Wednesday, 2 November 2011

Assange - European Arrest Warrants

Judgment has been handed down in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) - President of the Queens Bench Division (Sir John Thomas) and Ouseley J.  It is interesting, for reasons which will become apparent, that the respondent in the case is referred to as a "Prosecution" authority.  Mr. Julian Assange is fighting against a request by Sweden for his extradition using the European Arrest Warrant procedure and the High Court has ruled in favour of his extradition.

Grounds of appeal:

Mr Assange based his appeal on 4 grounds which were all rejected by the court:

1. The European Arrest Warrant was not issued by a Judicial Authority
2. Offences 1-3 in the Warrant did not meet the dual criminality test - (i.e. criminal in England and Sweden)
3. The condition in the Extradition Act 2003 s.2(3) was not satisfied as Mr Assange was not an "accused"
4. The issue of the warrant and subsequent proceedings were not proportionate.

With regard to Ground 1, the court noted
that the warrant had been issued by a prosecutor and Mr Assange argued that a prosecutor lacked the necessary independence to be a "judicial authority."   The court considered the meaning of this term in the context of the Extradition Act 2003, the European Framework Decision on the European Arrest Warrant and also under the jurisprudence of the European Court of Human Rights.  It was held that the prosecutor was a judicial authority for these purposes but the court expressed a view that a warrant should be subject to more intense scrutiny when issued by a prosecutor (a party to the case) without the involvement of a judge.  However, on the actual facts, Mr Assange had appeal in Sweden on the question of whether he could be tried in absence (see para 51 of the judgment).  The High Court considered that this meant that the actions of the prosecutor had been subjected to independent scrutiny in Sweden.  (See paras. 25 - 53 of the judgment).  This reasoning appears to be  somewhat odd since it seems fortuitous for the Swedish prosecutor that Mr Assange had appealed in this way and that a Swedish court had therefore happened to consider the matter.  In the event that an appeal to the UK Supreme Court is allowed, it will be interesting to see whether this aspect of the judgment is upheld.  It certainly seems to be arguable that the meaning to be given to the phrase "judicial authority" is a point of law of general public importance - see Extradition Act 2003 s.32(4) for the grounds on which an appeal to the Supreme Court lies.

Background to the European Arrest Warrant:

The European Arrest Warrant is essentially a fast-track process for extradition between EU Member States.  It was introduced by what is known as a "Framework Decision."   Prior to the Lisbon Treaty (in force 1st December 2009), the European Union was constructed on the basis of "three pillars" - (a) the European Communities Pillar; (b) Common Foreign and Security Policy and (c) Police and Judicial Co-operation in Criminal Matters.  It was under (c) that the framework for the European Arrest Warrant arose.

The Treaty of Amsterdam inserted a new Title VI into what was then the Treaty Establishing the European Communities.  This permitted the adoption of framework decisions for the purpose of approximation of the laws and regulations of the Member States.  These were binding on Member States as to the result to be achieved but left to individual States the method of implementation in national law.  Hence, framework decisions had similarities with "Directives" but could not have "direct effect"- (for an interesting case on the "indirect effect" of framework decisions see Criminal Proceedings against Maria Pupino - Case 105/2003).  One of the areas where approximation of laws was considered appropriate was extradition between EU Members States.  The eventual Framework Decision was issued in 2002.   In the U.K., effect was given to it via the Extradition Act 2003.

Links to other posts and articles:

For a good overview of the appeal decision, see UK Human Rights Blog and The Guardian article by Joshua Rozenberg is interesting.

Earlier Law and Lawyer posts:

Law and Lawyers has previously touched upon European Arrest Warrants - principally at 16th January 2010 (The European Arrest Warrant: an arrested development) and 9th August 2010 (The ever expanding influence of the EU in criminal matters).  The on-going Assange case has been discussed at 8th December 2010 (How the EU continues to expand its influence over criminal matters),  14th December 2010 (Julian Assange and bail), 12th January 2011 (Miscellany of News),  24th February 2011 (Julian Assange Extradition hearing ...") and 5th March 2011 (Assange is to appeal).

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