Ministry of Justice, Lithuania v Bucnys [2012] EWHC 2771 (Admin)

Case No (1) CO/1395/2012, (2) CO/5430/2011 & (3) CO/7790/2011[2012] EWHC 2771 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/10/2012
Before
LORD JUSTICE AIKENSMR JUSTICE GLOBE
Between
(1) Ministry of Justice, LithuaniaAppellantsMindaugas BucnysRespondents
Between
Marius SakalisAppellants(2) Ministry of Justice, Republic of LithuaniaRespondents
Between
(3) Dimitri LavrovAppellantsMinistry of Justice, Republic of EstoniaRespondents
Julian Knowles QC, Hannah Pye & James Stansfeld (instructed by CPS Extradition) for Ministries of Justice of the Republics of Lithuania and EstoniaJames Lewis QC & Joel Smith (instructed by Kayders Solicitors) for Mindaugas BucnysJames Lewis QC & Ben Cooper (instructed by EBR Attridge) for Marius SakalisAlun Jones QC & Aaron Watkins (instructed by Kaim Todner) for Dimitri LavrovHearing Hearing dates: 06/07/2012
Judgment
[1]This is the judgment of the Court.

I. The Question

[2]These three appeals are brought pursuant to sections 26 and 28 of Part 1 of the Extradition Act 2003 (“EA”). Part 1 of the EA was passed to give effect in English law to the Council of the European Union Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States of the European Union of 2002(“the Framework Decision” or “FD”). 2002/584/JHA (OJ 2002 L 190 p 1) As its title indicates, the FD created a legal framework for the arrest through European Arrest Warrants (“EAWs”) and surrender between European Union (“EU”) Member States. Each Member State was obliged by Article 34 of the FD to take all “necessary measures” to implement the FD in its national laws by 31 December 2003. The appeals concern the validity of so-called “conviction” EAWs, that is EAWs seeking the surrender of a person who has been convicted and sentenced to imprisonment for an offence in the requesting EU territory but who has since fled and whose surrender by the executing territory is sought in order that he may complete his sentence of imprisonment.[3]The present three “conviction” EAWs were issued in two territories which the Secretary of State has designated for the purposes of Part 1 of the EA, viz. the Republics of Lithuania and Estonia. In each of two cases the Minister of Justice of Lithuania (“MOJL”) has issued and signed an EAW requesting that a Lithuanian national, who is currently resident in the UK, be arrested by the UK authorities and surrendered to Lithuania in order to serve the remainder of a term of imprisonment imposed by the Lithuanian courts. In the third case an official of the Ministry of Justice of Estonia (MOJE) has issued and signed an EAW which also requested the arrest and surrender to Estonia of an Estonian national who is currently resident in the UK, in order that he might serve the balance of a term of imprisonment imposed by the Estonian courts.[4]On appeal before us it was accepted that each of the three EAWs was in the correct form and contained all the necessary information. There is only one challenge to each of the EAWs by Messrs Bucnys, Salakis and Lavrov (whom I will call collectively “the offenders”). It is that the MOJL and the MOJE that issued the EAW concerned (whether that term refers to the Minister of Justice himself or an official in the Ministry of Justice or to that institution) cannot constitute a “judicial authority” within the meaning of section 2(2) of Part 1 of the EA, with the consequence that each of the EAWs issued is not a valid EAW for the purposes of Part 1 of the EA. If that be the case then it was agreed by all parties before us that the EAWs could not be executed by the Westminster Magistrates Court, which is the appropriate UK execution “judicial authority” in each case.[5]So the question raised is whether the MOJL and/or the MOJE constitute a “judicial authority” within section 2(2) of the EA, which provides:
“(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory….”
. There is no definition of “judicial authority” in either the EA or in the FD.[6]We heard oral argument from counsel on 6 July 2012. At the outset we raised the issue of whether counsel on behalf of the MOJL and MOJE was taking the point that it was not open to the offenders to question the validity of the EAWs having regard to sections 2(7) – (9) of the EA (see further below). Mr Julian Knowles QC, on behalf of the two MOJs, was reluctant to do so initially, but Mr James Lewis QC, on behalf of Messrs Bucnys and Sakalis, argued that those sections were not conclusive and Mr Knowles argued the point fully in reply. We will therefore deal with this issue, which was one that was left open by the Supreme Court in its key recent decision of Assange v Swedish Prosecution Authority. [2012] 2 WLR 1275. See in particular at [81] –[85] per Lord Phillips of Worth Matravers PSC, but compare [260] of the judgment of Lord Mance JSC.

II. The Extradition Act 2003 and the Framework Decision

[7]The Extradition Act: Although Part 1 of the EA 2003 was passed by Parliament to give effect to the FD, it does so in a somewhat oblique manner. Section 1(1) of the Act states that Part 1 “deals with extradition from the United Kingdom to the territories designated for the purposes of this Part by order made by the Secretary of State”. Throughout Part 1 of the Act it talks of “extradition” rather than “surrender”, which is the word deliberately used in the FD to contrast it with the former procedure of “extradition”. Indeed, there is no reference to the FD at any point in the EA, even in the Act’s preamble.[8]For the substance of these appeals we need only set out parts of section 2 and section 66(2) of the EA. They provide as follows: 2. 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) the statement referred to in subsection (3) and the information referred to in subsection (4), or (b) the statement referred to in subsection (5) and the information referred to in subsection (6). (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. (10) An order made under subsection (9) may— (a) designate more than one authority; (b) designate different authorities for different parts of the United Kingdom. ………………………… 66. Extradition offences: supplementary ………………. (2) An appropriate authority of a category 1 territory is a judicial authority of the territory which the appropriate judge Section 67(1) defines the “appropriate judge” in England and Wales as being a District Judge (Magistrates Court) designated for the purpose by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor. believes has the function of issuing arrest warrants in that territory.[9]By virtue of an order made under section 2(9) of the EA, The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 No 3109, as amended by the Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 No 594. the Secretary of State designated the Serious Organised Crime Agency (“SOCA”) as the authority that may issue certificates pursuant to section 2(7). There is an issue between the parties on whether the words “arrest warrants” in section 2(7) and 2(8) refer to EAWs issued in accordance with the FD procedures or they refer to domestic arrest warrants in the category 1 territory concerned.[10]We should also set out sections 27 and 28 of the EA, which deal with the Court’s powers on appeal. These sections provide: 27. Court’s powers on appeal under section 26(1) On an appeal under section 26 the High Court may— (a) allow the appeal; (b) dismiss the appeal.(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.(3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.(4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. 28. Appeal against discharge at extradition hearing (1) If the judge orders a person’s discharge at the extradition hearing the authority which issued the Part 1 warrant may appeal to the High Court against the relevant decision. (2) But subsection (1) does not apply if the order for the person’s discharge was under section 41. (3) The relevant decision is the decision which resulted in the order for the person’s discharge. (4) An appeal under this section may be brought on a question of law or fact. …………..[11]Section 28(1) and (3) apply to Bucnys’ appeal because the “judicial authority” issue was the one argued at his extradition hearing before Deputy Senior District Judge Wickham. The judge held that the MOJL was not a “judicial authority” and Bucnys was therefore discharged. The MOJL appeals that decision. In the other two appeals it was agreed that section 27(4) applies. No objection was taken to the “judicial authority” point being argued as a new point on appeal nor to material being introduced that was not before the District Judges.[12]The Framework Decision: The relevant parts of the FD we need to consider are more extensive and so we have set out the actual wording of the pertinent paragraphs of its preamble and Articles in Annexe A to this judgment. We will briefly describe them here for the purposes of the narrative. Paragraph 1 of the preamble notes that the Conclusions of the Tampere European Council of 15-16 October 1999 proposed that the “formal extradition procedure” among Member States should be abolished in respect of those who had been sentenced but were fleeing from justice and also that the extradition system should be “speeded up” in the case of persons suspected of having committed an offence. Paragraph 5 of the preamble states that the objective of the European Union, viz. to become an area of “freedom, security and justice” “…leads to…” the abolition of extradition between Member States and its replacement by “a system of surrender between judicial authorities”. Paragraph 6 stipulates that the EAW provided for in the FD will be the first measure in the criminal law field implementing “the principle of mutual recognition” which (the paragraph says) the European Council had described as the “…‘cornerstone’ of judicial cooperation”. Paragraph 8 concentrates on the Member State where the EAW is to be executed and states 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”. Paragraph 12 confirms that the FD respects fundamental rights and observes the principle recognised by Article 6 of the Treaty on European Union (ie the Maastricht Treaty of 1992) and the Charter of Fundamental Rights of the EU. The second part of paragraph 12 also confirms that the FD does not prevent a Member state from applying its “…constitutional rules relating to due process….”.[13]Chapter 1 of the FD sets out “General Principles” and Article 1 defines the EAW and the obligation to execute it. This is of fundamental importance to the present debate. Article 1.1 states that an EAW “…is a judicial decision issued by the 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”. Article 2 sets out types of offence in respect of which EAWs may be issued. Article 6 is headed “Determination of the competent judicial authorities”. Both this Article and Article 7 (headed “Recourse to the Central Authority”) are also central to these appeals, so we will set them out here as well: 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. 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 6 Determination of the competent judicial authorities authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of of the Council of the competent judicial authority under its Article 7 Recourse to the central authority when its legal system so provides, more than one central 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 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

[14]Article 8 stipulates the content and form of the EAW. A standard form is set out in the Annex to the FD. Article 8(1)(c) provides that the EAW will contain “evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having that effect coming within the scope of Articles 1 and 2”. That too is important in the present debate.[15]Chapter 4 of the FD is headed “General and Final Provisions” and Article 34 is entitled “Implementation”. Member States are obliged to transmit to the General Secretariat of the Council and to the European Commission the text of the provisions that transpose “the obligations imposed on them under this Framework Decision” into national law. That obligation had to be fulfilled by 31 December 2003, as noted above. On the basis of this information the Commission had to submit a report by 31 December 2004 to the European Parliament and to the Council, “accompanied where necessary by legislative proposals”. This Article also stipulates that the Council would conduct a review in the second half of 2003, “in particular of the practical application of the provisions of the Framework Decision by the Member States…”. We will have to return to these and subsequent reports.

III. How the FD has been implemented in Lithuania and Estonia

[16]The Lithuanian Vice-Minister of Justice, Mr Tomas Vaitkevicius, addressed a letter dated 22 February 2012 to “the competent EAWs’ executing authorities in the United Kingdom” on the subject of “European Arrest Warrants Issued by the Ministry of Justice of the Republic of Lithuania”. The letter was sent in the context of the Bucnys case, after Judge Wickham had given her decision on 6 February 2012 against the MOJL. The letter said that it was intended to address “the concerns raised regarding the designation of the MOJL as the competent European Arrest Warrants’ issuing authority” by providing certain information. It set out the following: first, Lithuania notified the European Council General Secretariat that “for the purposes of execution of a sentence of imprisonment the issuing authority was the Ministry of Justice.” Secondly, Article 69-1, paragraph 2 of the Lithuanian Code of Criminal Procedure provides that where a Lithuanian citizen or other person has been sentenced to imprisonment “by a judgment which has become enforceable, ” but this person has absconded to another Member State of the EU, then “the Ministry of Justice…issues an [EAW] and addresses a competent authority of that Member State”.[17]Thirdly, the letter states that rules for issuing EAWs were approved by the Ministry of Justice and the Prosecutor General by an order dated 26 August 2004, pursuant to Article 69 paragraph 3 of the Criminal Procedure Code. The relevant rules are rule 4, 7, 8, 9, and 12 to 16, which are reproduced in Annex B to this judgment. The general scheme of the procedural rules in the case of “conviction warrants” is that there has to be an enforceable judgment against the offender, then a request to issue an EAW has to be submitted to the Ministry of Justice by the institution that is executing the sentence. In the case of the revocation of an order for conditional or early release, the revocation ruling together with a draft EAW has to be forwarded to the Ministry of Justice. In the case of “conviction” EAWs, the procedural rules state that the MOJL then considers all the relevant documents and decides whether there are grounds for the issue of an EAW in accordance with the procedural rules and, if satisfied that an EAW can be issued, it will be and will be undersigned by the Minister of Justice.[18]Fourthly, the letter emphasises that an EAW “would only be issued on the basis of a judgment or ruling which was passed by a court and which has become enforceable. It notes that under Article 346 of the Lithuanian Code of Criminal Procedure, if a judgment has become enforceable then it shall be executed in the territory of Lithuania “without any contradictions or hindrance”.[19]Fifthly, the letter makes points to counter the suggestion that the MOJL could not come within the definition of “judicial authority” in the FD. It emphasises the fact that the MOJL will only issue a conviction EAW:
“for the purposes of execution of a sentence of imprisonment which was imposed by the court. The [MOJL] will only so act upon an initiative of a court or an authority executing the sentence and only on the basis of a judgment or a ruling of a court providing that all the relevant documents have been examined and when it has been ascertained that valid grounds for the issuance of a [EAW] exist”
[20]Lastly, the letter says that the MOJL was chosen as the issuing body for practical reasons so that there would be uniformity in the handling of EAWs and a body of “know-how” could be built up. The letter makes the false point that the competence of the MOJL had been “neither questioned nor otherwise criticised”, which is not in fact the case. This was corrected in a subsequent letter sent by the Vice Minister on 4 July 2012 (ie. two days prior to the hearing before us) in response to a request for further information. We were told that this request had been made by counsel for the MOJL.[21]For the most part the letter of 4 July 2012 restates what had been said in the earlier letter. However, the last paragraph refers to two specific points which had been raised by counsel. These relate to the Evaluation Report on Lithuania, dated 14 December 2007 which was undertaken by a group of experts appointed by the European Commission as part of the Commission’s “Fourth Round of Mutual Evaluations” which was entitled “The Practical Application of the European Arrest Warrant and Corresponding Surrender Procedures between Member States.” We shall have to consider this and other Commission reports in more detail below. The point that gave rise to the question and further comment in the letter of 4 July was that at paragraph 7.2.1.1 of the Evaluation Report it is stated that the MOJL is not a “judicial authority” within Article 6(1) of the FD and that “the Lithuanian authorities recognised that EAWs should be issued by a judicial authority and that the MOJL could not be considered as a judicial authority”, in particular where the process was instigated by the prison authorities and hence no judicial authority was involved. The Evaluation Report stated also that the team of experts had been told by the MOJL that there were plans to “allow the courts to issue EAWs directly in the future…”, which was something that the experts said they would very much welcome.[22]The letter of 4 July 2012 states that, despite the comments reported by the expert’s report of December 2007, “…in our view the designation of the [MOJL] as the issuing judicial authority is in line with the [FD]”. It adds that the recommendation of the expert’s report that Lithuania should reconsider its legal system by entrusting a “judicial authority” (the report’s emphasis) to issue EAWs in conviction matters was still under consideration.[23]Estonia: Information about the Estonian system was given in a letter dated 26 January 2012 from Ms Astrid Laurendt-Hanioja, the Head of the International Judicial Co-operation Unit in the MOJE. The letter states that the EAW for Mr Lavrov had been issued by the MOJE “for the execution of a court judgment which had entered into force pursuant to the Estonian Code for Criminal Procedure, Article 507(2)”. It says that the EAW was forwarded to the competent authority in the other Member State by the MOJE acting as a “central authority”. The letter enclosed a translation of an extract from the Estonian Code for Criminal Procedure, including Article 507. Article 507(2) states:
“(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.”
[24]There is a little more information on the procedure in Estonia in relation to conviction EAWs in the Evaluation Report to the European Council dated 20 February 2007 on “the Fourth Round of Mutual Evaluations: The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States”. This states, at paragraph 3.1, that there is no formal “practice guide” in Estonia concerning the instigation of either accusation or conviction EAWs. It notes that in cases concerning the enforcement of a sentence officials within the “Central Authority,” ie. the MOJE, will “apply …merits tests These are stated to be “severity of the offence”, “degree of participation”, “extent of injury/damage”; “age of the offence” – in general only those that occurred less than 5 years before; “whether the offence was completed or an attempt”. to assess the appropriateness of the application”. If it is judged appropriate, the MOJE will obtain directly from the criminal court concerned a copy of the order to be enforced and proceed to draft an EAW.

IV. The Facts relating to the three offenders and the issue of the three EAWs

[25]Mindaugas Bucnys (“MB”): MB is a Lithuanian national who was born on 8 February 1983. As a result of three court hearings in 2005 MB was sentenced to a total of 5 years and 4 months imprisonment for what we would describe (from the details given in the EAW but put in English criminal law terms) as one offence of attempted burglary, one offence of forgery, four offences of burglary and one offence of criminal damage. After the sentences were first imposed there appears to have been a further ruling of the Vilnius County Court on 12 October 2006, but the combined sentence totalling 5 years 4 months was confirmed by the Court of Appeal of Lithuania on 28 March 2007. The Alytus Regional District Court made an order on 12 September 2008 by which MB was conditionally released from prison without having served a part of his term of imprisonment. This release was conditional upon MB registering three times a month with what the EAW calls “correctional inspectors” for the remainder of the outstanding period of imprisonment. He failed to do so. On 20 February 2010 the Vilnius City 1st District Court cancelled MB’s conditional release and ordered that he serve the remainder of his sentence in prison. However, MB absconded. At that stage the remaining sentence to be served was 1 year 7 months and 28 days.[26]The EAW in respect of MB was issued on 18 September 2010. In box (i) of the EAW under the heading “The judicial authority which issued the warrant” it states: Official name: Ministry of Justice of the Republic of Lithuania Name of its representative: Remigius Simasius Post held (title/grade): Minister of Justice ……. Contact details of the person to contact to make necessary practical arrangements for the surrender: Toma Milleskaiet, Senior Official, Department of International Law, Ministry of Justice of the Republic of Lithuania. The EAW is signed by the Minister of Justice and it is stamped with the seal of the Ministry. Official name: Ministry of Justice of the Republic of Lithuania Name of its representative: Remigius Simasius

Post held (title/grade): Minister of Justice

[27]On 12 March 2011 SOCA issued what is habitually described as a “Part 1 Certificate issued pursuant to section 2(7) of the Extradition Act 2003”. This document, which follows a standard format used for such certificates, states:
“On behalf of the [SOCA] I hereby certify that the Part 1 warrant issued by Minister of Justice Remijius Simassius, Ministry of Justice, Republic of Lithuania, on 18 September 2010 for the arrest of [MB] for one offence of attempted theft, four offences of theft, one offence of forgery of a document and one offence of destruction or damage to property was issued by a judicial authority of a category 1 territory which has the function of issuing arrest warrants.”
The Secretary of State has designated the [SOCA] for the purposes of Part 1 of the [EA]. The Secretary of State has designated the Republic of Lithuania for the purposes of Part 1 of the [EA] by virtue of section 1 of that enactment.[28]MB was arrested in the UK on 13 October 2011 and remained in custody until the extradition hearing which subsequently took place before Deputy Senior District Judge Wickham, who handed down her judgment on 6 February 2012. The only issue argued before her was whether the MOJL was a “judicial authority” within section 2(2) of the EA. At the time she gave her judgment, the Divisional Court had delivered its judgment in Assange v the Swedish Prosecution Authority, [2011] EWHC 2849 (Admin). and the oral hearing before the Supreme Court in that case had taken place, but it had not given its judgments. The SC’s judgments were handed down on 30 May 2012. Deputy Senior District Judge Wickham concluded that the MOJL, by which she meant the Minister himself, was “a member of the Executive” and that he was not a “judicial authority” within section 2(2), so that the EAW against MB was invalid. She ordered that MB be discharged.[29]Marius Sakalis (“MS”): MS is also a Lithuanian national and he was born on 4 May 1980. On 25 January 2008, in the Vilnius City 1st District Court, MS was convicted and sentenced in his presence for two offences of rape against the same victim which occurred on the same occasion in October 2006. He was sentenced to 4 years imprisonment. An appeal to the Vilnius County Court was dismissed on 24 December 2008, although in the absence of MS. It appears that none of the prison sentence has been served, because the EAW issued in his case states that the remaining sentence to be served is 4 years. Box (b) of the EAW in this case states that the “arrest warrant or judicial decision having the same effect” upon which the EAW is based is the “judgment of the Vilnius City 1st District Court, 25 January 2008”. The judgment of District Judge Purdy states (at paragraph 1) that a Lithuanian domestic warrant for the arrest of MS was issued by the Vilnius City 1st District Court on 25 January 2008 following an “enforceable judgment,” but we are not sure whether in fact a separate domestic warrant was also issued after the conviction of MS on that date.[30]The EAW in MS’ case was issued on 29 May 2009. Box (i) identifies the Ministry of Justice of Lithuania as the judicial authority which issued the warrant and it names the Minister of Justice (Remigijus Simasius) as the Ministry’s representative. Contact details of an official, who is described as the “Chief Official, Legal Co-operation Division, Department of International Law” at the Ministry of Justice are also given. The EAW is signed by the Minister of Justice and is stamped with the Ministry’s seal.[31]On 13 September 2009 SOCA issued a certificate in this case which was in the same form as that for MB. MS was arrested in the UK on 19 January 2011. There was a full extradition hearing before District Judge Purdy on 17 May 2011 in which the defence (under different representation) conceded “all procedural points” in favour of the MOJL. The EAW was challenged on “human rights grounds” pursuant to section 21(2) of the EA. The judge rejected all those grounds as being without merit. The present ground of appeal was not argued at all.[32]Dimitri Lavrov (“DL”): DL is an Estonian national who was born on 31 December 1970. On 8 November 2000 DL was convicted in the Ida-Viru County Court of what the EAW describes as “aggravated murder” of an in-patient in the psychiatry department of a nursing home. DL was sentenced to 15 years imprisonment. The Viru District Court subsequently imposed a “final punishment” of 13 years imprisonment. On 14 July 2008 the Harju County Court released DL on parole, with an obligation to fulfil the requirements of supervision of his conduct as imposed by the court.

(f) of the EAW states:

“As [DL] failed to fulfil the supervision requirements, by ruling on 2 December 2009 Viru County Court decided to enforce the part of the sentence imposed on him by Ida-Viru County Court decision of 8 November 2000 that had not been served.”
Box (b) of the EAW indicates that an arrest warrant was issued by the Viru County Court “ruling” of 9 February 2010. That section also refers to the “Enforceable judgment” of the “Viru County Court Ruling” of 2 December 2009.[33]The EAW in DL’s case was issued on 31 May 2011. The judicial authority which issued the warrant is identified in Box (i) as the Ministry of Justice. The name of its representative is given as Astrid Laurendt-Hanioja and her post is described as Head of the International Judicial Co-operation Unit. In a separate box, which is headed “Where a central authority has been made responsible for the transmission and administrative reception of European Arrest Warrants” it gives the name of the central authority as the Ministry of Justice and the contact person is identified as Ms Laurendt-Hanioja. She is also identified as the signatory on behalf of the issuing judicial authority. The EAW is stamped with the seal of the International Co-operation Unit of the Ministry of Justice.[34]The SOCA certificate, in standard form, is dated 2 June 2011. It identifies Ms Laurendt-Hanioja, “Head of International Judicial Co-operation Unit, Ministry of Justice, Estonia”, as the issuing judicial authority. In fact by that time DL had already been arrested and held in custody in the UK pursuant to an earlier EAW. An extradition hearing took place before Deputy Senior District Judge Wickham at which DL gave evidence. The only objection made to being surrendered pursuant to the EAW was that this would be contrary to his Human Rights under Article 3 of the ECHR. Judge Wickham rejected that argument in her judgment dated 8 August 2011. The present issue was not argued.[35]The analyses of the seven Justices of the Supreme Court who all gave judgments in that case, which I shall refer to as “Assange”, are central to the present appeals. This is so even though Assange concerned an “accusation” EAW (ie. one requesting the surrender of a person to a Part 1 territory in order to be prosecuted for a relevant offence) and the “judicial authority” in that case was the Swedish Prosecuting Authority, not the Ministry of Justice, nor a Minister of Justice, nor an official of the ministry. The majority of the Court, which comprised Lord Phillips of Worth Matravers PSC, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Kerr of Tonaghmore and Lord Dyson JJSC, concluded that, upon the proper interpretation of section 2(2) of the EA, the phrase “judicial authority” encompassed the prosecutor who had issued the “accusation” EAW in that case. Lord Phillips gave the first judgment. The remainder of the majority, although they agreed with Lord Phillips on the result, were by no means in agreement with him on the route to that conclusion. Furthermore, the judgments of the minority, ie. Baroness Hale of Richmond and Lord Mance JJSC must also be considered, not least because members of the majority agreed with important aspects of the judgment of Lord Mance in particular.[36]Before analysing the judgments of the Supreme Court, however, we should identify three important points made in the judgment of the Divisional Court in that case, which was given by Sir John Thomas, President of the Queen’s Bench Division. First, at [37] of the judgment, under the heading of “The Meaning of “judicial authority” in the 2003 Act and the Framework Decision”, the court commented:
“Although no Member State should for a moment think that its Ministry of Justice was part of the judicial branch, many states, it is clear from the judgment in Schlesser, A reference to the decision of the ECtHR in Schiesser v Switzerland (1979) 2 EHHR 417, in which the Strasbourg court considered whether a District Attorney in Switzerland who sometimes acted as a prosecuting attorney should be recognized as “an officer authorized to exercise judicial power” within Art. 5(3) of the ECHR. It held on the facts of that case that the DA was “an officer authorized to exercise judicial power”. consider that the exercise of judicial power is not confined to adjudicating…..”
[37]Secondly, at [46], the court stated that the designation, under Article 6(3) of the FD, by one Member State that a particular institution was a “judicial authority” for the purpose of the issue of EAWs did not always compel the recognition by another Member State, if the authority was self evidently not a judicial authority within the meaning of that “broad term” in the FD. At [47] the court elaborated on that statement as follows:
“For example, if a warrant was issued by a Ministry of Justice which the Member State had designated as the 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 of 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…..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.”
[38]Lastly, the court noted that counsel for the Swedish Prosecution Authority accepted, before them, that if the person or body issuing the EAW was not a “judicial authority” within Article 6 of the FD, then the designating certificate issued by SOCA would not be conclusive. That was because the function entrusted to SOCA by section 2(8) of the EA was:
“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 section 64 and 66 [of the EA]must determine whether the authority is a judicial authority.”
The court also noted that if the SOCA certificate was to be challenged that would have to be done by judicial review, as it had been, albeit in the context of an existing appeal under the EA, in Harmatos v Office of the King’s Prosecutor in Dendermonde, Belgium. [2011] EWCH 1598 (Admin)[39]It will be noted, as Lord Dyson commented in his judgment in the Supreme Court, See [152] where Lord Dyson also pointed out that despite the fact that in “…a number of Member States the ministry of justice has ben designated as their judicial authority” the Divisional Court did not explain why those designations were of no effect. that the Divisional Court did not give reasons for its comment that a Ministry of Justice could not be a “judicial authority” for the purposes of either Article 6 of the FD or section 2(2) of the EA. Nor did it identify any particular “principles universally accepted in Europe”. It appears to have regarded those propositions as self-proving.[40]In the Supreme Courtthe seven Justices considered between them the following topics: first, the history of the extradition process in Council of Europe countries under the European Convention on Extradition 1957 (“the 1957 Convention”) as it had been put into practice; secondly, the genesis of the FD and the concept and system of EAWs and the “surrender” of both suspects and those who had absconded whilst undertaking sentences of imprisonment; thirdly, the aims and terms of the FD and the principles upon which the FD should be interpreted; fourthly, how the FD has been put into practice in Member States of the EU together with various European Commission reports on that process and, lastly, how the FD has been given effect in English law by the EA and the proper interpretation of the EA in the light of all the prior analysis. We must examine, as briefly as we can, what the Supreme Court concluded on some of these issues in order to deal with the arguments raised by counsel for the parties in the present appeals. They were, of necessity, principally founded on the various judgments of the Supreme Court.[41]First, all the other Justices agreed with Lord Mance’s analysis of the status of the FD in terms of the European Treaties and the extent to which aspects of those treaties fall within section 2(1) and section 3 of the European Community Act 1972 as subsequently amended. See [198] to [217] of his judgment. We would hope to summarise the position fairly as follows: the FD is a Title VI measure in the field of criminal law. Title VI measures were introduced under the “third pillar” of the Treaty of Maastricht 1992. The FD itself is a “third pillar” measure agreed (unanimously) by the Member States under Title VI of the Treaty on European Union (“TEU”) as it stood before the Treaty of Lisbon. As Lord Mance explained at [198] such a measure required unanimity and Artcle 34(2)(a) EU of the TEU provided that such measures were to be “binding…as to the result to be achieved but shall leave to the national authorities the choice of form and methods” and they were not to have “direct effect”. Despite subsequent amendments to the scope of the “third pillar”, Made under the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. an analysis of the terms of the European Communities Act 1972 as subsequently amended By sections 3 and 8 and Schedule 1 Part 1 of the European Union (Amendment) Act 2008, which gave effect in UK law to the Treaty of Lisbon 2007. Under Protocol No 36 of that Treaty the legal effect of agreements made between Member States prior to the Lisbon Treaty will remain in effect. Under the Treaty on European Union (TEU – the Maastricht Treaty) Member States were not obliged to accept the jurisdiction of what was then the European Court of Justice in respect of “third pillar” matters and the UK did not do so. That remains the case. demonstrates that Title VI measures were and remain outside the scope of the terms “the Treaties” or “the Community Treaties” for the purposes of the 1972 Act and thus outside section 2(1) of the 1972 Act. This is the section which gives the force of law in the UK to “all such rights, powers, liabilities, obligations and restrictions from time to time, created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties”, without any further enactment.[42]Because the FD is not within “the Treaties” and is outside the scope of section 2, the provisions of section 3 of the 1972 Act As amended by section 2(a) of the European Communities (Amendment) Act 1986 and sections 2 and 8 and Part 1 of Schedule 1 of the 2008 Act. will not apply to it. Section 3 provides that judicial notice is to be taken of any decision of or expression of opinion by the Court of Justice of the European Union (“CJEU”) The name adopted in the Lisbon Treaty for what was the European Court of Justice (ECJ). It is easier to refer to all decisions of this court, whether under its old or new name, as decisions of the CJEU. on any question concerning the “Treaties” or any “EU instrument”. Thus the decision of the CJEU in Criminal Proceedings against Pupino (Case C-105/03) [2006] QB 83 that there is a duty of “conforming interpretation” on domestic courts in the context of FDs adopted in the context of Title VI of the Maastricht Treaty does not fall within section 3 and so does not bind UK courts. Moreover, the fact that the UK has not accepted the jurisdiction of what is now the Court of Justice of the European Union (“CJEU”) in respect of measures in criminal law within Title VI (see footnote 14 above) means that UK courts could not refer an issue on the interpretation of the terms of the FD to the CJEU.[43]All the Justices accepted that certain important consequences flowed from this important conclusion, which Lord Mance described as a “constitutional point” which had been “…overlooked in the previous case law”. At [210] The first is that the European law duty of “conforming interpretation” does not apply to the EA, despite the fact that it is the UK’s implementation of the FD in accordance with its international law obligation set out in Article 34 of the FD. Lord Mance at [203]; Lord Phillips at [10]; Lord Walker (inferentially) at [92]; Lord Brown at [98] although with reservations; Lord Kerr at [104]; Lord Dyson at [121] and Baroness Hale at [175-6]. Secondly, the common law presumption that when the UK passes domestic legislation in order to give effect to an obligation undertaken by it in international law the UK will (at least) fulfil that obligation, remained unaffected, although that principle was not as “strong” as that of the European duty of “conforming interpretation”. Lord Phillips at [10]; Lord Walker at [92] (inferentially); Lord Brown at [98]; Lord Kerr at [112]; Lord Dyson at [122]; Baroness Hale at [176] and Lord Mance at [217]. Thirdly, however, in so far as an English Court needed to interpret the terms of the UK’s international obligation (in this case that created by the FD) when attempting to divine the meaning of the UK statute based on it, the UK court could still utilise the rules of interpretation of treaties laid down in the 1969 Vienna Convention on the Law of Treaties. In particular, if the correct circumstances existed, the court could invoke Article 31.3(b) concerning “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. However, the Justices were not all agreed on whether that Article applied in this case. Lord Phillips at [67]; Lord Walker at [92]; Lord Brown at [95]; Lord Kerr at [106-108]; Lord Dyson at [130-131]; Baroness Hale at [191]; Lord Mance at [242]. But Lords Kerr, Mance and Baroness Hale in particular were dubious about its applicability to the present case.[44]The second main conclusion on which all the Justices were effectively agreed was that the correct interpretation of the FD was a matter of European Union Law. Lord Mance stated this in terms at [229] and Lord Kerr expressly agreed with this at [105-6]. Baroness Hale impliedly agrees with the point at [179-180]. The other Justices do not deal with this proposition in terms, but it seems to us that it is implicit in the way that Lord Phillips and Lord Dyson in particular analyse the question of the interpretation of “judicial authority” that they did so. They look first at what these words means in the FD. That is not part of UK law as such and (following Lord Mance’s analysis of the “constitutional point”) the FD can therefore only exist, so far as an English court is concerned, on the European Union law plane.[45]The Justices were, however, not agreed on what materials the CJEU would consider in order to interpret the FD, in particular the words “judicial authority” in Article 6. Lord Phillips referred At [14]-[15] to Craies on Legislation 9th Ed (2008) and he approved the statement at para 32.5.2 of that work that the approach of the CJEU involved the following stages, which are to be followed sequentially in so far as the meaning (of the European legislation) has not become clear:
“start with the terms of the instrument in question, including its Preamble; turn to preparatory documents; consider the usual meaning of expressions used and [compare] different language texts of the instrument; consider the purpose and general scheme of the instrument to be construed.”
[46]Lord Mance also considered specifically the European Court’s “general interpretational approach” at [229]. But he notes that the CJEU would not have regard to travaux préparatoires as a secondary source, as can be done when interpreting a treaty, because those “non-papers” of preparatory working groups of EU institutions are not generally made available. None of the other Justices identified, in terms, all of the matters the CJEU would (or would not) take into account when interpreting the FD. However, we think it fair to conclude from the overall analysis of all their Lordships that they considered that the CJEU would have regard to(a) the wording of the FD itself;(b) a comparison of the different language versions of the FD;(c) its aims and those of the Treaties in general;(d) the genesis of the FD and the history of European procedures on extradition prior to the FD;(e) practice of Member States since the FD was adopted (via Article 31.3(c) of the Vienna Convention) and, possibly, the attitude of European Union institutions (especially the Commission) to that practice through reports made by it or for it.[47]Lord Phillips placed particular emphasis on the changes between the draft FD submitted by the European Commission to the European Council on 19 September 2001 and the draft of December 2001, which was approved by the Council of Ministers and then agreed by the European Parliament on 6 February 2002. See Lord Phillip’s judgment at [42]-[59] and Lord Mance’s judgment at [230] – [233]. The other Justices did not accept that so much weight could be put on those changes in order to determine what the correct European Law interpretation of the FD would be; indeed Lord Mance and Lord Dyson in particular thought no weight at all could be attached to the difference in wording. Lord Mance at [233] and Lord Dyson at [129]. Baroness Hale agreed with Lord Dyson: [189]. Lord Kerr was more equivocal: [103]-[104]. Lords Walker and Brown expressed no particular view.[48]The Justices do not seem to have considered expressly one of the possible consequences of the twin conclusions that the correct interpretation of the FD is a matter of European Union law but that section 3 of the 1972 Act does not apply to it. Logically, if the FD is not an “EU instrument” within section 3(1), then the declaration in that section that “any question as to the…validity, meaning or effect of any EU instrument shall be treated as a question of law (and if not referred to the European Court, be for determination as such in accordance with the principles laid down by any relevant decision of the European Court)…” cannot apply. If the meaning of an EU instrument that is outside section 3 is not a question of law in the English courts, how is it to be determined? The Justices appear to have analysed the interpretation issue as if the autonomous applicable EU law principles of interpretation of an EU instrument could still be received as if they were a matter of law despite the inapplicability of section 3. The Supreme Court apparently accepted that the provisions of the Vienna Convention on the interpretation of treaties could be utilised as a guide to the FD’s interpretation on the basis that the Vienna Convention represents customary international law and so is to be treated as a part of English law, although the Convention itself has never been incorporated directly into English law. See the Supreme Court’s Note rejecting Mr Assange’s application to re-open the appeal, referred to below.[49]After the Supreme Court delivered its judgments, Mr Assange applied to re-open the appeal on the ground that his counsel had not been given a fair opportunity to address the question of whether the Vienna Convention applied to the interpretation of the FD. The application was rejected by the Court on the basis that counsel for Mr Assange had not challenged the applicability of the Convention as an aid to the construction of the FD during the hearing, although there had been ample opportunity to do so. This point has now been specifically raised again in the written submissions of Mr Jones QC on behalf of Lavrov in which he said he wished to reserve the point for argument in the Supreme Court. If necessary, he would wish to submit that the FD is not a “treaty” for the purposes of the Vienna Convention so that neither the express provisions of that Convention nor the customary international law rules that underlie it can be invoked as an aid to the interpretation of the FD in the English courts. Nor, it would be submitted, would they be invoked by the CJEU as an aid to its construction of the FD.[50]Lastly we must identify the basis on which the majority of the Court reached the conclusion that “judicial authority” in section 2(2) of the EA included the Swedish Prosecuting Authority. At the first stage, ie. the interpretation of the FD, all of the Justices apart from Baroness Hale were prepared to conclude that, on the correct construction of Article 6(1), the phrase “judicial authority” would include public prosecutors. However, apart from Lord Phillips, Lord Phillips relied principally on the changes between the September draft and the December draft and advanced five reasons for concluding that was significant. The fifth, subsequent action by states and the Commission, actually concerns more than just the change in the draft and was adopted by the remainder of the majority as the key to the interpretation issue. they did so on a narrow basis. We think it is best summarised in Lord Mance’s judgment at [244], where he emphasised two factors that had led him to this conclusion. First, the “special role and responsibilities to the fair administration of justice of a public prosecutor” and, secondly, “in the light of the subsequent use, without apparent criticism, by a not inconsiderable number of states, of public prosecutors as an issuing “judicial authority”. See also Lord Brown at [98]; Lord Kerr at [110]; Lord Dyson at [130]-[135] [154] and [155]-[159] where he rejects Lord Phillips’ first four reasons on the importance of the change in the draft wording; Lord Walker agreed with Lord Dyson. Baroness Hale at [179] –[191] rejected the proposition that “judicial authority “ in Article 6(1) of the FD would embrace a public prosecutor. In the same paragraph Lord Mance then went on to opine, effectively, that the CJEU would not regard either the police or a ministry of justice as constituting a “judicial authority” under the FD. But at [246] he appears to step back from his conclusion in [244], saying that the “European legal answer remains obscure – in part as a result of a deliberate choice by the Council to exclude any definition of “judicial authority”.[51]At the second stage, the majority reasoned that the common law presumption that the UK would fulfil its international law obligations when transmitting the terms of that obligation into national law must lead to the conclusion that the meaning of “judicial authority” in the EA should have the same scope as that in the FD, provided it was possible to give the statutory wording the same meaning. Lord Phillips at [10] and [77]; Lord Walker at [92]-[94]; Lord Brown at [98]; Lord Kerr at [112]-[115]; Lord Dyson at [122-3] and [160] The majority concluded that it was not only possible but right to do so, even in the light of the Parliamentary material to which Lord Mance referred in reaching his contrary view. Lord Mance’s analysis of the parliamentary history of the EA is at [247] – [259]. Baroness Hale agreed with Lord Mance: see [173] and [194].[52]In the light of this analysis of how the Supreme Court reached its conclusion in Assanage, it seems to us, therefore, that our task in the present case is clear. It is to determine whether, as a matter of European Union law, the phrase “judicial authority” in Article 6(1) of the FD can embrace a ministry of justice, or the minister of justice, or an official in that ministry, that has been designated by a Member State as the “judicial authority” for issuing conviction EAWs; at least in the case where the EAW is issued pursuant to an enforceable court judgment in the issuing state that imposed or confirmed the sentence yet to be served. Whatever the answer is to the question of interpretation of Article 6(1) of the FD as a matter of European Union law, then it seems to us that we are bound by the approach of the majority of the Supreme Court in Assange to hold that the words “judicial authority” in section 2(2) of the EA must be interpreted in the same way.[53]We can now consider the arguments of the parties.

VI. The arguments of the parties and the specific issues for consideration

[54]Mr Knowles QC for the MOJL and MOJE submitted that in each case the conviction EAW was issued by the Minister or an official of the Ministry of Justice properly acting as a “judicial authority” within Article 6(1) of the FD because the issue of the EAW in each case was based on an enforceable court judgment concerning the sentence of the offender. In that regard he relied on the provisions of the Criminal Procedure Codes of Lithuania and Estonia Article 69 of the Lithuanian Code and the rules thereunder and Article 507 of the Estonian Code: see above. and Lord Phillips’ emphasis in his judgment that “the significant safeguard against the improper or inappropriate use of the EAW lay in the antecedent process which formed the basis of the EAW”. See [62]. This forms Lord Phillips’ second reason for concluding that the change from the September draft to the December version of the FD was an intention to broaden the meaning of “judicial authority” so that it “was not restricted to a judge or a public prosecutor” – our emphasis of the phrase used by Lord Phillips at [60]. However, Lord Dyson rejected this reason at [157] and Lord Walker did not accept it. Lord Brown said he would “certainly not discount” the reasons other than the “Vienna Convention/state practice point”: (see [95]. Lord Kerr did not comment specifically on this reason. Mr Knowles submitted that in Assange Lord Phillips accepted the proposition of Miss Montgomery QC (for the Swedish Prosecutor) that “judicial authority” in the FD “described any person or body authorised to play a part in the judicial process,” whether or not the person/body had qualities of impartiality and independence. The proposition is set out at [5] of Lord Phillip’s judgment and at [76] he concluded, having reviewed all the materials, that they “…all lead to the conclusion that the ‘issuing judicial authority’ [in the FD] bears the wide meaning for which Miss Montgomery contends and [so] embraces the Prosecutor in this case”. Mr Knowles contended that the “plurality” of the Supreme Court Justices effectively concurred in that conclusion.[55]Mr Knowles also stressed the fact that six Member States had designated their Ministry of Justice as the “judicial authority” for issuing conviction EAWs Denmark, Estonian, Finland, Germany, Lithuanian and Sweden. In the case of Germany the designation is formally the MOJ but it is stated that the execution of the issue of conviction EAWs has been transferred to the public prosecutor’s office of the Regional Courts. In the case of Sweden the issue is by the National Police Board under the aegis of the MOJ. and that two had done so in respect also of accusation EAWs. Denmark and Germany. He submitted that this state practice and the fact it had been acquiesced in by all other Member States would be taken into account by the CJEU when it was interpreting “judicial authority” within Article 6(1). He addressed the various European Commission reports that have been prepared pursuant to Article 34 (4) of the FD and subsequently, in particular when commenting on the designation of Ministries of Justice as issuing “judicial authorities”. These were, in chronological[56]The Commission Report of July 2007 is a revision of its earlier report in the light of implementation since 2005. At para 2.2.3, under the heading “More still needs to be done”, it states that it “is regrettable to still have to note the following defects in transposition….appointment of an executive body as the competent judicial authority in whole (Denmark) or part (Germany, Estonia, Latvia and Lithuania)…”. There is no further commentary. However, there is an Annex to this report, which is a “Commission Staff Working Document” which contains detailed analysis on which the Report itself was based. At page 18 of this document there are comments on the designation of the MOJL as the issuing judicial authority in Lithuania in respect of conviction EAWs. The report criticised Lithuania’s designation of the MOJ as the judicial authority in respect of conviction warrants and stated baldly that “the Ministry of Justice is not a judicial authority, but rather part of the Executive”.[57]We have already referred to the Evaluation Report of 14 December 2007 which was prepared by a group of three experts, who appear to have been lawyers. There were two observers. The report dealt specifically with Lithuania’s application of the FD. It described the procedure in Lithuania, stating (at para 2.1) that “in conviction cases and upon request of a court, the MOJ can issue an EAW”. At para 3.1 it states that in “conviction matters” the court responsible for the execution of the sentence or the prison department in the case of a prisoner who has absconded after the sentence has been handed down can apply for the EAW to be issued by the MOJ. At para 7.2.1.1, under the heading of “Conclusions in respect of Lithuanian’s activities as an issuing Member State” the report states that:
“…the Lithuanian authorities recognised that EAWs should be issued by judicial authorities and that the MOJ could not be considered a judicial authority. In particular, in cases where the EAW is initiated by the Prison Department and hence no judicial authority at all is involved in the process, this situation is in clear contradiction of the FD.”
[58]The first recommendation of this report was that Lithuania should, “in the light notably of Article 6(1) of the FD” reconsider its legal system “by entrusting a judicial authority The report’s emphasis. with the power to issue EAWs in conviction matters”. It welcomed a Lithuanian initiative to consider this matter.[59]The Final Report on the Fourth Round of mutual evaluations, dealing with the practical application of the EAW and corresponding surrender procedures between Member States dated 29 May 2009 commented, at para 3.1 that:
“…in some Member States non-judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the [FD]. As a matter of principle, this situation seems difficult to reconcile with the letter and the spirit of the [FD] irrespective of how understandable it may be in view of the specificities of the national system or associated practical advantages.”
[60]The last in this series of reports to which Mr Knowles referred was the Report from the Commission to the European Parliament and the Council dated 11 April 2011. At para 3 it commented that it was regrettable that a number of Member States (including the UK) had “not made amendments to their respective legislations although they were recommended to do so in previous Council and commission reports”. However, there is no reference to either Lithuania or to Estonia.[61]Mr Knowles’ overall submissions on these various reports was that they should be given very little weight. He relied upon the remark of Lord Dyson in Assange at [135] that these reports should be treated with “some caution”, because they do not purport to be authoritative rulings on the implementation of the FD. Mr Knowles submitted that they contained no reasoning on why, in the case of conviction EAWs, an MOJ should not be regarded as a “judicial authority”; there was simply a bald assertion that this was so. He argued that these reports certainly could not be regarded as evidence of any agreement or acquiescence by Member States to the effect that the FD was to be interpreted so that MOJs must be outside the scope of a “judicial authority” with respect to the issue of conviction EAWs. He noted that there had been no positive action by either any Member State or the Commission on the EAW arrangements in either Lithuania or Estonia.[62]Mr Lewis QC for the offenders Bucnys and Sakalis accepted that the starting point was to ask whether the CJEU would hold that the phrase “judicial authority” in Article 6(1) of the FD would be construed so as to include a ministry of justice. He submitted that the CJEU’s construction would not include ministries of justice and so the words “judicial authority” in section 2(2) of the EA could not do so either. He argued that the majority of the Supreme Court in Assange only reached the conclusion that the Swedish State prosecutor was within the phrase “judicial authority” in both the FD and EA because he had functional independence from the executive and there was both a previous history of state prosecutors issuing warrants for extradition and a continuing state practice after the implementation of the FD. On the last point he relied in particular on the statements in Assange of Lord Walker at [94], Lord Brown at [95], Lord Kerr at [108] and Lord Dyson at [131]. That reasoning could not apply to a ministry of justice.[63]On the principles of interpretation that the CJEU would use in relation to the FD, Mr Lewis referred us to passages in a work on the Law of the European Union In particular paras 79-86 in Issue 35 of 2012. edited by Mr David Vaughan CBE QC and Aidan Robertson QC, both experienced practitioners in this field. Mr Lewis submitted that the context and language of the FD did not suggest that ministries of justice would be held to come within “judicial authorities”. He relied in particular on the terms of Article 1(1) “The [EAW] is a judicial decision issued by a MemberState with a view to the arrest and surrender by another MemberState of a requested person…” and the fact that Article 8(1)(c) requires that the EAW must contain “evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect coming within Article 1 or 2”. He submitted that this demonstrated that there had to be a “judicial decision” to issue the EAW, which could not be made by a ministry of justice which could not be functionally independent from the executive in the way a State Prosecutor could be.[64]On the various Commission reports since the implementation of the FD, Mr Lewis submitted that they did not assist in establishing a “state practice”. Moreover, it was clear that the Commission had not acquiesced in the designation of ministries of justice as “judicial authorities” for the purposes of the FD. He urged us to resist the temptation to give way to “convenience”, just because six Member States had designated their ministries as “judicial authorities”.[65]On the question of the status of the SOCA certificate, Mr Lewis submitted that it was neither conclusive nor even important. First, he submitted that the words “arrest warrant” in section 2(7) of the EA referred to domestic arrest warrants in the relevant category 1 territory. Mr Lewis referred us to the Supreme Court’s decision in Louca v Public Prosecutor, Bielefeld, Germany [2009] 1 WLR 2550 in which the Court held that the words “any other warrant” in Article 8(1)(c) of the FD and sections 2(4)(b) and 2(6)(c) of the EA refer to any other domestic warrant on which the EAW was based. Lord Mance gave the only full judgment with whom the other Justices agreed. He did not refer to the possible meaning of “arrest warrants” in sections 2(7) and (8), save to note that the accusation EAW in that case was issued by the Public Prosecutor of Bielefeld and that “…the warrant was...certified by the [SOCA] pursuant to section 2(7) of the [EA]”. At [3]. Nevertheless Mr Lewis submitted to us that the effect of Louca was that section 2(7) the designated authority could certify that the authority that issued the “Part 1 warrant” (ie. the EAW) has the function of issuing domestic warrants in that category 1 territory.[66]On the construction of section 2(7), Mr Lewis relied on the decision of the Divisional Court in Dhar v National Office of the Public Prosecution Service of The Netherlands [2012] EWHC 697 (Admin) in particular the passage at [35] in the judgment of King J (quoted below at [81]), whilst noting Moore-Bick LJ’s remarks at [111] of the same case. Mr Lewis also referred us to the statement of Sir John Thomas PQBD in his judgment in Assange in this court at [48].[67]Mr Jones QC for the offender Lavrov submitted that there was a fundamental difference between a public prosecutor and a ministry of justice such that the latter could not fall with the scope of “judicial authority” for the purposes of Article 6 of the FD and, hence, the EA. He emphasised in particular:(i) a ministry of justice is, prima facie, part of the executive;(ii) it will not have the same independence or responsibility to other courts or, indeed, any code of ethics that a court or public prosecutor will have;(iii) thus if a ministry is in charge of issuing an EAW (whether accusation or conviction) it will have to supply the particulars of the offence(s), but it will not be under the same impulsion as would a court or prosecutor to ensure they are correct;(iv) Article 15(3) of the FD contemplates that the “judicial authority” of the requesting state may furnish additional useful information, but that contemplates this coming from an impartial source which is separate from the executive.[68]Mr Jones submitted that it was clear, on the materials concerning Estonia, that the MOJE acted as more than just a “post-box” because it actually undertook the work concerned with preparing and issuing the EAW. That situation was not that contemplated in Article 7 of the FD. He referred to the Evaluation Report concerning Estonia on the Fourth Round of mutual evaluations on the practical application of the EAW etc. dated 19 March 2007. This states, in relation to conviction EAWs issued by Estonia:
“In cases concerning the enforcement of a sentence, officials within the Central Authority (viz. the MOJE) will apply similar merits 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 EAW. In real terms therefore a pragmatic de minimis test is brought to bear, balancing the seriousness of the criminality against the merits (cost or otherwise) of issuing an EAW. Estonia reported that their outgoing EAWs were all of a benchmarked standard.”
[69]Mr Jones submitted that there was no evidence to suggest that there was a functionally independent unit within the MOJE to deal with the issue of EAW. This militated against it being within the scope of the phrase “judicial authority”.[70]In his oral argument Mr Jones appeared to accept that there “may be very little” in the argument put forward in his written submissions on the question of whether the FD constituted a “treaty” for the purposes of the Vienna Convention and the question of “subsequent state practice”. I understood this to mean that because Mr Knowles on behalf of the MOJL and MOJE did not rely heavily on the various Commission reports to establish a subsequent state practice, the issue was of little practical importance, at least in this court. He did not abandon the argument of principle set out in his written submissions, which were reserved for the Supreme Court if need be.[71]The issues we have to decide are: i) On the correct construction of sections 2(7) and (8) of the EA, are the Certificates issued by SOCA conclusive of the status of the MOJL and/or MOJE as “judicial authorities” for the purposes of section 2(2) of the EA. ii) If not, then it is necessary to decide what, as a matter of European Union law, is the scope of the phrases “the judicial authority” and “competent judicial authority” in Articles 6(1) and 6(3) of the FD. There is no decision of the CJEU on the meaning of those words. We were not referred to any decisions of courts of other Member States on their meaning. Effectively, this means that we have to attempt to predict what the CJEU would decide if faced with this issue of interpretation. Cf In re Duke of Wellington [1947] Ch 506 in which Wynn-Parry J had to decide on the applicability of the doctrine of renvoi in Spanish law in relation to wills, when the matter had not been considered by the Spanish Supreme Court and there was “deep cleavage” of opinion on the issue between Spanish lawyers. Wynn-Parry J said he had to decide how the Spanish Supreme Court would decide the issue “as if it were before that court”: see page 515 of the report. iii) Once the scope of those phrases according to European Law is determined, then, following the majority of the Supreme Court in Assange, the same scope must be given to the words “the judicial authority” in section 2(2) of the EA. The final question, therefore, is whether the MOJL and/or the MOJE come within that scope.[72]There are two sub-issues to consider about the construction of section 2(7) and (8). The first is whether “arrest warrants” in those sub-sections means domestic arrest warrants only, or EAWs only or both. The second question concerns the scope of the words “has the function of issuing…” in both subsections.[73]On the first point, despite the fact that the Supreme Court in Louca held that “any other warrant” in section 2(4)(b) and 2(6)(c) means any other domestic warrant, we are satisfied that Mr Lewis’ submission that “arrest warrants” means only a domestic warrant in section 2(7) and (8) is not correct. When the wording is examined in its context, it clearly refers only to EAWs. First, there would be no reason to set up a system of certification concerning only the function of issuing domestic warrants in that part of a statute which is dealing with arrest and surrender under the EAW system that operates between “category one” territories to which Part 1 of the EA refers. On the other hand, there is good reason for a system of certification which indicates that the “designated authority” in the UK believes that the “judicial authority” that has been designated to issue an EAW in accordance with section 2(2) of the EA is one that has the function of issuing EAWs in that category 1 territory. Secondly, construing “arrest warrants” as referring only to EAWs fits in with section 3, which deals with the arrest of persons under a certified Part 1 warrant. Section 3(1) stipulates that the section applies “if a certificate is issued in respect of a Part 1 warrant issued in respect of a person”: (our emphasis). Thirdly, section 2(7) and (8) are part of a group of sections which is headed “Part 1 warrants and certificate”, which also points to the phrase “arrest warrants” meaning EAWs.[74]On the second point, we consider first the wording, without reference to the authorities, focusing on the exact words used in section 2(7). They are “…may issue a certificate if it believes that the authority which issued the Part 1 warrant has the function of issuing [EAWs]”. That means that the “designated authority”, viz SOCA, has to believe that the authority that issued the EAW in the category 1 territory has the function of issuing such warrants. For that purpose SOCA only needs to know what body or person in the relevant category 1 territory has been designated as the “competent judicial authority” under its law, pursuant to Article 6(3) of the FD, as declared to the General Secretariat of the Council of the EU. That is, by definition, the body or person that will have the function of issuing EAWs in that territory. If SOCA were certifying that it believed that the designated “judicial body” truly were such within the terms of Article 6(1) of the FD, then it would have to do much more than rely on which person or body had been designated by the relevant territory. We are satisfied that this larger exercise was neither intended by the legislation nor is it carried out by SOCA in practice.[75]This reading of section 2(7) can be checked against the wording of section 66(2) of the EA, which is also within Part 1 and is headed “Extradition offences: supplementary”. It provides:
“An appropriate authority of a category 1 territory is a judicial authority of the territory, which the appropriate judge believes has the function of issuing arrest warrants in that territory.”
[76]There are two points to be made about this wording. First, it does not refer to the certification process in section 2(7). (Nor does any other sub-section of section 66). If a certificate issued under section 2(7) were to be conclusive of the status of a “judicial authority” in a category 1 territory, section 66(2) would have said so. Secondly, in order to constitute an “appropriate authority of a category 1 territory” for the purposes of section 66(2) two tests have to be satisfied. The first is that the “appropriate authority…is a judicial authority”, which must mean “has in fact the status of a judicial authority” of the category 1 territory. That must mean that someone, who can only be the “appropriate judge”, has to decide whether or not the “appropriate authority” actually has the requisite qualities to be a “judicial authority”. The second test is that “the appropriate judge” believes that that “judicial authority” has the function of issuing arrest warrants in that territory. That concentrates on the judge’s belief and the function of issuing arrest warrants rather than any other quality of the “appropriate authority”. We therefore agree with the statement of Sir John Thomas PQBD in this court in Assange that the judge who is performing the duties imposed by section 64 and 65 (to which section 66 applies), must determine whether the “appropriate authority” is a “judicial authority” as well as the question of whether he believes that it has the function of issuing arrest warrants. See [48] of the Divisional Court judgment in Assange.[77]The wording of section 2(7) and (8) has been considered, expressly or impliedly, in five Divisional Court cases: Enander v The Governor of HM Prison Brixton and the Swedish National Police Board, [2005] EWHC 3036 (Admin) Harmatos v Office of the King’s Prosecutor in Dendermonde, Belgium, [2011] EWHC 1598 (Admin) Assange, [2011] EWHC 2849 (Admin) Howell v Deputy Attorney General, Court of Appeal of Douai, France, [2012] EWHC 150 (Admin) and Dhar v National office of the Public Prosecution Service, The Netherlands. [2012] EWHC 679 (Admin)[78]In Enander there was no express conclusion on the effect of section 2(7) or (8), but it is implicit in the judgments of Gage LJ and Openshaw J that as Sweden had “validly appointed” the Swedish National Police Board as the judicial authority in respect of “conviction” EAWs, then the English court was bound to recognise the validity of that warrant because otherwise it would lead to an investigation as to whether the issuing authority was truly a “judicial authority”. Any enquiry would undermine the purpose of mutual trust and co-operation between Member States and any enquiry would be “…attended by considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and [could not] have been intended by Parliament”. See in particular [25] and [29]-[30]. In Harmatos, the same approach was taken in the judgment of Lloyd-Jones J, with whom Dobbs J agreed. Lloyd-Jones J said, at [20], that it was not appropriate for the English court to “embark on an investigation of the status of the requesting authority in its legal system” to see if was a judicial authority competent to issue an EAW.[79]In Assange, Sir John Thomas dealt with the effect of section 2(7) directly, at [22] and [23] and [44] to [48]. At [46] he said that, although the approach in Enander will normally apply, the designation by a Member State of the “competent judicial authority” under Article 6(3) of the FD did not always compel recognition by another Member State. As already noted, counsel for the Swedish Prosecutor conceded before the Divisional Court that the certificate issued by SOCA would not be conclusive and the court stated that it believed that concession to be correct. The President of the Queen’s Bench Division said:
“…under section 2(8) [of the EA] 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 the judicial authority.”
We respectfully agree.[80]In Howell Aikens LJ gave the principal judgment. Whilst not holding that the certificate issued by SOCA in respect of the conviction EAW in that case was conclusive, he said that he was not prepared, in the absence of evidence, to go behind that certificate. See [13]-[15] and [18].[81]Lastly, the issue was dealt with head on by King J in Dhar at [34]-[40]. At [35] King J stated as follows:
“The certificate can do no more than certify that for which those subsections [2(7) and (8)] provide. This is limited to certifying that the warrant’s issuing authority has been given the function of issuing such warrants under the law of the requesting state, without saying anything about the quality of the body which has been given that function.”
We respectfully agree. We note, however, that at [111] in the judgment of Moore-Bick LJ in that case he stated that although the SOCA certificate that the EAW was issued by a judicial authority was not conclusive, it tended to “support the conclusion that the requirements of the Act are satisfied in this case”.[82]King J went on to point out, at [36], that Article 6 of the FD has no provision for a certification mechanism as has been set up by the EA. He concluded, at [39], that notwithstanding the grant of a certificate by SOCA in that case, the appellant could raise the question of whether the issuing authority was a “judicial authority” within section 2(7).[83]We should refer also to the comments made by the Supreme Court on this issue in Assange. Lord Phillips dealt with it at [81]-[82]. Whilst he found the reasoning of the Divisional Court and those of counsel for Mr Assange (and an intervention on behalf of the Lord Advocate) to be “persuasive”, he was also impressed by the opposite view stated by Sir Scott Baker in his report to the Home Secretary of 30 September 2011 which reviewed the UK’s extradition arrangements. “A Review of the United Kingdom’s Extradition Arrangements”: report of a committee chaired by the Rt Hon Sir Scott Baker presented to the Home Secretary on 30 September 2011. At 5.112 of the report it stated:
“The rationale which underpins both Article 6 and section 2(7) is the obvious need for an internationalist or cosmopolitan approach to the interpretation of the term “judicial authority”; it is for the domestic law of each Member State to decide which body or authority is responsible for issuing warrants and it is not for other Member States to question the competence of the body in question, or the institutional arrangements for the issuing of warrants”
. The committee was not in favour of amending section 2 of the EA. Lord Phillips left the matter open for further oral argument of the point on another occasion. Lord Kerr said (agreeing with Lord Mance on this point) that the object of Article 6 of the FD was to require Member States “to identify which judicial authority is competent, rather than to confer on [the Member States] the power to assign judicial status to person or bodies that would not otherwise possess it”. See [105]. If that is correct, then on the assumption that section 2(7) was intended to be consistent with the provisions of the FD, then certification by the “designated authority” should not certify something that is not envisaged by Article 6 itself. Lord Mance makes the same point at [238], adding the important comment that if Member States could assign judicial status to take judicial decisions to whom they wished, it would deprive the words “judicial authority” in the FD of any autonomous or objective meaning. All the Justices effectively accepted that those words in the FD did have those qualities.[84]Insofar as Enander, Hermatos and Howell either expressly or impliedly state that the certificate issued by SOCA is conclusive or cannot be challenged save by judicial review, we disagree with them. We are not bound by them. We must respectfully disagree with the remarks of Sir Scott Baker in his report on this issue. We respectfully prefer the view expressed by this court in Assange and in Dhar. There is nothing in the Supreme Court’s judgments in Assange which prevents us from reaching this conclusion.[85]We hold, therefore, that a SOCA certificate that the person or body in the category 1 territory that has issued the EAW in question has the function of issuing such warrants means no more than that. It is not conclusive that the person or body who has issued the EAW in question actually has the quality of being a “judicial authority” either for the purposes of the FD or the EA. This construction of section 2(7) is not only consistent with natural meaning of the words, but, we think, is consistent with the objective of Article 6 of the FD identified by Lords Mance and Kerr and referred to above and the notion that the words “judicial authority” in the FD (and so the EA) must have an autonomous and objective meaning: see further below.[86]If this conclusion is correct then there would never be any point in trying to start judicial review proceedings to challenge a SOCA certificate issued under section 2(7). A person challenging the issue of an EAW on the ground that the issuing authority was not a “judicial authority” must do so in the extradition hearing itself.[87]At the outset we make the obvious point that the CJEU would hold that the phrase “the judicial authority” in the FD has an autonomous and objective meaning. We also respectfully agree with Lord Phillips’ statement At [15] in Assange. that “the approach to interpretation” (which we take to be the CJEU’s approach) “must be one that would be acceptable to all the Member States who have to strive to identify a uniform meaning” to the FD. The CJEU will be cognisant of the fact that the FD wording was concluded as a result of political compromises reached against the background of different legal systems and histories of the Member States. The CJEU judges would, we think, endorse the sentiment of Cardozo J in Louks v Standard Oil: (1919) 224 NY 99 “We are not so provincial as to say that every solution to a problem is wrong because we deal with it otherwise at home”.[88]To reach a conclusion on the autonomous and objective meaning of the words, the CJEU would, in our view, consider the following matters (already referred to at [46] above):(i) the wording of the FD itself, including its preamble;(ii) a comparison of the different language texts of the FD;(iii) the aims of the FD and those of the Treaties in general;(iv) the genesis of the FD and the past history of European procedures on extradition prior to the FD (although it will not consider “non-papers” for the reasons Lord Mance gave – see above);(v) the practice of the FD by the Member States since it was adopted and, possibly, the attitude of other EU institutions (especially the Commission) to that practice.[89]Wording and comparison of texts: In Assange, Lord Phillips noted that in the final version of the FD, the same weight has to be given to both the English and French texts. [16] Lord Phillips, Lord Dyson and Lord Mance all expressly accepted that the French wording “authorité judiciaire” can have a much broader meaning than that which an English court would naturally attribute to the English phrase “judicial authority”. Lord Phillips at [16]-[20]; Lord Dyson at [127]; Lord Mance at [239]. The same point would be noted by the CJEU. It would also note that there was no definition of “judicial authority” in the FD and that this was for good reason. The term would not thereby be straight-jacketed to fit one particular legal system, tradition or legal philosophy. The wording has to be capable of being adapted to the legal systems of all Member States. So we think that the CJEU would say that there can be no preconceived template of what constitutes a “judicial authority”, so long as the particular “judicial authority” designated by a Member State accorded with certain autonomous, objective, norms. That approach would be consistent with Article 34(2)(b) EU of the European Union Treaty which provides that Framework Decisions are “binding…as to the result to be achieved but shall leave to the national authorities the form and methods [ to do so]”. Cited by Lord Mance in Assange at [198].[90]The aims of the FD and the Treaties in general: In the absence of any more specific guidance on the scope of “judicial authority” from the actual wording of the text of the FD, the Court would have to look further afield to discern the autonomous and objective norms which must be fulfilled before a person or body comes within the scope of the words “judicial authority”. The CJEU would pay particular attention to Article 1 which defines an EAW as “a judicial decision issued by a Member State.” Therefore, the person or body that is to be constituted as the “judicial authority” by virtue of the law of a particular Member State, must be capable of making a “judicial decision”. However, that term is itself not defined in the FD. As Lord Phillips demonstrates at [18] of his judgment in Assange, the French word “judiciaire” can have a precise or “vague” meaning. We think the CJEU would recognise that the nature of this “judicial decision” will differ for the two different types of EAW contemplated by the FD. In the case of a “conviction” EAW there will already have been an enforceable judicial decision by which the requested person was convicted and sentenced to imprisonment of more than four months; indeed this enforceable judicial decision has to be identified in the EAW: see Article 8(1) of the FD. In the case of an “accusation warrant” there will have been no such prior judicial decision.[91]To obtain help on how “judicial authority” and “judicial decision” are to be interpreted, the CJEU would examine the FD’s wording as a whole including the preamble. We think it would take note, first, of paragraph 5 of the preamble, which sets out the “objective for the Union” (in this context) of becoming “an area of freedom, security and justice” and that this leads to “abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities”. Our emphasis. That suggests a body different from the executive, but quite in what way is left unclear.[92]Secondly, we think that the CJEU would emphasise that the system envisaged by the FD is to be based on the principle of mutual trust and confidence in the legal and judicial systems of Member States, who are left to designate the “competent judicial authority” under Article 6(3). This points to the CJEU having regard to the fact that there must be respect for different types of “judicial authority” for issuing EAWs and so different types of body making the “judicial decision” to issue an EAW. This again would lead to the CJEU holding that Member States must be allowed a degree of autonomy in determining what person or body constitutes the “competent judicial authority” for the purposes of designation under Article 6(3), provided always that the designated body complies with the requisite autonomous and objective norms contemplated by the FD. This would, we think, also confirm the CJEU’s view that a Member State’s designation of a “judicial authority” which might be within the scope of the term in the case of conviction EAWs might not be so in the case of accusation EAWs.[93]Genesis and past history: These matters were considered in detail by Lord Phillips and Lord Mance in their judgments in Assange. See respectively: [26]-[59], which includes a discussion of the differences between the “September draft” and the “December draft” of the FD; [226]-[228]. The European Convention on Extradition 1957 had provided for extradition between states of persons “against whom the competent authorities of the requesting state were proceeding or who they wanted for the carrying out of a sentence or detention order”. Per Lord Mance at [226]. The Convention was supplemented by a Council Act of 27 September 1996 96C 313/02 which gave states the right to provide, on a mutual basis, for requests of supplementary information. This was to be done between “judicial authorities or other competent authorities” authorised for that purpose. Article 14. Various authorities, which included prosecutors, the ministry of justice and police, were specified, but only for this “limited purpose”. Per Lord Mance at [226].[94]Lord Dyson noted that in the CJEU case of Advocaten voor de Wereld VZW v Leden van de Ministeraad, Case C-303/05 [2007] ECR I-3633, at 3651-2, paras 41-3 Advocate General Ruiz-Colomer said, in his opinion to the court, that the move from extradition to the EAW constituted “a complete change of direction” in the method of surrendering an individual in one state who was accused or convicted of an offence in another state so that he could be tried or serve his sentence. The Advocate-General said the difference was that in the former case the process was one between sovereign states involving politicians in which decisions were taken on a case by case basis. In the latter case the assistance was requested and provided “in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, states devolve power to independent authorities with law-making powers”.[95]However, Lord Kerr pointed out that if the CJEU were considering the meaning of “judicial authority” it would surely not have ignored what had gone before, in particular in relation to the practice of prosecutors issuing arrest warrants. Lord Kerr accepted that the failure of the FD expressly to state that the existing practices were to be swept away could not be determinative. But he also noted that “it would be incongruous that it be left to Member States under Article 6 of the [FD] to determine which body or person should constitute a judicial authority within its legal system for the purposes of issuing an EAW”. At [105] We respectfully agree. We think, therefore, that the CJEU would take account of both the “complete change of direction”, the fact that that the FD did not expressly sweep away existing practices, the fact that the FD did not provide any specific template for what was to be a “judicial authority”, thus leaving Member States the ability to draw on their past experience and practice, but it was not left solely to Member States to determine which body or person should constitute a “judicial authority” for the purposes of issuing EAWs. This also leads to the conclusion that the CJEU would hold that certain autonomous and objective norms, which it would identify, had to be fulfilled when a Member State designated a “judicial authority”.[96]Practice of Member States since the implementation of the FD and attitude of EU institutions: We find it difficult to know what weight, if any, the CJEU would give to the fact that 6 Member States have interpreted the FD in such a way as entitling them to designate a ministry of justice as the “judicial authority” in the case of issuing conviction EAWs (and in the case of Denmark, also for accusation EAWs). We think it would note the fact but no more. Similarly, although various Commission reports have criticised some Member States for designating the ministry of justice as the “judicial authority” for issuing conviction warrants, those reports do not give reasons. They simply assert that the ministry must be part of the executive and so, a priori, cannot be a judicial authority. We doubt that these reports would carry much weight. We note that in the CJEU decision of Berliner Kindl Brauerei v Siepert Case C-208/98 [2000] ECR I – 1741 at [23] where the Court examined the words, scheme and aims of a Directive to reach an interpretation and then said that this interpretation was “supported” by a statement in a Commission report. But as we read this decision, the Court was not basing its interpretation on what had been said in a subsequent Commission report. This view of the case seems to be confirmed by the Law of the European Union, Issue 35, 2012, “Principles of Interpretation of EU Law” by Vaughan and Robertson, at [95][97]Conclusions on Second Issue: The key question is: how would the CJEU defined the essential autonomous and objective norm or norms that must be fulfilled before a person or body could be properly be regarded as an issuing “judicial authority” for the purposes of Article 6(1) of the FD? We think that the CJEU would identify one norm only: it is that the designated “judicial authority” must be sufficiently independent of the executive for the purpose of carrying out the function of making the “judicial decision” when issuing the EAW. In this we agree with the approach of Lord Dyson in Assange. See [153]. We think that the CJEU would emphasise that, in this regard, there is a distinction between accusation and conviction EAWs, as suggested above. The CJEU would hold that the question of whether the “judicial authority” that had been designated by a particular Member State satisfies the test will depend on the particular circumstances relating to the “judicial authority” designated by that Member State. That would involve an assessment of that country’s legal provisions on how the issuing process is to be carried out and how it is actually done in practice.[98]We think, therefore, that the CJEU would countenance a ministry of justice being a “judicial authority” for the purposes of issuing conviction warrants in certain circumstances. But it would emphasise the essential need for the person in the ministry of justice making the “judicial decision” within Article 1(1) of the FD to be sufficiently independent of the executive for the purposes of making that “judicial decision”. In this regard, when dealing with conviction EAWs (as opposed to accusation warrants) we think that there is much force in Lord Phillips’ point about the requisite safeguards being predominantly in the antecedent process which forms the basis on which the conviction EAW is issued. [62]-[64] 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. (It may never be eliminated, but then neither will it in the case of a Public Prosecutor being the “judicial authority”). In this regard, we would point out that the Council note of 28 May 2010 (8436/2/10 REV 2) states that the FD does not include any obligation on a Member State to conduct a “proportionality test” before issuing an EAW. Referred to by Lord Phillips at [64] If proportionality does not have to be considered at any point in the issuing stage, there is even less scope for executive abuse. We appreciate that Lord Phillips concluded his judgment by calling for the EAW scheme to be reconsidered so as to introduce a proportionality requirement at the issue stage, rather than at the execution stage. That may change matters. However, that is not what the FD provides at present.[99]We appreciate that what we have said above on the “two stage process” concerning the issue of an EAW is contrary to the views of Lord Dyson at [158] in Assange and that on this aspect Lord Walker and Lord Kerr agreed with him. However, we would make three points. First, Lord Dyson was dealing with accusation EAWs, not conviction EAWs. Secondly, on the assumption that the antecedent conviction and sentence judgments are enforceable and that there are at least 4 months of the sentence left to serve, then in the case of a conviction EAW, it is difficult to see what further matters need consideration, particularly if proportionality is not relevant. Thirdly, whereas we can accept that in the case of implementing an accusation EAW the consequences are more serious (removal to a different state far away to stand trial etc), those factors cannot be so compelling in the case of a person who is evading a sentence already validly imposed by a court of the requesting state. In so far as they are important, the person is protected by his rights under the ECHR and the Charter of Fundamental Rights of the European Union, to which the FD is specifically subject by paragraph 12 of the preamble. The person whose surrender is sought is also protected by the provisions in Articles 3 and 4 of the FD. Grounds for the mandatory and optional non-execution of the EAW respectively.[100]It follows that we cannot accept that the CJEU would state, didactically, that a ministry of justice is institutionally incapable of being a “judicial authority”, at least in the case of conviction EAWs. In that regard, for the reasons we have attempted to give, we must respectfully disagree with the view of this court in Assange at [47], if those remarks were intended also to cover conviction EAWs. We do not understand Lord Dyson to have endorsed the Divisional Court’s view at [152] of his judgment. Lord Mance stated, at [244] that he would not accept that a ministry of justice could or would properly be regarded as constituting a judicial authority under the FD. However, he did not elaborate on that and, of course, he also was not dealing with conviction EAWs. Moreover, at [246] he said that “the European legal answer remains obscure”. Lord Phillips noted, at [70], that various Commission reports contain adverse comments on the use of ministries of justice as issuing “judicial authorities”. He did not pass further comment on those views. On the other hand, Lord Phillips’ acceptance of Miss Montgomery QC’s “broad and autonomous meaning” of “judicial authority” in the FD as being “any person or body authorised to play a part in the judicial process” See [5] and [76]. leads us to think that he would have concluded that the CJEU would hold that a ministry of justice could be within the scope of “judicial authority”, at least in the case of conviction EAWs.[101]For the reasons given by the majority of the Supreme Court in Assange, the words “judicial authority” in section 2(2) must be interpreted no less restrictively than the same words in Article 6 of the FD. If, as we have concluded, the CJEU would hold that those words could include a ministry of justice in the case of the issue of conviction warrants, provided the basic norm is fulfilled, then it will be for the English court to decide whether the norm is fulfilled in the case of Lithuania and Estonia. In doing this exercise, we think that the English court would have to carry out the exercise as if the CJEU were considering a specific challenge to the designation of a body as a “judicial authority” by a Member State. We base this proposition on what Lord Mance says at the outset of [229] and in [238] in Assange.[102]Lithuania: Mr Lewis submitted that Judge Wickham had made a finding of fact at [20] of her judgment to the effect that the Minister of Justice who had issued the conviction EAW in Bucnys’ case “is a member of the executive” and he “is not a judicial body”. He argued that this was either determinative or very persuasive. We cannot accept that. Judge Wickham did not have the benefit of the Supreme Court’s analysis of the issues and, with respect, she therefore did not approach the issue of construction of section 2(2) on the basis of how the CJEU would have interpreted the words “judicial authority” in Article 6(1) of the FD. We have to re-examine the position in Lithuania to determine whether the Ministry or the Minister is a “judicial authority” for the purposes of section 2(2) in the light of what we regard would be the CJEU’s construction of Article 6(1).[103]As already noted, the procedural rules for the issue of EAWs were promulgated in August 2004 and the relevant ones are at Annex B to this judgment. Rules 7 and 8 provide that the court which has convicted the offender and has imposed a sentence (of which at least 4 months must remain) has to issue a draft EAW and submit that to the ministry of justice together with a copy of the enforceable judgment. Under Rule 9 in the case of an offender whose suspended sentence has been quashed and who has been ordered to return to prison but he has fled to another Member State, the court quashing the suspended sentence has to send to the ministry a copy of that “Ruling” and a draft EAW to the ministry. Under Rule 12 the Ministry of Justice has to determine whether the “preconditions” in Rule4.1 and4.2 Viz. that the remainder of the sentence is more than 4 months and that there is a ground to believe that the convicted person may be located in another MemberState of the EU or other state which applies the surrender/EAW procedure. are fulfilled and if there are doubts, further information must be sought from the institution requesting the EAW. Under Rule 13 the ministry has only 5 days from receiving all the necessary information in which to issue the EAW. In the case of conviction EAWs, the warrant is “undersigned” by the Minister.[104]In the case of the offenders Bucnys and Sakalis it appears that the request for the EAW was based on an enforceable judgment of conviction and sentence and in Bucnys case it was also on the “Ruling” that his suspended sentence be revoked. In each case the request was made by a court, not by a prison or the Prison Department. The Commission Staff Working Document of July 2007 and the Commission Evaluation report of 14 December 2007 on Lithuania were both concerned with the fact that the Prison Department could instigate a request, so that no court or judge was involved at any stage: see page 18 of the former and para 3.1 of the latter. That is not the position in the case of either Bucnys or Sakalis. Thus the “antecedent process”, in Lord Phillips’ phrase, was judicial. The functions of the officials of the MOJL are tightly defined by the Rules and the decision on whether to issue the conviction EAW has to be made on the basis of those Rules alone. We think that the nature of the decision by the MOJL to issue a conviction EAW would, in these circumstances, fall within the phrase “judicial decision” within Article 1 of the FD.[105]Therefore, we have concluded that in these cases the MOJL satisfies the autonomous and objective norm necessary to make it a “judicial authority” within section 2(2) for the purposes of making a “judicial decision” to issue the conviction EAWs in respect of the offenders Bucnys and Sakalis.[106]Estonia: There is much less material on the procedure in Estonia. It would appear that it is the MOJE that instigates the procedure for issuing a conviction EAW, not the court that imposed the sentence or quashed the suspended sentence order. There is no requirement that the sentencing court must prepare a draft EAW and then request the ministry to issue the EAW. There are 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 EAW be carried out. We appreciate that the EAWs are prepared by a specific unit in the MOJE, viz. the International Judicial Co-operation Unit. But, in our judgment, looking at the position overall in Estonia, we are not satisfied that the decision to issue a conviction EAW can be regarded as a “judicial decision” or that this unit and its personnel have insufficient functional independence from the executive to enable the MOJE to be characterised as a “judicial authority” for the purposes of section 2(2).

X. Conclusions and disposal

[107]We therefore conclude that the MOJL is a “judicial authority” for the purposes of section 2(2) of the EA in relation to the conviction EAWs that have been issued in the cases of Bucnys and Sakalis. We emphasise again that we are not holding that the MOJL would necessarily be regarded as a “judicial authority” if the request for a conviction EAW had come from a prison or the Lithuanian Prison Department, with no court involvement.[108]In the case of the MOJE, for the reasons given, we conclude that it is not to be regarded as a “judicial authority” for the purposes of section 2(2).[109]It follows that in the case of Bucnys, the MOJL’s appeal is allowed. In terms of section 29(3) of the EA, for the reasons we have given Judge Wickham ought to have decided the “relevant question” differently. If she had decided the question of whether the MOJL was a “judicial authority” in the way we have concluded she should, then that would not have required Bucnys’ discharge. In accordance with section 29(4) of the EA, we remit the matter to Judge Wickham with a direction to proceed as she would have done had she decided the matter in the way we have concluded it should have been. Counsel will need to consider what consequential orders need to be made.[110]In the case of Sakalis, his appeal is dismissed.[111]In the case of Lavrov, we allow his appeal. In terms of section 27(4) of the EA, if the “judicial authority” issue had been raised before Judge Wickham, she would have decided the question of whether Lavrov should be surrendered differently and that would have required Lavrov’s discharge. In accordance with section27(5) of the EA, there must be orders that Lavrov be discharged and that the order for his “extradition” be quashed.

order

“Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States” dated 1 March 2005; “Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the [EAW etc]” dated 11 July 2007 and the Annex thereto; “Evaluation Report on the fourth round of mutual evaluations ‘on the practical application of the [EAW] and corresponding surrender procedures between Member States” dated 14 December 2007; the Final Report on the same topic dated 28 May 2009; and the “Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the [FD etc]” dated 11 April 2011. He noted that the March 2005 report stated that Denmark had designated “an executive body” as the competent judicial authority “for all aspects” and Estonia and Lithuania (amongst others) had done so “for some [aspects]”. Mr Knowles pointed to the fact that this report commented See page 13. on the Danish designation as being “difficult to view … as being in the spirit of the [FD]”, but it had made no adverse comment on Lithuania and Estonia’s designation in respect of conviction EAWs. Denmark made a robust response It is in part of a Commission document containing various Member States’ responses dated 2 September 2005. The Danish response on Article 6 is at pages 20-22. to the Commission Report justifying its designation of the MOJ in terms of Danish law and the wording of the FD.

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