By Barbara Gunnell – 7 february 2012
Say what you like about Julian Assange (and everybody does – with greater variety and certainty than of almost any other living being), he has scored an historic first in the British judicial system.
His case is the first to have been tweeted from the courtroom to the world at every stage, from lowly magistrates to the UK’s new Supreme Court which two years ago replaced the House of Lords as the UK’s final court of appeal. That decision by senior District Judge Howard Riddle back in December 2010 to allow tweeting at Julian Assange’s first bail hearing now looks uncontroversial. Almost everything else about Assange v Swedish Judicial Authority remains as bitterly contested as ever.
But, in the tantalising way of long drawn-out cases, the debatable legal territory seems never to concern matters such as who did what and why.
So anyone attending Court One last week to hear why Sweden came to need to question Assange about sexual relations with two women in Stockholm would have been disappointed. As would anyone wanting to hear discussion of why this request came at just that moment in his chaotic life when his organisation WikiLeaks had done most to offend powerful US interests by sharing with other media hundreds of thousands of classified documents.
The short version of the Assange story (which I wrote about at length in Griffith REVIEW 32: Wicked Problems, Exquisite Dilemmas) being debated in the Supreme Court on February 1 and 2, 2012 was that Julian Assange believed the European Arrest Warrant for his extradition to Sweden had been invalidly issued and thus had breached his human rights. He was appealing against extradition.
The problem for the Supreme Court, which will make its decision in the coming weeks, is that if Assange is right it will throw into disarray the entire framework for extradition between European states, since Sweden’s alleged errors in issuing the warrant turn out to be commonplace around Europe. The unintended consequence of an Assange victory would be to make cooperation between European states in bringing criminals to justice far more difficult. That makes it also the problem for Assange. This much-referred to Framework was, all agree, cobbled together in haste in the wake of the 9/11 attacks but its intention was to make it easier to cooperate efficiently in the face of a perceived terrorist threat. It may be a bad law, but it is the law.
In the café of the UK’s Supreme Court – a white-tiled atrium with the antiseptic feel of a posh hotel lavatory – you can buy a postcard of the Supreme Court’s nine Lords and one Lady. They look magnificent, if weighed down, in their gold brocade robes. A visitors’ leaflet points out that the Justices wear these robes on ceremonial occasions only and that advocates appearing before the Court may by mutual agreement also dispense with traditional court dress.
Lawyers in the case of Assange v Swedish Judicial Authority chose to be modern so that, in contrast with the fusty Victorian formality of the earlier wigged and gowned hearings, Julian Assange’s final attempt to resist extradition to Sweden took place in a business-like setting. The proceedings were televised, live-streamed, and relayed around the world. Microphones worked. It was a 21st century affair (reference to the sixth century Justinian Code notwithstanding).
The Assange trials have seen the emergence of another modernisation. Since his first attempt to resist deportation, argued at a magistrates’ court sited in the grounds of a high-security prison, Assange’s team has become more and more feminised. Mark Stephens, the bombastic media lawyer given to political proclamations outside the court, has been replaced by the quietly spoken human rights expert Gareth Peirce.
Peirce gives no interviews and makes few statements. She takes on and wins tough and unpopular cases, often ensuring that those with little public sympathy are nonetheless protected from faulty legal procedures. Assange’s leading barrister in the Belmarsh hearings was the Australian-born high-profile human rights and media lawyer Geoffrey Robertson QC (who continues to argue for Assange). But at the Supreme Court, the case against deportation was presented by Dinah Rose QC, described as a rising star. Named ‘Silk of the Year’ in the Human Rights and Public Law category in 2011 by Chambers Bar Awards, her fluent performance at the Supreme Court Assange hearing almost drew an inappropriate round of applause when she sat down after several hours of unfaltering argument.
Thanks to live-streaming, we may even see a sudden surge in women choosing law as a career. A number of young women watching Dinah Rose, calm, confident and even funny in her delivery, tweeted that she was their new role model. Another impressive woman on the Assange team is Jennifer Robinson, from Mark Stephens’ firm. Australian-born, she has remained an adviser and friend of Assange despite his change of solicitors. Robinson flew in to London from the US for the hearing having earlier in the week accidentally bumped into the United States Attorney General Eric Holder in a cinema and challenged him over the US treatment of Bradley Manning and WikiLeaks. “When I realised he was behind me,” she told me, “I couldn’t not say something!”
The quiet, persuasive but technical argument of the new team is that the European framework on extraditions requires a ‘judicial’ authority to issue a warrant. In the British legal tradition, this means that it must be independent. It cannot be a prosecuting authority or a government authority or a police officer. Marianne Ny, the Swedish prosecutor seeking extradition is not, in this definition, an independent judicial authority. “Other countries do it like this” does not make it right, argued Rose.
Sweden has been represented in court from the outset by Clare Montgomery, another highly respected QC, who lists among her past triumphs saving former Chilean dictator Augusto Pinochet from extradition from the UK to Spain in 1998. Montgomery questioned the impartiality of one of the law Lords of that time on the grounds that he was married to a human rights activist.
A former world-class fencer (literally), Montgomery has represented Sweden’s case somewhat aggressively (she once parried Geoffrey Robertson’s argument about the allegation of rape with the aside that he clearly knew about rough consensual sex). Her argument in this court was simpler: that the Europe-wide framework for extradition allows Sweden to decide for itself what is a ‘judicial authority’. There is, Montgomery has argued, therefore no debate to be had about whether the Swedish prosecutor is the appropriate authority. She is if Sweden declares she is.
Before the hearing, I asked more seasoned legal reporters what they thought of Assange’s chances. Like most of the pre-hearing reports, and indeed outlined in the judgment given by the High Court itself in November, they pointed out that since to declare the EAW invalid in this case would overturn the whole 2003 European Framework Decision for cooperating over extradition, Assange had a huge mountain to climb.
Those same commentators might still put their money on the extradition going ahead, but they wouldn’t, I am sure, still bet the farm on it.
Endnote: Two days after the hearing concluded, the Court joined Twitter under the user name @UKSupremeCourt. A court spokesman has said that it will be tweeting the Court’s decision which is expected in two to four weeks.
Read More: http://www.abc.net.au/unleashed/3814812.html