Assange kills off Pupino, but ambiguity remains – Alex Tinsley

In last week’s judgment in Assange v The Swedish Prosecution Authority [2012] UKSC 22, the Supreme Court decided that the words ‘judicial authority’ in s 2(2) of the Extradition Act 2003 include prosecutors as well as courts. This was because the European Arrest Warrant (EAW) Framework Decision, to which the Part 1 of 2003 Act gave effect, uses the expression in that broad sense, and the presumption is that Parliament meant the same thing (summary here).

The EAW Framework Decision has always guided the interpretation of the Part 1 of the 2003 Act. Until Assange, there were two different reasons for this: (i) a domestic rule of statutory interpretation; and (ii) the rule expounded by the Court of Justice of the EU in Case C-105/03 Criminal proceedings against Maria Pupino.

Under the domestic rule, when Parliament legislates to give effect to an international law obligation it is presumed to do so in full. So the courts assume that Parliament did not intend Part 1 of the 2003 Act to be inconsistent with the Framework Decision and that it intended to provide the level of cooperation the Decision required (Cando Armas [2005] UKHL 67, at [8], per Lord Bingham).

The Pupino rule

Under the Pupino rule, national courts must interpret national law ‘as far as possible in light of the wording and purpose of a framework decision in order to attain the objectives it pursues’ (43). This ‘duty of conforming interpretation’ applies only to the EU’s old crime and policing laws – framework decisions – like the EAW. These were designed to be a comparatively weak form of law, but Pupino strengthened their legal force by requiring courts to try to interpret national law in such a way as to achieve the objectives of framework decisions (a similar duty applies with directives under the principle in Case C-106/89 Marleasing).

Pupino has been followed in the UK since the House of Lords decision in Dabas [2007] UKHL 6. At issue there was a provision of the 2003 Act requiring an EAW to be accompanied by a separate certificate, which the EAW Framework Decision does not require. Lord Hope, giving the lead judgment, assumed Parliament had intended this to be protection against carelessly issued EAWs (at [35]). However, applying Pupino, he noted that by imposing this requirement unilaterally the UK would frustrate the objectives of the EAW Framework Decision, which was supposed to operate uniformly (at [42]-[43]). So it was held the EAW itself could serve as the certificate (at [44]).

However, Lord Mance’s speech in Assange demonstrates conclusively (at [201] to [218]) that Pupino does not in fact bind the UK. EU law, and the rulings of the CJEU, bind the UK only because s 2 of the European Communities Act 1972 gives them that force. The scope of s 2 is carefully defined by s 1, and it does not include the EU’s old treaty provisions on crime and policing, and therefore the framework decisions passed under them. So Pupino, which applied to that area specifically, does not bind the UK.

This removes one of the two bases on which courts have drawn on the EAW Framework Decision when interpreting the 2003 Act. To consider whether this makes any difference, it is best to consider a working example.

Under the 2003 Act, an ‘accusation’ EAW can only be issued for the arrest of a person ‘for the purpose of being prosecuted’. This excludes EAWs issued prematurely for the purposes of investigation, which can lead to injustice for the person concerned (see, for example, the case of Fair Trials International’s client Michael Turner). One recurrent issue before English courts is the whether EAWs issued at the earlier stages of inquisitorial proceedings are actually for the purposes of investigation or prosecution.

J’accuse

French criminal procedure (for serious offences like murder) can be described thus: (1) the prosecutor submits a réquisitoire introductif to initiate formal investigations; (2) if and when the examining magistrate considers that there is ‘strong or concordant evidence’, s/he proceeds to mise en examen, formally placing the suspect under examination (for a useful description of French procedure, see the Opinion of Advocate-General Sharpston QC in Case 27/09 PMOI, at 142).

In McCormack [2008] EWHC 1453, the issue was whether an EAW issued at the réquisitoire stage was ‘for the purposes of being prosecuted’ within the meaning of s 2(3) of the 2003 Act. Maurice Kay LJ found that it was, relying primarily on the common law approach, noting that statutes implementing extradition agreements had to be interpreted generously so as to facilitate extradition (at [6]-[14]). He found additional support in Pupino, stating that the Court would subvert the purpose of the EAW Framework Decision if it were to prevent extradition to France unless mise en examen had been reached (at [15]-[16]). However, there is no suggestion that, ‘but for’ Pupino, the outcome would have been different.

Little or no margin left

Assange would seem to confirm that there is little or no margin between the domestic presumption and the Pupino duty: the conclusion that ‘judicial authority’ in the 2003 Act had the same broad meaning as the expression in the EAW Framework Decision was reached on the basis of the domestic rule alone, without recourse to Pupino. Indeed, though Lord Kerr recognises (at [112]) that Pupino has stronger ‘injunctive force’, their Lordships indicate with varying degrees of certainty that, without Pupino, ‘the general presumption that the UK legislates in compliance with international obligations would produce the same result’ (at [98], per Lord Brown; see also [10], per Lord Phillips PSC, [112], per Lord Kerr and [121]-[122], per Lord Dyson).

So the UK courts will not necessarily take a narrower view of the 2003 Act now Pupino is unavailable. However, Lord Mance’s speech at least clarifies what rule applies. It also clarifies the UK’s excessively complex and ambiguous position in relation to EU crime and policing law. Sadly, this comes only shortly before the UK’s big 2014 decision, when the position will change again. But for the next two years at least, we know where we stand.

Alex Tinsley is the Strategic Caseworker at Fair Trials International, a human rights charity which provides assistance to those facing criminal charges in a country other than their own. Alex was the 2010-11 Sir Peter Bristow Scholar at the Court of Justice of the EU.

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