The Round up: Assange’s arrest warrant, victims of human traffickers, and a Convention Right victory for salmon fisherman

18 February 2018 by Guest Contributor

Eleanor Leydon brings us the latest developments in rights law.

In The News:

A Senior District Judge has ruled that upholding the warrant for Julian Assange’s arrest is both in the public interest and proportionate, albeit that Assange has already restricted his own freedom for several years. In determining the proportionality of the proceedings the judge had regard to the seriousness of the failure to surrender, the level of culpability at this stage of the proceedings, and the harm caused, including impact on the community.

The argument that the last five years were ‘adequate if not severe punishment’ for Assange’s actions was roundly rejected on both bases. The judge concluded that

When considering the public interest I have regard to the consequences of his failure to appear, one of which is the drain on resources that policing Mr Assange’s choice has caused….I must look at the impact on public confidence in the criminal justice system if Mr Assange is allowed to avoid a warrant for his arrest by staying out of reach of the police for years in conditions which are nothing like a prison.

Assange was found to have enjoyed both due process and substantial freedoms during his voluntarily imposed years at the Ecuadorian Embassy; the observations of the UN Working Group on Arbitrary Detention to the contrary were accorded little weight. An opinion produced by the group describing Assange’s situation as disproportionate and unreasonable was held to be based on factual misconceptions. Furthermore, Assange’s stay at the Embassy was not arbitrary on the Working Group’s definition: it was neither inappropriate, unjust, unpredictable, unreasonable, unnecessary nor disproportionate. In finding that Assange enjoyed substantial freedoms, the judge suspected that “If one were to ask one of the men incarcerated in Wandsworth prison whether conditions in the Ecuadorian embassy were akin to a remand in custody, the prisoner would dispute the working group’s assertions.”

The judge further made short shrift of the implication that Assange had shown willingness to cooperate in the course of justice. She concluded that

The impression I have…is that he is a man who wants to impose his terms on the course of justice, whether the course of justice is in this jurisdiction or in Sweden. He appears to consider himself above the normal rules of law and wants justice only if it goes in his favour.

The warrant was upheld, and whether section 6 proceedings are initiated under the Bail Act 1976 will depend on Assange’s circumstances when he is finally produced to the court.

In Other News…

• Three Home Office whistle-blowers have described the asylum system as a ‘lottery’, with applicants at the mercy of overworked staff making ‘cut and paste’ decisions, and ‘refusal-minded’ decision-makers who take pride in never granting asylum. Staff scramble to meet high turnover targets by using stock paragraphs for refusal minutes, and identikit responses to superficially similar facts: “In effect you aren’t doing things on a case-by-case basis. Say you have someone who has come from Eritrea and deserted the military … you might just say, well, I’ll just sort of cut and paste the decision I did last week.”
• The Polish President has approved a new law criminalising anyone accusing the Polish nation of participation or complicity in the atrocities committed by Germany during the Holocaust. Whilst the law was initially intended to criminalise the use of the phrase ‘Polish death camps’ to refer to sites like Auschwitz created on Polish-occupied soil, its vague drafting means it could be used to criminalise a far broader range of statements as a threat to the ‘dignity of the Polish Nation.’ The legislation has prompted growing concern about the nationalist narratives emerging from the governing populist party, as well as concerns that the law will produce a ‘chilling effect’ on discussion and understanding of the Holocaust.
• Lady Hale has again expressed her view that the UK’s courts and judiciary should be representative of its society, and further suggested that this should be achieved through affirmative action rather than positive discrimination. It remains necessary to reassure everybody that the best judges are appointed: diversity should be sought by ‘going out and trying to find the best of underrepresented groups,’ and encouraging talented candidates from less considered areas to apply.

In The Courts:

• PK (Ghana), R (On the Application Of) v The Secretary of State for the Home Department: Home Office immigration guidance regarding victims of trafficking failed to give effect to the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“the Convention”). Article (14)(1)(a) of the Convention states that Parties must issue residence permits to victims if their stay is considered “necessary owing to their personal situation”: comparatively, the Home Office guidance indicated that leave to remain should only be granted if personal circumstances were “compelling.” The Court of Appeal upheld the Appellant’s claim that this represented an overly onerous test. More fundamentally, Hickinbottom LJ could not accept the defendant’s submission that Article 14(1)(a) gave the Home Office ‘untrammelled’ discretion; rather, “necessary” must be seen through the prism of the Convention objectives. Accordingly, the relevant policy documents failed to reflect Article 14(1)(a) because they failed to engage with the relevant Convention objectives at all.
• LMN v Government of Turkey: the extradition of a British prisoner to Turkey would be incompatible with the appellant’s Article 3 right to freedom from torture or inhumane or degrading treatment. The relevant circumstances were twofold: firstly, there was a risk of suicide resulting from the appellant’s struggle with depression and PTSD, and as such a continuing need for medication and healthcare. Secondly, the greatly-increased prison population and prison overcrowding in Turkey following the failed coup of 2016 provided a strong enough circumstance to rebut the presumption that the Turkish state would comply with its international obligations, as a signatory to the European Convention on the Prevention of Torture. On the facts there was insufficient evidence that appropriate healthcare would be provided. Holroyde LJ emphasised that his decision was to be construed as fact-specific, and did not seek to make a more general judgment as to questions which might arise in other extradition proceedings.
• Mott, R (on the application of) v Environment Agency: Restrictive licensing conditions imposed on a salmon fisherman by the Environment Agency were disproportionate, and in contravention of his rights under Article 1 Protocol 1 of the ECHR. Interference with the right to peaceful enjoyment of possessions must not only pursue a legitimate aim in the public interest, the means must be proportionate to the aim and strike a ‘fair balance’ between community interests and the individual’s rights. Here, due to the severity and relative disproportionality of the impact on the appellant, a fair balance had not been struck: such interference was unlawful in the absence of compensation. The case showed exceptional facts: Lord Carnwath reiterated that national authorities have a wide margin of discretion in the imposition of necessary environmental controls.