The President
of
the Queen's Bench Division:
This is the judgment
of
the court
Introduction
- In August 20 I0 the appellant, Mr Julian
Assange
, a journalist well known through his operation
of
Wikileaks, visited Sweden to give a lecture. Between 13 August 2010 and 18 August 2010, Mr
Assange
had sexual relations with two women there, AA and SW. On 20 August 2010 SW, accompanied by AA, went to the police. The police treated their visits as the filing
of
complaints. On 30 August 2010 Mr
Assange
, who had voluntarily remained in Sweden to co-operate with the investigation, was interviewed. Mr
Assange
subsequently left Sweden on or about 27 September 2010 in ignorance
of
the
fact
that an arrest warrant had been issued. Attempts had been made by the Swedish prosecutor to interview him.
- After proceedings in the courts
of
Sweden, including a hearing before the Court
of
Appeal
of
Svea on 24 November 20 I0, at which Mr
Assange
was represented and to which we refer in more detail at paragraph 51, a European Arrest Warrant (EAW) was issued on 26 November 2010 by the Swedish Prosecution Authority (the Prosecutor), the Respondent to this appeal. It was signed by Marianne N y, a prosecutor. The warrant stated that:
"This warrant has been issued by a competent authority. I request the person mentioned below be arrested and surrendered for the purposes
of
conducting a criminal prosecution or executing a custodial sentence or detention order".
- It set out four offences:
"1. Unlawful coercion
On 13-14 August 2010, in the home
of
the injured party [AA] in Stockholm.
Assange
, by using violence. forced the injured party to endure his restricting her freedom
of
movement. The violence consisted in a firm hold
of
the injured party's arms and a forceful spreading
of
her legs whilst lying on top
of
her and with his body weight preventing her from moving or shifting.
2. Sexual molestation
On 13-14 August 2010, in the home
of
the injured party [AA] in Stockholm,
Assange
deliberately molested the injured party by acting in a manner designed to violate her sexual integrity.
Assange
, who was aware that it was the expressed wish
of
the injured party and a prerequisite
of
sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
3. Sexual molestation
On 18 August 2010 or on any
of
the days before or after that date, in the home
of
the injured party [AA] in Stockholm,
Assange
deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.
4. Rape
On 17 August 2010, in the home
of
the injured party [SW] in Enkoping,
Assange
deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep. was in a helpless state.
It is an aggravating circumstance that
Assange
. who was aware that it was the expressed wish
of
the injured party and a prerequisite
of
sexual intercourse that a condom be used. still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity."
No other description
of
the conduct was given elsewhere in the EAW.
- On 6 December 2010 the EAW was certified by the Serious and Organised Crime Agency (SOCA) under the Extradition Act 2003, (the 2003 Act), as complying with the requirements
of
the 2003 Act. On 7 December 2010 Mr
Assange
surrendered himself for arrest. On 7, 8 and 11 February 2011 there was a hearing before the Senior District Judge and Chief Magistrate, Senior District Judge Riddle. Evidence was given by Brita Sundberg-Weitman, a former judge
of
the Svea Court
of
Appeal and distinguished jurist, Mr Goran Rudling, an expert in the law relating to sexual offences in Sweden, Mr Sven-Eric Alhern, a retired senior prosecutor, and Mr Bjorn Hurtig, Mr
Assange
's lawyer in Sweden. The evidence is carefully summarised in the judgment
of
the Senior District Judge.
- In a judgment given on 24 February 2011 the Senior District Judge ordered Mr
Assange
's extradition.
- Mr
Assange
originally appealed on a number
of
grounds; these were reduced to five in a skeleton argument served on behalf
of
Mr
Assange
on 29 June 2011. As a result
of
clarification provided by the Prosecutor, and an amendment to the translation
of
one
of
the parts
of
the EAW, one
of
those grounds was withdrawn. The four issues that arose on the grounds can be briefly summarised as follows:
i) The EAW had not been issued by a "judicial authority".
ii) Offences 1-3 described in the EAW (set out at paragraph 3 above) did not meet the dual criminality test. None was a fair and accurate description
of
the conduct alleged. As regards offence 4, the conduct, if fairly and accurately described, would not have amounted to the offence
of
rape.
iii) The condition in s.2(3)
of
the 2003 Act had not been satisfied as Mr
Assange
was not an "accused".
iv) The issue
of
the EAW and subsequent proceedings were not proportionate.
The first issue was argued as the last issue, but it is convenient to consider the issues in the order we have set them out.
- Mr
Assange
did not pursue the allegation made before the Senior District Judge that there had been abuse in issuing the EAW for a collateral purpose or that there had otherwise been an abuse
of
process.
Our general approach
- Before turning to the detail
of
the issues. it may be helpful to set out the approach we have taken to a number
of
more general issues, as that approach is material to each
of
the issues which arises.
(a) Construction
of
the 2003 Act
- The powers
of
the court in ordering the surrender
of
a person to another Member State
of
the European Union arc governed by Part I
of
the 2003 Act. It was enacted to implement the Framework Decision establishing the EAW regime -legislation adopted on 13 June 2002 by the Council
of
the European Union. Although Part 1
of
the 2003 Act could be applied to other territories. it has not been so applied. Part 2
of
the Act applies to extradition to other States with which the United Kingdom has extradition arrangements.
- Although the 2003 Act does not mention the Framework Decision, it is now well established that Part 1
of
the 2003 Act must be read in the context
of
the Framework Decision and that the national courts
of
the Member States should construe national laws so far as possible to attain the results sought to be achieved by the Framework Decision: see Criminal Proceedings against Pupino (Case Cl05/03 [2006] QB 83 at paragraphs 43 and 47 and Dabas v High Court
of
Justice in Madrid [2007] UKHL 6, [2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15-22 (Lord Hope), paragraph 76 (Lord Brown); a helpful review is made by Professor John Spencer in (2009) 30 Statute Law Review 184.
(b) The differences between the 2003 Act and the Framework Decision
- However, although the courts must give effect to the purpose
of
the 2003 Act as national legislation implementing the Framework Decision, the court has to consider carefully the position where the terms
of
the 2003 Act and the Framework Decision differ. In Officer
of
the King's Prosecutor Brussels v Cando Armas [2006] 2 AC 1, Lord Bingham expressed at paragraph 8 his view: "Part 1
of
the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language
of
the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions
of
Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure
of
cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
- He agreed, however, with Lord Hope who said at paragraph 24: "But the liberty
of
the subject is at stake here, and generosity must be balanced against the rights
of
the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording
of
Part 1
of
the 2003 Act does not in every respect match that
of
the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there arc differences, these were regarded by Parliament as a necessary protection against an unlawful infringement
of
the right to liberty."
- Recital 12
of
the Framework Decision permitted Member States to apply constitutional rules relating to due process.
(c) The purpose
of
the Framework Decision
- The purpose
of
the Framework Decision, as set out in the recitals to the Framework Decision and the EU Commission's Explanatory Memorandum (2001/0215 dated 25 September 2001) was to replace the European Extradition Convention
of
1957 and other Conventions by a new regime. The new regime was to be a regime for surrender between judicial authorities founded on the basis
of
the common area for justice and the principle
of
mutual recognition
of
judicial decisions and judgments as "the cornerstone
of
judicial co-operation in both civil and criminal matters". Recital (5) stated:
"The objective set for the Union to become an area
of
freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system
of
surrender between judicial authorities. Further, the introduction
of
a new simplified system
of
surrender
of
sentenced or suspected persons for the purposes
of
execution or prosecution
of
criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system
of
free movement
of
judicial decisions in criminal matters. covering both pre-sentence and final decisions, within an area
of
freedom, security and justice."
- It was intended to make a break with the previous regime which had been intergovernmental and replace it with a regime where:
"Each national and judicial authority should ipso facto recognise requests for the surrender
of
a person made by the judicial authority
of
a Member State with a minimum
of
formalities." (Paragraph 2
of
the Explanatory Memorandum)
- The Framework Decision was adopted against the background
of
the opening
of
borders within the European Union by making it easier for justice to be administered across borders, whilst at the same time protecting citizens' rights. That protection was buttressed by national courts remaining subject to rules protecting fundamental rights, particularly the ECHR and the Charter
of
Fundamental Rights
of
the European Union. The existence
of
the rights and the observance
of
those rights by the courts were intended to underpin a regime in which there should be mutual confidence not only between judges but between the citizens
of
the Member States. Subject to that, however, it was intended. as is made clear by paragraph 4.5.3
of
the Explanatory Memorandum that the mechanism was based on the mutual recognition
of
court judgments. The basic principle was that when a judicial authority
of
a Member State requested the surrender
of
a person, either because he had been convicted or was being prosecuted, its decision must be recognised and executed automatically with only limited circumstances in which surrender could be refused.
- It follows, in our view, that when issues arise relating to the execution
of
a European Arrest Warrant
of
someone being prosecuted for an offence, those issues must be considered in the context
of
the common area for justice based upon recognition by one judicial authority
of
the acts
of
another judicial authority. However, it is clear that in the present state
of
development
of
the common area for justice, mutual confidence in the common area for justice and the operation
of
the EAW will not be advanced unless the courts
of
the executing state scrutinise requests for surrender under the EAW with the intensity required by the circumstances
of
each case. Failure by courts in the executing state to accord such scrutiny as the circumstances
of
each case require can risk undermining public confidence in the operation
of
the common area for justice and in particular the system for the operation
of
the EAW.
(d) The approach required by mutual recognition
- Mutual recognition
of
judicial decisions
of
other Member States within a common area for justice requires a court to approach issues on the basis that effect must be ordinarily given to the procedures
of
another Member State. In Caldarelli v Court
of
Naples, Italy [2008] UKHL 51, [2008] I WLR 1724 the House
of
Lords had to consider a challenge to an EAW issued by an Italian court which described the person as being "prosecuted", even though he had been tried in absentia. Lord Bingham stated in relation to respecting a judge's description
of
the status
of
a person under that judge's system
of
law:
"It might in some circumstances be necessary to question
statements
made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category I territory, but ordinarily
statements
made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system
of
law he or she is appointed to administer."
- Although Lord Bingham was dealing with a specific issue, we would adopt this approach in general to
statements
in an EAW made by a judge. However, more intense scrutiny is required, as we explain at paragraphs 49-50, where a warrant is issued by a "judicial authority" who is not a judge. It must always be remembered that a
statement
by a judge is a
statement
by a person who impartially adjudicates in the proceedings between the prosecution and the accused;
statements
made by persons not in that position therefore may in some circumstances require more intense scrutiny.
Issue 1: Was the EAW issued by a judicial authority?
(a) The provisions
of
the Framework Decision and the 2001 Act
- . As we have set out at paragraph 14, recital (5) to the Framework Decision refers to abolishing the system
of
extradition and replacing it by a system
of
surrender between "judicial authorities". Recital 8 also refers to "judicial authority":
"Decisions on the execution
of
the European arrest warrant must be subject to sufficient controls, which means that a judicial authority
of
the Member State where the requested person has been arrested will have to take the decision on his or her surrender."
Articles 14 and 15 give effect to that recital by specifying the right to a hearing before a judicial authority before the decision to surrender is made.
- Article 1
of
the Framework Decision refers to the EAW as "a judicial decision issued by a Member State." It refers to "issuing judicial authority" and "executing judicial authority". Article 6 provides:
"1. The issuing judicial authority shall be the judicial authority
of
the issuing Member State which is competent to issue a European Arrest warrant by virtue
of
the law
of
that state.
2. The executing judicial authority shall be the judicial authority
of
the executing Member State which is competent to execute a European Arrest warrant by virtue
of
the law
of
that state.
3. Each Member State shall inform the General Secretariat
of
the Council
of
the competent judicial authority under its law."
- The 2003 Act defines an EAW as "an arrest warrant issued by a judicial authority", but does not define a judicial authority or provide a deeming provision. However the designated authority, an authority designated by the Secretary
of
State, currently SOCA, is entitled to issue a certificate if it believes that the authority that issued the EAW has the function
of
issuing EAWs in the Member State that issued the EAW
(s.2(7)-(8)
of
the 2003 Act). As we have set out at paragraph 4 it did so in this case.
- In Enander v Governor
of
HMP Brixton and the Swedish National Police Board [2005] EWHC 3036 (Admin), the Swedish Police Board issued an EAW for the arrest
of
Enander who had been convicted by a court in Svea and sentenced to a term
of
imprisonment. The EAW was certified under s.2 as having been issued by a judicial authority. Enander was arrested in London. There was evidence before the court that under Swedish law the sole authority for issuing a warrant for the enforcement
of
a sentence was the Police Board. It was contended on behalf
of
Enander that the EAW was invalid as it had not been issued by a judicial authority on the basis that "judicial authority" must be construed as a body which would be recognised in the national law
of
the UK as being a judicial authority. The court (Gage LJ and Openshaw J) held that the expression "judicial authority" must be read against the background that it was for each Member State to designate its own judicial authority under Article 6(3)
of
the Framework Decision.
(h) The decision
of
the Senior District Judge
- The Senior District Judge found that SOCA was better placed than the court to determine whether the person who issued the EAW was a judicial authority, but if there was any doubt and there was a possibility
of
a mistake, then the court should check. There was no reason to believe there had been a mistake. The Prosecutor and Mrs Ny had authority to issue the EAW as both were a judicial authority which had the function
of
issuing EAWs under the law
of
Sweden.
(c) The contention
of
Mr
Assange
- It was contended on behalf
of
Mr
Assange
that for the purposes
of
the 2003 Act, a judicial authority must be an independent person or body exercising judicial powers and functions. This construction was supported by the
fact
that warrants for extradition into the United Kingdom have to be issued by a judge (see s.142) and that there is nothing in the 2003 Act to indicate a contrary intention for the issue
of
warrants for execution in the UK. On basic principles
of
UK constitutional law, those who prosecute are not judicial authorities.
- The Extradition Bill when before Parliament in 2002 provided that a warrant must be a warrant issued by "an authority"
of
a category 1 territory. When an amendment was proposed to insert the word "judicial" before "authority", the Under Secretary
of
State (Mr Ainsworth) made it clear on 9 January 2003 in a Standing committee
of
the House
of
Commons, (Hansard co1.48), that EAWs would be issued by the same authorities which had issued warrants under the then existing procedures for extradition; he gave as examples examining magistrates. courts and "the magistrate at the public prosecutor's office in Amsterdam". Subsequently in the House
of
Lords Grand Committee, when a further amendment was proposed to add the words "after a judicial decision", it was made clear again by a Minister (Lord Bassam), 9 June 2003 (Hansard col.32) that the practice would not change; there would be a judicial process. As the 2003 Act contained the express requirement that the EAW be issued by a judicial authority, it was therefore submitted on behalf
of
Mr
Assange
that the courts were bound to apply the provisions
of
the 2003 Act in the way that a judicial authority would be understood in the UK, particularly in the light
of
what had been said by Ministers.
- It was submitted that it followed that the EAW issued by the Prosecutor was not a warrant issued by a judicial authority. Although the Senior District Judge had been bound by the decision in Enander to accept the designation
of
the Swedish Prosecution Authority under the law
of
Sweden as authorised to issue an EAW, it was wrong. We should not follow it.
(d) The meaning
of
judicial authority in the jurisprudence
of
the ECHR
- In support
of
the argument, Mr
Assange
also relied on the jurisprudence
of
the ECHR under Article 5.3 which establishes that a prosecutor is not a judge or other officer authorised to exercise judicial power.
- In Schiesser v Switzerland (1979) 2 EHHR 417, the Strasbourg court had to consider whether a District Attorney in Switzerland (Bezirksanwalt) who sometimes acted as a prosecuting authority should be recognised as "an officer authorised to exercise judicial power" within the meaning
of
Article 5(3)
of
the ECHR which requires a person arrested to be brought promptly before such an officer. The court observed:
"27. In providing that an arrested person shall be brought promptly before a "judge" or "other officer", Article 5 para. 3 leaves the Contracting States a choice between two categories
of
authorities. It is implicit in such a choice that these categories are not identical. However, the Convention mentions them in the same phrase and presupposes that these authorities fulfil similar functions; it thus clearly recognises the existence
of
a certain analogy between "judge" and "officer". Besides, were this not so. there would scarcely be any explanation for the inclusion
of
the adjective "other".
28. "Magistrat" in French and. even more. "officer" in English manifestly have a wider meaning than "juge" and "judge". Again, the exercise
of
"judicial power" is not necessarily confined to adjudicating on legal disputes. In many Contracting States, officers (magistrats) and even judges exercise such power without adjudicating, for example members
of
the prosecuting authorities and investigating judges. A literal analysis thus suggests that Article 5 para. 3 includes officials in public prosecutors' departments as well as judges sitting in court (les magistrats du parquet comme ceux du siege)."
- However the court went on to hold that at paragraph 31 :
"To sum up, the "officer" is not identical with the "judge" but must nevertheless have some
of
the latter's attributes, that is to say he must satisfy certain conditions each
of
which constitutes a guarantee for the person arrested. The first
of
such conditions is independence
of
the executive and
of
the parties (see, mutatis mutandis. the above-mentioned Neumeister judgment, p. 44).
This does not mean that the "officer" may not be to some extent subordinate to other judges or officers provided that they themselves enjoy similar independence. In addition, under Article 5 para. 3, there is both a procedural and a substantive requirement. The procedural requirement places the "officer" under the obligation
of
hearing himself the individual brought before him (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 24, para. 60); the substantive requirement imposes on him the obligations
of
reviewing the circumstances militating for or against detention,
of
deciding, by reference to legal criteria, whether there are reasons to justify detention and
of
ordering release if there are no such reasons (Ireland v. the United Kingdom judgment, p. 76, para. 199)."
As the District Attorney was acting in that case as an investigating authority with power to charge and detain and subsequently to gather the evidence both in favour
of
the accused and against him. and not as a prosecutor, he was "an officer authorised to exercise judicial power".
- That decision was applied by the Commission in Skoogstrom v Sweden (1984) 6 EHHR CD 77 in determining that a prosecutor in Sweden was not an officer authorised to exercise judicial power. Although the prosecutor had personal independence, public prosecution formed part
of
the Executive power or branch
of
the State and there was no distinction in Sweden between investigation and prosecution.
- There has been a consistent line
of
cases since the decision in Schiesser which has held that under Article 5.3, a judge or other officer must be independent
of
the Executive and the parties; he must not be in a position to intervene subsequently on behalf
of
the prosecuting authority; the person must have power to order the release
of
the individual after reviewing the lawfulness
of
the arrest: see Medvedyev v France (2010) 51 EHRR 39 (ECHR App No 3394/03) at paragraphs 123-127 where the court held that, although a prosecutor could not be a judge or other officer within the meaning
of
article 5.3, an investigating judge could be, as the duties
of
such a judge were to seek evidence for and against the accused without participating in the prosecution and that judge had the power to release an accused.
(e) The meaning
of
judicial authority in the 2001 Act and the Framework Decision
- The task
of
the court in our view is to interpret the 2003 Act in accordance with the guidance
of
the House
of
Lords, as we have set out at paragraphs 9 and following, 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.
- Assuming in Mr
Assange
's favour it is permissible to consider the
statements
in Parliament which we have summarised at paragraph 26, we do not think much assistance is gained from them given the broad category
of
authorities and the practice under the 1989 Act to which the Ministers referred. That practice is illustrated by R v Bow Street Magistrates Court (ex p Van Del' Hoist) (1986) 83 Cr App R 114, where one
of
the warrants was signed by the Public Prosecutor to the District Court
of
Amsterdam. The court held it was valid as all that was required was that it be signed by an officer
of
the Netherlands. In Re Speigh! (31 July 1996, transcript), the warrant was also signed by the Public Prosecutor
of
the Amsterdam District Court; no challenge was made to the validity
of
the warrant.
- What is significant, in our view, is the
fact
that in s. 2(2) Parliament adopted the same term, "judicial authority" as that used in the Framework Decision. Although in Recital 8 and Articles 14 and 15 (to which we referred at paragraph 20), the term judicial authority is plainly used to refer only to a judge who adjudicates, we do not consider that the term can be so confined when it is used elsewhere in the Framework Decision.
- In the first place, it is clear that the term "judicial" as used in the several Member States does not refer only to a judge who adjudicates. Each Member State recognises the threefold division
of
functions and powers within each state between the legislative, executive and judicial "powers" or "branches
of
the state". It is a fundamental in each Member State that the judicial branch is independent
of
the executive and legislative branch.
- Although no Member State should for a moment consider that its Ministry
of
Justice was part
of
the judicial branch, many states, as is clear from the judgment in Schiesser, consider that the exercise
of
judicial power is not confined to adjudicating. In some states it encompasses the function
of
investigating where this is entrusted to an investigating judge with the characteristics described in Medvedyev.
- Although the status
of
a prosecutor is more debatable, a prosecutor does in some Member States come within the term "judicial authority". In some Member States, the prosecutor is recognised as part
of
"corps judiciaire ", For example, in some Member States, the Judicial Council (Conseil de la Magistrature) comprises both prosecutors and judges. In France, judges and prosecutors are within the term "authorite judiciare" as used in its constitution (see Bell: Judiciaries 'within Europe page 65). There is without doubt a considerable diversity within the common area for justice as to whether prosecutors are "judicial authorities". It is also relevant to consider the status
of
a prosecutor. It is generally recognised that a prosecutor must enjoy independence in the decisions that he must take, though the functions
of
a prosecutor are distinct and separate from those
of
a judge (see Opinion no 12
of
the Consultative Council
of
European Judges (2009)). Although a prosecutor is in many Member States part
of
the Executive, as distinct from the judiciary, that independence gives the prosecutor a special status.
- Secondly, the Explanatory Memorandum
of
25 September 200J (to which we referred at paragraph 14) stated in the commentary on definitions:
"The term "judicial authority" corresponds. as in the J957 Convention (cf Explanatory Report, Article I) to the judicial authorities as such and the prosecution services, but not to the authorities
of
police force. The issuing judicial authority will be the judicial authority which has the authority to issue the European arrest warrant in the procedural system
of
the Member State."
Article 1
of
the 1957 Convention provided for the extradition
of
all persons "against whom the competent authorities
of
the requesting Party are proceeding for an offence". The Explanatory Report on that Convention stated in respect
of
that Article:
"The term competent authorities in the English text corresponds to autorites judiciaries in the French text. These expressions cover the judiciary and the Office
of
the Public Prosecutor, but exclude the police authorities:'
- Thirdly, if the term "judicial authority" were confined to a judge who adjudicates, it is difficult to see what purpose Article 6
of
the Framework Decision would have served. The Article must have been intended to allow Member States to designate authorities in their state which were "judicial authorities", having regard to their own national law, given the diversity to which we have referred at paragraph 38.
- Fourth, it cannot be said that the term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principles
of
mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Article 6. To do otherwise would be to construe the word "judicial" out
of
context and look at it simply through the eyes
of
a common law judge, who would not consider a prosecutor as having a judicial position or acting as a judicial authority. The position in some other Member States is different as we have explained at paragraph 38.
- In Goatley v HM Advocate [2006] HCJAC 55. the High Court
of
Justiciary considered an EAW for arrest
of
a convicted person which had been issued by the "Chief Attorney-General and Deputy Public Prosecutor,
of
the District Public Prosecutor's office in Leeuwarden" in the Netherlands. One
of
the grounds
of
challenge was that that person was not a judicial authority. The submission was rejected on the grounds that the issue should not be looked at through Scottish eyes; the EAW scheme operated on the basis
of
confidence between Member States; the carefully worked out scheme should not be "frustrated by mere descriptions
of
the executing officials
of
the respective countries. We are confirmed in that view by the terms
of
Article 6.1, the effect
of
which is that the law
of
the issuing Member State determines who is to be the judicial authority. "
In any event,
"Further material supplied from the Netherlands gives information about the position
of
the public prosecutor in his relations with inter alios the police and the Minister
of
Justice. It is not necessary here to refer t o this in detail. Suffice it to say that it shows that he performs a function as part
of
the judiciary in that country. He is not part
of
the executive."
- Thus in our view the Prosecutor was a judicial authority, as the term "judicial authority" is not confined to a judge who adjudicates but can extend to a body that prosecutes.
(f) The status
of
the designation
of
judicial authority by another Member State
- In Enander, the court concluded that it was for each Member State to designate its issuing authority, as we have set out at paragraph 23. A similar approach seems to have been taken by the Supreme Court
of
Cyprus as set out in notes
of
the decisions in Anderson v Attorney-General (2008) and Ovakimyan v Attorney-General (2005) as noted in European Cross Border Justice: a case study ofthe EAW (Christou. The Aire Centre, 2010).
- It is not necessary for us to consider Enander further in the light
of
the principles which, with the benefit
of
much fuller argument, we have endeavoured to set out. It is important to emphasise that the issue in that case related to the issue
of
a warrant by the police for the service
of
a sentence. It may be that the circumstances relating to a warrant issued for the execution
of
a sentence are different.
- Although the approach in Enander is one that will ordinarily apply, the designation under Article 6 does not. in our view, always compel the recognition by another Member State as conclusive, if the authority is self evidently not a judicial authority within the meaning
of
that broad term in the Framework Decision. It is
of
some interest to note in the light
of
our observation at paragraph 37 on the status
of
a Ministry
of
Justice that in 2007 the Commissioner for Justice and Home Affairs in the Report on the Evaluation
of
the Transposition
of
the Framework Decision stated that the designation by some states directly or indirectly
of
the Ministry
of
Justice as a judicial authority was contrary to the terms
of
the Framework Decision. However there appear to have no instances where the Commission has taken action in respect
of
a body that should not have been designated as a judicial authority.
- For example, if a warrant was issued by a Ministry
of
Justice which the Member State had designated as an authority under Article 6, it would not, in our view, be a valid EAW under the Framework Decision. The principles
of
mutual recognition and mutual confidence which underpin the common area for justice would not require the recognition
of
such a warrant, as it would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. In our view a national judge within the European Union is bound to uphold the principles
of
mutual recognition and mutual confidence for the reasons we have given at paragraph 17; public confidence in the EAW would only be undermined by the recognition
of
an EAW issued by a Ministry
of
Justice in contradistinction to an EAW issued by a judge or prosecutor.
- It was accepted by Miss Montgomery QC (who appeared for the Prosecutor) that if circumstances arose where it could be said that the person issuing the EAW was not a judicial authority, the designating certificate issued by SOCA would not be conclusive. It would have to be challenged by judicial review. She was right to accept that the certificate was not conclusive, as under s.2(8)
of
the 2003 Act the function entrusted to SOCA is to certify that the issuing authority has the function
of
issuing EAWs. It does not certify that it is a judicial authority. The judge in performing the duties imposed by s.64 and 66 must determine whether the authority is a judicial authority. In Harmatos v Office
of
the King's Prosecutor in Dendermond, Belgium [2011] EWHC 1598 (Admin), the Court (Dobbs and Lloyd Jones JJ) permitted the status
of
the body issuing the EAW to be considered in the course
of
the appeal. It was therefore permissible for Mr
Assange
to raise the issue in the course
of
this appeal. However for the reasons we have given we are satisfied that the Prosecutor was a judicial authority.
(f) Circumstances giving rise to more intense scrutiny: The effect
of
the decision
of
the Svea Court
of
Appeal
- Although in our view no challenge can be made to the validity
of
the EAW issued by the Prosecutor, it is necessary to consider whether the EAW should be accorded more intense scrutiny as a warrant issued by a party to the proceedings. That might be the case where it had not been subject to the impartial scrutiny
of
a judge in the Member State
of
issue. Although a prosecutor would ordinarily act independently in the decision to issue the EAW and in pursuance
of
what would in the terms
of
the Framework Decision be regarded as a judicial function, the decision is that
of
a party to the proceedings which has not been subjected to the impartial scrutiny
of
a judge.
- It would therefore be entirely in conformity with the principles
of
mutual recognition and the promotion
of
mutual confidence between judges and citizens in the several Member States to recognise that circumstances can arise in respect
of
an EAW issued by a prosecutor as distinct from a judge where it is necessary for a court to accord more intense scrutiny to such a warrant. Mutual confidence, particularly the confidence
of
citizens in the operation
of
the EAW system, is not enhanced by according to such an EAW the deference that would ordinarily be accorded to an EAW issued by a judge who is bound to take into account the interests
of
both parties to the proceedings
- However in this case, the Svea Court
of
Appeals on 24 November 201 0, considered an appeal made by Mr
Assange
against an order
of
the Stockholm District Court made on 18 November 2010 that Mr
Assange
should be arrested in absentia. Mr
Assange
's appeal was advanced on the basis that there was no probable cause for the allegations that the Prosecutor had made against Mr
Assange
. Amongst the contentions made was an allegation
of
collusion by the complainants and, in relation to the offence
of
rape (offence 4), that the complainant had done nothing to make Mr
Assange
understand that she did not want to have sex with him. The Svea Court
of
Appeal was provided with a
statement
by the Prosecutor which set out details
of
the offences and
of
the investigation. It was made clear that the complainants had been questioned a number
of
times and the inconsistencies in their accounts and the comments made by them in text messages which had been relied on by Mr
Assange
's Swedish lawyer had been put to them. It explained how the complainants had been in touch with each other and had made the complaints.
- The Svea Court
of
Appeal rejected the appeal on the basis that, given the case report then available, Mr
Assange
was suspected with probable cause
of
the four offences and that the arrest was justified. Two days later the EAW was issued by the Prosecutor.
- In this case, therefore, the action
of
the Prosecutor has been subject to independent scrutiny by judges in Sweden which as judges in another Member State we should accord due respect.
- We therefore dismiss this first ground
of
challenge.
Issue 2: Dual Criminality; the fairness and accuracy
of
the description
of
the conduct alleged
(a) The contention
of
Mr
Assange
- It has long been a principle
of
extradition that a person should only be extradited where the conduct is not only an offence under the law
of
the State requesting extradition, but also under the law
of
the State from which the person's extradition is sought. Dual criminality remains a condition under s.64
of
the 2003 Act for all offences which are not what are known as Framework Offences, a term we explain at paragraph 59 below. Offences 1 -3 are not Framework Offences. S.2(4)(c)
of
the 2003 Act requires the EAW to contain particulars
of
the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision
of
the law
of
the Member State under which the conduct is alleged to constitute an offence.
- It should ordinarily be the case that a court in this jurisdiction will accept the designation
of
the conduct as constituting an offence under the law
of
the issuing state; the particulars given in the EAW should also ordinarily make clear whether the conduct would also constitute an offence under the law
of
England and Wales.
- It was accepted by Mr
Assange
that it was not necessary to identify in the description
of
the conduct the mental element or mens rea required under the law
of
England and Wales for the offence; it was sufficient if it could be inferred from the description
of
the conduct set out in the EAW. However, the
facts
set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the
facts
alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law
of
England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts
of
force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.
- The position
of
Mr
Assange
in respect
of
offences 1-3 where dual criminality was required was:
i) Offence 1: Although it was accepted that the conduct as described would constitute an offence in England and Wales, a fair and accurate description
of
the prosecution case would not meet that test.
ii) Offence 2: This did not meet the dual criminality test on the basis either
of
the description
of
the offence set out in the EAW or
of
a fair and accurate description
of
the offence.
iii) Offence 3: The position was the same as offence 1.
- Offence 4, rape, is a Framework Offence, as it is an offence listed in Article 2.2
of
the Framework Decision which we set out at paragraph 104 below. Under the provisions
of
s.64(2)
of
the 2003 Act dual criminality is not necessary. However it was contended that the conduct was not fairly and accurately described. If it had been, it would not have been rape.
- In respect
of
each offence, Mr
Assange
contended that the court should examine the underlying material from the prosecution file, even though the whole
of
the file had not been made available to Mr
Assange
's Swedish lawyer as under Swedish law it is only made fully available at a later stage. However what was provided contained the principal
statements of
the complainants and other material which made it obvious that the conduct
of
which he was accused was not fairly and accurately described in the EAW. The Prosecutor had told the Swedish Court that the further
statements
made by the complainants were materially the same. The stance taken by the Prosecutor in not disclosing the remainder
of
the file was criticised by Mr Emmerson QC who appeared for Mr
Assange
. However, it was consistent with the stance
of
the Prosecutor that this court should not consider the extraneous material in arriving at its decision on whether Mr
Assange
should be surrendered; it would be made available in accordance with Swedish law at the appropriate time.
- The Senior District Judge did not consider it necessary to examine the
statements
from the complainants which were the only material put before him in the course
of
the hearing. He looked only at what was set out in the EAW. He concluded that dual criminality was established for offences 1-3 and that what was described in relation to offence 4 was rape.
- Miss Montgomery QC, on behalf
of
the Prosecutor, had invited Mr
Assange
at the close
of
the hearing before the Senior District Judge to put the translation
of
the file made available before the court. That was done by annexing it to a witness
statement
dated 22 February 2011, 2 days before judgment was handed down. All that material was put before us and we were taken through it de bene esse.
(h) Can the court have regard to extraneous material to determine the accuracy
of
the description
of
the conduct?
- Before turning to consider the description
of
the conduct, it is necessary to consider whether the court should make its decision on the basis
of
the description in the EAW or should have regard to material extraneous to the EAW. That material was the material contained in the prosecution file. The question whether the court could examine such material extraneous to the formal extradition request arose under the Extradition Act 1989 in R (Castillo) v Kingdom
of
Spain [2004] EWHC 1676 (Admin), [2005] 1 WLR 1043. The extradition request was made by the Spanish Government under the European Convention on Extradition 1957 incorporated into the law
of
the UK by the European Convention on Extradition Order 2001. During a stage in the extradition proceedings, a lawyer instructed by the applicant inspected the dossier at the Spanish court. On the basis
of
that inspection it was alleged that two
of
the extradition requests misrepresented the conduct alleged against him. The dossier was made available to the court in the evidence filed by the Kingdom
of
Spain. In giving the first judgment. one
of
us, Thomas LJ, held that, although the judge in the UK was not concerned with the proof
of facts
or the sufficiency
of
evidence, a court had to decide whether the conduct alleged amounted to an offence under the law
of
the United Kingdom. For a court to be able to do this, Thomas LJ said at paragraph 25 :
"
it is very important that a state requesting extradition from the U K fairly and properly describes the conduct alleged, as the accuracy and fairness
of
the description plays such an important role in the decisions that have to be made by the Secretary
of
State and the court in the UK. Scrutiny
of
the description
of
the conduct alleged to constitute the offence alleged, where as here a question is raised about its accuracy is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency
of
the evidence in support
of
the conduct alleged but, it is concerned, if materials are put before it which call into question the accuracy and fairness
of
the description, to see if the description
of
the conduct alleged is fair and accurate.
On the
facts of
that particular case an examination
of
the dossier showed that the description
of
the conduct alleged was not a proper, accurate or fair description.
- That was a decision under the Extradition Act 1989 and the European Convention on Extradition Order 2001. It was submitted on behalf
of
Mr
Assange
that we should apply the principles in that decision to a request for surrender under Part 1
of
the 2003 Act. As there was no enquiry into evidential sufficiency and, as it had been consistently held that the issuing state had to prove that the EAW strictly complied with the terms
of
s.2 (see Cando Armas referred to at paragraph 138 below), it was no less essential to the protection
of
the rights
of
the person whose surrender was requested that the description
of
the conduct be fair and accurate. It was therefore just as important under the 2003 Act that the court should consider the fairness and accuracy
of
the description
of
the conduct by reference to extraneous material. Although it was said in Dabas v High Court
of
' Madrid that extraneous material cannot be used to cure an EAW that was invalid (as we set out at paragraph 138 below), the converse was not true.
- The requirement set out in Castillo that the conduct be fairly and accurately described was said to be applicable to s.2(4)(c)
of
the 2003 Act in Palar v Court
of
First Instance Brussels [2005] EWHC 915 (Laws LJ and David Steel J) and in La Torre v Her Majesty's Advocate [2006] HCJAC 56 (the High Court
of
Justiciary). However in neither case did the court have to consider whether extraneous material should be admitted to challenge the fairness and accuracy
of
the description
of
the conduct in the EAW. Self evidently, the description
of
the conduct alleged must be fair and accurate. We were also referred to the decision Ekior v National Public Prosecutor
of
Holland [2007] EWHC 3106 (Admin) where a challenge was made to the adequacy
of
the particulars given in the EAW. The court (Richards LJ and Cranston J) held the challenge failed. In giving the first judgment, Cranston J in setting out a summary
of
the law referred at paragraph 7 to the need in cases
of
dual criminality for the detailed description
of
the conduct to be sufficient for that judgment to be made. Although that
statement
is not controversial, it does not address the issue that arises in the present case.
- However in The Criminal Court at the National High Court, 1st Division (a Spanish Judicial Authority) v Murua [2010] EWHC 2609 (Admin) the court had to consider the applicability
of
Castillo in circumstances where the accused sought to place material extraneous to the EAW before the court to show the description
of
the conduct alleged was not fair and accurate. On its face, the EAW complied with the requirements
of
s.2 in describing terrorist conduct that endangered life. The extraneous material showed that the accuser's co-defendant's charges had been reduced to a less serious offence and they had been convicted
of
that. That offence was time barred against the accused. Sir Anthony May, President
of
the Queen's Bench Division, concluded that it would rarely be appropriate or permissible for a court to go behind a judicial decision or explanation as to the law or procedure
of
a judicial authority
of
a Member State in relation to the law
of
that State. He said at paragraph 58:
"The court's task --jurisdiction, if you like --is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis
of
arguably discrepant evidence, nor to a detailed critique
of
the law
of
the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear
facts
, whether the description
of
the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland [counsel for the Spanish judicial authority] to accept this, agreeing that it was in the end a matter
of fact
and degree. She stressed, however, a variety
of
floodgates arguments with which in general I agree, that this kind
of
inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision
of
13 June 2002."
On the
facts of
that case, the extraneous material was examined and the court held that the EAW was not a valid EAW as there was not a proper, accurate and fair description
of
the conduct.
- It is the submission made to us by Miss Montgomery QC for the Prosecutor that, applying the usual principles in the Divisional Court, we should follow the decision in Murua. Mr Emmerson QC for Mr
Assange
submitted that we should continue to apply Castillo, and not treat Murua as modifying it for the purposes
of
the 2003 Act.
- Although, it is always open to a Divisional Court
of
two or three judges not to follow the decision
of
a single judge, we entirely agree with the conclusion reached by Sir Anthony May. The decision in Castillo to admit extraneous material was made under the 1957 Convention under which the ultimate decision on extradition was for the Executive, not the judiciary. As is clear from the objectives
of
the Framework Decision (to which we have referred at paragraph 14 and following), that regime has been replaced by a regime
of
surrender between judicial authorities based on mutual recognition. That necessitates a different approach for the reasons we have given; the
statement
as to the admission
of
extraneous material set out in Castillo does not apply to surrender under the provisions
of
the 2003 Act. Ordinarily, therefore, the judge in the executing state should scrutinise the terms
of
the EAW and make the decision to order surrender on the basis
of
what is contained in the EAWand not have regard to material extraneous to the EAW. That course gives effect to the underlying purpose
of
the regime and the principles
of
mutual recognition to which we have referred.
- It is always possible, as Murua demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision. Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles. In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW. Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part
of
the court or prosecutor in the issuing state. It is necessary to consider whether the request for Mr
Assange
's surrender is such a case.
(d) Offence 1: Dual criminality: consideration
of
the accuracy and fairness by reference to extraneous material
- It is conceded the conduct described in relation to offence I in the EAW discloses dual criminality, and that therefore, if a UK court does not take account
of
the material in the prosecution file provided to Mr
Assange
, then this ground
of
objection toMrAssange 's extraditionunderthe EAWwouldfall away inrespect
of
this offence.
- In our view, it is not apposite to take into account the material in the prosecution file:
i) The description in the EAW sets out a clear description
of
the conduct that the Prosecutor alleges against Mr
Assange
. It is for the Prosecutor not the court to set out what is alleged.
ii) The Svea Court
of
Appeal has considered the offences and determined that there is cause to proceed.
iii) It cannot be said that what is set out is plainly wrong.
iv) No allegation
of
bad faith on the part
of
the Prosecutor was made in this court.
v) The
facts
set out were sufficient to lead to the inevitable inference
of
lack
of
consent to the specific matter alleged against Mr
Assange
and to the requisite knowledge on his part. In the case
of
the first offence, Mr
Assange
lay on AA forcibly restricting her movements to which she did not consent. That is what would have to be proved. If he did those acts it would also be the inevitable inference, to the extent relevant, that he knew that she was not consenting.
- Nonetheless, as the material was put before us de bene esse, we will express our view on what difference it would have made if we had taken it into account in determining whether the description
of
the conduct was fair and accurate.
- As is clear from the text describing the offences we have set out in paragraph 3, offences I, 2 and 3 involved the complainant AA. She had made a
statement
on 21 August 20 IO. This was the only
statement
made by her which was in the file that had been disclosed to Mr
Assange
, though there was another
statement
which had been made by AA subsequently but which, as we have said, would only be disclosed to Mr
Assange
at a later stage
of
the proceedings.
- As regards offence 1, AA said in her
statement
that she had offered the use
of
her apartment to Mr
Assange
from 11-14 August 2010 when she was away. She had returned on 13 August 2010 earlier than planned and then met him for the first time. They went out to dinner and returned to her apartment. As they drank tea, he started to fondle her leg which she welcomed. Everything happened fast. Mr
Assange
ripped off her clothes and at the same time broke her necklace. She tried to put her clothes on again, but Mr
Assange
had immediately removed them again. She had thought that she did not really want to continue, but it was too late to tell Mr
Assange
to stop as she had consented so far. Accordingly she let Mr
Assange
take off all her clothes. Thereafter they laid down on the bed naked with AA on her back and Mr
Assange
on top. Mr
Assange
wanted to insert his penis into her vagina, but she did not want him to do that as he was not using a condom. She therefore squeezed her legs together in order to avoid him penetrating her. She tried to reach several times for a condom which Mr
Assange
had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without a condom. Mr
Assange
must have known it was a condom AA was reaching for and he had held her arms to stop her. After a while Mr
Assange
had asked AA what she was doing and why she was squeezing her legs together; AA told him she wanted him to put on a condom before he entered her. Mr
Assange
let go
of
AA's arms and put on a condom which AA found for him. AA felt a strong sense
of
unexpressed resistance on Mr
Assange
' s part against using a condom.
- In relation to this and the other offences, Mr Emmerson QC put forward what he said would be a fair description
of
the conduct which, if adopted, would show that there was no dual criminality. In summary, his contention was that the alleged offending conduct had been taken out
of
context; in relation to offence 1 that context was consensual sexual activity (undressing and lying naked on top
of
AA)) with the joint expectation that sexual intercourse would take place, followed by sexual intercourse taking place consensually, once he had used a condom. The offending conduct alleged was no more than a brief period, which could readily be seen as a mere misunderstanding. During that brief period, AA did not object to the continued naked contact as the apparent precursor to intercourse; AA did not wish to proceed immediately for a reason not immediately obvious but shortly thereafter rectified. It was also
of
importance in relation to the mens rea, since for dual criminality, the
facts
alleged had to impel the conclusion that Mr
Assange
had no reasonable belief that AA was consenting to what had happened.
- It seems to us that the conduct described as offence 1 fairly and properly describes the conduct as set out in AA's
statement
in relation to what is complained
of
restricting her movement by violence. We accept that Mr
Assange
subsequently allowed AA to move so she could find a condom for him to use, but at the point in time to which the offence relates, we do not read anything in her
statement
to indicate consent to his restraining her. Indeed her
statement
indicates precisely the opposite at the point
of
time to which it relates. It
of
course might well be argued that his subsequent decision to let go
of
her might indicate a lack
of
coercion or consent to what followed, but at the point
of
time to which the offence relates, we consider the conduct
of
which he is charged to have been fairly and accurately described. As we have set out at paragraph 71.v) above, the matters alleged are sufficient, in our view, and to the extent relevant, to impel the inference
of
knowledge. The context does not change our view.
- It must therefore follow in respect
of
offence 1 that the challenge made fails, even if the extraneous material was taken into account.
(e) Offence 2: Dual criminality
- It was contended that the conduct in respect
of
offence 2 described in the EAW was not an offence under the law
of
England and Wales and, in the alternative, that if the offence had been fairly and accurately described, then it was also not an offence under the law
of
England and Wales.
(i) The offence as set out in the EAW: consent and the use
of
a condom under the law
of
England and Wales
(1) The issue
- The essence
of
the offence as described in the EAW, as set out at paragraph 3, was that Mr
Assange
knew that AA would only consent to sexual intercourse if he used a condom throughout, but he had concluded sexual intercourse with her without a condom. The point was taken on Mr
Assange
's behalf that consent to sexual intercourse on condition that Mr
Assange
wore a condom remained under the law
of
England and Wales consent to sexual intercourse, even if he had not used a condom or removed or damaged the condom he had used. No offence was, it was submitted, therefore committed under the law
of
England and Wales.
(2) The law prior to the Sexual Offences Act 20031
- It had been clear, before the law in relation to sexual offences was codified by the Sexual Offences Act 2003, that in cases
of
rape consent to sexual intercourse was consent in all circumstances, unless there had been fraud as to the nature
of
the act or to the identity
of
the person who did the act (see R v Clarence (1889) 22 QBD 23). In R v Dee (1884) 14 L.R. Ir 468, an Irish case that was subsequently declared to be the law
of
England and Wales, Pales CB expressed the rationalisation
of
the cases involving fraud as to identity at 488 on the basis that:
"The person by whom the act was to be performed was part
of
its essence."
The law thus established was applied in 1994 in R v Linekar [1995] QB 250 in a case where the Court
of
Appeal quashed a rape conviction
of
a man who had never intended to pay a prostitute with whom he had had sexual intercourse after she had agreed to sexual intercourse for £25. She had consented to sexual intercourse. It mattered not that the consent had been conditional, as there had been no fraud as to the nature
of
the act or identity
of
the person.
(3) The Sexual Offences Act 2003
- S.1 (1)
of
the codifying statute, the Sexual Offences Act 2003 set out the offence
of
rape; s.2 sets out the offence
of
assault by penetration and s.3 the offence
of
sexual assault. It is an ingredient
of
each offence that there is no consent by the person penetrated or assaulted and no reasonable belief by the defendant that the person is consenting. The basic definition
of
consent is set out in s.74:
"F or the purposes
of
this part, a person consents if he agrees by choice and has the freedom and capacity to make that choice."
In our view it is this section that is the relevant section but, before considering it, it is convenient to set out the argument made by Mr
Assange
in more detail.
(4) The contention
of
Mr
Assange
- Mr
Assange
primarily relied on R v B [2006] EWCA Crim 2945 [2007] 1WLR 1567 where the court considered one
of
the evidential presumptions relevant to consent - s.76:
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any
of
the circumstances specified in subsection (2) existed, it is to be conclusively presumed
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that-
(a) the defendant intentionally deceived the complainant as to the nature or purpose
of
the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
S.77 defines "the relevant act" for the offence
of
rape as the defendant intentionally penetrating, with his penis, the vagina
of
another person and for the offence
of
sexual assault the intentional touching.
- The court held in B that deception as to HIV was not deception as to the nature or purpose
of
the act
of
sexual intercourse which was the relevant act to which the complainant consented; the deception had been as to the risk
of
infection. The court said at paragraph 17:
"Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue
of
that consent, because such consent did not include consent to infection by the disease."
The court went on to hold that the
fact
that the defendant had not disclosed that he was HIV infected was not in any way relevant to the issue
of
consent to sexual intercourse under s.74.
- It was therefore submitted that in the present case, as AA had consented to sexual intercourse, and as that was the nature
of
the relevant act, it did not matter that she had consented only on the basis that he used a condom, as that did not change the nature
of
the act. It was accepted on Mr
Assange
' s behalf that this contention might not be one contemporary society would readily understand or consider justifiable, but Parliament had enacted the law in those terms and the duty
of
the courts was to apply the law.
(5) Our conclusion
- We cannot accept that contention. In R v.Jheeta [2007] EWCA Crim 1699, [2008] 1 WLR 2582 the court made clear that in most cases the absence
of
consent and the appropriate state
of
the defendant's mind would be proved without reference to the evidential presumptions set out in s.75 and s.76. The
facts of
Jheeta are instructive. The complainant had sexual intercourse with the defendant after he had tricked her, by impersonating a police officer, into believing that, if she did not have sexual intercourse, she would be fined. As the court pointed out, s.76 was applicable. As it contained conclusive presumptions where intercourse was proved, the section required the most stringent scrutiny. Sir Igor Judge, President
of
the Queen's Bench Division. in giving the judgment
of
the court said at paragraph 24:
"In our judgment the ambit
of
section 76 is limited to the "act" to which it is said to apply. In rape cases the "act" is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76 (2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose
of
one or other form
of
intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose
of
intercourse. Beyond this limited type
of
case, and assuming that, as here, section 75 has no application, the issue
of
consent must be addressed in the context
of
section 74."
- In our view, therefore, s.76 has no application. The question
of
consent in the present case is to be determined by reference to s.74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr
Assange
used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
- It might be said that Mr
Assange
's conduct in having sexual intercourse with AA without a condom (or in continuing sexual intercourse with AA after removing, damaging or tearing the condom) was deceptive. Assuming it was deceptive, then in our view it was not deceptive as to "the nature or quality
of
the act". We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence
of
a physical barrier, a perceived difference in the degree
of
intimacy, the risks
of
disease and the prevention
of
a pregnancy; moreover the editors
of
Smith & Hogan (12th edition at p.866) comment that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. It seems to us, however, that s.76 should be given a stringent construction, because it provides for a conclusive presumption. The issue
of
the materiality
of
the use
of
a condom can be determined under s.74 rather than under s.76.
- It appears to have been contended by Mr
Assange
, that if, in accordance with the conclusion we have reached, the deception was not a deception within s.76 (a deception as to the nature or quality
of
the act or a case
of
impersonation), then the deception could not be taken into account for the purposes
of
s.74. It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes
of
s.74, conduct that was deceptive could not be. There is nothing in R v B that suggests that. All the court said at paragraph 21 was:
"All we need to say is that, as a matter
of
law, the
fact
that the defendant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue
of
consent under section 74 in relation to the sexual activity in this case."
- The editors
of
Smith & Hogan in the passage to which we have referred regard it as self evident that deception in relation to the use
of
a condom would "be likely to be held to remove any purported free agreement by the complainant under s.74". A very similar view is expressed in Rook and Ward on Sexual Offences; (4th edition) at paragraph 1.216. Moreover Jameel makes clear the limited scope
of
s.76. The complainant was deceived in a manner which did not go to the nature or purpose
of
the act; s.76 was therefore
of
no application (see paragraph 28). The evidence in relation to the fabricated scheme was sufficient, in the court's view, to negative consent for the purposes
of
s.74 (see paragraph 29).
- In our view s.76 deals simply with a conclusive presumption in the very limited circumstances to which it applies. If the conduct
of
the defendant is not within s.76, that does not preclude reliance on s.74. R v B goes no further than deciding that failure to disclose HIV infection is not
of
itself relevant to consent under s.74. R v B does not permit Mr
Assange
to contend that, if he deceived AA as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue
of
AA's consent to sexual intercourse as a matter
of
the law
of
England and Wales or his belief in her consent. On each
of
those issues, it is clear that it is the prosecution case she did not consent and he had no or no reasonable belief in that consent. Those are issues to which s.74 and not s.76 is relevant; there is nothing in R v B which compels any other conclusion. Furthermore it does not matter whether the sexual contact is described as molestation, assault or, since it involved penile penetration, rape. The dual criminality issue is the absence
of
consent and the absence
of
a reasonable belief in consent. Those issues are the same regardless
of
the description
of
the conduct.
- Thus, if the question is whether what is set out in the EAW is an offence under the law
of
England and Wales, then it is in our view clear that it was; the requirement
of
dual criminality is satisfied.
(ii) Consideration
of
the accuracy and fairness by reference to extraneous material
- The alternative contention relies on the
statement of
AA. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, it is not necessary to consider this. But as the material was put before the court de bene esse, then we will express our view by reference to it.
- AA's
statement
went on to describe what happened immediately after what we have set out in relation to offence 1. She made it quite clear, as we have set out at paragraph 74, that she wished him to put a condom on before he entered her. Indeed she was concerned he had not put a condom on. She felt his penis with her hand to check he had really put it on. She felt that the edge
of
the condom was in the right place on the root
of
his penis. They therefore continued to have sex, as she said that she thought that she just wanted to get it over with. After a while AA noticed that Mr
Assange
had pulled his penis out
of
her and started to arrange the condom. Judging by the sound AA thought he was removing the condom. He then penetrated her again and continued sexual intercourse. She felt again with her hand that the edge
of
the condom was, as previously, around the root
of
the penis. She therefore let him continue. AA stated that a while later he ejaculated inside her and then pulled out. When he removed the condom from his penis, AA saw it was empty
of
semen. When she started to move her body she noticed something was seeping out
of
her vagina and understood it must be his semen. AA told the police she was convinced that Mr
Assange
, when he pulled out
of
her, broke the condom by the glans and then continued the intercourse until he ejaculated.
- The evidence in the file showed that the condom was examined by the Swedish National Laboratory
of
Forensic Science. The conclusion
of
the expert was that there was nothing to indicate that a tool had been used, but that the damage to the condom was created by the wear and tear
of
the condom.
- It is in our view clear from her
statement
that AA only wished to have sexual intercourse with Mr
Assange
if he used a condom. It is also clear that a case being made by the Prosecutor is that Mr
Assange
, knowing that, nonetheless broke the condom. It was submitted that it should have been made clear that the allegation was founded on her belief he had torn the condom and that the forensic science evidence did not support that belief; it was also submitted that the evidence showed she consented. Whether there is sufficient evidence is a matter with which this court cannot be concerned. Nor was it necessary to set out
facts
that might disprove her case that she did not consent, such as her invitation to him to remain in the flat. The sole concern
of
this court is whether, on the basis that the fairness and accuracy
of
the description can be examined by reference to the materials in the prosecution file, the description
of
the conduct is fair and accurate. In our view, although the language could have been expressed more precisely, it is clear what is being said, namely that Mr
Assange
had sexual intercourse with her when not using a condom when he knew she would not have sex with him unless he was using a condom which protected her from his ejaculate entering her. It seems to us immaterial to the fairness and accuracy
of
the description
of
the offence whether that lack
of
protection arose out
of
his failure to wear a condom or his tearing or damaging the condom deliberately.
- In our view, therefore, the description was fair and accurate; the offence was, for the reasons we have given an offence under the law
of
England and Wales; the requirement
of
dual criminality was satisfied.
(e) Offence 3: Dual criminality: consideration
of
the accuracy and fairness by reference to extraneous material
- It is conceded the description
of
offence 3 in the EAW discloses dual criminality. The position is therefore in that respect the same as for offence 1, as it was submitted that the
statement of
AA in the prosecution file showed that conduct had not been fairly and accurately described. If it had been, then the conduct alleged would not have been an offence under the law
of
England and Wales. Again it was said that viewed in the context
of
the parties' previous relationship, and conduct, important features were omitted from the
statement of facts
. Were they included, the necessary inference that AA did not consent or that Mr
Assange
had no reasonable belief that AA did consent to the sexual touching could not inevitably be drawn.
- For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the
statement of
AA into account, but again as it was before the court de bene esse, we will express our view on the position.
- In her
statement
describing offence 3, which is alleged to have occurred some days later on 18 August 2010 or (in the revised translation) on or about 18 August 2010, AA stated that after 12/13 August 2010 they did not have sexual intercourse again. AA said that Mr
Assange
tried to make sexual advances towards her every day thereafter. For example he had touched her breasts. She rejected him on all occasions. He accepted these rejections.
- During this time, however, she continued to sleep in the same bed as Mr
Assange
. When they were in the same bed on 18 August 2010, he suddenly took all his clothes off from the lower part
of
his body and rubbed that part
of
his body and his erect penis against AA. She had felt this was very strange behaviour and awkward. After this, she no longer slept in the same bed as Mr
Assange
, but moved to a mattress on the floor.
- The essential complaint made about the fairness and accuracy
of
the description
of
offence 3 is that it did not state that Mr
Assange
was sleeping in the same single bed as AA and that, understandably and without criminal intent, he might have had an erection in those circumstances.
- We cannot accept that what is set out in the EAW in respect
of
offence 3 is not fair and accurate. It is clear that what AA complains
of
is that he deliberately took his clothes off the lower part
of
his body and rubbed that part
of
his body and his erect penis against AA. We do not consider the
fact
that the description in the EAW does not state that they were sleeping in the same bed as in anyway affecting the validity
of
the fairness
of
the description. The only point
of
referring to AA and Mr
Assange
being in the same bed would be to give rise to an inference
of
consent to his conduct or the acceptance
of
the risk
of
accidental contact with his lower body or his erect penis. However it seems to us clear from the
statement of
AA that her consent to allow him to share the same bed was not a consent to him removing his clothes from the lower part
of
his body and deliberately pressing that part and his erect penis against her. True it is that the context is not spelt out, but what is necessary for the prosecution to prove as the ingredients
of
the offence under the law
of
England and Wales are spelt out. The context relied on by Mr
Assange
does not show that the allegation is not one
of
an offence under the law
of
England and Wales, including the requisite mens rea.
- We would therefore have reached the conclusion that dual criminality was made out, even if the additional material had been taken into account.
(f) Offence 4: A framework offence: fairness and accuracy
of
the description
of
/he conduct
- As we have set out at paragraph 59, offence 4 is the Framework Offence
of
rape. The provisions
of
Article 2.2
of
the Framework Decision mark a departure from conventional extradition. It specifies a list
of
offences where it is not necessary to establish dual criminality. Rape is one
of
the offences listed. The article provides:
"The following offences,. if they are punishable in the issuing Member State by a custodial sentence or detention order for a maximum period
of
at least three years and as they are defined by the law
of
the issuing Member State, shall, under the terms
of
this Framework Decision and without verification
of
the double criminality
of
the act, give rise to surrender pursuant to a European Arrest Warrant."
- It was contended that the offence as described in the EAW was not "rape"; if it had been fairly or accurately described in the EAW, it still would not have disclosed the offence
of
"rape".
- It is necessary first to consider what is meant by rape.
(i) The meaning
of
rape
- The contention advanced was that there had to be a description
of
what is recognisable as rape as that term is used "in the language and law
of
European countries".
- If the proper approach is to consider whether what is set out in the EAW describes conduct amounting to rape as that is used in "the language and law
of
European countries", as submitted on behalf
of
Mr
Assange
, then it is necessary to consider what is meant by rape. There is,
of
course, no standard definition
of
rape. In M. C. v Bulgaria (2005) 40 EHHR 20, the Strasbourg Court considered a complaint that the law
of
Bulgaria did not sufficiently protect against rape, as it was only in those cases where the victim actively resisted that a prosecution was brought. The court held that although states had a significant margin
of
appreciation, a requirement that the victim must physically resist was no longer a requirement
of
most European countries. After referring to the position in common law states, the court continued:
"159. In most European countries influenced by the continental legal tradition the definition
of
rape contains references to the use
of
violence or threats
of
violence by the perpetrator. It is significant, however, that in case law and legal theory, lack
of
consent, not force is seen as the constituent element
of
rape.
161. Regardless
of
the specific wording chosen by the legislature, in a number
of
countries the prosecution
of
non consensual sexual acts in all circumstances is sought in practice by means
of
interpretation
of
the relevant statutory terms and through a context sensitive assessment
of
the evidence."
The court went on to refer to the Recommendation Rec (2002) 5
of
the Committee
of
Ministers
of
the Council
of
Europe on the protection
of
women against violence and the position in international law. It referred to Prosecutor v Kunarac (2002) IT 96-23/1, where the Appeals Chamber
of
the International Criminal Tribunal for the former Yugoslavia approved the definition
of
rape formulated by the Tribunal after a review
of
international jurisprudence. The definition given was that rape was constituted by intentional penetration without consent with knowledge that it was without consent (see paragraph 128). The Strasbourg Court concluded that the trend was towards "regarding lack
of
consent as the essential element
of
rape." This is confirmed by a more recent study: "Different systems, similar outcomes? Tackling attrition in reported rape cases across Europe" by Lovett and Kelly published by the Child and Women Abuse Studies Unit
of
London Metropolitan University in 2009. The definitions set out show a wide variation with coercion being required in some states and lack
of
consent in others.
- On this approach, then intentional penetration achieved by coercion or where consent is lacking to the knowledge
of
the defendant would be considered to be rape. In our view on this basis, what was described in the EAW was rape. Coercion evidences knowledge
of
a lack
of
consent and lack
of
a reasonable belief in consent. A requirement
of
proof
of
coercion, if that is what Swedish law requires, is a more onerous test for the prosecution to satisfy than the test for consent in the 2003 Act; it necessarily means however that the allegation that the defendant knew
of
the absence
of
consent or had no reasonable belief in consent, is made out in the description
of
the offence.
(ii) The effect
of
designation by the issuing judicial authority
- However, it is not in our view necessary to approach the issue in this way. It is the law
of
the issuing state that governs: Article 2.2
of
the Framework Decision (which we have set out at paragraph 104) clearly so provides.
- The annex to the Framework Decision which sets out the template for an EAW contains the following
statement
prior to the list
of
the Framework Offences:
"If applicable, tick one or more
of
the following offences punishable in the issuing Member State by a custodial sentence or detention order
of
a maximum
of
at least 3 years as defined by the laws
of
the issuing Member State."
The provisions
of
the Framework Decision appear to be reflected in s.64(2)(b)
of
the 2003 Act which provides as one
of
the conditions for extradition for a Framework Offence:
"A certificate issued by an appropriate authority ... shows that the conduct falls within the European framework list."
- Thus it seems to us that although the court executing the EAW must scrutinise the EAW to ensure that it complies with the requirements
of
particularity, it should ordinarily accept the classification
of
the issuing Member State, unless there is an obvious inconsistency which shows that the conduct alleged does not amount to the offence under the law
of
that state. This approach appears to be reflected in the approach
of
the Dutch and Irish courts. We were referred to two decisions
of
the District Court
of
Amsterdam; in the second, UN BO 7884, the court concluded: "In principle it is up to the issuing judicial authority to judge whether an offence for which surrender is sought does fall under the list and which offence must be ticked. Only in those cases where there is evident inconsistency between the description
of
offence and the category ticked, should this lead to the conclusion that the issuing judicial authority has not in reasonableness indicated the offence for which the requirement
of
assessing double criminality does not apply."
- Although the decision
of
the Amsterdam Court was not referred to, this approach is reflected in two decisions
of
the Irish Supreme Court. In Minister
of
Justice, Equality and Law Reform v Desjatnikvos [2008] IESC 53 it was made clear at paragraph 24.1 that the definition
of
Framework Offences is a matter for the issuing state. However, in a second case, Minister
of
Justice v Tighe [2010] IESC 61, it was held that the certification by the issuing Member State was not conclusive. The court held that an EAW issued by the United Kingdom was invalid where, although it was certified, and all the offences were within the Framework List. the EAW described three offences as offences
of
conspiracy which were not Framework Offences. The court observed that the difficulty had arisen because the drafters
of
the EAW had failed to distinguish between the completed offence
of
cheating the revenue which might or might not be capable
of
being a Framework Offence and conspiracy. The fourth offence, "cheating the public revenue", gave as particulars failing to disclose the defendant's income to the Inland Revenue. The court concluded that this did not "obviously fall within" any
of
the headings within the Framework List, as fraud was not an ingredient
of
the offence and nothing was set out in the EAW which showed conduct described in the Framework List.
- In two United Kingdom cases, the court did not need to go so far, reaching the conclusion on the basis
of
the adequacy
of
the particulars given. In Palar v Court
of
First Instance
of
Brussels [2005] EWHC 915 (Admin) to which we have referred at paragraph 65, the contention advanced by the defendant (that it was not a valid EAW as it did not set out particulars
of
the conduct alleged as required by s.2(4)(c» was a contention made in respect
of
a Framework Offence. As we have set out, the court concluded that the warrant did not in
fact
specify conduct against the defendant and therefore no conduct reasonably capable
of
amounting to the Framework Offence was specified in the warrant. In Kingdom
of
Spain v Arteaga [2010] NIQB 23, a Divisional Court in Northern Ireland after an extensive citation
of
authority concluded that the EAW set out the conduct alleged in unacceptably vague and general terms; the failure to condescend to particularity was fatal to the EAW. Neither
of
these cases support the proposition advanced on behalf
of
Mr
Assange
that conduct, even for the Framework Offence
of
rape, must be conduct reasonably capable
of
amounting to rape as understood in England and Wales.
- The Svea Court
of
Appeal, as we have explained at paragraph 51, has considered offence 4 and raised no objection to it. It can therefore be taken that, as other material confirms, rape can be committed according to the law
of
Sweden when a defendant has sexual intercourse with a woman in a helpless state. The particulars given in the EAW set out that helpless state as being asleep. There is no inconsistency between what is set out in the EAWand the classification
of
rape in Sweden.
(iii) The designation ofthe conduct under the law
of
England and Wales
- If, contrary to our view, it was necessary to consider the law
of
England and Wales, the issue would relate to SW's lack
of
consent and Mr
Assange
's knowledge and belief. We have considered the general issue
of
consent at paragraphs 79 to 91. Our view is, as we have set out, that a jury would be entitled to find that consent to sexual intercourse with a condom is not consent to sexual intercourse without a condom which affords protection. As the conduct set out in the EAW alleges that Mr
Assange
knew SW would only have sex if a condom was used, the allegation that he had sexual intercourse with her without a condom would amount to an allegation
of
rape in England and Wales.
- As the EAW sets out the circumstance that SW was asleep, s.75 which applies to rape is also material:
(1) If in proceedings for an offence to which this section applies it is proved
(a) that the defendant did the relevant act,
(b) that any
of
the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that-i
...
(d) the complainant was asleep or otherwise unconscious at the time
of
the relevant act;
- As it is alleged SW was asleep, then she is to be taken not to have consented to sexual intercourse.
(iv) The fairness and accuracy
of
the description
- For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the
statement of
SW into account.
- However, as extraneous material was placed before the court de bene esse, we have considered the fairness and accuracy
of
the description in the light
of
that material. Offence 4 was based on the complaint
of
SW made at a hearing on 26 August 2010. The fairness and accuracy
of
Offence 4 related to SW's account
of
what happened on 17 August 2010. It was submitted that, if that part
of
her
statement
relating to 17 August 2010 was read in its entirety, a fair and accurate description
of
the conduct would have made clear her consent to sexual intercourse or alternatively a reasonable belief on his part that she consented.
- In her
statement
SW said that she had been captivated by Mr
Assange
when she had seen him in a TV interview. She had attended a lunch with him and others on 14 August 2010. He had flirted with her over lunch and they had gone out together ending up in cinema where they kissed and fondled. She contacted him on 16 August 2010 and invited him to her house. In the bedroom he took her clothes off; they were naked together on the bed and engaged in sexual foreplay on the bed. He rubbed his penis against her. She closed her legs because she did not want to have intercourse with him unless he used a condom. After a period
of
some hours, he went to sleep. For a long time she had lain awake, but then she also fell asleep. They then had sexual intercourse with him using a condom. They fell asleep and woke and had sex again. They had breakfast. They had sex again with a condom only on the glans
of
his penis.
- Her
statement
then describes in some detail the conduct that forms the basis
of
Offence 4. She fell asleep, but was woken up by his penetration
of
her. She immediately asked if he was wearing anything. He answered to the effect that he was not. She felt it was too late and, as he was already inside her, she let him continue. She had never had unprotected sex. He then ejaculated inside her.
- The essential complaint made about the fairness and accuracy
of
the description
of
the offence is that it did not set out the context to which we have referred from which it was contended that the offence
of
rape could not be inferred. The context would have made clear that she either consented or he had reasonable belief in her consent.
- We do not consider that the offence was not fairly and accurately described. It is quite clear that the gravamen
of
the offence described is that Mr
Assange
had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom. The description
of
the conduct makes clear that he consummated sexual intercourse when she was asleep and that she had insisted upon him wearing a condom. "Consummated" refers to having intercourse, not to ejaculation. In our judgement it was not necessary to go further than was set out in the description
of
the conduct. as it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state
of
sleep or half sleep, and secondly it avers that consent would not have been given without a condom. There is nothing in the
statement
from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.
- Nor do the inconsistencies in her account and text messages relied upon by Mr
Assange
assist. In one sent by her she described herself as "half asleep" and she accepted in a further interview that she was not fast asleep. These are matters
of
evidence which would be highly relevant at trial. But it is not for this court to asses whether the allegations may fail. It was not therefore necessary to set the details
of
these out. There is, therefore, nothing in the particulars which is neither fair nor accurate.
- The gravamen
of
Mr
Assange
' s argument is that the description
of
the offence by the Prosecutor does not set out the continuum
of
events and the context, but seeks to isolate one aspect. That continuum and context showed that she agreed to sexual intercourse when she realised what was happening; it cannot therefore be alleged that he did not have a reasonable belief in consent. We accept Ms Montgomery's observations about how far it would be right to see what happened afterwards as consensual rather than reluctant submission. But the
fact of
protected sexual intercourse on other occasions cannot show that she was, or that Mr
Assange
could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The
fact
that she allowed it to continue once she was aware
of
what was happening cannot go to his state
of
mind or its reasonableness when he initially penetrated her. Once awake she was deciding whether to let him go on doing what he had started. However it is clear that she is saying that she would rather he had not started at all and had not consented. The prosecution case on rape is or includes the start
of
sexual intercourse: its references to "consummation" cannot in context be confined to its conclusion or to ejaculation. It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.
(v) Conclusion
- In our view, therefore, the objections raised on the second issue fail.
Issue 3: Was Mr
Assange
accused
of
an offence in Sweden?
(a) The provisions
of
the 2003 Act
- It is a condition set out in s.2(2)
of
the 2003 Act that an EAW must contain the
statement
set out in s.2(3):
"A Part 1 warrant is an arrest warrant ... which contains (a) the
statement
referred to in subsection (3)"
That sub-section then provides:
"The
statement
is one that
(a) the person in respect
of
whom the Part 1 warrant is issued is accused in the Category 1 territory
of
the commission
of
an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose
of
being prosecuted for the offence."
This reflects in part Article 1.1
of
the Framework Decision which specifies that extradition is for the purposes
of
conducting a criminal prosecution.
- It was common ground that extradition is not permitted for investigation or gathering evidence or questioning to see if the requested person should be prosecuted.
(ii) The finding
of
the Senior District Judge
- The Senior District Judge found that there was no ambiguity in the EAW. He was therefore required to look at the warrant alone. He was sure it was valid on its face; the surrender
of
Mr
Assange
was, as the warrant stated, requested for the purpose
of
being prosecuted for the offences. The Senior District Judge was satisfied, looking at the warrant as a whole, that Mr
Assange
was an accused person. However he went on to make findings on the extrinsic evidence, as we set out at paragraph 148 below.
(iii) The issue: .vas Mr
Assange
"accused"
- It was accepted in oral submissions made on behalf
of
Mr
Assange
that the surrender
of
Mr
Assange
was sought for the purposes
of
conducting a criminal prosecution (satisfying 2(3)(b)), as the Senior District Judge had held. That concession was made because it was accepted that the words "for the purposes
of
being prosecuted" were broad enough to encompass a prosecution that would commence in the future. Under the Framework Decision which used that term the concepts
of
pre-charge investigation and post charge prosecution had been elided. An EAW could therefore be issued under the Framework Decision prior to the point at which a criminal prosecution had commenced.
- However it was contended that the 2003 Act imposed a further safeguard; by requiring the person to be "accused", it had to be clear that the criminal proceedings had in
fact
commenced. The 2003 Act separated the concepts
of
pre-charge investigation and post-charge prosecution in this way. The EAW did not contain a
statement
that Mr
Assange
was accused
of
the commission
of
an offence in Sweden; that was because he had not been accused
of
an offence, as criminal proceedings had not been commenced. The Senior District Judge was wrong so to have found. He should also have considered the evidence extraneous to the EAW. The 2003 Act had specifically included s.2(3)(a) so that an EAW could not be used for the purposes
of
conducting an investigation; it could only be used where a person had been charged. If an EAW was issued prior to the point at which a criminal prosecution had commenced and the person charged, it was not a valid EAW.
(iv) The meaning
of
"accused"
- S.1
of
the Extradition Act 1989 had provided for the extradition
of
a person who was "accused" in a foreign state
of
the commission
of
an extradition crime. In Re Ismail [1999] 1 AC 320, the defendant challenged his extradition to Germany on the basis that no decision had been taken in Germany to launch criminal proceedings and that in any event a formal charge was necessary before a suspect could be an "accused" person. Lord Steyn in giving the leading judgment set out his views on the meaning
of
"accused" at page 326. It is necessary to set this out at length because a passage upon which Mr
Assange
particularly relied must be seen in context.
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category
of
"accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems
of
law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning
of
the Act
of
1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that "accused" in s.1
of
the Act
of
1989 is not a term
of
art. It is a question
of fact
in each case whether the person passes the threshold test
of
being an "accused" person. Next there is the reality that one is concerned with the contextual meaning
of
"accused" in a statute intended to serve the purpose
of
bringing to justice those accused
of
serious crimes. There is a transnational interest in the achievement
of
this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition ... It follows that it would be wrong to approach the problem
of
construction solely from the perspective
of
English criminal procedure, and in particular from the point
of
view
of
the formal acts
of
the laying
of
an information or the preferring an indictment. Moreover, it is important to note that in England a prosecution may also be commenced if a custody officer decides that there is sufficient evidence to charge an arrested person and then proceeds to charge him... Despite the
fact
that the prosecuting authorities and the court are not involved at that stage, the charging
of
an arrested person marks the beginning
of
a prosecution and the suspect becomes an "accused" person. And that is so even if the police continue to investigate afterwards."
He continued at page 327:
"It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an "accused" person. All one can say with confidence is that a purposive interpretation
of
"accused" ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter
of
substance rather than form the requirement
of
there being an "accused" person is satisfied. That such a broad approach to the interpretation
of
section 1
of
the Act
of
1989 is permissible is reinforced by the provisions
of
section 20. This provision deals with the reverse position
of
an extradition
of
a person "accused" in the United Kingdom and contemplates that "proceedings" against him may not be commenced ("begun") for six months after his return. This provides contextual support for a correspondingly broad approach to "accused" in section 1. For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement
of
a prosecution. But in the light
of
the diversity
of
cases which may come before the courts it is right to emphasise that ultimately the question whether a person is "accused" within the meaning
of
section 1
of
the Act
of
1989 will require an intense focus on the particular
facts of
each case." (The passage in italics is the passage particularly relied upon by Mr
Assange
.)
- The decision
of
Parliament to insert into the 2003 Act the requirement that the person was "accused"
of
an offence in addition to the requirement under the Framework Decision that surrender was sought for the purpose
of
being prosecuted for the offence can be seen as an expression
of
Parliament's intention to add an additional requirement to the Framework Decision. It must also be borne in mind, however, that in examining the difference between the language
of
the 2003 Act and the Extradition Act 1989, the requirement that the surrender was sought for the purpose
of
being prosecuted for an offence was an additional requirement to what was set out in the Extradition Act 1989.
- Although, as we have explained at paragraph 9 and following, the 2003 Act generally must be construed as giving effect to the Framework Decision, a court has to take account
of
the
fact
that it had been open to Parliament to provide a greater measure
of
protection (see the passage in the judgment
of
Lord Hope in Cando Armas which we have set out at paragraph 12 above). Furthermore, as Parliament used the term "accused", it must have intended to use the term in the light
of
the guidance given in Ismail: we agree with the similar observations
of
Aikens LJ in Asztaslos v The Szekszard City Court in Hungary [2010] EWHC 237 (Admin) at paragraphs 16-19. We were referred to
statements
made in Parliament by Ministers, but we do not consider it necessary to refer to them as the language
of
the Act is clear.
- It is not perhaps surprising that the courts have not found it easy to determine the circumstances in which the requirement in s.2(3)(b) (for the purpose
of
being prosecuted) is satisfied (as it is in this case) but not s.2(3)(a) ("accused"). In Judicial authority ofthe Court
of
First Instance, Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin), Toulson LJ said at paragraph 52 that the EAW in that case complied with s2(3) even though the warrant did not contain the word "accused". He applied the approach in Asztaslos
of
examining the EAW without regard to evidence extraneous to the EAW to see if it was clear. He then adopted what Jack J had said in Dabas v High Court
of
Madrid [2006] EWHC 971 (Admin):
"If [a person] is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as an "accused" even if there is no
statement
using that word. The subject
of
such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning."
The court should, in our view, be very careful in the context
of
the 2003 Act and the Framework Decision about giving to the word "accused" some technical procedural meaning which would amount to a hurdle which other Member States cannot match in their own procedures.
(v) The terms
of
the EAW
- As we have set out at paragraph 2 above, the EAW stated that it requested Mr
Assange
be surrendered for the purposes
of
conducting a criminal prosecution. It was in the standard form
of
the EAW in the annex to the Framework Decision. The Prosecutor had not adapted the wording to the case by deleting the reference to executing a custodial sentence, but this is not relevant. Although the EAW makes clear that the surrender is requested for the purpose
of
conducting a criminal prosecution, set out the offences and does refer to the warrant being based on the decision
of
the Svea Court
of
Appeal, there is nothing in the EAW that formally states he is accused
of
an offence in Sweden.
- It is clear that the
statements
required by s.2(3)
of
the 2003 Act are essential requirements; they are not simple formalities: Office
of
the King's Prosecutor, Brussels v Cando Armas. (see the judgments
of
Lord Hope at paragraph 42 and Lord Scott at paragraph 56-7). In Dabas (to which we referred at paragraph 64 above), Lord Hope made clear at paragraph 50:
"A warrant which does not contain the
statements
referred to in [s.2(2)] cannot be eked out by extraneous information. The requirements
of
s.2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions
of
that Part
of
the Act will not apply to it."
It follows that the Prosecutor must not have had its attention drawn to the further observations
of
Lord Hope in Cando Armas at paragraph 48:
"The
fact
that Part 1
of
the 2003 Act does not match the requirements
of
the Framework Directive is confusing to the unwary, and it appears likely that it will be a source
of
continuing difficulty. Steps should be taken to remind the authorities in the category 1 territories that the
statements
referred to in section 2(2)
of
the Act are a necessary part
of
the procedure that has been laid down in Part 1
of
the Act."
- It is not necessary for the
statement
to use the precise terms set out in the 2003 Act, so long as it is clear that that is what the EAW read as a whole is saying and that it complies with the requirements
of
s.2(3).
- We agree with the approach
of
Toulson LJ in Bartlett that the language
of
the EAW should make clear that
"The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose
of
the request for extradition must be to place him on trial." (paragraph 50)
In our view, the terms
of
the EAW read as a whole made clear that not only was the EAW issued for the purpose
of
Mr
Assange
being prosecuted for the offence, but that he was required for the purposes
of
being tried after being identified as the perpetrator
of
specific criminal offences. He was therefore accused
of
the offences specified in the EAW. Nothing in the EAW suggested he was wanted for questioning as a suspect.
(vi) The circumstances in which the extraneous evidence was adduced
- However, the submissions made by Mr
Assange
were advanced, as we have mentioned, on the basis
of
extraneous evidence to which we must now refer.
- Mr
Assange
contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose
of
questioning Mr
Assange
rather than prosecuting him and that he was not accused
of
an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed
statement
dated 11 February 2011 on behalf
of
the Prosecutor:
"6. A domestic warrant for [Julian
Assange
's] arrest was upheld [on] 24 November 2010 by the Court
of
Appeal, Sweden. An arrest warrant was issued on the basis that Julian
Assange
is accused with probable cause
of
the offences outlined on the EAW.
7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian
Assange
's case is currently at the stage
of
"preliminary investigation". It will only be concluded when Julian
Assange
is surrendered to Sweden and has been interrogated.
8. The purpose
of
a preliminary investigation is to investigate the crime. provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case
of
a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage
of
the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian
Assange of
the offences.
9. It is submitted on Julian
Assange
's behalf that it would be possible for me to interview him by way
of
Mutual Legal Assistance. This is not an appropriate course in
Assange
's case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate
Assange
, in person, regarding the evidence in respect
of
the serious allegations made against him.
10. Once the interrogation is complete. it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that
Assange
is sought for the purpose
of
conducting criminal proceedings and that he is not sought merely to assist with our enquiries."
- The language
of
paragraph 6
of
the
statement
in terms made clear he was "accused"
of
an offence; the remainder
of
the
statement
explained the procedure. The Senior District Judge then heard evidence; his findings on that evidence are summarised by us at paragraph 148 below
(vii) The contention
of
Mr
Assange
on the extraneous evidence
- Mr
Assange
's contention was that he had not been accused
of
an offence in Sweden. For that to happen a decision to prosecute had to be made and none had been. Criminal proceedings had not commenced. Lord Steyn, in Ismail in the passage at page 327 (which we have highlighted in italics at paragraph 133 above), had approved the approach
of
the Divisional Court in asking in that case whether the authorities had taken a step which could fairly be described as the commencement
of
proceedings. Reliance was placed on the following by Mr
Assange
:
i) The Senior District Judge, who had heard evidence
of
Swedish law, had found on the evidence before him that the proceedings were at the preliminary investigation stage; that the preliminary investigation did not come to an end until the evidence was served on Mr
Assange
or his lawyer and there had been an interrogation
of
him with the opportunity for further enquiries. Thereafter there would be a decision to charge; if charged, it was likely that the trial would take place shortly thereafter.
ii) There were numerous
statements
by Ms Ny that the proceedings were still at the investigative stage. She had said on 19 November 2010; "We have come to a point in the investigation where we cannot go further without speaking to Julian
Assange
." She had written to the Australian Ambassador in December 2010 making it clear that she was engaged in an "on going investigation". In a conversation with the Ambassador on 16 December 2010, she had confirmed that no decision had been made to prosecute Mr
Assange
. It was only when such a decision was made that Mr
Assange
would be granted access to all the documents in the case.
iii) In the Prosecutor's submission to the Svea Court
of
Appeal when it was considering the appeal
of
Mr
Assange
against the decision to issue a warrant for his arrest (to which we have referred at paragraph 51 above), the Prosecutor had stated that the reason for the arrest
of
Mr
Assange
was "in order to enable implementation
of
the preliminary investigation and possible prosecution". In rejecting the appeal the Court had stated in its reasons that Mr
Assange
was "suspected with probable cause
of
' the four offences to which we referred at paragraph 3.
iv) The translation
of
the EAW was wrong; the word translated as "criminal prosecution" was in Swedish "for lagforing". This was a general term relating to the entire process; it meant "legal proceedings". There were more precise words that should have been used such as åtala or åklaga which meant prosecute or indict.
(viii) Can extraneous evidence be examined!
- There have been a number
of
cases where a challenge has been made to an EAW on the basis that it requested surrender
of
a person who neither was accused
of
an offence nor whose surrender was sought for the purposes
of
being prosecuted for the offence. The question arose in some
of
those cases as to whether the court could examine material extraneous to the EAW. The cases were considered in Asztaslos v The Szekszard City Court in Hungary (2010] EWHC 237 (Admin) where Aikens LJ, in giving the judgment
of
the court, summarised the effect
of
the cases at paragraph 38
of
his judgment in seven propositions. He concluded that the court should only examine extraneous evidence if the wording
of
the warrant was equivocal and then only as a last resort. It should be discouraged. The correctness
of
this conclusion was challenged on behalf
of
Mr
Assange
.
- We were referred to a number
of
cases including the following. In Vey v The Office
of
the Public Prosecutor ofthe County Court ofMontlucon, France [2006] EWHC 760 (Admin), the EAW referred to the defendant as an accused, but other
statements
made it unclear whether it was issued for the purposes
of
the defendant being prosecuted. The further information requested by the District Judge made matters less clear. The court (Moses LJ and Holland J) examined the procedure in France to determine whether extradition was sought for the purposes
of
a prosecution. In McCormack v Tribunal de Grande Instance, Quimper. France [2008] EWHC 1453 (Admin) the EAW described the stage in the investigation which had been reached; the court (Maurice Kay LJ and Penry-Davey J) received evidence
of
French criminal procedure to determine whether he was an accused and wanted for the purposes
of
prosecution. In Thompson v Public Prosecutor
of
Boulogne sur Mer [2008] EWHC 2787 (Admin), there was no extraneous material; the court (Scott Baker LJ and Aikens J) had to decide on the language
of
the warrant whether the conditions were met. In R(Trenk) v District Court in Plzen-Mesto. Czech Republic [2009] EWHC 1132 (Admin), the court (Davis J) reviewed extraneous materials in determining whether the case had crossed the boundary from investigation to prosecution. In The Judicial Authority
of
the Court ofFirst Instance. Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin), the EAW referred to the judicial investigation producing serious indications that the defendant was guilty and referred to the "
facts of
which he was charged"; expert evidence was heard by the District Judge. Although the court (Toulson L.J and Griffith Williams J) considered that extraneous evidence should not be admitted to contradict a warrant where it was clear, the court used the extraneous material, in the event, as the warrant contained an ambiguity.
- The cases do show differing approaches. It is, however, not necessary for us to decide whether evidence extraneous to the EAW was admissible in order to determine this appeal. It is in those circumstances not desirable for us to consider the correctness
of
what was said by Aikens L.J said in Asztaslos (as we were invited to do by Mr Emmerson) or to state in our own words what approach should be adopted. We can determine the matter on the assumption that the EAW did not make clear Mr
Assange
was accused (contrary to the view we have expressed at paragraph 140) and that Mr
Assange
was entitled to rely on the extraneous evidence in relation to the question as to whether he was accused. We would simply emphasise our view that, although we have made the second assumption, cases where evidence extraneous to the EAW is admitted should be very few and far between.
(ix) Conclusion on the extraneous evidence
- The Senior District Judge found on the basis
of
the extraneous evidence that the
fact
some further pre-trial evidential investigation might result in no trial taking place did not mean Mr
Assange
was suspected as opposed to accused; and the
fact
that under Swedish law a person had to be interrogated before a decision to charge was made was not determinative. Clear and specific allegations had been made against Mr
Assange
. Although he could not say when or what step had been taken which could fairly be described as the commencement
of
the prosecution, the boundary between suspicion and investigation and prosecution had been crossed. Looking at the matter in the round, Mr
Assange
passed the threshold
of
being wanted for prosecution.
- It is clear on the extrinsic evidence that a decision has not been taken to charge him. Under the law
of
Sweden that decision will only be made after he has been questioned again. Under Swedish procedure, that decision is made at the conclusion
of
the investigation and, according to the evidence before the Senior District Judge. The defendant will then be given the right to examine all the documents relating to the case.
- In our judgment, the
fact
that under the criminal procedure
of
Sweden he may be required to answer further questions before a decision is made to charge him or that the
fact
that the full file has not yet been provided are not decisive. The former is not an uncommon procedure on the continent and many systems do not permit access to the file until sometime after it is clear the person is accused
of
an offence. The
fact
that the Court
of
Appeal
of
Svea used the word "suspected" or that the prosecutor in her supplemental material has said he is "accused" takes the matter no further. The real question is whether the
fact
that it is clear that a final decision has not been made to prosecute or charge Mr
Assange
means that he is not "accused
of
the offence". The questioning is not for the mere investigation
of
a suspect, but to ensure that there is no proper basis for the accusation not to proceed swiftly to trial, where the focus is likely to be on what is admitted. denied or put on a different light in the answers to the questions.
- We do not see why looking at the matter through cosmopolitan eyes it cannot be said that a person can be accused
of
an offence even though the decision has not finally been taken to prosecute or charge; Ismail makes clear one cannot simply look at the matter as a common lawyer. In our judgment Mr
Assange
is on the
facts
before this court "accused"
of
the four offences. There is a precise description in the EAW
of
what he is said to have done. The extraneous evidence shows that there has been a detailed investigation. The evidence
of
the complainants AA and SW is clear as to what he is said to have done as we have set out. On the basis
of
an intense focus on the
facts
he is plainly accused. That is. as Lord Steyn said, decisive.
- As it is common ground that a criminal investigation about someone's conduct is not sufficient to make a person an accused, a further way
of
addressing this broad question is to ask whether the case against him has moved from where he can be seen only as a suspect where proof may be lacking or whether there is an accusation against him supported by proof: cf the distinction made by Lord Devlin in Hussein v Chong Fook Kam [1970] AC 942 at 948. Plainly this is a case which has moved from suspicion to accusation supported by proof.
- Although we have approached the matter by asking the broad question posed by Lord Steyn as to whether Mr
Assange
was accused, it was the submission
of
Mr
Assange
that the court should ask the question asked by the Divisional Court in Ismail, namely whether a step had been taken which could fairly be described as the commencement
of
the prosecution. It is, in our view, clear that whilst Lord Steyn approved that approach, it was not the only approach to the question
of
whether he was an accused. The issue was to be addressed broadly on the
facts
. But, even if the court was constrained to determine whether someone was an accused by solely considering the question
of
whether the prosecution had commenced, we would not find it difficult to hold that looking at what has taken place in Sweden that the prosecution had commenced. Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr
Assange
had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement
of
criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest
of
common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr
Assange
.
- In our view therefore, Mr
Assange
fails on the
facts
on this issue.
Issue 4: Proportionality
- Mr
Assange
submitted that even if under the EAW he was technically a person accused
of
offences, it was disproportionate to seek his surrender under the EAW. That was because, as he had to be questioned before a decision was made on prosecution, he had offered to be questioned over a video link. It would therefore have been proportionate to question him in that way and to have reached a decision on whether to charge him before issuing the EAW.
- It is clear from the Report
of
the European Commission on the Implementation
of
the Framework Decision (COM (2011) 175 Final, 11 April 2011), that there was general agreement between the Member States, as a result
of
the use
of
EAWs for minor offences technically within the Framework Decision, that a proportionality check was necessary before a judicial authority in a Member State issued an EAW. This
statement
was a strong reminder to judicial authorities in a Member State contemplating the issue
of
an EAW
of
the need to ensure that the EAW was not used for minor offences. It is not a legal requirement. There is, however, almost universal agreement among prosecutors and judges across Europe that this reminder to conduct a proportionality check should be heeded before an EAW is issued.
- It was submitted on behalf
of
Mr
Assange
proportionality was also a requirement
of
the law on the following basis. The Framework Decision as an EU instrument is subject to the principle
of
proportionality; reliance was placed on the effect
of
the Charter
of
Fundamental Rights, R(NS) v SSHD [2010] EWCA Civ 990 and the decision
of
the Higher Regional Court in Stuttgart in General Public Prosecution Service v C (25 February 2010), as reported at [2010] Crim LR 474 by Professors Vogel and Spencer. We will assume that Mr
Assange
's argument that an EAW can only be used where proportionate, complex as it is, is well founded without lengthening the judgment still further to express a view on it.
- However, the argument fails on the
facts
. First, in this case, the challenge to the issue
of
the warrant for the arrest
of
Mr
Assange
failed before the Court
of
Appeal
of
Svea. In those circumstances, taking into account the respect this court should accord the decision
of
the Court
of
Appeal
of
Svea in relation to proceedings governed by Swedish procedural law, we do not consider the decision to issue the EAW could be said to be disproportionate.
- Second and in any event, this is self evidently not a case relating to a trivial offence, but to serious sexual offences. Assuming proportionality is a requirement, it is difficult to see what real scope there is for the argument in circumstances where a Swedish Court
of
Appeal has taken the view, as part
of
Swedish procedure, that an arrest is necessary.
- We would add that although some criticism was made
of
Ms Ny in this case, it is difficult to say, irrespective
of
the decision
of
the Court
of
Appeal
of
Svea, that her failure to take up the offer
of
a video link for questioning was so unreasonable as to make it disproportionate to seek Mr
Assange
's surrender, given all the other matters raised by Mr
Assange
in the course
of
the proceedings before the Senior District Judge. The Prosecutor must be entitled to seek to apply the provisions
of
Swedish law to the procedure once it has been determined that Mr
Assange
is an accused and is required for the purposes
of
prosecution. Under the law
of
Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness
of
the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf
of
Mr
Assange
would have proved practicable or would not have been the subject
of lengthy dispute.
Conclusion
- For the reasons we have set out, we would dismiss the appeal.