Assange, the European Arrest Warrant, and the Supreme Court


The judgment from the Supreme Court came down today and can be found here for law nerds.

Interestingly, he seemed to have abandoned the most publicised of his arguments, namely that Sweden is a man-hating feminist matriarchy and that it is also a totalitarian state in which defendants are routinely locked up incommunicado pre-trial. Neither of these are exactly supported by the evidence.

He’s now left those arguments behind – wisely, I think – and is focusing solely on the authority of the prosecutor. Section 2(2) in Part 1 of the Extradition Act 2003 requires a European Arrest Warrant to be issued by a “judicial authority”. Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid.

Of the seven Supreme Court judges, five agreed that a Prosecutor did count as a ‘judicial authority’ and two did not.

It’s important to remember that at this stage, Assange has not been charged. He’s not, as his supporters suggest, about to be cast into irons and slung into the Swedish equivalent of the Tower. He’s wanted for questioning – from which no further action may arise.

His own behaviour, and that of his supporters, has not gained him any sympathy with me. His immediate reaction was to smear, smear, smear: the prosecutor was a man-hating lesbian, the women involved were consenting and it wasn’t rape but regretted sex, that the allegations were of perfectly normal behaviour that wouldn’t amount to an offence in the UK (this is still on his website here – trigger warning) – and that last, of course, was quite rightly rejected soundly by the courts. It’s not a feminist conspiracy that having sex with someone through force, threat or while they’re unconscious is rape. It always has been – it just hasn’t always been vigorously prosecuted.

So I have very little time for Assange or his constantly changing legal arguments. But the argument he is running is an interesting one with potentially far-reaching consequences. When Parliament debated the European Arrest Warrant, it was using the English term ‘judicial authority,’ which might ordinarily be understood as a court, but the French (which was the original) would include a prosecutor – indeed they have a Police Judiciaire. So the meaning of ‘judicial authority’ is not defined in Community law.

Like the majority of the Supreme Court judges, I favour a robust interpretation. The French is the original; the rules say that where it’s unclear the meaning of the original is taken; and because each Member State has different domestic rules about who can issue warrants or start prosecutions, we can’t get total conformity. As long as it’s an appropriate person for that state who issues the EAW, I would say they would count.

However I can see the potential pitfalls. Does this open the UK up to accepting EAWs from any quasi-judicial or low-level arm of any EEA state? Can a dodgy police chief demand an extradition without court level judicial oversight? It’s not hard to see how such a conclusion could be abused.

Assange’s legal team have asked for a further fourteen days to reopen the Supreme Court case, and I’ll follow developments with interest.

I’m not certain however that the ongoing delays have done Assange any particular good. Okay, they’ve kept him out of Sweden, but the tide of support for him seems to have changed, or at least stayed. When the allegations were brought, wikileaks had enormous support, Bradley Manning had just been locked up, and his smear campaign against the complainants and the prosecutor was accepted as gospel in many quarters, including by some prominent feminists. Now that the smears have been examined by the courts, they’ve begun to look just as grubby as they were.

When did wikileaks last reveal anything important? And now that he’s abandoned the scandal and smears in favour of a terribly dry argument about the EAW, is all this just so much fish-and-chip paper for his previous cheerleaders? If so, he might have found that a swift return to Sweden on a wave of self-righteous name-clearing a couple of years ago might have been a politically more expedient decision than the stalling.

The photo of Julian Assange was used under the creative commons license and was taken from wikipedia.