"If he doesn’t win it means that anyone can be extradited from the UK, be arrested and put into detention at the behest of any prosecutor anywhere in Europe without having to show any evidence, without being charged and without proper judicial oversight. So I have faith that the British justice system should not and cannot stand for this sort of precedent." — Jennifer Robinson, legal adviser to Julian Assange.
On 2 November the Queen’s Bench division of the High Court dismissed an appeal by the founder of Wikileaks against extradition to Sweden to face trial for rape and related crimes. It rejected each of four grounds of appeal. On 16 December the Supreme Court ruled that the most important of these, a claim that the Swedish Prosecution Authority was not a valid "judicial authority" to issue an arrest warrant, was of such public importance as to justify a hearing before seven judges. The outcome of this hearing will confirm whether Julian Assange’s legal counsel’s faith in the British system of justice is well-founded.
The question has aroused widespread concern, with rallies scheduled in major cities around the world, to be held when the decision is announced in coming weeks. So what is this case about, why have the Justices granted an appeal, and what might Assange reasonably expect?
The outstanding feature of the High Court’s judgment was its reluctance to acknowledge incompatible aims in the 2003 Extradition Act. The government’s aim was to facilitate extradition, primarily by the mutual recognition of the arrest practices of member states, but the Court also affirmed the scheme’s aim to respect the basic rights of those deported, including a right to due process.
This aim was explicit in the European Framework Decision, a pre-legislative treaty setting out the essentials of the scheme. The Court affirmed that, although this Framework Decision was not referred to in the British Act, it must govern its interpretation.
The Court explained that constitutional principles supporting basic rights were so important that they must be upheld even if Member States chose to ignore them. Accordingly, while it was a matter for each State to designate its own warrant issuing authority, this would not apply "if the authority were self-evidently not a judicial authority".
Thus, "… if a warrant was issued by a Ministry of Justice which the Member State had designated as an authority … it would not … be a valid EAW under the Framework Decision … it would self-evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial."
After this promising start the Court surprisingly ignored these principles. It made no attempt to clarify them, nor did it explain why, if a minister’s warrant is a "self-evident" violation, this is not true of arrest warrants issued by lesser officials, such as a police officer, customs official or public prosecutor. Why did the principles universally accepted in Europe not exclude them, given they might likewise rest on executive policy or administrative convenience? This is just as clear as in the hypothetical case of a justice minister.
Such a finding would, of course, severely limit mutual recognition. It would prevent the arrest and detention of persons whose only offence is that a designated official from another jurisdiction thinks they may have information relevant to a possible crime. It would prevent the deporting of residents without formal charge, with no judicial hearing and with no responsibility to disclose witness statements or other evidence material to possible charges. It would hinder or prevent extradition in all cases where these objections might reasonably be made.
How, then, did the Court resolve the conflict? On what grounds did it find the prosecutor a "judicial authority" as required by the Act? The four matters discussed reveal three factors: the first is that prosecutors must have professional independence — they must be free to act on their personal judgment; the second is the fact that they were given a power to issue arrest warrants; the third was their inclusion in such professional bodies as a "corps judicaire", "Conseil de la Magistrature" or "authorite judicare" — that within their own jurisdictions they were accepted as fellow members of a broader categorisation of the judicial profession.
The implication is that, if a nation chooses to treat officials as judges by including them in a "corps judicaire", and if it gives them powers ordinarily reserved for judges, they will qualify as "judicial authorities".
This makes no sense. If the scheme prevents a Minister of State being designated a "judicial authority" it must presuppose an antecedent meaning for this phrase which evokes the character of the person or body before it is has power to arrest. The obvious choice for this meaning is ordinary usage, especially the ordinary usage of lawyers in the context of the threefold division of powers between executive, legislative and judicial spheres. It suggests "judicial" means something like "in the manner of, or according to, the traditional practices of a court of law".
But if this is so then the ordinary meaning of "judicial" (its antecedent meaning) can only be understood by reference to certain principles of justice intrinsic to the traditional role of courts — which is to clarify and resolve disputes about legal rights by decisions made enforceable by the State. It is these principles of justice, designed to maximise fairness, which tell us what "judicial" means, not the language or customary practice of officials, however conducive to government aims.
The High Court said as much when it explained why a justice minister’s warrant would be invalid.
"The principles of mutual recognition … 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 denying Assange the protection of these principles the High Court gave priority to an interpretation which conformed to Swedish practice. But if constitutional principles are to govern political practice, their meaning cannot be defined by what this practice permits — one cannot cite Swedish practice to justify that nation’s warrants, any more than one can treat British common law practice as definitive; one cannot do this because the practice may itself be in violation.
It follows that a court committed to respect due process principles must find a geopolitically neutral account of what makes an authority "judicial" within this interpretive framework. It must find a conception of "judicial" which makes sense of the role these abstract values play, regardless of nationality. The best account will capture the unique role of courts in protecting rights, a role often at odds with a government’s concern to pursue community interests and sometimes with the legislation it enacts for this purpose.
If the judges had been more attuned to this task when considering if the warrant violated Assange’s rights, they would have paid more attention to the difference between this case and authorities they relied on. Two of the leading cases cited, Enander v Governor of HMP Brixton and Goatley v HM Advocate, dealt with the arrest of persons already charged and convicted. In such cases the warrant testifies to already extant facts. It shows how useful is a policy of mutual recognition where there is no risk to rights, but Assange was at great risk because he would lose his right to freedom without a proper judicial determination.
The High Court judgment was methodical, scholarly and respectful of the law, but it made no attempt to reconcile the concept of a "judicial authority" with basic principles of the Framework Decision. It is clear that another court, with a heightened sense of their importance, might rule the warrant invalid and still support mutual recognition. For while the Act requires this respect it does not, as the Court agreed, override principles securing fundamental rights.
The Supreme Court cannot decide Assange’s fate if it likewise ignores basic rights. It must ask if they are compatible with warrants issued by officials who are by custom and practice not bound to heed them, and have no inclination or duty to do so. To dismiss the appeal it will require a better explanation of the difference, if there is one, between a "self-evident" paradigm case where rights prevail, and common garden cases where they can be ignored for the sake of recognition.
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