The European arrest warrant scheme was heralded as the great simplifier; extradition between States was to be abolished and replaced by a streamlined process of surrender between judicial authorities. It was after all the exchange and mutual respect of judicial decisions (see the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States: ‘the FD’). On the face of it, doesn’t “judicial” just mean “judicial” – in other words a court or judge? Who, back in 2002, would have thought that 17 years later the definition of “judicial authority” would still be the subject of litigation at the European Union’s highest Court?

Lawyers in the United Kingdom were of course alert to this issue and in Julian Assange’s greatest contribution to the law of extradition (to date), the UK Supreme Court in 2012 held that the term “judicial authority” in section 2 of the Extradition Act 2003 was to be accorded the same meaning as it had in Article 6 of the FD and that a European arrest warrant issued by a public prosecutor was a valid Part 1 warrant issued by a judicial authority. The Supreme Court noted that uniformity within the EAW system required each member state to give the same meaning to “judicial authority”. The phrase was capable of a narrow interpretation – just a judge or court, or a wider meaning which would include a public prosecutor. In adopting the wider meaning, one of the important considerations was the practice of the parties to the FD and that, as a number of states had subsequently appointed prosecutors as issuing judicial authorities (and had done so without objection from other states), there was a sufficient practice to establish the member states’ agreement. As such, a prosecutor fell within the meaning of a “judicial authority”. Germany and Lithuania (in relation to conviction warrants) were highlighted as examples of countries that had assigned its Ministry of Justice as a judicial authority (Assange [2012] UKSC 22).

Following quickly on from that, the Supreme Court in 2013 held that an EAW issued by a ministry for a convicted person could be regarded as issued by a judicial authority if the ministry issued the EAW at the request of, and by way of endorsement of a decision that the issue of such a warrant was appropriate made by the sentencing court or some other judicial authority. Certain EAWs originating from requests from the Lithuanian prison service did not meet this requirement (Bucnys & Otrs v Ministry of Justice, Lithuania[2013] UKSC 71).

Insofar as public prosecutors concerned, the UK courts have hitherto continued to be faithful to Assange. The Divisional Court, in a judgment handed down on 11 March 2019, held that recent CJEU decisions supported the Supreme Court’s decision that a public prosecutor could be a judicial authority (Krupeckiene v Lithuania [2019] EWHC 569 (Admin); and see Criminal proceedings against Ozcelik (C-453/16 PPU) [2017] 4 W.L.R. 9 and Criminal Proceedings against Kossowski (C-486/14), [2016] 1 W.L.R. 4393). It was also noted that the CJEU had not applied any particular test in making that determination; it simply assumed that any public prosecutor in a Member State administered justice and was thus a judicial authority under the FD. The Divisional Court noted that the Supreme Court of Ireland had referred to the CJEU the question of whether the Lithuanian public prosecutor was a judicial authority, but no decision had at that time been taken: a stay was not required.

However, the CJEU has now in fact handed down its decision and it has moved the goalposts. On 27 May 2019, the CJEU gave judgment in the cases of Public Prosecutor’s office of Lübeck (C-508/18 OG), Public Prosecutor’s office of Zwickau (C-82/19 PPU PI) and in Prosecutor General of Lithuania (C-509/18 PF). The Court considered two Lithuanian nationals and one Romanian national who were challenging the execution of European arrest warrants issued by German public prosecutor’s offices and the Prosecutor General of Lithuania (in an accusation case).

It was contended that the German public prosecutor’s offices and the Prosecutor General of Lithuania were not competent to issue a European arrest warrant on the basis that they were not a “judicial authority”. It was submitted that the prosecutors were not independent of the executive since they were part of an administrative hierarchy headed by the Minister for Justice.

In short, the CJEU ruled that the German prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European arrest warrant. The German legislation did not preclude their decisions to issue a European arrest warrant from being subject to an instruction from the relevant Minister for Justice. Accordingly, those public prosecutor’s offices did not appear to meet one of the requirements of being regarded as an “issuing judicial authority”, namely the requirement of providing the executing judicial authority the guarantee that they are independent.

However, it appears that the Prosecutor General of Lithuania may be considered to be an ‘issuing judicial authority’, in so far as the role affords him a guarantee of independence from the executive with regards EAWs. Importantly, the final decision on this issue will be left to the Supreme Court in Ireland to assess.

In the short term, this decision is very significant. First, any German EAWs currently before the UK courts may need to be withdrawn and affected requested persons discharged (it may be that affected EAWs will re-issued by a different judicial authority but there can never be any guarantee of that). Secondly, it remains to be seen whether the CJEU’s decision will have a wider impact on any other EU jurisdictions; but, defence practitioners (being as curious and as creative as ever) ought to be alive to this possibility and consider carefully whether the CJEU decision can be applied to other EU jurisdictions.

As the CJEU has now emphasised, the important question is whether a public prosecutor’s office is exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice. The authority responsible for issuing a European arrest warrant must act independently in the execution of its functions, even where that arrest warrant is based on a national arrest warrant issued by a judge or a court. It must be capable of exercising its functions objectively without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive.

No doubt if the Swedish authorities do eventually decide to issue a new EAW against Julian Assange, they would be well advised to ensure it is issued by a Judge as opposed to a public prosecutor.