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Last week, the Supreme Court decided that Julian Assange can be extradited to Sweden in connection with allegations of sexual assault and rape. The appeal, which received a great deal of media attention, did not deal with the substance of these allegations. The question for the Court was whether a European Arrest Warrant (EAW) could validly be issued by a public prosecutor. The answer turned on a narrow point of law: whether a public prosecutor was a ‘judicial authority’ within the meaning of Pt I of the Extradition Act 2003.

By a majority of five to two, the Court had decided that a public prosecutor was a “judicial authority” within the meaning of the Act; accordingly, the EAW was lawfully issued.

Counsel for Assange, Dinah Rose QC, surprised the Court by making the rare request of a stay in order to make an application for the court’s decision to be “re-opened”. She suggested that the majority of the Court had decided the case on a point not argued by counsel, the application of the Vienna Convention on the Law of Treaties.

Although the appeal ultimately turned on a narrow point of law, the decision of the Court raises several interesting legal issues of wider importance: first, the status of “third pillar measures” under UK law and second, the application of various principles of statutory interpretation.

The reasoning of the majority (Lords Phillips, Walker, Brown, Kerr and Dyson)

The majority noted that the Extradition Act 2003, a piece of domestic legislation, was passed in order to give effect to the EU Framework Decision on European Arrest Warrants. The Court effectively had two tasks:

(i) To determine the meaning of judicial authority within the Framework Decision

(ii) To determine whether judicial authority had the same meaning within the Extradition Act 2003 as in the Framework Decision.

Lord Phillips undertook a detailed examination of the development of the Framework Decision in context at [14] to [59]. He noted that an earlier draft of the Framework Decision stated expressly that public prosecutors were judicial authorities [55] but that this statement had been removed in the final draft [55] – [57]. He found that this change was not intended to restrict the meaning of the words. He relied upon the following reasons to support this conclusion: (i) to restrict the power to issue EAWs to a judge would have been a radical change and one which would have been stated expressly [61]; (ii) that the issue of an EAW was subject to an antecedent process with significant safeguards [62]; (iii) that the reason for the change was to widen the meaning of the words to encompass the range of issuing procedures in Member States [65]; and (iv) the requirement in Article 6.3 to identify the “competent judicial authority” makes more sense in light of a broad meaning of those words [66]. Lords Walker and Brown found these reasons less compelling [92] [95]. Lord Dyson did not find these reasons persuasive [155-159]. Lord Kerr placed weight on the fact that removing prosecutors from the meaning of judicial authority was a “radical change” which would have required “substantial adjustment to administrative practices” [104].

The majority relied substantially upon the operation of Article 31.3(b) of the Vienna Convention on the Law of Treaties, which allows the Court to take into account “subsequent practice” in the application of the Framework Decision, provided that it “establishes the agreement of the parties regarding its interpretation”. This point will be examined in more detail below.

Having established that a public prosecutor was a judicial authority within the meaning of the Framework Decision, the Court asked whether it was obliged to give the words the same meaning in the Extradition Act 2003. Two rules of statutory interpretation suggested that this might be the case:

(i) the rule deriving from the decision of the Court of Justice of the European Union in Pupino that national courts must interpret national law “as far as possible in light of the wording and purpose of a framework decision in order to attain the objectives it pursues”; and

(ii) the domestic rule of statutory interpretation that when Parliament legislates to give effect to an international law obligation, it is presumed to do so in full.

The Court held that the rule in Pupino had no application for the reasons explained by Lord Mance at paragraphs [208] to [217]. In summary, rulings of the Court of Justice of the European Union bind the UK only by virtue of s 2 of the European Communities Act 1972, s 2. The scope of s 2 is strictly defined by s 1, which does not include the Framework Decision. This is a fascinating constitutional point, which has been overlooked in previous case law. It is explained in detail here.

The domestic rule undoubtedly applied. By this rule, Parliament is presumed to have intended the words judicial authority in the Extradition Act 2003 to bear the same breadth of meaning as in the Framework Decision in order to give effect to its obligations in full. Lord Kerr emphasised that legislating inconsistently with the Framework Decision “would effectively debar extradition” from some Member States [115].

Of importance to other extradition cases is the majority’s conclusion that while the rule in Pupino was not applicable, the application of the domestic rule would “produce the same result” [98]. This indicates that there is little or no margin between the two rules. Consequently, the Courts are unlikely to construe the Extradition Act 2003 more narrowly in light of the non-application of Pupino.

The view of the minority (Lady Hale, Lord Mance)

The minority reasoned from a different starting point. They emphasised that the domestic rule is always subject to the contrary will of Parliament [194] [217].

Lord Mance concluded that the meaning of the words judicial authority in the Framework Decision is “obscure” [246]. Therefore, an intention on the part of Parliament to restrict the meaning of judicial authority to a judge, magistrate or court would not have required a deliberate decision to legislate inconsistently with the Framework Decision [246].

Under UK law the meaning of the words judicial authority is clear: it means a judge, magistrate or court [192]. The Parliamentary material demonstrated conclusively that Parliament intended the words judicial authority to bear this meaning in the 2003 Act [193] [261].

Approaches to the Parliamentary Material

The Parliamentary material was crucial to the decision of the minority, for whom it demonstrated Parliament’s clear intention that only a court, judge or magistrate was to be a judicial authority within the meaning of the 2003 Act [193] 1261]. The majority could find no such clear intention [13] [98] [114] [169].

The key difference between the minority and the majority on this point was whether they considered the material admissible. Parliamentary material is admissible as an aid to statutory interpretation only where: (a) legislation is ambiguous or obscure or leads to absurdity, (b) the material relied upon consists of one or more statements by a minister or other promoter of the relevant Bill together if necessary with such other parliamentary material as necessary to understand such statements and their effect and (c) the statements relied upon are clear.

The meaning of judicial authority in the Framework Decision was unclear, from the minority’s point of view. They considered that any ambiguity in the 2003 Act should be cured by reference to the Parliamentary material. Further, even if the meaning of the Framework Decision were clear, the common law presumption that the 2003 Act be interpreted in accordance with the Framework Decision could not override Parliament’s clearly stated intentions.

The majority rejected the Parliamentary material as inadmissible. They found that any ambiguity in the 2003 Act must be resolved by applying the domestic law presumption that it should be interpreted in accordance with the Framework Decision [12] [98] [115] [170]. In their view, the meaning of judicial authority was clear once read in light of the Framework Decision and subsequent recourse to the Parliamentary material was therefore prevented.

Nevertheless, the Parliamentary material caused concern to some members of the majority. Lord Walker stated that it is “certainly disturbing” [93]. Lord Brown believed it plain that “ministers were mistaken about the true scope of the term in the framework decision” [98]. If they were, does it matter? Lord Brown thought not. In the absence of a clear intention to legislate inconsistently with the Framework Decision, evidence that “members of the respective houses were . . . unintentionally misled” [99] as to the obligations of the Framework Decision did not prevent application of the presumption that the 2003 Act should be interpreted in accordance with those obligations [98-99].

The Vienna Convention

Counsel for Assange suggested that the proceedings may have been unfair because the majority of the Court based their decision on the interpretation of the Vienna Convention, a point upon which the parties had not made representations.

Lord Phillips relied on the following evidence of state practice which, in his view, pointed toward an agreement that a prosecutor can be an issuing judicial authority: (i) a number of Member States designated prosecutors as issuing judicial authorities; and (ii) this had not been the subject of criticism by other Member States, the Commission or the Council [67-76].

Both Lord Walker [92] and Lord Brown [95] adopted Lord Phillips’ reasoning on this point, although it assumed a much greater significance in their judgments than it did in his. Lord Walker considered the point “determinative” of the appeal [94]. Lord Brown stated that he had based his decision “principally” upon this point [95]. Lord Kerr and Lord Dyson both stated explicitly that the requirements of Article 31.3(b) of the Vienna Convention are satisfied [108] [130-131]. Lord Kerr reflected that even if Article 31.3(b) were not satisfied, state practice would remain a strong indication that prosecutors were not intended to be excluded from the meaning of judicial authority [109].

Lady Hale and Lord Mance took an entirely different view of the evidence of state practice. Having reviewed it, both concluded that it failed to establish an agreement between Member States that a public prosecutor can be a ‘judicial authority’ [191] [263]. Further, and perhaps more fundamentally, they were not prepared to countenance an interpretation of the 2003 Act which disregarded the Parliamentary material and treated Parliament as having intended that the words judicial authority should bear whatever meaning subsequent state practice might attach to them and this would “undervalue the parliamentary process” [263]. Lady Hale held that the evidence of state practice was a “flimsy basis” upon which to decide to interpret the words in a way that was contrary to their natural meaning and the intention of Parliament [191].

What next?

The Court granted a stay of 14 days for Assange to make an application to re-open proceedings. In order for such an application to be successful, he would have to show that, through no fault of his own, he has been subjected to an unfair procedure. The indication is that he will seek to argue that parties were not given the opportunity to address a point upon which the majority of the Court based their decision.

Should his application to be successful, argument will be strictly confined to the application of the Vienna Convention on the Law of Treaties. The discussion above indicates that there would be ammunition on both sides.

Assange could also appeal to the European Court of Human Rights but is unlikely to do so until after any application to reopen proceedings is dealt with. When and if he does appeal to the ECtHR, it will respond within 14 days stating whether they will hear the case.