Lord Kerr on the Assange case

by Carl Gardner on June 28, 2012

Two weeks ago now at Inner Temple, the Supreme Court Justice Lord Kerr gave the fifth annual Boydell Lecture – and chose as his title A European Understanding of “Judicial Authority” as highlighted in Assange v Swedish Prosecution Authority. The text’s now been published, and it gives an interesting insight into the case – on which Lord Kerr had given judgment only a fortnight before.

Interestingly this published text doesn’t include Lord Kerr’s remarks about

the limitless capacity of extradition law to induce ennui

extradition being, he said,

a notorious black hole for government lawyers

On the serious legal points, though, what’s interesting is the extent to which Lord Kerr approached the European Arrest Warrant system as a harmonizing EU measure:

the Framework Decision was no mere tinkering with the scheme of extradition … what underpins the new scheme is the notion that the legal systems of the various member states have been subsumed into a supranational order.

I was interested that he said

As a matter of principle, equal weight must be given to the English and French versions

of the Framework Directive, but that did make me wonder whether the Justices had considered any of the other language versions. An EU instrument is after all equally authentic in all the EU languages, so neither English nor French has any special status. It seems to me that the Supreme Court might have found it easier to dismiss Assange’s appeal had they considered the meaning of the German term for “judicial authority” – Justizbehörde – which seems to me much less obviously to imply a judge than the English does.

Lord Kerr sums up his view on the main point as follows:

the plain fact is, as the framers of the Framework Decision well knew, public prosecutors had regularly performed this function in many of the member states. Some agency would have to perform the function in the future. Public prosecutors had been expressly mentioned in the September 2001 draft. It seems to me that, against that background, it is impossible to conclude that it had been agreed that they be excluded from the role.

Here’s the full published text of his speech:

{ 1 comment… read it below or add one }

1 David Boothroyd July 27, 2012 at 00:54

There’s a very interesting story in The Guardian this morning (it happens occasionally) to the effect that the Ecuadorians are trying to get some kind of assurance that Assange won’t be extradited to the USA at the end of whatever legal process happens in Sweden. The implication, which perhaps the Guardian doesn’t want to draw out too clearly, is that Ecuador has decided to boot him out (perhaps while the rest of the world is busy watching the Olympics) and needs to save face with Assange and his supporters some way.

I still don’t see how a national of one country working in a second country could possibly be extradited for revealing the secrets of a third country.

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