When is a Judicial authority not a ‘Judicial authority’

On 20 November 2013 the Supreme Court handed down its judgment in the cases of Bucnys & Sakalis v Ministry of Justice, Lithuania and Lavrov v Ministry of Justice, Estonia. This was yet another appeal under the Extradition Act 2003 to make its way to the highest Court of the land.

All three European arrest warrants (EAWs) were issued by a Ministry of Justice. The points of law certified by the Divisional Court were ‘whether the requests for extradition are open to challenge on the basis that (i) they were not the product of a “judicial decision” by a “judicial authority” within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the Ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well-founded in the case of either or both of the Ministries’.

The Supreme Court had only last year considered whether a ‘public prosecutor’ could be considered a ‘judicial authority; in the case of Assange v The Swedish Prosecution Authority [2012] UKSC 22 and its conclusion was that it could.

The Divisional court in the instant case had concluded that a ministry of justice could be considered a ‘judicial’ authority’ when issuing a conviction EAW provided it was ‘sufficiently independent of the executive for the purposes of making that ‘judicial decision’’

Lord Mance gave the judgment of the Court. 18 months ago he had given a dissenting judgment in Assange that a public prosecutor could not be considered a ‘judicial authority’. Hopes were high that a similar conclusion would be reached regarding the status of Ministries of Justice.

In a 37 page judgement (with which Lords Kerr, Wilson, Huges and Toulson concurred), Lord Mance concluded that a EAW issued by a Ministry for a convicted person can be regarded as having been issued by a ‘judicial authority’ provided that the Ministry only issues the EAW at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by:

a) the court responsible for the sentence; or
b) some other person or body properly regarded as a judicial authority responsible for its execution.

It therefore follows that a EAW issued by a Ministry which has the power to issue it of its own motion or at the request of a non-judicial authority (including a prison department) cannot be regarded as a ‘judicial authority’.

So does that finally draw a line under what can and cannot be considered a ‘judicial authority’? Following the decision of the Supreme Court the focus must be on the process of issuing  the EAW. If it has been issued following the decision or at the request of a judicial authority (such as a court of prosecutor) then the EAW will be regarded as having been issued by a ‘judicial authority’ even if signed for by a Minister of the Ministry of Justice.

This will undoubtedly require the courts to look more closely at the antecedent procedure that led to the issuing of the EAW to determine which body made the decision to issue the EAW in the first place.

The decision could leave open the door to challenge EAWs that have been issued by Germany as Lord Mance stated that – because of the court having no details of the arrangements or how they operate – he could not express a conclusion either way. In Germany the MoJ is designated as the relevant judicial authority for the purposes of issuing EAWs but has delegated its role to the public prosecutor of the relevant regional courts. Lord Mance opined (obiter) that it may prove appropriate to treat the Federal Ministry of Justice as the issuing judicial authority following a prosecutor’s decision that a conviction EAW should be issued and that the decision to issue by the Ministry should be treated as an endorsement of that decision.

There are currently several German cases that have been stayed before the Administrative Court pending the decision of the Supreme Court. In one of those cases the court at Westminster Magistrates’ Court held that an EAW issued by a public prosecutor (without any relevant antecedent court history as to the issuing of a domestic warrant of arrest) was not therefore issued by a judicial authority.

Despite two Supreme Court decisions in a short period of time on what constitutes a ‘judicial authority’ the matter is far from over.