Assange and the Supreme Court decision

The extradition of an alleged rapist comes another step nearer

The Supreme Court has decided, by a majority of 5 to 2, that the European Arrest Warrant issued in respect of Julian Assange is valid.  This means that it is highly likely that Assange will now be extradited to Sweden for questioning in respect of allegations of rape and sexual assault - allegations which he denies.

Any extradition will not be immediate.  Assange’s legal team have been given fourteen days to apply for the Supreme Court to consider argument on the application of the Vienna Convention on the Law of Treaties, which in this case may affect the class of entities which can issue the warrants.  Depending on the interpretation of the relevant part of the Vienna Convention, it may not be that a prosecutor rather than a judicial body can issue an EAW.   

Assange’s legal team contend that this point was not subject to argument at the appeal hearing at the Supreme Court.  If the Supreme Court indeed had no oral or written submissions on the Vienna Convention at all, then it would be a remarkable oversight for the judges to have then relied on it by entirely their own motion.  As only the parties and the court will currently know what was submitted in written “skeleton” arguments, it is not yet clear the extent to which the point being made here is actually a good one.    If the application of the Vienna Convention has not been subject to legal argument in this appeal then it certainly should be, as it is clear from the judgments that at least two judges in the majority relied on it in their decision. 

The leading legal blogger Carl Gardner has also set out other applications which can be used by Assange’s legal team to delay or frustrate the extradition.  The points being made on the EAW regime by Assange and his team are not without merit, and it could be for the advantage of many other people that Assange and his lawyers are forcing the formidable and often illiberal EAWs to be subjected to anxious judicial scrutiny.  It should never be the case that EAWs should be issued lightly. 

Assange and his legal team - like any defendant and their lawyer - are fully entitled to use any available means so that his legal rights can be properly asserted. 

However,  one can also be critical of Assange's litigation strategy.  Assange may be well advised to return to Sweden to answer the serious allegations of rape and sexual assault, which otherwise would remain unanswered.   Rather than sinking his scarce resources in this peripheral litigation in London, it would seem far more sensible to devote energy and money to his substantive legal defence in Sweden.  For the allegations against Assange are objectively serious, and they do require a response.  The allegations really should be responded to sooner rather than later.  And it is sickening that many who should know better seek to deride or discredit the complaints and the complainants.  (On this, see the US blogger Kate Harding's 2010 post here.)

Given that Assange and his supporters contend that the allegations have no basis then a focus on the allegations themselves, and not on points about European Arrest Warrants, would seem to be the course for a wise man rather than a clever man.

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The EU’s willingness to take on Google shows just how stupid Brexit is

Outside the union the UK will be in a far weaker position to stand up for its citizens.

Google’s record €2.4bn (£2.12bn) fine for breaching European competition rules is an eye-catching example of the EU taking on the Silicon Valley giants. It is also just one part of a larger battle to get to grips with the influence of US-based web firms.

From fake news to tax, the European Commission has taken the lead in investigating and, in this instance, sanctioning, the likes of Google, Facebook, Apple and Amazon for practices it believes are either anti-competitive for European business or detrimental to the lives of its citizens.

Only in May the commission fined Facebook €110m for providing misleading information about its takeover of WhatsApp. In January, it issued a warning to Facebook over its role in spreading fake news. Last summer, it ordered Apple to pay an extra €13bn in tax it claims should have been paid in Ireland (the Irish government had offered a tax break). Now Google has been hit for favouring its own price comparison services in its search results. In other words, consumers who used Google to find the best price for a product across the internet were in fact being gently nudged towards the search engine giant's own comparison website.

As European Competition Commissioner Margrethe Vestager put it:

"Google has come up with many innovative products and services that have made a difference to our lives. That's a good thing. But Google's strategy for its comparison shopping service wasn't just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.

"What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation."

The border-busting power of these mostly US-based digital companies is increasingly defining how people across Europe and the rest of the world live their lives. It is for the most part hugely beneficial for the people who use their services, but the EU understandably wants to make sure it has some control over them.

This isn't about beating up on the tech companies. They are profit-maximising entities that have their own goals and agendas, and that's perfectly fine. But it's vital to to have a democratic entity that can represent the needs of its citizens. So far the EU has proved the only organisation with both the will and strength to do so.

The US Federal Communications Commission could also do more to provide a check on their power, but has rarely shown the determination to do so. And this is unlikely to change under Donald Trump - the US Congress recently voted to block proposed FCC rules on telecoms companies selling user data.

Other countries such as China have resisted the influence of the internet giants, but primarily by simply cutting off their access and relying on home-grown alternatives it can control better.  

And so it has fallen to the EU to fight to ensure that its citizens get the benefits of the digital revolution without handing complete control over our online lives to companies based far away.

It's a battle that the UK has never seemed especially keen on, and one it will be effectively retreat from when it leaves the EU.

Of course the UK government is likely to continue ramping up rhetoric on issues such as encryption, fake news and the dissemination of extremist views.

But after Brexit, its bargaining power will be weak, especially if the priority becomes bringing in foreign investment to counteract the impact Brexit will have on our finances. Unlike Ireland, we will not be told that offering huge tax breaks broke state aid rules. But if so much economic activity relies on their presence will our MPs and own regulatory bodies decide to stand up for the privacy rights of UK citizens?

As with trade, when it comes to dealing with large transnational challenges posed by the web, it is far better to be part of a large bloc speaking as one than a lone voice.

Companies such as Google and Facebook owe much of their success and power to their ability to easily transcend borders. It is unsurprising that the only democratic institution prepared and equipped to moderate that power is also built across borders.

After Brexit, Europe will most likely continue to defend the interests of its citizens against the worst excesses of the global web firms. But outside the EU, the UK will have very little power to resist them.

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