JUDGMENT
Bucnys (Appellant) v Ministry of Justice, Lithuania
(Respondent)
Sakalis (Appellant) v Ministry of Justice, Lithuania
(Respondent)
Lavrov (Respondent) v Ministry of Justice, Estonia
(Appellant)
before
Lord Mance
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
20 November 2013
Heard on 16 and 17 July 2013
Appellant
(Bucnys)
Respondent
(Ministry of Justice,
Lithuania)
James Lewis QC Julian Knowles QC
Joel Smith Mark Summers
James Stansfeld
Hannah Pye
(Instructed by Kayders
Solicitors)
(Instructed by Crown
Prosecution Service)
Appellant
(Sakalis)
Respondent
(Ministry of Justice,
Lithuania)
James Lewis QC Julian Knowles QC
Ben Cooper Mark Summers
James Stansfeld
Hannah Pye
(Instructed by EBR
Attridge LLP)
(Instructed by Crown
Prosecution Service)
Appellant (Ministry of
Justice, Estonia)
Respondent
(Lavrov)
Julian Knowles QC Alun Jones QC
Mark Summers
James Stansfeld
Aaron Watkins
Michelle Butler
Hannah Pye
(Instructed by Crown
Prosecution Service)
(Instructed by Kaim
Todner Solicitors Ltd)
LORD MANCE (with whom Lord Kerr, Lord Wilson, Lord Hughes and
Lord Toulson agree)
Introduction
1. These appeals concern requests made for the surrender under Part 1 of the
Extradition Act 2003 of three persons wanted to serve sentences imposed upon
their conviction in other member states of the European Union. The requests
relating to the appellants Mindaugas Bucnys (“Bucnys”) and Marius Sakalis
(“Sakalis”) come from the Ministry of Justice of the Republic of Lithuania. The
third request, relating to the respondent Dimitri Lavrov (“Lavrov”), comes from
the Ministry of Justice of the Republic of Estonia.
2. The Ministries made the requests in the form of “European arrest warrants”
intended to meet the requirements of Council Framework Decision 2002/584/JHA
on the European arrest warrant and surrender procedures between member states
of the European Union (“the Framework Decision”). Within the United Kingdom,
Part 1 of the Extradition Act 2003 was enacted to give effect to the same
requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in
this country, certified by the Serious Organised Crime Agency (“SOCA”), the
designated authority under section 2(9), as Part 1 warrants issued by a judicial
authority of a category 1 territory having the function of issuing arrest warrants.
3. The questions of principle raised by the present appeals are whether the
requests are open to challenge on the basis that (i) they were not the product of a
“judicial decision” by a “judicial authority” within the terms of the Framework
Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the
Ministries making them did not have the function of issuing domestic arrest
warrants and were incorrectly certified by SOCA under section 2(7) of the 2003
Act. If a challenge is open on either or both of these bases, the third question is
(iii) whether the challenge is on the evidence well-founded in the case of either or
both of the Ministries.
4. The Administrative Court (Aikens LJ and Globe J) on 12 December 2012
answered the first question in the affirmative and the second in the negative:
[2013] 1 All ER 1220. As to the third, it concluded that a ministry of justice would
under European law be regarded as a “judicial authority” for the purposes of
issuing a conviction warrant if it was sufficiently independent of the executive for
the purposes of making that “judicial decision” (para 98); it held further that the
antecedent process, in the form of a request for the issue of a European arrest
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warrant coming from the court responsible for the conviction, was relevant, and
that, in the light of these considerations, the requests made by the Ministry of
Justice of Lithuania in the cases of Bucnys and Sakalis were valid, while the
request made by the Ministry of Justice of Estonia in the case of Lavrov was
invalid. Bucnys and Sakalis now appeal, while the Estonian Ministry appeals in the
case of Lavrov.
The bases of the requests
5. The request in respect of Bucnys results from his conviction for six
housebreaking and one fraud offences, for which a total sentence of 5 years 4
months was passed on 29 February 2007. He was released conditionally by the
Alytus Region District Court’s order on 12 September 2008, but on 20 February
2010 the Vilnius City 1st District Court quashed his conditional release for failure
to abide by the condition, requiring him to serve a further period of 1 year 7
months 28 days. The request for his surrender was expressed to be based on this
court order dated 20 February 2010. Since preparing this judgment, the court has
been informed by those instructed by Bucnys that he has died, presumably since
the hearing. The issue raised remains of general importance, and this judgment
records the Court’s conclusions on it.
6. Sakalis is wanted as a result of his conviction of a series of serious sexual
assaults, including buggery, inflicted on the same victim on 28 October 2006. A
sentence of 4 years was imposed by the Vilnius City 1st District Court on 25
January 2008, and his appeal was dismissed in his absence by the Vilnius County
Court on 24 December 2008. Sakalis absconded before serving any part of this
sentence. The request for his surrender was issued by the Minister of Justice
signing as representative of the Ministry of Justice.
7. Lavrov is wanted as a result of murder of an invalid paranoid schizophrenic
in the nursing home where Lavrov worked as a medical orderly. He was sentenced
to 13 years imprisonment on 23 March 2001, released on parole on 14 July 2008
with an obligation to fulfil supervision requirements. He was recalled to prison by
the Viru County Court on 2 December 2009 for failure to fulfil such requirements,
meaning that he would have to serve a further 4 years 2 months and 25 days in
prison, but he absconded. On 9 February 2010 the Viru County Court issued an
arrest warrant. On 10 February 2011, it sent a request to the Ministry of Justice to
issue a warrant, leading to the Head of the Ministry’s International Cooperation
Unit issuing the request in issue dated 31 May 2011, expressed to be on the basis
of the warrant dated 9 February 2010.
Page 3
Extradition Act 2003 and Framework Decision
8. Section 2 of the 2003 Act, as amended by section 42 of, and paragraph 1(1)
of Schedule 13 to, the Police and Justice Act 2006, reads:
“Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1
warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial
authority of a category 1 territory and which contains —
(a) …. , or
(b) the statement referred to in subsection (5) and the information
referred to in subsection (6)
….
(5) The statement is one that —
(a) the person in respect of whom the Part 1 warrant is issued has
been convicted of an offence specified in the warrant by a court in
the category 1 territory, 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
sentenced for the offence or of serving a sentence of imprisonment
or another form of detention imposed in respect of the offence.
(6) The information is —
(a) particulars of the person’s identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory
for the person’s arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law
of the category 1 territory in respect of the offence, if the person has
not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law
of the category 1 territory in respect of the offence, if the person has
been sentenced for the offence.
(7) The designated authority may issue a certificate under this
section if it believes that the authority which issued the Part 1
warrant has the function of issuing arrest warrants in the category 1
territory.
(8) A certificate under this section must certify that the authority
which issued the Part 1 warrant has the function of issuing arrest
warrants in the category 1 territory.
(9) The designated authority is the authority designated for the
purposes of this Part by order made by the Secretary of State….”
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9. The Framework Decision was a “third pillar” measure agreed between
member states under Title VI of the Treaty on European Union (“TEU”) in its preLisbon Treaty form. The heading of Title VI is “Provisions on Police and Judicial
Cooperation in Criminal Matters”. The Framework Decision was expressed to be
made with regard to the TEU “and in particular Article 31(a) and (b) [sic] and
Article 34(2)(b) thereof”. Article 31(1)(a) and (b) are for present purposes
relevant:
“31(1). Common action on judicial cooperation in criminal matters
shall include:
(a) facilitating and accelerating cooperation between competent
ministries and judicial or equivalent authorities of the member states,
including, where appropriate, cooperation through Eurojust, in
relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between member states; ….”.
10. The Framework Decision starts with recitals, stating inter alia:
“(5) 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.
(6) The European arrest warrant provided for in this Framework
Decision is the first concrete measure in the field of criminal law
implementing the principle of mutual recognition which the
European Council referred to as the ‘cornerstone’ of judicial
cooperation. ….
(8) 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.
Page 5
(9) The role of central authorities in the execution of a European
arrest warrant must be limited to practical and administrative
assistance.”
11. The text of the Framework Decision provides:
“GENERAL PRINCIPLES
Article 1
Definition of the European arrest warrant and obligation to execute it
1. The European arrest warrant is a judicial decision issued by a
member state with a view to the arrest and surrender by another
member state of a requested person, for the purposes of conducting a
criminal prosecution or executing a custodial sentence or detention
order.
2. Member states shall execute any European arrest warrant on the
basis of the principle of mutual recognition and in accordance with
the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying
the obligation to respect fundamental rights and fundamental legal
principles as enshrined in Article 6 of the Treaty on European Union.
…
Article 6
Determination of the competent judicial authorities
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 the
European arrest warrant by virtue of the law of that state.
Page 6
3. Each member state shall inform the General Secretariat of the
Council of the competent judicial authority under its law.
Article 7
Recourse to the central authority
1. Each member state may designate a central authority or, when its
legal system so provides, more than one central authority to assist the
competent judicial authorities.
2. A member state may, if it is necessary as a result of the
organisation of its internal judicial system, make its central
authority(ies) responsible for the administrative transmission and
reception of European arrest warrants as well as for all other official
correspondence relating thereto.
Member state wishing to make use of the possibilities referred to in
this article shall communicate to the General Secretariat of the
Council information relating to the designated central authority or
central authorities. These indications shall be binding upon all the
authorities of the issuing member state.
Article 8
Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following
information set out in accordance with the form contained in the
Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address
of the issuing judicial authority;
Page 7
(c) evidence of an enforceable judgment, an arrest warrant or any
other enforceable judicial decision having the same effect, coming
within the scope of articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in
respect of article 2;
(e) a description of the circumstances in which the offence was
committed, including the time, place and degree of participation in
the offence by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed
scale of penalties for the offence under the law of the issuing
member state;
(g) if possible, other consequences of the offence.
SURRENDER PROCEDURE
Article 9
Transmission of a European arrest warrant
1. When the location of the requested person is known, the issuing
judicial authority may transmit the European arrest warrant directly
to the executing judicial authority.
2. The issuing judicial authority may, in any event, decide to issue an
alert for the requested person in the Schengen Information System
(SIS).
3. Such an alert shall be effected in accordance with the provisions
of article 95 of the Convention of 19 June 1990 implementing the
Schengen Agreement of 14 June 1985 on the gradual abolition of
controls at common borders. An alert in the Schengen Information
System shall be equivalent to a European arrest warrant
accompanied by the information set out in article 8(1).
Page 8
For a transitional period, until the SIS is capable of transmitting all
the information described in article 8, the alert shall be equivalent to
a European arrest warrant pending the receipt of the original in due
and proper form by the executing judicial authority.”
Status of designation under article 6 and of SOCA certification under section 2(7)
12. The first two questions identified in paragraph 3 above are inter-related.
Part 1 of the 2003 Act was enacted to give effect to the United Kingdom’s
international obligations contained in the Framework Decision. By its decision in
Assange [2012] 2 AC 471 this court underlined the strength of the presumption
that it did so fully and effectively. The Ministries submit that article 6 of the
Framework Decision was intended to leave it to each member state to define its
own judicial authority or authorities for the purposes of the Framework Decision,
as best suited it; the information given by each state to the General Secretariat of
the Council “of the competent judicial authority under its law” should be taken as
conclusive, pursuant to the same spirit of mutual trust as underlies the Framework
Decision itself; and section 2(7) of the 2003 Act must be taken as having been
intended to involve a simple check by SOCA of the information received by the
Secretariat, leading to a certificate issued by SOCA which must itself be taken as
binding on the question whether the Part 1 warrant was issued by a competent
judicial authority for the purposes of the 2003 Act.
13. In a number of domestic authorities, the Ministries’ analysis has been
accepted: Enander v Governor of Brixton Prison [2006] 1 CMLR 999, where
Openshaw J thought that any further “inquiry would be attended with considerable
practical difficulty, it would be fraught with uncertainty, and would deprive the
Act of its efficacy and cannot, in my judgment, have been intended by Parliament”
(para 30), Goatley v HM Advocate 2008 JC 1 and Harmatos v Office of the King’s
Prosecutor in Dendermonde, Belgium [2011] EWHC 1598 (Admin).
14. In more recent authorities, a different attitude has been taken. At first
instance in Assange [2011] EWHC 2849 (Admin), para 17, Sir John Thomas P,
giving the judgment of the Divisional Court of the Queen’s Bench Division
thought that:
“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.
….”
Page 9
Later, he said:
“46. 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 para 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.
47. 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
para 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.
48. 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 section 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.”
15. In Dhar v National Office of the Public Prosecution Service, The
Netherlands [2012] EWHC 697 (Admin), King J pursued the same theme, saying:
Page 10
“38. True it is that the certificate must be certifying that the issuing
authority has been designated by the law of the requesting state as
the competent judicial authority for the purpose of issuing such
warrants and that the requesting state has given notice to this effect
to the General Secretariat of the European council pursuant to article
6(3) of the Framework Decision, but this is not the same in my
judgment as certifying that such designated authority is as a matter
of fact a judicial authority within the meaning of section 2(2).
39. Hence in my judgment it must be open, the grant of the
certificate under section 2(7) notwithstanding, to this appellant to
raise on this appeal (as he could have done before the District Judge)
the issue whether the warrant was an invalid Part 1 warrant on the
grounds that the purported issuing authority was not a judicial
authority within the meaning of section 2(2) of the Act.”
16. When Assange was before the Supreme Court [2012] 2 AC 471, Miss
Montgomery initially maintained the attitude she had taken in the Administrative
Court, but in a late change of stance she aligned herself with the Lord Advocate for
Scotland’s written intervention advancing the same case as the present Ministries.
In the event, the majority decision on other points made it unnecessary to decide
this point: see per Lord Phillips of Worth Matravers at paras 81-82. However, Lord
Kerr of Tonaghmore and I expressed views obiter that article 6 did not mean that
any authority about which information was given to the Council Secretariat was
ipso facto “judicial” (paras 105 and 238).
17. Mr Knowles QC for the Ministries of Justice on the present appeal submits
that, although Lord Phillips said that he was leaving the point open, he had in
effect answered it in reasoning with which other members of the majority
concurred. Mr Knowles points out that Miss Montgomery’s “wider submission” in
Assange was that, although “judicial authority” had a “broad and autonomous
meaning”, this meaning describes “any person or body authorised to play a part in
the judicial process” (Lord Phillips’ judgment, para 5); and that at para 76 Lord
Phillips concluded that “the ‘issuing judicial authority’ bears the wider meaning
for which Miss Montgomery contends and embraces the Prosecutor in the present
case”.
18. Mr Knowles’s submission reads more into these passages in Assange than
can be justified. By “authorised to play a part in the judicial process” must have
been meant more than simply “authorised” to issue a European arrest warrant
domestically and designated to the Secretariat under article 6(3). Otherwise, there
would be no autonomous content at all. Even if one takes the “sens vague” of
“autorité judiciare” which Lord Phillips approved in paras 18 and 65, this does not
Page 11
make an unlimited (only a “wider”) range of authorities eligible to be regarded as
judicial. Such authorities must be at the least authorities “qui appartient à la
justice, par opp[osition] à legislative et administrative”. Further, and most
importantly, it is clear that the ratio of Assange was and is confined to the status of
public prosecutor, and that other members of the majority cannot be taken as
necessarily having agreed with all that Lord Phillips said on a number of points:
see eg Lord Walker of Gestingthorpe at para 91, Lord Brown of Eaton-underHeywood at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and
171.
19. Finally, in the present case, the Administrative Court also disagreed with
Enander [2006] 1 CMLR 999 and Harmatos [2011] EWHC 1598 (Admin) in so
far as they stated that any certificate issued by SOCA under section 2(7) was
conclusive or could only be challenged by judicial review, and preferred the views
expressed on this aspect by King J in Dhar and by Lord Kerr and myself in
Assange.
Status and interpretation of Framework Decision
20. For reasons explained in this Court in Assange [2012] 2 AC 471, paras 208-
217, the Framework Decision falls outside the scope of the European Communities
Act 1972. It is true, as Aikens LJ observed in para 48 of his judgment in this case,
that this makes inapplicable the provision in section 3 of the 1972 Act imposing a
duty on domestic courts to treat any question as to the meaning of any European
Treaty or any European Union instrument as a question of law to be determined in
accordance with the principles laid down by the European Court of Justice. But,
viewing the Framework Decision as an international measure having direct effect
only at an international level, the United Kingdom must still have contemplated
that it would be interpreted uniformly and according to accepted European legal
principles. When applying the common law presumption that Part 1 of the 2003
Act gives effect to the United Kingdom’s international obligations fully and
consistently (Assange, paras 201 and 204-206), I would therefore think it
appropriate to have regard to European legal principles in interpreting the
Framework Decision. Ultimately, however, this is not a point which I see as
critical to these appeals.
21. The recitals to the Framework Decision emphasise the importance being
attached to the replacement of “traditional cooperation relations” by “a system of
surrender between judicial authorities” and of “free movement of judicial
decisions”. Article 1 emphasises at its outset that a European arrest warrant is a
“judicial decision”, while article 6 states that the issuing [or the executing]
“judicial authority” shall be “the judicial authority of the issuing [or executing]
member state which is competent to issue a [or execute the] European arrest
Page 12
warrant by virtue of the law of that state”. Under European law, if a matter is left
expressly to national law, then that must be the basic approach. In contrast, if
there is no reference to national law at all, then a concept may well fall to be given
an autonomous meaning: see eg Criminal Proceedings against Kozlowski (Case C66/08) [2009] QB 307, paras 42-43 and Criminal Proceedings against Mantello
(Case 261/09) [2010] ECR I-11477, para 38. But even concepts the meaning of
which is left to national law may require to be construed as subject to limitations
deriving from general European legal principles: see eg Eman v College van
burgemeester en wethouders van Den Haag (Case C-300/04) [2007] All ER (EC)
486.
22. As a matter of construction, the provision in article 6(3) that each member
state shall inform the Secretariat “of the competent judicial authority under its law”
cannot in my view be read as making such information unchallengeable and
binding all other member states to accept any authority whatever as “judicial”
which any member state chooses to designate and nominate as such. In the light of
the recitals and articles 1 and 6(1) and (2), the proper view of article 6(3) may well
be that it does no more than address the question which judicial authority is
competent. But, even if that is wrong, its language is too unspecific to remove
from all scrutiny the question whether the authority nominated really does fulfil
the express purpose of the Framework Decision to replace the traditional executive
liaison with a new system of judicial cooperation between judicial authorities by
virtue of judicial decisions.
23. The Framework Decision must be viewed in the light of Title VI under
which it was made. The pre-Lisbon Treaty on European Union operated largely on
a traditional, inter-governmental basis. But it provided a structure of objectives,
principles, powers and procedures within which individual measures such as the
Framework Decision fell to be agreed and operated. The Framework Decision is a
subsidiary measure, which must be interpreted subject to the general objectives
and principles of and powers conferred by that Treaty: see Edward and Lane,
European Union Law, 3rd ed (2013), paras 6.23-6.24. It is relevant that Title VI not
only provides for judicial cooperation, but that the language of article 31(1)(a) –
one of the express jurisdictional bases of the Framework Decision (see para 9
above) – expressly distinguishes between competent “ministries” and “judicial or
equivalent authorities”. It is in my view implausible to suggest that, under the law
of the European Union, the concept “judicial” in Title VI has no autonomous
content whatever. If that is so, then the concept in the Framework Decision cannot
give member states carte blanche to agree that each of them could put whatever
meaning they chose upon the concept for the purposes of that measure.
24. Further, even if the boundaries of “judicial” are under Title VI to be
regarded as potentially limitless according to the nature and context of the powers
being exercised, it by no means follows that the concept has equal width in the
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context of a specific measure like the Framework Decision. In this context, it does
not to my mind advance the argument far to say that member states must be taken
to trust each other, or that the Framework Decision was designed (as it clearly
was) to eliminate “delay and complexity” (Dabas v High Court of Justice in
Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 53, per Lord Hope of
Craighead). The Framework Decision was agreed between member states. But, in
a sensitive area which could involve the surrender of a member state’s own
citizens, it was only agreed on the fundamental premise that the relevant decisions
would be taken by and the relevant trust existed between judicial authorities. As
Sir John Thomas observed, public confidence would not be advanced if this meant
whatever individual member states chose it to mean. In a measure designed to do
away with executive involvement, it is also unlikely that European law would
leave it to the executive to identify whatever authority it chose as “judicial”. Even
Lord Phillips’ sens vague interpretation of “judicial authority” distinguishes
between an authority belonging to the system of justice, as opposed to the
legislature or administration; and the distinction cannot be elided by accepting that
any authority given the function of issuing a European arrest warrant must ex
hypothesi be “judicial”.
Section 2(7) of the 2003 Act
25. Section 2(7) of the 2003 Act does not take the Ministries further. First, if
the case advanced by Bucnys, Sakalis and Lavrov is right, then section 2(7) does
not reflect article 6. Rather, it represents an additional safeguard, of the sort which
Lord Hope in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2
AC 1, para 24 contemplated that Parliament might have included. The safeguard
would require any judicial authority requesting surrender to be an authority with
general authority to issue domestic arrest warrants. But, second, if that is wrong,
then the certificate contemplated by section 2(7) is not concerned with the question
whether an authority is “judicial”. The certificate is to state that “the authority
which issued the Part 1 warrant” has the function of issuing arrest warrants in the
issuing territory. Under section 2(2): “A part 1 warrant is an arrest warrant which
is issued by a judicial authority” of the issuing territory. The certificate therefore
assumes, but does not certify, that the issuing authority is judicial. If (as I consider)
“judicial” is in the context of the Framework Decision a concept with autonomous
content, then sections 2(2) and 2(7) must clearly be read (as they can be) as
preserving and reflecting its autonomous meaning. How restricted the boundaries
are of that autonomous meaning is a different matter. Bearing in mind the diversity
within member states of judicial systems and arrangements, they may be quite
relaxed. The Assange case witnesses to this. I will return to this aspect, after
considering the second ground of challenge to the requests for surrender.
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Meaning of section 2(7)
26. The second ground of challenge is that the Ministries of Justice of Lithuania
and Estonia did not have the function of issuing domestic, as opposed to European,
arrest warrants within their respective states and SOCA’s certificates under section
2(7) were as a result invalid. The issue of a certificate under section 2(7) is a
critical stage in the execution within the United Kingdom of a European arrest
warrant. Without it there can be no arrest under section 3 and the person whose
surrender is sought cannot be brought before the appropriate judge under section 4.
Where a provisional arrest occurs under section 5, the certificate under section 2(7)
must be produced to the judge within 48 hours, or such extended period as the
judge may grant. Failing this, the person whose surrender is sought will have to be
discharged under section 6. In the case law to date, it appears to have been
assumed that the certificate contemplated by section 2(7) is a certificate relating to
the function of issuing European arrest (or “Part 1”) warrants. But Mr James Lewis
QC for Bucnys and Sakalis has made a powerful contrary submission, which Mr
Alun Jones QC for Lavrov adopts.
27. Mr Lewis points out that the drafters of the Act have been careful to use the
concept “Part 1 warrant” when it first appears in any section, referring thereafter
where appropriate simply to “the warrant”: see eg sections 2(3) and (5), 6(4) and
7(1) and (2). Yet in section 2(7) the drafters used the generic “arrest warrants”,
when they could have used specific wording like “such warrants” or “such a
warrant”. Further, as the House of Lords held in Louca v Public Prosecutor,
Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2550, the words “any other
warrant” in section 2(4) do refer to any domestic arrest warrant that may exist. On
the other hand, section 2(2) makes clear that a Part 1 warrant is a type of arrest
warrant, there were strong contextual reasons for the conclusion in Louca and it is
possible that the drafters did not use the phrase “such warrants” in section 2(7)
because other member states do not have “Part 1” warrants; rather they issue
European arrest warrants or some other nationally expressed equivalent, when
giving effect to the Framework Decision. Mr Lewis responds to this last point by
noting that, if the drafters had had in mind the authority which had the function
under domestic law of issuing European arrest warrants and was so designated
under article 6(3), they could easily have made this clear by substituting for the
last 18 words of section 2(7) words such as “has been designated to the Secretariat
of the Council of Ministers under article 6(3) of the Framework Decision as having
the function of issuing European arrest warrants in the category 1 territory”.
28. If section 2(7) were intended as a safeguard, it would have odd features.
First, it would require SOCA to investigate overseas practice, rather than look at
the information given to the Secretariat under article 6(3) of the Framework
Decision. Second, it would mean that SOCA should refuse a certificate in respect
of any request coming from a state which chose to assign competence to issue
Page 15
European arrest warrants to a specialist or different (perhaps a higher) judicial
body than that responsible for domestic arrest warrants. It is true that in the present
certificates SOCA certified, inter alia, that the Part 1 warrants issued by the
Ministries of Justice were issued by a “judicial” authority, with the function of
issuing arrest warrants. But it was no part of their statutory function to purport to
certify the “judicial” nature of the issuers, and their doing so can have had no
effect in law if the authority certified was not truly judicial within the meaning of
the Framework Decision and Act.
29. Mr Lewis submits that a conclusive indication as to the nature of the
“function of issuing arrest warrants” to which section 2(7) refers is provided by
section 212. Section 212 deals with alerts issued at the request of an authority of a
category 1 territory under article 95 of the Convention implementing the Schengen
Agreement of 14 June 1985 (OJ L 239, p 19). The history of section 212 is
described in para 258 of my judgment in Assange [2012] 2 AC 471. Article 95
reads:
“95.1. Data on persons wanted for arrest for extradition purposes
shall be entered at the request of the judicial authority of the
requesting contracting party.
2. Before issuing an alert, the contracting party shall check whether
the arrest is authorised under the national law of the requested
contracting parties. If the contracting party issuing the alert has any
doubts, it must consult the other contracting parties concerned.
The contracting party issuing the alert shall send the requested
contracting parties by the quickest means possible both the alert and
the following essential information relating to the case:
(a) the authority which issued the request for arrest;
(b) whether there is an arrest warrant or other document having the
same legal effect, or an enforceable judgment;
(c) the nature and legal classification of the offence;
(d) a description of the circumstances in which the offence was
committed, including the time, place and the degree of participation
in the offence by the person for whom the alert has been issued;
Page 16
(e) in so far as is possible, the consequences of the offence. ….”
The Schengen alert system thus operates through data entered at the request of a
domestic judicial authority, but sent by one contracting state to another.
30. To give continuing effect to this system, section 212 of the 2003 Act, as
amended by section 68 of the Policing and Crime Act 2009, provided (originally
on a temporary, but in the event on a continuing basis) that, where an article 95
alert is issued, then
“(2) The reference in section 2(2) to an arrest warrant issued by a
judicial authority of a category 1 territory is to be read:
(a) as if it were a reference to the alert issued at the request of the
authority, and
(b) as if the alert included any information sent with it which relates
to the case.
….
(3) In consequence of subsection (2), this Act has effect with these
modifications —
(a) in sections 2(7) and (8) …. for ‘authority which issued the Part 1
warrant’ substitute ‘authority at the request of which the alert was
issued’; ….”
The effect of section 212 is thus that sections 2(7) and (8) must, in the context of
article 95 Schengen alerts be read:
“(7) The designated authority may issue a certificate under this
section if it believes that the authority at the request of which the
alert was issued has the function of issuing arrest warrants in the
category 1 territory.
Page 17
(8) A certificate under this section must certify that the authority at
the request of which the alert was issued has the function of issuing
arrest warrants in the category 1 territory.”
31. When certifying under section 212, SOCA must be intended to focus on the
question whether the domestic judicial authority at the request of which the data
were put on the Schengen system in the overseas state had the function of issuing
domestic arrest warrants. This shows, Mr Lewis submits, that the very same words
used in their original unmodified form in section 2(7) and (8) must also focus on
the function of issuing domestic arrest warrants. In my view, that does not follow.
When section 212 is in play, there is only one possible judicial authority in play,
that is the overseas judicial authority at whose instance the Schengen alert is
entered on the system and which is distinct from the contracting state by which the
alert is communicated to the United Kingdom. It is natural that any certificate
required should look at the status and functions of that overseas domestic judicial
authority. When section 212 is not in play, the directly relevant judicial authority is
the authority which issues the European arrest warrant. The status and functions of
the authority issuing any domestic warrant (if any) are of subsidiary interest, even
though the existence of any such domestic warrant will need to be noted in the
European arrest warrant under article 8(1)(c) of the Framework Decision and
section 2(4)(b) of the 2003 Act, as decided in Louca [2009] 1 WLR 2550. It is
therefore possible for the same phrase to point in different directions in these two
different contexts. To treat section 212 as altering what would otherwise be the
appropriate meaning to put on section 2(7) and (8) would, in my view, be to treat
the tail as wagging the dog.
32. Mr Lewis seeks to rely on Parliamentary material under the principle in
Pepper v Hart [1993] AC 593. That involves showing that the provision is
ambiguous or obscure and that there are ministerial statements which, viewed in
the context of the Parliamentary material as a whole, provide a clear answer as to
its meaning. I do not consider that these conditions are met. I doubt whether
section 2(7) is even sufficiently ambiguous or obscure to justify looking at
Parliamentary material on this point. Assuming that it is, it is true that one finds
ministerial statements that European arrest warrants would be issued by precisely
the same authorities as currently issued the (necessarily domestic) warrants on the
basis of which executive requests were previously made between states for
surrender: see eg Mr Ainsworth’s statements in Standing Committee on 9 January
2003 (Hansard (HC Debates), col. 48), which I quoted in Assange [2012] 2 AC
471, para 253. But immediately afterwards Mr Ainsworth went on to say that “By
the time that countries start to operate the European arrest warrant, we will know
which authorities will be competent to issue them. It will be reasonably
straightforward for the issuing authority to be identified and it will be possible to
cross-check them with the central record kept by the general secretariat” and a
little later (at col 51) that “If the issuing authority were not a judicial authority as
Page 18
designated in the framework document”, the body charged with certifying would
not accept the warrant.
33. These statements made clear that in the minister’s mind certification was
linked with the information provided under article 6 of the Framework Decision,
which goes to the function of issuing European arrest warrants, not domestic
warrants. The upshot is that neither in these nor in any other passages is there the
clarity of statement that could assist to put a different meaning on section 2(7) to
that which I consider otherwise follows on ordinary principles of construction. In
my view, section 2(7) must (other than in the context of Schengen alerts under
section 212) be taken as referring, however awkwardly, to the function of issuing
European arrest warrants, not domestic.
“Judicial authority”
34. The second ground of challenge to the requests therefore fails, and I turn to
consider whether the Ministries can be regarded as judicial authorities for the
purposes of issuing the requests in issue on these appeals. The question is whether
the concept of “judicial authority” embraces any category of persons beyond
courts, judges, magistrates and (in the light of Assange) public prosecutors, and if
so in what circumstances. Mr Knowles argued for a positive answer, relying on all
five reasons on which Lord Phillips based his judgment in Assange. But only one
of these reasons received any real endorsement even in the other majority
judgments in that case: see Lord Walker at para 92. Lord Brown at para 95, Lord
Kerr generally and Lord Dyson at paras 155 to 159 and 171.
35. I add only, with regard to the third reason, that I agree with Lord Dyson
(para 158) that the removal from the December 2001 Council redraft of the
Commission’s September 2001 proposal of definitions of “judicial authority” in
terms of a judge or public prosecutor provides no basis for concluding that it was
intended to broaden the scope of the concept beyond judge or public prosecutor. It
is at least as likely that there were considerable reservations in some member states
about appearing to accept a judge or public prosecutor as an appropriate judicial
authority for the purposes of both issuing and executing European arrest warrants,
as would have been the effect of the definitions included in the September 2001
proposal. Any further conclusion would be speculation. As regards the fourth
reason, I also agree with Lord Dyson (para 159) that the assumption in article 6
that there may be a range of judicial authorities from which to chose that which is
to be competent to issue European arrest warrants says nothing significant about
the scope of the concept of judicial authority. This is all the more so, now that it is
decided by Assange that the range can include both courts and public prosecutors.
Page 19
36. The one ground which did influence most members of the court in Assange
was Lord Phillips’ fifth and final ground, based on applying the principles of the
Vienna Convention on the Law of Treaties 1969 to the international agreement
reached under Title VI and embodied in the Framework Decision. As appears by
the five paragraph coda which appears at the end of the Court’s judgment in
Assange as published in [2012] 2 AC 471, 569-570, the relevance of the principles
in the Vienna Convention was assumed, not argued, in Assange. When, after the
draft judgment on the substance was handed down, Miss Rose QC applied to reopen the appeal to take issue with the relevance of the Vienna Convention, her
application was rejected as being without merit, not because the point she wished
now to raise would itself have been meritless, but because it was too late to do so
on that appeal. She had had her chance to raise it during the course of oral
argument before the hand down, but had accepted that the Vienna Convention
applied and that state practice was a potentially relevant aid to construction.
37. On the present appeals, there has been no such acceptance. The
applicability of the Vienna Convention and the relevance of state practice have
been put squarely in issue. The issue is of potential relevance (though each
country’s law and practice may raise different considerations) because, in addition
to Lithuania and Estonia, it appears that Finland and Sweden have under article 6
designated bodies operating as part of or under their Ministries of Justice as their
issuing judicial authority in the case of conviction warrants – in the case of Finland
the Criminal Sanctions Agency, in the case of Sweden the National Police Board;
and Germany has designated its Ministry of Justice, although stating that its
powers have been transferred to the public prosecutor at the relevant regional
court. Further, two countries have designated their Ministries of Justice as their
issuing authority in the case of accusation warrants – Denmark outright, and
Germany subject to the same transfer of powers to the regional public prosecutor.
38. The evidence of state practice is thus, on any view, much more limited than
that which existed in relation to the use of public prosecutors as recounted in
Assange, where it appeared that some 11 states had nominated public prosecutors
in the case of accusation warrants and some ten in relation to post-conviction
warrants. (The information now before the court indicates that these figures were
slightly inaccurate, and should have been ten, or pre-trial 12, in the case of
accusation warrants and eight in the case of conviction warrants.) Nonetheless, Mr
Knowles submits that the designation of Ministries of Justice should, even if
limited, be regarded as significant, because of the absence of evidence that other
states have challenged the designation or refused to execute warrants. Bearing in
mind that it is unclear how far any challenge would fall to be raised by executing
states, rather than by the persons whose surrender was sought, and that there has
been no detailed study of state legislation or practice in cases where it is by
implication suggested that a challenge might have been raised, I am unimpressed
by the strength of the alleged practice as an indicator of any agreement of the state
Page 20
parties regarding interpretation, within the meaning of article 31(3)(c) of the
Vienna Convention. As I noted in Assange, at para 242, the fact that three states
(Denmark, Germany and Romania) have also designated their Ministries of Justice
as executing judicial authorities is also capable of raising questions about the
reliability of state practice as a guide, even if otherwise admissible.
39. As to the question of principle, whether the Vienna Convention is
applicable to the Framework Decision, in my view it is unlikely as a matter of
European law that it is or would be so regarded. For reasons already indicated in
paragraph 23 above, the Framework Decision must be understood in the context of
Title VI of the pre-Lisbon Treaty on European Union, and the structure of
objectives, principles, powers and procedures contained in that Treaty, including,
where individual States agreed, provisions relating to the Court of Justice’s
jurisdiction: see eg articles 2 to 6, 29, 31, 35 and 39. So viewed, I do not consider
it correct to describe the Framework Decision as a treaty at all. It is a subsidiary
measure, which fell to be agreed by unanimity within the scope of the powers
conferred by, as well as in accordance with the procedures defined by, the preLisbon Treaty on European Union. It must be interpreted as such: see the passages
from Edward and Lane cited in paragraph 23 above. Under the pre-Lisbon Treaty
on European Union, among the important pre-conditions to the agreement of the
Framework Decision was the express requirement under article 39(1) for the
Council to consult the European Parliament upon it as a measure agreed for
facilitating extradition within article 34(2)(b). The European Parliament had three
months to deliver an opinion upon the measure. Its opinion, delivered on 9 January
2002, approved the measure, but with the request that the Council notify the
Parliament should it intend to depart from the approved text. The argument that
subsequent state practice by members of the Council could change or affect the
meaning of a Framework Decision potentially sidelines the European Parliament’s
role. For that reason alone, it is not one that I believe that the Court of Justice
would be likely to endorse even under the pre-Lisbon Treaty on European Union.
40. There is a striking absence in the textbooks and case law of any reference
to, or any instance of the application of, subsequent member state practice as
establishing the agreement of member states to a particular interpretation, or as
having any real relevance to interpretation, of a measure introduced under any of
the European Treaties. The court was referred to The Court and the Tribunal of
the EC and the Vienna Convention on the Law of Treaties 1969, an article by P J
Kuijper (a legal adviser to the Commission), published in Legal Issues of
European Integration, (1998) vol 25, issue No 1. The article focuses on references
to the Vienna Convention in relation to treaties and secondary legal acts entered
into by the Community with third parties. The European Treaties themselves are of
a special and different nature, as the article points out with reference to the Court
of Justice’s Opinion 1/91 [1991] ECR I-6079. In that Opinion the court said:
Page 21
“21 In contrast, the EEC Treaty, albeit concluded in the form of an
international agreement, none the less constitutes the constitutional
charter of a Community based on the rule of law. As the Court of
Justice has consistently held, the Community treaties established a
new legal order for the benefit of which the states have limited their
sovereign rights, in ever wider fields, and the subjects of which
comprise not only member states but also their nationals (see, in
particular, the judgment in Van Gend en Loos (Case 26/62) [1963]
ECR 1). The essential characteristics of the Community legal order
which has thus been established are in particular its primacy over the
law of the member states and the direct effect of a whole series of
provisions which are applicable to their nationals and to the member
states themselves.”
41. With regard to the possibility that subsequent practice might influence the
interpretation of Community law, the article at pp 9-10 states bluntly that:
“It may be interesting to recall here that, as far as Community law is
concerned, and certainly where the provisions of the Community
Treaty are concerned, the Court of Justice does not accept arguments
of subsequent practice at all. The Court in such cases has recourse to
the standard phrase that ‘mere practice’ cannot change the treaty”.
Cited in support are French Republic v Commission of the European Communities
(Case C-327/91) [1994] ECR I-3641 and the Court of Justice’s Opinion 1/94
[1994] ECR I-5267. In the former, the issue was the extent of the Commission’s
powers to conclude agreements with third countries, under article 228 EEC which
provided for such agreements to be negotiated by the Commission and concluded
by the Council after consulting the Parliament “subject to the powers vested in the
Commission (“reconnues à la Commission”) in this field”. The Commission
argued that its powers might be derived from previous practice of the respective
Community institutions, to which the Court observed (para 36) that “a mere
practice cannot override the provisions of the Treaty”. Likewise, the court held in
United Kingdom of Great Britain and Northern Ireland v Council of the European
Communities (Case 68/86) ECR 855, para 24, and reiterated in its Opinion 1/94
[1994] ECR I-5267 in relation to suggested external competence in the field of
GATs (the General Agreement on Trade in Services) that “a mere practice of the
Council cannot derogate from the rules laid down in the Treaty and cannot,
therefore, create a precedent binding on Community institutions with regard to the
correct legal basis” (para 52), that, it would, in the field of TRIPs (trade-related
aspects of intellectual property rights), enable the Community institutions to
escape the internal constraints to which they are subject in relation to procedures
and to rules as to voting (para 60) and that “Institutional practice in relation to
Page 22
autonomous measures or external agreements adopted on the basis of article 113
cannot alter this conclusion” (para 61).
42. These statements, made in the context of arguments about institutional
competence under the Treaties themselves, are a strong indicator of the attitude
that the court would take to any suggestion that the member states could by
agreement between themselves alter or influence the meaning of Community
measures arrived at under the Treaties, following procedures for their negotiation
and enactment, including consultation with the European Parliament, contained in
such Treaties. The only case which the Ministries have been able to locate in
which the court might be said to have taken account of member state practice in
interpreting a Community instrument under any of the European Treaties is
Skatteministeriet v Henriksen (Case 173/88) [1989] ECR 2763. There, after giving
its reasons for a particular construction, the court added a paragraph saying:
“That interpretation is also in conformity with the view common to
all the member states, none of which has adopted legislation
[consistent with the interpretation which the court rejected]” (para
13)
43. That comment, in a case where member states’ “view” or practice was
consistent with that at which the court had arrived, is wholly inapt to show that
such practice is capable of changing the meaning of an autonomous European
concept in a Community or Union instrument agreed under the Treaties.
44. I can therefore put aside the suggestion that member states’ alleged practice
can affect the question whether the Ministries are capable of being designated as
“judicial authorities” for the purpose of issuing European arrest warrants under the
Framework Decision. Equally, however, the interpretation of the Framework
Decision cannot, as it seems to me, be influenced by comments made in some
evaluation reports to the effect that Ministries of Justice are not judicial authorities:
see eg Council Evaluation Report on Lithuania 12399/1/07, para 7.2.1.1, reporting
that “The Lithuanian authorities recognised that EAWs should be issued by
judicial authorities and that the Ministry of Justice could not be considered a
judicial authority”; and the Commission report on the operation of the Framework
Decision COM(207) 407, commenting in relation to both Lithuania and Estonia
that the Ministry of Justice is not a judicial authority.
45. In my opinion, the concept of judicial authority falls simply to be
interpreted in the teleological and contextual manner that Professor Anthony
Arnull indicates in The European Union and its Court of Justice, 2nd ed (2006), pp.
612 and 621, as I stated in paragraph 229 of my judgment in Assange [2012] 2 AC
Page 23
471. In the context of the Framework Decision, the most obvious purpose of
insisting on the concept was to ensure objectivity (including freedom from
political or executive influence) in decision-making and to enhance confidence in a
system which was going to lead to a new level of mutual cooperation including the
surrender of member states’ own nationals to other member states. The special
emphasis in recital 6 on the importance of this concept in the context of execution
of European arrest warrants indicates a possible difference between its significance
in the contexts of issuing and executing a European arrest warrant. Likewise,
article 19 with its distinction between the competent executing judicial authority
and “another judicial authority” which may need to be involved at the hearing
stage “in order to ensure the proper application of this article and of the conditions
laid down”.
46. This leads to consideration of the features which an authority must as a
minimum have, if it is to be regarded as an issuing judicial authority for the
purposes of the Framework Decision. Mr Lewis, submits that they are three: (i) it
must be functionally independent of the executive, (ii) it must be capable of
making a judicial decision and (iii) it must be separate from the designated central
authority, a separation assumed by recital 9 and article 7. In Assange, at para 153,
Lord Dyson was “inclined to think that the essential characteristics of an issuing
judicial authority are that it should be functionally (but not necessarily
institutionally) independent of the executive”. In the Administrative Court in the
present cases, Aikens LJ considered that a ministry of justice could be an issuing
judicial authority for a conviction warrant if the person in the ministry making the
decision was “sufficiently independent of the executive for the purposes of making
that ‘judicial decision’” and thought, in this connection, that there was “much force
in Lord Phillips’ point [in Assange [2012] 2 AC 471, paras 62-64] about the
requisite safeguards being predominantly in the antecedent process which forms
the basis on which the conviction European arrest warrant is issued” (para 98).
47. I would make three points in relation to these observations. First, Assange
was a case of an accusation warrant and Lord Dyson noted at paras 156-157 the
difficulty about Lord Phillips’ point, which constituted his second reason in
Assange (see paras 62-64): there is no guarantee that a domestic accusation
warrant would be based on any judicial decision at all, and the implications of a
European arrest warrant are likely to be more serious than those of a domestic
arrest warrant. Second, a test which would mean seeking to ascertain whether one
or more individual decision-makers within a ministry was or were “functionally”,
even though not “institutionally”, independent of the ministry in which they
served, may be regarded as problematic, both in principle and because of the
evidential issues to which it could give rise. On no view, in any event, would the
Minister of Justice signing on behalf of the Ministry of Justice of Lithuania appear
to satisfy any such test. I need say no more than that on these appeals. Third,
Aikens LJ must I think have had this point in mind when he went on, immediately
Page 24
after his above quoted observations, to focus his conclusions on the need for a
prior court request that a European arrest warrant should be issued, and on the
consequent restriction of any positive ministry role to determining that effect be
given to such a request:
“If the national law concerned provides that the pre-condition to the
issue of a conviction EAW by the ministry of justice is that there
must be not only an enforceable judgment and sentence but also a
request from the sentencing court that a conviction EAW be issued,
then the scope for executive interference is much reduced if not
entirely eliminated.” (para 98)
This postulates a situation in which the ministry’s decision to issue a conviction
European arrest warrant has by law to be and is firmly founded on a judicial
decision by the responsible court that such a warrant is appropriate. Consistently
with this approach, both Ministries of Justice sought in their submissions and
evidence to meet the criteria suggested by Aikens LJ.
48. Accusation and conviction warrants do not necessarily raise the same
considerations. A conviction warrant must necessarily have been preceded by a
domestic court process. There is less scope for discretion in relation to the issue of
a European arrest warrant following from a conviction. If the court responsible for
the conviction or execution of the sentence considers that the European arrest
warrant should be sought, and the issue of such a warrant follows from its
decision, then the issue of the warrant can be regarded as the result of a judicial
decision, even though the issue takes place by and in the name of a different
authority. The key question is whether the issuing authority can in such a case be
regarded as a judicial authority for the purposes of the Framework Decision or
2003 Act, when it is, as here, the Ministry of Justice or a section within that
Ministry. Mr Lewis and Mr Jones submit that it cannot, on the basis that a body,
which cannot act of its own initiative and which simply “box ticks”, cannot be a
judicial authority taking a judicial decision. They also point out that the two
Ministries have also been designated as their respective countries’ “central
authorities” for the purposes of article 7, in circumstances where both recital 9 and
article 7 contemplate that such a body will be separate from and have a limited role
in proving practical and administrative assistance to the competent judicial
authorities. Before going further into these questions, it is however relevant to look
more closely at the evidence and facts in the cases under appeal.
Page 25
The evidential material
49. The Administrative Court proceeded on the basis that the two requests
made by the Ministry of Justice of Lithuania were based in each case upon a
request “made by a court, not by a prison or the Prison Department”; the functions
of the officials of the Ministry were “tightly defined by the Rules and the decision
on whether to issue the conviction European arrest warrant has to be made on the
basis of those Rules alone” (para 104). The warrants, though signed for the
Ministry by the Minister of Justice, were on this basis regarded as issued by a
judicial authority. In relation to the procedure in Estonia there was, however, much
less material before the Administrative Court; there appeared to be “no
requirement that the sentencing court must prepare a draft European arrest warrant
and then request the ministry to issue the European arrest warrant” and “no
procedural rules which dictate what the ministry officials have to do or which
dictate the time in which a request to issue a conviction warrant be carried out”.
The court was not satisfied that the Ministry of Justice of Estonia’s decision to
issue a European arrest warrant could be regarded as “judicial” or that the
International Judicial Cooperation Unit within that Ministry and its personnel had
“sufficient functional independence from the executive to enable the Ministry to be
characterised as a ‘judicial authority’” for the relevant purposes (para 106).
50. Before the Supreme Court further material has been produced, in relation to
both the Lithuanian and the Estonian positions. Mr Lewis referred to and relied
upon the Lithuanian material as did eventually Mr Jones, after initially objecting to
its admission. I for my part consider that the new material should be admitted and
considered, even though it should have been before the Administrative Court.
Without it, it is clear that we would be at risk of deciding these appeals on a false
basis.
The Lithuanian position
51. The picture which emerges in relation to Lithuania from communications to
the Crown Prosecution Service by the Vice Minister of Justice is that the Ministry
only issues any European arrest warrant after conviction on the initiative of either
(a) a court or (b) an authority responsible for executing the sentence. It does so
then after examination of all the documents to ascertain that valid grounds exist for
issuing such a warrant. In this connection, article 69 of the Code of Criminal
Procedure provides:
“2. European arrest warrants regarding citizens of the Republic of
Lithuania or other persons who have been sentenced to
imprisonment by enforceable judgments in the Republic of Lithuania
Page 26
and who have absconded from serving the sentence in another
member state of the European Union shall be issued and competent
authorities of that state shall be contacted by the Ministry of Justice
of the Republic of Lithuania.
3. The procedure for issuing a European arrest warrant and
surrendering the person under the European arrest warrant shall be
defined by the Prosecutor General of the Republic of Lithuania and
by the Minister of Justice of the Republic of Lithuania.”
52. Under article 69(3), the following “Rules for issuing European arrest
warrant” were duly promulgated by Order No. IR-95/I-114 of 26 August 2004.
They provide:
“I. GENERAL PROVISIONS
4. The Ministry of Justice of the Republic of Lithuania shall issue the
European arrest warrant with a view to arrest a person who has been
punished by custodial sentence but who has gone into hiding from
the enforcement of this sentence. In this case the European arrest
warrant shall be issued under the following circumstances:
4.1. when the remainder of the sentence to be served is of four
months or of longer term;
4.2. when there is a ground to believe that the convicted person may
be located in the member state of the European Union or other State,
which applies the surrender procedure of the persons concerned
pursuant to the European Arrest Warrant. ….
RECOURSE FOR ISSUING EUROPEAN ARREST
WARRANT
7. If the case has been heard in the trial and the judgement of
conviction rendered in absentia of the accused, the court shall send a
copy of the enforceable judgement of conviction whereby a sentence
of imprisonment has been imposed together with the draft European
arrest warrant (except section (i)) to the Ministry of Justice of the
Republic of Lithuania after taking into consideration the criteria for
Page 27
issuing a European arrest warrant laid down in paragraph 12 of the
Rules.
8. If the convicted person, who has not been arrested until the court
judgement became enforceable, absconds from the execution of the
custodial sentence imposed on him by the court’s judgment, or if the
convicted person while serving his custodial sentence runs away
from the correctional institution or fails to return there, the request to
issue the European arrest warrant shall be submitted to the Ministry
of Justice by the institution executing the sentence after taking into
consideration the criteria for issuing a European arrest warrant laid
down in paragraph 12 of the Rules. A copy of the enforceable
judgement of conviction whereby a sentence of imprisonment has
been imposed and the draft European arrest warrant (except section
(i)) shall be enclosed with the request. ….
9. When the court renders a Ruling to quash the suspension of the
sentence execution, a Ruling to quash either a conditional early
release from custodial sentence or conversion of the remainder of the
sentence into a more lenient punishment or a Ruling to refer the
person released conditionally from the correctional institution to
serve the remaining sentence of imprisonment in the correctional
institution, the court shall forward a copy of the aforesaid Ruling
together with the draft European arrest warrant (except section (i)) to
the Ministry of Justice of the Republic of Lithuania after taking into
consideration the criteria for issuing a European arrest warrant laid
down in paragraph 12 of the Rules.
III. ISSUING OF THE EUROPEAN ARREST WARRANT
12. Upon receiving the documents set out in Chapter II of these
Rules, the Prosecutor General’s Office of the Republic of Lithuanian
or the Ministry of Justice of the Republic of Lithuania shall analyse
the above documents and, if there are all preconditions listed in
paragraphs 3 or 4 of the Rules, shall issue the European arrest
warrant taking into consideration the severity and type of the offence
committed and the suspected, accused or convicted person’s
personality. If the information is insufficient to issue the European
arrest warrant, the Prosecutor General’s Office of the Republic of
Lithuania or the Ministry of Justice of the Republic of Lithuania
shall contact the institution, which has requested to issue the
European arrest warrant, asking to provide the missing information
within the time-limit specified by the Prosecutor General’s Office of
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the Republic of Lithuania or the Ministry of Justice of the Republic
of Lithuania. If there are no grounds for issuing the European arrest
warrant or the missing information is not obtained during the timelimit defined, or if the issuance of the European arrest warrant does
not satisfy the principles of proportionality and procedural economy,
the request to issue the European arrest warrant shall be returned to
the requesting institution.
13. The European arrest warrant shall be issued not later than within
5 days after receiving all information necessary for preparing the
European arrest warrant.
14. The European arrest warrant shall be prepared in accordance
with the form contained in the Annex 1 of these Rules. ….
16. …. if the European arrest warrant is issued by the Ministry of
Justice of the Republic of Lithuania, then it shall be undersigned by
the Minister of Justice of the Republic of Lithuania or his delegated
persons.”
53. Contrary to the Administrative Court’s understanding, it is now clear (from
the Ministry of Justice’s letter dated 5 November 2012) that, while the request
made to the Ministry of Justice in respect of Bucnys, came under rule 9 from the
Vilnius City 1st District Court after it had on 20 February 2010 quashed Bucnys’s
conditional release, the request in respect of Sakalis came from the Prison
Department of the Republic under rule 8, based on its assessment that Sakalis had
absconded from the whole of the four year sentence imposed by the Vilnius City
1st District Court on 25 January 2008 and upheld on appeal on 24 December 2008.
The Vice-Minister of Justice of Lithuania has explained in correspondence put
before the Supreme Court that the prison department would only act after being
provided by the Vilnius City 1st District Court with relevant documentation
regarding the conviction and sentence. It does not follow that the District Court
made any sort of judicial decision at this point and the evidence does not show that
it did. Both in law and in practice, the responsibility for requesting the Ministry of
Justice to issue a European arrest warrant rested on the prison authorities, upon
which rule 8 conferred it.
54. In these circumstances, I cannot regard the European arrest warrant issued
in respect of Sakalis as having been either issued by a judicial authority or as being
the result of a judicial decision. The Prison Department is an executive agency
charged, as rule 8 states, with the execution of the sentence. It is not a judicial
body considering and ruling upon the question whether the person wanted has
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absconded. The language of rules 8 and 12, read together, makes it possible
(though surprising) that the Prison Department is required before submitting a
request to issue a European arrest warrant to the Ministry to take “into
consideration the severity and type of the offence committed and the …. convicted
person’s personality”. In other words, it may have a discretion. If so, the evident
oddity in the context of a European arrest warrant of such a discretion being
entrusted to a prison department merely underlines the fact that it cannot be
regarded as a judicial authority. The Ministry of Justice after receiving the Prison
Department request is under rule 12 required not only to consider for itself whether
the formal pre-conditions listed in rule 4 are satisfied but (it appears) also to take
“into consideration the severity and type of the offence and the …. convicted
person’s personality”. Assuming again that this connotes an element of discretion,
even in the case of a conviction, as to whether it issues a warrant, the mere fact
that the Ministry of Justice is given a discretion does not make it a judicial body. If
anything, it points once again towards a need for a judicial decision by a body or
bodies which could be regarded as judicial. I would therefore allow the appeal by
Sakalis and set aside the Part 1 warrant issued in respect of him.
55. The position in relation to Bucnys is different. Under the combination of
rules 9 and 12, the Vilnius City 1st District Court not only took the decision to
quash his conditional release on 12 September 2008, it also forwarded copies of its
ruling to the Minister with a draft European arrest warrant, and it must be taken to
have done this after taking into account the criteria for issuing such a warrant laid
down in rule 12, including the “severity and type of the offence and the ….
convicted person’s personality”. The Ministry of Justice’s only role was to repeat
the same exercise. Its review could not worsen the position of the convicted
person. At best, if the Ministry took a different view on the question whether the
criteria were met, its review might lead to a decision not to issue a European arrest
warrant which the Vilnius court had adjudged to be appropriate. Essentially,
therefore, the European arrest warrant issued in respect of Bucnys emanated from
the court responsible for him having to serve a further period in prison. That was a
judicial decision by a judicial authority. The Ministry by issuing the warrant
effectively endorsed that decision.
56. Under article 7 of the Framework Decision, it would have been permissible
for Lithuania to designate the Vilnius City 1st District Court as the relevant judicial
authority and to restrict the Ministry’s role to its capacity of central authority. If a
court were to out-source its registry and the registry were to be designated as the
judicial authority responsible for issuing warrants or other orders to give effect to
the court’s orders, it should I think be possible to regard the registry as a judicial
authority issuing a judicial decision, even though – or because – it would simply be
giving effect to the court’s orders. In the present case, it appears that the Ministry
of Justice had some discretion, but only in the sense of a one-way discretion to
check that, in its view also, a European arrest warrant was appropriate. This
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requirement for two concurrent decisions in favour of such a warrant could only
operate to the benefit of the person whose surrender was proposed by the court
responsible for the conviction or sentence. In these circumstances, I consider that
European law would accept that the spirit of the Framework Decision was met in
the case of European arrest conviction warrants issued by the Ministry of Justice of
Lithuania to give effect to a corresponding request by the Court responsible for the
sentence, and would treat the Ministry of Justice in that context as an appropriate
issuing judicial authority.
57. I have been addressing the present situation of a Ministry of Justice acting
at the request of the responsible court. It is possible that the spirit of the
Framework Decision may also be satisfied in some other situations, for example
when a Ministry of Justice acts on the basis of a request made by a public
prosecutor, held by this court in Assange to be capable of being regarded as a
judicial authority. To take a specific instance, in Germany the Ministry of Justice
is designated as the relevant judicial authority for the purpose of issuing conviction
(and indeed also accusation) European arrest warrants, but has in some way
transferred or delegated its role to the public prosecutor at the relevant regional
court. As we have no details of the arrangements or how they operate, I can
express no conclusion either way, but it may prove appropriate to treat the Federal
Ministry of Justice as the issuing judicial authority, when a German public
prosecutor’s decision that a conviction European arrest warrant should be issued is
simply endorsed by or leads to the issue of such a warrant in the name of the
Ministry.
The Estonian position
58. Turning to the position of the European arrest warrant issued by the Head of
the International Cooperation Unit of the Estonian Ministry of Justice, it is now
known that the Viru County Court on 10 February 2011, on learning that Lavrov
was living in the United Kingdom, sent a request to the Ministry of Justice to issue
a warrant to give effect to the domestic arrest warrant that it had itself issued on 9
February 2010. There is also substantial further information about the Estonian
legal position in the form of answers dated 28 February 2013 to a questionnaire
submitted by the Crown Prosecution Service.
59. The legal framework is contained in article 507 of the Code of Criminal
Procedure of Estonia which reads:
“Submission of European arrest warrant
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(1) In pre-trial proceedings, the Prosecutor’s Office and, in court
proceedings, the court which conducts proceedings regarding a
criminal offence which is the basis for a European arrest warrant is
competent to submit the European arrest warrant.
(2) The Ministry of Justice is competent to submit a European arrest
warrant for the execution of a court judgment which has entered into
force.
(21
) In pre-trial proceedings, a preliminary investigation judge may,
at the request of the Prosecutor’s Office, apply arrest for surrender
before preparation of a European arrest warrant.
(22
) If surrender of a person is requested in court proceedings, the
arrest for surrender of the person shall be applied by the court which
conducts proceedings regarding the criminal offence.
(3) A European arrest warrant shall be prepared in Estonian and it
shall be translated into the language determined by the requesting
state by the Ministry of Justice.
(4) A European arrest warrant shall be communicated to a requesting
state through the Ministry of Justice.
(5) In cases of urgency, a request for application of arrest for
surrender with regard to a person to be surrendered may be
submitted to a member state of the European Union through the
International Criminal Police Organisation (Interpol) or the central
authority responsible for the national section of the Schengen
Information System with the consent of the Prosecutor’s Office
before a European arrest warrant is submitted.”
60. In the case of Lavrov, articles 507(2) and 507(22
) both applied. The Deputy
Secretary-General of the Ministry of Justice explained by letter dated 28 February
2013:
“The court ruling declaring the person a wanted and applying arreston-sight towards him or her is the prerequisite for later issuance of a
European arrest warrant. No European arrest warrant can be issued
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without a court first declaring the person a wanted and applying
arrest-on-sight (domestic arrest warrant) towards him or her.
Pursuant to section 507 (21
) and (22
) of the Estonian Code of
Criminal Procedure, applying arrest for surrender is a prerequisite for
issuing an European arrest warrant. If no arrest pending surrender
has been applied towards the person, then an European arrest warrant
cannot be issued.”
61. This letter gives the following further information:
“… in this current case a court requested the Ministry of Justice to
issue a European arrest warrant on the basis of court decisions
entered into force. The issuance of an European arrest warrant in
conviction cases by the Estonian Ministry of Justice only takes place
upon request by the court who made the decision in the specific case
or a court that has the competence to issue the arrest warrant and to
declare the person a fugitive in cases where the person was convicted
by conditional sentence and the person escaped from the execution
of sentence or the person was in freedom during the court procedures
but has to appear to prison on a specific date and time to start the
service of his/her sentence. Thus, this is the court that sends to the
Ministry of Justice the judgment or ruling with request to issue the
European arrest warrant. The court’s decision has to be either a final
and enforceable judgment satisfying the requirements of the
framework decision or a domestic arrest warrant stating that the
detention conditions are met.
….
The only restrictions that the Ministry of Justice is obliged to follow
upon issuing a European arrest warrant on a court’s request, are the
general restrictions on issuing of European arrest warrants from [the]
Framework Decision ie the requirement that the punishment of
imprisonment applicable to a crime for which the person has been
convicted must be longer than four months of imprisonment. If the
materials sent to the Ministry of Justice for issuance of an European
arrest warrant regarding a person towards whom the court has
applied arrest for surrender, indicate that the actual punishment
imposed on the person or actually servable part thereof is less than
four months, then the Ministry of Justice may inform the court that
there are no legal grounds for issuing an EAW. In other cases the
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court’s request to issue a specific EAW is compulsory for the
Ministry of Justice.”
62. The same letter also addresses the possibility that a European arrest warrant
might be issued under executive influence:
“The Judicial Co-operation Unit is one of the structural units of the
Ministry of Justice, but it is independent in its decisions and bases its
actions solely on the law and the international instruments. This
independence is also expressed in the fact that all documents
prepared by the unit, ie both European arrest warrants and MLA
[mutual legal assistance] requests for judicial assistance are
undersigned by the head of unit or the advisor who prepared the
letter. All materials, ie requests from courts, materials of the
prosecutor’s office, and also judicial co-operation materials and
requests for legal assistance received from abroad are forwarded
from the Ministry’s office directly to the Judicial Co-operation Unit
without passing through the Minister, the Secretary General or the
Deputy Secretary General. Therefore the executive has no
information about whether, how much or which judicial co-operation
materials are being preceded by the unit at any time. There has been
no intervention by the executive in the unit’s work and there cannot
be any intervention of that kind because communication in the field
of international law is very strictly regulated by domestic legislation
and by various other legal acts, so it is unthinkable that the Minister
or the Secretary General could order the issuance of some request for
legal assistance without the initiative of a prosecutor’s office or a
court.
….
International judicial co-operation is very strictly and precisely
regulated by various international conventions and treaties which
prescribe also the role and competence of Ministries of Justice as
central authorities. It is unthinkable that the Ministry of Justice could
exceed its limits of competence by way of its executive ordering a
request for legal assistance for which the Ministry of Justice has
competence. It is also unthinkable that the executive of the Ministry
of Justice could order that a request for legal assistance be not issued
or not forwarded. As described above, in daily work the management
has no information at all about the requests that are preceded [sic] by
the Unit at any given time. Furthermore, the Public Service Act of
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the Republic of Estonia prohibits (article 62) unlawful orders from
the executive and gives the ways how to react in such situations.”
63. On the basis of this detailed description of the legal, procedural and
practical position, it is clear that the real decision is taken by the court responsible
for the conviction and sentence, and the Judicial Cooperation Unit of the Ministry
of Justice’s only lawful role is to check that the formal conditions for issue of a
European arrest warrant are satisfied, and, if they are, to issue the warrant. On the
basis, by parallel reasoning to that which I have indicated in relation to Bucnys, I
consider that the Ministry can be regarded as a judicial authority issuing a warrant
containing a judicial decision, albeit one taken in reality by the responsible court,
here the Viru County Court.
64. However, Mr Jones points to other information in the form of the Council
Evaluation Report on Estonia 5301/07 dated 20 February 2007, which states:
“3.1. THE DECISION TO ISSUE
The Estonian authorities do not have a formal practice guide
concerning the instigation of European arrest warrant proceedings or
the subsequent steps to be taken. Standardised European arrest
warrant practices have been outlined to all European arrest warrant
stakeholders during training provision supplied by the CA together
with professional trainers from the Estonian Law Centre.”
It states that, in the case of accusation warrants, the following factors will be taken
into consideration by a review made before any decision to issue a European arrest
warrant: severity of the offence, degree of participation, extent of the
injury/damage. It continues:
“In cases concerning the enforcement of a sentence, officials within
the CA will apply similar merit tests to assess the appropriateness of
the application. They will then obtain, directly from the criminal
court concerned, a copy of the order to be enforced and proceed to
draft an European arrest warrant.
In real terms therefore a pragmatic de minimis test is brought to bear,
balancing the seriousness of the criminality against the merits (costs
or otherwise) of issuing an European arrest warrant. Estonia reported
that their outgoing European arrest warrants were all of a
benchmarked standard. “
Page 35
65. This second-hand account of the Estonian system does not bear much
relationship with that given by the Ministry of Justice itself in 2012 and 2013. It
makes no reference to the provisions of article 507 of the Code of Criminal
Procedure, or to any role of the court responsible for the conviction, still less to
any duty on the part of the Ministry to issue a European arrest warrant, once
satisfied that the formal conditions are met. Although the report points out earlier
that the Ministry of Justice has been designated both as the competent judicial
authority and as the central authority in relation to the issue of European arrest
conviction warrants, it speaks at this point only of the “CA”. The report was based
on a visit by experts to Estonia in September 2006, little over two years after
Estonia joined the European Union on 1 May 2004. The European arrest warrant
system may not have been well digested by that date. The Code of Criminal
Procedure may have been amended since 2006 – it seems clear that article 507(21
)
and (2 ) must have been added at some point. However, even if, contrary to the
Ministry’s emphatic explanation, the Judicial Cooperation Unit of the Ministry
does enjoy some form of “proportionality” discretion, when it comes to the
exercise of a European arrest warrant requested by a court responsible for a
sentence, this is again a factor which can only weigh in favour of the person whose
surrender is sought. It does not therefore mean, in my opinion, that the Ministry in
issuing the European arrest warrant in respect of Lavrov should not be regarded as
a judicial authority communicating a judicial decision made by the Viru County
Court.
2
Conclusions
66. The conclusions of principle that I reach are: –
For the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the
Extradition Act 2003:
i) A European arrest warrant issued by a Ministry in respect of a
convicted person with a view to his or her arrest and extradition can be
regarded as issued by a judicial authority for the purposes of Council
Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003
if the Ministry only issues the warrant at the request of, and by way of
endorsement of a decision that the issue of such a warrant is appropriate
made by:
a) the court responsible for the sentence; or
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b) some other person or body properly regarded as a judicial
authority responsible for its execution (see para 57 above).
ii) If this condition is satisfied, the existence of a discretion on the part
of the Ministry not to issue a European arrest warrant which the responsible
court (or other judicial authority) has decided appropriate and requested it to
issue does not affect this.
iii) Subject only to the second point in para 47 above (so far as left
open), a Ministry which has power to issue and issues a European arrest
warrant of its own motion or at the request of non-judicial authority,
including an executive agency such as a prison department, cannot be
regarded as a judicial authority for the above purposes.
67. The conclusions I reach on these appeals are that:
i) The European arrest warrant issued in respect of Bucnys by the
Ministry of Justice of Lithuania at the request of the Vilnius City 1st District
Court was a valid Part I warrant under the 2003 Act, and Bucnys’s appeal
should accordingly be dismissed.
ii) The European arrest warrant issued in respect of Sakalis by the same
Ministry of Justice at the request of the Prison Department was not a valid
Part 1 warrant, and Sakalis’s appeal should accordingly be allowed.
iii) The European arrest warrant issued in respect of Lavrov by the
Ministry of Justice of Estonia at the request of the Viru County Court was a
valid Part I warrant, and the Ministry of Justice of Estonia’s appeal in the
case of Lavrov should accordingly be allowed.
