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Skeleton argument for the Appellant Julian Assange 110630

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  • 1. IN THE HIGH COURT OF JUSTICE Case No: CO/1925/2011ADMINISTRATIVE COURTBETWEEN:IN THE MATTER of an appeal pursuant to section 26 of the Extradition Act 2003. JULIAN PAUL ASSANGE Appellant v SWEDISH PROSECUTION AUTHORITY Respondent _____________________________________________ SKELETON ARGUMENT ON BEHALF OF THE APPELLANT _____________________________________________ Date of hearing: 12th & 13th July 2011 Time estimate: 2 days (1 day pre-reading) Essential Reading: Skeleton Arguments EAW and supplemental information (4.2.11) Witness statements of Mark Stephens (14.12.10; 10.1.11; 28.1.11 & 7.2.11) Witness statement of Andrew Ashworth (25.1.11) Report of Sven Erik Alhem (28.1.11) Witness statement of Goran Rudling (31.1.11) Report of Christophe Brunski (2.2.11) Transcripts of evidence in Magistrates’ Court (7 & 8.2.11) Witness statement of Jennifer Robinson (22.2.11) Judgment of the District Judge (24.2.11) Chronology: See below, paragraph 2 1
  • 2. IndexIntroduction…………………………………………………………………………………………. 3Chronology…………………………………………………………………………........................... 3Submission 1……………………………..………………………………………………………….. 8 The established law……………………………………………………………………….... 9 How the Castillo principles operate under the 2003 Act…………………………………... 11 Section 2(4)(c)……………………………………………………………………………... 13 Other requirements of the 2003 Act………………………………………………………...13 The treatment of Castillo under the 2003 Act………………………………………………13 Proving misstatement………………………………………………………………………. 15 Bad faith not necessary…………………………………………………………………….. 17 Offence 1 (unlawful coercion – AA)………………………………………………………. 19 Invalidity…………………………………………………………………………..20 Section 64………………………………………………………………………… 21 Offence 2 (sexual molestation – AA)……………………………………………………… 22 Invalidity…………………………………………………………………………..24 Section 64………………………………………………………………………… 24 Offence 3 (sexual molestation – AA)……………………………………………………… 25 Invalidity…………………………………………………………………………..26 Section 64………………………………………………………………………… 27 Offence 4 (minor rape – SW)……………………………………………………………….27 Invalidity…………………………………………………………………………..29 Section 64………………………………………………………………………… 29Submission 2………………………………………………………………………………………… 33 Section 2(3) of the 2003 Act……………………………………………………………….. 33 The purpose and origin of section 2(3)(b)…………………………………………………. 34 The distinct purpose and origin of section 2(3)(a) ………………………………………… 34 The combined effect of sections 2(3)(a) & (b)…………………………………………….. 35 Ismail………………………………………………………………………………………..39 Extrinsic evidence is admissible…………………………………………………………… 40 The extrinsic evidence……………………………………………………………………... 44 Exceptional case ……………………………………………………………………………46 The issue…………………………………………………………………………………… 47 Case law……………………………………………………………………………………. 47 The decision of the District Judge…………………………………………………………. 55 The time for assessment of validity………………………………………………………... 57 Paschayan…………………………………………………………………………………...57Submission 2A………………………………………………………………………………………. 58Submission 3………………………………………………………………………………………… 61 The requirements of section 2(4)(c)………………………………………………………... 61 The present EAW…………………………………………………………………………... 63Submission 4………………………………………………………………………………………… 64 The words of the 2003 Act………………………………………………………………….64 The Parliamentary intent…………………………………………………………………… 65 The ECtHR approach………………………………………………………………………. 68 The Framework decision……………………………………………………………………68 The supremacy of the 2003 Act……………………………………………………………. 68 Enander…………………………………………………………………………………….. 70Conclusions………………………………………………………………………………………….. 72 2
  • 3. Introduction1.1 The extradition of the Appellant has been requested by a Director of Public Prosecutions in Sweden. Sweden has been designated a Category 1 territory 1 pursuant to section 1 of the Extradition Act 2003 . Thus, Part 1 of the Extradition Act 2003 (“the 2003 Act”) applies, as amended by schedule 13 to the Police and Justice Act 2006 and by and by Part 6 of, and Schedules 7 & 8 to, the Policing and Crime Act 2009. Chronology2.1 On 13th August 2010, the Appellant visited Sweden at the invitation of a political group to give a lecture on Saturday 14th August 2010. As previously arranged, he was to remain in Sweden for the following week.2.2 At some point during the following week, two women [AA and SW] spoke to each other and realised that they had both had intercourse with the Appellant during the currency of his visit. SW wanted him to get tested for diseases, so on 20th August 2010 she went to the police to seek advice. AA accompanied her for support. Instead, the police treated their visit as the filing of formal reports.2.3 The reports were filed as: i. Case No. K246314-10 [complainant SW] as ‘rape’. ii. Case No. K246336-10 [complainant AA] as ‘molestation’.2.4 At 5pm on 20th August, police related the reports to the on-duty assistant prosecutor over the telephone who ordered that the Appellant should be detained ‘in absentia’2.2.5 A preliminary investigation was commenced and, on 21st August 2010, the case was taken over by the Chief Prosecutor of Stockholm (Eva Finne). At 4pm, having assessed the evidence, she cancelled the arrest warrant against the Appellant; she having made the assessment that the evidence did not disclose any offence of rape (against SW).1 . The Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI. 2003 No. 3333).2 . She also confirmed (in breach of Swedish law) to a popular tabloid, “Expressen”, that the Appellant was wanted for rape. This featured as its headline the next day and was repeated around the world. 3
  • 4. 2.6 The preliminary investigation continued in respect of: i. Whether the conduct alleged by SW could constitute some lesser offence, ii. Whether the conduct alleged by AA could constitute ‘molestation’.2.7 On 25th August 2010, the Chief Prosecutor determined that: i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed. ii. The preliminary investigation into the conduct alleged by AA would continue (on suspicion of the offence of ‘molestation’).2.8 On 30th August 2010, the Appellant (who had voluntarily remained in Sweden to cooperate with the investigation) attended for police interview in respect of the ongoing Preliminary Investigation in respect of AA’s report. He answered all questions asked of him.2.9 Meanwhile, on 27th August 2010, the complainant’s counsel had appealed the Chief Prosecutor’s decision to a Senior Prosecutor in Goteborg. On 1st September 2010, that prosecutor (Marianne Ny) decided that: i. The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of ‘rape’. ii. The preliminary investigation into K246336-10 [AA] would be expanded to include all the conduct in the complaint.2.10 Afterwards, the Appellant received no word from police or prosecutors and instructed Mr Hurtig, who was in effect the public defender, to act for him. Between 8th – 14th September 2010, the Appellant’s counsel requested that he be interviewed. That request was deferred by the prosecutor.2.11 On 14th September 2010, the Appellant’s counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellant’s counsel that he was free to leave Sweden. She advised him that investigations were ongoing. The Appellant’s counsel asked whether the interrogation could take place in the next few days but was told it could not because the investigator was ill.2.12 On 21st September 2010 (3 weeks after the investigation had been re-opened and 4½ weeks after the allegations had been made) the prosecutor contacted (by text) the Appellant’s counsel to ask whether the Appellant could be made available for an interrogation on 28th September 2010. 4
  • 5. 2.13 On 27th September 2010, the Appellant’s counsel advised the prosecutor that he had been unable to contact the Appellant3. The prosecutor stated that she would consider how to proceed. Later that day, the prosecutor ordered that the Appellant should be detained ‘in absentia’.2.14 On 30th 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 return to Sweden for interview on Sunday 10th October or on any date in the week commencing 11th October 2010. The Sunday was rejected as inappropriate. The week commencing 11th October 2010 was later rejected as being too far away.2.15 That was probably because police believed that the Appellant was attending a lecture in Stockholm on 6th October 2010. Plans were made to detain him then but that information proved inaccurate.2.16 Therefore, on 8th October 2010, the prosecutor again contacted the Appellant’s counsel to discuss possible appointments for interview. The Appellant’s counsel offered to speak to the Appellant about whether he would be able to attend on 14th October 2010. During the same conversation, the Appellant’s counsel offered a telephone interview4 which was declined (the prosecutor insisting that the Appellant be interviewed in person).2.17 At around the same time, the prosecutor stated that, notwithstanding the extant arrest order, that the Appellant was ‘not a wanted man’ and would be able to attend an interview ‘discreetly’.2.18 On 12th October 2010, the Appellant’s counsel advised the prosecutor that he had been unable to contact the Appellant. The prosecutor indicated her intention to issue an EAW if the Appellant did not attend for interview.2.19 On 2nd November 2010, the Appellant travelled to Switzerland (to lecture the U.N.) and on 10th November 2010 to the United Kingdom.2.20 On 12th November 2010, the Appellant’s counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or videolink interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy5 which were all declined (the prosecutor insisting that the Appellant be interviewed in person in Sweden).3 . Owing to ongoing developments in the United States of America, the Appellant had been keeping a deliberately low public profile and avoiding use of communication devices that could track his location. He had left Sweden for Berlin on 27th September 2010, without knowledge of the issuance of the arrest warrant and in accordance with the permission to leave granted by the prosecutor on 15th September 2010.4 . Telephone interviews with suspects abroad are lawful in Sweden and qualify for the purposes of the Preliminary Investigation.5 . All of which are lawful in Sweden and qualify for the purposes of the Preliminary Investigation. 5
  • 6. 2.21 The prosecutor decided, without offering reasons, that it was inappropriate to take the same steps under the mutual assistance treaty.2.22 On 18th November 2010, the prosecutor successfully applied to the Stockholm District Court for an arrest warrant in absentia upon the prosecutor’s assertion of reasonable suspicion of the commission of: i. In case No. K246314-10 [complainant SW]; the offence of rape. ii. In case No. K246336-10 [complainant AA]; the offences of unlawful coercion and sexual molestation x 2.2.23 On 22nd November 2010, the Appellant appealed that order and, on 24th November 2010, the order was upheld by the Svea Court of Appeal (albeit that the rape offence concerning complainant SW was reduced to the lesser offence of ‘minor rape’).2.24 On 26th November 2010, an EAW was issued by the prosecutor pursuant to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between member states of the European Union 2002/584/JHA (“the Framework decision”). The EAW was submitted to, and received by, the Serious Organised Crime Agency (“SOCA”); an authority 6 designated by the Secretary of State for the purposes of Part 1 of the 2003 Act . SOCA declined to certify the EAW because it was not a valid Part 1 Warrant (it failed to specify the punishability in respect of each offence).2.25 On 28th November 2010, the Appellant applied to the Supreme Court for permission to appeal the decision of the Svea Court of Appeal. On 2nd December 2010, that application was refused.2.26 On 2nd December 2010, a replacement EAW was issued by the prosecutor and submitted to SOCA.2.27 On 6th December 2010, the EAW was certified by SOCA under s2(7) & (8) of the 2003 Act.6 . The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI 2003 No. 3109) as amended by the Serious Organised Crime & Police Act 2006 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No. 594) 6
  • 7. 2.28 On 7th December 2010, the Appellant voluntarily surrendered7 himself for arrest by appointment in the United Kingdom and the ‘initial hearing’ was conducted at City of Westminster Magistrates’ Court. He was initially refused bail on 7th December but subsequently was granted bail subject to conditions8.2.29 Following an extradition hearing on 7th, 8th & 11th February 2011 at City of Westminster Magistrates’ Court (sitting 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 1st March 2011, pursuant to section 26 of the 2003 Act, the Appellant appealed against the extradition order on the grounds set out in the Grounds of Appeal and further developed below.7 . Whilst in the UK, and as early as 2nd November 2010, the Appellant had instructed lawyers to write to the Metropolitan Police extradition squad after he heard that the prosecutor might seek an EAW. When it did come, the extradition squad called his lawyers and arranged to arrest him by consent the following day. They took a DNA sample at this time.8 . The Respondent appealed the grant of bail to the High Court; which appeal was rejected with costs by Ouseley J. on 16th December 2010. 7
  • 8. Submission 13.1 The EAW alleges the following factual conduct: 1. “…Unlawful coercion On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting. 2. Sexual molestation On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, 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 intercourse with her without her knowledge. 3. Sexual molestation On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity, i.e. lying next to her and pressing his naked, erect penis to her body. 4. Rape On 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that 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, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity….”3.2 The Senior District Judge found that those factual allegations would establish dual criminality for the purposes of section 64 of the 2003 Act; on the basis that lack of consent (and lack of reasonable belief in consent) may properly be inferred9 from the conduct described, particularly the references to ‘violence’ and a ‘design’ to ‘violate sexual integrity’.9 . Pursuant to Balint v Municipal Court in Prague, Czech Republic [2011] EWHC 498 (Admin); R (Kulig) v Regional Court in Tarnow, Poland [2011] EWHC 791 (Admin); Naczmanski v Regional Court in Wloclawek [2010] EWHC 2023 (Admin); Zak v Regional Court of Bydgoszcz Poland [2008] EWHC 470 (Admin). 8
  • 9. 3.3 However, that description of conduct is not accurate.3.4 The EAW misstates the conduct alleged and is, by that reason alone, an invalid warrant.3.5 Further, properly described, the conduct alleged in the EAW does not establish dual criminality pursuant to section 64 of the 2003 Act.3.6 The Appellant does not (and does not need to) allege bad faith or ulterior motive on the part of the Swedish authorities. So far as the Appellant is concerned, these were genuine attempts to summarise long statements. However, the fact remains that the conduct described in the EAW does not accurately reflect the accounts of the complainants. The established law3.7 In Castillo v The Government of Spain & Anor [2005] 1 WLR 1043, this Court held, at paragraph 25, that; “...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 of the 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 from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, whereas here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the 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 and accurate...”3.8 Applying those principles to the facts of that case, Thomas L.J. proceeded to hold that; “...26. It is clear that in the light of the dossier held by the Court in Spain that the description in the request of the conduct which it is alleged constituted the offences was not a proper, accurate or fair description. 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 properly and fairly), 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 UK of attempted murder of the police officer or an attempt to cause him grievous bodily harm; a proper description of 9
  • 10. the device and of the 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 an attempt to do grievous bodily harm to the policeman. 28. However, although I have reached that view in relation to those two charges (charges 6 and 7), it seems to me 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]...” ...46. ...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences under the law of the UK of attempted murder of the police officer and attempt to cause serious bodily injury to the police officer 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 judgment that determination cannot stand in the light of the wrong description contained in the request...”3.9 Castillo was a case brought under the European Convention on Extradition 1957 10 (the “ECE”). The ECE had been incorporated into UK law in 1990 .3.10 Under the ECE, the requirement upon a Requesting State to establish a prima facie case had been abolished (Article 3). What existed instead (under Article 12) was an obligation to set out a description of the 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, in the light of Article 12, to set out a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested. That requirement 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 the court in that state does not have to be satisfied that there is sufficient evidence; as reflected in s 9(4) of the Act and paragraph 3 of the European Convention Extradition Order 2001 there is no requirement of evidential sufficiency. As the House of Lords made clear in re Evans [1994] 1 WLR 1006 at 1013 "The magistrate 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 the conduct constituting 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 Castillo, carried with it an obligation to do so properly, accurately and fairly.10 . See SI. 1990 No. 1507; the various amendments to which were consolidated in SI. 2001 No. 962. 10
  • 11. How the Castillo principles operate under the 2003 Act3.12 The legal requirement for a proper, accurate and fair description of offence and conduct has become, if anything, more concrete under the 2003 Act. 113.13 In 2003, the ECE was superseded in respect of many of its member states , 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 [2008] NIQB 140 per Kerr L.C.J. at para. 15).3.14 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 criminality in certain circumstances).3.15 Pursuant to the second purpose, 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: …e. a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person...”3.16 That ‘due process requirement’ (per Kingdom of Spain v Arteaga [2010] NIQB 23 at para. 19) is enacted in the 2003 Act by section 2(4)(c) of the 2003 Act12.3.17 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 circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence …”.11 . The ECE remains the operative extradition treaty with the UK in respect of 19 of its signatories (Albania, Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedona FYR, Moldova, Montenegro, Norway, the Russian Federation, Serbia, Switzerland, Turkey and the Ukraine); the remainder have since become signatories to the Framework decision.12 . The 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); Dudko v The Government of the Russian Federation [2010] EWHC 1125 (Admin). 11
  • 12. 3.18 The requirements of section 2(4)(c) of the 2003 Act and of Article 8.1(d) or (e) of the Framework Decision are the same (Arteaga (supra)).3.19 The House of Lords has repeatedly observed that compliance with section 2’s ‘validity’ provisions is a jurisdictional prerequisite of a Part 1 warrant 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 1 warrant within the meaning of that section and Part 1 of the 2003 Act will not apply to it (Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL per Lord Hope of Craighead at paras. 28 & 42; Dabas v High Court of Justice, Madrid [2007] 2 AC 31, HL per Lord Hope of Craighead at para. 50; Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325, HL per Lord Hope of Craighead at para. 14)3.20 The burden of proving that the EAW complies with section 2 of the Act is on the Prosecution and the standard of proof is beyond a reasonable doubt (section 206 of the Act; Mitoi v Government of Romania [2006] EWHC 1977 (Admin))13.3.21 The House of Lords has also emphasised the principle of strict compliance with the requirements of section 2 of the 2003 Act; “…The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the 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 entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute…” (Office of the King’s Prosecutor, Brussels v Cando Armas 14 & another (supra) per Lord Hope of Craighead at paras. 23-24) .3.22 That principle is crucial in respect of territories in respect of which there exists no inquiry into evidential sufficiency. Thus, it is imperative that there be strict compliance with the provisions of the 2003 Act; “…Since Parliament has delegated to the executive the power to include any states it thinks fit - a power it has exercised generously - the need for rigour at this elementary level is far more than merely technical…” (Bentley v The Government of the United States of America [2005] EWHC 1078 (Admin) per Sedley L.J. at para. 17).13 . This was accepted by the District Judge (p 12 – “unless I am sure the warrant is valid, I must discharge”) although 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 13).14 . See also Regina (Guisto) v Governor of Brixton Prison and another [2004] 1 AC 101, HL per Lord Hope of Craighead at para. 41; “…it is a fundamental point of principle that any use of the procedures that exist for depriving a person of his liberty must be carefully scrutinised.…the courts must be vigilant to ensure that the extradition procedures are strictly observed…The importance of this principle cannot be over-emphasised…”. 12
  • 13. Section 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 any of the Act’s bars to, or restrictions upon, extradition (Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at para. 7).3.24 An EAW that misstates the conduct alleged, or the applicable legal provisions, is, by definition, one that does not provide sufficient particulars so as to enable the defendant to understand the nature and extent of the allegations against him. Such an EAW is not an EAW that complies with Article 8.1(d) or (e) of the Framework Decision, nor is it a valid part 1 warrant for the purposes of section 2(4)(c) of the 2003 Act. As was the position in Castillo under Article 12 ECE, so it is under the 2003 Act; see The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Other requirements of the 2003 Act3.25 In some case, the particular misstatement will engage other provisions of the 2003 Act. Such was the case in Castillo itself, where, upon the true facts, dual criminality was not made out. Such is also the case here The treatment of Castillo under the 2003 Act3.26 The case law of both England and Scotland has consistently applied the Castillo principles to section 2(4)(c) of the 2003 Act.3.27 In Palar v Court of First Instance Brussels [2005] EWHC 915 (Admin), Laws L.J. held, at paras. 7-8, that; “…7. On the face of it the translation of the warrant which I have read poses some difficulties…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 (albeit in the context of the earlier legislation contained in the Extradition Act 1989) that in Castillo v the Kingdom of Spain and the Government of HM Prison Belmarsh [2004] 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 of the 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 from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the 13
  • 14. Secretary of State and the Court in the UK. Scrutiny 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 the 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 and accurate." 8. I 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 administration of those provisions requires that fact to be borne firmly in mind. 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 Warrant scheme. However, it remains the case that the conduct said to constitute the extradition offence in question has to be specified in the 15 warrant (section 2(4((c))…”3.28 In La Torre v Her Majestys Advocate [2006] HCJAC 56, in construing section 2(4)(c) of the 2003 Act, the High Court of Justiciary (per Clerk L.J, Lord McFadden & Lord Nimmo Smith) observed, at para. 92, that; “…[section 2(4)(c)] includes, and expands upon, a transposition of the requirements of article 8(1)(e) of the Framework Decision. We accept that the conduct must be fairly and properly described (R (Castillo) v Spain, per Thomas LJ at 1052, para 25). We accept that that is so as a matter of first principles of fairness, as well as to allow the rule of speciality to be given content (Aronson, per Lord Griffiths at pp 594D and 595D). But we also accept the submission of counsel for the Lord Advocate that one purpose of the 2003 Act was to simplify and streamline procedures for extradition to EU countries, and that a practical, rather than a technical, approach should be adopted to the specification given in the warrant (Welsh and Thrasher, per Laws LJ at para 26). As Lord Hope of Craighead said in Armas (at para 44):"The purpose of the statute is to facilitate extradition, not to put obstacles 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 in The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Sir Anthony May P. held that the requirement for a proper, fair and accurate description of the conduct alleged is a validity requirement of section 2(4)(c) of the 2003 Act:15 . Other applications of Castillo under Part 1 of the 2003 Act include Fofana & Belise v Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin) and Central Examining Court of the National Court of Madrid v City of Westminster Magistrates Court & Anor [2007] EWHC 2059 (Admin). 14
  • 15. “…56. Authority for the proposition that a European Arrest Warrant 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. Castillo tells us that sufficient conformity requires a proper, fair and accurate description of the conduct alleged. I respectfully agree with the Scottish Appeal Court in La Torre that the need to describe the conduct fairly, properly and accurately is a matter of first principles of fairness… 58. The courts task -- jurisdiction, if you like -- is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002... 60. …The question to be asked is whether the description sufficiently conforms with the requirements set out in section 2 by giving proper, accurate and fair particulars of the conduct alleged to constitute the extradition offences…. 64. The 2010 warrant does not, therefore, give particulars of conduct capable of constituting a viable extradition offence, so that it does not contain a description of the conduct alleged which is proper, fair and accurate. It is not proper or fair because it is improper and unfair to seek the extradition of a person upon charges which the courts own document show cannot be proved in their most material particular; 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 arguably discrepant evidence”. So, conflicting evidence will not engage this analysis. However, where it is the case that the underlying evidence is available and, taken at its highest, cannot sustain the description afforded to it in the EAW, then this jurisdiction is firmly engaged. Proving misstatement3.31 It has never been the law, even under Part 1 of the 2003 Act, that in the event of a serious fundamental misstatement, going to the heart of an 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. 15
  • 16. 3.32 As stated above, the House of Lords had established in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL, per Lord Hope of Craighead at paras. 28 & 42, that section 2 ‘validity’ is a jurisdictional prerequisite of a Part 1 warrant 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 1 warrant within the meaning of that section and Part 1 of the 2003 Act will not apply to it.3.33 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 the provisions of the 2003 Act (including s202) can apply.3.34 The House of Lords in Dabas (supra) therefore confirmed the necessary implication that, 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 must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it….” (Dabas v High Court of Madrid (supra) per Lord Hope of Craighead at para. 50) (emphasis added). 163.35 Lord Hope was not stating a novel proposition . And it is a principle that continues to apply. In Zakowski v Regional Court in Szczecin, Poland [2008] EWHC 1389, Maurice Kay L.J. observed at paras. 3-4 that; “…[counsel for the Polish authority] submits that the passage that proscribes eking out by extraneous information is not part of the ratio in Dabas. However at the very least it is strongly persuasive authority, and no dissent to it is to be found in the other speeches. To my knowledge it has been followed in other cases in this court. I do not feel able to depart from it, nor would I wish to do so…”3.36 Thus, Dabas (supra) establishes that an ‘invalid’ EAW cannot be cured by reference to extraneous materials (because section 202 cannot apply).3.37 However, as this Court held in Murua (supra) the converse is not true. It is not the law that the ‘invalidity’ of EAW cannot be established by reference to extraneous materials.16 . See the following cases to similar effect; all considered by the House of Lords; Dabas v High Court of Madrid [2007] 1 WLR 145, DC per Jack J. at para. 45; Parasiliti-Mollaca v. The Deputy Public Prosecutor of Messina, Italy [2005] EWHC 3262 (Admin) per Hooper L.J. at para. 15; R (Pillar & Pillar) v The Provincial Court at Klagenfurt, Austria [2006] EWHC 1886 (Admin) per May L.J. at paras. 27-28. 16
  • 17. 3.38 Where an EAW appears ‘valid’ on its face, such that it can properly be described as a Part 1 warrant, unlike in the Dabas situation, section 202 does apply. Evidence may therefore be adduced which demonstrates that an EAW in fact contains errors (and is thus invalid).3.39 The courts are not slavishly bound by the content of an EAW, even in respect of the 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 this offence, and that EAW is therefore not valid...”. See, for example, Caldarelli v Court of Naples [2008] 1 WLR 1724, HL. “…Under article 1 of the Framework Decision the EAW is a 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 recognition. It might in some circumstances be necessary to question statements 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 1 territory, but ordinarily statements made by the foreign 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…”3.40 Thus it is that there exist numerous examples of the courts receiving and considering evidence which may demonstrate that an EAW in fact contains errors (and is thus invalid). See, for example, Michalak v The Circuit Court, Second Criminal Division in Olsztyn, Poland [2010] EWHC 2150 (Admin).3.41 As the court has repeatedly held, whether a given error has the effect of rendering an EAW invalid will be matter of degree. Minor errors do not affect validity. However, significant errors can. See, for example, Nowak v District court in Koszalin Poland [2009] EWHC 3519 (Admin) and Aryantash v Tribunal De Grand Instance, Lille, France [2008] EWHC 2115 (Admin) and Banasinski v District Court of Sanok [2008] EWHC 3626. Bad faith not necessary3.42 The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin) further confirms (at para. 59) that cases of misstatement are not necessarily to be categorised as allegations of bad faith and/or abuse of process17.17 . Pursuant to Bermingham & others v Director of the SFO and others [2007] QB 727 and R (The Government of the United States of America) v The Senior District Judge, Bow Street Magistrates Court & Ors [2007] 1 WLR 1157. 17
  • 18. 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 effect that the 18 principles of misstatement apply independently from those of abuse of process and are applicable regardless of the motivation behind the misstatement.3.44 Having registered (at paragraphs 26-28), the factual conclusion that the description of conduct in the request was not a proper, accurate or fair description, the High Court in Castillo went on to consider (at paragraphs 31-45) whether the misstatement had been the result of bad faith. Thomas L.J. concluded that; “...43. In my view, even giving the subsection a generous construction as suggested in Osman, I 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 the 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, it is of the utmost importance that the description of the conduct alleged is framed 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 terms in which it can be easily understood by the court in the state to which the request is addressed. 44. But although there was a lack of care on the part of those framing the request, I do not consider that it can be inferred that those responsible were deliberately exaggerating the position 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 of good faith. It is important to note that they made the Court dossier available to the applicants lawyer in Spain and have produced it to this Court; they have been entirely open. There is nothing to suggest that in continuing to maintain their position in the light of the new materials which the Spanish authorities themselves made available that they have acted other than in accordance with the advice of the CPS and counsel. 46. I am therefore unable to conclude in respect of charges 6 and 7 that there was a lack of good faith...”.3.45 Nonetheless, Thomas L.J. went on to conclude, at para. 46, that; “...46. ...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences under the law of the UK of attempted murder of the police officer and attempt to cause serious bodily injury to the police officer 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 judgment that determination cannot stand in the light of the wrong description contained in the request...”18 . Well established by then by the decision in R (Kashamu) v Governor of Brixton Prison [2002] QB 887, DC. 18
  • 19. 3.46 A defendant would only need to rely upon the principles of abuse of process or bad faith if the misstatement was not sufficiently important to the integrity of the extradition request. That is absolutely correct as a matter of principle;  Serious fundamental misstatement, going to the 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 dependent upon findings of bad faith.  Conversely, minor immaterial errors, not going to the heart of an extradition request (such as, for example, the misstatement of immaterial dates in the 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 Court should be able to act. Offence 1 (unlawful coercion – AA)3.47 The EAW avers that: “…On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting...”3.48 Whereas, the defence have been able to gain access to the Swedish court dossier19. Examination of that dossier reveals that an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  AA worked as a press and political secretary of the Swedish Association of Christian Social Democrats. As such, she helped to organise the seminar on 14th August 2010 at which the Appellant was invited to speak;  She offered her apartment for the Appellant to stay in from 11th-14th August when she was away, however she returned, early, on Friday 13th August. She had never met the Appellant before. They went out for dinner. They agreed that the Appellant would remain at AA’s apartment even though she had returned one day early;  They had sex on that first evening, 13th / 14th August. The Appellant’s physical advances were initially welcomed but then it felt awkward since he was “rough and impatient”;19 . Exhibit JR/4 to the witness statement of Jennifer Robinson. 19
  • 20.  “... they lay down in bed. [AA] was lying on her back and Assange was on top of her…”;  “…[AA] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom…”. She did not articulate this. Instead “…she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration…”;  “…[AA] tried several times to reach for a condom which Assange had stopped her from 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 Anna was reaching for and that he held her arms to stop her…”;  After a while Assange asked what [AA] was doing and why she was squeezing her legs together. [AA] told him that she wanted him to put on a condom before he entered her. Assange let go of [AA’s] arms and put on a condom which Anna found for him…” (emphasis added). Invalidity3.49 Thus, the summary contained within the EAW (“by using violence, forced the injured party to endure his restricting her freedom of movement”) is not accurate. Accurately described, the Appellant held AA during consensual sexual foreplay and, when actually asked to put on a condom, did so.3.50 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin).3.51 Murua and Castillo were clearly relied on in the Appellant’s oral and written submissions, and cited to the District Judge and supplied in the authorities bundle, yet the learned District Judge nowhere referred to Murua or Castillo in his Judgment, nor to the argument that the EAW did not contain a proper, fair and accurate description of the alleged conduct. In fact, the learned District Judge held that it was “unnecessary” to consider this “extraneous material”. In so ruling, the learned District Judge plainly erred in law (and consequently also in fact). 20
  • 21. 3.52 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 of the conduct alleged”. Section 643.53 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Section 64(3) of the 2003 Act provides that: “...(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)...”3.54 As the House of Lords laid down in Norris 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 1 of the Act is that described in the EAW and extraneous materials, ignoring mere narrative background but taking account of such allegations as are relevant to the description of the corresponding UK offence. The burden of proof is on the Prosecution to prove that the offences are extradition offences beyond a reasonable doubt (section 206 of the Act and Hertel v Government of Canada [2010] EWHC 2305 (Admin)).3.55 The High Court has shown itself to be rigorous in the application of the double criminality test (see, for example, Hertel v Government of Canada (supra); Elbeyati v Federation of Bosnia and Herzegovina [2011] EWHC 625 (Admin); Hoholm v Government of Norway [2009] EWHC 1513 (Admin)).3.56 “Rough and impatient” but consensual sexual foreplay does not constitute an offence pursuant to the Sexual Offences Act 2003.3.57 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 and: i. B does not consent, and ii. A does not reasonably (having regard to all the circumstances) believe that B consents. 21
  • 22. 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 the Swedish court dossier shows that AA told the police that she had consented to sexual intercourse. The description in the Swedish dossier does not permit 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 realised that she was physically resisting, he “…asked what [AA] was doing and why she was squeezing her legs together. [AA] told him that she wanted him to put on a condom before he entered her. Assange let go of [AA’s] arms and put on a condom which Anna found for him…”. The Swedish dossier demonstrates compliance with AA’s wish for a condom to be used as soon as that wish was articulated.3.59 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. He then asked her what she was doing and she said she wanted him to wear a condom. At that point he put one on. There is no allegation, then, of “violence”, of the kind required by section 75 of the Sexual Offences Act 2003, deducible or inferable from this material. 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 Stockholm, 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 intercourse with her without her knowledge...”3.61 Whereas, an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  During the same consensual sexual encounter mentioned above;  “…[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 edge of the condom was in the right place on the root of Assange’s penis…”; 22
  • 23.  “…[AA] and Assange continued to have sex and [AA] says that she thought she ‘just wanted to get it over with’…”;  “…After a while [AA] noticed that Assange pulled out of her and started to arrange the condom. Judging by the sound [AA] thought Assange was removing the condom. He then penetrated her again and continued the intercourse. [AA] again felt with her hand that the edge of the condom was, as previously, around the root of the penis which is why she let him continue….”;  “…A while later Assange ejaculated inside her and pulled out. When Assange removed the condom from his penis [AA] saw it was empty of semen. When [AA] later started to move her body, she noticed something was ‘seeping’ out of her vagina. [AA] understood rather quickly that it must be Assange’s sperm….”;  “…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 the subsequent ejaculation…”;  When asked, [AA] replied that she did not take a closer look at the condom, whether it was broken in the manner she believes but that she believes she still has the condom at home and will examine this…”.3.62 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 the allegation is founded solely upon AA’s subjective perception of these events, a fair factual summary might also therefore have made mention of the facts that:  AA permitted the Appellant to stay at AA’s apartment until Friday 20 August 2010.  AA threw a crayfish party at her apartment in the Appellant’s honour on the night of Saturday 14th August, which is the day after the alleged sexual assaults referred to in offences 1 and 2 above.  During the course of that party, she posted an online tweet reading “…sitting outdoors at 02.00 and hardly freezing with the world’s coolest smartest people, it’s amazing…” 23
  • 24. 3.63 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 30th August and answered all questions).3.64 However, a fair proper and accurate of this conduct would unquestionably have made mention of the subsequent laboratory’s conclusion, upon its examination of the condom in question, that the damage to the condom was not caused deliberately but was rather caused by “...wear and tear...” Invalidity3.65 Thus, again the summary contained within the EAW (“deliberately molested...acting in a manner designed to violate her sexual integrity...consummated unprotected sexual intercourse with her without her knowledge”) is not accurate. Accurately described, the Appellant used a condom as requested which, it seems, split.3.66 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Section 643.67 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Consensual sex in which a condom splits does not constitute an offence pursuant to the Sexual Offences Act 2003.3.68 However, for the avoidance of doubt, even if there existed a rational or reasonable basis to allege that the condom was deliberately split, the allegation nonetheless does not amount to an offence in consent-based English law. It does not engage the “presumed non-consent” provision of Section 76(2)(a) of the Sexual Offences Act 2003 because there is no allegation or available inference that he deceived her “as to the nature and purpose of the relevant act” because the relevant act is that of sexual intercourse: R v B [2007] 1 WLR 1567, CA. The District Judge therefore erred in his decision on this issue by entirely overlooking the effect of the case of R v B, although it had been cited to him; 24
  • 25. “...The obvious and straightforward way of reading that allegation [allegation 2] is that the complainant had made it clear that she would not consent to unprotected sex, and yet it occurred without her knowledge and therefore without her consent. Mr. Assange was aware of this. Unprotected sex is wholly different from protected sex in that its potential repercussions are not confined to disease 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, emphasis added)3.69 Section 76(2)(a) of the SOA 2003 conclusively presumes a lack of consent where “...the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act...” This is a restrictive provision, confined to cases where the deception concerns “nature and purpose.” AA was not deceived as to the “nature and purpose” of the sexual act, namely an act of sexual intercourse.3.70 As the Court of Appeal held in R v B, if the complainant agrees to the act of intercourse, this constitutes consent for the purpose of the SOA 2003 even if she would not have consented, had she known all of the facts. Offence 3 (sexual molestation – AA)3.71 The EAW avers that: “…On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity, i.e. lying next to her and pressing his naked, erect penis to her body...”3.72 Obviously, context is essential in an allegation of this nature. If a 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 the other hand, a husband tries to interest his spouse in sexual intercourse by that overture, even if the overture turns out not to be welcome at that particular moment, then clearly there can be no suggestion of a criminal offence having been committed, any more than if the spouse had pressed her naked body to her husband’s on an occasion when he turned out not to be interested in sex.3.73 In fact, an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  “…According to [AA], Assange tried to make sexual advances towards her every day after that evening when they had sex. For example, he touched her breasts. [AA] had rejected Assange on all these occasions which Assange had accepted…” 25
  • 26.  “…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 [AA]. [AA] says she felt it was very strange behaviour and awkward and had therefore moved to a mattress on the floor where she slept 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 the events mentioned in offences 1 and 2 above, and that this incident (offence 3) occurred whilst they were voluntarily sharing a single bed together. It is worthy of note 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 herself merely regarded it as “very strange behaviour and awkward”, requiring her simply to move to a mattress on the floor rather than to call in the police. Invalidity3.76 The summary contained within the EAW (“deliberately molested...acting in a manner designed to violate her sexual integrity... 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 whilst they were voluntarily sharing a single bed.3.77 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin).3.78 To present this, therefore, as an instance of “sexual molestation” and to describe it without any reference to the important detail in AA’s statement that this was basically just “strange” and “awkward” behaviour is to fall foul of the principle that the EAW should provide a “proper, fair and accurate description of the conduct alleged”. 26
  • 27. Section 643.79 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Bodily contact whilst consensually sharing a single bed does not constitute an offence pursuant to the Sexual Offences Act 2003. Offence 4 (minor rape – SW)3.80 The EAW avers that: “...on 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that 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, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity…”3.81 Whereas, an accurate summary of the conduct alleged by SW in her interview on 20th August 2010 would have been that:  SW became captivated by the Appellant when she 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 from an advertisement where and when the talk would be held and went along on Saturday 14th August 2010.  She attended the talk and helped by buying a computer cable for the Appellant. She then attended an intimate lunch attended by the Appellant and the journalists who had organised the talk. She was flattered that the Appellant flirted with her at the lunch.  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 see a film at the Cosmonova cinema. They started kissing 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
  • 28.  The Appellant did not contact her on the Sunday (15th 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 Enköping (where SW lived). “…She had suggested that they should check 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 16th August 2010, the Appellant and SW had consensual sex and fell asleep. 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 of the penis but she let it be…”. They fell asleep again. “…She was woken by his (4th) penetration of her. 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 tell 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 it, 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. They joked about what they would call the child. She asked whether he would call her and he said he would. 28
  • 29. 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 evidence20 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 concerning these and confirmed that “…she wasn’t fast asleep but wasn’t awake either…”. Invalidity3.83 The summary contained within the EAW (“deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”) is not accurate. Accurately described, in the context of repeated acts of consensual sexual intercourse, the Appellant penetrated SW whilst she was ‘half-asleep”, which penetration 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 the 2003 Act; The Criminal Court at the National High Court, 1st 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 is abrogated (Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53 per Denham J. at para. 21). Section 643.85 Further or alternatively, accurately described, the offence would also not satisfy the requirements of section 64 of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043.3.86 It is surprising, to say the very least, in the context of repeated acts of consensual sexual intercourse, penetration commenced whilst the partner was ‘half-asleep”, which penetration was met by consent, should be said to amount to rape.3.87 Of course, offence 4 is certified as a Framework List offences. Section 64(2) of the 2003 Act provides that:20 . See evidence of Katerina Sonja Christina Svensson. 29
  • 30. “...(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment...”213.88 It is settled law that, even in Framework list cases, conduct reasonably capable of constituting the extradition offence specified must be described in the Part 1 Warrant (Palar (Gheorghe) v Court of First Instance of Brussels [2005] EWHC 915 (Admin) per Laws L.J. at paras. 7-11). Where boxes are ticked the 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 these Framework List offences do not require a dual criminality check does not remove the court’s responsibility to satisfy itself that the conduct described in the warrant can reasonably qualify as a list offence.3.89 So, regardless of the breadth of consensual sexual conduct that Sweden terms ‘rape’ or ‘minor rape’22, conduct reasonably capable of constituting the Framework21 . In Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL, para. 5, Lord Bingham stated that “[u]nderlying the [framework] list is an unstated assumption that offences of this character will feature in the criminal codes of all Member States”22 . Sweden’s definition of rape as sex with a person in a “helpless state”, without a requirement that force was used or consent withheld, is in fact highly atypical of European states’ laws. Sweden’s Criminal Code, Chapter 6, Section 1 is not defined on the basis of a lack-of-consent by the victim. The word “consent” and indeed the concept of consent are not included in Swedish sexual offence law at all. Broadly speaking, the defining feature of these crimes is the escalating amount of violence, coercion, or threat that is used, except for one clause, known as “minor rape”, which is the one exclusively relied on in the EAW, which defines rape as a sexual act with a person who is in a “helpless state”. There appears to be no mens rea for this offence: once penetration and helplessness are proved it would be a factual decision for the court as to whether these had been “improper exploitation”. The elements of this crime do not correspond to what is generally defined as “rape” in national laws, the jurisprudence of the European Court of Human Rights or international law, all of which rely on the use or threat of force or a lack of consent by victims to define the criminality of the conduct. See, e,g,, the recently published study funded by the European Commission shows, Different systems, similar outcomes? Tracking attrition in reported rape cases across Europe. Jo Lovett & Liz Kelly. 2009. (London: CWASU, 2009, funded by the European Commission). Other European countries define rape as requiring either the threat or use of force or lack of consent by the victim (or both, but not neither). The European Court of Human Rights stated in M.C. v. Bulgaria (2005) 40 EHRR 20, that, in most European countries influenced by the continental legal tradition, the definition of rape contains references to the use of violence or threats of violence by the perpetrator. It noted however that there is “a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” (para. 163) and that investigations into rape in countries that are part of the Council of Europe, as well as the “conclusions” of such investigations, “must be centred on the issue of non- consent” (para 181). The Court held that although States that are members of the Council of Europe have a “wide margin of appreciation” in enacting rape laws, they are nonetheless limited 30
  • 31. List offence of ‘rape’ as understood in this country must nonetheless be described in the Part 1 Warrant.3.90 The Palar approach is one that is: i. Echoed in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) at paras. 50-54 ii. Followed in Northern Ireland; see Kingdom of Spain v Arteaga [2010] NIQB 23. iii. Reflected in the case law of the Republic of Ireland; see The Minister for Justice Equality and Law Reform v Tighe [2010] IESC 61. iv. Adopted in the Netherlands; District Court of Amsterdam 26 October 2010, LJN BO7884. Where there is a manifest discrepancy between the factual and legal description of the offence in the EAW and the ticked box, the Court will hold that the issuing judicial authority could not reasonably have designated the offence as a Framework List offence. For example, in District Court of Amsterdam 7 July 2006, LJN AY2623 the issuing judicial authority could not reasonably designate the offence of using drugs as the Framework List offence “illicit trafficking in narcotic drugs and psychotropic substances”. Using drugs does not equate with trafficking in drugs. Therefore, in the Netherlands, if the District Court finds that the issuing judicial authority has wrongly ticked the box of a Framework List offence, the Court will go on to verify the double criminality of the offence as described in the EAW. by the requirements of the European Convention, as interpreted by the Court. Some Council of Europe countries that do recognise the “helpless state” of the victim as an element of rape do so only where this is combined with either proof that force was used or threatened or that the lack of consent can be demonstrated. Other European countries require that the defendant himself put the victim into the helpless state in order for criminal sanctions to attach. See M.C. v. Bulgaria (supra) paras. 74, 79 and 102. The ECHR also noted that international criminal law definitions of rape, like those of national or regional systems, rely on either force or lack-of-consent as the basis of criminalisation. This, in the ECtHR’s view, “also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” (para. 163). As summarised in a leading manual on international criminal law (Robert Cryer et al, An Introduction to International Criminal Law and Procedure, 2nd Ed, 2010, p. 255) “…the crime of rape [under international law] has two components. The first is a physical invasion of a sexual nature. The second component is, according to some authorities, the presence of coercive circumstances, or according to other authorities, the absence of consent…”. In Prosecutor v Kunarac, IT-96-23&23- 1, para. 460 (approved on appeal, Prosecutor v. Kunarac, Case No. IT-96-23/1, AC (12 June 2002), para. 128) the ICTY reviewed the law of various legal systems and concluded that the correct common-denominator element was lack of consent of the victim, and that the same should be recognised under international law. In its words, “the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim ... The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim…”. 31
  • 32. 3.91 In the context of repeated acts of consensual sexual intercourse, penetration commenced whilst the partner was ‘half-asleep”, which penetration was met by consent, is: i. 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 ii. Not conduct constituting the offence of ‘rape’ as understood in this country (such that section 64(3) may not be relied upon).3.92 In fact, it is worthy of note 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 the 2003 Act. The facts of this case would remove the operation of section 75; stemming from several previous acts of intimacy. SW stated that they had sex several times that night, that on a previous occasion she noticed that he had not worn 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 was not wearing a condom.3.93 One of the reasons why Parliament enacted that the presumption in section 75(2)(d) is rebuttable (rather than placing it in the category of irrebuttable presumptions, set out in section 76 of the Act) was to preserve the possibility of cases where consent was reasonably presumed as a result of previous sexual relations. For instance, if a 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 irrebuttable, however, the husband would commit the offence of rape simply because consent was not given on the particular occasion. It should be added that this appears also to have been the position at common law; in 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 this occasion she pushed him away on waking, when she saw that a woman 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 R v 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
  • 33. Submission 24.1 As stated above, the House of Lords has repeatedly observed that section 2 ‘validity’ is a jurisdictional prerequisite of a Part 1 warrant 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 1 warrant within the meaning of that section and Part 1 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 Act4.2 Section 2(2) of the 2003 Act provides, so far as is relevant, that: “…(2) A European Arrest Warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains- (a) the statement referred to in subsection (3)…”4.3 Section 2(3) provides that: “…(3) The statement is one that— (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.”4.4 The requirement is unequivocal. Section 2(2) states that a Part 1 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 1 warrant and the provisions of that Part cannot apply to it…” (Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra) per Lord Hope of Craighead at para. 42). See also Lord Scott of Foscote at paras. 56-57; “…An arrest warrant which contains neither the section 2(3) statement nor the section 2(5) statement does not, it appears to me, comply with the requirements of the Act and, if that is right, would not constitute a warrant on which an extradition under Part 1 of the Act could be ordered…the state seeking extradition can be, and under section 2 of the Act is, asked to commit itself to the propriety of the extradition. These statements are not, in my opinion, formalities. They form an important part of the new extradition procedure…” 33
  • 34. The purpose and origin of section 2(3)(b)4.5 Section 2(3)(b) gives effect to Article 1.1 of the Framework Decision. The distinct purpose and origin of section 2(3)(a)4.6 However section 2(3)(a) contains an additional requirement, over and above the requirements of the Framework Decision.4.7 The Framework Decision permits the Member States to impose additional ‘due process’ requirements in its national legislation (see recital 12).4.8 Where the 2003 Act imposes additional 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 (Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra) per Lord Hope of Craighead at para. 24).4.9 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 In re: Ismail [1999] 1 AC 320, HL per Lord Steyn at p327G; “…It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of “accused” persons. It is also common 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 step which can fairly be described as the commencement of a prosecution…” (per Lord Steyn 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 extradition must not be sought merely or primarily in order for him to be questioned. An order for extradition must not, therefore, be made where the requested person is sought for the purpose of questioning, even if questioning is to take place in custody, and may be followed by a charge i.e. a prosecution.4.11 In Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra), Lord Hope of Craighead observed that; 34
  • 35. “…The fact that Part 1 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 continuing difficulty. Steps should be taken to remind the authorities in the category 1 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 of the Act…” (at paras. 43 & 48).4.12 Lord Scott of Foscote 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 warrant…” (at para. 54).4.13 The authorities on this issue were considered and affirmed in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin), where the Court stated, at para 16: “…If an EAW has been issued by a requesting state as an “accusation case” warrant, but its purpose is, in fact, the surrender of the requested 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 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote…” The combined effect of sections 2(3)(a) & (b)4.14 If Article 1.1 of the Framework Decision is construed as permitting an EAW to be issued prior to the commencement of proceedings and the formulation of an accusation, by the express addition of section 2(3)(a), Parliament has ensured that the 2003 Act is more restrictive than the Framework Decision; “as a necessary protection against an unlawful infringement of the 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.4.15 This was a deliberate decision to prevent the use of an EAW in cases where no decision had been made as to whether an accusation would proceed to trial and where the purpose was facilitate interrogation or investigation before any process of trial had started. It was repeatedly made clear by the Government that its intention was to maintain and strengthen the existing substantive protection for requested persons: 35
  • 36.  In response to a tabled amendment to replace ‘accused’ with ‘faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th 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 only for the purpose of putting the person on trial. It should not be possible for the purpose of interrogation or evidence gathering. Clause 2(3) is drafted to achieve that result. It does not talk about a person being suspected 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 wording proposed by the hon. Gentleman would 23 make no material difference…” . The amendment was accordingly withdrawn.  In response to a tabled amendment to clarify ‘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 Department government stated, on 25th March 2003, that “…With regard to accusation cases, both sides of the House are agreed that extradition should only be possible for the purpose of putting a person on trial. It should not be possible for the purpose of interrogation or for the purposes of evidence gathering…If Opposition Members examine the Bill, they will see that it already achieves that. A part 1 warrant is an arrest warrant that contains two key elements: the statement and the information. The contents of the statement and the information vary slightly depending on whether it is an accusation or conviction case. The information includes such details as the particulars of the persons identity or any other warrant, the circumstances of the offence, the particulars of the sentence that would be available to the court, or, in a conviction case, the sentence that has already been imposed. Of more importance for present purposes, however, is what is contained in the statement. If hon. Members look at clause 2(3), they will see that what is required, first, with conviction (sic) cases, is that not only must a person be accused of an offence in a requesting state, but the warrant must have been issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence. That is unambiguous language: it is not about interrogation, and it does not allow extradition for the purpose of evidence gathering or fishing expeditions; it is about putting a person on trial. No other meaning can be attached to those 24 words…”23 . Hansard, House of Commons, Standing Committee D, 9 January 2003, Col 52-55, Mr Ainsworth.24 . Hansard, House of Commons, 25 March 2003, Col 165, Mr Ainsworth. 36
  • 37.  Later on the same date, the Parliamentary Under-Secretary of State for the Home Department government stated “…[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 warrant will 25 clearly state that people are sought in order to bring them to trial…"  On the 2nd Reading in the House of Lords, on 1st May 2003, the Parliamentary Under-Secretary of State for the Home Department government stated “…The warrant will also have to be accompanied by a statement that, in accusation cases—cases where the person has not been convicted—the warrant has been issued for the purpose of putting the person on trial. That is important because there have been suggestions that EAWs—I shall use that shorthand form—will be used to bring people back for interrogation or evidence-gathering. In fact, the reverse is true. Our current legislation simply requires a person to be "accused of" of a crime. The Bill, for the first time, makes it clear that extradition to another EU country will be possible only for the purpose of putting 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 extradition is possible only for the purpose of putting a person on trial. That is a change from existing legislation which is silent on this point. If countries with the inquisitorial system want to extradite people for the purpose of interrogation that ought to be a 26 problem at the moment…”  In Grand Committee, on 9th June 2003, in response to a tabled amendment to replace ‘accused’ with ‘faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated that “…I think that all sides of the Committee are clear that in an accusation case—a case where the person has yet to be convicted—extradition should be possible only for the purpose of putting the person on trial; it should not be possible for the purpose of interrogation or evidence gathering. In fact, the Bill goes much further than our current extradition legislation. The 1989 Act, which governs how extradition requests to other European member states are handled, simply requires a person to be accused of an offence in the requesting state—no more, no less. The Bill goes beyond that by placing a positive onus on the requesting state to say that the persons extradition has been sought for the purpose of being prosecuted. I refer the Committee to Clause 2(3)(b), which states: "the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence". I do not believe that that could possibly be clearer. It is for the purpose of the prosecution that the person is being extradited. The legislation goes much further than the 1989 Act…It is clear that a Part 1 warrant under Clause 2(3)(b) can be valid only if it25 . Hansard, House of Commons, 25 March 2003, Col 207-209, Mr Ainsworth.26 . Hansard, House of Lords, 1 May 2003, Col 854 & 912, Lord Filkin. 37
  • 38. is for the purpose of a prosecution. A request from 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 (2)(4)(a) to (d), there was then a doubt in the district judges mind that the request was for a prosecution case—if he believed that it might be for a fishing trip or an interrogation—I should have thought that he had the power to strike out the application…The fact that since 1991 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 the extradition should be for a trial as a 27 result of a charge that has been levied…”. The amendment was accordingly withdrawn.  At Report stage, on 22nd October 2003, in response to a tabled amendment to replace ‘accused’ with ‘faces charges’, Baroness Scotland stated that “…I repeat that this Bill, as it is currently 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 looking at what the current extradition legislation says. Section 1 of the Extradition Act 1989 provides for extradition procedures where a person "is accused" of the commission of an offence. It goes no further than that on the subject and the phrase "is accused" is not qualified in any way. Your Lordships will know that that 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 very explicit. It goes on to say that a warrant must have been issued, "for the purpose of being prosecuted for the offence". Those additional words strengthen and underline the purpose of the 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 point very clear…we are making the provision stronger, not weakening it… As now, [in 1989] the term "accused" was in operation, 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 are already a number of instruments concerning mutual legal assistance and judicial co-operation with our international partners. The relevant authorities in each country have dedicated contacts and systems for such work. It is that route, rather than abuse of the extradition system, by which we co-operate with other countries on investigative work. If a warrant were issued for the purposes 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 warrant as defined in the Bill…. I have sought to explain that the Bill imposes a much more stringent test than we have at the moment. The words, "for the purpose of being prosecuted for the offence" are new and far more explicit than anything that can be found in previous extradition 28 legislation…” . The amendment was accordingly withdrawn.27 . Hansard, House of Lords, Grand Committee, 9 June 2003, Col GC21-24, Lord Filkin.28 . Hansard, House of Lords, Report, 22 October 2003, Col 1666-1671, Baroness Scotland. 38
  • 39.  On Third Reading, on 12th November 2003, in response to a tabled amendment to replace ‘accused’ with ‘faces charges’, the Parliamentary Under-Secretary of State for the Home Department government stated that “…We all know what we want the clause to do: to allow extradition to take place only 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 extradition where a person "is accused" of an offence. We currently operate under legislation which has the same terminology and thrust. The Extradition Act 1989 goes no further than that. Our present legislation uses the term "is accused". That has not given rise to a problem. However, the Bill goes further than the 1989 Act…trying to ensure that procedural reasons for avoiding extradition and facing trial for a properly laid charge can no longer be allowed to frustrate justice…However…the Bill also puts in place powerful safeguards…the power of the courts in this respect is strengthened…our present legislation uses the term "is accused". Notwithstanding that, the Bill goes further than the 1989 Act in saying that a warrant must have been issued, "for the purpose of being prosecuted for the offence". I do not see how that can be ambiguous in any way. Of course the court, which makes the decision, must be satisfied that that is the case. We do not anticipate any difficulties regarding fishing trips or warrants issued for investigatory purposes. Extradition in accusation cases is for prosecution. That is the basis on which extradition is currently run with our international partners and that was the basis on which the European arrest warrant framework decision was agreed. If a warrant 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 defined 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 trial will be met 29 with ECHR conditions. That is progress, not reversal…” . The amendment was accordingly voted against. Ismail4.16 The question for the Court under section 2(3)(a) of the 2003 Act, therefore remains the Ismail 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 Szekszard City Court, Hungary [2010] EWHC 237 (Admin) per Aikens L.J. at paras. 16-19; “…16. If an EAW has been issued by a requesting state as an "accusation case" warrant, but its purpose is, in fact, the surrender of the requested 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 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote…29 . Hansard, House of Lords, Third Reading, 12 November 2003, Col 1418-1422, Lord Filkin. 39
  • 40. 17. How does an English court decide, in the international context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "purposes of being prosecuted" (in the language of section 2(3)(a) and (b)), as opposed to a warrant which requests surrender of the requested person only for an investigation? The starting point for a consideration of this issue must be the decision of the House of Lords in Re Ismail [1999] 1 AC 320,.. 18. This "cosmopolitan approach" to construction has been approved in relation to Part 1 of the Act by Lord Hope of Craighead in the Armas case at paragraph 24. Lord Hope also emphasised, however, that the liberty of the subject (and indeed, we might add, that of foreign nationals) is at stake and so generosity must be balanced against the rights of persons 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 Steyns analysis, as applied to section 2(3)(a) and (b) must be as follows: first, the phrases "…is accused…of the commission of an offence" in paragraph (a), and "for the purpose of being prosecuted" in paragraph (b), are not to be treated as terms of art. Secondly, it is a question of fact whether the surrender sought is of an accused person and for the purpose of the requested person being prosecuted. Thirdly, it would be wrong to approach the construction of the phrases "accused" etc and "for the purposes of being prosecuted" solely from the perspective of English (or Scottish or Northern Irish) criminal procedure; in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment. Fourthly, it is necessary to adopt a purposive construction of the words "accused…of the commission of an offence" and "for the purpose of being prosecuted" to accommodate the differences between legal systems. Lastly, the question of whether a person is "accused" and is to be surrendered "for the purpose of being prosecuted" will require an intense focus on the facts in each case…”4.17 The United Kingdom is not alone in the imposition of a higher threshold 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 France [2007] Criminal Appeal No. 8, that; “…despite the difference in language there is in my view no substantive distinction between “a decision to try” [in the Gibraltan Act] and “accused” [in section 2 of the UK 2003 Act]…”. Extrinsic evidence is admissible4.18 This court summarised at paragraph 38 of Asztaslos v The Szekszard City Court, Hungary (supra) what it believed to be the effect of the authorities: 40
  • 41. (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 of an “accusation case” warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an “accused” within section 2(3)(a) of the Act. (3) 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. (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) If the warrant uses the phrases 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. (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 introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself. (7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases.4.19 Pursuant 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 properly be said that a criminal prosecution has already commenced, extrinsic evidence is admissible; Asztaslos v The Szekszard City Court, Hungary (supra) at para. 38; The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin). 41
  • 42. 4.20 The Appellant does not accept that Asztaslos and Bartlett were correctly decided. i. Asztaslos (which Bartlett followed) purported to summarise existing case law. The Appellant does not accept that the Court’s summary in Aszataslos of the effect of the authorities is entirely accurate. For example, in neither Vey nor Trenk (discussed below) did the High Court consider that factual and/or expert evidence regarding whether a 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, Aszataslos is of no greater precedential value than those, more numerous, authorities. ii. The effect of this aspect of Asztaslos is that, in the event of a serious fundamental misstatement, going to the heart of an extradition request, the 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. It is an approach that flies in the case of Caldarelli v Court of Naples [2008] 1 WLR 1724, HL. “…Under article 1 of the Framework Decision the EAW is a 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 recognition. It might in some circumstances be necessary to question statements 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 1 territory, but ordinarily statements made by the foreign 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…” iii. Moreover, there is an inherent illogicality about the Asztaslos approach. It permits the Court to act upon the true factual position where the EAW (fairly and properly) gives some hint as to the reality but prohibits the Court acting upon (and mandates extradition in the face of) the true factual position where the EAW (unfairly and improperly) conceals the position entirely.4.21 In any event, even if the Asztaslos hurdle is upheld, this EAW crosses it; in that it is ambiguous on its face; 42
  • 43. i. The only thing that this EAW says about the stage of the Swedish 30 proceedings is the usual pro-forma heading . However, in this case, the pro-forma heading is itself ambiguous. The EAW states that “…This warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution [“för lagföring”] or executing a custodial sentence or detention order…”. This translation of “för lagföring” as “prosecution” is wrong; As explained in the witness statement of the qualified and experienced linguist and translator, Mr. Christophe Brunski: “…4. I have been asked about the use of the word lagföring. The translation of the word lagföring as criminal prosecution in the EAW of 2 December 2010 is too narrow. Lagföring is a general term which relates to the entire legal process and can be used in either civil or criminal context. It is something of an umbrella term that encompasses other stages and legal procedures that are more strictly defined in and of themselves. There are more precise terms for prosecution in Swedish, namely åtala or åklaga, both meaning to prosecute or indict…” (emphasis added) ii. Properly translated, the EAW itself states, in the Swedish original, that it has been issued for the purposes of legal proceedings; not that it has been issued specifically for prosecution. That is ambiguous: Thompson v Public Prosecutor of Boulogne Sur Mer [2008] ACD 5. iii. Nowhere is that ambiguity cured in the EAW; for example, nowhere in the EAW is the Appellant referred to as an “accused” (unlike the requested person in Asztaslos). Instead, and, it is submitted, significantly, he is consistently referred to simply by his surname, “Assange”. In Aszataslos, the Court considered that the position was made clear in box (e) of the 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 the offence, and the preamble to the EAW does not refer unequivocally to “prosecution” but rather refers generally to the entire legal process.30 . “...This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order...” – mere failure to delete the alternatives is commonplace and gives rise to no submissions (see Mighall v Audencia Provincial da Palma de Mallorca Seccion Segunda [2010] EWHC 568 (Admin)). 43
  • 44. 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 be deficient in terms of section 2(4)(c) and (d) of the 2003 Act. The fact that an EAW provides details of conduct alleged and the relevant foreign law provisions does not remove the requirement for it also to contain the statement provided for in section 2(3) of the 2003 Act.4.23 The District Judge found, secondly, that the Swedish language version of the EAW was not equivocal, by virtue of the use of the word, “lagforing”, because it was the word used in all Swedish language versions of the EAW: “…As for the Swedish language version, ‘lagforing’ is the term used in the official Swedish language version of the Framework Decision. Mr. Robertson says [that] this is not to the point: it simply indicates that all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A request for the purpose of ‘lagforing’ is a lawful request for the purpose of the Framework Decision and the Extradition Act 2003…” (page 15, Judgment)4.24 It is submitted that the District Judge erred in excluding the possibility that there was indeed a systematic translation error in the Swedish language versions of the EAW. He had no basis for so doing, particularly 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 extrinsic evidence4.25 The “extrinsic” evidence clearly shows that this particicular EAW has in fact been issued for the purposes of securing the Appellant’s physical presence in Sweden so that he may be questioned there in person, not so that he may be put on trial.4.26 The Prosecutor herself has explicitly stated, on numerous 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 carrying out an interrogation of the Appellant. The Swedish prosecution service has repeatedly and publicly stated (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 prosecute him. 44
  • 45. 4.27 On 18th November 2010, the Swedish prosecutor explained her reasons for seeking an arrest warrant in these terms; “…Ny…told AFP: ‘I requested his arrest so we could carry out an interrogation with Assange…” “…We have exhausted all the normal procedures for getting an interrogation (and) this investigation has gotten to a point where it is not possible to go further without interrogating Assange himself,’ Ny said…”4.28 That is further confirmed by media reports of the Prosecutor’s public statements at the time; “…I requested his arrest so we could carry out an interrogation with Assange. That is the reason…” “…Director of Public Prosecution Marianne Ny said Thursday the reason for the request [for extradition] is that investigators have not been able to bring Assange in for an interrogation…”4.29 The prosecutor’s written submissions to the Svea court of appeal on 24th November 2010 further confirmed that she was; “…requesting the arrest of Assange is in order to enable implementation of the preliminary investigation and possible prosecution…”.4.30 Subsequently, in her communications with the Australian Embassy in Stockholm in December 2010, after the EAW was issued, the Swedish prosecutor wrote: “…Your request to obtain copies of the investigation against Julian Assange has been denied. This is mostly due to the confidentiality of the bulk of the requested documents which are only available in Swedish. Assanges lawyer Bjorn Hurtig received a copy of the majority of the investigation documents during his detention hearing in the Stockholm District Court on November 18. The same documents were also filed in court.31 The Stockholm District Court and defendant [sic] were verbally given a detailed explanation of the contents of the small number of documents not included in the written material that was submitted.32 The defence has asked for copies of all materials. Under Chapter 23, paragraph 18 of the Code of Judicial Procedure, I have 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 ongoing investigation into the matter. I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation…”.31 . This is the prosecution dossier or case file which includes the complainants’ statements.32 . These are the text messages shown to Mr. Hurtig. 45
  • 46. 4.31 On 16th December 2010, the Australian Ambassador to Sweden spoke directly to the Swedish prosecutor who conveyed that; “…if a decision is made to charge Mr Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage)…” (emphasis added)4.32 The Appellant has, to this day, not been “given the right 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 Swedish prosecutor and the Appellant’s consular representatives, in December 2010 (after the issuance of the EAW on 2 December 2010), with reference to the underlined passages above, that:  “A decision to prosecute the defendant” has not been made yet. In other words, the Swedish Prosecutor has not yet decided whether or not to prosecute Mr. Assange;  “A decision to charge Mr. Assange” has not yet been made. “…No such decision has been made at this stage…”.  “No such decision will be made until Assange and his lawyers are given an opportunity to examine all the documents”; an opportunity that has not yet been given and had not been given at 2 December. Exceptional case4.34 Alternatively, Asztaslos recognises (at point (7)) the possibility of extrinsic evidence being admissible in an ‘exceptional’ case even absent ambiguity in the EAW4.35 This case is entirely unlike Aztaslos itself or any of the cases discussed there. In this case, the Prosecutor herself has made clear, unequivocal public statements to the media and to the Australian High Commission to the effect that no decision has been taken yet as to whether to prosecute the 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. 46
  • 47. The issue4.36 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 1 warrant under the 2003 Act?4.37 As explained above, the answer to that question is two-fold.4.38 The Appellant accepts that, under the Framework Decision (and section 2(3)(b) of the 2003 Act) , the words ‘for the purposes of a criminal prosecution’ may be broad enough to encompass a prosecution that will commence in the future. Literally read, Article 1.1 can be interpreted as having elided the concepts of pre- charge investigation and post-charge prosecution. Therefore, the Appellant does not challenge under this heading the ability of EU member states 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 commenced.4.39 However, section 2(3)(a) of the 2003 Act goes beyond any provision of the Framework Decision and, applying In re: Ismail, deliberately restricts the circumstances in which the UK may execute EAWs to those where the criminal prosecution has already commenced; which is accepted by Sweden not to be the case here. By section 2(3)(a), the concepts of pre-charge investigation and post- charge prosecution are separated. Case law4.40 It is submitted that the case law under the 2003 Act clearly supports the analysis advanced above.4.41 From the earliest decisions under the 2003 Act, the courts have acknowledged that In re: Ismail continues to govern the application of section 2(3)(a). See, for example, Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2007] 1 WLR 124, DC per Smith L.J. at para. 19. The Courts have therefore also recognised that it is necessary to determine whether the criminal proceedings have actually begun (ibid, per Smith L.J. at paras. 21); there the Appellant’s committal for trial in Spain had already been ordered. A similar approach was taken in Dabas v High Court of Justice Madrid Spain [2007] 1 WLR 145, DC at paras. 9-16 per Latham L.J. In neither of those cases was the Appellant able to establish, by evidence, that the proceedings remained at the investigatory pre-charge stage. 47
  • 48. 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 recognised in The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett (supra), where Toulson L.J. observed that; “…49. Lord Hope noted in Cando Armas at 24 that the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision and that the task of statutory construction has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against 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 arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution…". The term "accused" does not appear in the Framework Decision. The 1989 Act section 1 referred to a person being "accused", but the Act made 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 the person is "accused" of the offence specified in the warrant and the requirement in s2(3)(b) that the warrant is issued for the purpose of prosecution, when read together, emphasise that it is not enough that the criminal investigation has reached a stage where the person concerned merely faces suspicion of having committed an office and that the authorities in the requesting state wish to be able to question him with a view to determining whether there is a sufficient case to put him on trial. The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial. This has to be made clear by the language of the EAW, however it is expressed…”4.43 Recognition of this also runs through a series of French cases under the 2003 Act where the matter has crystallised. The French language version of Article 1.1 of the Framework decision defines ‘criminal prosecution’ as ‘poursuites penales’. Therefore, the courts have held that it is incumbent upon the UK court to determine (at least where the issue is raised) whether ‘poursuites penales’ have actually commenced in France (Vey v The Office of the Public Prosecutor of the County Court of Montlucon, France [2006] EWHC 760 (Admin)). That is so even in a case, such as Vey, where the EAW asserts that the Appellant is ‘accused’ (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 declared ‘mise en examen’. Therefore, in Vey (supra), Moses L.J. observed that; 48
  • 49. “…39. In order to reach a conclusion it is important to bear in mind the principles identified by Lord Steyn in 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 327). In the instant case the appellant contends that she is wanted 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 appellants expert, M. Serres, Avocat à la Cour de Paris, contends that she is not mise en examen. 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 not mise en examen… 55. It seems 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 from enquiring into the merits of a proposed prosecution in France. Rather, such analysis is necessary in order to determine whether it has been established that extradition is sought for the purpose of being prosecuted. Resolution of that issue is not easy when the process of questioning may itself be part of a judicial criminal procedure… 59. Whilst, I repeat, it is not for this court to question or examine the adequacy of the evidence which forms the foundation of the request for extradition, it is the function of this court to be satisfied as to the stage at which the proceedings have reached. Absent clarity remains the risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. Whilst that dichotomy might become blurred because of the difference in penal procedure, mere suspicion should not found a request for extradition…”4.45 In Fletcher v The Government of France [2007] Criminal Appeal No. 8, the evidence showed that the Appellant had not yet been declared mise en examen. The Supreme Court of Gibraltar therefore held that (even though criminal proceedings had commenced), no decision had been taken to try Ms. Fletcher. The procedural stage required by Re: Ismail and 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).4.46 In 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; 49
  • 50. “…16. Mr Yeo has a much stronger argument, that as an accusation warrant it is invalid because it does not state that the warrant is issued with a view to his arrest and extradition for the purpose of being prosecuted (my emphasis). There is all the difference in the world between being wanted for questioning and being wanted for the purpose of being prosecuted. See, for example, Lord Scott in Office of the Kings Prosecutor, Brussels v Armas [2005] UKHL 67 at paragraph 54… 17. The English translation of the warrant refers 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 the warrant, which uses the expression "poursuites pénales". We were also referred by Miss Rebecca Hill, who has appeared for the respondent, to the judgment of Maurice Kay LJ in McCormack v the Tribunal de Grande Instance, Quimper, France [2008] 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… 21. Miss Hill submits that the reference to poursuites pénales in the French version of the warrant is sufficient to clarify any uncertainty arising from 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 to be found at the top of page 4 of the warrant, under the heading "Procedure": "the preliminary investigation initiated by the Examining Magistrate is still in progress regarding Robert THOMPSON, but in the meanwhile other persons involved were placed under formal examination and appeared before [the] court or were sentenced in spite of being 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 wanted for the purpose of being prosecuted. Section 2(3)(b) requires the warrant to contain a statement to that effect, and in my view this warrant does not. I am not persuaded, absent any evidence, that the mere appearance of the words "poursuites pénales" in the French warrant is sufficient to cure the deficiency. 22. Moses LJ had touched on the issue of complying with section 2(3)(b) 2 years before Maurice Kay LJ in Vey v The Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin)….”4.47 In the same case, Aikens J. held that; “…31. It is clear, taking the wording of the warrant, as a whole, that this is what Lord Hope in the Armas case at paragraph 27 called an "accusation case" warrant as opposed to a "conviction case" warrant. But, as Lord Hope emphasised at paragraphs 27 and 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 terms of Part 1 of the Act will not apply to it. Accordingly, there will be no jurisdiction to send the person 50
  • 51. 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 (Admin), at paragraph 15 per Smith LJ.32. The terms of section 2(2)(a) and section 2(3)(a) and (b), which apply to arrest warrants in "accusation" cases, are clear. A Part 1 warrant in an "accusation" case is an arrest warrant which will contain the statement [in sections 2(3)(a) and (b)] …Given the statement in recital (5) of the Council Framework Decision of 13th June 2002 that the principal object of that decision is to abolish "extradition" between Member States and to replace it with a system of "surrender" between judicial authorities, the reference to "extradition" in section 2(3)(b) may seem a little odd, but that is the wording of the United Kingdom statute.33. 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 repeat it. It is an important passage. In two recent cases in the Divisional Court concerning European arrest warrants, problems have arisen over the issue of whether the European arrest warrant in question stated unequivocally that it was issued by the requesting judicial authority for the purpose of prosecuting the person named in the warrant for the offence identified in the warrant. Those cases are, chronologically, Vey v The Office of the Public Prosecutor in County Court of Montluçon, France [2006] EWHC 760 (Admin) and McCormack v the Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin).34. In each case the dichotomy considered was whether the person whose extradition being sought was an accused as opposed to someone who was merely wanted for questioning. (For the distinction, see the speech of Lord Steyn in re Ismail [1999] AC 320 at page 327). In both the Divisional Court cases I have referred to, this court considered that the question of whether the arrest warrant stated unequivocally that the person whose extradition was sought was for the purpose of being prosecuted turned upon the stage the criminal proceedings had reached in the French criminal court concerned. In each 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 warranted the conclusion that the person whose extradition was sought was an accused as opposed to somebody who was merely wanted for questioning.35. In deciding whether the requirements of section 2(3)(b) of the Act are fulfilled, the court in each case did so on the basis of the wording of the warrant, such extraneous material that it was prepared to admit (such as the further information from the requesting authority sought under Article 15 of the Framework Decision) and expert evidence on French Criminal procedure. In this case we have no extraneous material or expert evidence. 51
  • 52. 36. The heading of the European arrest warrant in the English version in this case states 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 Framework Decision. That refers to a person being arrested and surrendered "for the purposes of conducting a criminal prosecution". That language would obviously satisfy the statutory test under section 2(3)(b), as explained by Lord Scott in the Armas case. 37. Miss Hill points to the French version of the warrant in the present case, which uses the case phrase "soit arrêtée et remise aux autorités judiciaries aux fins de lexercice de poursuites pénales". She points to the fact that this accords with the French language version of the pro-forma warrant annexed to the Framework Decision. So, she submits, that should be sufficient to satisfy the statutory test in this case. The problem, however, is that there is nothing in the remainder of the warrant, including the section in box E on procedure, which leads to the unequivocal conclusion that the purpose of the arrest and extradition of Mr Thompson is for conducting a criminal prosecution against him. Indeed, both the English and French versions of the statement concerning procedure 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 1 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(2)(b) EU": see criminal proceedings against Pupino (Case C- 105/03) reported at [2006] QB 83, which was quoted in the speech of Lord Bingham of Cornhill 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 that in this case those requirements are fulfilled…”.4.48 In Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille, France [2009] EWHC 2830 (Admin), the High Court found, on the facts of that case, that; “…In my view it is plain in this case that extradition is sought for the purpose of prosecuting the appellants. There is nothing in the warrants to suggest that they are wanted for questioning only.…Significantly, in Thompson, 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 accomplices were placed under formal examination. It is not surprising that, given that contrast, this court said that the clear implication was that Thompson had not been placed under formal examination. Scott Baker LJ said that that being the case, he would find it difficult to conclude on the scant 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 contained in these warrants seeking the extradition of these appellants…” [paras. 18-19, per Cranston J.] 52
  • 53. “…I 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 from Thompson, where the outcome turned on the particular ambiguity in the warrant. Where a warrant 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 warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning…” [para. 22 per Scott Baker L.J.].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 1132 (Admin), where Davis J. held that; “…5. The essential issue is whether or not this case has crossed the boundary from investigation into prosecution. Both counsel are agreed on that. It is not seriously disputed that here the appellant may be described 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: first, that by no standard has the applicant been charged, although it is accepted that that of itself cannot be conclusive of the issue before me; second, he is at least wanted for questioning; and third, it cannot be disputed but that, by the standards of Czech criminal law, the preparatory proceedings leading up to a possible charge have not been concluded…” 6. Miss Nice, appearing on behalf of the respondent, accepts that the European Arrest Warrant cannot, of itself, be conclusive of the matter. She accepts that it is for the country seeking extradition to establish its case that an individual should appropriately be extradited, although 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 considered supplementary materials concerning the status of the Czech proceedings] The other answers would tend to indicate that what is desired is that he be questioned further before a decision is made as to whether or not to prosecute him… 11. Pausing there, that makes clear, as is made clear elsewhere, that before a criminal charge can be brought the prosecuting attorney first must judge the legitimacy of the suspicion of the committed crime. It seems to me that there is considerable force in the observation of Mr Jones here that while there may be [an] abundance of material to show the police had reasonable grounds for suspicion (and indeed the material shows that they could not have sought to arrest Mr Trenk had they not had reasonable suspicion under Czech law), still it remains for the prosecuting attorney to assess the materials before deciding whether or not the reasonable suspicion was justified and charges should be brought. That has not happened here… 53
  • 54. 17. …Ismail sets out the general approach that this court should adopt. True it is that Ismail was a decision under the previous Act, but nevertheless what is said there remains relevant and instructive. I accept that a broad, generous and purposive approach to construction should be adopted in this context, and likewise this court should adopt a cosmopolitan 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 stage in her argument, 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 realise that the concept of notice of institution of prosecution simply does not have its literal meaning as translated, in the sense that it does not mean that a "prosecution", in any substantive sense of the word, has actually started in the Czech Republic. On the contrary, it is in substance a formal initiation of the investigatory process, by way of preliminary procedures, enabling Mr Trenk to be arrested in consequence.19. …[A]s I read the 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 necessary preliminary procedures, second, after the necessary preparatory procedures and third, at the conclusion of the preparatory procedures, when a prosecuting attorney has reviewed the evidence and decided that charges should be brought. None of that has happened here. Miss Nice points out that has not happened here just because Mr Trenk has chosen to absent himself from the Czech Republic. So be it. That does not justify the court in departing from the requirements of the 2003 Act. The position is thus different from, for example, McCormack where police and Public Prosecutor had concluded their investigations and had passed the matter on by requisitoire introductif to the examining Magistrate.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 further to enable the prosecuting authority to decide whether or not a sufficient case has been established to justify 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 that, under Czech law, is not the test. It is the prosecuting attorney who has to decide whether a case can be commenced. That has not happened just because questioning of Mr Trenk has not taken place. Indeed, it is clear enough to me that the reason why Mr Trenk is required to be extradited to the Czech Republic is to enable him to be questioned further to see whether or not charges can or should be brought. 54
  • 55. 21. Accordingly, and expressing myself relatively shortly, it does seem to me, with all respect, that the District Judge did reach a conclusion which he should not have reached and he ought to have decided this matter differently. Therefore I will allow this appeal…” The decision of the District Judge4.50 The District Judge concluded, “I 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 concerning prosecution.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 In re: Ismail [1999] 1 AC 320, HL, namely, have the competent authorities in the foreign jurisdiction have taken a step which can fairly be described as the commencement of a prosecution?4.52 The evidence 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 make a properly informed decision, no prosecution has commenced. In fact, there exists very good evidential reasons in the present case why a prosecution may never be commenced.334.53 The evidence of Mr. Sven-Erik Alhem, a Swedish former prosecutor, before the District Judge on 8th February 2011, unchallenged on this point, confirms that: i. Section 20 of the Swedish Criminal Code states categorically and in terms that “…upon the conclusion of the preliminary investigation, a decision on whether to institute a prosecution shall be issued.” ii. The Svea Court of Appeal issued the 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”.4.54 There was ultimately no dispute that the preliminary investigation in this case has not concluded, 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, shortly after the EAW had been issued:33 . See, for example, the evidence of Goran Rudling (concerning websites and Twitter) and Marie Thorn (concerning SMS messages and money). 55
  • 56. “…I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case…”34.4.55 The learned District Judge rightly observed that “…I cannot say when or what step was taken that can fairly 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 overemphasised. It is the only House of Lords’ 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 the other. It requires “a step which can fairly be described as the commencement of a prosecution”. Since Swedish law does not describe the step of seeking to arrest and interrogate as the commencement of a prosecution, and in fact expressly precludes that description, it is inappropriate for an English court to take a different view.4.57 Lord Steyn’s term “cosmopolitan approach” does not mean a “lowest European denominator” or broad brush sense or feeling from the evidence that a foreign prosecutor 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 issuing 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 defendant various opportunities to provide further evidence and to re- direct her investigations. She cannot make a judgment part-way 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 prosecute, this does not alter the fact that at this stage the law does not permit her to make that decision, and the objective of the warrant can only be to extradite for arrest and interrogation.34 . The Appellant was not, and has not been, afforded access precisely because no prosecution has been commenced. 56
  • 57. The time for assessment of validity4.58 The District Judge observed that; “…I am not helped by comments Ms. Ny may have made before the warrant was issued. Her position may have changed 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.4.60 Secondly, it is established law 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 of a 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.4.61 Put another way, an invalid EAW cannot be cured by subsequent information. See above paragraphs 3.32-3.36 and Dabas v High Court of Madrid per Lord Hope of Craighead at para. 50).4.62 Thus an EAW issued for an invalid purpose, or at an inappropriate stage in proceedings, cannot be cured by the 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 of the 2003 Act can be properly assessed). Paschayan4.63 Moreover, this is not a case comparable to, say, Paschayan v Government of Switzerland [2008] EWHC 388 (Admin) at paras. 27-28 or McCormack v Tribunal de Grand Instance, Quimper, France [2008] EWHC 1453 (Admin), where a decision to charge had been taken and only remained unimplemented because, under the law of the Requesting State, the case could not legally proceed until the defendant was physically there.4.64 In her statement of 4th February 2011, the Swedish prosecutor states that: “…7. According to Swedish law, a formal decision to indict may not be taken at the stage that 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 interrogated…” 57
  • 58. 4.65 The unchallenged evidence before the District 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,  Video-link,  In person at an Embassy in the United Kingdom, or  In person in the United Kingdom by means of Mutual Legal Assistance provisions. The EU Convention on Mutual Legal Assistance in Criminal Matters (2000, C197/01) and Protocol (2001/C326/01) make arrangements for a witness in one country to give evidence in proceedings in another.4.66 The Appellant has offered all of the above. The Swedish prosecutor has declined them all; without substantive reason. There exists no legal or procedural obstacle to the Swedish authorities taking the Appellant’s evidence now in any of the above forms and ending the preliminary investigation. In the Swedish Supreme Court decision in (2007) NJA s.337, a Swedish national resident in Dubai was suspected on reasonable grounds of tax fraud. The investigation, like here, was at the preliminary investigation stage. The Supreme Court ruled that an arrest warrant in absentia was disproportionate 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 2A4.68 This entire issue can be assessed another way.4.69 Prior to being charged (or a step being taken that can fairly be described as the commencement of a prosecution), a criminal suspect is someone to whom the Mutual Legal Assistance treaty provisions (and Chapters 2-3 of Part 1 of the Crime (International Co-Operation) Act 2003) are capable of applying. His account may (and should) be taken pursuant to those provisions. 58
  • 59. 4.70 So long as that option is available 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. The Framework Decision as an EU instrument is now subject to the provisions of the Charter of Fundamental Rights, pursuant to Article 6(1) of the Treaty 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) v Secretary of State for the Home Department [2010] EWCA Civ 990.4.73 Article 52 of the Charter provides that: “…Scope of guaranteed rights: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others…”4.74 The Charter provision makes proportionality a key feature of the Framework Decision and applies to cases like this in which UK courts must apply European law: the UK has not been relieved of this duty by Protocol No. 30 (R (NS) v Secretary of State for the Home Department (supra)). The EAW is a draconian instrument which affects individual liberty, freedom of movement and private life: it should only be resorted to if other, less invasive, measures for achieving the general interest have failed or are unavailable. If they are available, the court 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 borne by the UK (Framework Decision, Article 30).4.75 The principle of proportionality is well established and a High Court in Germany has recently held, specifically in respect of EAW, that “…the principle of proportionality of criminal offences and penalties … is a th general principle of the Union’s law…” (GPPS v C, 25 Feb. 2010).4.76 The Council of the European Union in 2008 issued the “European Handbook on how to issue the EAW”, chapter 3 of which (“The principle of Proportionality”) states; 59
  • 60. “…When it comes to issuing an EAW, in each case an evaluation should be made which takes into account all the various elements, including the seriousness of the offence, the measures and resources to be deployed in the executing state and, in particular, the fact that it involves depriving an individual of his or her th freedom…” (Council of Europe document 8216/2/08 18 June 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.4.78 No floodgates argument arises from the application of Article 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 reason, they are not (such as by virtue of the operation of the illogical ‘ambiguity’ threshold in Asztaslos), then Article 52 provides redress.4.79 If the court permits this extradition 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 handbook. 60
  • 61. Submission 35.1 Section 2(2) of the 2003 Act provides, so far as is relevant, that: “…(2) A European Arrest Warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains- a. the statement referred to in subsection (3) and the information referred to in subsection (4)…”.5.2 Section 2(4) of the 2003 Act provides, so far as is relevant, that: “…(4) The information is-… c. particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence…”.5.3 This requirement gives effect to the mandatory requirement of Article 8.1(e) of the Framework Decision 2002/584/JHA which provides that: “…The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex: …e. a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person…”. The requirements of section 2(4)(c)5.4 Section 2(4)(c) of the 2003 Act, and Article 8.1(e) of the Framework Decision, requires a valid EAW to contain particulars of four things; i. What is alleged to have happened [in s2(4)(c) terms “particulars of…the conduct alleged to constitute the offence” / in Article 8.1(e) terms “a description of the circumstances in which the offence was committed”]. ii. The defendant’s participation in the offence; the defendant’s role in what happened [in s2(4)(c) terms “particulars of the circumstances in which the person is alleged to have committed the offence” / in Article 8.1(e) terms “a description of the…degree of participation in the offence by the requested person”]. iii. When the alleged offence occurred [in s2(4)(c) 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
  • 62. iv. Where 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”].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. 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). ii. A balance must be struck between the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures (para. 7). iii. 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 extent of the allegations against him in relation to that offence (para. 7). iv. The language of the 2003 Act somehow connotes the specificity or lack of it demanded in the particulars for a count on an indictment (para. 8). v. The amount of detail may turn on the nature of the offence (para. 7). vi. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place (para. 7). vii. Allowance must be made where an EAW has been translated (para. 8).5.6 As stated above, the House of Lords has also emphasised the principle of strict compliance with the requirements of section 2 of the 2003 Act (and Framework Decision); “…The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the 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 entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute…” (Office of the King’s Prosecutor, Brussels v Cando Armas & another (supra) per Lord Hope of Craighead at paras. 23-24). 62
  • 63. The present EAW5.7 In respect of allegation 3, the EAW does not provide any meaningful averment as to when the offence occurred, stating that the offence occurred “on 18 August 2010, or on any of the days before or after that date”, which could refer to any date in the calendar.5.8 The importance of Article 8.1(e) of the Framework Decision lies in the rule of specialty (at Article 27). A defendant must be in a position to assert the rule of specialty, following extradition, so as to prevent enlargement of the case against him beyond that for which he has been extradited35. In short, an EAW needs to be sufficiently particularised so as to enable the Appellant to assert before the Court of Sweden that he was extradited only in respect of conduct between specified dates X and Y. In this case, should he be prosecuted in Sweden for other 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.5.9 Thus, whilst a bracket of time may suffice for the purposes of section 2(4)(c), that bracket must have a definite beginning and end date. See R (Pillar) v Bow Street Magistrates’ Court [2006] EWHC 1886 (Admin) per May L.J. at paras. 17 & 19; “...17. The warrant omits any reference to the time frame of the alleged conspiracy. The only reference that exists as to any date is that one distinct aspect of the conduct is said to have commenced in 1997. Miss Dobbin submits that the absence of those details the warrant 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 information as to the time and place of the conduct alleged must be regarded as fundamental to the validity of the warrant… 19. 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 of a date "since 1997", which is unspecific and again relates only to part. So one part has no date, the other part no place and the whole is, to my mind, irretrievably vague, if it is taken alone…”35 . See La Torre v Her Majestys Advocate [2006] HCJAC 56, at para. 92. 63
  • 64. Submission 46.1 Section 2 of Act provides, in pertinent part, that: “…(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory … (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory…”6.2 The “designated authority”, 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 “judicial authority” (emphasis added). A prosecutor is, by definition, not a judge, and hence not a judicial authority. To describe a prosecutor as a “judicial authority” is a contradiction in terms. The latter must, as an essential feature, be independent and impartial. Prosecutors are partisan. On ordinary principles of statutory construction, a warrant issued by a prosecutor is not a warrant issued by a judicial authority. The words of the 2003 Act6.4 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 European 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 of the competent judicial authority under its law”.6.5 However, that is not reflected in the 2003 Act. There is no definition of “judicial authority” in the 2003 Act, and no provision which deems “judicial authority” to be e.g. “any law enforcement authority” or “any authority notified 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
  • 65.  It is this 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).  Far from there being any contra-indications in the Act itself, the plain meaning is supported by a ejusdem generis construction of Section 202(4)(a), which refers to ratification of a document “signed by a judge, magistrate or other judicial officer of the territory”. The Parliamentary intent6.6 Moreover, examination of Hansard confirms that Parliament specifically intended (and assured) that judicial authority would mean a judge.6.7 The phrase ‘judicial’ was not included in the Extradition Bill as originally drafted. It referred merely to ‘an authority of a category 1 territory’. In response to an tabled amendment in Standing Committee to insert the term ‘judicial authority’, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th January 2003, that; “…Article 6 [of the Framework decision] could not be clearer. There is no suggestion, nor even the possibility, that a police officer can issue a European arrest warrant without being in breach of the Framework decision…There is no attempt to renege on any commitments that were given in previous Committees36.36 . A reference to Undertakings given to the European Scrutiny Committee by the Parliamentary Under-Secretary at the Home Office, Mr. Bob Ainsworth MP, in January 2002. In the course of examining the draft framework decision, the Committee raised concerns about what authority would be competent, under the framework decision, to issue and execute the European Arrest Warrant. At the time at which the European Scrutiny Committee first considered the draft framework decision, the draft provided for the European Arrest Warrant to be issued and executed by a judicial authority. The Committee was concerned that, without an agreed definition of judicial authority, it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded from recognition and enforcement under the framework decision. Article 1 of the draft framework decision was subsequently amended to refer to the European Arrest Warrant as being a court decision issued by a member state. The Committee inferred from this reference that the judicial authority would have to exercise recognisably judicial functions in an independent manner. The European Scrutiny Committee asked the Parliamentary Under-Secretary if it followed from article 1 that the UK courts would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. The Under-Secretary responded that it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European Arrest Warrants as they will not be recognised’ although he pointed out that it will be for each member state to designate a judicial authority competent to issue such warrants. He later confirmed that, under the Extradition Bill, the UK judicial authority will not only have the ability but will certainly not execute a European Arrest Warrant that comes from anything other 65
  • 66. 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 under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country…The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for many years. Extradition requests come from a variety of sources…the examining magistrate at Liege, the magistrate at the public prosecutor’s office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palocios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change…the only people who are allowed to issue a European arrest warrant are those who have that function under the framework document. That document spells out that such people must be judicial authorities. I accept 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 will be 37 satisfied that the sort of abuses that they believe may arise cannot do so…”6.7 In response to those concerns, the government introduced an amendment on Report “…to make it absolutely clear that all European arrest warrants must come from a judicial source. The relevant provisions can be found in subsections (7) and (8) of Clause 2…”386.8 In Grand Committee in the House of Lords, a further amendment was tabled to add the words “after a judicial decision” so as to; “…make it clear—as it is in 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 amounts 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 of a public prosecutor. If that could be shown—at least beyond reasonable doubt—I apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill; namely, that this is a judicial authority—and, as my noble friend the Minister mentioned, information as to who the authorities are will be sent by the than a judicial authority in another European state…the whole thing will need to be spelt out within the Bill’. He gave similar assurances to European Standing Committee B. Concerned at the breadth of cluse 2 of the Bill, the Home Affairs Committee reported that We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner’.37 . Hansard, House of Commons, Standing Committee D, 9 January 2003, Col 47-49, Mr. Ainsworth.38 . Hansard, House of Lords, Grand Committee, 9 June 2003, Col GC12, Lord Filkin. 66
  • 67. other state—and that that judicial authority must be acting, as it normally would, in terms of a procedure which can be said to be a judicial decision…”6.9 In resisting that proposal, the Parliamentary Under-Secretary of State for the Home Department government stated, on 9th June 2003, that; “…As I said in response to the earlier debate, there will be a central register in which the approved issuing authorities in each country will be listed so that it will not be unduly difficult for the UK designated authority to carry out the necessary checks. I should also make it clear that, as I said earlier, we expect to receive incoming European extradition requests from exactly the same people as we get them from at the moment. We currently receive requests from a wide range of judges and magistrates across the European Union, and we see absolutely no reason why 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 meant by that. As I have already explained, all warrants will have to be issued by a judicial authority. I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding a judicial office—such as a judge or magistrate—is a judicial decision. So I cannot see what the amendments would add to the Bill. I certainly hope that my noble friend is not suggesting that in order to qualify as a "judicial decision" the decision to issue a warrant should be taken in court with some kind of formal procedure or hearing. That may be what my noble friend and his supporters want, but that is not how we do things in the United Kingdom. It is not our practice. An arrest warrant can be issued, on application from the police, by a justice of the peace. Clearly the justice needs to be convinced that the arrest would be justified, but he does not have to hold any kind of formal hearing for that purpose. Nor does that process need to happen in court. After all, a justice can sign an arrest warrant at home in his pyjamas if necessary, and there have been occasions when that has happened… …justices take every warrant application very seriously and that they give them very careful consideration. That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities 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 properly listed. As I said, we do not see the need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. Yes, it will be a judicial process in the sense that the noble Lord, Lord Stoddart, understands, but that process will be similar to ours. We expect it to operate very similarly to ours…”39.39 . Hansard, House of Lords, Grand Committee, 9 June 2003, Col GC35-37, Lord Bassam of Brighton. 67
  • 68. 6.10 The amendment was accordingly withdrawn. The ECtHR approach6.11 This interpretation of “judicial authority” is compatible with Convention rights and any interpretation that extends judicial authority to prosecutors and police is not. This is clear from the European Commission 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 recognised by legal systems throughout 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 decision6.12 The framework decision itself does not on its face contradict the plain meaning of “judicial authority” in the Act. Preamble 5 describes “a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions …” whilst Article 1(1) refers to the EAW as a “judicial decision” and Article 1(3) guarantees respect for fundamental rights and legal principles – among which the distinction between judicial and executive power is perhaps the most fundamental. The principle of mutual recognition upon which the EAW is based is, in this context, 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: “…The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation…” The supremacy of the 2003 Act6.13 In any event, 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 legislation40. The UK parliament deliberately40 . For example, courts in the Netherlands do not apply provisions of the Framework Decision directly: see District Court of Amsterdam 16th February 2007 LJN BD2830. 68
  • 69. chose to implement the Framework decision indirectly by a statute that deviated from a number of its provisions and, whilst it may be used for background purposes in cases where the UK 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. The 2003 Act contains a number of such 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 the House of Lords which held that the construction of the 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 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less…” (Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL per Lord Bingham of Cornhill at para. 8). ii. However, where the “wording of Part 1 of the 2003 Act does not…match that of the Framework Decision to which it seeks to give effect in domestic law…the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty…” (ibid. per Lord Hope of Craighead at para. 24).6.16 This is precisely one of those cases envisaged by Lord Hope. Article 6 of the Framework Decision was not transposed directly into UK law. The 2003 Act could have provided that “A Part 1 warrant is an arrest warrant which is issued by an authority of a category 1 territory 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 UK, as executing member state, to determine whether a Part 1 warrant is issued by suitably independent – judicial – body (albeit premised upon the – now erroneous – assumption that other EU member states understood that ‘judicial’ meant ‘judicial’). The 2003 Act is abundantly clear. Section 2(2) requires a Part 1 warrant issued by a judicial authority, irrespective 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
  • 70. 6.17 To have a warrant accepted and acted upon in the UK, the 2003 Act mandates that it must on its face have been issued by a category 1 judicial authority and not by a category 1 politician or policeman or prosecutor or lay person or intelligence officer or any other partisan state functionary to whom local law may give competency and who may for that reason have been notified to the secretariat under Article 6(3) of the Framework Decision. Enander6.18 This issue was taken in the court below but not argued or mentioned in the judgment presumably because the District Judge was bound by the decision in Enander v the Governor of HMP Brixton and the Swedish National Police Board [2005] EWHC 3036 (Admin) (“Enander”). In his Skeleton Argument for the court below, the Appellant “reserved his position on whether Enander was decided per incuriam”.6.19 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 designate its own “judicial authority” (per Gage L.J. at para 24). Any other interpretation of the term “judicial authority” would undermine the mutual trust and cooperation between member states (at para 25) and cause uncertainty and practical difficulty (per Openshaw J. at para 30).6.20 The High Court used the Framework Decision not as an aid to construing the term, “judicial authority”, but as an alternative to construing it at all. In short, Article 6 was read as authorising an approach whereby there is no enquiry by the Court at all into the meaning of “judicial authority”: section 2 is emptied of meaning, and simply refers to whatever body the foreign state 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 “judicial authority”, section 2 is construed so as to avoid any enquiry into the matter.6.21 Significantly, however, the decision in Enander was arrived at without consideration of: i. Hansard, or ii. The guidance of the House of Lords in Cando Armas (which was delivered the following day). 70
  • 71. 6.22 The High Court was called upon to determine 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. Cando Armas now shows that the High Court was wrong to use a (deliberately) unincorporated provision of the 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; “…approached [the difference between section 2 and Article 6] on the assumption that…these were regarded by Parliament as a necessary protection against an unlawful infringement of the 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 independence of the issuing authority, then “mutual trust and cooperation” is strengthened rather than undermined – there can 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.6.24 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 from a government agent or agency. Due process is meant to ensure that deprivation of liberty 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 the individual, keeping him in custody or on restricted bail, preventing an independent judicial authority discharging him until the provisions of the Extradition Act have been complied with. Preamble 12 of the Framework Decision promises respect for fundamental rights and for the principles of the Charter of Fundamental Rights of the European Union: it is therefore appropriate and proportionate that the lengthy encroachment on individual freedom inevitably suffered by the EAW suspect should be authorised by a judicial rather than an executive authority.6.25 In sum, Enander was wrongly decided and should not be followed (R v HM Coroner for Greater Manchester Ex p. Tal [1985] QB 67).6.26 Enander did not seek to take his case to the House of Lords, notwithstanding that he was entitled 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 return to Sweden for his own reasons. 71
  • 72. Conclusions7.1 Section 26 of the 2003 Act provides, insofar as is relevant, that: “…(1) If the appropriate judge orders a persons extradition under this Part, the person may appeal to the High Court against the order… (3) An appeal under this section may be brought on a question of law or fact. (4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made…”7.2 Section 27 of the 2003 Act further provides that: “…(1) On an appeal under section 26 the High Court may- (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that- (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the persons discharge. (4) The conditions are that - (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the persons discharge. (5) If the court allows the appeal it must- (a) order the persons discharge; (b) quash the order for his extradition…”7.3 For any or all of the above reasons, it is submitted that the learned District Judge ought to have decided the 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 Appellants discharge. Accordingly, this appeal should be allowed and the Appellant should be discharged. 72
  • 73. Wednesday, 29 June 2011 Ben Emmerson QC Mark Summers Matrix Chambers London, WC1R 5LN 73

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