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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Everyone's forgotten the one issue that united the Labour party

There was a time when Ed Miliband spoke at Momentum rallies.

To label the row over the EU at Thursday’s Labour leadership hustings "fireworks" would be to endow it with more beauty than it deserves. Owen Smith’s dogged condemnation of John McDonnell’s absence from a Remain rally – only for Corbyn to point out that his absence was for medical reasons – ought to go down as a cringing new low point in the campaign. 

Not so long ago, we were all friends. In the course of the EU referendum, almost all of the protagonists in the current debacle spoke alongside each other and praised one another’s efforts. At a local level, party activists of all stripes joined forces. Two days before polling day, Momentum activists helped organise an impromptu rally. Ed Miliband was the headline speaker, and was cheered on. 

If you take the simple version of the debate, Labour’s schism on the EU appears as an aberration of the usual dynamics of left and right in the party. Labour's left is supposedly cheering a position which avoids advocating what it believes in (Remain), because it would lose votes. Meanwhile, the right claims to be dying in a ditch for its principles - no matter what the consequences for Labour’s support in Leave-voting heartlands.

Smith wants to oppose Brexit, even after the vote, on the basis of using every available procedural mechanism. He would whip MPs against the invocation of Article 50, refuse to implement it in government, and run on a manifesto of staying in the EU. For the die-hard Europhiles on the left – and I count myself among these, having run the Another Europe is Possible campaign during the referendum – there ought to be no contest as to who to support. On a result that is so damaging to people’s lives and so rooted in prejudice, how could we ever accept that there is such a thing as a "final word"? 

And yet, on the basic principles that lie behind a progressive version of EU membership, such as freedom of movement, Smith seems to contradict himself. Right at the outset of the Labour leadership, Smith took to Newsnight to express his view – typical of many politicians moulded in the era of New Labour – that Labour needed to “listen” to the views Leave voters by simply adopting them, regardless of whether or not they were right. There were, he said, “too many” immigrants in some parts of the country. 

Unlike Smith, Corbyn has not made his post-Brexit policy a headline feature of the campaign, and it is less widely understood. But it is clear, via the five "red lines" outlined by John McDonnell at the end of June:

  1. full access to the single market
  2. membership of the European investment bank
  3. access to trading rights for financial services sector
  4. full residency rights for all EU nationals in the UK and all UK nationals in the EU, and
  5. the enshrinement of EU protections for workers. 

Without these five conditions being met, Labour would presumably not support the invocation of Article 50. So if, as seems likely, a Conservative government would never meet these five conditions, would there be any real difference in how a Corbyn leadership would handle the situation? 

The fight over the legacy of the referendum is theatrical at times. The mutual mistrust last week played out on the stage in front of a mass televised audience. Some Corbyn supporters jeered Smith as he made the case for another referendum. Smith accused Corbyn of not even voting for Remain, and wouldn’t let it go. But, deep down, the division is really about a difference of emphasis. 

It speaks to a deeper truth about the future of Britain in Europe. During the referendum, the establishment case for Remain floundered because it refused to make the case that unemployment and declining public services were the result of austerity, not immigrants. Being spearheaded by Conservatives, it couldn’t. It fell to the left to offer the ideological counter attack that was needed – and we failed to reach enough people. 

As a result, what we got was a popular mandate for petty racism and a potentially long-term shift to the right in British politics, endangering a whole raft of workplace and legal protections along the way. Now that it has happened, anyone who really hopes to overcome either Brexit, or the meaning of Brexit, has to address the core attitudes and debates at their root. Then as now, it is only clear left-wing ideas – free from any attempt to triangulate towards anti-migrant sentiment– that can have any hope of success. 

The real dividing lines in Labour are not about the EU. If they were, the Eurosceptic Frank Field would not be backing Smith. For all that it may be convenient to deny it, Europe was once, briefly, the issue that united the Labour Party. One day, the issues at stake in the referendum may do so again – but only if Labour consolidates itself around a strategy for convincing people of ideas, rather than simply reaching for procedural levers.