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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Krupeckiene v Public Prosecutor's Office Lithuania  EWHC 569 (Admin) (11 March 2019)
Cite as:  EWHC 569 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE ELISABETH LAING
|- and -
|PUBLIC PROSECUTOR'S OFFICE LITHUANIA
James Stansfeld (instructed by CPS) for the Respondent
Hearing dates: 5/2/2019
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE:
The main issue
The Framework Decision
The approach of the Supreme Court to the Framework Decision
The CJEU authorities
i) Further prosecution must be definitively barred (paragraph 34) and
ii) The decision was made after 'a determination had been made as to the merits of the case' (paragraph 42).
i) The decision in Assange is not confined to the position of the Swedish the Public Prosecutor.
ii) That decision is not undermined by the reasoning in Bucnys.
iii) As a matter of domestic law, the Respondent's construction of section 2(2) is correct.
iv) Were it not for the three recent decisions of the CJEU on which he relies (that is, Poltorak, Ozšelik, and Kovalkovas), he would have no argument.
v) Those cases show that a public prosecutor may be, but not necessarily is, a 'judicial authority' for the purposes of the Framework Decision.
i) The court must be confident about the autonomous meaning of 'judicial authority'.
ii) The three recent decisions had cast doubt on the approach of the Supreme Court in Assange. They suggested that a fact-specific analysis of the role of the public prosecutor is required in every case. A public prosecutor is not a judicial authority unless he is independent of the executive and 'administers justice' or 'participates in the administration of justice'.
iii) That doubt is compounded by the reasoning of the SCI in Lisauskas, and, if the court were to admit it, by the evidence of Arturas Gutauskas. Both show that, under the constitution of Lithuania, and according to its Constitutional Court, the GPO, while wholly independent of the executive, does not 'administer justice'.
i) The question for the court was a question of domestic statutory interpretation. It was decided by Assange, which is still good law. He nevertheless accepted, by drawing attention to Kirzan v Slovenskß inÜpekcia zivontnÚho postredia (Case C-416/10), that if (contrary to his argument) the court was persuaded that what would otherwise be a binding domestic precedent was inconsistent with EU law, the court should not follow it.
ii) The domestic court has to follow the CJEU in interpreting the Framework Decision. In Assange, the Supreme Court considered what the CJEU would decide. It held that a public prosecutor was a judicial authority. No subsequent decision of the CJEU undermines that view. It followed that the decision of the Supreme Court was still good law. Indeed, it could be argued that, in Ozšelik, the CJEU held that a public prosecutor is involved in administering justice and is a judicial authority.
iii) If the DJ was wrong to exclude the expert evidence, it in fact supports the Respondent's argument that the GPO is independent, and administers justice (if that phrase is given an autonomous meaning).
Thirlwall LJ: I agree.