Assange v Swedish Prosecution Authority [2012] UKSC 22
Supreme Court, 30 May 2012. Also reported at [2012] 2 AC 471.
By five votes to two, the Supreme Court held that the Swedish public prosecutor could be a “judicial authority” for the purpose of issuing a European Arrest Warrant under section 2(2) of the Extradition Act 2003. Assange’s challenge to the warrant on that ground failed. The appeal concerned the authority issuing the warrant, not whether the criminal allegations against him were true.
The warrant and the issue on appeal
On 2 December 2010, the Swedish Prosecution Authority issued a European Arrest Warrant signed by prosecutor Marianne Ny. It sought Assange’s surrender from England in connection with alleged sexual offences committed in Stockholm in August 2010. His earlier challenges before the Senior District Judge and the Divisional Court had been unsuccessful.
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The Supreme Court considered only whether the prosecutor qualified as a judicial authority. Assange argued that such an authority had to be impartial and independent of both the executive and the parties. Since the prosecutor was a party to the criminal process, he said that she could not meet that description: the warrant had to come from a court or judge.
The Prosecution Authority argued that the expression had a broader European meaning which could include prosecutors. Alternatively, Assange argued that even if European law used the expression broadly, Parliament had adopted a narrower meaning in the 2003 Act.
Interpreting the European scheme
Part 1 of the Act implemented Council Framework Decision 2002/584/JHA. Article 6 referred to the issuing judicial authority competent under the law of the relevant Member State. The system sought to simplify surrender through mutual recognition of decisions, replacing the previous extradition arrangements.
The majority considered that “judicial authority” in this setting was not confined to a court or judge. The expression had to be understood in its European context, which included legal systems giving prosecutors a special role in the administration of justice. The majority did not, however, agree on every reason supporting that conclusion.
Lord Phillips examined the text, its history, other European instruments and subsequent practice. An earlier draft expressly referred to judges and prosecutors. He considered that removal of the definition was more likely to broaden the category than restrict it to judges. He also emphasised judicial safeguards in the domestic proceedings preceding an international warrant.
Lord Dyson did not accept several of those arguments about drafting history and the preceding process. The stronger point for him, and a central consideration for other members of the majority, was subsequent state practice. Numerous Member States had designated prosecutors as issuing authorities without attracting the objections directed at executive bodies such as ministries of justice. Article 31(3)(b) of the Vienna Convention on the Law of Treaties provided a basis for considering practice establishing the parties’ agreement about interpretation.
The court also distinguished issuing a warrant from the judicial scrutiny required after arrest. Lord Dyson explained that article 5(3) of the European Convention on Human Rights did not itself require the decision to issue an arrest warrant to be made by an impartial judge. That did not remove the separate safeguards governing detention. Nor did accepting prosecutors mean that everyone involved in the legal process automatically qualified as a judicial authority.
The meaning of the UK statute
The majority considered that Parliament had intended the expression in the Act to correspond to the Framework Decision. A narrower meaning would disrupt the uniform surrender system the legislation was intended to implement.
The judgments discussed whether the duty of conforming interpretation identified in Pupino applied directly in domestic law. Lord Phillips accepted Lord Mance’s analysis that it did not bind the court in this context. Nevertheless, he relied on the purpose of the Act and the presumption that Parliament intended to comply with the United Kingdom’s international obligations.
Parliamentary statements suggested that some ministers and legislators had understood an issuing judicial authority to mean a court or judge. The majority did not regard that material as establishing that Parliament intended the Act to operate more narrowly than the Framework Decision. Lord Brown distinguished a mistaken understanding of an international obligation from a clear legislative intention to depart from it.
The dissent
Lady Hale and Lord Mance would have allowed the appeal. They emphasised that the coercive power to arrest and extradite depended on the UK statute. Its ordinary language and parliamentary history supported a narrower meaning covering a court, judge or magistrate.
Lord Mance was prepared, on balance, to accept that the European Court of Justice would probably recognise a prosecutor as an issuing authority. His disagreement therefore did not depend simply on rejecting that European interpretation. He considered that the meaning of the domestic Act required a separate assessment of Parliament’s intention in 2003. Lady Hale also questioned the weight placed on subsequent practice and stressed the importance of parliamentary authority where individual liberty was at stake.
Decision and significance
Lord Phillips, Lord Walker, Lord Brown, Lord Kerr and Lord Dyson dismissed the appeal; Lady Hale and Lord Mance dissented. The Swedish prosecutor’s warrant was not invalid merely because it had been issued by a prosecutor. Lord Phillips left open a separate argument about whether a Member State’s designation and the statutory certificate could prevent examination of the issuing body’s status.
The case illustrates a genuine disagreement about statutory interpretation: how much weight to give a European scheme and its operation when interpreting implementing legislation, and when parliamentary language and history justify a different domestic meaning. It did not decide Assange’s later US extradition proceedings.
Related decision: USA v Julian Assange [2021] EWHC 3313 (Admin).
Source: Full Supreme Court judgment, particularly paragraphs 1–13, 67–82, 92–100, 144–176, 192–194 and 238–266.
