The editor-in-chief and founder of Wikileaks, Julian Assange has today lost his appeal against extradition to Sweden to face alleged sexual assault charges. He has been given 14 days to decide whether to ask supreme court to reopen the case. The vote was 3 to 2 in favour of extradition with Lady Hale and Lord Mance dissenting. The strange thing is though, and hopefully when they ask to get the case re-opened, the Judges based their decisions on the Vienna Convention on the Law of Treaties, but the provisions of that convention had not been raised during the hearing at all.
Here is the Press Release:
The issue is whether an European arrest warrant (“EAW”) issued by a public prosecutor is a valid Part 1 EAW issued by a “judicial authority” for the purpose and within the meaning of sections 2 and 66 of the Extradition Act 2003.
By a majority the court has concluded that the Swedish public prosecutor was a “judicial authority” within the meaning of both the framework decision and the Extradition Act.
It follows that the request for Mr Assange’s extradition has been lawfully made and his appeal against extradition is accordingly dismissed.
Here are the reasons for the Supreme Courts decision this morning:
Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment the supreme court is not bound as a matter of European law to interpret Part 1 of the 2003 [Extradition] Act in a manner which accords with the framework decision, but the majority held that the court should do so in this case.
The immediate objective of the framework decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase “judicial authority”. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations.
An earlier draft of the framework decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval.
Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express, (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW, (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors and that the draft referred to “competent judicial authority” which envisaged different types of judicial authority involved in the process of executing the warrant.
Lord Dyson preferred not to infer the reasons for the change and did not find the additional reasons persuasive. Lord Walker and Lord Brown also found these reasons less compelling. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required.
Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart  AC 593, given the need to ensure that the phrase “judicial authority” had the same meaning as it had in the framework decision. Lord Kerr remarked that that it would be astonishing if parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the framework decision.
Lord Mance, dissenting, held that the common law presumption that parliament intends to give effect to the UK’s international obligations was always subject to the will of parliament as expressed in the language of the statute. In this case, the correct interpretation of “judicial authority” in the framework decision, a question of EU law, was far from certain. Thus if parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the framework decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate.
Lady Hale agreed with Lord Mance that the meaning of the framework decision was unclear and that the supreme court should not construe a UK statute contrary both to its natural meaning and to the evidence of what parliament thought it was doing at the time.
Jago Russell of campaign group Fair Trials International has attacked Sweden over its use of pre-trial detention. Russell said: “Although Sweden is rightly proud of its justice system, its overuse of pre-trial detention means that, if extradited, he is likely to be imprisoned and placed under extremely restrictive conditions.” He further went on to describe what will happen to Mr Assange as soon as he sets foot in Sweden
Mr Assange will be arrested on his arrival in Sweden and taken to a Swedish police station. Within 96 hours of being detained he will be brought to court, for a decision as to whether he should be remanded in custody until trial … This hearing is normally in private, unlike in many other countries, including the UK, where such hearings are normally in open court. As soon as the investigation is over, a decision will be taken about whether to formally charge him. Swedish law requires a person to be physically present before charges can be laid, so this can only happen once Mr Assange is on Swedish territory. Alternatively, prosecutors may decide not to charge Mr Assange and to release him.
Julian Assange’s website Wikileaks is a site that published material from leaked diplomatic cables embarrassing several governments. The supposed sexual assaults are considered by many to be completely false, but would mean that if extradited from the UK to Sweden to be tried for the charges then it would be easy for the US to get him extradited from Sweden to the US. The US are desperate to silence Mr Assange and his Wikileaks site.
Here is a full PDF of the Supreme Courts ruling in the Julian Assange extradition case released this morning:
More to follow….