The case of Julian Assange: do constitutional principles matter?

But if this is so then the ordinary meaning of 'judicial' (its antecedent meaning) can only be understood by reference to certain principles of justice intrinsic to the traditional role of courts - which is to clarify and resolve disputes about legal rights by decisions made enforceable by the State. It is these principles of justice, designed to maximise fairness, which tell us what 'judicial' means, not the language or customary practice of officials, however conducive to government aims.

The High Court said as much when it explained why a justice minister's warrant would be invalid.

'The principles of mutual recognition … would not require the recognition of such a warrant, as it would self-evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial' (italics added)

In denying Assange the protection of these principles the High Court gave priority to an interpretation which conformed to Swedish practice. But if constitutional principles are to govern political practice, their meaning cannot be defined by what this practice permits - one cannot cite Swedish practice to justify that nation's warrants, any more than one can treat British common law practice as definitive; one cannot do this because the practice may itself be in violation.

It follows that a court committed to respect due process principles must find a geopolitically neutral account of what makes an authority 'judicial' within this interpretive framework. It must find a conception of 'judicial' which makes sense of the role these abstract values play, regardless of nationality. The best account will capture the unique role of courts in protecting rights, a role often at odds with a government's concern to pursue community interests, and sometimes with the legislation it enacts for this purpose.

If the judges had been more attuned to this task when considering if the warrant violated Assange's rights, they would have paid more attention to the difference between this case and authorities they relied on. For two of the leading cases cited, Enander v Governor of HMP Brixton and Goatley v HM Advocate, dealt with the arrest of persons already charged and convicted. In such cases the warrant serves a notarising function - it testifies to these facts. It shows how useful is a policy of mutual recognition where there is no risk to rights; but Assange was at great risk because he would lose his right to freedom without a proper judicial determination.

The High Court judgment was methodical, scholarly and respectful of the law, but it made no attempt to reconcile the concept of a 'judicial authority' with basic principles of the Framework Decision. It is clear that another court, with a heightened sense of their importance, might rule the warrant invalid and still support mutual recognition; for while the Act requires this respect it does not, as the Court agreed, override principles securing fundamental rights.

The Supreme Court cannot decide Assange's fate if it likewise ignores basic rights; it must ask if they are compatible with warrants issued by officials who are by custom and practice not bound to heed them, and have no inclination or duty to do so. To dismiss the appeal it will require a better explanation of the difference, if there is one, between a 'self-evident', paradigm case where rights prevail, and common garden cases where they can be ignored for the sake of recognition.