Portuguese public prosecutor is not a judicial authority - extradition arrest warrant discharged

Ben Cooper KC and Louise Willocx submitted yesterday at Westminster Magistrates Court that because a Portuguese arrest warrant was issued by a public prosecutor instead of a judge it failed to comply with the s.2 Extradition Act 2003 requirement for a warrant to be issued by a judicial authority. 

According to CJEU case law, public prosecutors who risk being exposed to direction from the executive are not sufficiently independent to be considered judicial authorities. Expert evidence from a Portuguese lawyer confirmed that Portuguese public prosecutors lack the independence to be considered judicial authorities who can issue warrants. The CJEU has developed a doctrine of “effective judicial protection” from decisions made other than a judge, requiring the availability of judicial review of relevant decisions prior to surrender in certain circumstances (XD, C-625/19 PPU, 12 December 2019.) It was submitted that the absence of this remedy in Portugal rendered the warrant defective. 

The District Judge ultimately discharged the requested person on the warrant under s.2, accepting that the public prosecutor was not a judicial authority. Whether the requested person will be extradited on a new warrant issued by a court will be decided by the District Judge in due course. 

The discharge under s.2 of the Extradition Act has wider implications for warrants issued in Portugal. It shows that the Act is operating as intended, by protecting the fair trial rights of the requested person and ensuring that only sufficiently independent authorities can issue a warrant. 

Ben Cooper KC and Louise Willocx were instructed by Nora Talbi of EBR Attridge Solicitors.