points to the French version of the warrant in the present case, which judiciaries aux fins de I'exercice de poursuits p6nales". She points to the fact that this accords with the French language version of the pro-forma warant annexed to the Framework Decision. So, she submits, that should be sufficient to satisry the statutory test in this case. The problem, however, is that there is notling in the remainder of the warrant, including the section in box E on procedure, which leads to the unequivocal conclusion that the plrpose of the arrest and extradition of Mr Thompson is for conducting a criminal prosecution against him. Indeed,
uses the case pkase "soit arrt6e et remise aux autorit6s

both the English and French versions of the statement concemiag procedwe in box E suggest that the position is undecided as regards Mr Thompson.

38.

The English courts are duty bound to interpret national law, particularly Part

I of

the Act, "as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2Xb) EU": see criminal proceedings against Pupino (Case C105/03) reported at 12006) QB 83, which was quoted in the speech of Lord Bingham of Comhill in the Dabas case at paragraph 5. Nevertheless, we cannot get away from the plain wording of the statutory requirements. Like my Lord, on this point I am not satisfied tlat in this case those requirements are fulfilled.. .".

4.48 In Johnson v State Prcsecutor at the Tribunal de Grande Instdnce

de Lillz, (Admin), the High Court found, on the facts of that Frunce f2009f EWHC 2830 case^ thatl

".-.In my view it is plain in this case that extradition is sought for tle purpose of prosecuting the appellants. There is nothing in &e warrants to suggest that they are wanted for questioning only....Signifisar ly, in Thomoson. there was a paragraph in the warrant entitled "Procedure' in which it was stated that the preliminary investigation initiated by the examining magistrate was still in progress regarding Thompson, who was alleged to have been involved in tobacco smuggling, while his alleged acconrplices were placed ulder formal examination. It is not surprising that, given that contrast, this court said that the clear implication ivas that Thompson had not been placed under formal exarnination. Scott Baker LJ said that that being the case, he would find it difficult to conclude on the sca.nt material before the court that the point had been reached where Thompson was wanted for the purposes of being prosecuted...It is accepted that there is no comparable section contahed in these warrants seeking the exbadition ofthese appellants..." fparas. i8-19, per Cranston J.]

52

agree. The District Judge observed that at face value Thompson creates difficulties in all French accusation cases. I do not accept that this is so. As my Lord has pointed out, the present case is clearly distinguishable ftom Thonoson, where the outcome hmed on the padicular anbiguity in the warrant. Where a wanant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole wanant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning..." fparc. 22 per Scott Bakr

"...I

L.J.l.

4.49

The same principles can be seen in play in a recent Czech case, R (Trenk) v District Court In Plzen-Mesto, Czech Republic [2009] EWHC ll32 (Admin),
where Davis J. held that;

*...5.

The essential issue is whether or not this case has crossed the boundary ftom
investigation into prosecution. Both counsel are agreed on thal It is not seriously disputd that here the appellant may be ilescribed as an accused; but what is very much in issue is whether his extradition is for the purposes of prosecution. Further, these matters are common ground: fust that by no standard has the applicant been charged, although it is accepted tbat that of itself cannot be conclusive of the issue before me; second, he is at least warted for questioning; and thid, it cannot be disputed but that, by the standards ofCzech criminal law, the preparatory proceedings leading up to a possible charge have not been
concluded.

.."

6.

Miss Nioe, appearing on behalf of the respondent, accepts that the Eruopean Arrest Warrant cafiiot, of itself, be conclusive of the matter. She accepts that it is for the counfy seeki:rg extadition to establish ib case that an individual should appropriately be extradile4 althongh she does draw attention to the wording of the European Arrest Warrant and to the fact that the charge is particularised and that it is signed by a judge. ..

8.

...[having corsidered supplementary materials conceming the status of the

Czech proceedings] The other answers would tend to indicate that what is desired is that he be questioned firther before a decision is made as to whether or not to

prosecute him...
1

1.

Pausing there, that makes clear, as is made clear elsewhere, that before a criminal cbarge can be brought the prosecuting attomey first must judge the legitimacy of the suspicion of the conrmitted crime. It seems to me ttrat there is considerable force in the observation ofMr Jones here that while there may be [an] abundance of material to shorv the police had reasonable grounds for suspicion (aad indeed the material shows that they could not have sought to arrest Mr Trenk had they not had reasonable suspicion utrder Czech law), still remains for the prosecuting attomey to assess the materials before deciding whether or not the reasonable suspicion was justified and charges should be brought. That has not

it

hannened here..

53

t7.

...Ismail sets out the general approach that this coud should adopt. True it is that Ismail was a decision rurder the previous Act, but nevertheless what is said there
remains relevant and instructive. I accept that a broad, generous and purposive approach to consfruction should be adopted in this context, and likewise this court should adopt a cosrnopolitan approach and should not seek practically to apply an English and Welsh kind of approach to different systems which prevail elsewhere in Europe.

18.

Reviewing the materials that have been put before me, it seems to me that it simply is not established that this case has crossed the boundary from investigation into prosecution. Miss Nice, at one siage in her argumenl was in effect reduced to submitting that ''the notice of institution of prosecution" under the Czech procedure was, of itself, enough to show that the boundary had been
crossed. But one only has to look at the answers given by the Czech authorities to

of notice of institution of prosecution simply does not have its litetal meadng as translated, in the sense that it does not mean tJnt a ''prosecution", in any substantive sense of the word, has actually started in the Czech Republic. On the contary, it is in substance a formal initiation of the investigatory process, by way of preliminary procedures, enabling Mr Trenk to
realise that the concept
be arested in consequence.
19.

...[A]s I read t}le materials, at least one can deduce that it is nothing like the bringing of charges. Indeed it obviously is not, because (as I have already indicated) charges can in the Czech Republic only follow, first, after the necessafy preliminary procedures, second, after the necessary preparatory procedures aad third at the conclusion of the preparatory procedwes, when a
prosecuting atlorney has reviewed the evidence and decided that charges should be broughi. None of that has happened here. Miss Nice points out that has not bappened here just because Mr Trenk has chosen to absent himself from the Czech Republic. So be it. That does not justif,' the coud in departing from the requitements of the 2003 Act. The position is thus different Aor4 for example,

McCormack where police and Public Prosecutor had concluded their investigations and had passed the rnatter on by requisitoire inkoductif to the
examining Magistate.

i,

20.

It

seems to me, reading such materials as have been placed before the court, that

what is sought to be done here is to question Mr Trenk firrtler to enable the prosecuting authority to decide whether or not a sufficient case has been

established to justi$ placing the matter before a judge and bringing charges. It may well be that the police have formed their own preliminary view on that in the Czech Republic but thal under Czech law, is not the test. It is the prosecuting attomey who has to decide whether a case can be commenced. That has not happened just because qustioning of Mr Trenk has not taken place. Indeed, it is clear enough to rne that the reason why Mr Trenk is requted to be exhadited to the Czech Republic is to enable him to be questioned further to see whether or not charges can or should be brought.

54

21.

Accordingly, and expressing myself relatively shortly, it does seem to me, with all respect, tlnt the District Judge did reach a conclusion which he should not have reached and he ought to have decided this rnatter differently. Therefore I will allow this anneal..."

The decision

ofthe Disfiht fudge

4.50

have no doubt that this defendant is wanted for prosecution in Sweden" (page 20, Judgment). The evidence did not show that. The evidence demonstrably showed that the Appellant is wanted in Sweden for the purposes of being interviewed in order to make a decision conceming The District Judge concluded,
prosecution.

"I

4.51

But, even

if

the prosecutor has formed a subjective or provisional intention to

prosecute, that does not answer the separate, and additional, objective question posed by section 2(3)(a) read with 1z re: Ismail [1999] I AC 320, HL, namely, have the competent authorities in the foreign jurisdiction have taken a step which can fairlv be described as the commencement of a orosecution?

4.52

The evidenoe before the District Judge unequivocally confirmed that no such step had been taken. For so long as the investigation remains open, and the prosecutor does not yet have aVailable to her all the evidence upon which to rnake a properly informed decision, no prosecution has commenced. In fac! there exists very good

evidential rgasons
commenced.33

in tle

present case why

prosecution may never be

4.53

The evidence of Mr. Sven-Erik Alhem, a Swedish former prosecutor, before the Disbict Judge on 8t February 20 1 1 , unchallenged on this point, confirms that:

i. ii.
4.54

Section 20 ofthe Swedish Crirninal Code states categorically and in tenns that " . . . upon the conclusion of the preliminary investigation, a decision on whether to institute a prosecution shall be issued."

The Svea Court ofAppeal issued tle warrant for Mr Assange's arrest as a "suspect'' and not as the "accused". Mr Assange is, as a matter of Swedish law, at this stage a "suspect" and not an "accused".

There was ultimately no dispute that the preliminary investigation in tlis case has not conclude{ and it follows that no decision to prosecute has been taken. This is precisely what the Swedish prosecutor confirmed to the Australian ambassador in December 2010. shortlv after the EAW had been issued:

See, for example, the evidence of Goran Rudling (conceming websites and Twifter) and Marie Thom (conceming SMS messages and money).

55

"...1 want to emphasise that befor a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the
case..."-.

4.55

The leamed District Judge rightly observed that "...I carnot sav when or what step was taken that can fairlv be described as the commencement of a prosecution... ", but nonetheless concluded that "...the boundary between suspicion and preliminary inquiries on the one hand, and prosecution on the other, had been crossed...". Such an approach is, for the reasons detailed above, legally flawed.

4.56

The importance of Ismail threshold cannot be overcmphasised. It is the only House oflords' authority on this vexed area of extradition law and is repeatedly cited and followed in later decisions- It is a unanimous decision of their Lordships' House and it unambiguously establishes the boundary between suspicion and preliminary inquiries on the one hand, and prosecution on t}re other. It requires "a step which can fairly be described as the cornmencement of a prosecution". Since Swedish law does not describe the step of seeking to arrest and interrogate as the conlmencement of a prosecution, aad in fact expressly precludes that description, it is :inappropriate for an English court to take a different view.

4.57

Lord Steyn's term 'tosmopolitan approach" does not mean a "lowest European denominator" or broad brush sense or feeling from the evidence t.hat a foreigrr proscutor is likely to charge. It means that the judge must avoid parochial comparisons with English police,/CPS practice, and examine the actual law in the issrring state. An examination of the Swedish Criminal Procedure Code establishes that the prosecutor simply cannot bring her mind to bear in any concluded way as to whether she will charge or not at this stage before she has
offered the dofendant various opportunities to provide further evidence a:rd to redirect her investigations. She cannot make a judgment part-tsay through her preliminary investigation. That is the law in Sweden, and however much she may think she is likely to prosecute, and however much the district judge thinks she is likely to p(osecute, this does not alter the fact that at this stage the law does not permit het to make that decision, and the objective of the warrant can only be to extradit for arrest anil interroeation.

The Appellant was not, and has not been, afforded access precisely because no prosecution has
been commenced.

56

The time

for

assessment of validity

4.58

The District Judge observed

thal

"...I

am not helped by comments Ms. Ny may have made before the warra.nt was issued. Her position may have char:ged over time, for example after Mr. Assange did not present himself in Sweden for interview.. -" (Judgment, page 18)

4.59

The Appellant would make two points in respect of that observation. First, Ms. Ny's confirmations as to the purpose of the warrant include statements made after the warrant was issued. Secondly, itis established 1aw that the validity of an EAW falls to be determined at the date of its issuance. If the competent authorities in the foreign jurisdiction take a step which can fairly be described as the commencement ofa prosecution, after an EAW is issued, the prior invalid EAW is not capable of being recalled into action to deal with this new and changed set of factual circumstances; it is already invalid.
Put another way, an invalid EAW ca:rnot be cured by subsequent inforrnation. See above paragraphs 3 .32.3 .36 ud Dabas v High Court of Madrid per Lord Hope of Craighead at para. 50).

4.60

4.61

4.62

Thus an EAW issued for an invalid purpose, or at arr inappopriate stage iu proceedings, cannot be cured by tle subsequent emergence of a valid purpose or the progression of the case to an appropriate stage in proceedings. What is required in those circumstances is a fresh EAW (in respect of which the validity requirements ofthe 2003 Act can be properly assessed).

Paschaytn

4.63

Moreover, this is not a case comparable to, say, Paschayan v Government of Switze and [2008] EWHC 388 (Admin) at paras. 27-28 or McCormach v Tribunal de Grand Instd.nce, Quimper, France f2008'l EWHC 1453 (Admin), where a decision to charge had been taken and only rernained rmimplemented because, under the law of the Requesting State, tJre case could not legally proceed until the defendant was physically there.
In her statement of4e February 2011, the Swedish prosecutor states that:

4.64

"...7.

Acoording to Swedish law, a formal decision to indict may not be taken at the stage tlnt the criminal process is currently act. Julian Assange's case is currently at the stage of 'preliminary investigation'. It will only be concluded when Julian
Assange is surrendered to Sweden and has been interogated'

'."

51

4.65

The unchallenged evidence before the Diskict Judge demonstrated that that is not quite accurate. True it is that the preliminary investigation will only be concluded when the Appellant is interrogated, but Sven Erik-Alhem confirmed on aoth that under Swedish law that interrogation may be conducted by;

. . . .

Telephone,

VideoJink,
In person at an Embassy in the United Kingdom, or

of Muhral Legal Assistance provisions. The EU Convention on Mutual Legal Assistance in Criminal In person in the United Kingdom by
means Matters (2000, C197101) and Protocol (20011C326/01) make arrangements for a witness in one country to give evidence in proceedings in another.

4.66

The Appellant has offered all ofthe above. The Swedish prosecutor has declined them all; without substantive reason. There exists no legal or proceduml obstacle to the Swedish autlorities taking the Appellant's evidence now in any of the above forms and ending the preliminary investigation. In the Swedish Supreme Court decision n (2007) NJA s.337, a Swedish national resident in Dubai was suspected on reasonable grounds oftar fraud. The investigation, like here, was at the preliminary investigation stage. The Supreme Court ruled tlat an arest warrant in absentia was disproportionato given that the prosecutor could carry out the investigation via telephone or in writing.

4.67

The Appellant's absence from Sweden constitutes no legal bar to his interview occurring. Indeed, it has occurred in respect of the AA allegations. Insofar as it has not occurred in respect of the SW allegations, that is for reasons that have not been explained. In both cases, there exists no legal or procedural obstacle to the Swedish authorities proceedings in any of the above forms and ending the preliminary investigation should they see fit.

Submission 2A

4.68 4.69

This entire issue can be assessed another way.

Prior to being charged (or a step being taken that can fairly be described as the commencement of a prosecution), a criminal suspgct is someone to whom the Mutual Legal Assistance treaty provisions (and Chapters 2-3 of Part I of the Crime (Internationai Co-Operation) Act 2003) are capable of applying. His account may (and should) be taken pursuant to those provisions.

58

4.7O

So long as that option is availabie to a foreign prosecutor, there is no need to use the extradition system at all. On the contrary, the use of the extradition system in those circumstances is wholly inappropriate.

4.71

In legal terms, it is disproportionate and contrary to Article 52 of the EU Charter

of Fundamental Rights.

4.'72. T\e Framcwork Dccision as on EU instrument is now subject to the provisions of the Charter of Fundamental Rights, pursuant to Article 6(1) of the Treary om
European Union. The Court of Appeal recently noted that the Charter is binding on UK courts whenever they are interpreting or applying EU law, as this court

must do at this hearing: see R (NS) Department f20l.0l EWCA Civ 990.

v Secretary of

Stdte

for

the Home

4.13

Article 52 ofthe Charter provides that:

"...Scope of guaranteed rights: l. Any limitation on the exercise of the rights and fteedoms recognised by this Chalter must be provided for by law and respect the essence of those rights and fteedoms. Subject to the principle of proportionality,
limitations may be made only ifthey are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and
fteedoms of others
..

."

4.74

The Charter provision makes proportionality a key feature of tle Framework Decision and applies to cases like ttris in which {lK courts must apply European law: the UK has not been relieved of this duty by Protocol No. 30 (R (NS/ r Secretary of State for the Home Departmezt (supra)). The EAW is a draconiaa inskument which affects ind:ividual liberty, freedom of movement and private iife: it should only be rosorted to if otleq less invasive, measures for achieving the general interest have failed or are unavailable. If they are available, tlre coud must decide whether the issuance of an EAW was necessary, given its impact on Mr. Assange, its occupation of the time of the court and its expense - which must be bome by the UK (Framework Decision, Article 30).
The principle of proportionality is well established and a High Court in Germany
has recently held, specifically in respect of EAW, that

4.75

"...the principle of propodionality of oriminal offences and penalties ... is a general principle ofthe Union's law.. ;' (GPPS v C, 25- Feb. 2010).

4.76

The Council of the European Union in 2008 issued the "European lfundbook on how to issue the EAV', chapter 3 of which ("The principle of Proportionality")
states;

59

"...When it comes to issuing an EAW, in each case an evaluation should be made which takes into account all tle various elements, including the seriousness of the offence, the measures and resources to be deploved in t}te executing slate
and, in padicular, the fact that it involves depriving an individual of his or her fieedom..." (Council of Europ e docrment 8216/2/0 8 18'n Jrme 2008).

4.77

Applying for the EAW without resorting first to voluntary cooperation and
secondly mutual legal assistance is plainly disproportionate. The results sought to be achieved by this EAW could have achieved the same result by much less draconian means-

4.18

No floodgates argument arises from the application of Adicle 52 in this context. In any case where a prosecution has commenced, the EAW is appropriate and proportionate. This issue only arises in cases where, as here, no prosecution has commenced. Such EAWs should ordinarily be barred by section 2(3). But if, for some reasonr they are not (such as by virhre of the operation of the illogical 'ambiguity' threshold in Asztaslos), then Article 52 provides redress. to go ahead, prosecutors throughout Europe will be encouraged to eschew mutual assistance and issue EAWs prior to the commencement of any prosecution. The courts can, by using their power to dismiss EAWs for proportionality, encourage prosecutors to make use of mutual legal assistance treaties and to follow the prescription of the European Council

4.79 If the court permits this extradition

handbook.

60

Submission 3
)- I

Section 2(2) ofthe 2003 Act provides, so far as is relevant that:

".-.(2) A

European Arrest Warrant is an arrest wanant which is issued by a judicial authority of a calegory 1 territory and v/hich containsa. the statement refened to in subsection (3) and the information referred to

in subsection (4)...". 5.2

Section 2(4) ofthe 2003 Act provides, so far as is relevant, that:

"...(4)

The information is-.

c.

..

particulars ofthe 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...".

5.3

This requirement gives effect to the mandatory requirement of Article 8.1(e) of the Framework Decision 2002/584/JHA which provides tlnt:
"...The Ewopean Arest Warrant shall contain the following information set out in accordance with the form contained in the Annex: ...e. a description ofthe circumstances in which the offence was committed, including tle time, place and degree ofparticipation in the offence by the requested person...".

The reqairements of seaion 2(4)(c)

<i

Section 2(4)(c) of the 2003 Act, and Article 8.1(e) of the Framework Deoision, requiies a valid EAW to contain particulars of four things;

i. ii.

What is alleged to have happened [in s2(a)(c) terms "particulars of...the cotrduct alleged to constitute tle offence" / in Article 8.1(e) terms 'h
descripfion of the circumstances in whioh the offence was committed"l,

The defendant's participation in the offencel the defendant's role in what happened [in s2(a)(c) terms "particulars of the circumstances in which the person is alleged to have committed the offence" / in Article 8.1(e) terms'h description of the... degree of participation in the offence
by the requested person"].

iii.

When the alleged offence occurred [in s2(aXc) terms "particulars of...the time...at which he is alleged to have committed the offence" / in Article 8.1(e) terms "a description of...the time...the offence was
committed"]
.

61

iv.

Wherc the alleged offence occurred [in s2(4)(c) terms "particulars of...the place...at which he is alleged to have committed the offence" / in Article 8.1(e) terms "a description of...the...place...the offence was
committed"l.

5.5

The composite requirements of section 2(4)(c) were considered in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin), where it
was held (per Cranston J.) that:

i. ii. iii. iv. v. vi. vii.

5.6

The description must include when and where the offence is said to have happened and what involvement the person named in the warrant had (para. 7).

balance must be struck between the need on the one hand for an

adequate descriphon to inform the person, and on the other the object simplifring extradition procedures (para. 7).

of

The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extsnt of the allegations against him in relation to tlrat offence (y:ara.7). The language ofthe 2003 Act somehow cornotes the specificity or lack it dernanded in the particulars for a cormt on an indictment (para. 8).

of

The amount ofdetail may tum on the nature

oftle

offence (pata. 7).

Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place (para. 7).

Allowance must be made where an EAW has been tra$lated (para. 8).

As stated above, the House of Lords has also emphasised the principle of strict compliance with the requirements of section 2 of tJle 2003 Act (and Framework
Decision);

"...The [part l] system has, of course, been designed to proteci rights. Trust in its ability to provide that protsction will be eamed by a carefirl observance of tlle procedures that have been laid down...the liberty of the subject is at stake here,
and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entided to expect the courts to see that the procedures are adhered to according to the requirements laid dowrn in

the statute...' (Offrce

of lhe King's Proseculor, Brassels v Cando Armos & another (supra) per Lord Hope of Craighead atpans.23-24).

62

The present

EAW

5.1

In respect of allegation 3, the EAW does not provide any meaningful avennent as to when the offence occurred, stating that the offence occured "on 18 August 2010, or on anv of the davs before or after that date", which could refer to any
date in the calendar.

5.8

The importance of Article 8.1(c) of the Framework Decision lies in the rule of specialty (at Article 27). A defendant must be in a position to assert tle rule of special{, following extradition, so as to prevent^e:rlargement of tle case against him beyond that for which he has been extraditedr). In short, an EAW needs io be sufficiently particularised so as to enable the Appellant to assert before the Court of Swedon that he was extradited only in respect of conduct between specified dates X a:rd Y. In this case, should he be prosecuted in Sweden for otler instances of 'molestation', the ambiguity of the EAW is such that he will not be able to assert his specialty rights by reference to this EAW.
Thus, whilst a bracket of time may suffice for the purposes of section 2(4)(c), that bracket must have a defrnite beginning and end date. See R (Pillar) v Bote Strcet Magistrates' Court [2006] EWHC 1886 (Admin) per May L.J. at paras. I7 &19;

5.9

"...1?.

The wanant omits any reference to the time fiame ofthe allegecl conspiracy. The only reference that exists as to any date is that one distinct aspect of the conduct is said to have conrmenced in 1997. Miss Dobbin submits that the absence of those details the warart clearly offends against section 2(4). The particulars to be provided by the requesting state under section 2(4) are scant and the absence of required ir:forrnation as to the time and place of the conduct alleged musi be regarded as firdamental to the validity of the warrant. . .

19.
i

In my view Mr Caldwell is in severe difficulties here. There is mention of a place, Castle Schloss Lolling, whose location is not given, and which only relates in the body of the warrant to part of what is said. There is also one mention ofa date "since 1997", which is unspecific a:rd again relates only to part. So one part has no date, the other part no place a.nd the whole is, to my mind, inetrievably vague, if it is taken alone. . ."

See

La Torre

Eer Majestlts A.lvocate 12006) HCJAC 56, at para. 92,

OJ

Submission 4
o.I
Section 2

ofAct provides, in pertinent part that:

authority of a

"...Q) A Part I warrant is an arest waffant which is issued by a judicial

(1) (8)
o.z

that the authodty whioh iosued ths Part I warrant has the function of issuing arrest warants in the category 1 terriiory. A certificate under this section must certiff that the authority which issued the Part warrant has the function of issuing anest warants in the category 1 territory . . ."

category I terdtory ..The designated authority may issue a certificate under this section

if it believes

The "designated authori$', for the purposes of the Act, is the Serious Organised Crime Agency ("SOCA').

6.3

It is submitted

that a public prosecutor cannot be regarded as a "j!!Agip! authorifif' (emphasis added). A prosecutor is, by defmition, not a judge, and hence not ajudicial authority. To describe a prosecutor as a "judicial authoriff" is a contradiction in terms. The lafter must, as ar essential feature, be independent and impartial. Prosecutors are partisan. On ordinary principles of statutory construction, a warralt issued by a prosecutor is not a warrant issued by ajudicial
authonfy.

The wonls of the 2003 6.4

Act

Article 6 of the Framework Decision (Determination of the Competent Judicial Authorities) defines the issuing 'Judicial authority" as "...the judicial authority of
the issuing member state which is competent to issue an Ewopean arrest warrant by virtue of the law of that state...". Article 6(3) requires that "[e]ach Member State shall inform the General Secretariat of the Council ofthe competent judicial authority under its law".

il
6.5

However, that is not reflected in the 2003 Act. There is no definition of'ludicial authority" in the 2003 Ac! and no provision which deems "judicial authority" to be e.g. "any law enforcement authority" or "any aulhority notifted by the member state to the Council of Europe general secretariat pursuant to Article 6(3) of the Framework Decision". The plain meaning of the term 'Judicial authority" is a person or body independently exercising judicial power - i.e. a magistrate, judge or court.

This is the meaning which Parliament, in the absence of any contrary

indication, must be taken to have intended in passing the Act.

64

meaning that has been acted upon in relation to the issue of EAWs in this country, where the "judicial authoritY' is the "appropriate judge" (Section 142). A prosecutor is, understandably, partisan. That is why even the CPS, despite its high professional standards, is not authorised to issue Part 3 EAWs; a judge must do so (section 142 of the Act)-

It is this

Far ffom there tieing any contra-indications in the Act itself, the plain rneaning is supported by a ejusdem generis constrtction of Section 202{4)(a), which refers to ratification of a document ,,signed by a judge, magistrate or other judicial fficer of the tenitory".

The Parliamentary intent 6.6

Moreover, examination of Hansard confirms that Parliament specificallv intended (and assured) that judicial authority would mean a judge. originally drafted. response to an tabled amendment in Standing Committee to insert the term 'judicial authority,, the Padiamentary Under-Secretary of State for the Home Depafhnent govemment stated, on 9'n January 2003, that;
as

o.

The phrase Judicial' was not included in the Extradition

It referred merely to 'an authority of a category I territory'. In

Bill

"...Article 6 fof the Framework decisionl could not be clearer. There is no

suesestion. nor even the possibilitv. that a police officer can issue a European arrest warrant without beins in breach of the Framework desision...There is no attempt to renege on any comrnitnents that were givel in previous Committees36.

reference to Undertakings giyen to the Euopean Scrutiny Committee by the parliamentary Under-Secretary at the Home Office, Mr. Bob Ainsworth MP, in January 2002. ln the course of examining the draft ft.amework decision, the Committee raised conci:ns about what authority would be competent, under the framework decision, to issue and execute the Euopean Arest Warrant. At tle time at which the European Scrutiny Committee first considered the draft framework decision, the drai provided for the European Arest Wafiant to be issued and executed by a 'judicial authority'. The Committee was concemed thaf, without an agreed definition of 'judicial authority', it was not possible to ensur that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded ftom recognition and enforcement under the framework decision. Article I of the draft fiamework decision was subsequntly amended to refer to the European Arrest Warrant as being a bourt decision issued by a member state'. The Committee inferred Oom this reference that lhe 'judicial authority' would have to exercise recognisably judicial fimctions in an independent manner. 'The European Scrutiny Committee asked the Parliamefiary Under-Sedetary ifit followed ftom article I that the UK courts would not be obliged to recognise and enforce a warant if it came Aom a body which drey did not recognise as a court, The Under-Secretary responded that ,it will 4qt9 Dossible for authorities that clearlv ar not courts. that are not iudicial authorities to issue requests for European Arrest Wanants as thev will not be remsnised' although he pointed out that it will be for each member state to designate a judicial authority comptent to issue such warlants. He later confirmed that, under the Extaditian Bill, the UK judicial authority ,ri,ill not only have the

ability but will certainly not execute a European Afiest Warant that comes from anlhing other

65

The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way that the hon, Gentleman suggests we should...we expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants utrder the current arrest procedures- We intend to do that in the United Kingdom- There is no reason to suppose that our intenfions are different ftom those of any other European country.. .The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for nulny years. Extradition requests come from a vadety of sources...the examining magistrate at Liege, the maqistate at the public prosecutor's office in AmsGrdam, the Qggqg of Brescia,

the countv tribunal of Bobigny or even the masistrate iudse Maria Teresa Palocios Criado in Madrid- That gives an idea of the span of arrangements used by our European partners and the sort ofpeople who make arrest warrants today. We do not believo that that will or can chanse...the only people who are allowed to issue a European arrest warrant arc tltose who have that function uuder the ftamework document. That document spells out that such people must be judicial authorities. I accpt that the fears raised by the Opposition Members are real, but I hope that if they are prepared to read the two documents together, they w_ill be satisfied that the sort of abuses that they believe may arise cannot do so...""
6.7

In response to those concems, the govemment introduced an amendment on Report "...to make it absolutely clear that all European arrest warrants must come fiom a judicial source.-The relevant provisions can be found in subsections (7)
and (8) of Clause

2..."'o

6.8

In Grand Committee in the House of Lords, a further amendment was tabled to add the words "after ajudicial docision" so as to;
" . . .make it clear-as it is ir Article 1 of the framework decision-that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amouats to a judicial decision. A case in point might be that a body which was a judicial authority acted as a matter of course-as a matter of formality--on the request ofa public plosecutor. Ifthat could be showrr-at least beyond reasonable doubt-I apprehend that such procedure would fall outwith the spirit of what the Govemment inlend. The Goverlment do nol as I understand i! intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial autlorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the

Bill; namely, that this is

Minister mentioned, inforrnation

a judicial authority-an4 as my noble friend the as to \trho the authorities are will be sent by lhe

than a judicial authority in another European state...the whole thing

will

need to be spelt out

witiin

Bill'. He gave similar assurances to European Standing Committee B. Concemed at the breadth of cluse 2 of tbe Bill, the Home AJfairs Committee reported that 'We agree with the
th
11 33

European Scrutiny Committee that th Euopan Arlest Wanant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner'. Hansard, House of Corrmons, Standing Commifte D, 9 January 2003, Col 47-49, Mr. AinsworthHansard, House of Lords, Grand Committee, 9 June 2003, Col GC12, Lord Filkin.

66

other stute-and that that judicial authority must be acting, as it normally would, in terms of a procedwe which can be said to be a judicial decision..."

6.9

In rcsisting that proposal, the Parliamentary Under-Secretary of State for

Home Deparhnent govemment stated, on 9- Jrure 2003, tha!

th

"...As I said in response to the earlier

necessary checks.

debate, there

will be a central register in

which the approyed issuing authorities in each country vdll be listed so that it will not be unduly difficult for the UK designated authority to car4r out the

I should also make it clear that, as I said earlier, we expect to receive incoming European extradition req[ests Aom exactly the same people as we get them ftom at the moment- We cunentlv receive reouests ftom a wide
range

of

iudqes and magistrates across the Eurooean Union. and we

see

absolutellz no reason whv that should change. Amendment No- 24 would provide

that the decision to issue a warrant has to be a'Judicial decision". I have to confess that I am not wholly clear what is meart by that. As I have already explained, all warr-ants will have to be issued by a judicial authority. I think tlnt it is reasonable to argue that anv decision laken on a matter of law or procedure bv a person holding ajudicial ofiice--such as a iudee or magistrate-is a iudicial decision. So I cannot see what the amendments would add to t]Ie Bill. I certainly hope that my noble f:iend is not suggesting that in order to qualifu as a 'Judicial decision" the decision to issue a waf,ralt should be taken in court with sorne kind of formal procedure or hearing. That may be what my noble friend and his suppoders want, but that is not how we do things in the United Kingdom. It is not our practice- Ar arrest warrant can be issued, on a'pplication from the police, by a justice of the peace. Clearly the justice needs to be convinced that the arrcst would be justified, but he does rrot have to hold any khd of formal hearing for that purpose. Nor does that process need to happen in court. After all, a justice can sign an arrest waf,rant at home ia his pyjanias if necessary, and there have
been occasions when that has happened..
.

.. justices take every wanant application very seriously and that they give the,m very carefirl consideration. That is exactly what we expect to haplen outwith our ovr jurisdiction. However, we se no need io impose requirements on foreign judicial autlorities that we do not impose on our own judicial authorities- We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity. . .
- - .we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. That is why we will be clear and ensure clarity as to what constitutes a judicial authority. The judicial authorities

will be propedy listed. As I said, we do not see the need to impose requirements on foreigl judicial authorities that we do not impose on our om judicial authorities. Yes, it will be a judicial process in the sense that the noble Lord, Lord Stoddart, understancls, but that process will be similar to ours. We expect it to operate very similarly to ours..."". of l,ords, Grand Committee, 9
June 2003, Col GC35-37, Lord Bassam of

Hansard, House Brishton.

o/

6.10

The amendment was accordingly withdrawn.

The ECTIIR approach

6.ll

This interpretation of'Judicial authority" is compatible with Convention rights and any intcrprctation thst extends judicial authority to proseoutors and police is not. This is clear from the Ewopean Comrnission case of Skoogstrom v Sweden (1984) 6 EHRR CD77, where it was held that a Swedish prosecutor could not be "a judge or other officer authorised by law to exercise judicial power" for the purpose of Article 5(3) of the Convention, because she lacked the essential quality of independence. This distinction between executive and judicial power is recogaised by legal systems thoughout the world. If Parliament had been made aware that "judicial authority" was to be interpreted as including executive authority, it is plain from Hansard that it would not have passed legislation that gave European policemen and prosecutors power to affect the liberty of persons present in this country.

The Framework decision

6.12

The framowork decision itself does not on its face contradict the plain meaning of "judicial aulhort$' in the Act. Preamble 5 describes "a system offree movement of jtrdigial. decisions in crtminal mafiers, covering both pre-sentence and final decisions ..." whilst Article l(l) refers to the EAW as a'iiudicial decision" and, Article 1(3) guarantees respect for fundamental rights and legal principles among which the distinction between judicial and executive power is porhaps the most fundamental. The principie of mutual recognition upon whioh the EAW is based is, in this coltex! a mutual recognition of the decisions of the courts of member states, not of their policemen or prosecutors. See, for example, Preamble 6 which provides for:

i,
"...The European arrest warant provided for in this Framework Decision is the first concrete measure in the fie1d of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'comerstone' of jg$9!4! cooperation..."

The supremacy of the 2003

Act

6.13

In any even! the Framework Decision is not part of UK law. While a few member states have adopted the Framework Decision verbatim, others have implemented it in different ways in their domestic legislationao. The UK parliament deliberately
For example, courts in the Netherlands
do.

not apply provisions of the Framework Decision

directly: see Drs/rr'cl Coart of Amsterda,n 16' February 2007 LJN BD2830.

68

chose to implement the Framework decision indirectly by a statute that deviated pu4)oses

from a number of its provisions and, whilst it may be used for backgromd in cases where the LIK statute is imprecise or ambiguous, it cannot be

used to circumvent or override the plain language of the statute.

6.14

Preamble 12 of the Framework decision expressly permits member states to include additional 'due process' safeguards and provisions in their domestic laws. Thc 2003 Act contains a number ofsuch additional safeguards (such as section 14 for example).

6.15 In the early days of the 2003 Act, the proper approach

to be taken to these 'additional' provisions was a matter of controversy. However, the matter was quickly settled by tle House of Lords which held that the construction ofthe 2003 Act must be approached in the following manner:

', '

i.

First, it "...must be approached on the twin assumptions that Parliament did not intend the provisions of Part I to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom tnan A" Decision required, it did not intend to provide for less..." (Offrce of the King's Prosecutor, BrusseLs v Canilo Armas [2006] 2 AC 1, HL per Lord Bingham ofCornhill at para. 8).
However, where the'lvording of Part I of the 2003 Act does not...match that of the Framework Decisiori to which it seeks tc give effect in domestic law...the task has to be approached on the assumption that, where there are differencos, these were regarded by Parliament as a necessa.ry protection against an unlawful infiingement of the right to llberly..." (ibitL por Lord Hope of Craighead at para. 24).

ii.

6.16

This is precisely one of those cases envisaged by Lord Hopo. Article 6 of the Framework Decision was not tansposed directly into UK law. The 2003 Act could have provided that "A Part 1 waffant is an arrest warrant which is issued by an authority ofa category I tenitory notified to the secretariat under Article 6(3) of the Framework Decision". It did not. Instead, the 2003 Act purposely preserved the ability of the UI! as executing member state, to determine whether a Part I wanant is issued by suitably independent - judicial - body (albeit premised upon the - now erroneous - assumption that other EU member states understood that Judicial' meant ludicial'). The 2003 Act is abundant\ clear. Section 2(2) requires a Part 1 warrant is sted by a judicial authority, inespective of whether a state has chosen to make an executive or other non-judicial body competent to issue an EAW and has notified it to the secretariat under Article 6(3) of the Framework Decision.

69

6.17

To have a warrant accepbed and acted upon in the UK, the 2003 Act mandates that it must on its face have been issued by a categ ory | judicial authority and not by a category 1 politician or policeman or prosecutor or lay person or intelligence

officer or any other partisan state firnctionary to whom local law may give competency and who may for that reason have been notified to the secretariat under Article 6(3) ofthe Framework Decision.

Enander

6.18

This issue was takn in the court below but not argued or mentioned in the judgment presurnably because the District ludge was bound by the decision in Enander v the Govemor of HMP Brigon anil the Swetlish National Polire Boa [2005] EWHC 3036 (Admin) ("Enande/)' In his Skeleton Argument for the court below, the Appellant "reserved his position on whether Enander wzs decided per incuriam" .
Enander was an application for habeas corpus where the Divisional court in an unreserved judgment rejected the argument that an executive official (a Swedish policeman) could not be a'Judicial authority". It ruled this expression must be read against the background of the Framework Decision and what it was intended to put in place. The Framework Decision leaves to the individual member state the right to desigrrate its own "judicial authority" (per Gage L.J. at para 24). Any other interpretation of tle term "judicial authority" would underrnine the mutual trust and cooperation between member states (at pdtl 25) and cause uncertainty and practical dif{iculty (per Openshaw J. at para 30)' The High Court used the Framework Decision not as an aid to construing the krm, "judicial authoriy", but as an altomative to construing it at all. In short, Article 6 was read as authorising an approach whereby there is no enquiry by the Court at ail into the meaning of "judicial authority": section 2 is emptied of meaning, a:rd simply rcfers to whatever body the foreign stat has decided to call a "judicial authority". Thus, if a foreign State designated a layperson, a political commissar, an intelligence officer or a politician as a "iudicial authorit)"', seclion 2 is construed so as to avoid any enquiry into the matter.

6.19

6.20

6.21

Significantly, however, the decision

consideration of:

in Enanilet was arrived at without

i. ii.

Hansard. or

The guidance of the House of Lords

delivered the following day).

Cando

lrmas (which

was

70

6.22

The High Court was called upon to dekrmine the issue of principle of the proper approach to the construction of this additional due process protection, without the guidance of the House of Lords. Canilo Armas now shows that the High Court was wrong to use a (deliberately) unincorporated provision of tle Framework Decision and override an express due process additional safeguard introduced into the 2003 Act. Applying Lord Hope's approach, the High Court should have;

"...opproached [the ditference btwsen ssction 2 and Article 6] on the assumption that...these were regarded by Parliamenl as a neoessary protection against an unlawful infiingement ofthe right to liberty..."

6.23

The Divisional Court in Enander thought that giving judicial authority its plain meaning would undermine the "mutual recognition" principle. But that principle applies to the recognition of judicial decisions, which for the purpose of EAW system must be presumed correct, rather than mutual recognition of partisan police and prosecutorial decisions. If "judicial authority" means what it implies,

namely trdependence

of the issuing authority,

then "mutual trust

and

cooperation" is strengthened rather than undermined - there oan be much greater trust in a system that pivots on independent judicial decisions than one which allows state officials the discretion to issue extradition Warrants.

6.?4

The argument from inconvenience relied on by Openshaw J may also

be

questioned: there is surely no difficulty in establishing whether a warrant has been issued by a Court or judge, as distinct ftom a government agent or agency. Due

process is meart to ensure that deprivation of libertry should come about only through the decision of a judicial authority independent of the state. The issue of an EAW has draconian consequence for the liberty of tle individual, keeping him in custody or on restricted bail, preventing an independent judicial autlority discharging him until the provisions of the Extradition Act have been complied with. Preamble 12 of the Framework Deoision promises respect for fundamental rights and for the principles of the Charter ofFundamental Rights of the European Union: it is therefore appropridte and proportionate that the lenglhy encroachment
(

on individual fieedom inevitably suffered by the EAW suspect should

authorised by

be

ajudicial rather than an executive authorilr. (R v HM

6.25 In sm, Enander was wrongly decided and should not be followed
Coroner for Greater Manchester Ex p.

fol

$9851 QB 67).

6.26

Enander did not seek to take his case to the House of Lords, notwithstanding that he was eltitled to seek leave directly from the House of Lords as his application to the High Court was for habeas corpus, having decided in the meantime to retum to Sweden for his own reasons.

Conclusions
1.1

Section 26 of the 2003 Act provides, insofar as is relevant, that:

"...(l) If the appropriate judge orders a person's extladition

(3) (4)

under this Part, the person may appeal to the High Court against the order... An appeal under this section may be brought on a question of law or fact. Notice ofan appeal under this section must be given in accordance with rules of court before the end ofthe permitted period, which is 7 days stading with the day on which the order is made..."

1.2

Section 27 ofthe 2003 Act further provides that:

"...(l)

(2) (3)

On an appeal under section 26 tlte High Court mayallow the appeal; dismiss the appeal. The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. The conditions are thatthe appropriate judge ought to have decided a question before him at the extradition hearing differently; if he had decided the question ir the way he ought to have done, he would have been required to order the person's discharge. The conditions are that a:r issue is raised that was not raised at the extradition hearing or

(") (b) (a) (b) (4)

(a)

evidence is available that was not available at the extradition

(b) (c) (5)

hearing;

the issue or evidence would have resulted in the appropriate

judge deciding a question before him at the extadition hearing
differently;

ifhe

had decided the question in that way, he would have been

requircd to order the person's discharge. Ifthe court allows the appeal it must(a) order the pason's discharge; (b) quash the order for his extradition..."

For any or all of the above reasons, it is submitted that the leamed District Judge ought to have decided tlre above questions before him at the extradition hearing differently and, if he had decided the questions in the way he ought to have done, he would have been required to order the Appellant s discharge. Accordingly, this appeal should be allowed and the Appllant should be discharged.

72

Wednesdav. 29 June 201

I
Ben Emmerson QC

Mark Summers
Matrix Chambers
London, WCIR 5LN

'73