Reconsidering Assange

The UK Supreme Court last week handed down its 5-2 split decision upholding the extradition of Wikileaks founder Julian Assange to Sweden, but later the same day the Court issued a “Further Statement” explaining it had granted Assanges’s lawyer 14 days to apply re-open the appeal for further written or oral submissions.

On reviewing the Court’s reasons Assange’s lawyer submitted the decision was made on a ground that was not argued at the hearing.

The question for the Court was whether it should validate the European Arrest Warrant seeking to extradite Assange to Sweden to be questioned concerning criminal complaints. The EAW was issued by a prosecutor in Sweden. In the UK such a warrant could only be issued by a judge. Assange’s lawyers argued that it is unfair to give the power of arrest to the same person who is seeking to put the accused in jail, and is therefore not independent.

The issue on the appeal was whether a “judicial authority” authorized to issue an EAW includes a prosecutor. If not, the warrant was not valid.

In reaching its decision to uphold the warrant, the majority of the Court apparently relied on the principle that permits recourse, as an aid to interpretation, to subsequent practice in the application of a treaty: if countries had subsequently interpreted “judicial authority” to include a prosecutor, that must be what the treaty means.

This was evidently not argued at the hearing.

The Further Statement promises to update on progress with this application and the Justices’ consideration of any such application, and confirms the extradition period will be stayed in the interim.