I have carefully read the entire judgements (including the dissenting ones) of the Supreme Court, dismissing Assange’s appeal against extradition. The appeal was on the narrow point of law that the Swedish Prosecutor was not a “Judicial Authority”, but rather a party to the case, and only a “judicial authority” can issue a European arrest warrant. That may sound dull. I hope to convince you it isn’t.
Eurosceptics are not the most natural supporters of Julian Assange, but they should be deeply disturbed by aspects of this judgement. So should anyone with a regard for personal liberty. Some of the points laid down by the majority judges are truly shocking.
Please read this part of Lord Kerr’s judgement. I suggest you read it several times.
117. It would be destructive of the international co-operation between states to
interpret the 2003 Act in a way that prevented prosecutors from being recognised
as legitimate issuing judicial authorities for European Arrest Warrants, simply
because of the well-entrenched principle in British law that to be judicial is to be
impartial.
So the idea of an impartial judiciary is less important than obeying EU instruments, for which “international cooperation” is in this case a euphemism.
All of the judges accept that in ordinary English “Judicial authority” means a judge and a court, and not a prosecutor.
Lord Kerr says quite specifically:
101. The expression “judicial authority”, if removed from the extradition (or,
more properly, surrender) context, would not be construed so as to include
someone who was a party to the proceedings in which the term fell to be
considered. A judicial authority must, in its ordinary meaning and in the contexts
in which the expression is encountered in this jurisdiction other than that of
surrender, be an authority whose function is to make judicial decisions.
But Kerr then goes on to say that only in the context of European surrender/extradition, “judicial authority” should be understood in a way that is absolutely contrary to its normal English meaning. In a cavalier way Kerr dispenses with a fundamental principle of English Law for centuries, that words are to be construed in their ordinary sense – which every law student in the land learns in week 1 of their course.
The majority all rested their dismissal of the appeal on the grounds that the parliamentary Act of 2003 must be interpreted in line with the EU decision or “Framework Agreement” which it was created to implement. They specifically state that where there is conflict the EU Framework Agreement must take precedence over British law.
What follows is absolutely astonishing. The Framework Agreement in its English version specifically states, in Article 1, that the European Arrest Warrant must be issued by a “judicial decision”.
That really can only mean a court – it cannot mean a prosecutor on any construction.
Lord Philips seeks to get round this by a morally disgusting piece of legal casuistry. He states in terms that the French text should be followed and not the English (para 56 of the judgement). He argues: “The French version is the original and is to be preferred”.
But that contravenes an important and long established principle of international diplomacy. I have personally negotiated in both the EU and the UN and the essential and fully stated principle is that all official language texts have an equal validity. There is no “preferred original”. Lord Philips is just getting over an insuperable obstacle to his argument.
Having argued that the French text must be used and not the english text, Philips returns to the argument on which the whole judgement rests; that the French text is to be preferred to the English and that “judiciaire” has a more “vague” meaning than “judicial” (para 18). He rests this argument on a 1996 French dictionary and a google search.
Even if we accept that judiciaire has a vaguer meaning than judicial, the principle of interpreting international agreements based on the vaguest meaning of each of the individual words between the official languages would dissolve international law into inanity. There is a strong argument that where there is a conflict between languages the more precise and narrow formulation should be taken to be the most that can fairly be said to have been agreed by all.
The truth is that Philips and his fellow judges live in the real world, and were more concerned to please both the EU and the US by getting Assange extradited on charges that would not stand any genuine judicial investigation.
Assange is to be extradited on the argument that the British Act is subordinate to the European Framework, and that the english text of that is subordinate to the French text.
It is not surprising they dismissed an independent judiciary as unimportant. They are not one.
*unt is on at Leveson at 10am.
I have never heard of Rachel Burden. I see she is an Irish national. I wonder what she thinks of the parlous state of the Irish economy brought down by crooked and greedy bankers and developers and then wiped out by the ECB/IMF etc.
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http://en.wikipedia.org/wiki/Rachel_Burden
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Peter Allen did not get the job to replace Humphreys on Radio 4 Today. Not posh enough apparently. He is an ‘Essex boy’ according to the Torygraph and went to the same school as Straw.
{http://www.telegraph.co.uk/news/uknews/1564720/Radio-5s-Peter-Allen-too-common-for-Today.html#}
Almost every court throughout England and the United States does this same thing, almost every day. The judges interpret the law in the politically expedient way. Julian was finished from the beginning. Too many powerful people have it in for him. And we are not getting enough anger from the general public about any of our major problems to make a difference. Very often the good guy loses. Just look at Jesus Christ.
Indeed PalSimon, but sometimes the good guys win.
Three empires have thought that they can rule Afghanistan, all of them failed.
Maybe we should take this hint with a fencepost right behind our ears, it is an example of courage and determination.
Julian Assange is in a mucking fuddle, if he gets extradited to Sweden he’ll join Jesus, mark my word, if the Ami’s get their hands on him he’s toast.
meanwhile, a new british ambassador in Tashkent.
Well written and well argued.
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If this judgement can be challenged, then the supreme court will have to decide between letting Assange remain, or letting this mockery become a precedent…
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Which means it’s off to Sweden to stand trial, but at least he’ll have made the establishment shit on their own laws in the process.
Jeremy Richard Streynsham Hunt is adopting the role of the naughty (public) school boy up before the beak who is debating to himself whether he is going to get the cane. He looks as if he might burst into tears quite soon. As red in the face and as sweaty as Bliar on Monday. I really believe he has convinced himself that he has done nothing wrong.
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Should have stuck to the money making Hotcourses!
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http://en.wikipedia.org/wiki/Jeremy_Hunt_(politician)
John Pilger on yesterday’s ‘proceedings’.
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Unjust legal saga continues for Assange
http://www.abc.net.au/unleashed/4043974.html
“We are living in a fascist state.” – we are Mary and Julian is a powerful force who recently postulated powerful and valid questions to ‘Occupy’ academia. Playing ‘devils advocate’ he explored various ways the movement could be undermined by sedition and government ‘plants’ creating schism or attempts to divert the cause by overwhelming ‘face to face’ camps with transients and ex-cons seeking welfare.
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Without blowing my own trumpet I can tell you since my telling on Syria’s massacres/executions I have been locked out of commenting in the Washington Post by ‘system errors’ and the Independent/Telegraph are not inviting further comments or opinion on the latest threat of foreign military intervention outside of international law.
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Foreign fighters in Syria have been frustrated by recent arms seizures by boat or border crossings. Clandestine operations by interested parties have intensified in an attempt to prevent rebels and terrorists from receiving heavy armament such as shoulder fired mortars and automatic weapons. That is the reason American paid thugs are now organizing the Israeli contrived ‘murder by stealth’ of women and children in areas where government forces are actively driving out conclaves of assailants. This action of course invites intervention forgetting the American and British massacres of women and children in Iraq! Fucking mockery.
Article has been linked to on Assange\Wikileaks Twitter feed, so likely to get a few hits.
I’m afraid though that the ‘argument’ – crafted soundbite really – that Assange should ‘man up and face charges’ is curiously popular. A perfectly intelligent and decent person in my work said much the same thing to me. I merely replied ‘nonsense’. My colleagues is a nice chap, and he’s entitled to his opinion, but it clearly wasn’t worth arguing the point, not in the workplace; it’s not really a point anyway, just a repetition of bad journalism. And he’s wrong. Alas, his view is common, certainly amongst those who aren’t all that interested in the trial.
And it’s sad that Mr Murray, not a journalist as such, tells us something interesting in his blog, whilst many actual journalists forget to bother. Joshua Rozenberg had a stab at it, though from memory failed to mention the acceptance of the French definition. And The Guardian do a live blog, so that’s something, though I don’t think the blog is much cop. But mostly such matters pass the world of journalism by. Do they teach aspiring journalists that their role is to disseminate propaganda and lies, self-censor, and hide truths in the name of national interest? It sometimes looks like it.
Still, who needs to read the MSM anymore? Not I, that’s for sure. If you look at the MSM as entertainment, then they don’t do much harm, it’s better to read books anyway if you actually want to understand stuff.
“We are living in a fascist state.”
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That’s an exaggeration. I don’t why anyone feels the need to exaggerate this or hype it up – aren’t the facts bad enough already?
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Great post Craig – welcome back.
Chienfou Have it your own way. Just wait.
How very kind of the Occupier to return the mortal remains of 91 Palestinians to their loved ones. Some have been in Israeli possession since the 70s.
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http://www.bbc.co.uk/news/world-middle-east-18276354#
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ZBC is still sticking to their description of the elected government in Gaza as the ‘Islamist militant Hamas movement’ whereas the head PA stooge Abbas has no mandate. That expired several years back. He is therefore not the Palestinian ‘President’.
The Israel shill Jon Donnison knows very well that there were not ‘hundreds’ of hunger strikers. There were over 1,600.
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Two men launched the strike on Feb. 28, refusing food for 77 days, becoming the longest ever Palestinian hunger strikers. At least 1,600 other Palestinian prisoners, more than a third of the prison population, joined the strike on April 17, fasting for 27 days.
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http://www.huffingtonpost.com/2012/05/14/palestinian-hunger-strike-israel-prisoners_n_1514969.html
Thanks for stopping to post this analysis, Craig, when you’re so busy.
It is both an encouragement and of practical help to all supporters of Julian and Bradley to have someone so able commenting on proceedings.
Mary: “Chienfou Have it your own way. Just wait.”
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Ditto, Mary, ditto. I am just waiting (have been for a few years) for the financial armageddon to get so bad that theres a national emergency government of all the three main parties to be formed, and to declare that while it lasts there will be no more elections for a “short while”…we should live so long. It was planned out a long time ago to be this way.
Nice post.
Political suspicions aside, I’m actually rather baffled by the decision reached in this case. What I can’t seem to get my head around is why there are two separate definitions of ‘judicial authority’. The British interpretation of ‘judicial authority’ is merely a statement of fact: it is a body that, to all intents and purposes, makes judicial decisions; in other words, a judge or a panel of judges. This is contrasted with the European interpretation of judicial authority, which, from what I can see, is the broadest definition possible: it effectively encompasses any major player in the legal system. I find this deeply upsetting for two reasons: 1) it means that any prosecutorial authority can compel witnesses from any European state when required , 2) it means that European extradition effectively neuters the legal status of national courts – which in all reality must be given a firm say in any matter concerning the extradition of its citizens. Taken together, the new legal dispensation means that the right of citizens to a fair trial can be suspended (and negated) by the whims of a supranational legal entity.
Have I got this wrong?
Prosecutors in civil law systems belong to the judicial branch. In common law systems like the UK, they do not. (At least, I assume so. In the U.S., where I live, I know they do not.)
“Chienfou Have it your own way. Just wait.”
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Wait? The world is in a mess. Isn’t it better to try to do something about it?
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Hyperbole and exaggeration encourages the view that there is nothing that can be done – that it’s all hopeless. Why not use what you know to highlight ways for people to fight back? That might stop us becoming a fascist state.
Guest,
Must commend your optimism: believing that elections are of any consequence in the current single party system that has set up three main head quarters for the benefit of ease of access to all tastes.
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The movies teach us that for fascism to exist, everyone should be wearing a military uniform, a monocle, sport a mustache, zeig heil everything in sight, and click their heels when they a see a woman, and all pronounce their “W”s as “V”s, and pretend to like listening to thunderous classical music. Based on this education we can safely assume fascism does not exist and we are living freely and in peace and prosperity.
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Never mind the raging wars and expansionist policies of the fascio in charge, and corporate friendly laws, that include the electronic cameras that read vehicle number plates and consult the insurance industry computers (private sector) as to make the roads safer with the ever increasing costs of insurance, creating a market which is considered dysfunctional by any standards, and even there are admissions to that effect judging by the noises being made lately.
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Fact that supreme justices are busy pushing the party line and interpreting the laws in a more party friendly fashion is only a display of the unity of government and upper crust, and has nothing to do with the lack of independence of the judiciary from the unitary party line.
With one bound, Hunt was free! Even before he had left the vicinity of the Courts of Justice, Cameron was announcing that he would not be referring Hunt to the parliamentary watchdog. A token vote of confidence? Hunt has the moral fibre of an earthworm. He had considered his position, ie resigning, but decided that Adam Smith should go having told him earlier that he would be OK.
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http://www.politics.co.uk/news/2012/05/31/jeremy-hunt-i-considered-resigning
Fedup
Yes, I knew that, what I said above will happen, they are not going to allow any other party that may spring up and take advantage of the financial armageddon to gain anykind of power. Its called forward planning.
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“We have a financial system that is run by private shareholders, managed by private institutions, and we’d like to do our best to preserve that system.”
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Timothy Geithner US Secretary of the Treasury, previously President of the Federal Reserve Bank of New York.1/3/2009
Fedup
http://www.leap2020.eu/The-future-of-the-USA-2012-2016-An-insolvent-and-ungovernable-United-States-first-part_a9750.html
Assange was finished as soon as the European Arrest Warrant was issued and judged to be valid by the UK immigration court. Under the terms of the treaty, extradition was meant to be “fast-tracked”, and close to a formality. The UK courts don’t, and neither does the Home Secretary, have the right any longer to examine the basis of the offence allegedly committed under the terms of the EAW, all that’s been taken care of, in theory, by the judicial authority that issued the warrant in the first place. The UK’s role is merely to impliment the terms of the warrant without undue delay, the UK courts don’t have the powers, any longer, to scrutinize whether any crime has been committed, or whether UK law has been broken, all that is irrelevant under the terms of the treaty.
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So the EAW is an incredibly powerful document once issued. What’s even more disturbing is that now the UK Supreme Court has accepted that a warrant can be issued not by a neutral judge on the basis of specific and named charges, but merely by a prosecutor, who obviously isn’t neutral, and just for the purpose of facilitating an interview, which may or may not lead to charges and a subsequent trial, all this fundamentally undermines basic and very old human rights as they are normally understood in the UK.
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And think, Assange has been under house arrest and been forced to wear an electronic tag on his ankle for over a year, like he was a criminal or suspect, and all without any charges being presented, and for alleged actions, offences, which arguably are not even seen as crimes in the UK!
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And it’s not just Assange. Every year well over a thousand people are extradited out of the UK, mostly for petty crimes, under the terms of the draconian European Arrest Warrant, and now the UK courts have actually made it even easier to inforce than previously.
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PS It’s a fundamental mistake to equate new-style fascism, with old-style fascism, with its militarism, uniforms, torch-lit marches, and crass symbolism. Todays’s fascists wear business suits and many of the leaders are women. The old trappings, for obvious reasons, have been dumped. New-style fascism is the gradual merging of the State, the military, the corporations, and the media, also known as the propaganda-wing of the State, into a new whole, that functions without restrictions and towers over society, a society where democracy has been side-lined and has virtually no restrictive capacity in relation to the new-styl fascist State.
If, by way of example – an applicant ( prosecutor) wanted to obtain a “Restraint Order” under the Proceeds of Crime Act 2002, then:-
A. A prosecutor – or – applicant – makes an application to a court.
B. The application made to the court is a tribunal over which a Judge ( read “ Judicial Authority” ) presides.
C. Then – a decision for – or – against grant of the “Restraint Order” is made.
How can A be the same as B? Surely, since what the prosecutor thinks or thought he/she could get by way of submission to a “Judicial authority” simply cannot be the same as the decision which finally the “Judicial authority” makes.
A prosecutor’s decision is simply not the same as a determination by a “ Judicial authority”.
To put is simply – a judicial authority is authority derived from the exercise of a Judge’s authority/judicial power and pertains to the office which the judge holds. A judicial authority is the authority pertaining to the office of a judge. The judge hears and then determines the issue, question or legal matter in question.
Leap-frogging from prosecutor to “judicial authority” simply does not make for sound judicial reasoning.
Is what the prosecutor decides he might get in point of law – the same as what a judge decides can be obtained under law?
A fish is not a fowl – but this is indeed a “foul” decision against Assange.
The court has conflated procedural justice with substantive law – and the fish has thus been mixed with the “foul”.
P.S. Be it also noted that learned counsel pointed out to their Lordships that the decision was based on a point that had not been argued before the court – thus the permission to make an additional application. In layman’s terminology, the judges shifted the goal posts.
Sorry, the paragraph thingy didn’t work for me, damn!
Looking back on what I just posted:-
” A fish is not a fowl – but this is indeed a “foul” decision against Assange.
The court has conflated procedural justice with substantive law – and the fish has thus been mixed with the “foul”.”
With that type of liguistic slip slide – methinks I now qualfify to be a judge (ha…ha!)
I hope this English precedent will not be carried out in Scotland where of course Scots law applies.
Writerman, I put dots in the blank lines; is that OK?
The Assange case is also sending out a very powerful message to all those who would stand up against or dare to criticise the state/status quo….If the state sets out to get you, it will, and don’t you EVER forget it….Fear is like a weapon, and many bend before it, it explains why so many good people are turning a blind eye to all that is happening.
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“First they came for the communists,
and I didn’t speak out because I wasn’t a communist.
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Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.
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Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.
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Then they came for me
and there was no one left to speak out for me.”
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http://en.wikipedia.org/wiki/Martin_Niem%C3%B6ller