The CPS has phoned me to confirm it took the decision to appeal bail yesterday in Julian Assange’s case – without consulting the Swedish prosecutor. The CPS spokesman stressed to me that this is usual practice in extradition cases. The CPS makes all decisions on bail, apparently. That is in line with article 12 of the European Arrest Warrant Framework Decision.
It follows that it’s the CPS who consider Julian Assange a “flight risk”, and who oppose bail.
Our own CPS is the answer, I think.
Here’s a report from a Swedish media source quoting Karin Rosander, spokeswoman for the Swedish prosecuting authority, as saying the decision to appeal was the CPS’s alone, not theirs. It quotes her as denying her office was involved (translation by Google):
It is not true. I have received confirmation from the British public prosecutor that it is their independent decision …
It is our initiative that the British had not taken on their own. But Swedish prosecutors have no opportunity to formally request one. They do not have the power to a new country.
On the other hand, the CPS website seems to imply the CPS takes instructions from the foreign requesting authority in cases like this. This CPS blogpost from earlier this month (thanks to piombo) says
We act on behalf of the foreign jurisdiction in court and follow their legal instructions … Neither the CPS nor the DPP have any role in decision making on extradition requests from foreign jurisdictions.
That’s consistent with the ambiguous explanation in the CPS’s extradition factsheet
The CPS acts as the representative for the requesting judicial authority in the proceedings before English courts.
and I suppose both may refer narrowly to the question of extradition, where it’s true the CPS has no discretion, rather than to detention or bail pending extradition.
But article 12 of the European Arrest Warrant Framework Decision suggests Karin Rosander is right, and this is a matter for the CPS:
When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.
The judicial authority executing the warrant being the CPS, as opposed to the issuing authority in Sweden. The fact that the CPS makes the decision doesn’t of course exclude consultation with the Swedes.
I think the answer must be that the CPS made this decision unilaterally – though I’d have thought two hours must have been enough time to call the Swedish prosecutor to consult on a decision all must have known might be necessary.
I’ve asked the CPS to clarify.
Komla Dumor interviewed me on The World Today this morning about the Julian Assange case. It begins at 9:20.
In case you’re wondering, I wasn’t really “legal adviser to Tony Blair”, which makes me sound as though I used to be the PM’s personal lawyer. I’m not sure how they got that idea. No such role exists.
Charon QC talked to me yesterday as a follow-up to his interview with Mark Stephens last Friday – by some way the most interesting interview I’ve heard Mark Stephens give since Julian Assange’s arrest last week. Charon and I talked about European arrests warrants, the nature of the Swedish suspicions, bail and the relevance of evidence – among other things.
You can listen to the podcast here.
CharonQC managed to secure an interview today with Mark Stephens – no doubt a very busy solicitor at the moment, given the arrest and detention of his client Julian Assange on a European arrest warrant from Sweden.
Mark Stephens tells us a number of new and interesting things in this interview, including a bit more detail about the suspected offences, his surprise at Assange being denied bail, his views on the conduct of the prosecution in Sweden and securing access to Julian Assange in Wandsworth prison, and he gives his views about the possibility of an extradition attempt by the US authorities either from the UK or from Sweden. He also goes beyond the extradition case itself to talk about Wikileaks and freedom of expression, and the conduct of companies who’ve suspended payments to Wikileaks.
Charon’s been kind enough (too kind in fact) to thank me for help – so maybe I’m biased. But I think this really is a must-listen for anyone interested in law, Wikileaks or the Julian Assange case.
Listen to the podcast here.
I don’t agree with Bill Cash, chairman of the committee, when he says
It is essential that it is made clear that Parliament, is the ultimate authority, and not the Supreme Court of the Court of Justice of the EU determines the United Kingdom’s relationship to the EU [sic].
That’s already perfectly clear to anyone not in UKIP or the Eurosceptic wing of the Conservative party.
But I do agree with the thrust of his committee’s admirable report on the EU Bill, focusing on clause 18, the so-called “national sovereignty clause”.
The EU Bill and Parliamentary Sovereignty
It rightly concludes that (para. 81)
Clause 18 is a reaffirmation of the role of a sovereign Parliament in a dualist state, nothing more, nothing less. The principle of dualism, and Parliament’s role within it, is neither controversial nor in danger of erosion by the courts. It did not need declaring in statute.
and that (para. 82)
Clause 18 does not address the competing primacies of EU and national law … the evidence suggests that clause 18 is not needed.
It suggests enacting the clause involves possible danger to Parliamentary sovereignty (para. 85)
Because of trends in judicial interpretation flowing from the assertion of the common law basis of Parliamentary sovereignty, we attach weight to the warnings expressed by Professor Tomkins [public law, Glasgow] if the Government maintains clause 18 in the EU Bill. Expressing a principle in the context only of EU law invites questions about why Parliament chose not for it to apply more generally.
Finally, para. 86 bluntly nails the clause as an empty political exercise:
The consequence of our conclusions above is that the Explanatory Notes are misleading when they state at paragraph 106 that the clause has been included “to address concerns that the doctrine of Parliamentary sovereignty may be eroded by the courts”. Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes … For these reasons we deeply regret that the Secretary of State’s [sic] refused to come and give evidence himself on these matters.
I had gloomily thought that Tory Eurosceptics might have such wool-covered eyes on anything European that they’d buy William Hague’s clause as doing something positive from their point of view. This report proves at least that they’ve got more sense than that.
Julian Assange’s arrest under a European arrest warrant, and the initial hearing before a district judge, has been the biggest news story in the UK today.
All this is happening under Part 1 of the Extradition Act 2003. Sweden having issued a European arrest warrant (here’s the Interpol “red notice”) it seems Assange attended a police station this morning, and was arrested presumably under section 3. The initial hearing today took place in accordance with sections 7 and 8, the district judge simply setting the date of the full extradition hearing (or at least its formal opening) under section 8(1)(a), and making a decision on bail or custody in the meantime.
I’m not remotely surprised that bail wasn’t granted in this case. The charges of rape and sexual assault are serious ones, but more importantly, Julian Assange is a non-EU national merely visiting the UK, rather than having a home or close relationships here which would prevent him fleeing the jurisdiction. He’s known for moving from country to country. And at today’s hearing he couldn’t or wouldn’t give an address in the UK. That on its own seems to me to make it difficult for the district judge to grant him bail. A number of famous names came forward to “stand surety” for him by putting up substantial sums to guarantee his reappearance, but there is a tendency, perhaps due to the influence of US crime dramas and the lack of accurate drama or televised reporting of English courts, to think that these decisions are about “posting bail” and that money matters a lot. It’s not as important as that. For a start, not all of those who were prepared to put up money even know Assange. Why should he care about them losing money?
So what happens from here? The full extradition hearing must begin next week, though the district judge can adjourn further, and is likely to if either side needs more time. It may well be that next week simply consists of a second application for bail, based on an argument that the evidence asked for today by the district judge is weak, or that it hasn’t been provided, and applying to the High Court if refused again. That would seem to me the strongest tactical approach to trying to get bail. If I were Julian Assange’s solicitor, I’d also like to be able to tell the courts where my client would propose staying (and accept the condition of staying there), I’d want him to offer his own financial security, to hand in his passport and undertake not to apply for another one, and I’d offer daily reporting to a police station too. I think this is the sort of package of conditions you need to offer if you want to make a realistic bail application in a case like this.
As for the full extradition hearing itself, all the district judge has to decide is
Unless Assange can persuade the court that this is politically motivated or that his trial in Sweden might not be fair, or can persuade it that for instance extradition would breach his right to freedom of expression, then extradition will go ahead. His solicitor Mark Stephens has suggested there could be other technical arguments, but I suspect they’re uphill.
In reality the “political crime” and human rights arguments are one and the same. Assange’s extradition would not shut Wikileaks down. It’s only an interference with free speech in the sense it can be seen as “punishing” him for leaking information, and to suggest that is much the same as saying it’s a political extradition. Interestingly, it’s not clear where the burden of proof lies – how much evidence Assange has to bring, in other words, to make the court decide the extradition would be political. He must bring at least some objective evidence of it, though. If all there is is suspicion arising from the timing of his arrest, I doubt he can win.
A final point worth making is the potential role of the European Court of Justice – or rather, its lack of one. If any point arises as to the correct interpretation of the EU Framework Decision establishing European arrest warrants, one thing that won’t happen is a reference to the European Court. Article 10.1 of Protocol 36 to the Treaty on the Functioning of the European Union provides (in opaque language) that no such reference can be made by a British court for five years after the Lisbon Treaty came into force – which means for another four years. The question will be purely for the English courts. Nor will the European Court of Human Rights prevent the extradition: I don’t think anyone is suggesting Julian Assange will be killed or tortured in Sweden.
I expect extradition to go ahead some time early next year.
I did surprise me a bit though that Ken Clarke was willing to comment on the case on Channel 4 News, (at 3:30) suggesting that because it’s Sweden, he’d be astonished if there were a “sub-plot”. So would I. But I’m not sure it’s sensible for the Lord Chancellor to say so while the case is still before the courts. I suppose he’d say politicians no longer have a role in these cases, and in any case the district judge won’t be influenced by him. Fair points. Important that politicians be seen not to influence things too, though.
Phil Woolas has failed in his judicial review of the election court that found him guilty of illegal practices during the general election – here’s today’s judgment of the Administrative Court. So there will be a by-election, and Mr. Woolas will be barred from standing.
What’s remarkable though is how close he came to winning – I’m surprised he’s not, apparently, considering a further appeal.
First, he succeeded in persuading the court that judicial review is available against the decision of an election court (see para. 45 of the judgment); he also succeeded in arguing that he ought to be given permission in this case, even though another route under section 146 of the Representation of the People Act 1983 had earlier been available to him to refer a point of law to the High Court (paras. 59-62). He succeeded in persuading the court that judicial review extended not only to the question whether the election court exceeded its jurisdiction, but also to the question whether it misinterpreted the law, in this case section 106 of the 1983 Act (para. 58). Finally, he succeeded in his argument that one of the false statements he’d be found guilty of making – the claim that his opponent had broken a promise to live in the constituency – did not relate to his opponent’s personal character or conduct, and so was not illegal (paras. 117-119).
Even on the two other statements, claims that Mr Woolas’s opponent wooed “the extremist vote” and refused to condemn extremists, he was not far from succeeding in his argument that these claims related to his opponent’s political, rather than personal, character. It seems clear from the judgment that a mere claim that your opponent has wooed extremists and failed to condemn them is not an illegal practice as a general rule, even if you know those claims are false. What took Phil Woolas over the line was simply that, in the particular context, his leaflets amounted to a claim that his opponent was the type of man who condones, or refuses to condemn, threats of violence (see paras. 121 and 122). This, and this alone, made the claims personal rather than political, and so against election law.
So a judgment that recognises a large space for robust political argument. If this approach is followed in future, few successful candidates will find themselves in Phil Woolas’s position. As long as you don’t either knowingly or carelessly accuse your opponent falsely of condoning serious crime, you’re probably within election law.
But there’s a worrying aspect to this, if you think about it. What it means is that mainstream candidates – those who get nowhere near advocating violence or serious wrongdoing – are fair game even for lies about their political positions. But if your opponent is a fringe candidate who’s seemed to support political violence such as terrorism, you’d better make sure you have good evidence for anything you say about his attitude to violence. Fail to take enough care, and you may find yourself out of Parliament.
As interpreted by the Administrative Court today, therefore, the law actually favours those extremists who appear ambivalent or evasive about their opposition to terrorism. They may be able to safely say almost anything about their opponents – perhaps that they “supported an illegal war” for instance, or “turned a blind eye to torture”, both of which seem “political hyperbole” (see para. 120) rather than personal (the court said such a claim cannot be both – see para. 111). And if I’m right, they may safely say these things even if they know they’re false. Accuse such a candidate of condoning violence, though, and you do so at your legal peril.
This has to be wrong. Parliament must amend the law.
We’ve finally got the Supreme Court’s reasoning in R v Chaytor and others – in which former MPs and a peer argued that Parliamentary privilege prevents their being prosecuted for offences relating to their expenses claims.
As I’ve said before, it’s entirely unsurprising that the nine Justices have decided unanimously that expense claims are neither a “proceeding in Parliament” for the purposes of the Bill of Rights 1689, or within Parliament’s “exclusive cognisance”. There is therefore no breach of Parliamentary privilege in prosecuting former MPs for offences relating to their expense claims. What would have been surprising is if even one of the Justices had been persuaded by these arguments, which obviously exaggerate the scope of Parliamentary privilege.
I’m puzzled, therefore, that Tristram Hunt MP should (as I think I just heard him say in committee on the Fixed-term Parliaments Bill, during a debate in which MPs seem, depressingly, obsessed with the power of the courts rather than with the wider constitutional import of the proposed reform) have called Lord Phillips’s judgment “damaging” and “dangerous”, at least in part, referring I think specifically to paragraph 68:
Where a statute does not specifically address matters that are subject to privilege, it is in theory necessary as a matter of statutory interpretation to decide a number of overlapping questions. Does the statute apply within the precincts of the Palace of Westminster? If it does, does it apply in areas that were previously within the exclusive cognisance of Parliament? If so, does the statute override the privilege imposed by article 9? In practice there are not many examples of these questions being considered, either within Parliament or by the courts. If Parliament accepts that a statute applies within an area that previously fell within its exclusive cognisance, then Parliament will, in effect, have waived any claim to privilege.
Why he thinks that’s dangerous, I’ve no idea. I’d have thought it arguably damaging to Parliamentary sovereignty and dangerous if Lord Phillips thought Parliament had, on the contrary, no power to override its own privilege, or even that it had to use “clear words” to do so, which are the only logical alternatives. This just illustrates the surly confusion many MPs seem to be in about Parliamentary privilege, which they think is simply about judges giving them “nuff respect”.
Bill Cash’s European Scrutiny Committee of the Commons is looking at the EU Bill, and in particular is considering very closely clause 18, William Hague’s “national sovereignty clause”, which I’ve written about before. If you’re as interested as I am in this clause and the relationship between EU law and our own constitution, you’ll want to read or perhaps watch the evidence given on Monday by Professors Paul Craig of Oxford University and Trevor Hartley of LSE, and today by Professors Anthony Bradley of Oxford, Trevor Allan of Cambridge and Adam Tomkins of Glasgow.
You can see the videos here and here. The Professors’ written evidence is here, and a transcript of the evidence of Professors Craig and Hartley is here.
Interestingly all these academic lawyers have told the committee they think clause 18 is of no practical effect – I’m glad they agree with me. Professors Craig and Bradley seemed a bit more sympathetic than the others (and than I am) to the idea of its having “symbolic” importance. I can’t see what the point of that is.
Today I thought Professor Bradley quite often seemed to stray into what he thought the law should be rather than explaining what he think it is, which I’m not sure was the most helpful approach to take. Professor Allan though (at 10:52:30) explained very well why clause 18 is no defence to the argument that EU law is entrenched in the UK, which was defeated in the “metric martyrs” case, and which Eurosceptics fear.
Most impressive to my mind was Professor Tomkins. I’m not sure I’m persuaded he’s right that Parliamentary sovereignty is not a common law principle (if not, then how is it law at all?) but he seemed to me admirably clear on what Parliamentary sovereignty is and what it’s not and importantly, he drew attention to the fact that this sort of legislation can be dangerous. He was also interesting on implied repeal (at about 12:15:50) and severely critical of the explanatory notes to the bill (12:26:40).
At one point (12:07:20) his session reminded me of the sort of meeting I used to attend between ministers and lawyers, in which after a couple of hours the minister exasperatedly asks: So what do we need to do to achieve what I want? And the lawyer replies: What do you want? I think the real problem is that Eurosceptics have no clear idea of what they want a sovereignty clause to do. I think the government’s policy is to provide an empty sop to Eurosceptics, which is exactly what clause 18 does. The question is, will Eurosceptics on this committee realise that’s what’s happening?
Watching today’s evidence I was struck yet again by how strangely obsessed MPs are by the “notwithstanding” issue Bill Cash goes on and on about – in other words, whether the courts would given effect to UK legislation inconsistent with EU law, if it said expressly it applied “nothwithstanding” the European Communities Act 1972, while leaving the 1972 Act alone. Why Bill Cash or anyone else thinks MPs would ever want to present the courts with this conundrum, I have no idea. The only reason for doing it would be the pure fun of it. If you seriously wanted national law to derogate from EU law you’d expressly amend the ECA 1972, and the courts would have no problem.