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The judgment of the High Court is not yet reported Extradition – Extradition Act 2003 - European Arrest Warrant - public prosecutor - whether a judicial authority

The cause occupied the time of the High Court (Administrative Court) for 10 hours and 31 minutes (excluding delivery of reserved judgment)

In The Supreme Court of the United Kingdom

ON APPEAL

FROM HER MAJESTY’S HIGH COURT OF JUSTICE (ADMINISTRATIVE COURT) (ENGLAND AND WALES)

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

BETWEEN:

JULIAN PAUL ASSANGE Applicant

v

SWEDISH PROSECUTION AUTHORITY

Respondent

AGREED STATEMENT OF FACTS AND ISSUES

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Extradition request

1. The Appellant is an Australian citizen and is 40 years of age (born 3rd

July 1971).

2. The extradition of the Appellant has been requested by a Public

Prosecutor in Sweden. Sweden is designated a Category 1 territory

pursuant to section 1 of the Extradition Act 2003 (by The Extradition

Act 2003 (Designation of Part 1 Territories) Order 2003, SI. 2003 No.

3333). Part 1 of the Extradition Act 2003 (“the 2003 Act”) applies, as

amended by schedule 13 to the Police and Justice Act 2006 and by Part

6 of, and Schedules 7 & 8 to, the Policing and Crime Act 2009.

Chronology

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

4 During his visit he had sexual intercourse with two women [AA and

SW]. After AA and SW spoke to each other and realised that they had

both had intercourse with the Appellant during the currency of his visit

in circumstances where respectively they had or might have been or

become unprotected against disease or pregnancy, SW wanted the

Appellant to get tested for disease. On 20th August 2010 SW went to

the police to seek advice. AA accompanied her for support. The police

treated their visit as the filing of formal reports for rape of SW and

molestation of AA.

13/p329-334, 485

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5. The reports were filed as:

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

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

6 On 20th August, police related the reports to the on-duty assistant

prosecutor (Maria Kjellstrand) over the telephone who, at 5pm, ordered

that the Appellant should be arrested.

7. A preliminary investigation was commenced and both women were

interviewed (SW on 20th August, and AA on 21st August). At the

conclusion of those interviews, on 21st August 2010, the case was taken

over by the Chief Prosecutor of Stockholm (Eva Finne). Having

assessed the evidence, she cancelled the arrest warrant against the

Appellant; she having made the assessment that the evidence did not

disclose any offence of rape (against SW).

8. 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’.

9. On 25th (sometimes erroneously referred to as 23rd) August 2010, the

Chief Prosecutor determined that:

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12/p255-256 13/p502-503

12/p254-257

12/p260-261

13/p329-334

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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’

only).

10. 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.

11. Meanwhile, on 27th August 2010, the counsel for SW and AA 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.

12. The Appellant instructed Mr Hurtig to act for him as counsel. Between

8th – 14th September 2010, the Appellant’s counsel requested that he be

interviewed. That request was deferred by the prosecutor.

13. 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

7/p118

7/p110 12/p282 13/p431 19/p664

7/p110 12/p280, 282 13/p431-432, 441 19/p664

12/p261 12/p263, 266, 276-278

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take place in the next few days but was told it could not because the

investigator was ill.

14. On 21st September 2010, the prosecutor contacted the Appellant’s

counsel by text message to ask whether the Appellant could be made

available for an interrogation on 28th September 2010. The date was

provisionally agreed.

15. On 27th September 2010, the Appellant’s counsel advised the

prosecutor that he had been unable to contact the Appellant. The

prosecutor stated that she would consider how to proceed. Later that

day, the prosecutor ordered that the Appellant should be arrested.

17. On 30th September 2010, the Appellant’s counsel was advised of the

existence of the arrest warrant. He advised the prosecutor that the

Appellant was by then abroad. The Appellant had left Sweden on 27th

September 2010. The Appellant offered to return to Sweden for

interview on Sunday 10th October or on any date in the week

commencing 11th October 2010. The Sunday was rejected as

inappropriate. The week commencing 11th October 2010 was later

rejected as being too far away.

18. The Respondent believed that the Appellant was attending a lecture in

Stockholm on 4th October 2010. Plans were made to detain him then

but that information proved inaccurate.

19. Therefore, on 5th and 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

interview (telephone interviews with suspects abroad are lawful in

7/p110 12/p282-283 13/p432, 441 19/p664-665

12/p284 13/p432-433, 442 19/p665-666

13/p441

13/p441-442

13/p441

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Sweden and qualify for the purposes of the Preliminary Investigation).

That offer was declined, the prosecutor insisting that the Appellant be

interviewed in person in Sweden.

20. At around the same time, the prosecutor stated that, notwithstanding the

extant arrest warrant, that the Appellant was ‘not a wanted man’ and

would be able to attend an interview ‘discreetly’.

21. 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.

22. Statements issued by the Respondent throughout September, October

and November confirmed that the investigation was ongoing and that no

decision had been taken to charge or prosecute. Investigations were

being undertaken and witnesses were interviewed.

23. On 12th November 2010, the Appellant’s counsel invited the

prosecution to propose dates for interview and offered, in the

alternative, a telephone or video-link interview, or to provide a

statement in writing, or to attend an interview in person at the Australian

Embassy, all of which are permissible in Sweden, all of which were

declined; the prosecutor insisting that the Appellant be interviewed in

person in Sweden.

24. The prosecutor decided that it was inappropriate to take the same steps

under the Mutual Legal Assistance treaty.

25. On 18th November 2010, the prosecutor applied to the Stockholm

District Court for a detention order in absentia upon the prosecutor’s

assertion of reasonable suspicion of the commission of:

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11/p246

12/p267-272 13/p344-409

12/p264 & 273 13/p324-326

13/p442

13/p442 19/p665, 668

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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 two instances of sexual molestation.

26. On the same date, the Stockholm District Court granted the prosecutor’s

application for a domestic detention order in absentia.

27. On 19th November 2010, the Appellant appealed that order to the Svea

Court of Appeal.

28. On 24th November 2010, following written argument on behalf of the

parties, in which it was argued on behalf of the Appellant that the

domestic arrest was not proportionate and not based on sufficient

evidence giving rise to probable cause, but without an oral hearing, the

order was upheld by the Svea Court of Appeal (albeit that the rape

allegation concerning complainant SW was reduced to ‘minor rape’).

29. The prosecutor’s written submissions to the Svea Court of Appeal on

24th November 2010 confirmed that she was;

“…requesting the arrest of Assange is in order to enable

implementation of the preliminary investigation…”.

30. 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”).

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13/p428

13/p438

13/p428 & 438 12/p275 13/p444

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31. The EAW was submitted to the United Kingdom, and received by, the

Serious Organised Crime Agency (“SOCA”); an authority designated by

the Secretary of State for the purposes of Part 1 of the 2003 Act (by The

Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI

2003 No. 3109) as amended by the Serious Organised Crime & Police

Act 2006 (Consequential and Supplementary Amendments to Secondary

Legislation) Order 2006 (SI 2006 No. 594)).

32. SOCA declined to certify the EAW because it was not a valid Part 1

Warrant in that it failed to specify the punishability in respect of each

offence.

33. 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.

34. On 2nd December 2010, a replacement EAW was issued by the

prosecutor and again submitted to SOCA. This EAW was issued by

Marianne Ny, a Director of Public Prosecutions, as “issuing judicial

authority” and bears the stamp of the Swedish Prosecution Authority.

The EAW refers in box (b) to the decision of the Svea Court of Appeal

as being the decision on arrest on which it was based.

35. The Appellant's Counsel was permitted to examine part of the

investigation file before the hearing in the District Court. The Appellant

has not to date not been given the copies of the complete case file

relating to the case (save those that were provided to the Swedish court

by the prosecutor). Under Swedish law the Appellant is only entitled to

have access to this material once a final decision to prosecute is made.

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13/p447-452 13/p453-

8/p143-144 10/p240 11/p246 12/p282 19/p666-667

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The proceedings below (Magistrates’ Court)

36. The Appellant had instructed lawyers in the United Kingdom to write to

the Metropolitan Police extradition squad after he heard that the

prosecutor might seek an EAW.

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

(8) of the 2003 Act.

38. The Metropolitan police contacted the Appellant’s then lawyers and

arranged to arrest him by consent on 7th December 2010, when the

Appellant voluntarily surrendered himself for arrest by appointment. A

sample of the Appellant’s DNA was taken under lawful authority at this

time.

39. The ‘initial hearing’ was conducted at City of Westminster Magistrates’

Court pursuant to section 4 of the 2003 Act. The Appellant was initially

refused bail on 7th December but was subsequently granted bail subject

to conditions by the High Court on 16th December 2010.

40. The ‘extradition hearing’ took place before the Senior District Judge

(Judge Riddle) at City of Westminster Magistrates’ Court (sitting at

Belmarsh Magistrates’ Court) on 7th, 8th & 11th February 2011.

Witnesses gave live evidence before the District Judge. The District

Judge reserved judgment.

41. On 24th February 2011, the Appellant’s extradition was ordered by the

Senior District Judge.

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7/p102-103

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High Court

42. Within the applicable time limits, on 1st March 2011, pursuant to

section 26 of the 2003 Act, the Appellant appealed against the

extradition order.

43. On 12th & 13th July 2011, the Appeal was heard before the High Court,

consisting of the Right Honourable Sir John Thomas PQBD and the

Honourable Mr. Justice Ouseley.

44. The High Court considered four appeal grounds:

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

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

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

the 2003 Act.

d. The issue of the EAW and subsequent proceedings were not

proportionate.

45. The High Court reserved judgement.

46. On 2nd November 2011, the High Court dismissed the appeal, pursuant

to section 27(1)(b) of the 2003 Act. The Court held that:

a. The Swedish prosecutor was a judicial authority, because the

term “judicial” was not limited to a judge who adjudicates and

could also include a prosecutorial body, as envisaged by Article

6 of the Framework Decision (judgment §§20-54);

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b. The offences in the EAW did meet the dual criminality

requirement, having regard to ss.74, 75 and 76 of the Sexual

Offences Act 2003 (§§55-127);

c. The Applicant was an “accused” person, applying the House of

Lords’ decision in Re Ismail [1999] 1 AC 320 (§§128-154);

d. The decision to issue the warrant and the failure to take up the

offer of video link questioning were not disproportionate

(§§155-160).

Point of Law of General Public Importance

47. On 5th December 2011, the High Court certified that the following

point of law of general public importance was involved in its decision,

pursuant to section 32(4)(a) of the 2003 Act:

“…Whether a European Arrest Warrant (‘EAW’) issued by a

public prosecutor is a valid Part 1 Warrant issued by a “judicial

authority” within the meaning of sections 2(2) & 66 of the

Extradition Act 2003?...”

52. The High Court refused to certify another point of law.

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

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Supreme Court

49. Within the applicable time limits, on 15th December 2011, pursuant to

section 32 of the 2003 Act, the Appellant applied to the Supreme Court

for permission to appeal against the High Court’s ruling.

50. On 16th December 2011, the Appeal Panel of Supreme Court (Lord

Hope DPSC, Lord Mance JSC and Lord Dyson JSC) granted the

Appellant permission to appeal to the Supreme Court.

Grounds of appeal left undetermined

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

The issues

52. Whether a public prosecutor is a judicial authority.

MARK SUMMERS CLARE MONTGOMERY QC

HELEN LAW AARON WATKINS

HANNAH PYE

Counsel for the Appellant Counsel for the Respondent