Daily Archives: May 30, 2012


Why Eurosceptics Should Back Assange

I have carefully read the entire judgements (including the dissenting ones) of the Supreme Court, dismissing Assange’s appeal against extradition. The appeal was on the narrow point of law that the Swedish Prosecutor was not a “Judicial Authority”, but rather a party to the case, and only a “judicial authority” can issue a European arrest warrant. That may sound dull. I hope to convince you it isn’t.

Eurosceptics are not the most natural supporters of Julian Assange, but they should be deeply disturbed by aspects of this judgement. So should anyone with a regard for personal liberty. Some of the points laid down by the majority judges are truly shocking.

Please read this part of Lord Kerr’s judgement. I suggest you read it several times.

117. It would be destructive of the international co-operation between states to
interpret the 2003 Act in a way that prevented prosecutors from being recognised
as legitimate issuing judicial authorities for European Arrest Warrants, simply
because of the well-entrenched principle in British law that to be judicial is to be
impartial.

So the idea of an impartial judiciary is less important than obeying EU instruments, for which “international cooperation” is in this case a euphemism.

All of the judges accept that in ordinary English “Judicial authority” means a judge and a court, and not a prosecutor.

Lord Kerr says quite specifically:

101. The expression “judicial authority”, if removed from the extradition (or,
more properly, surrender) context, would not be construed so as to include
someone who was a party to the proceedings in which the term fell to be
considered. A judicial authority must, in its ordinary meaning and in the contexts
in which the expression is encountered in this jurisdiction other than that of
surrender, be an authority whose function is to make judicial decisions.

But Kerr then goes on to say that only in the context of European surrender/extradition, “judicial authority” should be understood in a way that is absolutely contrary to its normal English meaning. In a cavalier way Kerr dispenses with a fundamental principle of English Law for centuries, that words are to be construed in their ordinary sense – which every law student in the land learns in week 1 of their course.

The majority all rested their dismissal of the appeal on the grounds that the parliamentary Act of 2003 must be interpreted in line with the EU decision or “Framework Agreement” which it was created to implement. They specifically state that where there is conflict the EU Framework Agreement must take precedence over British law.

What follows is absolutely astonishing. The Framework Agreement in its English version specifically states, in Article 1, that the European Arrest Warrant must be issued by a “judicial decision”.

That really can only mean a court – it cannot mean a prosecutor on any construction.

Lord Philips seeks to get round this by a morally disgusting piece of legal casuistry. He states in terms that the French text should be followed and not the English (para 56 of the judgement). He argues: “The French version is the original and is to be preferred”.

But that contravenes an important and long established principle of international diplomacy. I have personally negotiated in both the EU and the UN and the essential and fully stated principle is that all official language texts have an equal validity. There is no “preferred original”. Lord Philips is just getting over an insuperable obstacle to his argument.

Having argued that the French text must be used and not the english text, Philips returns to the argument on which the whole judgement rests; that the French text is to be preferred to the English and that “judiciaire” has a more “vague” meaning than “judicial” (para 18). He rests this argument on a 1996 French dictionary and a google search.

Even if we accept that judiciaire has a vaguer meaning than judicial, the principle of interpreting international agreements based on the vaguest meaning of each of the individual words between the official languages would dissolve international law into inanity. There is a strong argument that where there is a conflict between languages the more precise and narrow formulation should be taken to be the most that can fairly be said to have been agreed by all.

The truth is that Philips and his fellow judges live in the real world, and were more concerned to please both the EU and the US by getting Assange extradited on charges that would not stand any genuine judicial investigation.

Assange is to be extradited on the argument that the British Act is subordinate to the European Framework, and that the english text of that is subordinate to the French text.

It is not surprising they dismissed an independent judiciary as unimportant. They are not one.

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