Why Eurosceptics Should Back Assange 204


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.


204 thoughts on “Why Eurosceptics Should Back Assange

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  • geomannie

    Hi Craig,

    Welcome back. I was following your recent blogging on your researches into Alexander Burnes and Britain’s first Afghan Imperial adventure.

    I had been unaware of this aspect of British history, apart from your mentions, until I watched Rory Stewart’s BBC program on Monday night (second episode tonight). I now see why he is worthy of further research.

    Did you see Rory Stewart’s program and any comments? My basic though is why are we only now being allowed to have the obvious folly of Afghan adventures discussed on prime-time TV. Is this softening up for our imminent troop withdrawal?

    Cheer

  • El Sid

    French/European law follows Napoleonic Code. It’s a bugger to translate because the premises are different from UK law. In which case, it being a British court, UK Law/English translation should apply.

  • OldMark

    Many thanks Craig for deciphering the legal sophistry of our noble Lords Philips & Kerr in this important case. As both a Eurosceptic, and someone who senses that Assange is being unjustly pursued by the PTB here, I agree that the judgement is ‘truly shocking’.

    BTW very glad to see you were so well received back in Brazil.

  • craig

    Mods
    Still in Sao Paulo could someone pl correct typo in last sentence am on mobile.
    posting to Facebook still woorks
    Alposs check blog so I changed Facebook login to my normal email address you know password unchanged. If

  • Mary

    We are living in a fascist state. The judgement on Julian Assange was shocking.

  • Mary

    Yet they want the doctors to be on a pay freeze, work for longer and pay larger pension contributions.
    .
    Salary
    As of 1 April 2010, Justices of the Supreme Court, including the Deputy President, were in Group 2 of the judicial salary scheme, with an annual salary of £206,857. This is the same group as the Chancellor of the High Court, Lord Justice Clerk, President of the Family Division and President of the Queen’s Bench Division.[1] The President of the Supreme Court, Lord Chief Justice of Northern Ireland, Lord President of the Court of Session and Master of the Rolls make up Group 1.1 of the scale on £214,165, below only the Lord Chief Justice of England and Wales, who earns £239,845.[1]
    .
    That was two years ago. I bet they are not on a pay freeze and how much pension do they collect?
    .
    http://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_of_the_United_Kingdom

  • Www.NoAgendashow.com

    #itm folks, Words matter as they say!

    Its the same skirting around anything that gets in the way that allows Obama to Drone anyone that is fortunate enough to be nominated by the droning panel. Including their own citizens.

    Dont drone me bro!

  • nevermind

    The judgement today is a travesty of justice, it is determining the position of judges lining up behind Obama’s backside, tongue’s at the ready, no more, what a bunch of law benders, french text? whatever next, garlic for breakies?

    Something to make you all laugh. If u-turns are done by anyother main party, except the Conservative dimdumb coalition, its called ‘weakness and febrile’.
    According to some young thing called chloe, its a sign of the Conservatives listening and acting upon it.

    http://www.edp24.co.uk/news/politics/the_coalition_compulsive_u_turners_or_good_listeners_1_1392637

    Could have me fooled, some 65.000, mostly conservative voters, voted against a technological nightmare incinerator from a dubious US company called wheelabrator, a company that has not build one since 1995 and has no nous of modern MTB and gasification processes.

  • John Goss

    I agree that the judges are not independent. Decisions are made in the Grand Lodge, or somewhere, not based on any independent hearing or consideration, not based on English or European law, but they have nothing to do with justice. As well as this being true in Assange’s defence today there is a staunch case for holding an inquest into Dr David Kelly’s death. But this is not part of the agenda that these overpaid farts support. When a man clearly breaks the law, as David Lawley Wakelin did two days ago, breaking into the Leveson Inquiry, the police and prosecution service decide they are not going to charge or prosecute him. Now I believe Wakelin was right to say what he did about Tony Blair being a war criminal, which every sane person knows to be a fact, but Wakelin broke the law by intruding into the Inquiry. However, it is not in the interest of this same establishment to prosecute, so they don’t. They want to see Assange sent to Sweden on trumped-up charges from female CIA officers to get him extradited to the US because it is part of the secret agenda. But it is not part of the secret agenda to give an honest man a platform to explain why Tony Blair is what he is. Here is a very short film made by the honest man explaining his position.
    .
    http://www.youtube.com/watch?v=HWdfgEGRMww

  • Guest

    “but Wakelin broke the law by intruding into the Inquiry”

    Say to that what the law says, “its not against the law if its in the public interest”, which is what “David Lawley Wakelin did two days ago”. No case to answer.

  • Wayfarer

    But the point about all of this – Levenson, the Assange judgement, whatever – is not that we are ruled by criminals, whether in politicians’ robes or judges’ wigs. It’s that we’ve always been thus. And even now when it’s becoming so much more apparent, no-one in the UK actually gives a bugger. As long as they had iPhones and Sky TV, the GBP would vote for Adolph Hitler.

    I’ve given up using the term neo-con when it comes to UK and US govts – and their paymasters in Tel-Aviv. We’re talking neo-nazi, no question about it in my mind. Of course we don’t use such crude terms as anschluss and lebensraum any more – the PR and spin is far too well developed these days.

    In 1945+ a German nation protested “but we didn’t know!” Mainly of course because they didn’t much care to know. Just as so many people in Europe and the USA don’t much care to know now.

  • John Goss

    But you miss the point Guest. I know you’re being facetious but the reason they have not charged him is because they do not want to give him a platform where the press could show what he said ‘was in the public interest’. These people, Blair, Straw et al, are the real criminals who should be answering to the courts of justice.

  • John Goss

    Sadly Wayfarer the majority are complacent. Not those who comment on this blog though.

  • John Goss

    I’ve just scan-read the report though not the appendixes and nearly laughed out loud when I got to para 72
    .
    72. I turn now to Miss Rose’s reliance on the meaning of “autorité judiciaire”
    (“legal authority”) in the context of article 5, to which I referred at para 21. I there
    set out article 5.1(c). Article 5.3 provides: Page 27
    “Everyone arrested or detained in accordance with the provisions of
    paragraph 1(c) of this article shall be brought promptly before a
    judge or other officer authorised by law to exercise judicial power
    and shall be entitled to trial within a reasonable time…”
    .
    How does the above fit in with the detention without trial of Babar Ahmad?
    .
    http://johngossip.blogspot.co.uk/2012/04/babar-ahmad-shameful-case-of-injustice.html

  • Guest

    John Goss, yes I know that. That is the reason Blair can’t sue anyone, he doesn’t want a court case, all those e-mails etc, having to go into the witness box, Blair must have nightmares, waking up in a cold sweat at the thought of it all. I bet he doesn’t give a thought about just one of his millions of victims.

  • geekeconomist

    Not only Eurosceptics but also Euroenthusiasts (like I am) should consider this case carefully and pay attention to coverage and enforcement of rule of law and to protection of human rights in Europe. Today’s ruling by UK Supreme Court sets a bad precedent for European citizens and citizens from third countries residing temporarily or permanently in Europe. You can be extradited without being formally charged and without a judge issuing the EAW. In the Assange case a rogatory letter procedure and questioning in UK would have saved a lot of time and of EU taxpayers’ money.
    This make us believe that the Swedish prosecutor has different objectives than the resolution of the specific case for which she seeked extradition instead of assistance to local authorities to do questioning in a different country.

    In Italy, judges and proscutors who have to question someone abroad asks for support to judicial authorities in the country concerned and go there for interrogation purposes.

    Another aspect of this case is the pending but blatant risk of extradition from Sweden to US (a country which provided official evidence of use of torture and with death penalty as current practice) too often with a fast track procedure circumventing rights set by ECHR.
    Is the abuse of EAW combined with bilateral extraditions agreements between US and EU member states creating a new sophisticated architecture replacing extraordinary renditions? http://bit.ly/Jtum32
    Europe has to avoid that.

    Concerning the legal aspects of today’s ruling, I read today that French prosecutors are *NOT* judiciary in at least 2 European Court of Human Rights cases https://www.flashback.org/sp37608362.
    And in Italy, Supreme Court clarified that EAW is not to be granted for questioning and that it must be issued by a judge (p. 13) http://bit.ly/zBmiQ0

    In the EU Institutions all documents published in the 23 official language can be referred to indistinctly. All language versions have same value. There are three main working languages: English, French and German. No one prevails on the other. And within the EC, 90% of times the original drafting is in English.
    The argument on languages and wording by Lord Philips is groundless.

  • Iain Orr

    Craig

    Thank you for fastening on key absurdities in the majority verdict on the Assange extradition case. Surely some of the libertarian and, indeed, Eurosceptic websites and blogs will be appalled at this preference for franglais, this denial of what words in English mean. A prosecutor is not a judge, at least in Common Law.
    .

    I will be doing what I can to make sure that as many as possible who matter politically are aware of this terrible majority verdict. I hope others will be doing so as well; and reporting here on any success in eliciting supportive comments.
    .
    Is there any way to call for the removal of Lords Kerr and Philips on the ground that those illiterate in English cannot be trusted to interpret English Law?

  • nevermind

    Saw Rory’s second take on Afghanistan and duly felt he missed out a few important points, like the CIA’s concerted plans to create/fund a new kind of radical islam in the Madrassas of Pakistan, like the fact that Bin laden was trained by the CIA in black ops arts, sic, that he was the CIA’s bagman in Afghanistan.

    It was a very sanitised version designed to appeal to breach the ga[p between those in the know who are informing the public, regardless of the misinformation that is spread and those who’d like, still, to pull the right colour weave over our eyes.

    The question has to be asked. Why, if his visit was in 2002/3, has it taken ten years to edit? what makes it now important?

    Is it because we have to justify our imminent exit somehow, save face, once again, having covered up and hidden bodies, with more of the same. A sad indightment, I had high hopes for Rory, I think he could have been a usefull mediator and facillitator in future, when Tajiks will square up to Pashtuns in a power vaccum of our making.
    I feel that Irans situation, faced with large US basdes at its eastern borders and that of Afghanistan, flush with weapons NATOP has to leave behind due to their logistic nightmare, could produce a future alliance the west has never seen before.

  • Courtenay Barnett

    Iain,

    ” Is there any way to call for the removal of Lords Kerr and Philips on the ground that those illiterate in English cannot be trusted to interpret English Law?”

    Exposure – exposure – and more exposure.

    I have one in the ECHR – and they simply play politics.
    CB

  • Jay Stephens

    Hi Craig. Great article for non-legal-experts-and-laymen such as myself. I have a question which has been at the back of my mind for years due to various similar cases in the past, but which this has really brought to the fore for me.
    Put in very, very crude terms, might it be fair to say this is an example of English law rubbing up against a system influenced by a napoleonic/inquisitorial history, and having to get compromised as a result?
    Not to say that those other systems are any less good, just that if you start accepting some of their terms within the British framework, things break?

  • ezduzit

    I feel a backlash is coming, its a matter of fundamental rights and principles. It will be a backlash to the last 10 years of erosion of human rights in the name of the ‘war on terror’…. to the spending of kazillions on arms, while many starve to death or die of treatable disease….. to the corporatisation of sport and its sell out to big gambling, to the perversion and monopolisation of the traditional media….to the politicians with their self serving obscene pensions and benefits, to Big mining, the Big Pharmas, the corporate barons with their tame remuneration companies, arms traders and drug lords. It will be a backlash to greed corruption and state abuse in all its forms and guises. It is disgust and disillusionment on a massive scale

  • Jay

    Peter Allen and Rachel Burden talking to Nicky “The Red” Cambell

    THe ECB was described on Radio 5 this Morning As bein called “the Hoover” Buying up all the assets for sale in athens then the line broke.
    we all went to heaven in a little row boat…

    Its all to plan folks its how they work so Ihave learned.

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