Testing the limits of the law

From Griffith REVIEW Postscripts
© Copyright Griffith University & the author.

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Barbara Gunnell

6 February 2012

Assange's trials

Say what you like about Julian Assange (and everybody does - with greater variety and certainty than of almost any other living being) he has scored an historic first in the British judicial system.

His case is the first to have been tweeted from the courtroom to the world at every stage, from lowly magistrates' to the UK's new Supreme Court which two years ago replaced the House of Lords as the UK's final court of appeal. That decision by senior District Judge Howard Riddle back in December 2010 to allow tweeting at Julian Assange's first bail hearing now looks uncontroversial. Almost everything else about Assange v Swedish Judicial Authority remains as bitterly contested as ever.

But, in the tantalising way of long drawn-out cases, the debatable legal territory seems never to concern matters such as who did what and why.

So anyone attending Court One last week to hear why Sweden came to need to question Assange about sexual relations with two women in Stockholm would have been disappointed. As would anyone wanting to hear discussion of why this request came at just that moment in his chaotic life when his organisation WikiLeaks had done most to offend powerful US interests by sharing with other media hundreds of thousands of classified documents.

The short version of the Assange story (which I wrote about at length in Griffith REVIEW 32: Wicked Problems, Exquisite Dilemmas) being debated in the Supreme Court on 1 and 2 February was that Julian Assange believed the European Arrest Warrant for his extradition to Sweden had been invalidly issued and thus had breached his human rights. He was appealing against extradition.

The problem for the Supreme Court, which will make its decision in the coming weeks, is that if Assange is right it will throw into disarray the entire framework for extradition between European states, since Sweden's alleged errors in issuing the warrant turn out to be commonplace around Europe. The unintended consequence of an Assange victory would be to make cooperation between European states in bringing criminals to justice far more difficult. That makes it also the problem for Assange. This much-referred to Framework was, all agree, cobbled together in haste in the wake of the 9/11 attacks but its intention was to make it easier to cooperate efficiently in the face of a perceived terrorist threat. It may be a bad law but it is the law.

In the café of the UK's Supreme Court - a white-tiled atrium with the antiseptic feel of a posh hotel lavatory - you can buy a postcard of the Supreme Court's nine Lords and one Lady. They look magnificent, if weighed down, in their gold brocade robes. A visitors' leaflet points out that the Justices wear these robes on ceremonial occasions only and that advocates appearing before the Court may by mutual agreement also dispense with traditional court dress.

Lawyers in the case of Assange v Swedish Judicial Authority chose to be modern so that, in contrast with the fusty Victorian formality of the earlier wigged and gowned hearings, Julian Assange's final attempt to resist extradition to Sweden took place in a business-like setting. The proceedings were televised, live-streamed, and relayed around the world. Microphones worked. It was a twenty-first century affair (reference to the sixth century Justinian Code notwithstanding).

The Assange trials have seen the emergence of another modernisation. Since his first attempt to resist deportation, argued at a magistrates' court sited in the grounds of a high-security prison, Assange's team has become more and more feminised. Mark Stephens, the bombastic media lawyer given to political proclamations outside the court, has been replaced by the quietly spoken human rights expert Gareth Peirce.

Peirce gives no interviews and makes few statements. She takes on and wins tough and unpopular cases, often ensuring that those with little public sympathy are nonetheless protected from faulty legal procedures. Assange's leading barrister in the Belmarsh hearings was the Australian-born high-profile human rights and media lawyer Geoffrey Robertson QC (who continues to argue for Assange). But at the Supreme Court, the case against deportation was presented by Dinah Rose QC, described as a rising star. Named ‘Silk of the Year' in the Human Rights and Public Law category in 2011 by Chambers Bar Awards, her fluent performance at the Supreme Court Assange hearing almost drew an inappropriate round of applause when she sat down after several hours of unfaltering argument.

Thanks to live-streaming, we may even see a sudden surge in women choosing law as a career. A number of young women watching Dinah Rose, calm, confident and even funny in her delivery, tweeted that she was their new role model. Another impressive woman on the Assange team is Jennifer Robinson, formerly with Mark Stephens' firm. Australian-born, she has remained an adviser and friend of Assange despite his change of solicitors. Robinson flew in to London from the US for the hearing having earlier in the week accidentally bumped into the United States Attorney General Eric Holder in a cinema and challenged him over the US treatment of Bradley Manning and WikiLeaks. ‘When I realised he was behind me,' she told me, ‘I couldn't not say something!'

The quiet, persuasive but technical argument of the new team is that the European framework on extraditions requires a ‘judicial' authority to issue a warrant. In the British legal tradition, this means that it must be independent. It cannot be a prosecuting authority or a government authority or a police officer. Marianne Ny, the Swedish prosecutor seeking extradition is not, in this definition, an independent judicial authority. ‘Other countries do it like this' does not make it right, argued Rose.

Sweden has been represented in court from the outset by Clare Montgomery, another highly respected QC, who lists among her past triumphs saving former Chilean dictator Augusto Pinochet from extradition from the UK to Spain in 1998. Montgomery questioned the impartiality of one of the law Lords of that time on the grounds that he was married to a human rights activist.

A former world-class fencer (literally), Montgomery has represented Sweden's case somewhat aggressively (she once parried Geoffrey Robertson's argument about the allegation of rape with the aside that he clearly knew about rough consensual sex). Her argument in this court was simpler: that the Europe-wide framework for extradition allows Sweden to decide for itself what is a ‘judicial authority'. There is, Montgomery has argued, therefore no debate to be had about whether the Swedish prosecutor is the appropriate authority. She is if Sweden declares she is.

Before the hearing, I asked more seasoned legal reporters what they thought of Assange's chances. Like most of the pre-hearing reports, and indeed outlined in the judgment given by the High Court itself in November, they pointed out that since to declare the EAW invalid in this case would overturn the whole 2003 European Framework Decision for cooperating over extradition, Assange had a huge mountain to climb.

Those same commentators might still put their money on the extradition going ahead, but they wouldn't, I am sure, still bet the farm on it.

Endnote: Two days after the hearing concluded, the Court joined Twitter under the user name @UKSupremeCourt. A court spokesman has said that it will be tweeting the Court's decision which is expected in two to four weeks.

Barbara Gunnell is a writer and editor based in London. Her essay on Julian Assange ‘Rebel, public nuisance and dreamer’ appeared in Griffith REVIEW 32: Wicked Problems, Exquisite Dilemmas. Barbara is on Twitter @eastendlady.

5 December 2011

The Assange appeal – Stranded in the Strand

The Royal Courts of Justice in London’s Strand always provide an entertaining reminder that the British are by and large a law-abiding lot. They are also a good place to study England’s deeply embedded class system and pragmatic judicial practice. All were in evidence on Monday 5 December when two different ‘Breaking News’ stories emerged from Court 4: ‘Julian Assange granted leave to appeal’ and ‘Julian Assange refused permission to appeal’. Both in a way were true.

Since cameras are absolutely forbidden in court (but tweeting is allowed) let me describe the scene. Any ham Hollywood film about Dickensian London describes the decor. One half of the court is packed. Julian Assange sits surrounded by close allies and lawyers; in the row behind, his country mansion host Vaughan Smith, his Australian lawyer and friend Jennifer Robinson, journalist John Pilger and several WikiLeaks associates, squeeze themselves against each other into hard wooden benches. On the other side of the aisle a Queen’s Counsel could turn cartwheels. The Swedish Prosecution Authority team has no supporters or friends, only journalists to fill the space.

Proceedings begin when two wigged and robed judges – Mr Justice Ouseley and Lord Justice Thomas – mutter (no other word for it) their thoughts to each other and to the bewigged ‘silks’ three feet away from them, as if they were picking up mid-sentence a dinner-party conversation of some weeks earlier. No attempt is made to explain or speak to the courtroom or the public gallery or the press. Those of us fortunate enough to have been at the earlier dinner parties know who is who and even that Sweden’s QC is a former world-class fencer and that both barristers come from the same chambers (Matrix, ‘experts in extradition’ and also where Cherie Booth, barrister wife of former Prime Minister Tony Blair, operates).

There is an English expression, ‘plum in the mouth’, which describes an upper class failure to articulate, rendering much of what this social class says incomprehensible to all other classes. Court 4 was a veritable plum orchard. ‘Mutter...awest wowant...mutter...pwoper authowity wah wah’. Mark Summers, Assange’s QC, attempted to tell the judges why their earlier judgment might possibly be susceptible to an alternative interpretation without in any way hinting that their lordships could be other than perfect. Claire Montgomery, fencing QC for the Swedish Authority, had the easier task of telling their lordships how utterly excellent their first decision had been. Both judges wrote down her kind comments and left the room to confer.

Justices Ouseley and Thomas had ruled less than a month before that Assange should be extradited to Sweden under a European Arrest Warrant to be questioned about allegations that he had sexually molested two women. Assange, at this hearing, was seeking permission to appeal to the Supreme Court against that decision. The judges were being asked in effect to say that their earlier judgment could be wrong. Unsurprisingly they did not say that.

After not many minutes’ deliberation they returned and muttered that leave to appeal had been refused. However, they added, since the operation of the European Arrest Warrant was a matter of public importance, Julian Assange could appeal. So could he appeal or couldn’t he? Everyone looked at their neighbour quizzically and asked what had happened. The WikiLeaks team, including stern Kristin Hrafnsson, looked nonplussed. Assange seemed neither devastated nor pleased. Summers and Montgomery gave no clue that they had won or lost. Alexi Mostrous, from the London Times, tweeted with precision at 10.34 am a summary that is hardly bettered by any subsequent more considered reports:

‘Great result for #Assange. Refused appeal but judges say it’s of "general public importance" – so he can appeal directly to Supreme Court’ @aleximostrous

A few minutes later, Gareth Peirce, the soft-spoken and shy human rights lawyer who has taken over Assange’s case was persuaded to explain to the press outside the courtroom what this meant. It was a result no one seemed to expect. He had not been granted leave to appeal but may write within fourteen days to the Supreme Court to ask if they are willing to hear an appeal. Three new judges will consider whether to hear the case; Lord Thomas has suggested that if they do decide to hear the case the point of law in question should be decided as quickly as possible. Since Julian Assange is about to tick up a year of being electronically tagged he would possibly agree. If the judges say no, that is the end of the road. Or it is until another (European?) rabbit is pulled from the hat.

So, back to those law-abiding Brits I mentioned at the beginning. I don’t mean the judges who appear to have shrugged off the responsibility of deciding even whether some other body should decide. I mean the Assange and Bradley Manning supporters outside the court who waved banners and chanted while the police pretended to look ferocious and prevent them from obstructing the pavement. The protesters for their part pretended to look aggrieved and oppressed. Pretended? Yes, I think so. I had been inside the court, left the building, and crossed the road before I remembered someone I needed to speak to. So I went back through the crowd, past the police and back through the wrought iron gates and Victorian carved porch. No policeman stopped me. No press or court pass was required. Anyone among the crowd could equally have gone in and out of the building with me as long as they put their bags through the X-ray machine (and left their banners in the lobby). Waiting outside for winners and losers to come out and make their statements is a ritual. It shows that justice is public and everyone can have their say (even if you can’t hear the judges).

And in due course Julian Assange did emerge and announce himself pleased with the result before returning to an East Anglian curfew that is just a few days short of a year. In fourteen days’ time, by when he must have made his final appeal, it will be 19 December. Unless the Supreme Court judges act with uncharacteristic haste, it is absolutely certain that Assange will be spending a second Christmas in wintery Norfolk.

15 July 2011

The Assange appeal and News of the World scandal

JULIAN Assange’s appeal against extradition from England, heard in London’s High Court earlier this week, closed, as expected, with a delayed decision. We will wait two to three weeks to see if Assange has been successful or whether he must go to Sweden to answer questions about alleged sexual offences. Despite a few sensational headlines and the oddity of two senior judges – Lord Justice Thomas and Mr Justice Ouseley – opining on ‘normal wear and tear’ of condoms and involuntary erections while sleeping (‘the question is what he does with it,’ thought Ousely), this was, at base, a technical hearing about the validity of a European Arrest Warrant, not an examination of bedroom behaviour in Stockholm.

In fact, the courtroom exchanges did not even concern themselves with whether the events known mainly from leaked Swedish police reports actually happened, only on whether, if they had happened, they would be offences in British law. Hard, then, to understand how the Daily Mail got its headline (‘I want to make you pregnant...I prefer virgins’), which the two-million-circulation daily says Assange is ‘accused’ of saying.

As it happens, he is not accused of that, nor – and this was a major part of his team’s case – anything at all. Their argument is that Assange is being sought for questioning in advance of any accusations or charges, a kind of fishing expedition for Swedish prosecutors that the hastily drawn together legislation governing the European Arrest Warrant may or may not support.

The hearing remained relatively low-key compared to the media circus that accompanied the three days of Assange’s first appeal against extradition in February this year (which I wrote about in Griffith REVIEW 32: Wicked Problems, Exquisite Dilemmas ). This must have pleased Gareth Peirce, the highly respected British human rights lawyer who has now taken over the case from Mark Stephens, whose firm specialises in media law. She has made it known that she wants the case to proceed with ‘sensitivity and respect’ for all parties. So, at this hearing, there was no declaiming from the steps of the Court, no political statements about truth and justice from Assange or his lawyer and no mutterings about ‘dark forces’ and ‘honey traps’.

Those who know Peirce do not see her call for respect as a mere PR stunt. Her reputation is of being shrewd and tenacious and winning hard cases. But she is also respected for straightforwardness and moral fibre. When the prosecution’s fierce barrister, Clare Montgomery, dropped a sheaf of papers mid-delivery (and had become somewhat flustered) it was Peirce who, virtually unnoticed, crossed the floor to gather them up and return them to her. You cannot imagine many top lawyers doing that (nor Peirce behaving otherwise).

As was bound to happen, references to sex grabbed the media attention, but what the judges will be deciding in the coming days is whether forcing Assange to Sweden by use of a European Arrest Warrant is appropriate in this case. There is increasing concern that the legislation governing the EAW, adopted in the UK in 2003 and drawn up in the aftermath of 9/11 to ensure cross-border cooperation on bringing terrorists to justice, is being used as a sledgehammer to deal with trivial offences causing disproportionate hardship. (Offences have included running an overdraft and stealing a dessert). That is why Ben Emmerson, QC for Assange has made clear that if they lose in the High Court they will be taking the case to further appeal.

Outside, the supporters and television crews were present in sufficient numbers to keep the police alert and provide the media with images. But there was nothing like the media scrum of the February hearings. This is partly for reasons to do with the case itself. The Belmarsh appeal took place amid major and much-publicised fallings-out within the WikiLeaks team and with the Guardian and New York Times. Assange’s former colleague, Daniel Domscheit-Berg, had just published a whiney memoir of his days with WikiLeaks accusing Assange of megalomania and cruelty to cats. The leak of masses of diplomatic cables was still very hot news, the Arab uprisings were underway and the press was agog for details of how the ‘most hated man in America’ had come to face rape charges in Sweden.

BUT THE MAIN reason for the cooling of press interest in the Assange case is that the days of the High Court hearing coincided with the climax of another sensational story.

A phone-hacking scandal has been unraveling in the UK over several years, the key elements of which involve a Murdoch-owned newspaper, (the News of the World), the prime minister’s former  press secretary and collusion between press and police to illegally access  the voicemails of hundreds of prominent people and less prominent victims of family tragedies. In the days leading up to the Assange trial News Corporation closed the News of the World and Rupert Murdoch declared himself on his way to London to sort out the issue.  After all, an £8 billion bid for total control of BSkyB was at stake. (News Corp subsequently pulled out of the bid).

Press and public have watched aghast AS those whose private messages were intercepted were revealed to include members of the royal family,  the former prime minister (while he was in office) and a murdered teenager... The list of those culpably aware of or involved in this illegal behaviour has gone higher and higher up the News Corporation chain of command, implicating senior police officers and politicians.

Hardly surprising, then, that as the barristers for Sweden and Julian Assange made their closing submissions, the media caravan had moved on. But Rupert Murdoch may have done his fellow Australian a good turn. Being pushed out of the limelight could turn out to be just what the Assange team needed.