Assange: does it matter if ministers mislead Parliament?

31 May 2012 by David Hart KC

Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment

Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.

The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.

But the decision was far from unanimous, with the 2 dissenters punching above their weight in response to the 5 in the majority. Majority and minority started from different positions. The majority said

(1) the Extradition Act 2003 was passed to give effect to the EU Framework Decision on the European Arrest Warrant;

(2) the clear meaning of the EU Framework Decision was that prosecutors were included with the phrase “judicial authority; this emerged from looking at the development of the various drafts leading to the decision

(3) the 2003 Act ought to be interpreted in accordance with the Framework Decision.

The minority said

(1) in UK terms, the meaning of the phrase “judicial authority” was clear; it meant “judge” or “court”;

(2) that meaning was reinforced by what ministers said the phrase meant;

(3) the Framework Decision was not clear as to what it meant; an earlier draft including prosecutors had been modified so that it became far from clear that they were included;

(4) the Framework Decision (unlike most of EU law) is not part of English law; section 2(1) of the European Communities Act 1972 does not cover it.

(5) Hence, there was no duty of conforming interpretation  to make the English statute align with the EU instrument;

(6) the English statute only had to be read in the light of the EU Framework Decision in the case of ambiguity, which was not present here.

So from those battle lines, a few highlights. Lord Phillips sets out the full history of how the current Framework Decision arises, plus an apparently convincing account of how the French term “autorité judiciarie”, which can cover both judge and prosecutor, underlay the English phrase. He also dealt with a major submission by Assange that the meaning should be aligned with the terms of Article 5 of the ECHR, where the term “competent legal authority” or “autorité judiciare” has been consistently interpreted in Strasbourg cases (apparently 17 of them) as referring to a judge. Irrelevant, he said, different context, different meaning, and as all public lawyers know, context is all.

Now to the parliamentary material. Various members of the Supreme Court glossed these in one direction or another, but it seems as if Parliament was sold a pass – if the majority of the Court is right. The texts put before the Court were considerable, but the following set out in Lord Mance’s judgment are perhaps the peaches:

On 10 December 2001 the responsible minister was also being pressed by European Standing Committee B of the House of Commons and gave assurances as the following exchange shows ..Mrs Dunwoody: With respect, I ask again, what is the definition of ‘judicial authority’? ………

Mr Ainsworth: The definition of a ‘judicial authority’ is exactly that. In this country, it is the Bow Street magistrates’ court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant.”

It is clear that the only people who the minister had in mind as making requests under the existing system were courts, judges or magistrates, of one sort or another.

So what to make of this? The minority said that this was highly relevant, in that it was explaining what Parliament meant by the measure which it was about to enact. The majority, coming from the other direction, said (and I paraphrase, perhaps tendentiously) it does not really matter what you say in Parliament if you are trying to enact something in conformity with a European measure: because you are then signing up to whatever the measure means when it is interpreted in Europe. Anyway, they said, that all this Parliamentary stuff is inadmissible on the principles which determine its relevance – Pepper v. Hart.

The judgments are long, but well worth the read. Underlying all the analysis, is one conceptual difference. The minority does not see why the English courts should strain to make something mean something different from its ordinary sense. The majority want the English interpretation to align with the rest of the EU with whom extraditions are happening all the time. Where we are in pure Euro-land, the latter view must prevail. Here, for reasons set out convincingly by Lord Mance, we are in a strange (rather typically English) fudge between being in and being out. And that is why Julian Assange pushed it so close to the wire.

So what is to come? The majority placed some reliance on the fact that under the Vienna Convention on Treaties it was relevant that the treaty (in this case, the Decision) had been interpreted in  a particular way since it was agreed upon. The minority denied any consistent pattern. But, said Assange’s counsel, this point had never been raised before. Each party therefore has a go at convincing the Court that the majority is right or wrong, as the case may be. Equally, you wonder whether this is the end of this case, what with Strasbourg lurking there -who may, possibly, have a different interpretation of the two words which gave rise to all this ink.