The reasoning relied on the 1969 Vienna Convention on the Law of Treaties which allows "any subsequent practice … which establishes the agreement of the parties …" to be taken into account.
The majority held that the words in the 2003 Act necessarily reflected their meaning in the Framework Decision. This follows rules of interpretation that suggests that the Parliament generally does attempt to legislate in accord with its international treaty obligations.
However, the majority held that it was not permitted to have regard to Parliamentary speeches by which the Ministers in charge of the Bill gave assurances that EAWs would not be enforceable if they were issued by bodies unrecognisable as courts or impartial tribunals. And the majority did not give weight to amendments made during the passage through Parliament in accord with those assurances.
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It is difficult to understand why strong weight would not be given to the legislative history and the Ministers' assurances when the Framework Decision appears so difficult to construe with clarity.
Lord Mance, one of the two minority judges, agreed that "judicial authority" in the Framework Decision was capable of encompassing public prosecutors.
Lord Mance and Lady Hale (the other minority judge) said that the Court's role was limited to construing "an Act of the UK Parliament".
They found the so-called state practice meant little when nobody had actually put their mind to the meaning of the words in dispute.
Equally, they said that, while one might expect Parliament to legislate in accord with international obligations, it was not an absolute rule.
Importantly, Lady Hale pointed out that the rule must give way to human rights considerations when a person's liberty is at stake.
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In our view, the need for decisions to request the European version of extradition to be made by someone independent of the parties in the case is an obvious and crucial safeguard. The EAW system was designed to take out political and discretionary decision making in the country where the warrant is to be enforced. These discretionary elements provided important safeguards. In their absence, the involvement of a true judicial and impartial authority in the decision to issue the EAW would seem to be a minimum response. The human rights implications of being dragged off to another country at the behest of someone with a passionate and partial involvement in the case seem obvious.
In this respect, the approach of the minority seems much more in accord both with traditional common law and international human rights values.
Court decisions, like requests for asylum, are unpredictable and can go either way. While the decision has significantly impacted on the life of Mr. Assange, its capacity to cause injustice in the future is also of great concern.
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About the Authors
Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.
Benedict Coyne is a National Committee Member and Queensland Convenor of Australian Lawyers for Human Rights (ALHR). He completed a graduate law degree at Southern Cross University graduating with first class Honours and the University Medal amongst other awards.
He had an incredibly interesting year in 2011 as Associate to the Hon Justice Bromberg at the Federal Court of Australia in Melbourne, including hearing (and substantially researching) the Eatock v Bolt case. He was admitted to practise in Victoria in November 2011 and is currently a lawyer in the new major projects and class actions department of Maurice Blackburn Lawyers in Brisbane.
He enjoys writing and performing poetry in his spare time.