Assange v Swedish Prosecution Authority

After proceedings in the courts of Ssseden, including a hearing before the Court of Appeal of Svea on 24 November 201(). at which Mr Assange was represented and to which we refer in more detail at paragraph 51, a European Arrest Warrant (EAW) was issued on 26 November 2010 by the Svvedish Prosecution Authority (the Prosecutor), the Respondent to this appeal. It was signed by Marianne NY, a prosecutor. The warrant stated that:

It set out four offences:

Sexual molestation

Rape

On 6 December 2010 the EAW was certified by the Serious and Organised Crime Agency (SOCA) under the Extradition Act 2003, (the 2003 Act), as complying with the requirements of the 2003 Act. 7 December 2010 Mr Assange surrendered himself for arrest. On 7, 8 and I I February 201 1 there was a hearing before the Senior District Judge and Chief Magistrate, Senior District Judge Riddle. Evidence was given by Brita Sundberg-Weitman, a former judge of the Svea Court of Appeal and distinguished jurist, Mr Goran Rudling, an expert in the law relating to sexual offences in Sweden, Mr Sven-Eric Alhem, a retired senior prosecutor, and Mr Bjorn Hurtig, Mr Assange's lawyer in Sweden. The evidence is carefully summarised in the judgment of the Senior District Judge.

In a judgment given on 24 February 201 1 the Senior District Judge ordered Mr Assange's extradition.

Mr Assange originally appealed on a nun)ber of grounds; these were reduced to five in a skeleton argument served on behalf of Mr Assange on 29 June 201 1. As a result of clarification provided by the Prosecutor, and an amendment to the translation of one of the parts of the EAW, one of those grounds was withdrawn. The four issues that arose on the grounds can be briefly summarised as follows:

Mr Assange did not pursue the allegation made before the Senior District Judge that there had been abuse in issuing the EAW for a collateral purpose or that there had otherwise been an abuse of process.

Before turning to the detail of the issues, it may be helpful to set out the approach we have taken to a number of more general issues, as that approach is material to each of the issues which arises.

Construction ofthe 2003 Act

The powers of the court in ordering the surrender of a person to another Member State of the European Union are governed by Part I of the 2003 Act. It was enacted to implement the Framework Decision establishing the EAW regime - legislation adopted on 13 June 2002 by the Council of the European Union. Although Part I of the 2003 Act could be applied to other territories, it has not been so applied. Part 2 of the Act applies to extradition to other States with which the United Kingdom has extradition arrangements.

Although the 2003 Act does not mention the Framework Decision, it is now well established that Part I of the 2003 Act must be read in the context of the Framework Decision and that the national courts of the Member States should construe national laws so far as possible to attain the results sought to be achieved by the Framework Decision: see Criminal Proceedings against Pupino (Case C105/03 [20061 QB 83 at paragraphs 43 and 47 and Dabas v High Court ofJuslice in Madrid [20()7] UKHL 6, [2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15-22 (Lord Hope), paragraph 76 (Lord Brown); a helpful review is made by Professor John Spencer in (2009) 30 Statute Law Review 184.

The differences between the Act and [he Frameyvork Decision

He agreed, however, with Lord Hope said at paragraph 24:

Recital 12 of the Framework Decision permitted Member States to apply constitutional rules relating to due process.

The purpose ofthe Framework Decision

The purpose of the Framework Decision, as set out in the recitals to the Framework

The provisions Qfthe Framework Decision and lhe 20()3 ACI

As we have set out at paragraph 14. recital (5) to the Framework Decision refers to abolishing the system of extradition and replacing it by a system of surrender between "judicial authorities". Recital 8 also refers to "judicial authority"

Article 1 of the Framework Decision refu•s to the EAW as "a judicial decision issued by a Member State." It refu•s to "issuing judicial authority" and "executing judicial authority". Article 6 provides:

The 2003 Act defines an EAW as "an arrest warrant issued by a judicial authority", but does not define a judicial authority or provide a deeming provision. However the designated authority, an authority designated by the Secretary of State, currently

In Enander v Governor o/ 11MP Brixlon and (he Swedish National Police Board [2005] EWHC 3036 (Admin), the Swedish Police Board issued an EAW for the arrest of Enander who had been convicted bv a court in Svea and sentenced to a term of imprisonment. The EAW was certified under s.2 as having been issued by a judicial authority. Enander was arrested in London. There was evidence before the court that under Swedish law the sole authority tor issuing a warrant for the enforcement of a sentence was the Police Board. It was contended on behalf of Enander that the EAW was invalid as it had not been issued by a judicial authority on the basis that "judicial authority" must be construed as a body which would be recognised in the national law of the UK as being a judicial authority. The court (Gage LJ and Openshaw J) held that the expression "judicial authority" must be read against the background that it was for each Member State to designate its own judicial authority under Article 6(3) of the Framework Decision.

The decision Qfthe Senior District Judge

The Senior District Judge found that SOC A was better placed than the court to determine whether the person who issued the EAW was a judicial authority, but if there was any doubt and there was a possibility of a mistake, then the court should check. There was no reason to believe there had been a mistake. The Prosecutor and Mrs Ny had authority to issue the EAW as both were a judicial authority which had the function of issuing EAWs under the law of Sweden.

The conlenlion QfMr Assange

It was contended on behalf of Mr Assange that for the purposes of the 2003 Act, a judicial authority must be an independent person or body exercising judicial powers and functions. This construction was supported by the fact that warrants for extradition into the United Kingdom have to be issued by a judge (see s. 142) and that there is nothing in the 2003 Act to indicate a contrary intention for the issue of warrants for execution in the UK. On basic principles of UK constitutional law, those who prosecute are not judicial authorities.

The Extradition Bill when before Parliament in 2002 provided that a warrant must be a warrant issued by "an authority" of a category I territory. When an amendment was proposed to insen the word "judicial" before "authority" the Under Secretary of State (Mr Ainsworth) made it clear on 9 January 2003 in a Standing committee of the House of Commons, (Hansard col.48), that EAWs would be issued by the same authorities which had issued warrants under the then existing procedures for extradition; he gave as examples examining magistrates, courts and "the magistrate at the public prosecutor's office in Amsterdam". Subsequently in the House of Lords Grand Committee, when a further atnendment was proposed to add the words "after a judicial decision", it was made clear again by a Minister (Lord Bassam), 9 June 2003 (Hansard col. 32) that the practice would not change; there would be a judicial process. As the 2003 Act contained the express requirement that the EAW be issued by a judicial authority, it was therefore submitted on behalf of Mr Assange that the courts were bound to apply the provisions of the 2003 Act in the way that a judicial

It was submitted that it followed that the EAW issued by the Prosecutor was not a warrant issued by a judicial authority. Although the Senior District Judge had been bound by the decision in Enander to accept the designation of the Swedish Prosecution Authority under the law of Sweden as authorised to issue an EAW, it was wrong. We should not follow it.

In support of the argument, Mr Assange also relied on the jurisprudence of the ECHR under Article 5.3 which establishes that a prosecutor is not a judge or other officer authorised to exercise judicial power.

In Schiesser v Switzerland (1979) 2 EHHR 417, the Strasbourg court had to consider whether a District Attorney in Switzerland (Bezirksanwalt) who sometimes acted as a prosecuting authority should be recognised as "an officer authorised to exercise judicial power" within the meaning of Article 5(3) of the ECHR which requires a person arrested to be brought promptly before such an officer. The court observed:

However the court went on to hold that at paragraph 3 1

That decision was applied by the Commission in Skoogstrom v Sweden (1984) 6 EHHR CD 77 in determining that a prosecutor in Sweden was not an officer authorised to exercise judicial power. Although the prosecutor had personal independence, public prosecution formed part of the Executive power or branch of the State and there was no distinction in Sweden between investigation and prosecution.

There has been a consistent line of cases since the decision in Schiesser which has held that under Article 5.3, a judge or other officer must be independent of the Executive and the parties; he must not be in a position to intervene subsequently on behalf of the prosecuting authority; the person must have power to order the release of the individual after reviewing the lawfülness of the arrest: see Medvedyev v France (2010) 51 EHRR 39 (ECHR App No 3394/03) at paragraphs 123-127 where the court held that. although a prosecutor could not be a judge or other officer within the meaning of article 5.3, an investigating judge could be, as the duties of such a judge were to seek evidence for and against the accused without participating in the prosecution and that judge had the power to release an accused.

The meaning ofjudicial authority in the ACI and (he Framework Decision

The task of the court in our view is to interpret the 2003 Act in accordance with the guidance of the House of Lords, as we have set out at paragraphs 9 and following, to give effect to the results sought to be achieved by the Framework Decision, but allowing for the right of Parliament to have inserted additional safeguards against surrender.

Assuming in Mr Assange's favour it is permissible to consider the statements in Parliament which we have summarised at paragraph 26, we do not think much assistance is gained from them given the broad category of authorities and the practice under the 1989 Act to which the Ministers referred. That practice is illustrated by R v Bow Street Magistrates Court (ex p Van Der 1101st) (1986) 83 Cr App R 1 14, where one of the warrants was signed by the Public Prosecutor to the District Court of

What is significant, in our view, is the fact that in s. 2(2) Parliament adopted the same term, "judicial authority" as that used in the Framework Decision. Although in Recital 8 and Articles 14 and 15 (to which we referred at paragraph 20), the term judicial authority is plainly used to refer only to a judge who adjudicates, we do not consider that the term can be so confined when it is used elsewhere in the Framework Decision.

In the first place, it is clear that the term "judicial" as used in the several Member States does not refer only to a judge who ad_judicates. Each Member State recognises the threefold division of functions and powers within each state between the legislative, executive and judicial "powers" or "branches of the state". It is a fundamental in each Member State that the judicial branch is independent of the executive and legislative branch.

Although no Member State should for a moment consider that its Ministry of Justice was part of the judicial branch. many states. as is clear from the judgment in Schiesser, consider that the exercise of judicial power is not confmed to adjudicating. In some states it encompasses the function of investigating where this is entrusted to an investigating judge with the characteristics described in Medvedvev.

Although the status of a prosecutor is more debatable, a prosecutor does in some Member States come within the term "judicial authority". In some Member States, the prosecutor is recognised as part of "corps judiciaire For example, in some Member States, the Judicial Council (C.'onseil de la Magislrature) comprises both prosecutors and judges. In France, judges and prosecutors are within the term "authorité judiciare" as used in its constitution (see Bell: Judiciaries wilhin Europe page 65). There is without doubt a considerable diversity within the common area for justice as to whether prosecutors are 'judicial authorities". It is also relevant to consider the status of a prosecutor. It is generally recognised that a prosecutor must enjoy independence in the decisions that he must take, though the functions of a prosecutor are distinct and separate from those of a judge (see Opinion no 12 of the Consultative Council of European Judges (2009)). Although a prosecutor is in many Member States part of the Executive. as distinct from the judiciary. that independence gives the prosecutor a special status.

Thirdly, if the term "judicial authority" were confined to a judge who adjudicates, it is difficult to see what purpose Article 6 of the Framework Decision would have served, The Article must have been intended to allow Member States to designate authorities in their state which were "judicial authorities", having regard to their own national law, given the diversity to which we have referred at paragraph 38.

Fourth, it cannot be said that the term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principles of mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Article 6. To do otherwise would be to construe the word "judicial" out of context and look at it simply through the eyes of a common law judge, would not consider a prosecutor as having a judicial position or acting as a judicial authority. The position in some other Member States is different as we have explained at paragraph 38.

In Goatley v HMAdvoca/e [20061 HCJAC 55. the High Court of Justiciary considered an EAW för arrest of a convicted person which had been issued by the "Chief Attorney-General and Deputy Public Prosecutor, of the District Public Prosecutor's office in Leeuwarden" in the Netherlands. One of the grounds of challenge was that that person was not a judicial authority. The submission was rejected on the grounds that the issue should not be looked at through Scottish eyes; the EAW scheme operated on the basis of confidence between Member States; the carefully worked out scheme should not be

Thus in our view the Prosecutor was a judicial authority, as the term "judicial authority" is not confined to a judge who adjudicates but can extend to a body that prosecutes

In Enander, the court concluded that it was for each Member State to designate its issuing authority, as we have set out at paragraph 23. A similar approach seems to have been taken by the Supreme Court of Cyprus as set out in notes of the decisions in Anderson v Attorney-General (2008) and ()vakimyan v Allorney-General (2005) as noted in European Cross Border Juslice: a case sludy ofthe EAW (Christou, The Aire Centre, 2010).

It is not necessary for us to consider Enander further in the light of the principles which, with the benefit of much fuller argument, we have endeavoured to set out. It is important to emphasise that the issue in that case related to the issue of a warrant by the police for the service of a sentence. It may be that the circumstances relating to a warrant issued for the execution of a sentence are different.

Although the approach in Enander is one that will ordinarily apply, the designation under Article 6 does not, in our view, always compel the recognition by another Member State as conclusive, if the authority is self evidently not a judicial authority within the meaning of that broad term in the Framework Decision. It is of some interest to note in the light of our observation at paragraph 37 on the status of a Ministry of Justice that in 2007 the Commissioner for Justice and Home Affairs in the Report on the Evaluation of the Transposition of the Framework Decision stated that the designation by some states directly or indirectly of the Ministry of Justice as a judicial authority was contrary to the terms of the Framework Decision. However there appear to have no instances where the Commission has taken action in respect of a body that should not have been designated as a judicial authority.

For example, if a warrant was issued by a Ministry of Justice which the Member State had designated as an authority under Article 6, it would not, in our view, be a valid EAW under the Framework Decision. The principles of mutual recognition and mutual confidence which underpin the common area for justice would not require the recognition of such a warrant, as it would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. In our view a national judge within the European Union is bound to uphold the principles of mutual recognition and mutual confidence for the reasons we have given at paragraph 17; public confidence in the EAW would only be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor.

It was accepted by Miss Montgomery QC (who appeared for the Prosecutor) that if circumstances arose where it could be said that the person issuing the EAW was not a judicial authority, the designating certificate issued by SOCA would not be conclusive. It would have to be challenged by judicial review. She was right to accept that the certificate was not conclusive, as under s.2(8) of the 2003 Act the function entrusted to SOCA is to certify that the issuing authority has the function of issuing EAWs. It does not certify that it is a judicial authority. The judge in performing the duties imposed by s.64 and 66 nnust determine whether the authority is

Although in our view no challenge can be made to the validity of the EAW issued by the Prosecutor, it is necessary to consider whether the EAW should be accorded more intense scrutiny as a warrant issued by a party to the proceedings. That might be the case where it had not been subject to the impartial scrutiny of a judge in the Member State of issue. Although a prosecutor would ordinarily act independently in the decision to issue the EAW and in pursuance of what would in the terms of the Framework Decision be regarded as a judicial function, the decision is that of a party to the proceedings which has not been subjected to the impartial scrutiny of a judge.

It would therefore be entirely in conforrnity with the principles of mutual recognition and the promotion of mutual confidence between judges and citizens in the several Member States to recognise that circumstances can arise in respect of an EAW issued by a prosecutor as distinct from a judge where it is necessary for a court to accord more intense scrutiny to such a warrant. Mutual confidence, particularly the confidence of citizens in the operation of the EAW system, is not enhanced by according to such an EAW the deference that would ordinarily be accorded to an EAW issued by a judge who is bound to take into account the interests of both parties to the proceedings

However in this case, the Svea Court of Appeals on 24 November 2010, considered an appeal made by Mr Assange against an order of the Stockholm District Court made on 18 November 2010 that Mr Assange should be arrested in absentia. Mr Assange's appeal was advanced on the basis that there was no probable cause for the allegations that the Prosecutor had made against Mr Assange. Amongst the contentions made was an allegation of collusion by the complainants and, in relation to the offence of rape (offence 4). that the complainant had done nothing to make Mr Assange understand that she did not want to have sex vvith him. The Svea Court of Appeal was provided with a statement by the Prosecutor which set out details of the offences and of the investigation. It was made clear that the complainants had been questioned a number of times and the inconsistencies in their accounts and the comments made by them in text messages which had been relied on by Mr Assange's Swedish lavoyer had been put to them. It explained how the complainants had been in touch with each other and had made the complaints.

The Svea Court of Appeal rejected the appeal on the basis that, given the case report then available, Mr Assange was suspected with probable cause of the four offences and that the arrest was justified. Two days later the EAW was issued by the Prosecutor.

In this case, therefore, the action of the Prosecutor has been subject to independent scrutiny by judges in Sweden which as judges in another Member State we should accord due respect.

We thereiöre dismiss this first ground of challenge.

It has long been a principle of extradition that a person should only be extradited where the conduct is not only an otTence under the law of the State requesting extradition, but also under the law of the State from which the person-s extradition is sought. Dual criminality remains a condition under s.64 of the 2()()3 Act for all offences which are not what are known as Framework Offences, a term we explain at paragraph 59 below. Offences 1-3 are not Framework Offences. S.2(4)(c) of the 2003 Act requires the EAW to contain particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the Member State under which the conduct is alleged to constitute an oftZ•nce.

It should ordinarily be the case that a court in this jurisdiction will accept the designation of the conduct as constituting an offence under the law of the issuing state; the particulars given in the EAW should also ordinarily make clear whether the conduct would also constitute an offence under the law of England and Wales.

It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary ntens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.

The position of Mr Assange in respect of offences 1-3 where dual criminality was required was:

Offence 4, rape, is a Framework OfTence, as it is an offence listed in Article 2.2 of the Framework Decision we set out at paragraph 104 Under the provisions of s.64(2) of the 2003 Act, dual criminality is not necessary. However it was contended that the conduct was not fairly and accurately described. If it had been, it would not have been rape.

In respect of each offence, Mr Assange contended that the court should examine the underlying material from the prosecution file, even though the whole of the file had not been made available to Mr Assange's Swedish lawyer as under Swedish law it is only made fully available at a later stage. However what was provided contained the principal statements of the complainants and other material which made it obvious that the conduct of which he was accused was not fairly and accurately described in the EAW. The Prosecutor had told the Swedish Court that the further statements made by the complainants were materially the same. The stance taken by the Prosecutor in not disclosing the remainder of the file was criticised by Mr Emmerson QC who appeared for Mr Assange. However, it was consistent with the stance of the Prosecutor that this court should not consider the extraneous material in arriving at its decision on whether Mr Assange should be surrendered; it would be made available in accordance with Swedish law at the appropriate time.

The Senior District Judge did not consider it necessary to examine the statements from the complainants which were the only material put before him in the course of the hearing. He looked only at what was set out in the EAW. He concluded that dual criminality was established for offences 1-3 and that what was described in relation to offence 4 was rape.

Miss Montgomery QC, on behalf of the Prosecutor, had invited Mr Assange at the close of the hearing before the Senior District Judge to put the translation of the file made available before the court. That was done by annexing it to a witness statement dated 22 February 2011, 2 days before judgment was handed down. All that material was put before us and we were taken through it de bene esse.

Before turning to consider the description of the conduct, it is necessary to consider whether the court should make its decision on the basis of the description in the EAW or should have regard to material extraneous to the EAW, That material was the material contained in the prosecution file. The question whether the court could examine such material extraneous to the format extradition request arose under the Extradition Act 1989 in R (Castillo) v Kingdom of Spain [2004] EWHC 1676 (Admin), [20051 1 WLR 1043. The extradition request was made by the Spanish Government under the European Conv^rention on Extradition 1 957 incorporated into the law of the UK by the European Convention on Extradition Order 2001. During a stage in the extradition proceedings, a lawyer instructed by the applicant inspected

That was a decision under the Extradition Act 1989 and the European Convention on Extradition Order 2001. It was submitted on behalf of Mr Assange that we should apply the principles in that decision to a request for surrender under Part I of the 2003 Act. As there was no enquiry into evidential sufficiency and, as it had been consistently held that the issuing state had to prove that the EAW strictly complied with the terms of s.2 (see Cando Armas referred to at paragraph 138 below), it was no less essential to the protection of the rights of the person whose surrender was requested that the description of the conduct be fair and accurate. It was therefore just as important under the 2003 Act that the court should consider the fairness and accuracy of the description of the conduct by reference to extraneous material. Although it was said in Dabas v High Court of Madrid that extraneous material cannot be used to cure an EAW that was invalid (as we set out at paragraph 138 below), the converse was not true.

The requirement set out in Castillo that the conduct be fairly and accurately described was said to be applicable to s.2(4)(c) of the 2003 Act in Palar v Court of First Instance Brussels [2005] EWHC 915 (Laws LJ and David steel J) and in La Torre v Her Majesty's Advocate [20061 HCJAC 56 (the High Court of Justiciary).

However in The Criminal Court at lhe National High Courl, 1st Division (a Spanish Judicial Authority) v Murua [20101 EWHC 2609 (Admin) the court had to consider the applicability of Castillo in circumstances where the accused sought to place material extraneous to the EAW before the court to show the description of the conduct alleged was not fair and accurate. On its face, the EAW complied with the requirements of s.2 in describing terrorist conduct that endangered life. The extraneous material showed that the accused's co-defendants charges had been reduced to a less serious offence and they had been convicted of that. That offence was time barred against the accused. Sir Anthony May, President of the Queen's Bench Division, concluded that it would rarely be appropriate or permissible for a court to go behind a judicial decision or explanation as to the law or procedure of a judicial authority of a Member State in relation to the law of that State. He said at paragraph 58:

It is the submission made to us by Miss Montgomery QC for the Prosecutor that, applying the usual principles in the Divisional Court, we should follow the decision in Murua. Mr Emmerson QC for Mr Assange submitted that we should continue to apply Castillo, and not treat Murua as modifying it for the purposes of the 2003 Act.

Although, it is always open to a Divisional Court of two or three judges not to follow the decision of a single judge, we entirely agree with the conclusion reached by Sir Anthony May. The decision in Castillo to admit extraneous material was made under the 1957 Convention under which the ultimate decision on extradition

It is always possible, as Murua demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision. Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles. In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW. Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part of the court or prosecutor in the issuing state. It is necessary to consider whether the request for Mr Assange's surrender is such a case.

Offence l: Dual criminality: considera/ion o/ (he accuracy and fairness by pe/erence to extraneous material

It is conceded the conduct described in relation to offence I in the EAW discloses dual criminality, and that therefore. if a UK court does not take account of the material in the prosecution file provided to Mr Assange, then this ground of objection to Mr Assange's extradition under the EAW would fall away in respect of this offence.

In our view, it is not apposite to take into account the material in the prosecution file:

Nonetheless, as the material was put before us de bene esse, we will express our view on what difference it would have made if we had taken it into account in determining whether the description of the conduct was fair and accurate.

As is clear from the text describing the ofTences we have set out in paragraph 3, of'fences l , 2 and 3 involved the complainant AA. She had made a statement on 21 August 2010. This was the only statement made by her which was in the file that had been disclosed to Mr Assange, though there was another statement which had been made by AA subsequently but which, as we have said, would only be disclosed to Mr Assange at a later stage of the proceedings.

As regards offence l, AA said in her statement that she had offered the use of her apartment to Mr Assange from 11-14 August 2010 when she was away. She had returned on 13 August 2010 earlier than planned and then met him for the first time. They went out to dinner and returned to her apartment. As they drank tea, he started to fondle her leg which she welcomed. Everything happened fast. Mr Assange ripped off her clothes and at the same time broke her necklace. She tried to put her clothes on again, but Mr Assange had immediately removed them again. She had thought that she did not really want to continue, but it was too late to tell Mr Assange to stop as she had consented so far. Accordingly she let Mr Assange take off all her clothes. Thereafter they laid down on the bed naked with AA on her back and Mr Assange on top. Mr Assange wanted to insert his penis into her vagina, but she did not want him to do that as he was not using a condom. She therefore squeezed her legs together in order to avoid him penetrating her. She tried to reach several times for a condom which Mr Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without a condom. Mr Assange must have known it was a condom AA was reaching for and he had held her arms to stop her. After a while Mr Assange had asked AA what she was doing and why she was squeezing her legs together; AA told him she wanted him to put on a condom before he entered her. Mr Assange let go of AA's arms and put on a condom which AA found for him. AA felt a strong sense of unexpressed resistance on Mr Assange's part against using a condom.

In relation to this and the other offences. Mr Emmerson QC put forward what he said would be a fair description of the conduct which, if adopted, would show that there was no dual criminality. In suinmary, his contention was that the alleged offending conduct had been taken out of context; in relation to offence 1 that context was consensual sexual activity (undressing and lying naked on top of AA)) with the joint expectation that sexual intercourse would take place, followed by sexual intercourse taking place consensually, once he had used a condom. The offending conduct alleged was no more than a brief period, which could readily be seen as a mere misunderstanding. During that brief period, AA did not object to the continued naked contact as the apparent precursor to intercourse; AA did not wish to proceed immediately for a reason not immediately obvious but shortly thereafter rectified. It was also of importance in relation to the mens rea, since for dual criminality, the facts alleged had to impel the conclusion that Mr Assange had no reasonable belief that AA was consenting to what had happened.

It seems to us that the conduct described as offence I fairly and properly describes the conduct as set out in AA's statement in relation to what is complained of restricting her movement by violence. We accept that Mr Assange subsequently allowed AA to move so she could find a condom for him to use, but at the point in time to which the offence relates, we do not read anything in her statement to indicate consent to his restraining her. Indeed her statement indicates precisely the opposite at the point of time to which it relates. It of course might well be argued that his subsequent decision to let go of her might indicate a lack of coercion or consent to what followed, but at the point of time to which the offence relates, we consider the conduct of which he is charged to have been fairly and accurately described. As we have set out at paragraph 71 . v) above, the matters alleged are sufficient, in our vie^AÅ, and to the extent relevant, to impel the infu•ence of knowledge. The context does not change our view.

It must therefore follow in respect of ofTence I that the challenge made fails, even if the extraneous material was taken into account.

()ffence 2: Dual criminality

It was contended that the conduct in respect of offence 2 described in the EAW was not an offence under the law of England and Wales and, in the alternative, that if the offence had been fairly and accurately described, then it was also not an offence under the law of England and Wales.

The issue

The essence of the offence as described in the EAW, as set out at paragraph 3, was that Mr Assange knew that AA would only consent to sexual intercourse if he used a condom throughout, but he had concluded sexual intercourse with her without a condom. The point was taken on Mr Assange's behalf that consent to sexual intercourse on condition that Mr Assange wore a condom remained under the law of England and Wales consent to sexual intercourse, even if he had not used a condom or removed or damaged the condom he had used. No offence was, it was submitted, therefore committed under the law of England and Wales.

The law prior to the Sexual ()//énces Aci

It had been clear, before the law in relation to sexual offences was codified by the Sexual Offences Act 2003, that in cases of rape consent to sexual intercourse was consent in all circumstances. unless there had been fraud as to the nature of the act or to the identity of the person who did the act (see R v Clarence (1889) 22 QBD 23). In R v Dee (1884) 14 L.R. Ir 468, an Irish case that was subsequently declared to be the law of England and Wales, Pales CB expressed the rationalisation of the cases involving fraud as to identity at 488 on the basis that:

The Sexual Offences Act

S. 1(1) of the codifying statute, the Sexual Offences Act 2003 set out the offence of rape; s.2 sets out the offence of assault by penetration and s.3 the offence of sexual assault. It is an ingredient of each that there is no consent by the person penetrated or assaulted and no reasonable belief by the defendant that the person is consenting. The basic definition of consent is set out in s. 74:

The contention of Mr Assange

Mr Assange primarily relied on R v B [20061 EWCA Crim 2945 [2007] I WLR 1567 where the court considered one of the evidential presumptions relevant to consent

The court held in B that deception as to HIV was not deception as to the nature or purpose of the act of sexual intercourse which was the relevant act to which the complainant consented; the deception had been as to the risk of infection. The court said at paragraph 1 7:

It was therefore submitted that in the present case, as AA had consented to sexual intercourse, and as that was the nature of the relevant act, it did not matter that she had consented only on the basis that he used a condom, as that did not change the nature of the act. It was accepted on Mr Assange's behalf that this contention might not be one contemporary society would readily understand or consider justifiable, but Parliament had enacted the law in those terms and the duty of the courts was to apply the law.

Our conclusion

we cannot accept that contention. In R v Jheeta [2007] EWCA Crim 1699, [2008] 1 WLR 2582 the court made clear that in most cases the absence of consent and the appropriate state of the defendant's mind would be proved without reference to the evidential presumptions set out in s. 75 and s. 76. The facts of Jheela are instructive. The complainant had sexual intercourse with the defendant after he had tricked her, by impersonating a police officer, into believing that, if she did not have sexual intercourse, she would be fined. As the court pointed out, s. 76 was applicable. As it contained conclusive presumptions where intercourse was proved, the section required the most stringent scrutiny. Sir Igor Judge, President of the Queen's Bench Division, in giving the judgment of the court said at paragraph 24:

In our view, therefore, s. 76 has no application, The question of consent in the present case is to be determined by to s. 74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It plainly be open to a jury to hold that. if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.

It might be said that Mr Assange's conduct in having sexual intercourse with AA without a condom (or in continuing sexual intercourse with AA after removing, damaging or tearing the condom) deceptive. Assuming it was deceptive, then in our view it was not deceptive as to "the nature or quality of the act". We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy; moreover the editors of Sfnilh & Hogan (12^th edition at p.866) comment that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. It seems to us, however. that s. 76 should be given a stringent construction, because it provides for a conclusive presumption. The issue of the materiality of the use of a condom can be determined under s. 74 rather than under s. 76.

It appears to have been contended by Mr Assange, that if, in accordance with the conclusion we have reached, the deception was not a deception within s. 76 (a deception as to the nature or quality of the act or a case of impersonation), then the deception could not be taken into account for the purposes of s. 74. It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s. 74, conduci that was deceptive could not be. There is nothing in R v B that suggests that. All the court said at paragraph 21 was:

The editors of Smith & Hogan in the passage to which we have referred regard it as self evident that deception in relation to the use of a condom would "be likely to be held to remove any purported free agreetnent by the complainant under s. 74". A very similar view is expressed in Rook and Ward on Sexual Off&nces• (4¹¹) edition) at paragraph 1.216. Moreover Jameel makes clear the limited scope of s. 76. The complainant was deceived in a manner which did not go to the nature or purpose of

In our view s. 76 deals simply with a conclusive presumption in the very limited circumstances to which it applies. If the conduct of the defendant is not within s. 76, that does not preclude reliance on s. 74. R v B goes no further than deciding that failure to disclose HIV infection is not of itself relevant to consent under s. 74. R v B does not permit Mr Assange to contend that. if he deceived AA as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue of AA's consent to sexual intercourse as a matter of the law of England and Wales or his belief in her consent. On each of those issues, it is clear that it is the prosecution case she did not consent and he had no or no reasonable belief in that consent. Those are issues to which s. 74 and not s. 76 is relevant; there is nothing in R v B which compels any other conclusion. Furthermore it does not matter whether the sexual contact is described as molestation, assault or, since it involved penile penetration, rape. The dual criminality issue is the absence of consent and the absence of a reasonable belief in consent. Those issues are the same regardless of the description of the conduct.

Thus. if the question is whether what is set out in the EAW is an offence under the law of England and Wales, then it is in our view clear that it was; the requirement of dual criminality is satisfied.

The alternative contention relies on the statement of AA. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, it is not necessary to consider this. But as the material was put before the court de hene esse, then we will express our view by reference to it.

AA's statement went on to describe what happened immediately after \Nhat we have set out in relation to offence l . She made it quite clear, as we have set out at paragraph 74, that she wished him to put a condom on before he entered her. Indeed she was concerned he had not put a condom on. She felt his penis with her hand to check he had really put it on. She felt that the edge of the condom was in the right place on the root of his penis. They therefore continued to have sex, as she said that she thought that she just wanted to get it over with. After a while AA noticed that Mr Assange had pulled his penis out of her and started to arrange the condom. Judging by the sound AA thought he was removing the condom. He then penetrated her again and continued sexual intercourse. She felt again with her hand that the edge of the condom was, as previously, around the root of the penis. She therefore let him continue. AA stated that a while later he ejaculated inside her and then pulled out. When he removed the condom from his penis, AA saw it was empty of semen. When she started to move her body she noticed something was seeping out of her vagina and understood it must be his semen. AA told the police she was convinced that Mr Assange, when he pulled out of her, broke the condom by the glans and then continued the intercourse until he ejaculated.

The evidence in the file showed that the condom was examined by the Swedish National Laboratory of Forensic Science. The conclusion of the expert was that there

It is in our view clear from her statement that AA only wished to have sexual intercourse with Mr Assange if he used a condom. It is also clear that a case being made by the Prosecutor is that Mr Assange, knowing that, nonetheless broke the condom. It was submitted that it should have been made clear that the allegation was founded on her belief he had torn the condom and that the forensic science evidence did not support that belief; it was also submitted that the evidence showed she consented. Whether there is sufficient evidence is a matter with which this court cannot be concerned. Nor was it necessary to set out facts that might disprove her case that she did not consent, such as her invitation to him to remain in the flat. The sole concern of this court is whether, on the basis that the fairness and accuracy of the description can be examined by reference to the materials in the prosecution file, the description of the conduct is fair and accurate. In our view, although the language could have been expressed tnore precisely, it is clear what is being said, namely that Mr Assange had sexual intercourse with her when not using a condom when he knew she would not have sex with him unless he was using a condom which protected her from his ejaculate entering her. It seems to us immaterial to the fairness and accuracy of the description of the offence whether that lack of protection arose out of his failure to wear a condom or his tearing or damaging the condom deliberately.

In our view, therefore, the description was fair and accurate; the offence was, for the reasons we have given an offence under the law of England and Wales; the requirement of dual criminality was satisfied.

3: Dual criminality: consideration ofthe accuracy and fairness by re/&rence to extraneous material

It is conceded the description of offence 3 in the EAW discloses dual criminality. The position is therefore in that respect the same as for offence l , as it was submitted that the statement of AA in the prosecution file showed that conduct had not been fairly and accurately described. If it had been, then the conduct alleged would not have been an offence under the law of England and Wales. Again it was said that viewed in the context of the parties' previous relationship, and conduct, important features were omitted frotn the statement of facts. Were they included, the necessary inference that AA did not consent or that Mr Assange had no reasonable belief that AA did consent to the sexual touching could not inevitably be drawn.

For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the statement of AA into account, but again as it was before the court de hene esse, we will express our view on the position.

In her statement describing offence 3, which is alleged to have occurred some days later on 18 August 2010 or (in the revised translation) on or about 18 August 2010, AA stated that after 12/13 August 2010 they did not have sexual intercourse again. AA said that Mr Assange tried to make sexual advances towards her every day thereafter. For example he had touched her breasts. She rejected him on all occasions. He accepted these rejections.

During this time, however, she continued to sleep in the same bed as Mr Assange. When they were in the same bed on 18 August 2010, he suddenly took all his clothes off from the lower part of his body and rubbed that part of his body and his erect penis against AA. She had tat this vvas very strange behaviour and awkward. After this, she no longer slept in the same bed as Mr Assange, but moved to a mattress on the floor.

The essential complaint made about the fairness and accuracy of the description of offence 3 is that it did not state that Mr Assange was sleeping in the same single bed as AA and that, understandably and without criminal intent, he might have had an erection in those circumstances.

We cannot accept that what is set out in the EAW in respect of offence 3 is not fair and accurate. It is clear that what AA complains of is that he deliberately took his clothes off the lower part of his body and rubbed that part of his body and his erect penis against AA. We do not consider the fact that the description in the EAW does not state that they were sleeping in the same bed as in anyway affecting the validity of the fairness of the description. The only point of referring to AA and Mr Assange being in the same bed would be to give rise to an inference of consent to his conduct or the acceptance of the risk of accidental contact with his lower body or his erect penis. However it seems to us clear from the statement of AA that her consent to allow him to share the same bed was not a consent to him removing his clothes from the lower part of his body and deliberately pressing that part and his erect penis against her. True it is that the context is not spelt out, but what is necessary for the prosecution to prove as the ingredients of the offence under the law of England and Wales are spelt out. The context relied on by Mr Assange does not show that the allegation is not one of an offence under the law of England and Wales, including the requisite mens rea.

We would therefore have reached the conclusion that dual criminality was made out, even if the additional material had been taken into account.

Offence 4: A framework ofjénce.• /åirness and accuracy Q/ the description ()/lhe conduct

As we have set out at paragraph 59, offence 4 is the Framework Offence of rape. The provisions of Article 2.2 of the Framework Decision mark a departure from conventional extradition. It specifies a list of offences where it is not necessary to establish dual criminality. Rape is one of the offences listed. The article provides:

It was contended that the offence as described in the EAW was not "rape"; if it had been fairly or accurately described in the EAW, it still would not have disclosed the offence of "rape".

It is necessary first to consider what is meant by rape.

The meaning ofrape

The contention advanced was that there had to be a description of what is recognisable as rape as that term is used "in the language and law of European countries".

If the proper approach is to consider whether what is set out in the EA\V describes conduct amounting to rape as that is used in "the language and law of European countries", as submitted on behalf of Mr Assange, then it is necessary to consider what is meant by rape. There is, of course, no standard definition of rape. In M.C. v Bulgaria (2005) 40 EHHR 20, the Strasbourg Court considered a complaint that the law of Bulgaria did not sufficiently protect against rape, as it was only in those cases where the victim actively resisted that a prosecution was brought. The court held that although states had a significant margin of appreciation, a requirement that the victim must physically resist was no longer a requirement of most European countries. After referring to the position in common law states, the court continued:

On this approach, then intentional penetration achieved by coercion or where consent is lacking to the knowledge of the defendant would be considered to be rape. In our view on this basis, what was described in the EAW was rape. Coercion evidences knowledge of a lack of consent and lack of a reasonable belief in consent. A requirement of proof of coercion, if that is what Swedish law requires, is a more

However, it is not in our view necessary to approach the issue in this way. It is the law of the issuing state that governs: Article 2.2 of the Framework Decision (which we have set out at paragraph 104) clearly so provides.

Thus it seems to us that although the court executing the EAW^Y must scrutinise the EAW to ensure that it complies with the requirements of particularity, it should ordinarily accept the classification of the issuing Member State, unless there is an obvious inconsistency which shows that the conduct alleged does not amount to the offence under the law of that state. This approach appears to be reflected in the approach of the Dutch and Irish courts. We were referred to two decisions of the District Court of Amsterdam; in the second, LJN BO 7884, the court concluded:

Although the decision of the Amsterdam Court was not referred to, this approach is reflected in two decisions of the Irish Supreme Court. In Minister Q/• Justice, Equality and Law Re/Örm v Desjatnikvos [20081 IESC 53 it was made clear at paragraph 24.1 that the definition of Framework Offences is a matter for the issuing state. However, in a second case, Minister ofJustice v Tighe [20101 IESC 61, it was held that the certification by the issuing Member State was not conclusive. The court held that an EAW issued by the United Kingdom was invalid where, although it was certified, and all the offences were within the Framework List. the EAW

In two United Kingdom cases, the court did not need to go so far, reaching the conclusion on the basis of the adequacy of the particulars given. In Palar v Court of First Instance of Brussels [20051 E WHC 915 (Admin) to which we have referred at paragraph 65, the contention advanced by the defendant (that it was not a valid EAW as it did not set out particulars of the conduct alleged as required by s.2(4)(c)) was a contention made in respect of a Framework Offence. As we have set out, the court concluded that the warrant did not in fact specify conduct against the defendant and therefore no conduct reasonably capable of aniounting to the Framework Offence was specified in the warrant. In Kingdom Q/• Spain v Arteaga [2010] NIQB 23, a Divisional Court in Northern Ireland after an extensive citation of authority concluded that the EAW set out the conduct alleged in unacceptably vague and general terms; the failure to condescend to particularity was fatal to the EAW. Neither of these cases support the proposition advanced on behalf of Mr Assange that conduct, even for the Framework Offence of rape, must be conduct reasonably capable of amounting to rape as understood in England and Wales.

The Svea Court of Appeal, as we have explained at paragraph 51, has considered offence 4 and raised no objection to it. It can therefore be taken that, as other material confirms, rape can be committed according to the law of Sweden when a defendant has sexual intercourse with a woman in a helpless state. The particulars given in the EAW set out that helpless state as being asleep. There is no inconsistency between what is set out in the EAW and the classification of rape in Sweden.

The designation of the conduct under the Ian' o/England and Wales

As it is alleged SW was asleep. then she is to be taken not to have consented to sexual intercourse.

For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the statement of SW into account.

However, as extraneous material was placed before the court de bene esse, we have considered the fairness and accuracy of the description in the light of that material. Offence 4 was based on the complaint of SW made at a hearing on 26 August 2010. The fairness and accuracy of Offence 4 related to S W' s account of what happened on 17 August 2010. It was submitted that, if that part of her statement relating to 17 August 2010 was read in its entirety, a fair and accurate description of the conduct would have made clear her consent to sexual intercourse or alternatively a reasonable belief on his part that she consented.

In her statement SW said that she had been captivated by Mr Assange when she had seen him in a TV interview. She had attended a lunch with him and others on 14 August 2010. He had flirted with her over lunch and they had gone out together ending up in cinema where they kissed and fondled. She contacted him on 16 August 2010 and invited him to her house. In the bedroom he took her clothes off; they were naked together on the bed and engaged in sexual foreplay on the bed. He rubbed his penis against her. She closed her legs because she did not want to have intercourse with him unless he used a condom. After a period of some hours, he went to sleep. For a long time she had lain awake, but then she also fell asleep. They then had sexual intercourse with him using a condom. They fell asleep and woke and had sex again. They had breakfast. They had sex again with a condom only on the glans of his penis.

Her statement then describes in some detail the conduct that forms the basis of Offence 4. She fell asleep, but was woken up by his penetration of her. She immediately asked if he was wearing anything. He answered to the effect that he was not. She felt it was too late and, as he was already inside her, she let him continue. She had never had unprotected sex. He then ejaculated inside her.

The essential complaint made about the fairness and accuracy of the description of the offence is that it did not set out the context to which we have referred from which it was contended that the offence of rape could not be inferred. The context would have made clear that she either consented or he had reasonable belief in her consent.

We do not consider that the offence was not fairly and accurately described. It is quite clear that the gravamen of the offence described is that Mr Assange had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom. The description of the conduct makes clear that he consummated sexual intercourse when she was asleep and that she had insisted upon him wearing a condom. "Consummated" refers to having intercourse, not to ejaculation. In our judgement it was not necessary to go further than was set out in the description of the conduct, as it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom. There is nothing in the statement from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.

Nor do the inconsistencies in her account and text messages relied upon by Mr Assange assist. In one sent by her she described herself as "half asleep" and she accepted in a further interview that she was not fast asleep. These are matters of evidence which would be highly relevant at trial. But it is not for this court to asses whether the allegations may fail. It was not therefore necessary to set the details of these out. There is, therefore, nothing in the particulars which is neither fair nor accurate.

The gravamen of Mr Assange's argument is that the description of the offence by the Prosecutor does not set out the continuum of events and the context, but seeks to isolate one aspect. That continuum and context showed that she agreed to sexual intercourse when she realised what was happening; it cannot therefore be alleged that he did not have a reasonable belief in consent. We accept Ms Montgomery's observations about how far it would be right to see what happened afterwards as consensual rather than reluctant submission. But the fact of protected sexual intercourse on other occasions cannot show that she was, or that Mr Assange could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her. Once awake she was deciding whether to let him go on doing what he had started. However it is clear that she is saying that she would rather he had not started at all and had not consented. The prosecution case on rape is or includes the start of sexual intercourse: its references to "consummation" cannot in context be confined to its conclusion or to ejaculation. It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.

Conclusion

In our view, therefore, the objections raised on the second issue fail.

The provisions of the 2003 Act

It is a condition set out in s.2(2) of the 2003 Act that an EAW must contain the statement set out in s.2(3):

It was common ground that extradition is not permitted for investigation or gathering evidence or questioning to see if the requested person should be prosecuted.

The Senior District Judge found that there was no ambiguity in the EAW. He was therefore required to look at the warrant alone. He was sure it was valid on its face; the surrender of Mr Assange was, as the warrant stated, requested for the purpose of being prosecuted for the offences. The Senior District Judge was satisfied, looking at the warrant as a whole, that Mr Assange was an accused person. However he went on to make findings on the extrinsic evidence, as we set out at paragraph 148 below.

The issue: was Mr Assange "accused

It was accepted in oral submissions made on behalf of Mr Assange that the surrender of Mr Assange was sought for the purposes of conducting a criminal prosecution (satisfying 2(3)(b)), as the Senior District Judge had held. That concession was made because it was accepted that the words "for the purposes of being prosecuted" were broad enough to encompass a prosecution that would commence in the future. Under the Framework Decision which used that term the concepts of pre-charge investigation and post charge prosecution had been elided. An EAW could therefore

However it was contended that the 2003 Act imposed a further safeguard; by requiring the person to be "accused", it had to be clear that the criminal proceedings had in fact commenced. The 2003 Act separated the concepts of pre-charge investigation and post-charge prosecution in this way. The EAW did not contain a statement that Mr Assange was accused of the commission of an offence in Sweden; that was because he had not been accused of an offence, as criminal proceedings had not been commenced. The Senior District Judge was wrong so to have found. He should also have considered the evidence extraneous to the EAW. The 2003 Act had specifically included s.2(3)(a) so that an EAW could not be used for the purposes of conducting an investigation; it could only be used where a person had been charged. If an EAW was issued prior to the point at which a criminal prosecution had commenced and the person charged, it was not a valid IEAW.

The meaning Q/' "accused

S. 1 of the Extradition Act 1989 had provided for the extradition of a person who was

The decision of Parliament to insert into the 2003 Act the requirement that the person was "accused" of an offence in addition to the requirement under the Framework Decision that surrender was sought for the purpose of being prosecuted for the ofTence can be seen as an expression of Parliament's intention to add an additional requirement to the Framework Decision. It must also be borne in mind, however, that in examining the difference between the language of the 2003 Act and the Extradition Act 1989, the requirement that the surrender was sought for the

Although, as we have explained at paragraph 9 and following, the 2003 Act generally must be construed as giving effect to the Framework Decision, a court has to take account of the fact that it had been open to Parliament to provide a greater measure of protection (see the passage in the judgment of Lord Hope in Cando Armas which we have set out at paragraph 12 above). Furthermore, as Parliament used the term "accused", it must have intended to use the term in the light of the guidance given in Ismail: we agree with the similar observations of Aikens LJ in Aszlaslos v The Szekszard Cily Court in Hungary [20101 EWHC 237 (Admin) at paragraphs 16-19. We were referred to statements made in Parliament by Ministers, but we do not consider it necessary to refer to them as the language of the Act is clear.

It is not perhaps surprising that the courts have not found it easy to determine the circumstances in which the requirement in s.2(3)(b) (for the purpose of being prosecuted) is satisfied (as it is in this case) but not s.2(3)(a) ("accused"). Judicial authority ofthe ('ourl Q/'Firs1 Instance , Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin), Toulson LJ said at paragraph 52 that the EAW in that case complied with s2(3) even though the warrant did not contain the word "accused" He applied the approach in Asztaslos of examining the EAW without regard to evidence extraneous to the EAW to see if it was clear. He then adopted what Jack J had said in Dabas v High Court "Madrid [2006] EWHC 971 (Admin):

The terms EAW

As we have set out at paragraph 2 above, the EAW stated that it requested Mr Assange be surrendered for the purposes of conducting a criminal prosecution. It was in the standard form of the EAW in the annex to the Framework Decision. The Prosecutor had not adapted the wording to the case by deleting the reference to executing a custodial sentence, but this is not relevant. Although the EAW makes clear that the surrender is requested for the purpose of conducting a criminal prosecution, set out the offences and does refer to the warrant being based on the decision of the Svea Court of Appeal, there is nothing in the EAW that formally states he is accused of an offence in Sweden.

It is clear that the statements required by s.2(3) of the 2003 Act are essential requirements; they are not simple formalities: Office of the King's Prosecutor, Brussels v ( ando Armas, (see the judgments of Lord Hope at paragraph 42 and Lord Scott at paragraph 56-7). In Dabas (to which we referred at paragraph 64 above), Lord Hope made clear at paragraph 50:

It is not necessary for the statement to use the precise terms set out in the 2003 Act, so long as it is clear that that is what the EAW read as a whole is saying and that it complies with the requirements of s.2(3).

The circumslances in which (he extraneous evidence was adduced

However, the submissions made by Mr Assange were advanced, as we have mentioned, on the basis of extraneous evidence to which we must now refer.

Mr Assange contended prior to the hearing before the Senior District Judge that the warrant had been issued för the purpose of questioning Mr Assange rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated I I February 2011 on behalf of the Prosecutor:

The language of paragraph 6 of the statement in terms made clear he was "accused" of an offence; the remainder of the statement explained the procedure. The Senior District Judge then heard evidence; his findings on that evidence are summarised by us at paragraph 148 below

The contention ofMr Assange on the ex/raneous evidence

Mr Assange's contention was that he had not been accused of an offence in Sweden. For that to happen a decision to prosecute had to be made and none had been. Criminal proceedings had not commenced. Lord Steyn, in Ismail in the passage at page 327 (which we have highlighted in italics at paragraph 133 above), had approved the approach of the Divisional Court in asking in that case whether the authorities had taken a step which could fairly be described as the commencement of proceedings. Reliance was placed on the following by Mr Assange:

Can extraneous evidence be examined'?

There have been a number of cases where a challenge has been made to an EAW on the basis that it requested surrender of a person who neither was accused of an offence nor whose surrender was sought for the purposes of being prosecuted for the offence. The question arose in some of those cases as to whether the court could examine material extraneous to the EAW. The cases were considered in Asztaslos v The Szekszard City Court in Hungary [20101 EWHC 237 (Admin) where Aikens LJ- in

We were referred to a number of cases including the following. In ley v The ()//ice o/ lhe Public Prosecutor oflhe County' ('our/ of Montlucon, France [2006] E WHC 760 (Admin), the EAW referred to the detundant as an accused, but other statements made it unclear whether it was issued for the purposes of the defendant being prosecuted. The further information requested by the District Judge made matters less clear. The court (Moses LJ and Holland J) examined the procedure in France to determine whether extradition was sought for the purposes of a prosecution. In McCormack v Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin) the EAW described the stage in the investigation which had been reached; the court (Maurice Kay LJ and Penry-Davey J) received evidence of French criminal procedure to determine whether he was an accused and wanted for the purposes of prosecution. In Thompson v Public Prosecutor of Boulogne sur Mer [2008] EWHC 2787 (Admin), there was no extraneous material; the court (Scott Baker LJ and Aikens J) had to decide on the language of the warrant whether the conditions were met. In R(Trenk) v District Court in Plan-Mesio, Czech Republic [2009] EWHC 1132 (Admin), the court (Davis J) reviewed extraneous materials in determining whether the case had crossed the boundary from investigation to prosecution. In The Judicial Authority of the Court ofFirst Instance, Hassell, Belgium v Bartlett [201 0] EWHC 1390 (Admin), the EAW referred to the judicial investigation producing serious indications that the defendant was guilty and reférred to the "facts of which he was charged"; expert evidence was heard by the District Judge. Although the court (Toulson LJ and Griffith Williams J) considered that extraneous evidence should not be admitted to contradict a warrant where it was clear, the court used the extraneous material, in the event, as the warrant contained an ambiguity.

The cases do show differing approaches. It is, however, not necessary for us to decide whether evidence extraneous to the EAW was admissible in order to determine this appeal. It is in those circumstances not desirable for us to consider the correctness of what was said by Aikens LJ said in Asztaslos (as we were invited to do by Mr Emmerson) or to state in our own words what approach should be adopted. We can determine the matter on the assumption that the EAW did not make clear Mr Assange was accused (contrary to the view we have expressed at paragraph 140) and that Mr Assange was entitled to rely on the extraneous evidence in relation to the question as to whether he was accused. We would simply emphasise our view that, although we have made the second assumption, cases where evidence extraneous to the EAW is admitted should be very few and far between.

Conclusion on the extraneous evidence

The Senior District Judge found on the basis of the extraneous evidence that the fact some further pre-trial evidential investigation might result in no trial taking place did not mean Mr Assange was suspected as opposed to accused; and the fact that under Swedish law a person had to be interrogated before a decision to charge was made was not determinative. Clear and specific allegations had been made against Mr Assange. Although he could not say when or what step had been taken which could

It is clear on the extrinsic evidence that a decision has not been taken to charge him. Under the law of Sweden that decision will only be made after he has been questioned again. Under Swedish procedure, that decision is made at the conclusion of the investigation and, according to the evidence before the Senior District Judge. The defendant will then be given the right to examine all the documents relating to the case.

In our judgment, the fact that under the criminal procedure of Sweden he may be required to answer further questions beföre a decision is made to charge him or that the fact that the full file has not yet been provided are not decisive. The former is not an uncommon procedure on the continent and many systems do not permit access to the file until sometime after it is clear the person is accused of an offence. The fact that the Court of Appeal of Svea used the word "suspected" or that the prosecutor in her supplemental material has said he is "accused" takes the matter no further. The real question is whether the fact that it is clear that a final decision has not been made to prosecute or charge Mr Assange means that he is not "accused of the offence". The questioning is not for the mere investigation of a suspect, but to ensure that there is no proper basis for the accusation not to proceed swiftly to trial, where the focus is likely to be on what is admitted, denied or put on a different light in the answers to the questions.

We do not see why looking at the matter through cosmopolitan eyes it cannot be said that a person can be accused of an offence even though the decision has not finally been taken to prosecute or charge; Ismail makes clear one cannot simply look at the matter as a common lawyer. In our judgment Mr Assange is on the facts before this court "accused" of the four offences. Chere is a precise description in the EAW of what he is said to have done. The extraneous evidence shows that there has been a detailed investigation. The evidence of the complainants AA and SW is clear as to what he is said to have done as we have set out. On the basis of an intense focus on the facts he is plainly accused. That is, as Lord Steyn said, decisive.

As it is common ground that a criminal investigation about someone's conduct is not sufficient to make a person an accused, a further way of addressing this broad question is to ask whether the case against him has moved from where he can be seen only as a suspect where proof may be lacking or whether there is an accusation against him supported by proof: cf the distinction made by Lord Devlin in Hussein v Chong Fook Kam [1970] AC 942 at 948. Plainly this is a case which has moved from suspicion to accusation supported by proof.

Although we have approached the matter by asking the broad question posed by Lord Steyn as to whether Mr Assange was accused, it was the submission of Mr Assange that the court should ask the question asked by the Divisional Court in Ismail, namely whether a step had been taken which could fairly be described as the commencement of the prosecution. It is, in our view, clear that whilst Lord Steyn approved that approach, it was not the only approach to the question of whether he was an accused. The issue was to be addressed broadly on the facts. But, even if the court was constrained to determine whether someone was an accused by solely considering the

In our view therefore, Mr Assange fails on the facts on this issue.

Mr Assange submitted that even if under the EAW he was technically a person accused of offences, it was disproportionate to seek his surrender under the EAW. That was because, as he had to be questioned before a decision was made on prosecution, he had offered to be questioned over a video link. It would therefore have been proportionate to question him in that way and to have reached a decision on whether to charge him before issuing the EAW.

It is clear from the Report of the European Commission on the Implementation of the Framework Decision .COM (201 1) 175 Final, I I April 2011), that there was general agreement between the Member States, as a result of the use of EAWs for minor offences technically within the Framework Decision, that a proportionality check was necessary before a judicial authority in a Member State issued an EAW. This statement was a strong reminder to judicial authorities in a Member State contemplating the issue of an EAW of the need to ensure that the EAW was not used for minor offences. It is not a legal requirement. There is, however, almost universal agreement among prosecutors and judges across Europe that this reminder to conduct a proportionality check should be heeded before an EAW is issued.

It was submitted on behalf' of Mr Assange proportionality was also a requirement of the law on the following basis. The Framework Decision as an EU instrument is subject to the principle of proportionality, reliance was placed on the effect of the Charter of Fundamental Rights. R(NS) v SSHD [2010] E WC A Civ 990 and the decision of the Higher Regional Court in Stuttgart in General Public Prosecution Service v C (25 February 2010), as reported at [2010] Crim LR 474 by Professors Vogel and Spencer. We will assume that Mr Assange's argument that an EAW can only be used where proportionate, complex as it is, is well founded without lengthening the judgment still further to express a view on it.

However, the argument fails on the facts. First, in this case, the challenge to the issue of the warrant for the arrest of Mr Assange failed before the Court of Appeal of Svea. In those circumstances, taking into account the respect this court should accord the decision of the Court of Appeal of Svea in relation to proceedings governed by Swedish procedural law, we do not consider the decision to issue the EAW could be said to be disproportionate.

Second and in any event, this is self evidently not a case relating to a trivial offence, but to serious sexual offences. Assuming proportionality is a requirement, it is difficult to see what real scope there is for the argument in circumstances where a Swedish Court of Appeal has taken the view, as part of Swedish procedure, that an arrest is necessary.

We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange's surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge. The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution. Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.

For the reasons we have set out, we would dismiss the appeal.