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Julian Assange loses extradition case – live coverage Julian Assange loses extradition case – live coverage
(40 minutes later)
10.04am: Here is a summary of this morning's events:
• Julian Assange has lost his appeal against extradition to Sweden at the
supreme court. By a majority of five to two, the justices decided that a public prosecutor was "judicial authority" and that his arrest warrant therefore had been lawfully issued.
• But lawyers for the WikiLeaks founder were given two weeks to decide whether to challenge one of the points made in the judgment, and Assange's extradition will be stayed at least until then. Dinah Rose QC, for Assange, said that the justices had made their decision based on the Vienna Convention on the Law of Treaties - but the provisions of that convention had not been raised during the hearing.
• Legal commentator Joshua Rozenberg said this meant there was "everything to play for still", and it would be "very embarrassing" if the supreme court had to reopen the case on the basis that "they might have considered something which they gave the parties no opportunity to argue".
• In brief, the judges ruled that the the UK had signed up to the European framework on extradition in order to help create a single system for surrendering accused people, and that it was always intended that the11 EU member states that allow prosecutors to issue extradition orders – as Sweden, but not the UK, does – would be able to continue doing so.
• Lord Mance, one of two dissenting justices, said the wording of the framework decision was ambiguous and so it was appropriate to consider what ministers said at the time, which was that it would be a judge, court or magistrate that issued the order.
• Assange was not in court. His solicitor, Gareth Peirce, told the Guardian's Owen Bowcott that he was stuck in traffic.
9.42am: Legal commentator Joshua Rozenberg was just on BBC News talking about the request by Julian Assange's QC, Dinah Rose, for two weeks to decide whether to ask the supreme court to reopen the case. He said:
This is a very unusual thing. It's not happened since this court was set up. It happened in the Pinochet case in the House of Lords. Very unusual, and means there's everything left to play for still.
He said that since Assange was not in court his lawyers had not been able to take instructions from him yet regarding what he wanted them to do. "We're waiting to see what he says. In the meantime he can stay in this country for at least two weeks, while they consider making this unprecedented application to reopen the case on the basis that it was decided on a point of law in the Vienna Convention on the Interpretation of Treaties that was simply not argued by either side and which the court gave no notice to either the Crown Prosecution Service, representing the Swedish authorities, or Mr Assange's lawyers, that they were considering taking into account."
Rozenberg added:
It would be very embarrassing if the supreme court felt the need to reopen the case and it's extraordinary, isn't it, that they might have considered something which they gave the parties no opportunity to argue. From time to time judges do their research and they add points, minor points, that have not been considered, but it appears that the decisive point in this case was one that wasn't argued, and that's something which is pretty unusual, and that's what prompted this unexpected intervention from Dinah Rose which took Lord Phillips so much by surprise that he mixed her up with the other counsel, Clare Montgomery.
9.41am: Here is the judgment in full (pdf).
9.34am: Here are the supreme court's reasons for its judgment:
Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment the supreme court is not bound as a matter of European law to interpret Part 1 of the 2003 [Extradition] Act in a manner which accords with the framework decision, but the majority held that the court should do so in this case.
The immediate objective of the framework decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase "judicial authority". There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations.
An earlier draft of the framework decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval.
Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express, (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW, (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors and that the draft referred to "competent judicial authority" which envisaged different types of judicial authority involved in the process of executing the warrant.
Lord Dyson preferred not to infer the reasons for the change and did not find the additional reasons persuasive. Lord Walker and Lord Brown also found these reasons less compelling. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required.
Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase "judicial authority" had the same meaning as it had in the framework decision. Lord Kerr remarked that that it would be astonishing if parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the framework decision.
Lord Mance, dissenting, held that the common law presumption that parliament intends to give effect to the UK's international obligations was always subject to the will of parliament as expressed in the language of the statute. In this case, the correct interpretation of "judicial authority" in the framework decision, a question of EU law, was far from certain. Thus if parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the framework decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate.
Lady Hale agreed with Lord Mance that the meaning of the framework decision was unclear and that the supreme court should not construe a UK statute contrary both to its natural meaning and to the evidence of what parliament thought it was doing at the time.
9.31am: The supreme court has just sent its full judgment. The press statement reads:
The issue is whether an European arrest warrant ("EAW") issued by a public prosecutor is a valid Part 1 EAW issued by a "judicial authority" for the purpose and within the meaning of sections 2 and 66 of the Extradition Act 2003.
By a majority the court has concluded that the Swedish public prosecutor was a "judicial authority" within the meaning of both the framework decision and the Extradition Act.
It follows that the request for Mr Assange's extradition has been lawfully made and his appeal against extradition is accordingly dismissed.
It adds:
The supreme court by a majority of five to two (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act.
9.27am: Assange was not in court today.9.27am: Assange was not in court today.
9.25am: Rose asks if the extradition can be stayed for two weeks too. Phillips says that is a reasonable request and grants that.9.25am: Rose asks if the extradition can be stayed for two weeks too. Phillips says that is a reasonable request and grants that.
9.24am: Lord Phillips gives her two weeks to make an application to reopen this case.9.24am: Lord Phillips gives her two weeks to make an application to reopen this case.
9.23am: Dinah Rose QC, for Julian Assange, says she has not had time to study the decision properly yet but she says it means that a majority of members of this court have made their decision based on the Vienna Convention on the Law of Treaties - but that was never brought up at the time, she says.9.23am: Dinah Rose QC, for Julian Assange, says she has not had time to study the decision properly yet but she says it means that a majority of members of this court have made their decision based on the Vienna Convention on the Law of Treaties - but that was never brought up at the time, she says.
She is considering an application to argue that this matter should be "reopened", Rose says.She is considering an application to argue that this matter should be "reopened", Rose says.
9.22am: The Swedish public prosecutor is a judicial authority. The request for Assange's extradition has been lawfully made and his appeal has been dismissed, Phillips says.9.22am: The Swedish public prosecutor is a judicial authority. The request for Assange's extradition has been lawfully made and his appeal has been dismissed, Phillips says.
9.22am: That means Julian Assange has lost his case.9.22am: That means Julian Assange has lost his case.
9.22am: Lady Hale and Lord Mance did not agree, he says.9.22am: Lady Hale and Lord Mance did not agree, he says.
9.20am: In French the words judicial authority can be used to mean a public prosecutor, Phillips says. Many countries use public prosecutors. The majority of justices agree that this means a public prosecutor is included in the Extradition Act.9.20am: In French the words judicial authority can be used to mean a public prosecutor, Phillips says. Many countries use public prosecutors. The majority of justices agree that this means a public prosecutor is included in the Extradition Act.
9.20am: Phillips says the point of law - does a prosecutor have the right to order extradition or must that be done by a judge - had not been simple to resolve and the decision on the supreme court was 5-2.9.20am: Phillips says the point of law - does a prosecutor have the right to order extradition or must that be done by a judge - had not been simple to resolve and the decision on the supreme court was 5-2.
9.18am: Phillips runs through the brief recent history of the European arrest warrant system.9.18am: Phillips runs through the brief recent history of the European arrest warrant system.
This introduced a new rule whereby the state requesting extradition no longer had to prove the case to the other state.This introduced a new rule whereby the state requesting extradition no longer had to prove the case to the other state.
9.17am: Lord Phillips of Worth Matravers, the president of the supreme court, begins speaking.9.17am: Lord Phillips of Worth Matravers, the president of the supreme court, begins speaking.
He says the Swedish extradition request has raised a point of law for the court to address. That has nothing to do with the actual accusations against Assange, he says.He says the Swedish extradition request has raised a point of law for the court to address. That has nothing to do with the actual accusations against Assange, he says.
9.17am: All rise as the justices enter the court.9.17am: All rise as the justices enter the court.
9.15am: Dinah Rose QC and Assange's legal team are taking their seats.9.15am: Dinah Rose QC and Assange's legal team are taking their seats.
9.12am: BBC News is showing pictures of pro-Assange supporters outside the supreme court, carrying placards backing the WikiLeaks founder.9.12am: BBC News is showing pictures of pro-Assange supporters outside the supreme court, carrying placards backing the WikiLeaks founder.
9.08am: The live feed from the supreme court has begun. You can watch it here.9.08am: The live feed from the supreme court has begun. You can watch it here.
9.03am: Esther Addley tweets from court:9.03am: Esther Addley tweets from court:
20-30 journalists in court, all on laptops, iPads, smartphones. Similar scene on public benches too, obv. #Assange20-30 journalists in court, all on laptops, iPads, smartphones. Similar scene on public benches too, obv. #Assange
— esther addley (@estheraddley) May 30, 2012— esther addley (@estheraddley) May 30, 2012
9.00am: Owen Bowcott tweets from the supreme court:9.00am: Owen Bowcott tweets from the supreme court:
More cameras than pro-Assange demonstrators outside. Usual Rolls Royce service inside supreme ct as machinery of justice glides into place.More cameras than pro-Assange demonstrators outside. Usual Rolls Royce service inside supreme ct as machinery of justice glides into place.
— Owen Bowcott (@owenbowcott) May 30, 2012— Owen Bowcott (@owenbowcott) May 30, 2012
8.52am: Esther Addley tweets from the supreme court:8.52am: Esther Addley tweets from the supreme court:
Team #Assange - Vaughan Smith, Gavin McFadyen, John Pilger, Kristin Hrafnsson - arrive at court. I haven't seen JA tho assume he's hereTeam #Assange - Vaughan Smith, Gavin McFadyen, John Pilger, Kristin Hrafnsson - arrive at court. I haven't seen JA tho assume he's here
— esther addley (@estheraddley) May 30, 2012— esther addley (@estheraddley) May 30, 2012
8.46am: Karen Todner of Kaim Todner Solicitors, which has fought many extradition cases, has told the Associated Press she thinks Assange's prospects of success have increased:8.46am: Karen Todner of Kaim Todner Solicitors, which has fought many extradition cases, has told the Associated Press she thinks Assange's prospects of success have increased:
When he first started out, I thought: "He hasn't gotten much of a chance," but now I'm much more hopeful. I would say that in the last few months there has definitely been a swing in favor of defendants in relation to extradition.When he first started out, I thought: "He hasn't gotten much of a chance," but now I'm much more hopeful. I would say that in the last few months there has definitely been a swing in favor of defendants in relation to extradition.
But she suggested that if Assange wins Sweden could reissue the extradition warrant through a judge.But she suggested that if Assange wins Sweden could reissue the extradition warrant through a judge.
And a spokewoman for Sweden's prosecutors told Reuters that if he wins the Swedish arrest warrant will still be valid in any other European country bar Britain.And a spokewoman for Sweden's prosecutors told Reuters that if he wins the Swedish arrest warrant will still be valid in any other European country bar Britain.
In Stockholm, former senior prosecutor Sven-Erik Alhem expressed frustration with the delays, saying that European arrest warrants "should work efficiently and rapidly" and that he was surprised that the legal wrangling in Britain had dragged on for a year and a half. "If I were in his shoes, I would have been going to Sweden at once to get rid of this horrible situation where an investigation has been going on for so long," Alhem said.In Stockholm, former senior prosecutor Sven-Erik Alhem expressed frustration with the delays, saying that European arrest warrants "should work efficiently and rapidly" and that he was surprised that the legal wrangling in Britain had dragged on for a year and a half. "If I were in his shoes, I would have been going to Sweden at once to get rid of this horrible situation where an investigation has been going on for so long," Alhem said.
8am: Good morning. The supreme court will rule this morning on whether Julian Assange should be extradited to Sweden to face allegations of rape and sexual assault. The WikiLeaks founder denies the accusations.8am: Good morning. The supreme court will rule this morning on whether Julian Assange should be extradited to Sweden to face allegations of rape and sexual assault. The WikiLeaks founder denies the accusations.
The judgment will be announced at 9.15am. Lord Phillips of Worth Matravers, the president of the supreme court, will give a summary of the point of law raised by the case, the court's decision, and a brief explanation of why it has reached that decision.The judgment will be announced at 9.15am. Lord Phillips of Worth Matravers, the president of the supreme court, will give a summary of the point of law raised by the case, the court's decision, and a brief explanation of why it has reached that decision.
Today's ruling does not deal with the substance of the accusations – which relate to a trip Assange took to Sweden in 2010, after which he was accused by two women with whom he had had sex of four offences of unlawful coercion and sexual misconduct including rape.Today's ruling does not deal with the substance of the accusations – which relate to a trip Assange took to Sweden in 2010, after which he was accused by two women with whom he had had sex of four offences of unlawful coercion and sexual misconduct including rape.
Instead it relates to one specific question: can a prosecutor rather than a judge legally order someone's extradition?Instead it relates to one specific question: can a prosecutor rather than a judge legally order someone's extradition?
In Britain generally only judges can approve arrest warrants. But the warrant for Assange was issued by Sweden's public prosecutor, as is normal there.In Britain generally only judges can approve arrest warrants. But the warrant for Assange was issued by Sweden's public prosecutor, as is normal there.
Assange's lawyers argue that the Swedish system is unfair because it puts the power to issue arrest warrants in the hands of the same prosecutors who are trying to put the accused person in jail.Assange's lawyers argue that the Swedish system is unfair because it puts the power to issue arrest warrants in the hands of the same prosecutors who are trying to put the accused person in jail.
After a court ruled in February 2011 that Assange should be sent to Sweden to answer the accusations against him, the WikiLeaks founder appealed, lost, and then took the case to the supreme court. This February the supreme court heard two days of dense legal argument about whether a Swedish prosecutor constitutes a judicial authority under the European arrest warrant framework and the Extradition Act 2003, which incorporates it into British law, along with discussions of the history of the European arrest warrant framework going back to the 1957 European convention on extradition. (I live-blogged those two sessions in exhaustive detail here and here.)After a court ruled in February 2011 that Assange should be sent to Sweden to answer the accusations against him, the WikiLeaks founder appealed, lost, and then took the case to the supreme court. This February the supreme court heard two days of dense legal argument about whether a Swedish prosecutor constitutes a judicial authority under the European arrest warrant framework and the Extradition Act 2003, which incorporates it into British law, along with discussions of the history of the European arrest warrant framework going back to the 1957 European convention on extradition. (I live-blogged those two sessions in exhaustive detail here and here.)
Assange's QC, Dinah Rose, argued that the European arrest warrant's use of the term "judicial authorities" was meant to mean a judge or magistrate, and not a prosecutor, who is not independent. For Sweden, Clare Montgomery QC argued that the term "judicial authorities" was always meant to encompass prosecutors in some EU countries, and there was no requirement for the figure issuing the warrant to be independent.Assange's QC, Dinah Rose, argued that the European arrest warrant's use of the term "judicial authorities" was meant to mean a judge or magistrate, and not a prosecutor, who is not independent. For Sweden, Clare Montgomery QC argued that the term "judicial authorities" was always meant to encompass prosecutors in some EU countries, and there was no requirement for the figure issuing the warrant to be independent.
If Assange loses today he can appeal to the European court of human rights. The ECHR will then respond within 14 days.If Assange loses today he can appeal to the European court of human rights. The ECHR will then respond within 14 days.
If it decides to take the case, it can also order "interim measures" to stay Assange's extradition until the case is heard.If it decides to take the case, it can also order "interim measures" to stay Assange's extradition until the case is heard.
However, the Crown Prosecution Service says that if the ECHR agrees to take the case it will not extradite him until the case has been heard, with or without interim measures: "If the ECHR takes the case then his current bail conditions would remain in force and he would remain in the UK until the proceedings at the ECHR have concluded." That could be months away.However, the Crown Prosecution Service says that if the ECHR agrees to take the case it will not extradite him until the case has been heard, with or without interim measures: "If the ECHR takes the case then his current bail conditions would remain in force and he would remain in the UK until the proceedings at the ECHR have concluded." That could be months away.
However, it seems unlikely that the ECHR would agree to take the case. Barrister Carl Gardner of the Head of Legal blog told the Guardian that such an application would be a "steeply uphill" struggle for Assange:However, it seems unlikely that the ECHR would agree to take the case. Barrister Carl Gardner of the Head of Legal blog told the Guardian that such an application would be a "steeply uphill" struggle for Assange:
His argument could only be that extradition (an application against the UK would have to be about the extradition itself) would breach article six [of the European convention on human rights – the right to a fair trial] indirectly, because a trial in Sweden would be a "flagrant denial of justice" - more than just an ordinary unfair trial.His argument could only be that extradition (an application against the UK would have to be about the extradition itself) would breach article six [of the European convention on human rights – the right to a fair trial] indirectly, because a trial in Sweden would be a "flagrant denial of justice" - more than just an ordinary unfair trial.
The only time I think the ECHR has ever said extradition/deportation/removal on these grounds would be in breach is I think Abu Qatada's case this year, in which it said the risk of use of evidence gained by torture would be a flagrant denial of justice. Assange's complaint would be much less powerful than that.The only time I think the ECHR has ever said extradition/deportation/removal on these grounds would be in breach is I think Abu Qatada's case this year, in which it said the risk of use of evidence gained by torture would be a flagrant denial of justice. Assange's complaint would be much less powerful than that.
Assange may choose not to appeal to the ECHR. A source close to the WikiLeaks founder told the Guardian during February's supreme court hearings that he was unlikely to do so.Assange may choose not to appeal to the ECHR. A source close to the WikiLeaks founder told the Guardian during February's supreme court hearings that he was unlikely to do so.
If the ECHR refuses to take the case Assange will be extradited to Sweden "as soon as arrangements can be made", the CPS says. Once in Sweden, Assange would probably be kept in custody - bail does not exist there - and if he is charged a trial might begin in a few months.If the ECHR refuses to take the case Assange will be extradited to Sweden "as soon as arrangements can be made", the CPS says. Once in Sweden, Assange would probably be kept in custody - bail does not exist there - and if he is charged a trial might begin in a few months.
If Assange wins, however, he will not be extradited, and the system of European arrest warrants will be thrown into doubt, because many European countries have a system similar to Sweden's.If Assange wins, however, he will not be extradited, and the system of European arrest warrants will be thrown into doubt, because many European countries have a system similar to Sweden's.
You can read more about the background to the case here.You can read more about the background to the case here.
Footage of the proceedings will be streamed live here. My colleagues Owen Bowcott and Esther Addley will be tweeting live from court, and we will be covering everything live here on this blog.Footage of the proceedings will be streamed live here. My colleagues Owen Bowcott and Esther Addley will be tweeting live from court, and we will be covering everything live here on this blog.