2012-05-31 How the UK's Supreme Court is wrong on the Julian Assange Appeal

Notwithstanding the clear UK meaning of ‘judicial authority’ to mean a magistrate, judge or court; notwithstanding that Parliamentary debates and reading speeches reiterated that definition; notwithstanding the primacy of the UK parliament to enact law for effect in the UK; notwithstanding the Framework Agreement using the same word(s) in an official English version of it as the Extradition Act: the Supreme Court (decided cases) has stated by majority that parliamentarians were conned because an obscure Convention gives a contrary, minority meaning.

This article shall attempt to address - in the main - the issue of application of Article 31.3(b) of the Vienna Convention on the Law of Treaties as applied in the majority judgement at the UK Supreme Court Appeal (brought by Julian Assange as plaintiff) handed down on 30th May 2012.

While the writer is no expert on UK and European law, I have much more than a passing familiarity with the right to argue legislative intent in court thanks to our Australian (and NSW) Acts Interpretation Act which allows the introduction into legal argument of extrinsic material such as parliamentary second reading speeches to clarify legislation that is ambiguous or obscure.

For a time the UK case law of Pepper v Hart [1993] AC 593 held sway and allowed such extrinsic material but it appears to have been watered down in later decisions such that it appears to be non operative if not extinct. The UK's legislative intent in the case of the UK's Extradition Act 2003 was quite clear, (as is the definition of a 'judicial authority' in a UK context) as Lord Mance in dissent put it:

I conclude that, whatever may be the meaning of the Framework Decision as a matter of European law, the intention of Parliament and the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge or magistrate.

THE MAJORITY
The majority ruled that parliamentary intent had no bearing, or was outweighed by other factors and especially the Vienna Convention on the Law of Treaties , which states:

31.3. There shall be taken into account, together with the context:
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

Lord Phillips said about that treaty (p.67):

In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation, to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation"....The practices of the Member States in relation to those they appointed as issuing and executing "judicial authorities" coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision.

How Lord Phillips can reconcile this with the UK Minister's explicit definition of 'judicial authority' (Magistrate, Judge or Court) in the Parliamentary debate on the Extradition Bill as 'agreement' per the Vienna Convention to later practices of some other EU EAW nations: is a moot point that will likely be raised by Julian Assange's lawyers in due course.

A later question that arises: did the UK acquiesce in some other nations nominating prosecutors as judicial authorities? And is that at all relevant? But this of course is in the context of only a minority of EU nations that are using prosecutors as 'judicial authorities' for the purposes of the EAW system, (which I won't go into as that detail is lengthy and laid out in the judgement).

At one level of logic, minority 'practice' per the Vienna Convention is highly suggestive of the utilization of a minority definition and cannot by any stretch be, or result in, a 'majority' definition. Lord Phillips is applying the meaning of the two words to the Framework Agreement in an EU context, which he is saying overrides any contrary meaning in the UK Extradition Act.

The problem with that is that the UK enacted an Extradition Act, it did not enact the Framework Agreement word for word (nor enact any legislation in the French language - and on that subject, that was another red herring raised by Lord Phillips. This was a justification he used for excising the UK meaning of 'judicial authority' by asserting that French was the 'original' translation, more on that later.)

To say that a minority practice therefore can be determinative or a 'legitimate guide' leading to the definition of a judicial authority encompassing a 'prosecutor'for the majority: raises serious questions in law.

Lord Walker (para 92-94) agreed with the majority on the basis:

The reasoning of the majority that I find most compelling is that on the application of the Vienna Convention...and on the non-application of the principle in Pepper v Hart ...[extrinsic material as above]

...If the parliamentary material is disregarded, as I think it must be, the
Vienna Convention point is to my mind determinative.

Lord Kerr (p.106) raised the point that prior to the Framework Agreement it was traditional for some continental prosecutors to issue extradition warrants, and that this was not extinguished (shades of the the Mabo decision of the High Court of Australia) in the provisions in the Framework decision.

As far as the Vienna Convention was concerned, citing a commentary on it in relation to defining 'agreement':

...it is suggested that what is required to establish the agreement of the parties is that there should be active practice on the part of at least some of the parties to the treaty; that this should not be haphazard; and it must have been acquiesced in or - at least - not objected to by the other parties. Lord Dyson considered that the practice of appointing prosecutors as judicial authorities was sufficiently widespread and free from objection to meet these criteria and, in so far as this conclusion relates to judicial authorities who issue European Arrest Warrants, I agree.

Even if it meets the criteria, should it be determinative considering the Convention says only to 'take it into account' and 'in context' only ? The key to this argument is in wiping out the intent and law of the UK Parliament and make paramount as a basis of reasoning, a somewhat obscure Convention.

(p.108) ...The critical question in the present appeal is whether there is a sufficiently widespread and uncontroversial practice in relation to issuing authorities to allow that provision to come into play in the case of prosecutors who issue European Arrest Warrants. As I understand it, Lord Dyson's conclusion that there is has been accepted by Lord Mance and I agree with both.

I don't think Lord Mance agreed that it was a critical question. The critical question really is whether or not the UK is a nation able to enact legislation without judges enforcing continental interpretations based on minority practice.

(p.109) ...the Framework Decision does not exclude prosecutors from the category of issuing judicial authorities.

In practice, that is a fact, but does that imply and apply a form of compulsory uniformity to the UK which has legislation that excludes prosecutors as judicial authorities?

Lord Dyson on the question of the Vienna Convention (p.131):

The fact that it is only in the majority (and not all) of the Member States
that the issuing judicial authority is a judge is not inconsistent with the existence of an agreement established by subsequent practice that a public prosecutor may be a judicial authority within the meaning of the Framework Decision. There is nothing to suggest that Member States which do not have public prosecutors as their issuing judicial authorities criticise those that do.

Rather than 'not inconsistent' a better choice of word(s) is 'anomaly' which by resolving the case against Assange in the way they did means a principle of 'lowest common denominator' is being applied among other criticisms. I would have thought the ongoing review of the Extradition Act due to numerous complaints inherently is critical of an EAW regime which not incidentally includes prosecutors as judicial authorities.

THE DISSENTERS
Lady Hale (p.191) also referred to Article 31.3(b) of the Vienna Convention on the Law of Treaties and asked the question:

Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement?

Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondent's extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others.

This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time.

Hear hear. I anticipate supporters of Julian Assange will agree, as well as many if not most Australian practitioners of law.

Further from Lady Hale (p.192.)

We have to interpret the Act of Parliament. Even without reference to the
parliamentary materials, it seems clear that the term "judicial authority" is
restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of "judicial" in United Kingdom law. We may talk about the "legal system" or the "justice system" when we mean, not only the courts, but those involved in the administration of justice. But when we use the word "judicial" we mean a court, tribunal, judge or magistrate.

Second, the Act uses the same term in relation to both the issuing and executing "judicial authority". The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute - especially in the same place - mean the same thing.

Better than a presumption when there is no contrary indication in the Act itself.

Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word "judicial" ("other officer authorised by law to exercise judicial power") in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word "judicial" which coincides with ours.

The decision of the majority judges by their selective application of contrary interpretations of the same words against the appellant Assange is worrying to say the least.

(p.193.) It is also quite clear from the parliamentary history detailed by Lord Mance that "judicial" was deliberately inserted into the Bill in order to limit the authorities who could issue European arrest warrants to bodies which we would recognise as judicial. In this respect, I would place more weight on the parliamentary history - in terms of the changes made to the Bill during its passage through Parliament - than on the assurances given by ministers. Why make the amendments eventually made unless to make the matter clear?

Indeed.

Lady Hale's conclusion.
(p.194.) As Lord Filkin said to the House of Lords (Hansard (HL Debates), 1 May 2003, col 858), Parliament is sovereign. This is not a case where Parliament has told us that we must disregard or interpret away the intention of the legislation. I would therefore have allowed this appeal.

Lord Mance on the Vienna Convention (p.242.)
For subsequent practice in the application of the parties to be relevant to be taken into account in the interpretation of the Framework Decision, it must under article 31.3 be practice which "establishes the agreement of the parties regarding its interpretation". It must be practice "which clearly establishes the understanding of all the parties regarding its interpretation", although "subsequent practice by individual parties also has some probative value": Brownlie, Principles of Public International Law, 7th ed (2008) pp 633-634.

Disagreeing with Lord Phillips:
Evidently suspect practice consisting of the use and nomination of executive authorities by a few states cannot come near establishing "the agreement of the parties regarding [the] interpretation of the Framework Decision" within the meaning of article 31.3 of the Vienna Convention on the Law of Treaties.

The overriding principle (p.265):

...our loyalty must be to Parliament's intention in enacting the Extradition Act 2003. The implications of this in the present context are in my view clear.

Lord Mance's conclusion (p.266)
In the result, I conclude that, whatever may be the meaning of the
Framework Decision as a matter of European law, the intention of Parliament and the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge or magistrate. It would follow from my conclusions that the arrest warrant issued by the Swedish Prosecution Authority is incapable of recognition in the United Kingdom under section 2(2) of the 2003Act.

Parliament could change the law in this respect and provide for wider
recognition if it wished, but that would of course be for it to debate and decide. Iwould therefore allow this appeal, and set aside the order for Mr Assange's
extradition to Sweden.

Further arguments against the decision.

Craig Murray, former Ambassador and human rights activist expresses rather well the aspect of ignoring UK legislative meanings, taking a swipe at Lord Kerr:

But Kerr then goes on to say that only in the context of European surrender/extradition, "judicial authority" should be understood in a way that is absolutely contrary to its normal English meaning. In a cavalier way Kerr dispenses with a fundamental principle of English Law for centuries, that words are to be construed in their ordinary sense - which every law student in the land learns in week 1 of their course.

Then a swipe at Lord Phillips:

The majority all rested their dismissal of the appeal on the grounds that the parliamentary Act of 2003 must be interpreted in line with the EU decision or "Framework Agreement" which it was created to implement. They specifically state that where there is conflict the EU Framework Agreement must take precedence over British law.

What follows is absolutely astonishing. The Framework Agreement in its English version specifically states, in Article 1, that the European Arrest Warrant must be issued by a "judicial decision".

ie by a court and not a prosecutor.

Lord Philips seeks to get round this by a morally disgusting piece of legal casuistry. He states in terms that the French text should be followed and not the English (para 56 of the judgement). He argues: "The French version is the original and is to be preferred".

But:

...There is no "preferred original". Lord Philips is just getting over an insuperable obstacle to his argument.

Conclusion

It would appear that the Supreme Court's majority decision of the UK in the Assange appeal has not only ignored legal traditions including the primacy of Parliament in making the law, it has decided that any non-UK instrument such as a Framework Agreement treaty or even a Convention in interpreting treaties (neither enacted into UK domestic legislation) can be marshalled, along with some spurious reasonings, to overturn UK law.

The Court has apparently taken upon itself to enforce a sub narrative of EU conformity and solidarity, which means that any EU instrument signed onto by the UK can and will be interpreted by the Supreme Court by:

1)The most convenient 'official EU' language at hand that suits the purpose;
2)The most convenient Convention that suits the purpose;
3)The worst practice of the worst EU members in relation to the UK's legal heritage.

And when all is done they can say that parliamentarians were conned, but the reality is that the power to legislate has been severely impugned and they have usurped and conned the legislature.

This decision means that whenever an EU instrument such as the Framework Agreement is agreed to, the UK parliament may as well enact it word for word, preferably in every official EU language since whatever they intend, whatever they legislate in English, the Supreme Court in its perversity now appears to view the law as if it sits somewhere in a legal mishmash of a triangle combining the best that say Spain, Bulgaria and Estonia have to offer to replace the UK's legal heritage.