Thursday 14 June 2012

Assange - Supreme Court rejects application to re-open

By way of a short statement, the Supreme Court has dismissed the application made by Julian Assange that his case be re-opened on the basis that a majority of their Lordships had decided the case on a basis which had not been argued before the court.

The grounds of the application were that the majority of the Court decided the appeal on a ground that Ms Rose QC, Mr Assange’s counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision.  When interpreting a treaty, Article 31(3)(b) permits consideration of "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ..."

See the Supreme Court's announcement of 14th June 2012 and the earlier post on this blog of 30th May.

The seven Justices who
heard the appeal on 1-2 February 2012 and gave judgment on 30 May 2012 considered the appellant's written application.  Whilst the decision of 30th May was by a majority, the rejection of the application to re-open was unanimous.

The Court ordered that, with the agreement of the respondent and pursuant to section 36(3)(b) of the Extradition Act 2003, the required period for extradition shall not commence until the 14th day after today.

The terse wording of the rejection seems to indicate a degree of irritation with the whole application.  The wording states:   "Had Ms Rose been minded to challenge the applicability of the (Vienna) Convention, or the applicability of State practice as an aid to the construction of the Framework Decision, or the relevance and admissibility of the material relating to State practice, she had the opportunity to do so. She made no such challenge."The court added that the application was "without merit."

Ms Rose QC succeeded on one small point.  Para 83 of the judgment referred to offences of which Mr Assange “stands charged”. This was not accurate as charges had not actually been brought against Mr Assange. The judgment was to be corrected to read “offences in respect of which his extradition is sought”.

The submission of written applications and the short statement of rejection is unsatisfactory since it does little to give real transparency to the judicial process.  For instance, what were the detailed arguments put forward on Assange's behalf?  It would have been good to know and also to have a detailed judgment as to why those arguments did not find favour with the court.  It is via open justice - the ability of the public to know the arguments put to a court and the publication of judgments - that the integrity of the system of justice is assured.

It remains to be seen whether the matter rests here or whether there is some form of challenge on human rights grounds raised with the European Court of Human Rights at Strasbourg.


  1. Good!
    Let him go to Sweden to face the prosecution.
    It is cases like this that make 'Britain' such a dirty word in the EU.
    We can't export terrorists, murderers or anyone thanks to lawyers fighting trivial points.
    Europe needs to work together to freely exchnage suspects to face trial when there is some evidence of crime and stop this lengthy time wasting that make such a mockery of the Human Righst Act.

  2. There may or may not be a prosecution in Sweden. At the moment, Assange has not been charged.

    Europe does indeed need to work together and that is what the European Arrest Warrant system is about even if there are serious problems with it.

    Assange did not argue his case on the basis of "human rights." His argument was that a prosecutor should not be regarded as a judicial authority. It was a question of interpretation of the EU's framework directive.

    It is not in the interests of any client for the lawyer to make "trivial points." The points raised in these case are serious questions and thankfully we are able to get them raised via fearless counsel and we have an independent judiciary to give an answer. They are points which, I feel sure, you would wish to have raised on your behalf if you were facing extradition.

  3. Readers wishing to see more about the European Arrest Warrant and its problems could do worse than visit Fair Trials International