According to Geoffrey Robertson QC, human rights lawyer and adviser to Julian Assange, the British Supreme Court is likely to rule on his appeal against extradition this month. The personal consequences for Assange are grave, and unlikely to end in Sweden: the U.S. has now arranged a secret grand jury indictment to deport him for trial in America for crimes yet to be clarified but which, if proved, may see him imprisoned for many years.
Those who follow the case will know the sole issue is whether a Swedish prosecutor is a ‘judicial authority’ able to issue an arrest warrant under the Extradition Act. They may also know, through widely publicised remarks by his legal advisers, that English law sees this as an abuse of rights, contrary to ideals implicit in the separation of powers. The Supreme Court has granted an appeal because this issue has ‘great public importance’.
They are less likely to be aware the case raises a major issue of legal philosophy, posing a choice between competing theories of law, each with its idea of how legal principles operate. This theoretical issue will decide Assange’s fate because it will define the nature of his rights and how much protection they confer in a world where civilised nations resort to secrecy, rendition and torture in the name of national security and the public interest.
This jurisprudential issue went unseen by the High Court in Julian Assange v Swedish Prosecution Authority, which dismissed his earlier appeal in July 2011, arguably due to the pervasive influence of a popular but controversial theory of law, it led the Court to interpret principles of justice governing his arrest by deferring to a Swedish practice which ignored them. This is a strong criticism, calling for careful examination of the judgment.
In a lengthy preamble to its decision, the High Court began by emphasising the role of principles protecting ‘fundamental’ rights, some with a history tracing back to Magna Carta. It emphasised the importance of these principles by citing from the Framework Decision, a pre-legislative treaty agreed to by Member States of the new extradition scheme, which said the aim of the scheme was to make it easier for justice to be administered across borders, at the same time protecting citizens’ rights, adding
‘That protection was buttressed by national courts remaining subject to rules protecting fundamental rights,particularly the ECHR and the Charter of Fundamental Rights of the European Union. The existence of the rights and the observance of those rights by the courts were intended to underpin a regime in which there would be mutual confidence.’
Although the Framework Decision is not mentioned in the British Act, the High Court explained that these principles and rights were ‘fundamental’, and its duty was to interpret the Act in light of this Framework treaty. It noted that the aim of mutual recognition was ‘subject to’ these constraints of justice.
Importantly, it did not see these principles as a British invention. They were ‘principles universally accepted in Europe’ and applicable to all Member States. Although it made no attempt to spell them out, it implicitly rejected any idea that they were national artefacts. Accordingly, member nations might have different laws and arrest practices, but this did not mean they were governed by different principles of justice. It meant that opinions as to what these principles require might vary, in which case courts must resolve the issue.
This is the same task an appellate court has when faced with conflicting interpretations of a constitutional principle by lesser courts in the same jurisdiction. It is important to make this point because media accounts of the trial see it as a conflict between different value systems - between British ideals of justice and Swedish principles which appear to ignore rights. This popular view adds drama to, but seriously confuses, the public debate.
However that may be, to dispel any doubts as to their authority the High Court explained that, if the Swedish Ministry of Justice were given power to issue warrants by Swedish law, this would be invalid, since it was ‘self-evidently’ not a judicial authority. This is, on its face, reassuring; it reminds us that not even a Minister of State, backed by democratic theory and the Swedish parliament, can ignore rights affirmed by all parties to the scheme.
But the judgment quickly reneged; it ruled that these basic rights would not disqualify a public prosecutor, with no greater interest in or duty to respect them than a justice ministry, and whose primary role was to bring criminals to justice, not defend them against unproven allegations. The Court did not say why it took this path, relying simply on an interpretation of ‘judicial’ broad enough to include prosecutors. It did so despite saying the statutory aim of mutual recognition was ‘subject to’ the principles, which disqualify a Minister’s warrant.
This contradiction was inherent in the Act, which imposed incompatible duties on judges. It asked them to recognise arrest practices of member nations while abiding by Framework principles which condemned them. This seems so obvious that a cynic might say the Act was drafted to avoid an invidious political decision: to rely on the judges, rather than politicians, to ignore rights everyone agrees are important. This, he might add, is why the Act itself made no attempt to clarify the matter.