What if Julian Assange loses in the Supreme Court?

Tomorrow the UK Supreme Court gives its eagerly-awaited judgment in Assange v Swedish Judicial Authority, in which it will decide whether the Swedish prosecutor is indeed a judicial authority for the purposes of Part 1 of the Extradition Act 2003. Julian Assange argues that it isn’t, since a prosecutor isn’t a judge; therefore the European Arrest warrant it issued for him was not valid. The Crown Prosecution Service, acting on behalf of the Swedish authority, argues that it is, since the concept of a judicial authority in the relevant EU Framework Decision on European Arrest Warrants does not necessarily imply a judge or court.

I’ve written before that I think Assange’s argument is hopeless, and that I expect the Supreme Court to rule against him. It’s always seemed to me clear that the phrase judicial authority must be given an autonomous European meaning in the light of the Framework Decision. Quite a few EU states see prosecutors and even police as in a sense “judicial” (the French equivalent of the CID is even called the Police Judiciaire); it has to be lawful for prosecutors in countries like Sweden and France to issue EAWs, regardless of what English speakers alone might think the English word judicial means, in isolation. I’ll be a bit surprised if the judgment isn’t unanimous, but I’ll be very interested to see if there is any dissent.

I’ve also written about what happens if by some astonishing turn-up, Assange wins: it could create yet another Eurolegal headache for the government. What I’ve not written about is what may follow if, as I expect, he loses.

Under section 36(3) of the Extradition Act, extradition must take place within the “required period” which means

(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or
(b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.

Theoretically, the remaining recourse for Assange is either an application (not actually an “appeal”, though much of the media is bound to use that word) to the European Court of Human Rights, or an application to the High Court for an order preventing extradition. If he did make it, such an application could indeed hold things up for a short time. But I don’t think either holds out much hope of delaying his extradition significantly.

First, his complaint to the ECtHR could only be that extradition is in breach of his right to a fair trial under article 6 of the European Convention. But that claim faces a number of difficulties. It’s not easy to persuade a court that your trial’s unfair before it even starts. And even if the Court did think Assange’s trial would or might be unfair, that doesn’t mean it’d rule extradition contrary to his human rights. It will only do that if, as in Abu Qatada’s case, it thinks the trial in Sweden would amount to a “flagrant denial of justice”. In that case, the Court explained (para. 260) that

A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

I doubt Assange has any chance of showing there are substantial grounds to believe this.

Remember that in Abu Qatada’s case, the question of fairness related to the use of evidence gained by torture: while that certainly is “flagrant denial of justice” territory, I don’t think any unfairness Julian Assange can complain about approaches that sort of risk of injustice. Remember too that Sweden is a signatory to the European Convention on Human Rights, and that Assange has remedies both in Sweden and by applying to the European Court if he believes his trial is unfair if and when it actually takes place. The likelihood of the Court ruling extraditing Assange to Sweden would breach his right to a fair trial seems to me very low indeed.

But that’s about the underlying claim of course. What’s of immediate interest is whether merely applying to the European Court would in itself delay extradition. The answer is that it wouldn’t.

In order to stop his extradition pending his main application to Strasbourg, Assange would need in addition to request “interim measures” under rule 39 of the rules of the European Court of Human Rights, ordering the UK to delay extraditing him in the meantime. I’ve no doubt Assange could obtain an initial indication from Strasbourg that his extradition should be put on hold temporarily – just until it can make a proper decision on whether actually to grant him interim measures pending his main application. But it seems to me difficult for him to obtain such an order for longer than a few weeks, once the Court is able to consider it. A statement by the previous President of the Court (undated, but I think it was issued in 2011) emphasises that

the Court will only request a Member State not to deport, extradite or expel a person where, having reviewed all the relevant information, it considers that he or she faces a real risk of serious, irreversible harm if removed.

This seems to me a high test. Abu Qatada obtained interim measures – but then he was arguing that he was at risk of torture if deported to Jordan. I don’t think Julian Assange can make anything like such a claim of serious, irreversible harm if extradited to Sweden.

It’s true that sometimes interim measures have been granted in cases not involving risk to life and limb. EB v UK is an example of that, the irreversible harm in question relating to the separation of a mother from her baby, in a case where the underlying main application was that extradition would breach the right to family life. But that seems to me a very different type of case from this. Assange does not I think claim to have links in the UK that will inevitably be broken by extradition.

His case seems to me more like that of Garry Mann, who obtained a very temporary indication from the European Court that his extradition should he delayed – pending its full decision, only three weeks later, that it would not in fact grant interim measures pending the main case. Julian Assange may similarly gain what you might call “interim interim measures” in the same way. Or the CPS (which acts on behalf of the Swedish prosecutor) and the Supreme Court may agree under section 36(3)(b) of the Extradition Act that extradition should take place within ten days of the date on which the European Court determines the question of interim measures (assuming Assange’s lawyers make clear they will pursue such an application immediately).

Interestingly the CPS’s blog in January seemed possibly to imply that the mere fact of Assange applying to the ECtHR – even without interim measures – would mean his extradition would be delayed, and that he’d remain on bail pending the Strasbourg proceedings. That puzzles me. In the absence of any Court order or rule 39 interim measures from Strasbourg, it’s not obvious to me on what legal basis the CPS could unilaterally agree to delay extradition, given that section 36(2) of the Extradition Act makes it clear extradition must follow within the required period. Interestingly, this Independent news report about Garry Mann’s case tells us that in his case, the Serious and Organised Crime Agency

has maintained throughout it has no power to halt extradition

The only obvious way the British authorities could consent to any delay would seem to me to be, as I explained earlier in relation to any interim measures application, for the CPS on behalf of the Swedes and the Supreme Court to agree under section 36(3)(b) that the required period should be ten days following the outcome of Assange’s main ECtHR application. But why should they?

Finally there’s also the possibility that Assange could apply to the High Court for an injunction preventing his extradition, presumably on human rights grounds and perhaps in the form of a judicial review. If he tries this, again I’ve no doubt the authorities would halt extradition temporarily if need be simply in order not to frustrate the application – although that might not be necessary since a hearing could be arranged within ten days.

Even here, though, Assange faces enormous difficulties. The House of Lords in Re Hilali in 2008 held that section 34 of the Extradition Act, which says

A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part

prevents the courts from intervening in order to stay extradition (in that case by means of habeas corpus) after the conclusion of the statutory appeal procedure. The District Judge has already rejected Assange’s argument that extradition would breach his right to a fair trial, and Assange didn’t pursue that (I think hopeless) argument on appeal. The only way in which Assange now stands any remote chance of obtaining an injunction preventing extradition is by arguing that some exceptional supervening event has occurred which raises fresh human rights concerns, which the High Court said in Navadunskis v SOCA was the one remaining jurisdiction to intervene. In that case, Lord Justice Maurice Kay made clear (para. 15) that the Extradition Act was

designed to avoid the kind of serial applications which used to be quite common in extradition, as one remedy and then another was sought on what sometimes appeared to be a rolling basis.

The jurisdiction of the courts to intervene at a last stage therefore (paras. 20-21)

must be limited to supervening events, or supervening knowledge which could not have been acquired earlier, and as the time frame following the completion of the statutory procedures is so short, one would have thought that inevitably there is little scope for significant supervening events or knowledge to arise. However, one must accept them as a possibility. In the course of argument, hypothetical examples have been referred to, such as, for example, a coup in the requesting state, leading to a change of government and perhaps an outbreak of genocidal behaviour which would render it wholly inappropriate to surrender the fugitive to that country.

Alternatively, somebody who was or seemed to be in good health at the time of the extradition hearing and any subsequent appeal may suddenly be afflicted by some grave condition that would render it a breach of his human rights to surrender him at that moment. As I have indicated, that might extend in an appropriate case to something such as a pre-existing condition, of which the person only became aware after the extradition hearing.

It’s not easy to see how Julian Assange can argue there is such an exceptional supervening event in his case.

To summarise, then. If as I expect, the Supreme Court rules against Julian Assange, then he must be extradited within ten days – subject only to any applications he may make either the European Court of Human Rights, or to the High Court for an injunction preventing extradition. He could try either of these, or both; which order to go in seems to me to depend on tactical considerations. Either way, the Supreme Court and the CPS could and should agree if necessary under section 36(3)(b) that the required period for extradition should be extended simply to allow Assange to have his application considered by the relevant court.

But in my view that’s unlikely to offer him more than the most short-lived stay. An urgent judicial review based on an exceptional supervening event could be heard quickly – perhaps even within the normal ten days for extradition – and is likely to fail. Even an application to the European Court of Human Rights is unlikely to result in interim measures from that Court barring extradition for more than a few weeks. Finally, while the CPS and the Supreme Court could agree, even if interim measures are refused by Strasbourg, that extradition should await the outcome of Assange’s full application to the human rights court, I don’t see any legal reason why they need to, or should. In the absence of some sort of court order preventing extradition, or an outstanding application for one, I see no reason why the British authorities should not simply extradite him – and allow him to pursue any remaining human rights complaint against the UK from wherever he is staying in Sweden.

He obviously won’t be in Sweden by Easter, as I once thought he might. But he could be there before Wimbledon. In any case, I expect him to arrive there some time this summer.