QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NORBERT BINDER
|- and -
|PUBLIC PROSECUTOR'S OFFICE, MEMMINGEM, GERMANY
Hannah Hinton (instructed by CPS Extradition Unit) for the Defendant
Hearing date: 15 January 2014
Crown Copyright ©
Mr Justice Wyn Williams:
"Determination of the competent judicial authorities
(1) The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
(2) The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that state.
(3) Each member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
The decision of the Supreme Court in Assange v Swedish Prosecution Authority  2 AC 471
"4. Miss Rose contends that a "judicial authority" must be a person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a "judicial authority". In effect, Miss Rose's submission is that a "judicial authority" must be some kind of court or judge.
5. Miss Clare Montgomery QC for the Prosecutor contends that the phrase "judicial authority", in the context of the Framework Decision and other European instruments, bears a broad and autonomous meaning. It describes any person or body authorised to play a part in a judicial process. The term embraces the variety of bodies, some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of which do not. In some parts of the Framework Decision the term "judicial authority" describes one type, in other parts, another. A Prosecutor properly falls within the description of "judicial authority" and is capable of being the judicial authority competent to issue an EAW under Article 6 if the law of the states so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision."
At paragraph 76 Lord Phillips concluded that the phrase was not confined to meaning some kind of court or judge and embraced a prosecutor. That conclusion was underpinned by 5 specific reasons which were articulated in paragraphs 60 to 75. The first reason given by Lord Phillips was that had the Member States intended to restrict the power to issue EAWs to a judge that would have been stated expressly in the Framework Decision. As Lord Phillips observed such a change in arrangements "would have been radical, and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957." The second reason given by His Lordship was that he found it hard to see why the majority of Member States would have wished to restrict the ambit of the issuing judicial authority simply to courts and judges. In formulating his third reason Lord Phillips considered the significance of the fact that the final version of the Framework Decision did not provide a definition of a judicial authority which included a public prosecutor within the ambit of the phrase whereas an earlier draft had defined judicial authority as including a public prosecutor. About this change Lord Phillips said:-
"65 In the third place I find it likely that the removal of the definition of judicial authority as being a "judge or public prosecutor" was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or public prosecutor. Member States had existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State which involved their domestic arrest procedures. They also had existing procedures for giving effect to extradition requests. The authorities involved in these procedures were not restricted to judges and prosecutors. It seems to me to be likely that the removal of a precise definition of judicial authority was intending to leave the phrase bearing its "sens vague" so as to accommodate a wider range of authorities."
Lord Phillips' fourth reason related to the language of parts of the Framework Decision other than article 6. In his view there were provisions of the Decision which suggested that the meaning of judicial authority was not restricted to a court or judge. The fifth reason was as follows:-
"67 In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". The EAW process of the Member States was subject to reports by the Commission and Evaluation Reports on the working of the EAW prepared by experts and submitted to the Council (see below). The practices of the Member States in relation to those they appointed as issuing and executing "judicial authorities" coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision."
" I too conclude, in common with the great majority of the court, that the term "judicial authority" within the meaning of the Framework Decision is properly to be understood as including public prosecutors. Although, like some others, I am inclined to base this conclusion principally upon the fifth of Lord Phillips of Worth Matravers PSC's reasons (paragraphs 67-71 of his judgment), I would certainly not discount entirely the various other strands of reasoning on which he relies. On this first (and, to my mind ultimately critical) issue in the appeal there is nothing more I wish to say."
"106 It seems to me likely, therefore, that the Court of Justice [a reference to the European Court of Justice] would find that the role of prosecutors in issuing arrest warrants for those whose extradition was sought, traditional in many Member States before the introduction of the Framework Decision, was not extinguished by its provisions. That preliminary conclusion is strongly fortified by the consideration that a significant number of Member States have nominated public prosecutors as issuing judicial authority since the Framework Decision has come into force. Once again I agree with Lord Mance JSC that, alone, is not a conclusive factor. Article 31.3(b) of the Vienna Convention on the Law of Treaties requires that subsequent practice to the application of the treaty (which establishes the agreement of the parties regarding its interpretation" (emphasis supplied) is to be taken into account.
108 The critical question in the present appeal is whether there is a sufficiently widespread and uncontroversial practice in relation to issuing authorities to allow that provision to come into play in the case of prosecutors who issue European arrest warrants. As I understand it, Lord Dyson JSC's conclusion that there is has been accepted by Lord Mance JSC and I agree with both.
109. Even if I had been of the view that the necessary pre-conditions for the activation of Article 31.3(b) were not present, the possible relevance of such practice as exists would not have ended there. As Lord Mance JSC has pointed out, Brownlie in Principles of Public International Law, 7th Ed (2008) suggests that subsequent practice by individual parties, falling short of showing that there has been universal agreement as to the propriety of the nomination of judicial authorities is nevertheless of "some probity value". The continuing widespread use of prosecutors as issuing judicial authorities, without demur from the European Commission, and with apparent acceptance by Member States who have nominated only judges or courts as their own issuing judicial authorities must, on any showing, indicate strongly that the Framework Decision does not exclude prosecutors from the category of issuing judicial authorities.
110. Lord Mance JSC has concluded that the "European legal answer" (para 246) is obscure. The legal answer in this context is, presumably, that to be given to the question, may a prosecutor be an issuing judicial authority for the purposes of the Framework Decision. While I am prepared to accept that the answer to that question is not immediately obvious, I would certainly not be disposed to agree that the answer is obscure, if by that term it is meant that its meaning is uncertain or doubtful. In my view there really can be no doubt that the Framework Decision permits prosecutors to be issuing judicial authorities for European arrest warrants and must therefore be taken as having intended that prosecutors should fulfil that role."
"151. I would, therefore, dismiss this appeal. To interpret an issuing judicial authority as including a public prosecutor gives a meaning to that phrase which i) accords with the interpretation repeatedly applied and acquiesced in by the Member States and approved by the Council and the Commission ii) is supported by other analogous tests and iii) promotes rather than frustrates the principle of mutual recognition of trust which underpins the Framework Decision. On the other hand, the only arguments advanced by Ms Rose in support to the contrary interpretation are, for the reasons I have given, without foundation.
152. There was some discussion before us as to the essential characteristics of an issuing judicial authority. Miss Montgomery suggested that it is sufficient that the person or body is authorised to perform some function in the judicial process. But that is too wide. Without descending into the absurdity of including court ushers and other similar court officials, it seems to me that this definition would certainly be wide enough to include the police and officials employed by a Ministry of Justice. And yet it seems to be accepted (at any rate as revealed by the Council Reports) that neither the police nor a Ministry of Justice official can be an issuing judicial authority, although, so far as I am aware, the reasons for this have not been articulated. The Divisional Court said at para 47 of its judgment that a warrant issued by a Ministry of Justice which the Member States have designated as an authority under Article 6 would not be a valid EAW. Such a warrant would "self-evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial". They did not, however, explain what these principles are or why, notwithstanding that in a number of Member States the Ministry of Justice has been designated as their judicial authority, these designations are of no effect.
153. I think that the Divisional Court were wise not to attempt a comprehensive definition. I'm inclined to think the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive. As we have seen, the fundamental objective of the Framework Decision was to replace a political process with a non-political process. This could only be achieved if the new "judicialised" system was operated by persons who de facto operated independently of the Executive. But it is not necessarily to explore this question further, since, for the reasons that I have given, I am satisfied that a public prosecutor is an issuing judicial authority within the meaning of article 6(1).
154. The reasons that I have given coincide with the fifth reason given by Lord Phillips PSC (power 67-71). I would however like to comment on the other reasons given by Lord Phillips PSC for dismissing the appeal."
The decision in Bucnys
"17. Mr Knowles QC for the Ministries of Justice on the present appeal submits that, although Lord Phillips PSC said that he was leaving the point open, he had in effect answered it in reasoning with which other members of the majority concurred. Mr Knowles points out that Ms Montgomery's "wider submission" in Assange was that, although "judicial authority" had a "broad and autonomous meaning", this meaning describes "any person or body authorised to play a part in the judicial process" (Lord Phillips PSCs' judgment, at paragraph 5); and that at para 76 Lord Phillips PSC concluded that the "issuing judicial authority" bears the wider meaning for which Ms Montgomery contends and embraces the Prosecutor in the present case.
18. Mr Knowles's submissions reads more into these passages in Assange than can be justified. By "authorised to play a part in the judicial process" must have been meant more than simply "authorised" to issue a European arrest warrant domestically and designated to the secretariat under article 6(3). Otherwise there would be no autonomous content at all. Even if one takes the "sens vague" of "authorite judiciare" which Lord Phillips PSC approved in paras 18 and 65, this does not make an unlimited (only a "wider") range of authorities eligible to be regarded as judicial. Further, and most importantly, it is clear that the ratio of Assange was and is confined to the status of public prosecutor, and that other members of the majority cannot be taken as necessarily having agreed with all that Lord Phillips PSC said on a number of points: see, for example, Lord Walker of Gestingthorpe JSC, at para 91, Lord Brown of Eaton-under-Heywood, at para 95, Lord Kerr JSC generally and Lord Dyson JSC, at paras 155-159 and 171."
"34. The second ground of challenge to the request therefore fails, and I turn to consider whether the Ministries can be regarded as judicial authorities for the purposes of issuing the request in issue on these appeals. The question is whether the concept of "judicial authority" embraces any category of persons beyond courts, judges, magistrates and (in the light of Assange 2012 2 AC471) public prosecutors, and if so in what circumstances. Mr Knowles argued for a positive answer, relying on all five reasons from which Lord Phillips PSC based his judgment in Assange. But only one of those reasons received any real endorsement even in the other majority judgments in that case: …..
35. I add only, with regard to the third reason, that I agree with Lord Dyson JSC (para 158) that the removal from the December 2001 Counsel redraft of the Commission's September 2001 proposal of definitions of "judicial authority" in terms of a judge or public prosecutor provides no basis for concluding that it was intended to broaden the scope of the concept beyond judge or public prosecutor. It is at least as likely that there were considerable reservations in some Member States about appearing to accept a judge or public prosecutor as an appropriate judicial authority for the purposes of both issuing and executing European arrest warrants, as would have been the effect of the definitions included in the September 2001 proposal. Any further conclusion will be speculation. As regards the fourth reason, I also agree with Lord Dyson JSC (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to choose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority. This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors."
"45 In my opinion, the concept of judicial authority falls simply to be interpreted in the teleological and contextual manner that profess Anthony Arnull indicates in The European Union and its Court of Justice, 2nd ed (2006), pp612 and621, as I stated in para 229 of my judgment in Assange  2 AC 471. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision-making and to enhance confidence in a system which was going to lead to a new level of mutual co-operation including the surrender of member states' own nationals to other member states. The special emphasis in recital (6) on the importance of this concept in the context of execution of European arrest warrants indicates a possible difference between its significance in the contexts of issuing and executing a European arrest warrant. Likewise, article 19 with its distinction between the competent executing judicial authority and "another judicial authority" which may need to be involved at the hearing stage "in order to ensure the proper application of this Article and of the conditions laid down".
46 This leads to consideration of the features which an authority must as a minimum have, if it is to be regarded as an issuing judicial authority for the purposes of the Framework Decision. Mr Lewis submits that they are three: (i) it must be functionally independent of the executive, (ii) it must be capable of making a judicial decision and (iii) it must be separate from the designated central authority, a separation assumed by recital (9) and article 7. In Assange, at para 153, Lord Dyson JSC was "inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive". In the Administrative Court in the present cases, Aikens LJ considered  1 All ER 1220, para 98, that a ministry of justice could be an issuing judicial authority for a conviction warrant if the person in the ministry making the decision was "sufficiently independent of the executive for the purposes of making that 'judicial decision'" and thought, in this connection, that there was "much force in Lord Phillip PSC's point [in Assange  2 AC 471, paras 62-64] about the requisite safeguards being predominantly in the antecedent process which forms the basis on which the conviction European arrest warrant is issued".
47 I would make three points in relation to these observations. First, Assange was a case of an accusation warrant and Lord Dyson JSC noted, at paras 156-157, the difficulty about Lord Phillip PSC's point, which constituted his second reason in Assange (see paras 62-64): there is no guarantee that a domestic accusation warrant would be based on any judicial decision at all, and the implications of a European arrest warrant are likely to be more serious than those of a domestic arrest warrant. Second, a test which would mean seeking to ascertain whether one or more individual decision-makers within a ministry was or were "functionally", even though not "institutionally", independent of the ministry in which they served, may be regarded as problematic, both in principle and because of the evidential issues to which it could give rise. On no view, in any event, would the minister of justice signing on behalf of the Ministry of Justice of Lithuania appear to satisfy any such test. I need say no more than that on these appeals. Third, Aikens LJ must I think have had this point in mind when he went on, immediately after his above quoted observations, to focus his conclusions on the need for a prior court request that a European arrest warrant should be issued, and on the consequent restriction of any positive ministry role to determining that effect be give to such a request:
"If the national law concerned provides that the pre-condition to the issue of a conviction European arrest warrant by the Ministry of Justice is that there must be not only an enforceable judgment and sentence but also a request from the sentencing court that a conviction warrant be issued, then the scope for executive interference is much reduced if not entirely eliminated": para 98.
This postulates a situation in which the ministry's decision to issue a conviction European arrest warrant has by law to be and is firmly founded on a judicial decision by the responsible court that such a warrant is appropriate. Consistently with this approach, both ministries of justice sought in their submissions and evidence to meet the criteria suggested by Aikens LJ.
48 Accusations and conviction warrants do not necessarily raise the same considerations. A conviction warrant must necessarily have been preceded by a domestic court process. There is less scope for discretion in relation to the issue of a European arrest warrant following from a conviction. If the court responsible for the conviction or execution of the sentence considers that the European arrest warrant should be sought, and the issue of such a warrant follows from its decision, then the issue of the warrant can be regarded as the result of a judicial decision, even though the issue takes place by and in the name of a different authority. The key question is whether the issuing authority can in such a case be regarded as a judicial authority for the purposes of the Framework Decision or 2003 Act, when it is, as here, the ministry of justice or a section within that ministry. Mr Lewis and Mr Jones submit that it cannot, on the basis that a body, which cannot act of its own initiative and which simply "box ticks", cannot be a judicial authority taking a judicial decision. They also point out that the two ministries have also been designated as their respective countries' "central authorities" for the purposes of article 7, in circumstances where both recital (9) and article 7 contemplate that such a body will be separate from and have a limited role in proving practical and administrative assistance to the competent judicial authorities. Before going further into these questions, it is however relevant to look more closely at the evidence and facts in the cases under appeal."
"A warrant of arrest issued by a German court forms the basis for every EAW. The investigating judge at the local court or the court responsible after the charge has been brought issues a domestic warrant of arrest on the basis of German law…..The warrant of arrest is subsequently passed to the investigating public prosecutor's office for execution. The public prosecutor's office issues an alert for the arrest of the accused via the competent police authority (Land or Federal Office for Criminal Investigation). If an alert is to be issued for the arrest of the accused within the purview of the Framework Decision on the European arrest warrant, the investigating public prosecutor's office issues a European arrest warrant. It completes the validating certificate in the annex to the Framework Decision….and transmits this certificate to the competent Land or Federal Office for Criminal Investigation for the search alert to be issued. This certificate and the court warrant of arrest then form the basis for the alert notice. As soon as the accused has been apprehended, the European arrest warrant replaces the extradition request to the executing state. Extradition is conducted on the basis of the European arrest warrant. The arrest is thus made on the basis of the court-issue domestic warrant of arrest. Consequently, with regard to the decision on which the warrant is based – box b) of the certificate on the mutual recognition of domestic warrants of arrest, i.e. of the European arrest warrant – the corresponding type of warrant must be stated. The decisions referred to are judicial decisions. Measures which involve the deprivation of freedom, in particular a domestic warrant of arrest, are therefore taken by a court. The public prosecutor's office only assumes responsibility for executing the judicial decision."
The letter goes on to point out that the investigating public prosecutor is generally subordinate to the Land Justice Authorities and acts on instructions. However a European arrest warrant is not issued by a Land Justice Ministry or by the Federal Ministry of Justice but solely by the public prosecutor's office responsible for the case.
"As a rule these have transferred the execution of the powers resulting from the Framework Decision for the submission of outgoing requests (article 6(1)) to the public prosecutor's offices of the Länder and to the regional courts…"