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Tomorrow will see the hearing of Assange v The Swedish Judicial Authority take place at the Supreme Court, one of the most high profile cases to be heard at the Court since its creation in 2009. While the point at issue in the case, whether a public prosecutor is a valid judicial authority for the purposes of the Extradition Act 2003, is considered by some extradition experts to be one that has already been extensively litigated and clarified (see the comments of Julian Knowles QC in The Guardian here), the case has received a huge amount of media attention.
The Supreme Court has made a distinct effort to be media friendly with regard to the hearing. The Supreme Court is already the most open court in the UK in terms of making details of cases, decisions and proceedings available to the public. Hearings can be watched live via a Supreme Court link on the Sky News site, and the Court expects a significant boost in its viewing figures tomorrow. The Court has also issued a guidance note for the press expected to attend the hearing, with priority being given to organisations reporting for the UK, Sweden and Australia, with those reporting for the United States being given the next level of priority. Journalists who cannot be accommodated in the courtroom will be able to watch the proceedings in “media suite” elsewhere in the building.
The Supreme Court is currently the only UK court to televise proceedings, although the Ministry of Justice is considering rolling out televised proceedings to other courts. As Owen Bowcott in The Guardian suggests, the hearing tomorrow will “be a useful test-run for those assessing the impact of televising high-profile court cases on the judicial process and whether, as supporters claim, it boosts public understanding of the law.” However, as the televising of the Leveson inquiry demonstrated, live public discussion of the legal principles involved can all too easily be derailed by animated discussion of the relative attractions of the witnesses and legal representatives.
Meanwhile, the CPS has issued a very useful blog post outlining exactly what will happened after the appeal is decided:
“If, after the Supreme Court has heard the case, it dismisses Mr Assange’s appeal, then his only further remedy is to apply immediately to the European Court of Human Rights in Strasbourg, which will respond within 14 days. If it confirms that it does not agree to take the case then that is an end of the matter. If it is prepared to take the case then it will not only confirm this but also has power to issue a direction to Her Majesty’s Government that he should not be surrendered to Sweden whilst the ECHR considers the claim. He could also apply to the High Court in London for an injunction to prevent his extradition to Sweden by the Serious Organised Crime Agency pending the outcome of his application to Strasbourg.
If the ECHR takes the case then his current bail conditions would remain in force and he would remain in the UK until the proceedings at the ECHR have concluded. The UK Government is the defendant in the matter and the Foreign and Commonwealth Office legal branch represents the interests of Her Majesty’s Government. The Crown Prosecution Service does not appear and nor do any Swedish authorities.
If the ECHR declines to take the case then he will be extradited to Sweden as soon as arrangements can be made.”
2 comments
Rupert Tiger said:
01/02/2012 at 18:04
Rose (for Assange) generally flattered the SC judges today because the very issue at stake was the ‘importance of judges’. Indeed had the signature of a Swedish judge been on Assange’s documentation, Julian would not have made it anywhere near this ‘far’. In fact one was left with the idea of incompatible electric plugs: English three-pin square vs. European two-pin round. The top of our ‘three’ being the very judge himself, a ‘square’ earthing to reality and fairness itself. Three cheers for judges! Then Montgomery (for Sweden) brought things crashing back to reality with her claim that had our European integrators meant at the time of their various treaties that only the English system of legal process be good and true then this surely would have been made known. One was then left with the idea of a police search for, say, a multiple rape suspect wanted soley within the UK. No extradition might be required between for example the Northumberland and Dorset forces for the fellow for questioning. So likewise now between Sweden and England, and we’re either doing the Euro thing or we’re not. And that is precisely what Assange is trading on. Then we return to what this is really all about: Assange using every means at other people’s disposal for him to avoid facing his accusers. To him the entire world, outside of England of course, is involved in a grand conspiracy against him. Two women, not one, accusing him of sex crimes, a corrupt Swedish prosecutor in the pay of the United States seeking to hurt him for his publishing activities, and his subsequent fleeing from Sweden, are all part of a huge plot narrative. He may well be right of course, but I would much prefer that greater questions of free-speech and open reporting not be championed by a sex-crime suspect. Does he really expect to live forever in England or only those countries untouched by extradition treaties with Sweden? Wouldn’t that be too high a price to pay for such an internationalist? So what would be the likely outcome should he be returned to Sweden? He might be found guilty, and the people of the world be at liberty to seek a new champion elsewhere, and good-riddance to him. Or he might be found innocent, in which everything would have all been a storm in a teacup dreamt up by a deluded conspiracist. In either case, Julian Assange will be much less important. I submit to your honours that the best thing for Assange to do would be to voluntarily surrender himself to the Swedish authorities, and with the full glare of world attention on him there, fight where he began his very activities in the first place.
alrich said:
02/06/2012 at 21:46
The three-pin/two pin analogy is quite apposite in terms of the Supreme Court’s majority v minority approach to the issue of the meaning of “judicial authority”. Lord Phillips’s argument is that because EU judges operate different standards in terms of construing legislation (two-pin, if you like) from British judges, we should abandon the British three-pin approach for theirs.
A traditional English law approach would look at the literal meaning of “judicial authority” and maybe resort to Pepper v Hart and add in a reference to Hansard if there was some ambiguity (as Mance did in his minority judgment) so judicial authority on this reading means court or judge, not prosecutor. Phillips prefers the European approach where the words of a treaty “may be chosen less for their legal certainty than for their political acceptability”.
The EAW Framework Decision wording according to Phillips is a compromise and may include other meanings that, for political reasons, could not be stated explicitly in the text. First promulgate the document, then worry about what it means afterwards.
Assange is a victim of Phillips’s embracing the legal uncertainty of European law. Mance was standing up for English law’s greater rigour – and hence greater protection for the individual. That, at any rate, is what I argue here: http://wp.me/pfo1I-dl