Why the Assange case matters

On 1st February 2012 I attended a hearing at the new Supreme Court in London, where lawyers for Julian Assange – founder of the whistleblowing website Wikileaks – were challenging the validity of the European Arrest Warrant under which Assange faces extradition to Sweden, where he has been charged with rape.

assange-supremecourt

Julian Assange arriving at London's Supreme Court on 1st February 2012

Many observers suspect that these rape charges are a pretext to silence Wikileaks, and potentially might see Assange extradited to the USA, where he would face a very long prison sentence for publishing more than 250,000 secret diplomatic cables.  These leaks, which began to be published on Assange’s website in February 2010, were a major catalyst for the Tunisian revolution that kicked off last year’s “Arab Spring”.  Wikileaks also published BNP membership lists in 2008 and 2009.

But the Supreme Court hearing did not look into the merits or otherwise of either the Wikileaks publications or the Swedish charges.  It centred rather on the validity of the European Arrest Warrant, and in doing so raised issues important to all of us.

Until the last decade there were long established principles for extraditing alleged criminals across national borders, recognising that different countries have very different legal systems.  First of all there would have to be an extradition treaty between the countries concerned, and the initial extradition request would be made between governments.  Then there would have to be a court hearing, in which for example an English court would have to be convinced that: (a) Assange’s alleged offences would have been criminal in the UK as well as in Sweden – the principle of “dual criminality”;  (b) there was at least a prima facie case against him;  (c) he could expect a fair trial.

Jack Straw, co-architect of the European Arrest Warrant system

Jack Straw, co-architect of the European Arrest Warrant system

All of this was thrown out as part of the ideologically driven push for European Union.  The political elite eventually realised that “harmonisation” of laws and procedures across the continent would prove too problematic, so they opted instead for the principle of “mutual recognition”.  Jack Straw, Home Secretary in Tony Blair’s government at the turn of the millennium, suggested moving towards a position “where each Member State recognises the validity of decisions of courts from other Member States in criminal matters with a minimum of procedure and formality”.

In practice this meant the new European Arrest Warrant system, under which English courts are no longer allowed to question whether the alleged “crime” is covered by English law, nor whether there is even a prima facie case against the accused, nor even (in most cases) whether the accused could expect a fair trial.  All the English court is allowed to do is check whether the European warrant has been validly made out, then rubber stamp the warrant and send the accused on his way to a European trial.

All this would be bad enough, but the issue addressed in Assange’s apopeal is that in his case (and others) the arrest warrant has not been issued by any sort of judge, but by a public prosecutor – so at this stage the case has not even be considered by anyone independent.  As Assange’s barrister Dinah Rose pointed out, this contravenes the tradition of nemo iudex in causa sua – no-one should be a judge of his own case.

Worse still, it appears that during the passage of the European warrant system into English law, this potential problem was flagged up more than once, only to be fobbed off by government ministers with the assurance that in practice there would be no need to worry.  In January 2002 for example, Home Office minister Bob Ainsworth told the House of Commons European Scrutiny Committee: “it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised.”

Dr Fredrick Toben, whose legal team defeated a German extradition effort by overturning a European Arrest Warrant

Dr Fredrick Toben, whose legal team defeated a German extradition effort by overturning a European Arrest Warrant

Yet in the present case a Swedish prosecutor – clearly not a court – has issued a warrant which has indeed been recognised by the English courts, and unless the Supreme Court overturns that recognition Julian Assange will be extradited on exactly the type of warrant that Tony Blair’s minister assured Parliament would never be allowed. The Assange case is in this respect reminiscent of the Toben case, under which Australian academic Dr Fredrick Toben faced extradition to Germany for “crimes” that did not even amount to an offence under English law.  That case fell at the first hurdle when Toben’s defence team challenged the validity of the German warrant: this time the Supreme Court will have to make a historic decision addressing the fundamental principles of the European Arrest Warrant.

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