Assange, the European Arrest Warrant, and the Supreme Court

// 30 May 2012

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230px-Julian_Assange_20091117_Copenhagen_1_cropped_to_shoulders.jpg

The judgment from the Supreme Court came down today and can be found here for law nerds.

Interestingly, he seemed to have abandoned the most publicised of his arguments, namely that Sweden is a man-hating feminist matriarchy and that it is also a totalitarian state in which defendants are routinely locked up incommunicado pre-trial. Neither of these are exactly supported by the evidence.

He’s now left those arguments behind – wisely, I think – and is focusing solely on the authority of the prosecutor. Section 2(2) in Part 1 of the Extradition Act 2003 requires a European Arrest Warrant to be issued by a “judicial authority”. Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid.

Of the seven Supreme Court judges, five agreed that a Prosecutor did count as a ‘judicial authority’ and two did not.

It’s important to remember that at this stage, Assange has not been charged. He’s not, as his supporters suggest, about to be cast into irons and slung into the Swedish equivalent of the Tower. He’s wanted for questioning – from which no further action may arise.

His own behaviour, and that of his supporters, has not gained him any sympathy with me. His immediate reaction was to smear, smear, smear: the prosecutor was a man-hating lesbian, the women involved were consenting and it wasn’t rape but regretted sex, that the allegations were of perfectly normal behaviour that wouldn’t amount to an offence in the UK (this is still on his website here – trigger warning) – and that last, of course, was quite rightly rejected soundly by the courts. It’s not a feminist conspiracy that having sex with someone through force, threat or while they’re unconscious is rape. It always has been – it just hasn’t always been vigorously prosecuted.

So I have very little time for Assange or his constantly changing legal arguments. But the argument he is running is an interesting one with potentially far-reaching consequences. When Parliament debated the European Arrest Warrant, it was using the English term ‘judicial authority,’ which might ordinarily be understood as a court, but the French (which was the original) would include a prosecutor – indeed they have a Police Judiciaire. So the meaning of ‘judicial authority’ is not defined in Community law.

Like the majority of the Supreme Court judges, I favour a robust interpretation. The French is the original; the rules say that where it’s unclear the meaning of the original is taken; and because each Member State has different domestic rules about who can issue warrants or start prosecutions, we can’t get total conformity. As long as it’s an appropriate person for that state who issues the EAW, I would say they would count.

However I can see the potential pitfalls. Does this open the UK up to accepting EAWs from any quasi-judicial or low-level arm of any EEA state? Can a dodgy police chief demand an extradition without court level judicial oversight? It’s not hard to see how such a conclusion could be abused.

Assange’s legal team have asked for a further fourteen days to reopen the Supreme Court case, and I’ll follow developments with interest.

I’m not certain however that the ongoing delays have done Assange any particular good. Okay, they’ve kept him out of Sweden, but the tide of support for him seems to have changed, or at least stayed. When the allegations were brought, wikileaks had enormous support, Bradley Manning had just been locked up, and his smear campaign against the complainants and the prosecutor was accepted as gospel in many quarters, including by some prominent feminists. Now that the smears have been examined by the courts, they’ve begun to look just as grubby as they were.

When did wikileaks last reveal anything important? And now that he’s abandoned the scandal and smears in favour of a terribly dry argument about the EAW, is all this just so much fish-and-chip paper for his previous cheerleaders? If so, he might have found that a swift return to Sweden on a wave of self-righteous name-clearing a couple of years ago might have been a politically more expedient decision than the stalling.

The photo of Julian Assange was used under the creative commons license and was taken from wikipedia.

Comments From You

sian norris // Posted 31 May 2012 at 10:12 am

I’m still really shocked at the persistence of the ‘broken condom’ or ‘not actually rape according to legal definition of rape’ belief is on this case. I yesterday showed someone the defence lawyer’s description of Assange’s offence (and this is his defence, the people who are supposed to be saying it wasn’t rape) and they had no idea that that was what had happened. None at all. As far as he knew, it was still the broken condom story (i quote the defence statement in my blogpost here – TW http://sianandcrookedrib.blogspot.co.uk/2011/10/im-woman-im-excluded-from-99.html).

I also find that whilst Assange supporters get a voice on the news (John Pilger on C4 news last night) we never hear from people who work in the anti VAWG who can point out and explain that if Assange is guilty of what he is accused of (and of what his defence said he did) then that is rape, pure and simple. Instead we hear from people all the time about how this is the CIA trying to bury him.

It seems like it’s only on feminist blogs and spaces where anyone is actively explaining that the broken condom story was nonsense. That needs to be publicly dispelled and stopped so that people understand that he is accused of rape, if he did what he is accused of doing then he is a rapist.

So – prominent left wing Assange cheerleaders? Read what his defence are saying he did. It might change your mind.

Qubit // Posted 31 May 2012 at 3:21 pm

One thing I have never understood about this, why would a smear campaign be used to get him to Sweden? In the UK we are happy to extradite whoever the US asks us to, I thought he would be safer in Sweden than here? Given a majority of people are happy to accept this as proof of his innocence, I figure there must be some logic behind it.

anywavewilldo // Posted 31 May 2012 at 6:22 pm

just a note: Private Manning is believed by reliable sources to identify as trans*. As per is living under duress in custody perhaps it would be wise to use gender neutral pronouns until per can freely qualify per’s preference in usage.

(‘per’ is not a specific pronoun it is a way of writing in non-gendered language & originated by Marge Piercy in novel Woman on the Edge of Time)

Laura // Posted 31 May 2012 at 7:54 pm

I think “his” is referring to Assange here, but agree with the above.

Julian // Posted 31 May 2012 at 10:37 pm

I deliberately avoided using any pronoun to refer to Bradley Manning. I referred to hir by name only.

Having said that, I’m also uncomfortable labelling someone as trans (as i would avoid labelling someone as gay) unless I know that this is how zie identifies. Not “how hir friends tell the press zie identifies.” Public outings are not something I am in favour of, however well intentioned. I appreciate Manning is not in a position to stand up and tell us how zie identifies right now, but we shouldn’t have any expectation that zie ever will and for that reason I’m uncomfortable with the very public debate over hir identity.

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