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The recitals to the Framework Decision emphasise the importance being attached to the replacement of traditional cooperation relations by a system of surrender between judicial authorities and of free movement of judicial decisions. Ratio |
Article 1 emphasises at its outset that a European arrest warrant is a judicial decision, while article 6 states that the issuing [or the executing] judicial authority shall be the judicial authority of the issuing [or executing] member state which is competent to issue a [or execute the] European arrest warrant by vir... |
Under European law, if a matter is left expressly to national law, then that must be the basic approach. Ratio |
In contrast, if there is no reference to national law at all, then a concept may well fall to be given an autonomous meaning: see eg Criminal Proceedings against Kozlowski (Case C- 66/08) [2009] QB 307, paras 42-43 and Criminal Proceedings against Mantello (Case 261/09) [2010] ECR I-11477, para 38. Ratio |
But even concepts the meaning of which is left to national law may require to be construed as subject to limitations deriving from general European legal principles: see eg Eman v College van burgemeester en wethouders van Den Haag (Case C-300/04) [2007] All ER (EC) 486. Ratio |
As a matter of construction, the provision in article 6(3) that each member state shall inform the Secretariat of the competent judicial authority under its law cannot in my view be read as making such information unchallengeable and binding all other member states to accept any authority whatever as judicial which any... |
In the light of the recitals and articles 1 and 6(1) and (2), the proper view of article 6(3) may well be that it does no more than address the question which judicial authority is competent. Ratio |
But, even if that is wrong, its language is too unspecific to remove from all scrutiny the question whether the authority nominated really does fulfil the express purpose of the Framework Decision to replace the traditional executive liaison with a new system of judicial cooperation between judicial authorities by virt... |
The Framework Decision must be viewed in the light of Title VI under which it was made. Ratio |
The pre-Lisbon Treaty on European Union operated largely on a traditional, inter-governmental basis. Ratio |
But it provided a structure of objectives, principles, powers and procedures within which individual measures such as the Framework Decision fell to be agreed and operated. Ratio |
The Framework Decision is a subsidiary measure, which must be interpreted subject to the general objectives and principles of and powers conferred by that Treaty: see Edward and Lane, European Union Law, 3rd ed (2013), paras 6.23-6.24. Ratio |
It is relevant that Title VI not only provides for judicial cooperation, but that the language of article 31(1)(a) - one of the express jurisdictional bases of the Framework Decision (see para 9 above) - expressly distinguishes between competent ministries and judicial or equivalent authorities. Ratio |
It is in my view implausible to suggest that, under the law of the European Union, the concept judicial in Title VI has no autonomous content whatever. Ratio |
If that is so, then the concept in the Framework Decision cannot give member states carte blanche to agree that each of them could put whatever meaning they chose upon the concept for the purposes of that measure. Ratio |
Further, even if the boundaries of judicial are under Title VI to be regarded as potentially limitless according to the nature and context of the powers being exercised, it by no means follows that the concept has equal width in the context of a specific measure like the Framework Decision. Ratio |
In this context, it does not to my mind advance the argument far to say that member states must be taken to trust each other, or that the Framework Decision was designed (as it clearly was) to eliminate delay and complexity (Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 53, per Lord... |
The Framework Decision was agreed between member states. Ratio |
But, in a sensitive area which could involve the surrender of a member states own citizens, it was only agreed on the fundamental premise that the relevant decisions would be taken by and the relevant trust existed between judicial authorities. Ratio |
As Sir John Thomas observed, public confidence would not be advanced if this meant whatever individual member states chose it to mean. Ratio |
In a measure designed to do away with executive involvement, it is also unlikely that European law would leave it to the executive to identify whatever authority it chose as judicial. Ratio |
Even Lord Phillips sens vague interpretation of judicial authority distinguishes between an authority belonging to the system of justice, as opposed to the legislature or administration; and the distinction cannot be elided by accepting that any authority given the function of issuing a European arrest warrant must ex ... |
Section 2(7) of the 2003 Act STA |
Section 2(7) of the 2003 Act does not take the Ministries further. Ratio |
First, if the case advanced by Bucnys, Sakalis and Lavrov is right, then section 2(7) does not reflect article 6. Ratio |
Rather, it represents an additional safeguard, of the sort which Lord Hope in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 24 contemplated that Parliament might have included. Ratio |
The safeguard would require any judicial authority requesting surrender to be an authority with general authority to issue domestic arrest warrants. Ratio |
But, second, if that is wrong, then the certificate contemplated by section 2(7) is not concerned with the question whether an authority is judicial. Ratio |
The certificate is to state that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the issuing territory. Ratio |
Under section 2(2): A part 1 warrant is an arrest warrant which is issued by a judicial authority of the issuing territory. STA |
The certificate therefore assumes, but does not certify, that the issuing authority is judicial. Ratio |
If (as I consider) judicial is in the context of the Framework Decision a concept with autonomous content, then sections 2(2) and 2(7) must clearly be read (as they can be) as preserving and reflecting its autonomous meaning. Ratio |
How restricted the boundaries are of that autonomous meaning is a different matter. Ratio |
Bearing in mind the diversity within member states of judicial systems and arrangements, they may be quite relaxed. Ratio |
The Assange case witnesses to this. Ratio |
I will return to this aspect, after considering the second ground of challenge to the requests for surrender. Ratio |
Meaning of section 2(7) Ratio |
The second ground of challenge is that the Ministries of Justice of Lithuania and Estonia did not have the function of issuing domestic, as opposed to European, arrest warrants within their respective states and SOCAs certificates under section 2(7) were as a result invalid. Ratio |
The issue of a certificate under section 2(7) is a critical stage in the execution within the United Kingdom of a European arrest warrant. Ratio |
Without it there can be no arrest under section 3 and the person whose surrender is sought cannot be brought before the appropriate judge under section 4. Ratio |
Where a provisional arrest occurs under section 5, the certificate under section 2(7) must be produced to the judge within 48 hours, or such extended period as the judge may grant. Ratio |
Failing this, the person whose surrender is sought will have to be discharged under section 6. Ratio |
In the case law to date, it appears to have been assumed that the certificate contemplated by section 2(7) is a certificate relating to the function of issuing European arrest (or Part 1) warrants. Ratio |
But Mr James Lewis QC for Bucnys and Sakalis has made a powerful contrary submission, which Mr Alun Jones QC for Lavrov adopts. Ratio |
Mr Lewis points out that the drafters of the Act have been careful to use the concept Part 1 warrant when it first appears in any section, referring thereafter where appropriate simply to the warrant: see eg sections 2(3) and (5), 6(4) and 7(1) and (2). ARG |
Yet in section 2(7) the drafters used the generic arrest warrants, when they could have used specific wording like such warrants or such a warrant. Ratio |
Further, as the House of Lords held in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2550, the words any other warrant in section 2(4) do refer to any domestic arrest warrant that may exist. PRE |
On the other hand, section 2(2) makes clear that a Part 1 warrant is a type of arrest warrant, there were strong contextual reasons for the conclusion in Louca and it is possible that the drafters did not use the phrase such warrants in section 2(7) because other member states do not have Part 1 warrants; rather they i... |
Mr Lewis responds to this last point by noting that, if the drafters had had in mind the authority which had the function under domestic law of issuing European arrest warrants and was so designated under article 6(3), they could easily have made this clear by substituting for the last 18 words of section 2(7) words su... |
If section 2(7) were intended as a safeguard, it would have odd features. Ratio |
First, it would require SOCA to investigate overseas practice, rather than look at the information given to the Secretariat under article 6(3) of the Framework Decision. Ratio |
Second, it would mean that SOCA should refuse a certificate in respect of any request coming from a state which chose to assign competence to issue European arrest warrants to a specialist or different (perhaps a higher) judicial body than that responsible for domestic arrest warrants. Ratio |
It is true that in the present certificates SOCA certified, inter alia, that the Part 1 warrants issued by the Ministries of Justice were issued by a judicial authority, with the function of issuing arrest warrants. Ratio |
But it was no part of their statutory function to purport to certify the judicial nature of the issuers, and their doing so can have had no effect in law if the authority certified was not truly judicial within the meaning of the Framework Decision and Act. Ratio |
Mr Lewis submits that a conclusive indication as to the nature of the function of issuing arrest warrants to which section 2(7) refers is provided by section 212. ARG |
Section 212 deals with alerts issued at the request of an authority of a category 1 territory under article 95 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 239, p 19). ARG |
The history of section 212 is described in para 258 of my judgment in Assange [2012] 2 AC 471. ARG |
Article 95 reads: 95.1. PRE |
Data on persons wanted for arrest for extradition purposes shall be entered at the request of the judicial authority of the requesting contracting party. PRE |
2. PRE |
Before issuing an alert, the contracting party shall check whether the arrest is authorised under the national law of the requested contracting parties. PRE |
If the contracting party issuing the alert has any doubts, it must consult the other contracting parties concerned. PRE |
The contracting party issuing the alert shall send the requested contracting parties by the quickest means possible both the alert and the following essential information relating to the case: (a) the authority which issued the request for arrest; (b) whether there is an arrest warrant or other document having the same... |
The Schengen alert system thus operates through data entered at the request of a domestic judicial authority, but sent by one contracting state to another. PRE |
To give continuing effect to this system, section 212 of the 2003 Act, as amended by section 68 of the Policing and Crime Act 2009, provided (originally on a temporary, but in the event on a continuing basis) that, where an article 95 alert is issued, then (2) The reference in section 2(2) to an arrest warrant issued b... |
(3) In consequence of subsection (2), this Act has effect with these modifications (a) in sections 2(7) and (8) . Ratio |
for authority which issued the Part 1 warrant substitute authority at the request of which the alert was issued; . Ratio |
The effect of section 212 is thus that sections 2(7) and (8) must, in the context of article 95 Schengen alerts be read: (7) The designated authority may issue a certificate under this section if it believes that the authority at the request of which the alert was issued has the function of issuing arrest warrants in t... |
(8) A certificate under this section must certify that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. Ratio |
When certifying under section 212, SOCA must be intended to focus on the question whether the domestic judicial authority at the request of which the data were put on the Schengen system in the overseas state had the function of issuing domestic arrest warrants. Ratio |
This shows, Mr Lewis submits, that the very same words used in their original unmodified form in section 2(7) and (8) must also focus on the function of issuing domestic arrest warrants. ARG |
In my view, that does not follow. Ratio |
When section 212 is in play, there is only one possible judicial authority in play, that is the overseas judicial authority at whose instance the Schengen alert is entered on the system and which is distinct from the contracting state by which the alert is communicated to the United Kingdom. Ratio |
It is natural that any certificate required should look at the status and functions of that overseas domestic judicial authority. Ratio |
When section 212 is not in play, the directly relevant judicial authority is the authority which issues the European arrest warrant. Ratio |
The status and functions of the authority issuing any domestic warrant (if any) are of subsidiary interest, even though the existence of any such domestic warrant will need to be noted in the European arrest warrant under article 8(1)(c) of the Framework Decision and section 2(4)(b) of the 2003 Act, as decided in Louca... |
It is therefore possible for the same phrase to point in different directions in these two different contexts. Ratio |
To treat section 212 as altering what would otherwise be the appropriate meaning to put on section 2(7) and (8) would, in my view, be to treat the tail as wagging the dog. Ratio |
Mr Lewis seeks to rely on Parliamentary material under the principle in Pepper v Hart [1993] AC 593. ARG |
That involves showing that the provision is ambiguous or obscure and that there are ministerial statements which, viewed in the context of the Parliamentary material as a whole, provide a clear answer as to its meaning. ARG |
I do not consider that these conditions are met. Ratio |
I doubt whether section 2(7) is even sufficiently ambiguous or obscure to justify looking at Parliamentary material on this point. Ratio |
Assuming that it is, it is true that one finds ministerial statements that European arrest warrants would be issued by precisely the same authorities as currently issued the (necessarily domestic) warrants on the basis of which executive requests were previously made between states for surrender: see eg Mr Ainsworths s... |
But immediately afterwards Mr Ainsworth went on to say that By the time that countries start to operate the European arrest warrant, we will know which authorities will be competent to issue them. Ratio |
It will be reasonably straightforward for the issuing authority to be identified and it will be possible to cross-check them with the central record kept by the general secretariat and a little later (at col 51) that If the issuing authority were not a judicial authority as designated in the framework document, the bod... |
These statements made clear that in the ministers mind certification was linked with the information provided under article 6 of the Framework Decision, which goes to the function of issuing European arrest warrants, not domestic warrants. Ratio |
The upshot is that neither in these nor in any other passages is there the clarity of statement that could assist to put a different meaning on section 2(7) to that which I consider otherwise follows on ordinary principles of construction. Ratio |
In my view, section 2(7) must (other than in the context of Schengen alerts under section 212) be taken as referring, however awkwardly, to the function of issuing European arrest warrants, not domestic. Ratio |
Judicial authority Ratio |
The second ground of challenge to the requests therefore fails, and I turn to consider whether the Ministries can be regarded as judicial authorities for the purposes of issuing the requests in issue on these appeals. Ratio |
The question is whether the concept of judicial authority embraces any category of persons beyond courts, judges, magistrates and (in the light of Assange) public prosecutors, and if so in what circumstances. Ratio |
Mr Knowles argued for a positive answer, relying on all five reasons on which Lord Phillips based his judgment in Assange. ARG |
But only one of these reasons received any real endorsement even in the other majority judgments in that case: see Lord Walker at para 92. Ratio |
Lord Brown at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171. Ratio |
I add only, with regard to the third reason, that I agree with Lord Dyson (para 158) that the removal from the December 2001 Council redraft of the Commissions 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 b... |
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 S... |
Any further conclusion would be speculation. Ratio |
As regards the fourth reason, I also agree with Lord Dyson (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to chose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority. Rati... |
This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors. Ratio |
The one ground which did influence most members of the court in Assange was Lord Phillips fifth and final ground, based on applying the principles of the Vienna Convention on the Law of Treaties 1969 to the international agreement reached under Title VI and embodied in the Framework Decision. Ratio |
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