Could Assange apply to set aside the Supreme Court judgment?

In my post earlier today about Julian Assange’s Supreme Court appeal, today’s judgment and the unusual procedural turn that followed it. To remind you, the suggestion made by Dinah Rose QC, for Julian Assange, was that she might apply to the Court asking it to reopen its judgment on the basis that the decisive legal point on which the majority’s reasoning turned (to do with the Vienna Convention on the law of treaties) was one on which she had not been invited to make any submissions either in writing or at the two-day hearing in February. She’s been given two weeks to think about it. I wrote

In this case, in addition to the question of procedural unfairness raised by the Vienna Convention issue, there may now also be a possible argument that these judges, who’ve already given judgment, have predetermined the point and ought not themselves to rule on whether that judgment should be reopened or varied. If that kind of argument is made, who knows where we might end up …

… The possible application to reopen proceedings creates a “cat among pigeons” situation. This is an embarrassment, and even potentially something of a crisis, for the Supreme Court.

Since this morning I’ve been thinking about how the kind of “predetermination” point I mentioned could be made, and where it could lead. Following an interesting exchange on Twitter this evening about it, I thought I should write to explain the kind of thing that’s been on my mind.

We know from In Re Pinochet that the Supreme Court has, as Lord Browne-Wilkinson put it in that case,

power to correct any injustice caused by an earlier order of this House

He also told us that in an earlier case, the Lords had done just this on a minor issue:

In Cassell & Co. Ltd. v. Broome (No. 2) [1972] A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.

Finally, we know from what he said that the jurisdiction is limited:

the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.

What this means is that Rose cannot hope to make an application simply that the Supreme Court is wrong about the Vienna Convention point, and ought to have the benefit of argument from her and change its mind. She must go further, in order to activate the jurisdiction, and argue that Assange has been subjected to an unfair procedure.

That’s a possible argument to make, since on of the traditional rules of fairness (or of “natural justice” as people used to say) is the right to be heard: the idea that a party to a case should be heard before a court rules against him or her. Arguably, by finding against Assange on an unargued basis, the Supreme Court may indeed have acted unfairly in this way.

This might be the time to make clear that I can’t say as things stand whether the Supreme Court did indeed decide the point without hearing or inviting argument, and surprise Dinah Rose by raising the point for the first time in its judgment. I didn’t watch the full hearing, and I don’t think the CPS’s written submissions, or “skeleton argument”, is publicly available. I do note that at paragraph 191 of the judgment Lord Mance said, in the context of the Vienna Convention and the relevance of subsequent state practice

Subsequent practice does not give support to the respondent’s extreme position

which may suggest the CPS at least did have a chance to say something connected to the issue. In any case, one of the things the Court will have to decide if called upon is whether what Dinah Rose said today is correct, or not.

It’s also worth saying that it’s surprising, in a way, that this issue – whether a court can properly reach a judgment on the basis of reasoning not explored, or fully explored, with counsel at a hearing – hasn’t been litigated more often. I’m not sure appeal judges always strictly confine their reasoning to matters on which they’ve heard submissions. The answer must be that this is the kind of thing lower courts and tribunals are accused of, and that they can be judicially reviewed on that basis; and that if the issue arises in the High Court of Court of Appeal, a further appeal may be available. It’s in the highest court that the issue arises most acutely.

In any event, if Dinah Rose’s contentions are well-founded then I think an application to reopen the case because of procedural unfairness has some force. If I’m right on that, the next question to ask is: how could the Supreme Court deal with such an application?

In the Cassell v Broome case mentioned earlier the Lords varied their order to deal with a point about costs – a point that perhaps should never have been opined on by Lord Hailsham, the Lord Chancellor, before hearing argument, and which was relatively easy to deal with as a variation of the judgment – rather like a codicil. I can’t link to a web version of the judgment, but from the All England Law Reports it looks as though the matter was cleared up very briefly at a short hearing, and that no further judgment in the true sense was given. What’s worth noting is that the petition to vary their Lordships’ order was considered and decided on by the same panel of judges who gave the original judgment.

Things were different in the Pinochet case. In that case, the problem was that one of the Law Lords, Lord Hoffmann, had allegedly been biased because of his directorship of the charitable arm of Amnesty International, which had intervened in the case – the rule against bias, or that “no one can be judge in his own cause” being the other traditional rule of fairness or “natural justice”.

Then, the petition was not simply to vary their Lordships’ order, but to set aside the judgment in its entirety – to cancel or annul it. That makes sense in that Lord Hoffmann’s bias (and their Lordships accepted he had been biased in the legal sense) tainted the entire judgment. What’s especially interesting is that the petition to set aside the judgment given inter alia by Lord Hoffman was considered by a differently constituted panel of Law Lords.

It’s true that a breach of the right to be heard isn’t necessarily the same as a breach of the rule against bias, and that it’s possible to see how any unfairness to Julian Assange could be cured if the Supreme Court reopens the appeal, hears Dinah Rose on the Vienna Convention point and then considers whether to vary its judgment and order – or not. Conceivably they could look at the whole question of whether to reopen and of the Vienna Convention at one rolled-up hearing, as I suggested earlier, and end up dismissing the application saying that their conclusions were unaffected.

But I fear that things may not be that simple. In Cassell v Broome the variation related to an ancillary point about costs – not to a central legal issue at the heart of the appeal. Here, in contrast, the point on which Assange claims he has not been heard appears from the judgment to have been the decisive point on which a number of the Justices’ decisions turned. Any unfairness in dealing with that point seems to be to go to the root of the judgment. It means the situation here is much more like Pinochet than Cassell v Broome. I see no reason why Dinah Rose should not similarly apply to have the judgment set aside in its entirety.

If that’s right, then I wonder whether Assange might argue that the panel of Justices that gave judgment today cannot lawfully consider his application to set that judgment aside for unfairness.

The argument would run as follows. First, since no one can be judge in his or her own cause, it follows that the same judges who made a judgment (and it has been given) cannot fairly rule on the fairness of their own judgment. Since what’d be under attack would be what the judges themselves did, to consider it themselves would in the clearest way to act as judges in their own cause. Second, even if they did decide to reopen the case and hear argument on the Vienna Convention point, it would not be fair for them to rule on its because they’ve already prejudged the issue and cannot approach it with an open mind. They’d have pre-judged the matter in the most literal sense, having given judgment on it first, and asked questions about it later.

I think the first limb of the argument is stronger than the second, and I don’t think either is obviously right. But I don’t think this is a clearly losing argument, either. I think it’s a serious, at least reasonably arguable case that could succeed. And I see no reason why Julian Assange’s team should not want to make it.

If faced with this argument on paper, the Court might need to decide how to deal with it in a rather ad-hoc manner – I’m not sure this type of application is dealt with in the Supreme Court’s rules, so it may have to be considered under rule 9(7):

If any procedural question arises which is not dealt with by these Rules, the Court or the
Registrar may adopt any procedure that is consistent with the overriding objective, the Act and these Rules.

the ovverriding objective being, under rule 2(2)

to secure that the Court is accessible, fair and efficient.

One way of dealing with it would be for the same panel to consider it, either on paper or at a hearing, and decide whether to reopen the case, and whether to vary the judgment. I’ve already suggested how this could be done in a rolled-up way.

The problem with that, though, is this. If the same panel rules against Assange on either point – either by not reopening the case at all, or by doing so but then remaining unmoved by his arguments – then it remains open to the accusation of unfairness, which could be made widely in public, and which potentially be complained about to the European Court of Human Rights as a breach of Assange’s right to a fair hearing. Such a complaint would not necessarily delay his extradition, but it could strengthen his case.

If I were Lord Phillips, the President of the Court, facing an application to set aside the judgment on the basis of unfairness, I’d consider referring it immediately to a new panel to consider the application. In Pinochet, four of the Lords who dealt with the set-aside application (Lords Browne-Wilkinson, Goff, Hutton and Hope) then went on to rehear the appeal. Today, six Justices are available (Lords Hope, Clarke, Wilson, Sumption, Reed and Carnwath) from whom a panel of five, say, could if need be do both.

In my view this would be the fairest and safest way the Supreme Court could deal with the matter. If this newly-constituted panel ruled that the original judgment had been fair, and dismissed the application, no one could accuse it of being judge in its own cause. If it allowed the application having found unfairness, it could then decide to rehear the case in its entirety, as happened in Pinochet.

I know this sounds extreme – and a rehearing certainly would delay Julian Assange’s extradition. But if the kind of application I’m concerned about were made – and why should it not be? – I doubt there’d be any other safe or fair way for the Supreme Court to deal with it.