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The Extradition Act law reform that could – but won’t – help Assange

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Why on earth isn’t the UK Home Secretary banging on the doors of the UK Supreme Court, the European Court of Human Rights, the Swedish Högsta domstolen – whatever it takes – to get Julian Assange released from his (somewhat self-imposed) “arbitrary detention” in the Ecuadorian embassy in London? Theresa May and the Government she serves knows a terrible travesty of justice has occurrred – so much so that they have passed a law to ensure it should never happen to anyone else again.

This, at least, is how the UN Working Group on Arbitrary Detention (UNWGAD) explains a new section, 21A of the 2003 Extradition Act, inserted “as a result of perceived abuses raised by Sweden’s European Arrest Warrant” in the Assange case. It adds that, since the Section was added in 2014 “if requested, Mr. Assange’s extradition would not [now] have been permitted by the UK”. The section, added by S.157 of the Anti-social Behaviour, Crime and Policing Act allows for a “proportionality test” before someone can be extradited under a European Arrest Warrant. So a judge can ask whether there might be a less coercive alternative to extradition – such as interviewing a suspect in Britain rather than in the “requesting state” (ie the one that wants the extradition – Sweden in Assange’s case).

But there is more. Section 156 of the 2014 Act also introduced a new Section 12A to the Extradition Act (below) – which allows a UK judge to assess whether the supect’s presence in the requesting country is really necessary – specifically if investigations have not come close enough to completion to require that presence. This is eerily like Assange’s case since the EAW was issued by prosecutors seeking to interview him, not by judges wishing to arraign him on a criminal charge.

Sadly for Assange, he was not apparently the inspiration for the new legislation – and the Government has insisted it is not retrospective so is unavailable to his cause – though the UNWGAD panel believes it should be. Their thinking, presumably is that if a terrible injustice to suspects has been discovered it should be put right for those who continue to be embroiled in that injustice, not just for the future.

In fact the changes are to do with Eurosceptic opposition to the whole EAW regime, highlighted by the Andrew Symeou case, an extradition to Greece despite allegations of tainted evidence used to support it. This case much exercised Tory MP Nick de Bois (see this: Nick de Bois MP pdf). Symeou was cleared but only after a year in a Greek prison. It is to stop such long periods in foreign jails while cases are investigated or otherwise delayed that the new legislation was passed.

“Recognition” of foreign processes

At the core of the Assange issue is whether the UK should “recognise” (in the sense of acknowledging the legality of) a European Arrest Warrant created by a prosecutor, rather than a judge as would be the required in Britain. “Recognition” is a Treaty requirement that means each signatory to the EAW system will accept as equal and valid the differing processes towards prosecution of the different nations. Some, for example, require greater judicial oversight than others in issuing warrants. So in France, Belgium, Spain and Italy, prosecutors are regarded as a part of the judicial system whereas in England prosecutors and judiciary keep a distance and independence from one another. (This is looked at in detail here: Perceived problems with EAWs.)

S.12A by implication ditches quite a significant element of “recognition” – and it does so, prima facie, in cases like Assange’s. The issue is whether the suspect’s presence is truly required for a case to continue. The new S.12A provision says an extradition will be barred if there has been a failure to pursue the case and “the [accused] person’s absence from the category 1 territory is not the sole reason for that failure” (emphasis added). So if there is further work to be done on the investigation before the point when the suspect is required to be present – then they can’t have him.

That further work could, arguably, include interviewing a suspect such as Assange in the country where he is rather than in the requesting country  ie using “alternative mechanisms and to question him through the procedures of mutual legal assistance”, as the UN panel report puts it. The Swedish government answer to this is that it doesn’t interfere with independent prosecutors so prosecutors have carte blanche to decide how their investigations are going and who or what they need. The UN panel notes the Swedish position thus:

“The Swedish prosecutor in charge of the preliminary investigation has determined that Mr. Assange’s personal presence is necessary for the investigation of the crimes of which he is suspected. The prosecutor has the best knowledge of the ongoing criminal investigation and is therefore best placed to determine the specific actions needed during the preliminary investigation.” (Para 42)

So we are left to rely on the prosecutor (not a judge, remember) assessing his/her running of the case and coming to a judgment as to the requirement for the individual to be present – and presumably in jail – for the investigation to continue.

But S.12A changes that. It replaces the foreign police authority’s view (in the countries where prosecutors hold sway rather than an independent judge having oversight) with a British judge’s view of whether the presence of the accused is required. This is not so surprising, if looked at objectively or from a human rights point of view: we might well think that the prosecutor is not best placed to make this judgment when a person’s freedom is at stake – because the prosecutor is not the most objective judge of the investigatory process. And human rights are at the core of all this since as we’ve seen in the new S.21A. There a judge may consider

“c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D [the suspect/defendant]”.

So again the legislation defies the concept of “recognition” by replacing the view of the prosecutor on the ground with an English judge’s view of how to investigate a case, what is proportionate. Among less coercive ways of dealing with Assange one would assume would be to interview him in Britain, perhaps during the “550 days of house arrest” (as the Panel described it at para 87, though actually he was merely tagged and required to stay nights at a designated – and quite luxurious – address). In fact so far have we come from “recognition” that it is estimated that 80% of recent Italian extradition requests to Britain would not meet the new standard (Kandola & Ors, para 53).

This is not to suggest that Assange has a European Convention on Human Rights case. He had the option of pursuing that route and, doubtless well advised, didn’t do so. The Strasbourg court would probably find his treatment “prescribed by law” in a democratic society and proportionate. It wouldn’t be obliged to consider other less coercive ways of proceeding as S.21A requires of an English judge.

No; paradoxically it is the anti-ECHR, dubious-on-human-rights Conservatives that find human rights flaws in the European Arrest Warrant regime and the treaty obligations underpinning it. But not for Julian Assange, no, not for Julian Assange.

Twitter: alrich0660

These from the archives may be of interest:
The Thinking Legally item noted above: Perceived problems with EAWs
Plus Assange, Ukip and Baron Mance three-in-a-bed shocker

Also: The UN panel’s document can be read here along with a scathing critique of it: Head of Legal
• ObiterJ considers S.21A here in the light of the UN Panel report

Court case
The new legislation has been tested and helped two people avoid extradition to Germany and Italy. See 
Kandola & Ors v Generalstaatwaltschaft Frankfurt & Ors. The law was accepted by the Queen’s Bench justices, but so far does it seem to sweep away “recognition” that one wonders whether it actually conforms to UK Treaty obligations regarding the EAW.

Extradition Act 2003
12A Absence of prosecution decision

(1) A person’s extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—

(a) it appears to the appropriate judge that there are reasonable grounds for believing that—

(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and

(ii) the person’s absence from the category 1 territory is not the sole reason for that failure, and

(b) those representing the category 1 territory do not prove that—

(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or

(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person’s absence from the category 1 territory is the sole reason for that failure. (2) In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean—

(a) to charge the person with the offence in the category 1 territory, and (b) to try the person for the offence in the category 1 territory

Check the Working Group’s Opinion on Julian Assange’s case (No. 54/2015), adopted in December

 

 

Rutherford and Others bedroom tax case: hold the celebrations

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Anti-bedroom tax campaigners are very pleased about the Court of Appeal case that has found unlawful discrimination in an element of the Government’s policy to punish “under-occupiers” of social housing. Sadly their joy may be premature. The Court of Appeal’s ruling in Rutherford and Others v Secretary of State [2016] EWCA Civ 29 was very much a holding judgment. When the case is reviewed in the UK Supreme Court the issues of right and wrong about how we treat disabled people or rape victims will be largely overlooked. Instead issues of legal proceduralism, high policy (plus low politics) and constitutional wrangling are likely to hold sway.

The essence of the case for the Rutherfords, who care for a disabled grandson, and for “A”, a rape victim (who has a son by her rapist) and has a panic room in her house, is that their situations should have been covered by exceptions to the Bedroom Tax provisions (ie the cut in Housing Benefit when a family has “extra” rooms).

If the benefit claimant is disabled or has a disabled partner an exemption might apply (if overnitght care is required). But not if a benefit claimant is caring for a disabled child. And there is no mention of rape victims in fear of further attack. There is, though, a system of Discretionary Housing Payments (DHP) for those who might have needs “which could be met by DHP”. They are administered by the relevant local authority.

The claimants’ case is that their exclusion in the legislation (Regulation B13, set out here) from the categories whose position “has to be taken into account” (in the clumsy phraseology of the regulation) is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR) (and under public sector equality duty under s.149 of the Equality Act 2010) – on grounds of sex for A and disability for the Rutherfords and their grandson.

The Secretary of State, Iain Duncan Smith, acknowledges the prima facie discrimination. The issue therefore became: is there an “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”. Broadly the defence is that the DHP is there to cover categories of people who don’t have to be taken into account under Regulation B13 but may have good cases for an exemption. Although their housing benefit would be reduced, DHP might (if the local authority agrees) fill the gap.

The Department for Work and Pensions’ case was rejected and Regulation B13 ruled unlawful to the extent it didn’t cover A and the Rutherfords’ situation. But the Court of Appeal judges had not considered, and indeed refused to consider, the crucial arguments. The reason for this was that they would be considered instead, in relation to another but similar case R (MA) v DWP  (taking into account Burnip v Birmingham City Council [2012] EWCA Civ 629) by the UK Supreme Court in March. So, as Lord Thomas, Lord Chief Justice, put it:

“No useful purpose would have been achieved by our hearing argument on whether the principles set out in MA were correctly decided or whether its analysis of Burnip was correct. That applies also to arguments in relation to the use of further international instruments beyond those referred to in MA, the general approach to discrimination, and the appropriate standard of review for justification …”

So the two new cases have been pushed through the court system with the Court of Appeal being a funnel to get them to the Supreme Court – possibly on the same day as MA if that suits their lordships. “We are content to leave all more fundamental arguments to be debated in the forthcoming Supreme Court hearing,” Thomas CJ said.

Likely outcome
So what are the chances of success for the anti-bedroom tax fight when the matter does come to court again? Well Burnip (a set of several cases) was a win and in Mr Burnip’s case there has even been an amendment to legislation. But MA went the Secretary of State’s way. There was prima facie discrimination (as accepted by the DWP) but there was an objective justification. Regulation of property for the general good is an exception to Article 14 (and the declared purpose of the bedroom tax) and the DHP was deemed a reasonable response to deal with hard cases that fell outside B13. (It’s a bit more complicated. Those interested may wish to read this analysis of the original High Court case of MA).

Lord Dyson in the Court of Appeal in MA had said: “The court must be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect.” This was not found in MA. Dyson declared that the Secretary of State must have a “focused awareness of each of the duties” under the public sector equality duty – and apparently Duncan Smith had just such a focused awarenes, so everything was fine.

Now, in the case of A, the Court of Appeal did not find a public sector equality duties breach but A succeeded on Article 14. In the Rutherford case it was found that the Secretary of State breached a duty regarding the best interests of children in formulating the B13 regulation and discrimination against children in relation to adults (who are covered by the “exemption” implied by B13. 

But much depends on the coming review of MA in the Supreme Court. All this means is that the Court of Appeal judgment in Rutherford produced something of a nominal finding in favour of the applicants and against the DWP – but, significantly, with no redress other than a declaration of an Article 14 breach. Thomas said simply:

“We think it appropriate to cut through the detailed arguments that were addressed to us on the question of remedy. In both cases, we think that we should declare simply that ‘the Appellants have suffered discrimination contrary to Article 14 of the ECHR on the basis set out in the judgment of the court’.”

There was some discussion about the use of DHPs, the fact they were discretionary and therefore discriminatory in a case such as A’s. Her position came within Burnip (ie was a winner) and so Thomas said: “Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.” People like A need certainty, not a “flexibility” that benefits only the Local Authority.

It’s a victory of sorts, but not exactly a ringing endorsement of the anti-bedroom tax case. On the Rutherfords’ case Thomas says:

“We accept that DHPs were intended to provide the same sum of money, but we are not persuaded that this justifies the different treatment of children and adults in respect of the same essential need within the same Regulation, as neither the Regulation nor the policy behind the Regulations addressed the best interests of the child as a primary consideration.”

It is a good point, not least because the “Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available”. But it is a holding position and it will be for the Supreme Court to do the heavy lifting on these cases – and the campaigners to press hard the moral justice of their position on Duncan Smith whatever the technical legal outcome.

Twitter: alrich0660

As mentioned above, the Lord Justice Laws judgment in R (MA) is examined on Thinking Legally: Laws’ law of non-intervention 

Housing blog Nearly Legal looks at Rutherford here and considers that the Court of Appeal judgment in Rutherford will give the secretary of State considerable difficulty in the Supreme Court: “there are suggestions in this judgment [Rutherford] that a broad brush approach to justification by waving at the DHP scheme may not be enough. And now, the Secretary of State must also argue, in effect, that Burnip was wrong, and that even discrimination against narrow, easily recognisable classes should be justified by DHPs.”

Other bedroom tax posts
Zahawi’s false assurance is here
Duncan Smith needs a new benefits thinking cap is here
What Raquel Rolnik really said on the bedroom tax is here
Duncan Smith’s vindictive ploy is here 

Materials
Rutherford in the High Court: [2014] EWHC 1631 (Admin)
Burnip v Birmingham City Council [2012] EWCA Civ 629,

The Housing Benefit (Amendment) Regulations 2012 re B13

Lord Neuberger, President of the UK Supreme Court, said this in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311

“The fact that there are grounds for criticising or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.”

Regulation B13(5)
The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child,
and one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is).”

Article 14 ECHR
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Neuberger explains his Arnold v Britton judgment

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Lord Neuberger, President of the UK Supreme Court, has offered useful insight into his intentions behind the controversial Arnold v Britton judgment that left holiday chalet leaseholders facing bills adding up to millions of pounds for services (critiqued here: Neuberger abolishes common sense).

In a talk to members of the Leasehold Valuation Tribunal* he underlined his commitment to a literal approach to be taken by courts when reading contracts, leases and legislation. But he rejects any suggestion that he has “changed the law” with the Arnold judgment. He considers the judicial art of “construction” – construing the true meaning of the document in question – and sets his judgment within the context of 40 years of judicial contractual interpretation. 

Construction
A judge’s role in “construction” or interpretation of contracts, is to identify the intention of the parties “by interpreting the words used in their documentary, factual and commercial context”, Neuberger said [referring to a case on wills in which he had made this point last year, Marley v Rawlings.] 

The principles for construing contracts and legislation were similar and leases should be treated no differently since, like contracts, they have “commercial consequences”.  

Read the rest of this entry

Neuberger v M&S: was the BNP case really necessary?

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One has to ask: why did the UK Supreme Court even bother to hear, at vast public expense, the case of Marks & Spencer v BNP Paribas – in which M&S threw good money after bad in the hope of getting a few hundred thousands back from the landlords of their former London HQ in St Pancras Bay.

The money at stake isn’t the point. Was there a real issue of public interest such that the Supreme Court should have heard the whole matter again in order to come to the same view as the Court of Appeal a year earlier?

But the fact is that Lord Neuberger, President of the Supreme Court, is a man on a mission – to impose his literal interpretation of the world on the world of law. And this case was an ideal opportunity for him to drive the point home.

The legal point was simple enough: There was no term in the lease under which M&S would receive back prepaid rent after exercising a break clause and vacating the premises. So could such an apparently just and fair clause be implied into the lease “in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made”?  Read the rest of this entry

Bad for bees: FoE loses neonicotinoid pesticide case

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Environmental group Friends of the Earth (FoE) has failed in its UK High Court attempt to stop the emergency use of banned neonicotinoid pesticides, implicated in the decline of bee populations.

The use of three neonicotinoid pesticides is illegal under European Union law, though the law is due to be reviewed. The UK Department for Environment (DEFRA) authorised use of two of the pesticides for 120 days on about 5% of England’s oil seed rape crop after the National Farmers Union had made an application for their emergency use over the autumn.

The Hon Mrs Justice Patterson has now rejected an FoE challenge to the authorisation for the pesticides Modesto and Cruiser OSR, which contain neonicotinoids. In seeking a judicial review FoE claimed it had arguable cases that:

i) the UK Government did not give proper consideration to whether the risk to oilseed rape on the farms constituted an emergency;
ii) that no consideration was given to whether the risk could be contained by other means;
iii) that there was no compliance with the requirement that the authorisation should be limited and controlled.
Read the rest of this entry

O’Brien loses Court of Appeal case on judicial pensions backdating

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A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

Are targeted drone killings lawful? The jury’s not yet in

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So who are they, the urbane, sophisticated sharp-suited types with a licence to kill, drafted in to the front line in the battle against Islamic terror? They are – the government lawyers. The drone killing of Reyaad Khan and Ruhul Amin, far from being a spur-of-the-moment use of pre-emptive force to ward off an imminent attack, was actually weeks in the planning – with lawyers crawling all over it.

But there’s a paradox. If so much thought and work went into the killings, (and the latest US attack on “Jihadi John” – Mohammed Emwazi) how can it be justified as a self-defence response – “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”, according to the “Caroline” test legal pundits are talking about? Were the killings an act of “instant and overwhelming necessity” against an “imminent threat” with no other means of defending Britain from them? Read the rest of this entry

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