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.
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
• A more sympathetic view of UNWGAD’s report by Liora Lazarus is here on the UK Constitutional Law blog
• ObiterJ considers S.21A here in the light of the UN Panel report
• Steve Peers looks at Assange’s options here: EU Law Analysis
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.
See also this EU Court of Justice Case of 2015: Minister for Justice and Equality (Ireland) v Lanigan
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