Mr Assange's case in the Supreme Court in London

Over the last two days the UK Supreme Court in London has been hearing arguments concerning the proposed extradition to Sweden of Mr Assange (of Wikileaks fame).

I cannot beat the Supreme Court's own brief summary of the facts and the legal issue.

FACTS

"The Appellant, a journalist well known through his operation of Wikileaks, visited Sweden to give a lecture in August 2010. He had sexual relations with two women. Both women went to the police who treated their visits as the filing of complaints. The Appellant was interviewed by police and subsequently left Sweden in ignorance of the fact that a domestic arrest warrant had been issued for him. Proceedings were brought in the Swedish courts in the Appellant’s absence, although he was represented, in which a domestic warrant for the Appellant’s detention for interrogation was granted and upheld on appeal. Subsequently, an European Arrest Warrant for the Appellant was issued by the Swedish Prosecution Authority that set out allegations of four offences of unlawful coercion and sexual misconduct including rape."

ISSUE

"Whether a European Arrest Warrant issued by a public prosecutor is a valid Part 1 EAW issued by a “judicial authority” for the purpose and within the meaning of sections 2 and 66 of the Extradition Act 2003."

 

 

So we have been treated to two full days of detailed legal arguments about the meaning of the phrase "judicial authority".

On behalf of Mr Assange it was contended that a "judicial authority" is one which is independent of the government executive and also independent of the parties to the litigation in question (for example a judge in court).  Since the Swedish Prosecution Authority is one of the parties in the litigation the defence contend that it cannot be a "judicial authority".  It follows that the European Arrest Warrant issued against Mr Assange is not valid and the UK courts should not act upon it to order his extradition to Sweden.

On behalf of the Swedish Prosecution Authority it was contended that a "judicial authority" is one which is a part of the administration of justice (for example a police force).  The Swedish Prosecution Authority therefore is a "judicial authority" and so the Warrant is valid and the UK courts are obliged to act upon it and Mr Assange should be extradited to Sweden.

Opposing counsel spent their time chasing through European legal documents and documents of individual European states (including of course English ones) pointing out where (in their view) these supported their (opposing) contentions as to the meaning of the phrase "judicial authority".

In some of these the term "judicial authority" had been expressly defined to include, for example, public prosecutors.  Interestingly (and as often happens) this evidence could be seen as supporting either of the opposing contentions.

Counsel for the Swedish Prosecution Authority expressed the view that these examples showed the wide meaning of the term "judicial authority".

Counsel for Mr Assange expressed the view that these were examples of an extended and unusual definition of "judicial authority" - which is precisely why it had been necessary to include an express definition in those particular pieces of legislation.

There is no definition of the term "judicial authority" in the extradition legislation.

At the end of hearing argument the Supreme Court justices retired.  Their decision will be published at a future date (which could be weeks or months from now).

If I were a betting man I would place my 50 pence on Mr Assange to win.

Of course none of this had anything to do with whether or not Mr Assange had actually committed the offences of which he has been accused.  That would be a matter for another court in another country.

David

Comments
carnmores's picture

it is a very clever arguement but the treaties cant work if what

carnmores | | Permalink

his counsel is true - any way they will come back with another one surely : today Assange tomorrow Huhne

nogammonsinanundoubledgame's picture

Question:

nogammonsinanun... | | Permalink

Is this last chance saloon for Mr Assange?  By which I mean, Can either losing side appeal to Europe over the matter (and should we expect it)?

From the commentaries that I have come across, Assange's interpretation is closer to the view of the UK courts, while the Swedish interpretation is closer to the (wider) view historically adopted in Europe generally.

Second question:  If Assange wins, is there anything to stop the Swedes from re-applying for an arrest warrant that has all of the right boxes ticked?

With kind regards

Clint Westwood

davidwinch's picture

Supreme Court verdict    2 thanks

davidwinch | | Permalink

Well, having said in February that I would place my 50p on Mr Assange to win I would now be 50p worse off if I had!

The Supreme Court has held, by a majority of 5 to 2, that a public prosecutor falls within the scope of a "judicial authority" for the purpose of issuing a European Arrest Warrant triggering extradition proceedings.

The judgment is HERE.

Interestingly the Supreme Court has considered itself bound to give effect to the usual European interpretation of the words "judicial authority" where these conflicted with the normal UK interpretation of that phrase - even though it was considering the use of that phrase in a UK Act of Parliament (giving effect to EU obligations) and despite noting that, when considering the UK Act, MPs were "unintentionally misled" as to its effect.

It is clear that, at the time the UK Extradition Act 2003 was passing through Parliament, ministers gave repeated assurances that the expression "judicial authority" meant a judge or similar person - not a public prosecutor.  Nevertheless the Supreme Court has held the contrary to be true.

This is because there is a European Court decision to the effect that, "When applying the national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the [EU] framework decision in order to attain the result which it pursues".  The majority of members of the Supreme Court held that the UK court should interpret the UK Act in accordance with the apparent intention of the EU framework document on which it was based.

But Mr Assange's legal team have been given 14 days to consider making an application to ask the Supreme Court to hear / receive further argument and reconsider its decision. I understand this to be unprecedented.  It is a bit like Moses reading the tablets of stone and asking for some of the law to be reconsidered!  (Although biblical scholars may say that Moses did indeed break the first set of tablets . . . . )

David

davidwinch's picture

Update

davidwinch | | Permalink

The seven Supreme Court judges have unanimously rejected the application made by Mr Assange's legal team to re-open the case and reconsider the decision that the Europen Arrest Warrant is valid and that Mr Assange must be extradited.

David

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