31 May 2012 – By Paul Farrell
Julian Assange has lost his appeal in the Supreme Court of the UK, but a disputed issue of procedural fairness may be a glimmer of hope, writes Paul Farrell
Julian Assange has lost his extradition appeal in the UK Supreme Court, but is seeking to have the case reopened on the grounds of procedural fairness.
The Court has granted the Assange team a further two weeks to prepare submissions for their application to have the case reopened.
The focus of the appeal was whether or not the Swedish prosecutor that issued the arrest warrant was a “judicial authority” for the purposes of the Extradition Act (the Act). This was the only point of law challenged from the High Court decision.
Five of the justices were in the majority, with each delivering separate judgements. Lord Mance and Lady Hale were in the minority.
The majority judgment considered what the definition of a judicial authority was using a range of different methods of interpretation. Significantly, it rejected the use of Parliamentary material as interpretive tools.
This was part of the Assange team’s submissions, which indicated that the intention of Parliament was for a judicial authority to be restricted to a judge or magistrate for the purposes of the Act.
But Lord Mance in dissent drew heavily on the parliamentary material surrounding the enactment of the Act.
Lord Brown, who was in the majority, even agreed that Lord Mance’s interpretation of this material was correct, noting “All that is plain here is that certain members of the respective Houses were at various times unintentionally misled as to just what those obligations were”.
Assange’s legal team are fighting to the last. Dinah Rose QC made a highly unusual request of the court to stay extradition for two weeks while they decide whether or not to challenge the decision and ask the court to reopen the case.
This is on the ground that the method of interpretation set out in the Vienna Convention on the Law of Treaties (the Convention) was not raised by either party during the proceedings. In order to ensure that there has been procedural fairness Assange’s team are questioning the application of this Convention.
A compelling part of the majority’s reasoning was their application of the Convention. All five majority judges wrote about the Convention, with Lord Walker even noting that it was “determinative” to the decision.
Lord Phillips highlighted how the Convention advocates a method for the interpretation of a treaty when there is some ambiguity over its meaning. This method permits the consideration of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.
This means that weight can be given to what occurs in practice to interpret the intention of a treaty.
In outlining that prosecutors were judicial authorities, Lord Phillips noted how other European authorities have all acted as though prosecutors were able to issue extradition orders, and there have been no problems before the current case.
But Lady Hale challenged this inference in her dissenting judgment. While she also argued that the Convention could apply, she suggested that a different conclusion should be drawn:
“Is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs… This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what parliament thought that it was doing at the time.”
The reliance on this section and having the case reopened is by no means a silver bullet for Assange. Even if further submissions are allowed, it will only give Assange’s team the opportunity to put their case relating to the Convention to the court. There’s no guarantee they won’t come to exactly the same conclusion though.
The arguments from the Assange team would need to be particularly persuasive. Given that this is the first time such an application has ever been made before the supreme court, there may be a great deal of reluctance to even allowing the case to be reopened.
Greens Senator Scott Ludlam has again called for the Federal Government to intervene and take action to prevent extradition:
“Mr Assange now faces a further two weeks in legal limbo as his team explores avenues to appeal the decision to extradite him to Sweden,” he said.
“The Australian Government has turned its back on Mr Assange, despite the unprecedented action of Swedish prosecutors seeking an extradition order simply for questioning.”
If the application fails, Assange’s last avenue will the European Court of Human Rights.
Whatever action Assange decides to take, it’s clear though that his options are growing more and more limited by the day.