Julian Assange has lost his appeal; by 5 judges to 2. It cannot be a comfortable prospect for him – Sweden has a lousy record in terms of “extraordinary renditions” to the Americans, and Mitt Romney is looking pretty strong in the polls. This is the same Mitt Romney who said on May 15, 2007:
Some people have said we ought to close Guantanamo. My view is we ought to double Guantanamo.
The decision of the Supreme Court (this is the same Supreme Court which used to be called the House of Lords, not to be confused with what used to be called the Supreme Court in England, which is now called the Senior Courts. Totally spastic name change instigated by the previous Labour Government) is lengthy, running to some 116 pages. It all turned on the meaning of “judicial authority” in Section 2(2) of the Extradition Act 2003. The European Arrest Warrant issued by the Swedes was not issued by a court, magistrate or other independent instrument of justice, but by a public prosecutor, Marianne Ny See my previous blog on 8th December 2010). The question was: is Ms Ny a “judicial authority”. If yes, we have to hand Julian Assange over to the Swedes; if no, we do not.
As a matter of common sense, the answer would obviously be “no”. The point was put powerfully and pithily in the dissenting judgment of Lady Hale:
173. We are construing an Act of the United Kingdom Parliament. It is that Act which gives the courts the power to order the arrest, remand, and eventual extradition of an individual named in a European Arrest Warrant (EAW). Without the authority of an Act of Parliament it would not be possible to employ the coercive power of the state to deprive an individual of his liberty in this way…
192. We have to interpret the Act of Parliament. Even without reference to the parliamentary materials, it seems clear that the term “judicial authority” is restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of “judicial” in United Kingdom law. We may talk about the “legal system” or the “justice system” when we mean, not only the courts, but those involved in the administration of justice. But when we use the word “judicial” we mean a court, tribunal, judge or magistrate. Second, the Act uses the same term in relation to both the issuing and executing “judicial authority”. The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute – especially in the same place – mean the same thing. Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word “judicial” (“other officer authorised by law to exercise judicial power”) in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word “judicial” which coincides with ours.
So why did the Supreme Court come to the opposite conclusion. The essential answer is pretty simple: it was to keep British law in line with the Europeans. Although the Act is an English Act, to be interpreted in accordance with English law, it gives effect to European treaty obligations, and in the leading judgment, Lord Phillips makes no bones about the desirability, as he sees it (he is not alone) in construing the Act in a way with the way the Europeans want it. The argument is very dry. There is no mention of the fact that the case is laughably weak, instigated by two women who were happy as Larry having consensual sex with Assange until they discovered that he was also having sex that week with the other; only they did they cry, “rape!” Nor is there any discussion of the very real possibility that sending Assange to Sweden may well be to condemn him to death or lifetime incarceration by the Americans, who hate him with a vengeance for publishing leaked “secret” documents (notwithstanding that there is no evidence that the leaks have harmed a single hair on any American’s head – but Assange has made the American government look pretty silly, and that does not fit in at all well with their ambition of achieving total military and security domination of the world).
And so you might think, “Well, the UK parliament voted for this law: it needs to be enforced for good or ill”.
But here comes the rub: when the law went through Parliament, it was on the express understanding that the arrest warrants could not be issued by public prosecutors; they needed to come from an independent court or magistrate. Lord Mance set it out clearly in his dissenting judgment:
261. The second question is whether there is any sufficiently clear ministerial statement, read in context, to determine whether or not a public prosecutor can under the 2003 Act constitute a judicial authority. This question is relevant on the assumption that a public prosecutor can under European law constitute a judicial authority for the purposes of the Framework Decision. If a public prosecutor cannot be a judicial authority under European law, then she or he certainly cannot be under the 2003 Act. The direct answer to the second question is, in the light of the material which I have set out extensively, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate. They did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors: see the course of events set out and the passages quoted in paras 248 to 259 above, especially those relating to the parliamentary proceedings on 10 December 2001, 9 January 2002, 9 January, 9 June, 10 September and 22 October 2003.
Lady Hale agreed:
193. It is also quite clear from the parliamentary history detailed by Lord Mance that “judicial” was deliberately inserted into the Bill in order to limit the authorities who could issue European arrest warrants to bodies which we would recognise as judicial. In this respect, I would place more weight on the parliamentary history – in terms of the changes made to the Bill during its passage through Parliament – than on the assurances given by ministers. Why make the amendments eventually made unless to make the matter clear?
Even Lord Brown agreed, even though he did not regard the point as of sufficient importance to make him side with the dissenters:
98…The plain (and, if the Bill of Rights permits the Court to say so, regrettable) fact is that the ministers were mistaken about the true scope of the term in the Framework Decision (just as they were as to the practice which had operated throughout the earlier extradition regime).
So what have we got here? We have got a piece of legislation that only got through the UK parliament on the express understanding that these warrants could not be issued by public prosecutors. There were those opposed to the Bill on the basis that it was open to abuse by over-zealous prosecutors, not to mention outright nutters. Is Maryanne Ny just such a prosecutor? It seems that she may well be. At least, some people think so. Thus, Brita Sundberg-Weitman, a retired Swedish judge, has said:
Ms Ny is a well known feminist. For example, she is known to have said that when a woman says she has been assaulted by a man, the man ought to be detained because it is not until he is in prison that the woman may have the peace to consider whether or not she has been mistreated. Ms Ny has stated that she believes that imprisoning the man has a positive effect, “even in cases where the perpetrator is prosecuted but not convicted”. It is also informative, in regards to the presumption of innocence, that she uses the term ’perpetrator’ rather than ’defendant’ or ’suspect’ in discussing criminal investigation in rape cases… Marianne Ny, unlike other prosecutors, has made various statements […] in which she regards the prosecution of men, even without sufficient evidence, as in the public interest ’pour decourager les autres’
It is difficult to avoid the conclusion that Assange would not be on his way to Swedish jail and potentially permanent oblivion in an American jail if the arrest warrant had required the sign-off of a judge like Brita Sundberg-Weitman. And now we have Assange to be delivered into a Swedish jail (they do not have bail, it seems, and anyway Ms Ny seems to think that innocent people stewing in jail is a good thing) on the basis that parliament was sold a pup. However impeccable the dry logic, it is not a good look. Not a good look at all.
There is the slenderest of chances of Assange being able to reopen the case based on the Vienna Convention on the Law of Treaties not having been canvasses in argument: I would not be holding my breath on this one. Unless perhaps, the Supreme Court gets a sufficient flavour of the distaste around the world for this whole business.
What have the Australian government done to protect its citizen? Bugger all, it seems. Foreign Minister Bob Carr has said he is “proud” of the assistance the government has rendered to Assange since his arrest. I am sure this is what he would like to think that this is true. But it is all pious nonsense. He has said:
“It’s no more easy for the United States to extradite somebody from Sweden than it is to extradite them from the United Kingdom”
As far as I am aware, there is no recorded instance (apart perhaps from the TV Drama Spooks) where the British Police have grabbed two innocent men, delivered them into the hands of the American CIA at a deserted airstrip (Bromma), and stood back and watched as the victims were stripped, buggered with drug-laced suppositories, and flown off to the Middle East in order to be tortured. Yet that is precisely what the Swedish authorities did in the case of Mohammed al-Zari and Ahmed Agiza, thereby earning the condemnation of the UN. That was pretty easy “extradition”, and was in 2001. The Swedes have said that they will not do it again, but it was apparently several years before they actually did anything to stop CIA activity of this sort out of Sweden. Bizarrely, Thomas Bostrom, whose firm is representing the two women, Anna Arden and Sophia Willen, who are the origin of these charges, is a former Justice Minister in Sweden, now resides in the USA and is said to have admitted “involvement in efforts to see the men expelled from Sweden”. Again, not a good look for this whole business.