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Julian Assange extradition appeal at supreme court - day two live blog Julian Assange extradition appeal at supreme court - day two live blog
(40 minutes later)
2.44pm: Lord Brown seems quite sceptical about Montgomery's main point. He says that they have already agreed that the phrase "judicial authorities" can have different meanings in different documents, implying that ministers may not have meant to include public prosecutors under that phrase in the Extradition Act 2003. Montgomery says that the point of the Extradition Act was to give effect to the EAW framework, so it follows that the phrase would mean the same in both.
2.37pm: Montgomery says:
It is crystal clear that the government did not accept that it was under any obligation to change the characteristics of the persons from whom they were at that time prepared to receive warrants, and those people included prosecutors.
2.36pm: Montgomery is essentially saying that even though government ministers sound as if they back a law that only allows judges or magistrates to issue extradition warrants, in actual fact the law itself, the Extradition Act 2003, allows public prosecutors to play that role too.
2.33pm: Lord Kerr points out that the same minister who said he saw no reason for the government to specify an independent judge, rather than a non-independent public prosecutor, should issue warrants, made that exact case a year before to a different Commons committee. "My lord, I hold no brief for the minister," says Montgomery.
In the Lords, the bill faced opposition on the same point. Lord Bassam, the minister in the Lords, said the government was going to "resist" this. "We expect incoming EU extradition requests to come from exactly the same sources and personnel as is the current position," Bassam said, according to Montgomery.
Lord Brown is getting quite impatient as the justices are directed from document to document by Montgomery.
Bassam's comments to the Lords refer to "judges and magistrates" but in the next paragraph the minister spoke more widely about "judicial authorities".
"Anyone listening to this would be left with the impression that it was going to be some sort of judge," says Phillips.
Montgomery says the language is asserting a clear government policy that there will be no change to the people who will request extradition warrants.
There's nothing here that would allow … the obligation under the TEU [Treaty on European Union] to give effect to the framework decision to be violated, because overriding all parliamentary scrutiny is the obligation on the United Kingdom to give effect to the framework decision.
2.22pm: Montgomery says a minister (she does not name him) told MPs at the time: we expect the European arrest warrant to be issued in future by exactly the same authorities that issued extradition requests before.
2.09pm: When the extradition bill was going through parliament, opposition MPs and peers said they believed the EAW framework decision allowed a public prosecutor who was not independent to make an extradition request - and despite that the government refused to redraft the bill, Montgomery says. She is implying that the government was happy with that, that that was what the government wanted the bill - now the Extradition Act 2003 - to say.2.09pm: When the extradition bill was going through parliament, opposition MPs and peers said they believed the EAW framework decision allowed a public prosecutor who was not independent to make an extradition request - and despite that the government refused to redraft the bill, Montgomery says. She is implying that the government was happy with that, that that was what the government wanted the bill - now the Extradition Act 2003 - to say.
2.03pm: The court hearing has resumed with Clare Montgomery continuing to outline Sweden's arguments that Julian Assange should be extradited.2.03pm: The court hearing has resumed with Clare Montgomery continuing to outline Sweden's arguments that Julian Assange should be extradited.
2.01pm: Robert Booth has summed up some of this morning's discussion:2.01pm: Robert Booth has summed up some of this morning's discussion:
Montgomery set out her case that public prosecutors were allowed to request extradition through European arrest warrants as a "judicial authority".Montgomery set out her case that public prosecutors were allowed to request extradition through European arrest warrants as a "judicial authority".
She mounted a detailed examination of the drafting of the European extradition law and its requirement of a "authorite judiciaire" authority to issue arrest warrants.She mounted a detailed examination of the drafting of the European extradition law and its requirement of a "authorite judiciaire" authority to issue arrest warrants.
Montgomery attacked "all this rhetoric" by Assange's legal team "that suggests our construction makes the issuing of an arrest warrant a judge-free zone because in each case there will be an underlying court decision".Montgomery attacked "all this rhetoric" by Assange's legal team "that suggests our construction makes the issuing of an arrest warrant a judge-free zone because in each case there will be an underlying court decision".
She said 11 European states have decreed that prosecutors would issue arrest warrants and that nine said they would only use them, adding that prosecutors are more likely to take into account whether a European arrest warrant is proportional than a court would do.She said 11 European states have decreed that prosecutors would issue arrest warrants and that nine said they would only use them, adding that prosecutors are more likely to take into account whether a European arrest warrant is proportional than a court would do.
Montgomery said it was clear that different countries defined authorities capable of requesting arrest warrants differently. In Finland it includes the Ministry of Justice, in Denmark "public prosecution authorities", in Germany "competent judicial authorities" and in Sweden the "prosecutor general or any other prosecutor".Montgomery said it was clear that different countries defined authorities capable of requesting arrest warrants differently. In Finland it includes the Ministry of Justice, in Denmark "public prosecution authorities", in Germany "competent judicial authorities" and in Sweden the "prosecutor general or any other prosecutor".
"There is no absolute consistency," said Lord Philips."There is no absolute consistency," said Lord Philips.
1.34pm: Here is a summary of today's events so far.1.34pm: Here is a summary of today's events so far.
• Clare Montgomery, QC for Sweden, has been attempting to prove that the phrase "judicial authorities" in the European arrest warrant (EAW) framework agreement signed up to by the UK, Sweden, and the rest of the EU, was always meant to include prosecutors as well as judges in some countries.• Clare Montgomery, QC for Sweden, has been attempting to prove that the phrase "judicial authorities" in the European arrest warrant (EAW) framework agreement signed up to by the UK, Sweden, and the rest of the EU, was always meant to include prosecutors as well as judges in some countries.
• This matters because yesterday Dinah Rose, Julian Assange's QC, argued that it only encompassed judges, and therefore Sweden's system, where a prosecutor asks for a warrant for extradition, was invalid.• This matters because yesterday Dinah Rose, Julian Assange's QC, argued that it only encompassed judges, and therefore Sweden's system, where a prosecutor asks for a warrant for extradition, was invalid.
• Montgomery said that in Sweden's case there were underlying court decisions before a prosecutor asked for someone's extradition. She argued that it was relatively common in the EU for a prosecutor to play the role that person does in Sweden. And she said that the assumption that the person asking for an extradition warrant had to be impartial - as Rose maintained yesterday - was "just wrong".• Montgomery said that in Sweden's case there were underlying court decisions before a prosecutor asked for someone's extradition. She argued that it was relatively common in the EU for a prosecutor to play the role that person does in Sweden. And she said that the assumption that the person asking for an extradition warrant had to be impartial - as Rose maintained yesterday - was "just wrong".
• The hearing continues this afternoon. Once Montgomery has finished, Rose gets the chance to reply. The justices are not expected to hand down their verdict for weeks.• The hearing continues this afternoon. Once Montgomery has finished, Rose gets the chance to reply. The justices are not expected to hand down their verdict for weeks.
1.02pm: The court adjourns for lunch.1.02pm: The court adjourns for lunch.
1.00pm: Rose and Montgomery disagree over whether "proportionality" needs to be considered in this case, Montgomery says. She thinks it doesn't; Rose thinks it does.1.00pm: Rose and Montgomery disagree over whether "proportionality" needs to be considered in this case, Montgomery says. She thinks it doesn't; Rose thinks it does.
12.47pm: Has no other national court ever thought about this problem, Mance asks.12.47pm: Has no other national court ever thought about this problem, Mance asks.
Ireland, Cyprus and Italy have all "grappled with this and said it's acceptable under the framework decision", Montgomery says.Ireland, Cyprus and Italy have all "grappled with this and said it's acceptable under the framework decision", Montgomery says.
12.41pm: The assumption that there needs to be an impartial decision to make an arrest warrant "is just wrong", Montgomery says. A partial decision is much more common, she says. She uses the example of a policeman seeking a suspected criminal's arrest.12.41pm: The assumption that there needs to be an impartial decision to make an arrest warrant "is just wrong", Montgomery says. A partial decision is much more common, she says. She uses the example of a policeman seeking a suspected criminal's arrest.
"So we're wasting our time getting it done by a judge," one of the justices says."So we're wasting our time getting it done by a judge," one of the justices says.
"It's certainly not necessary," says Montgomery."It's certainly not necessary," says Montgomery.
12.24pm: Rose interrupts to say that Montgomery is quoting from documents her side has not seen.12.24pm: Rose interrupts to say that Montgomery is quoting from documents her side has not seen.
12.14pm: Robert Booth tweets:12.14pm: Robert Booth tweets:
Lord Mance is not sure she's reading the drafting right. Montgomery replies that either way "judicial authority" doesn't have to mean courtLord Mance is not sure she's reading the drafting right. Montgomery replies that either way "judicial authority" doesn't have to mean court
— Robert Booth (@Robert_Booth) February 2, 2012— Robert Booth (@Robert_Booth) February 2, 2012
"Depends how you read it," says Lord Mance and thereby seems to sum up the whole case #Assange"Depends how you read it," says Lord Mance and thereby seems to sum up the whole case #Assange
— Robert Booth (@Robert_Booth) February 2, 2012— Robert Booth (@Robert_Booth) February 2, 2012
12.05pm: Montgomery discusses parliament's consideration of the EAW agreement in November 2001. "There is nothing in there that suggests any anxiety" about the term judicial authorities including a prosecutor - "not a word", Montgomery says.12.05pm: Montgomery discusses parliament's consideration of the EAW agreement in November 2001. "There is nothing in there that suggests any anxiety" about the term judicial authorities including a prosecutor - "not a word", Montgomery says.
The original French draft of the EAW agreement uses the term "judicial decisions", she says.The original French draft of the EAW agreement uses the term "judicial decisions", she says.
She attempts to pronounce the Dutch version too, which means the same thing, she says. "Doesn't sound Dutch," Lord Dyson says. Montgomery spells it out.She attempts to pronounce the Dutch version too, which means the same thing, she says. "Doesn't sound Dutch," Lord Dyson says. Montgomery spells it out.
"Do you know what the German is?" one of the justices asks. "Or Spanish...?""Do you know what the German is?" one of the justices asks. "Or Spanish...?"
11.47am: There was never any concern about prosecutors being included in the phrase "judicial authorities" when the EAW agreement was drafted, Montgomery says.11.47am: There was never any concern about prosecutors being included in the phrase "judicial authorities" when the EAW agreement was drafted, Montgomery says.
She says it referred to "judicial authorities" and permitted each member state to nominate exactly whom this term covered (ie including prosecutors in some countries). Elsewhere the authors used the word "court" where they wanted to use the word "court", Montgomery says.She says it referred to "judicial authorities" and permitted each member state to nominate exactly whom this term covered (ie including prosecutors in some countries). Elsewhere the authors used the word "court" where they wanted to use the word "court", Montgomery says.
How many countries can we identify that have the French tradition, where prosecutors have a judicial role, asks Lord Mance. "Certainly all the Benelux countries … It's a relatively common feature of continental practice," Montgomery says.How many countries can we identify that have the French tradition, where prosecutors have a judicial role, asks Lord Mance. "Certainly all the Benelux countries … It's a relatively common feature of continental practice," Montgomery says.
Lord Brown suggests that she doesn't need to prove that Sweden needs to have made an underlying court judgment before a prosecutor asks for a warrant. "Even if [there] wasn't, so what? Your case is: 'So what?', isn't it?" he asks.Lord Brown suggests that she doesn't need to prove that Sweden needs to have made an underlying court judgment before a prosecutor asks for a warrant. "Even if [there] wasn't, so what? Your case is: 'So what?', isn't it?" he asks.
Montgomery agrees: "My case is: 'So what?'" But she goes on to say that the EAW framework decision does require an underlying court decision on the face of it - after that the prosecutor makes the next move in some countries such as Sweden.Montgomery agrees: "My case is: 'So what?'" But she goes on to say that the EAW framework decision does require an underlying court decision on the face of it - after that the prosecutor makes the next move in some countries such as Sweden.
11.30am: Robert Booth adds:11.30am: Robert Booth adds:
Montgomery seems confident there was, but this seems to have got #Assange team animatedMontgomery seems confident there was, but this seems to have got #Assange team animated
— Robert Booth (@Robert_Booth) February 2, 2012— Robert Booth (@Robert_Booth) February 2, 2012
Montgomery's level of textual analysis of legislation rivals Rose's. One reference to "getting" a warrant leads Lord Phillips to ask: "What does 'get' mean?" He thinks Montgomery is reading too much in to it to say it means "go to a court and get".Montgomery's level of textual analysis of legislation rivals Rose's. One reference to "getting" a warrant leads Lord Phillips to ask: "What does 'get' mean?" He thinks Montgomery is reading too much in to it to say it means "go to a court and get".
11.24am: Robert Booth adds:11.24am: Robert Booth adds:
Lord Phillips questioning whether in #Assange case there was any underlying court decision, as Montgomery says there must beLord Phillips questioning whether in #Assange case there was any underlying court decision, as Montgomery says there must be
— Robert Booth (@Robert_Booth) February 2, 2012— Robert Booth (@Robert_Booth) February 2, 2012
11.23am: Robert Booth tweets:11.23am: Robert Booth tweets:
Montgomery not claiming #Assange warrant system was "a judge free zone", rather there are underlying court decisions in every such case.Montgomery not claiming #Assange warrant system was "a judge free zone", rather there are underlying court decisions in every such case.
— Robert Booth (@Robert_Booth) February 2, 2012— Robert Booth (@Robert_Booth) February 2, 2012
11.12am: Phillips asks for a chronology of all the various incarnations of the European extradition agreements, which he says would be "enormously helpful". (I think it would probably be helpful for us too.)11.12am: Phillips asks for a chronology of all the various incarnations of the European extradition agreements, which he says would be "enormously helpful". (I think it would probably be helpful for us too.)
11.06am: Referring to the replacement of the 1985 Schengen treaty's provisions on extradition by the EAW, Montgomery says it is hardly likely that countries that already used public prosecutors in this way should abandon that in a framework decision designed to speed up extradition and make it easier.11.06am: Referring to the replacement of the 1985 Schengen treaty's provisions on extradition by the EAW, Montgomery says it is hardly likely that countries that already used public prosecutors in this way should abandon that in a framework decision designed to speed up extradition and make it easier.
The Schengen agreement used the phrase "competent judicial authorities".The Schengen agreement used the phrase "competent judicial authorities".
She lists countries that include public prosecutors in this definition. But Lord Phillips, the president of the supreme court, points out that some countries specifically separate judicial authorities "and other competent authorities", suggesting that for them prosecutors might not be part of judicial authorities. "There is no consistency," Phillips says.She lists countries that include public prosecutors in this definition. But Lord Phillips, the president of the supreme court, points out that some countries specifically separate judicial authorities "and other competent authorities", suggesting that for them prosecutors might not be part of judicial authorities. "There is no consistency," Phillips says.
To remind you, Assange's legal team is saying that a public prosecutor such as Sweden's is not a "judicial authority" in the way the EAW agreement intended, and so cannot issue a valid extradition warrant.To remind you, Assange's legal team is saying that a public prosecutor such as Sweden's is not a "judicial authority" in the way the EAW agreement intended, and so cannot issue a valid extradition warrant.
Montgomery is trying to show that public prosecutors have always been seen as part of the relevant "judicial authorities" in some European countries.Montgomery is trying to show that public prosecutors have always been seen as part of the relevant "judicial authorities" in some European countries.
10.48am: Clare Montgomery resumes putting Sweden's case against Assange.10.48am: Clare Montgomery resumes putting Sweden's case against Assange.
She wants to discuss the legislation and agreements that were replaced by the European arrest warrant (EAW) agreement in 2002.She wants to discuss the legislation and agreements that were replaced by the European arrest warrant (EAW) agreement in 2002.
In the 1957 European convention on extradition public prosecutors were explicitly made part of the "judicial authorities" who could ask for extradition, she says.In the 1957 European convention on extradition public prosecutors were explicitly made part of the "judicial authorities" who could ask for extradition, she says.
The EAW framework used the same French language phrase as the 1957 convention, Montgomery says.The EAW framework used the same French language phrase as the 1957 convention, Montgomery says.
10.40am: Dinah Rose, Julian Assange's QC, starts by reporting on some "homework" that the court had set her yesterday. She says Hansard shows that in the Commons and in the Lords it was made clear that the extradition bill - which became the Extradition Act 2003 - was amended to reflect the concerns of the Commons home affairs select committee that the bill should read "judicial authorities" rather than just "authorities".10.40am: Dinah Rose, Julian Assange's QC, starts by reporting on some "homework" that the court had set her yesterday. She says Hansard shows that in the Commons and in the Lords it was made clear that the extradition bill - which became the Extradition Act 2003 - was amended to reflect the concerns of the Commons home affairs select committee that the bill should read "judicial authorities" rather than just "authorities".
As mentioned, Montgomery was given a tougher time yesterday than Rose. Robert Booth notes that Montgomery also got a tougher time from the judges when she acted for Sweden in the high court - but she won that case.As mentioned, Montgomery was given a tougher time yesterday than Rose. Robert Booth notes that Montgomery also got a tougher time from the judges when she acted for Sweden in the high court - but she won that case.
10.31am: All rise as the supreme court justices file in to take their seats.10.31am: All rise as the supreme court justices file in to take their seats.
10.24am: Julian Assange, his legal team, Sweden's lawyers, and others, are all taking their places in the supreme court chamber now.10.24am: Julian Assange, his legal team, Sweden's lawyers, and others, are all taking their places in the supreme court chamber now.
9.26am: Today is the final day of Julian Assange's appeal to the supreme court against his extradition to Sweden to face allegations of rape and sexual assault.9.26am: Today is the final day of Julian Assange's appeal to the supreme court against his extradition to Sweden to face allegations of rape and sexual assault.
The WikiLeaks founder denies the allegations.The WikiLeaks founder denies the allegations.
Yesterday Assange's QC, Dinah Rose, put her case to the seven justices that because in Sweden a prosecutor requests an arrest warrant rather than a judge, that made the warrant Sweden issued against Assange invalid. She made a dense legal argument based on close textual analysis of the European arrest warrant agreements, the Extradition Act 2003 which incorporates that into British law, and the 1957 European convention on extradition which preceded it.Yesterday Assange's QC, Dinah Rose, put her case to the seven justices that because in Sweden a prosecutor requests an arrest warrant rather than a judge, that made the warrant Sweden issued against Assange invalid. She made a dense legal argument based on close textual analysis of the European arrest warrant agreements, the Extradition Act 2003 which incorporates that into British law, and the 1957 European convention on extradition which preceded it.
Here is a clip of Rose putting her case.Here is a clip of Rose putting her case.

Clare Montgomery, speaking for Sweden, began to put her side yesterday afternoon, taking issue with Rose's claims that the Swedish prosecutor could not be impartial and claiming that the authors of the European arrest warrant agreement had always intended that prosecutors as well as judges would seek warrants in many countries.

Clare Montgomery, speaking for Sweden, began to put her side yesterday afternoon, taking issue with Rose's claims that the Swedish prosecutor could not be impartial and claiming that the authors of the European arrest warrant agreement had always intended that prosecutors as well as judges would seek warrants in many countries.

Montgomery gave a much less confident performance than Rose, and came under harsher questioning from the justices. But it is unclear at this stage if Rose's arguments can get past the fact that the UK, through the European arrest warrant framework, does have an extradition agreement with Sweden, and has therefore already implicitly agreed to respect the way Sweden issues warrants for extradition.Montgomery gave a much less confident performance than Rose, and came under harsher questioning from the justices. But it is unclear at this stage if Rose's arguments can get past the fact that the UK, through the European arrest warrant framework, does have an extradition agreement with Sweden, and has therefore already implicitly agreed to respect the way Sweden issues warrants for extradition.
Here are some clips from Rose and Montgomery's submissions yesterday.Here are some clips from Rose and Montgomery's submissions yesterday.


Montgomery will complete her submission today, followed by a reply from Rose. The justices are then likely to take a few weeks to hand down their decision.


Montgomery will complete her submission today, followed by a reply from Rose. The justices are then likely to take a few weeks to hand down their decision.

The justices hearing the appeal are Lord Phillips, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr and Lord Dyson.The justices hearing the appeal are Lord Phillips, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr and Lord Dyson.
You can watch the proceedings live here. The hearing is due to start at 10.30am and go on till 4pm.You can watch the proceedings live here. The hearing is due to start at 10.30am and go on till 4pm.
Here is a great piece by my colleague Esther Addley giving the background to the case.Here is a great piece by my colleague Esther Addley giving the background to the case.
And this is my colleague Robert Booth's report on yesterday's hearing. He will be tweeting from the court again today.And this is my colleague Robert Booth's report on yesterday's hearing. He will be tweeting from the court again today.
Comments have not been switched on on this blog for legal reasons.Comments have not been switched on on this blog for legal reasons.