Wednesday, 20 June 2012

Assange ~ Breach of Bail ~ Status of Embassies

It is reported (e.g. Guardian 20th June) that Mr Julian Assange has entered the Embassy of Ecuador .

Another article (BBC 20th June - Wikileaks founder Julian Assange faces arrest, police say ) comments: - "Our correspondent said that, as Mr Assange had broken the condition of his bail that he lived at a friend's house in Norfolk, a criminal offence had been committed."

It will be recalled that District Judge Riddle refused Assange bail but that it was later granted by Mr Justice Ouseley.

General points about bail:

Persons granted bail are expected to abide by any conditions attached to that bail.  Common conditions include a requirement to live and sleep at a specified place; to report to the Police at a specified police station at specified times and so on.  Sometimes sureties come forward.  Also, sometimes, securities are taken.

A "surety" is a person who agrees that a sum
of money (in whole or in part) may be forfeited if another person fails to surrender to custody as required. 

A security is money paid into court before the defendant is allowed out on bail.

I do not have the precise details of Mr Assange's bail though a number of sureties came forward in support of Mr Assange and it also appears that he was required to be at an address between certain times of the night.  Until he went to the embassy, it can be safely assumed that he adhered to whatever his conditions were.

It is NOT a criminal offence to fail to abide by a bail condition but the Police are entitled to arrest the individual who must then be produced in court.  The court may then decide whether to revoke bail or to allow it to continue on the same or other conditions.


Ecuador - London Embassy
Embassies / Diplomatic Missions:

One slight problem here however.  An embassy is inviolate - Article 22 of the Vienna Convention on Diplomatic Relations:

1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent of the head of the mission.
2.The receiving State is under a special duty to take all appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
3.The premises of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.

The Vienna Convention has effect in English law because of the Diplomatic Privileges Act 1964

As I understand this, Mr Assange cannot be arrested whilst he is under the protection of the Ecuador Embassy unless, of course, the Ambassador permits entry to the embassy.

See the Ecuadorian Embassy statement about Assange

"As a signatory to the United Nations Universal Declaration for Human Rights, with an obligation to review all applications for asylum, we have immediately passed his application on to the relevant department in Quito.

While the department assesses Mr Assange’s application, Mr Assange will remain at the embassy, under the protection of the Ecuadorian Government.

The decision to consider Mr Assange’s application for protective asylum should in no way be interpreted as the Government of Ecuador interfering in the judicial processes of either the United Kingdom or Sweden."


Those with lengthy memories will recall the shooting of PC Yvonne Fletcher in London on 17th April 1984.  She was shot by someone from within the Libyan Embassy.  Whilst the Police surrounded the embassy for several days afterwards, the British government eventually allowed the Libyan personnel to depart and then severed diplomatic relations with Libya.  British public opinion was angry and would undoubtedly have favoured the Police entering the embassy with a view to searching for weapons etc. and, interestingly, Lord Denning spoke * in Parliament about it:

"All I would say is that, as I view this Vienna Convention, and as I view the Diplomatic Privileges Act, they did not give privilege to those criminals who were shooting from the embassy in St. James's Square."

Earlier this year, the Libyan Prime Minister laid a wreath at the site where PC Fletcher was killed.

Addendum 1:  Readers may wish to see Francis Fitzgibbon QC's Nothing like the Sun blog - "Julian the asylum seeker"

Ecuadorian Ambassador 

Addendum 2:  See Head of Legal blog 26th June - "Julian Assange: can he get out of this?"

Footnote:

* Lord Denning - High Court Judge 1944 - Master of the Rolls from 1962 to 1982.

11 comments:

  1. Ouseley J's bail conditions judgment here - http://www.scribd.com/YODA3737/d/97665095-Assange-bail-conditions-judgment

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  2. Bienvenido a Ecuador Mr. Julian Assange!

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  3. I heard Clive Goodman on the radio at lunchtime saying that breaching bail (ie bail conditions) was an offence. And he is the BBC legal correspondent! Obviously he had spent no time in a magistrates court. Failure to answer to bail is an offence punishable by imprisonment. AS far as I know Assange has not failed to answer his bail as yet - though that would arise if he is granted asylum. The police cannot arrest him so I suppose the 24 hour rule will not apply as yet?

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  4. Thank you to "A Barrister in London" for the link to Ouseley J's bail decision - here it is "live"

    Bail decision in Assange [2010] EWHC 3473 (Admin

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  5. A little more on "sureties." The obligation of a surety extends only to securing the individual surrenders to custody at any times required (e.g. attendance at court etc). A surety is not responsible for preventing any other defaults while the individual is on bail. A surety has a personal duty to ensure that the individual surrenders to custody at the time and place specified. In the event of failure to surrender either the full amount of the "recognisance" (i.e. the sum fixed)or part of it may be ordered to be paid. If the money is not paid immediately or within a time set, the surety can be committed to prison in default of payment.

    Legal representatives should not "tender" a surety unless they have checked that the person would be able to meet his or financial obligations: see R v Birmingham Crown Court ex parte Rashid Ali [1999] Crim LR 504. The court would require evidence of financial resources before agreeing to accept a surety.

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  6. This is a great article. You have touched on some really interesting points

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  7. “3.The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”

    Surely the answer is a sedan chair.

    That is without doubt a means of transport, and can be taken out through the embassy door and into a van, and thence to an aeroplane.

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