“If he doesn’t win it means that anyone can be extradited from the UK, be arrested and put into detention at the behest of any prosecutor anywhere in Europe without having to show any evidence, without being charged and without proper judicial oversight. So I have faith that the British justice system should not and cannot stand for this sort of precedent.”
(Jennifer Robinson, legal adviser to Julian Assange, speaking to Chris Uhlmann, Australian Broadcasting Commission, 2ndFeb, 2012.)

On 2nd November the Queen’s Bench division of the High Court dismissed an appeal by the founder of Wikileaks against extradition to Sweden to face trial for rape and related crimes. It rejected each of four grounds of appeal. On December 16th the Supreme Court ruled that the most important of these, a claim that the Swedish Prosecution Authority was not a valid ‘judicial authority’ to issue an arrest warrant, was of such public importance as to justify a hearing before seven judges. The outcome of this hearing, argued on 1st and 2nd February, will confirm whether Ms. Robinson’s faith in the British system of justice is well-founded.

The fact that many people share this concern is clear from the public rallies scheduled in cities around the world, to be held when Britain’s highest court announces its decision, which is now expected in May. So what is this case about, why have these distinguished Justices granted an appeal, and what might Assange reasonably expect from them?

At the heart of the case is a problem of reconciling conflicting aims in the 2003 Extradition Act. The government’s aim was to facilitate extradition, primarily by mutual recognition of the arrest practices of European member states; but the High Court also affirmed the scheme’s aim to respect the rights of those deported, including a right of due process. This aim is explicit in the European Framework Decision, a pre-legislative treaty setting out essentials of the scheme; although this document was not referred to in the Act, the Court noted that it must govern its interpretation.

The rights are expressed in principles whose authority the High Court took some care to emphasise; their importance was such that they must be upheld even if Member States found it more convenient to ignore them; accordingly, while it was a matter for each State to designate its own warrant issuing authority, this would not apply ‘if the authority was self-evidently not a judicial authority’; hence,

“… if a warrant was issued by a Ministry of Justice which the Member State had designated as an authority … it would not … be a valid EAW under the Framework Decision … it would self-evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial.”

But despite agreeing they were ‘fundamental’, these principles (that no one may be judge in his own cause, and no one may be deprived of freedom without just cause and a fair process) played no role in the judgment – it made no attempt to clarify factors likely to conflict with them; nor did it say why, if a Minister’s warrant is a ‘self-evident’ violation, this not true of lesser officials, such as a police officer, customs official or public prosecutor. Why did principles universally accepted in Europe not exclude these as well? After all, the same conflict will arise if the same risk exists, that arrest warrants may be issued on non – judicial grounds including simple administrative convenience; this is just as clear in these cases as it is in the case of a justice minister.

Such a finding would seriously restrict mutual recognition. It would prevent the arrest and detention of persons whose only offence is that some designated official from another jurisdiction believes they might have information relevant to a possible crime. It would prevent the deporting of residents without formal charge, with no judicial hearing, and with no duty to disclose witness statements or other evidence material to possible charges. It would undermine use of the Act to expedite extradition in all cases where such objections might reasonably be made.

How might a court respond to this problem? One way is to show it is bound by principles of interpretation which favour the Government’s case, such as the principle known to lawyers as Lord Wensleydale’s ‘mischief rule’, that when the language of the statute is unclear, a court should read it to ‘remedy the mischief’ it was presumed to address. The reasoning suggests that this idea may well have influenced the Court; but it cannot help because the language of the Act is clear – the problem arises because it pursues incompatible aims viz – to respect basic rights while extending recognition to arrest practices which ignore them.

These rights are so important that it would be unreasonable to suppose the Act meant to exclude them without clear words to that effect. It could, for example, have said that mutual recognition would not be limited by considerations of due process. This seems so obvious that a cynic might suggest the Act was crafted with this in mind, to avoid an invidious political decision – to rely on the judges, rather than the politicians, to ignore rights which everyone agrees are important. This, he might suggest, is why the Act did not try to clarify the term ‘judicial authority’.

The High Court, not surprisingly, defended its independence; it explained that it would not recognise a Minister as a ‘judicial authority’ even if designated such by Swedish law, and even if it would facilitate extradition in the view both of the Swedish legislature and the UK Government. But the problem with this example, which affirms a need to protect due process rights by keeping separate executive and judicial powers, is that it did not exclude the Swedish public prosecutor; to understand why we need to look more closely at the judgment.

The four matters discussed reveal three concerns; the first was that prosecutors did in fact exercise some judicial power; the second was a need for independence – they must be free to act on their own judgment; the second reason was their inclusion in such bodies as the ‘corps judicaire’, ‘Conseil de la Magistrature’ and ‘authorite judicare’ – within their own jurisdiction they were seen as members of a broader categorisation of the judicial profession. The implication is that, if a nation treats officials as judges by including them in a ‘corps judicaire’, and if it gives them powers ordinarily reserved for judges, they will qualify as ‘judicial authorities’.

This makes no sense. If the scheme prevents a Minister of State being designated a ‘judicial authority’ it must presuppose an antecedent meaning for this phrase which evokes the character of the person or body before it is has power to arrest. The obvious choice for this meaning is ordinary usage, especially the ordinary usage of lawyers in the context of the threefold division of powers between executive, legislative and judicial spheres. It suggests ‘judicial’ means something like ‘in the manner of, or according to, the traditional practices of a court of law’.

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.

In denying Assange the protection of ‘universally accepted’ principles the High Court gave priority to an interpretation of them which conformed to Swedish practice. But if constitutional principles are to mean anything – if they 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; 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 national and conventional practice. The best account will capture the traditional 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.

The High Court failed, in the end, because it ignored this task; its responsibility was to reconcile long-settled principles of statutory interpretation with constitutional principles designed to protect basic rights. At the core of its ruling on what constitutes a ‘judicial authority’ it said:

‘.. it cannot be said that the term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principles of mutual recognition … to recognise as valid an EAW issued by a prosecuting authority …To do otherwise would be to construe the word “judicial” out of context and look at it simply through the eyes of a common law judge, …’

But the fact that a warrant is consistent with mutual recognition is a separate issue; it has no bearing on whether it ignores rights. A police officer is independent from the executive – he might even have a duty to arrest a government minister – but undue government influence is only one danger against which rights must be protected; simple neglect is a far more likely risk, especially if compliance with rights is costly or inconvenient. If a policeman were given power to arrest and detain for deportation, this would hardly suffice to make him a ‘judicial’ authority.

Such a claim can only be judged by asking if the person or body with power to issue warrants is bound by procedures designed to protect basic rights; for in the end the reason why the Swedish prosecutor’s warrant should be ruled invalid is not because common law judges are bound by rules and practices peculiar to British constitutional history, but because member states are committed to a Framework Decision which protects rights.

How could the High Court miss this point? Perhaps it tried too hard to be respectful of other jurisdictions. It saw that, because the Act must be read in light of the Framework Decision, it could not treat as definitive a common law meaning of ‘judicial authority’ which excluded public prosecutors. But it does not follow that this home-grown version must be rejected – it might still be the most defensible conception of ‘judicial’ within that Framework. The Court ignored this possibility and proceeded as if its duty was to accommodate Swedish practice come what may. In trying to avoid a partisan view of rights it fell prey to a counter-bias which ignored them.

If the judges had been more attuned to the substance of these rights when considering if the Assange warrant violated them, they would have paid more attention to the difference between this case and some of the 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.

It would be unfair to say the High Court’s reasoning was less than professional – it 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.

First published on New Matilda (here). All Max Atkinson here