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The Supreme Court begins a two-day hearing in the high-profile case of Julian Assange v Swedish Prosecution Authority today.

The background to the appeal

The appellant, Julian Assange, is the founder of Wikileaks. Assange is the subject of a European Arrest Warrant (EAW) issued by the Swedish Prosecution Authority, which sets out allegations of four offences of unlawful coercion and sexual misconduct, including rape. Assange surrendered himself for arrest in the UK and, following a hearing, his extradition to Sweden was ordered. Assange appealed to the Divisional Court against his extradition on four grounds. He lost on all four grounds and the order requiring his extradition was upheld.

The High Court refused Assange permission to appeal to the Supreme Court but certified one issue raised by his case as being of ‘general public importance’. The Supreme Court subsequently granted permission to appeal on this issue. The issue for the Supreme Court

The single question to be decided by the Supreme Court is whether a public prosecutor is a ‘judicial authority’ within the meaning of the Extradition Act 2003. Under sections 2 and 66 the 2003 Act, a European Arrest Warrant is required to be issued by a ‘judicial authority’. Accordingly, if the Supreme Court decides that a public prosecutor is not a ‘judicial authority’ the EAW in respect of Assange will be invalid.

Seven judges (rather than the more usual five) will preside over the appeal. Ostensibly, this is due to the significance of the issue itself. However, as mentioned on UKSC Blog’s previous post, it is an issue which is considered by some extradition experts to have been extensively litigated and clarified already. A number of commentators have pointed to the enormous media attention in the case as an alternative explanation for the level of scrutiny afforded by the Supreme Court.

The law

On appeal to the Divisional Court, Assange contended that for the purposes of the 2003 Act a ‘judicial authority’ must be an independent person or body exercising judicial powers and functions. The underlying concern is that a prosecutor does not have sufficient independence from the government, which could have serious consequences for the administration of justice in such a politically charged case.

In order to consider the reasoning of the Divisional Court on this issue, it is necessary to consider the broader context within which the domestic legislation was enacted. The Extradition Act 2003 was enacted to implement legislation adopted by the Council of the European Union (the Framework Decision). The purpose of the Framework Decision was to abolish the lengthy process of extradition between EU Member States and replace it with a new regime for surrender based on the mutual recognition by Member States of acts by their respective judicial authorities. The Divisional Court held that the correct approach to interpreting the 2003 Act was “to give effect to the results sought to be achieved by the Framework Decision but allowing for the right of Parliament to have inserted additional safeguards against surrender”.

Was the EAW issued by a ‘judicial authority’?

The Divisional Court considered what is meant by the term ‘judicial authority’ in both ECHR jurisprudence and for the purposes of the 2003 Act and the Framework Decision. The Court placed weight on the fact that, while the 2003 Act does not, on the whole, use the language of the Framework decision, it adopts the term ‘judicial authority’.  The Court noted that the term ‘judicial authority’ holds a wider meaning within the Framework Decision than simply ‘a judge who adjudicates’. The Court also referred to art 6 of the Framework Decision, which allows Member States to designate authorities as ‘judicial authorities’, having regard to their own national law. This mechanism would be largely redundant if ‘judicial authority’ means simply a judge exercising an adjudicative function.

It was noted that, as a matter of practice, ‘judicial authority’ is not restricted to the function of adjudication in Member States. An example cited by the Court was that of a judge exercising an investigatory function.  While accepting that the status of a prosecutor is more debatable, it was considered that a prosecutor comes within the term ‘judicial authority’ in some Member States. The Court found that while in many Member States the prosecutor is part of the Executive (as distinct from the Judiciary), the generally recognised independence of prosecutors gives them a special status.

The Court stated that, ordinarily, the designation under art 6 by a Member State of an authority as a ‘judicial authority’ should be accepted by other Member States. However, the principle of mutual recognition does not compel a Member State to accept a designation where the authority in question is self-evidently not a ‘judicial authority’ within the meaning of the Framework Decision.

Without casting doubt on the competency of the prosecutor to issue the EAW, the Court considered that an EAW issued by a prosecutor may be subject to more intense scrutiny by virtue of the fact that they are a party to the proceedings. In this case, the action of the prosecutor had been subject to independent scrutiny by the Svea Court of Appeals which, as judges in another Member State, the Divisional Court had to respect.

The Court concluded that, although the EAW was issued by a prosecutor, the prosecutor was a judicial authority under the 2003 Act and Framework decision.

What next?

In certifying this issue, the High Court made clear its view that Assange’s chances of success in the Supreme Court are ‘extraordinarily slim’. Should this appeal fail, his only further remedy is to apply to the European Court of Human Rights, which will reply within 14 days stating whether it accepts the case.  If the ECtHR agrees to hear the case, Assange will remain in the UK on his current bail conditions while the matter is decided.  If the ECtHR declines to hear the case, he will be extradited to Sweden to face trial.

The hearing is being broadcast on Supreme Court live from 10am.

Grace Capel is a BPTC student and volunteers at Hammersmith and Fulham Community Law Centre. Prior to commencing the BPTC, she was employed as an Immigration and Asylum caseworker and interned for the United Nations High Commission for Refugees.