Julian Assange: do recent changes to extradition law make any difference?

by Carl Gardner on August 18, 2014

In a word – no.

In a press conference this morning, Julian Assange told reporters a Wikleaks spokesman could confirm that

I am leaving the embassy soon

and the Ecuadorian Foreign Minister, according to the Guardian

referred to recent changes to the extradition laws in the UK which he believed would mean Mr Assange would not be facing extradition if the case started today.

Notice he did not claim these changes make any actual difference now; merely that they would have made a difference had the case started today. It started (and ended) some time ago, so they make no difference at all.

The changes he’s referring to are the new sections 12A and 21A of the Extradition Act 2003, inserted by the Anti-social Behaviour, Crime and Policing Act 2014, amendments which took effect a few weeks ago, on 21 July.

The new section 12A brings in a new bar to extradition under a European Arrest Warrant if the requesting country has not made a decision to charge, and the CPS (which in this case represents the “category 1 territory”, Sweden) cannot satisfy the extradition judge that

the person’s absence from the category 1 territory is the sole reason for that failure.

This might or might not help someone in Assange’s situation. Arguably his absence from Sweden is indeed the “sole reason” why he’s not been charged; it’s even more strongly arguable that his absence is the sole reason why no decision has been made whether to charge him or not. But there would certainly be room for Assange’s lawyers to argue, based on points his supporters have made in public about the possibility of interviewing him by video, that his absence from Sweden isn’t the “sole reason” he’s not been charged.

The case isn’t being argued today, though. Section 156(3) of the Anti-social Behaviour, Crime and Policing Act provides that

In a case where the Part 1 warrant (within the meaning of the Extradition Act 2003) has been issued before the time when the amendments made by this section come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the questions in section 11(1) of that Act.

The warrant was issued in 2010, of course; and the extradition judge decided all those questions in 2011. So the new provisions just don’t apply in Julian Assange’s case.

The new section 21A brings in another new bar to extradition where the judge thinks it would be disproportionate bearing in mind the seriousness of the alleged conduct, the likely penalty, and the possibility of “less coercive measures” by the requesting state. In a case of alleged rape (and the UK courts do see this as a case of alleged rape: see paragraphs 104–127 of the High Court’s 2011 judgment) it’s hard to argue that extradition would be disproportionate bearing in mind these considerations.

But in any event, section 157(5) makes exactly the same transitional provisions about the new “disproportionality” rule as apply to the new “no charge” rule. Where the arrest warrant was issued before the new rule came into force, it applies only if the case is still before the extradition judge.

Neither of the new rules applies, then. Julian Assange’s extradition case ended in 2012, with the Supreme Court’s ruling that he should be extradited to Sweden. The amendments don’t apply to his case retrospectively.

If this saga (or its extended UK sub-plot) is finally approaching its end, then it can only end with a flight to Sweden. In spite of what Assange seemed to say today, he may still see his departure as somehow conditional on a deal with the UK (which, as I’ve written before, seems to me hopeless). But assuming he does leave the embassy in the coming days or weeks, he’ll surely be arrested, then extradited in accordance with the courts’ rulings.

His surrender might conceivably be postponed briefly in accordance with article 23.4 of the European Arrest Warrant Framework Decision, if travelling would cause a serious risk to his health; and I dare say he’ll attempt some sort of last-ditch application for bail or an injunction in the short period before he’s extradited. But his position’s legally hopeless.

The only question is whether he really does leave the embassy soon, or not.

{ 36 comments… read them below or add one }

1 Arbed August 18, 2014 at 15:39

Can I just correct you on a point of law? You say “it’s even more strongly arguable that his absence is the sole reason why no decision has been made whether to charge him or not.” Are you aware that under Swedish law it’s forbidden for a prosecutor to decide whether to charge before the preliminary investigation is formally concluded, in all cases – it’s actually illegal for them to do so? In Assange’s case, the English-language website of the Swedish Prosecution Authority has posted recent statements (July 2014 is the latest) outlining what the prosecutor sees as a number (unspecified) of further steps of investigation before any conclusion can be reached.

So, that’s one of the two new rules which you assert don’t apply to Assange that, in fact, does. Makes me wonder what else you’ve got wrong here. You’d have been better off doing more research than rushing to be the first one to put up a ‘legal analysis by experts’ piece.

2 Brian Barder August 18, 2014 at 16:38

Not being a lawyer I found your commentary and its many links to source documents very useful and illuminating, a good reminder of some of the legal and practical issues discussed on my own blog in the past (see e.g. http://www.barder.com/3669, http://www.barder.com/3679 and http://www.barder.com/politics/julian-assange-ecuador-and-the-law-a-compendium).
I remain surprised that the Ecuadorians (and Mr Assange) have not attempted a solution along the lines I have suggested on my blog and in a letter in the Guardian: give Mr Assange Ecuadorian citizenship, let him renounce his Australian citizenship, notify the FCO of his appointment to the diplomatic staff of the Ecuador embassy, and immediately put him in an embassy car to the airport and onto a plane to Ecuador. Various people have suggested possible objections to this course but I believe I have answered them all by reference to the Vienna Convention (VCDR). Of course it may be that neither the Ecuadorians nor Mr Assange want him permanently marooned in Ecuador. But that would surely be much better than being marooned indefinitely in a small flat in Knightsbridge!

3 Carl Gardner August 18, 2014 at 19:17

Arbed,

You say

that’s one of the two new rules which you assert don’t apply to Assange that, in fact, does.

If I’ve got something wrong, I’ll say so. But you must have misunderstood my point about section 156(5) of the Anti-social Behaviour, Crime and Policing Act 2014. With respect, it’s you who’s got this wrong.

The effect of section 156(5) is that the “no decision to charge” rule doesn’t apply in Assange’s case, even assuming you’re right about Swedish law, further steps and so on.

4 Arbed August 18, 2014 at 19:33

Oh, hi Carl. Yes, I wasn’t quibbling with your assessment that the new changes don’t apply to Assange, just with your assertion about Swedish law. Over there, every investigation follows the rule that no decision on whether to charge can come before the end of the preliminary investigation. I already knew about the “Assange clause” inserted following the parliamentary debate, and so does he. Assange spoke about it to DemocracyNow!’s Amy Goodman during an interview broadcast before the latest court hearing in Sweden (16 July). Is it correct that the fact that these changes do not apply to cases where a decision to extradite has been taken by the UK courts but the extradition has not yet been effected means that Assange’s case is the only one to which these new protections do not apply? During his interview Assange did say that was why they’d dubbed it the “anti-Assange” clause. He claims it had been rustled up when someone mentioned during the parliamentary debate – ‘Ere, what about Assange? Won’t this protect him too?’ If you could just confirm for me how many cases are caught by this non-retrospective aspect I’d be very grateful.

(Oh. And any chance of having your viewpoint on the peculiar paragraph 94 of the High Court judgment I’ve raised in my second post? It’s currently stuck in ‘waiting to be moderated’.)

5 Carl Gardner August 18, 2014 at 20:12

Arbed,

I wasn’t quibbling with your assessment that the new changes don’t apply to Assange, just with your assertion about Swedish law.

You were, actually. You said I was wrong to claim the new rules didn’t apply. And I made no assertion about Swedish law.

6 Carl Gardner August 18, 2014 at 20:40

Brian,

You make a really interesting point – thanks for reminding me about it. I’ll think about this over the next day or two, since you never know what Julian Assange is going to do – anything could happen!

But my instant reaction is to think this would be such an obvious case of the abuse of diplomatic status to shield someone from ordinary criminal jurisdiction that the police would simply ignore it, pretty confident in the belief that an application for an injunction on that basis would fail. I think it’s highly unlikely a court would in effect order the UK to recognise a “diplomat” in circumstances like these, or see the Ecuadorian view on its own as enough to displace UK extradition legislation and the EU obligation to surrender Assange to Sweden.

In fact given that Philip Hammond can issue a certificate under section 4 of the Diplomatic Privileges Act 1964 which is capable of conclusively declaring that Assange has no immunity, it may be that a court would deal with any application very briefly indeed.

I suppose Ecuador could make it a “diplomatic incident” and perhaps threaten proceedings in the International Court of Justice. But even if it won there, which seems to me uncertain, by then Assange would be in Sweden.

7 James Newman August 18, 2014 at 21:24

The Diplomatic Passport would suite Assange very well here. He could simply walk out the building get into a car and drive to the airport and the police wouldn’t have any authority to touch him.

In fact the only thing a country can do against a diplomat is expel them back to the country of which he is a diplomat so if he played it smart they could even get a free flight out the UK with the Government reaching into their own pockets.

8 Brian Barder August 18, 2014 at 22:45

Carl, I can’t find in the Vienna Convention any provision that permits a host government to ignore a valid appointment to the diplomatic staff of an embassy on the grounds that the appointment is improperly motivated — a subjective judgment which, if permitted to invalidate a diplomat’s status, would undermine the right of governments to choose their own diplomats. HMG’s sole remedy if it disapproved of Assange’s diplomatic appointment (as it would) would be to declare him persona non grata, i.e. to expel him, but under the Convention it would then be obliged to allow him a reasonable time to leave the country, during which he would continue to enjoy diplomatic immunity from arrest, extradition, etc.
It’s true that under the Convention the Secretary of State could declare persons in categories that would include Assange (such as Australians, persons accused of rape, etc.) ineligible to be appointed to the diplomatic staff of a specific (or any) embassy, but it seems clear from the wording of the Convention that that can be done only *before* the person concerned has been appointed as a diplomat. The protection of diplomats against local victimisation under the Convention would be rendered totally ineffective if a host government could either retrospectively put an accredited diplomat in an ineligible category and then arrest him, or else (as you seem to suggest as a possibility) use its own domestic legislation to deprive a duly appointed diplomat of his status and then to arrest him, put him on trial, imprison him, etc. Once a diplomat has been appointed, he has immunity, and all the host government can do is expel him — respecting his continuing immunity until he’s out of the country.

It seems to me that a UK court would be obliged to rule that if a piece of domestic legislation was demonstrably inconsistent with Britain’s international treaty obligations, the latter must prevail: otherwise acceptance of treaty obligations wouldn’t be worth the expensive vellum they’re written on. No country, surely, can circumvent its treaty obligations, for example under the UN Charter, by simply passing domestic legislation that implicitly declares them inoperative. But there again, I’m not a lawyer!

James, the possession of a diplomatic passport doesn’t in itself confer diplomatic immunity and privileges under the Convention. Many countries issue diplomatic passports to their government ministers and other VIPs but that can’t confer on them privileges and immunities that another country can be obliged to recognise. The Vienna Convention lays down the circumstances in which a person acquires recognised diplomatic status and possession of a distinctive passport isn’t among them.

9 Visitor August 19, 2014 at 08:21

I am no lawyer so please take the following with a grain of salt.

I can’t help but wonder: is there no dissenting or even a fairly recent opinion even by ministries, parliamentarians or polititicans in Britain, as to such types of questions about the status of diplomatic immunity for the country of Equador in Britain?

I would think that there must be some standards to adhere to.

As Assange hasn’t been dragged out of the embassy up to this point, I would think that there might be some standard at play so to speak. I believe I do recall some piece of news some time ago, about Britain supposedly having threatened that they will want to enter the Equadorian embassy by force. So at least, they have a standard of threatening an embassy as I understand it, which is not good; and maybe a little weird if that in turn were to imply that the status and treatment of embassies in Britain arent subject to any predictable standard of treatment (subject to political pressure and idiosyncracies).

I guess I am surprised that the whole business about Assange’s asylum at the Equadorian embassy seem to be a policing matter and not a political one; and, did any of the british politicians even balk at the notion of entering an embassy by force? Surely they must have read the news like other people. I believe it was the Equadorian embassador to Britain that made a point to journalists about how they had been given a message in writing by the british authorities, which supposedly had invoked the threat of forced entry, either explicitly or implicitly .

Anyway, having said all of that, I read Gardners comment above ofc and I do understand that he has an understanding of the seriousness of it all and so aren’t simply inclined to acts of wishful thinking and casual speculation.

10 Bruce Barney August 19, 2014 at 09:34

@James Newman, I believe Mr. Gardner addressed your error in his response to Arbed. Diplomatic assignments require host country approval. Case in point, the recent US decision to refuse a visa to Iran’s UN Ambassador designate. A diplomat still requires a diplomatic visa issued by the host country to be in that country, so, even if Assange were to be appointed diplomatic staff by Ecuador or any other party, that by itself would not give him a right to be on British soil until the appropriate UK clearance has been given and the right visa issued, neither of which is likely to happen in this case.
@Arbed, regarding the point that Swedish investigations have yet to conclude and Sweden cannot charge Assange until they are, the High Court judgment clarifies, as did the Swedish prosecutor in her submissions, that those investigations had reached the “advanced stage” where interrogating Assange “in person” is required. Note that while his indictment may be contingent on concluding those investigations, including interrogating him in person, his arrest is not. So, the law provides for “pre-trial detention” to allow conclusion of preliminary investigations, following which an accused must be charged within two weeks or not at all. Mr. Gardner is right, therefore, about the argument that Assange’s absence is the sole reason why he’s not been charged. Still, whether he’s charged eventually or not, there’s already a standing warrant for his arrest and as far as his situation in the UK is concerned, that’s all that really matters post the High Court ruling. Please refer to the ruling and the submissions leading to it for clarifications on the Swedish case.

11 Carl Gardner August 19, 2014 at 12:00

Brian,

It seems to me that a UK court would be obliged to rule that if a piece of domestic legislation was demonstrably inconsistent with Britain’s international treaty obligations, the latter must prevail: otherwise acceptance of treaty obligations wouldn’t be worth the expensive vellum they’re written on. No country, surely, can circumvent its treaty obligations, for example under the UN Charter, by simply passing domestic legislation that implicitly declares them inoperative.

I agree with your second sentence – but not your first. I think you’re approaching this as though the UK had a monist approach to international law (in other words, as though the UK’s international obligations automatically formed part of our internal national law). We actually have a dualist system (our international obligations are only part of domestic law if transposed into domestic law by our own legislative institutions), and I think this makes all the difference.

A good example of how this works is human rights. Before the Human Rights Act 1998, you could go to the European Court of Human Rights to say the UK had breached your human rights. But you couldn’t make the same argument in an English court. Judges in the Strand didn’t say “the UK’s international law obligations must prevail”. In a very practical legal sense, they couldn’t see or pay any attention to the UK’s European human rights obligations, which formed no part of our law.

Actually remnants of this position remain, even now that the Convention rights are part of are domestic legal system. Its still permitted in domestic law for Parliament to legislate directly contrary to Convention rights: that’s why prisoners still can’t vote. In the recent Chester case, the Supreme Court didn’t say “international obligations prevail”.

So no, the UK can’t circumvent its international law obligations via domestic legislation. But it can stop them being enforced by domestic courts.

That leaves the question of what if any enforcement mechanism there might be, to prevent the arrest of Assange if he left the embassy claiming to be a diplomat.

The European Court of Human Rights has jurisdiction to order interim measures, but it only does that in fairly extreme cases. But an even bigger problem for Assange is that he has no human rights claim at all. What’s the human right in question? Britain isn’t stopping him getting a fair trial, for instance. Quite the reverse.

The International Court of Justice can order protective measures in a dispute between Ecuador and the UK. But there are a couple of problems there. First, there is no such case yet. Second, it’d take more than 5 or 15 minutes to get protective measures, so that’d rule out your ultra-surprise move. So if Ecuador did want to go down this route it’d need first to go to the ICJ (either about the UK’s 2012 note mentioning the option of de-recognising the embassy or about any dispute about Assange’s diplomatic status), then persuade the ICJ that Assange’s diplomatic status was part of the dispute (if that wasn’t the original complaint), then try for protective measures. Either option means dispensing with the element of surprise.

In the absence of any order from an international court, there’s nothing to prevent the police arresting Assange, even if he did claim to be a diplomat.

I mentioned a certificate under section 4 of the Diplomatic Immunities Act 1964, but on reflection, it’s worth remaining ourselves of the wording of section 4:

If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.

It’d only be conclusive of facts; not of the ultimate legal question of immunity. So the court would have to rule on whether Assange had diplomatic immunity as a matter of law. The case would not be as brief as all that.

Still, the likelihood that the High Court would order his release from arrest, in circumstances such as these, permitting a circumvention of EU law, and in the teeth of a UK argument that notifying his appointment was an attempted abuse of international law – that seems to me remote.

12 Carl Gardner August 19, 2014 at 12:22

Arbed,

Is it correct that the fact that these changes do not apply to cases where a decision to extradite has been taken by the UK courts but the extradition has not yet been effected means that Assange’s case is the only one to which these new protections do not apply?

No. The provisions do not apply to any European Arrest Warrant case that finished before July. That obviously includes every single EAW request to the UK that was dealt with before this year. That’s a lot of cases.

In a sense it’s psychologically understandable, but what you’re doing is accepting there’s a “natural” cut-off after which new provisions should no longer apply, but assuming that that cut-off should occur only where someone’s physically been removed from Britain under an EAW before the changes came into force. So for the purposes of deciding whether Assange’s case is “the only one”, you’re ignoring all past cases where people have already been surrendered.

But why should physical surrender be the cut-off? It’s equally natural to say the cut-off should be when someone’s case finished in the courts before the amendments took effect.

And fairer and more practical. If you said continued presence in the UK on or after 21 July 2014 means you should be able to invoke the new provisions, then it’d enable people to completely reopen court proceedings that have already been concluded. Not very practical. And it’d enable some recent EAW arrestees to do that and some not, merely depending on the precise timing of their extradition flights. Not very fair.

Finally, it’d allow those subject to EAWs who’ve breached bail conditions and evaded justice during the period including 21 July 2014 to benefit procedurally from their own unlawful behaviour, and get a second bite of the legal cherry unavailable to those who’ve complied with their legal obligations. Not fair. I accept that Julian Assange’s may be the only case that falls into that final category.

13 Carl Gardner August 19, 2014 at 13:10

Brian,

Here’s another thought for you. An article by Alison Duxbury alerted me to Ecuador’s national law on foreign relations, article 82 of which says (my translation, aided by Google) –

Admission to a diplomatic career is subject, in addition to the requirements laid down in the Organic Law on the Civil Service and Administrative Careers and the Standardization of Public Sector Remuneration, to the following requirements:

1. Ecuadorian nationality by birth and ..

That seems to me a significant help to any UK government argument that Assange, not having been born in Ecuador, could not in fact be an Ecuadorian diplomatic agent (foreign law being a question of fact in the legal system of England and Wales) or have diplomatic immunity in England.

14 Carl Gardner August 19, 2014 at 13:19

Mind you, I note that article 84 allows the Ecuadorian government to dispense with article 84 in

casos excepcionales de conveniencia para el país

He’d have to be made head of the mission in London, though.

15 Brian Barder August 19, 2014 at 18:48

Carl, I appreciate these clarifications. I had in fact been wondering about whether the UK courts would or could enforce treaty obligations that have not been incorporated into domestic law in the way that the ECHR has been, and your answer on that is clear. However, is it not the case that the Diplomatic Immunities Act 1964 (perhaps along with other statutes) does in effect incorporate some of the provisions of the Vienna Convention on Diplomatic Relations (VCDR) into domestic law, thus making them justiciable in the UK (or English) courts? The section that you quote imposing an obligation on the courts to accept a certificate by the S of S of the facts regarding diplomatic immunities in any specific case certainly seems to me to put that matter into the courts’ jurisdiction (while severely limiting it, admittedly!).

The scenario that I envisage might be roughly as follows. The Ecuadorians formally notify the FCO that Assange has been appointed to the diplomatic staff of their embassy. Within minutes of the delivery of that notification, Assange leaves the embassy and tries to enter an embassy car. He is immediately arrested by the waiting police, who refuse to accept his and his ambassador’s protests that he now has immunity from arrest and is entitled to travel to the airport and leave the country. At the police station Assange’s lawyer produces evidence of the valid notification of his diplomatic appointment and quotes Article 39 of the VCDR (“Every person entitled to privileges and immunities shall enjoy them … if already in [the] territory [of the receiving State], ++from the moment when his appointment is notified to the Ministry of Foreign Affairs….++”).
There is then presumably a consultation between the police and the FCO as to whether Assange really does enjoy immunity. If the FCO disputes his claim to immunity, Assange’s lawyer applies for an injunction requiring the police to release him and the Secretary of State to recognise his diplomatic status. At the court hearing to determine whether to grant the injunction, Assange’s counsel formally requests a certificate from the Secretary of State confirming as a matter of fact (not of law or opinion) that Assange’s diplomatic appointment was properly notified to the FCO and that accordingly under Art. 39 of the VCDR he enjoyed immunity “from the moment” of that notification.

The FCO now no doubt argues that it had never agreed to Assange’s appointment and that if Ecuador had sought HMG’s agreement to the appointment it would not have been granted. Assange’s counsel replies that under the VCDR the agreement of the receiving state to a diplomatic appointment is required +only+ in the cases of heads of mission (ambassadors and high commissioners) and military and other defence attachés, but not in cases such as that of Assange (VCDR 4 and 7). He argues that the Secretary of State has no alternative to issuing a certificate confirming that Assange does have diplomatic status and immunity, and points out that even if the Secretary of State now declares Assange png and expels him, Assange’s immunity continues for as much time as he reasonably needs to leave the country.

No doubt the FCO’s counsel argues that the whole thing is a monstrous charade and an abuse of international law whose purpose is to protect bona fide diplomats, not to enable a person accused of serious crimes to avoid questioning and possible prosecution. And no doubt Assange’s lawyers reply that all that is a matter of opinion, not of fact, and that Assange’s diplomatic status can’t be removed by HMG’s expression of disapproval, however strongly felt. A certificate is reluctantly issued, Assange leaves the court, and gets into a waiting Ecuadorian car to be driven to the airport where an Ecuadorian presidential plane is waiting to fly him to — where? Somewhere from which he can’t be extradited to either Sweden or the United States (or back to the UK, one hopes). Ecuador then formally notifies the FCO that Assange’s diplomatic appointment has been terminated, in accordance with VCDR 10(a).

In my layman’s ignorance I have probably got the terminology all wrong, but the broad outline looks pretty plausible to me!

If everything else seemed likely to work and to produce the desired result (which can’t of course be taken for granted), I am sure the Ecuadorians would not allow themselves to be prevented from acting in accordance with my script by anything in their own domestic law such as the one you quote. Their lawyers might for example be willing to assure them that the one-off, ad hoc, short-term appointment of Assange to a position in their London embassy could not be equated with “admission to a diplomatic career”. He obviously couldn’t be appointed head of mission in London (your postscript) because that would require agrément from HMG under VCDR 4, and the chances of getting it would self-evidently be non-existent!

Your turn to serve.

16 Brian Barder August 19, 2014 at 19:21

Postscript: The following seems relevant to my scenario (Diplomatic Privileges Act 1964):

Section 2 Application of Vienna Convention.

(1) Subject to section 3 of this Act, the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in the United Kingdom and shall for that purpose be construed in accordance with the following provisions of this section.

(Section 3 has no relevance to the case of Assange.)

The Articles of the VCDR reproduced in Schedule 1 of the Act include the crucial Article 39, quoted in my earlier comment here and defining the enjoyment of diplomatic immunities and privileges as beginning from the moment the diplomatic appointment is notified to the relevant ministry (in the case of the person so appointed already being in the territory of the receiving state, as Assange is). So this is apparently incorporated in UK (or English) domestic law and must therefore be applied and enforced by the English courts.

I rest my case!

17 Carl Gardner August 19, 2014 at 19:31

Brian,

is it not the case that the Diplomatic Immunities Act 1964 (perhaps along with other statutes) does in effect incorporate some of the provisions of the Vienna Convention on Diplomatic Relations (VCDR) into domestic law, thus making them justiciable in the UK (or English) courts?

Of course! You’re right about that. I’ve been daft enough to overlook it. But your scenario still looks implausible to me. It depends on the High Court agreeing (1) that Assange is a “diplomatic agent” (which the court, not Ecuador, would decide) and (2) that in the particular circumstances his inviolability goes so far as to override any prior international law obligation. I don’t think either is easy. Number (2) is the seriously interesting but difficult one, and my feeling is a court would be attracted to seeing (1) as decisive, and likely to hold that he wasn’t one.

But I’ll have more of a think about how I think the situation could work out.

18 Carl Gardner August 19, 2014 at 20:25

I don’t think article 39 is crucial at all, Brian. It says (well, article 39.1 says):

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Notice that this is too circular to do the work you want it to. Your argument depends on notification making the person a diplomatic agent and therefore “investing” him with diplomatic immunity. But the text makes it clear that your immunity is only commenced by notification if you are a “person entitled to privileges and immunities”.

Notification doesn’t give you them if you’re not entitled to them. All article 39.1 does is specify when you begin to enjoy your immunities, if you are entitled to them. It doesn’t govern entitlement itself.

19 Brian Barder August 19, 2014 at 20:58

Oh, dear. Every time I think I have kicked the ball into the net, the goal-keeper manages to punch it over the top. Let me try again.

Article 7 of the VCDR says that “subject to the provisions of articles 5, 8, 9 and 11, the sending state may freely appoint the members of staff of the mission.” If that means anything it must mean that the sending state, Ecuador, can appoint whoever it likes to the staff of its embassy provided that that person is not disqualified under any of the four articles specified. Nothing in articles 5, 8, 9 and 11 appears to disqualify Assange from being appointed, assuming that HMG has not already notified diplomatic missions in London or the Ecuador embassy in particular that citizens of third countries, or Assange himself, or any category of persons that includes Assange, will not be accepted as members of those missions, which as far as I know it has not done. There seems therefore to be no obstacle to Assange’s nomination as a member of the Ecuador embassy’s diplomatic staff. As such he is automatically a “person entitled to privileges and immunities” under Article 39, in the absence of any disqualification under the VCDR. Article 39 is indeed crucial (and part of English law) because once he or any other person who is not disqualified has been appointed and notified to the FCO, there seems to be no way that the receiving state, i.e. the UK, can deprive him of his diplomatic status and immunities. All it can do is expel him. Of course HMG could act now or later (but not after Assange had been appointed and notified) to disqualify him and that would put an end to this particular debate. If it has already done so, I think we should be told! Otherwise, I can see no grounds on which HMG could argue in court that Assange was not “a person entitled to privileges and immunities” once he had been validly appointed to the embassy’s diplomatic staff and notified as such to the FCO.

Is that any better?

20 Carl Gardner August 19, 2014 at 21:53

Brian,

My response to your scenario.

The Ecuadorians formally notify the FCO that Assange has been appointed to the diplomatic staff of their embassy. Within minutes Assange leaves, and is arrested and taken to prison (or wherever those soon to be extradited are held).

Assange’s lawyers apply for an injunction requiring his release. They have to establish that he is Ecuadorian and that he has been appointed to a diplomatic post in the embassy; they argue that he is therefore in law a diplomatic agent entitled to immunity, and that this immunity protects him from extradition.

The police and the Attorney General argue that he isn’t in law a diplomatic agent within the meaning of the Diplomatic Privileges Act 1964. Even if he’s Ecuadorian, he’s not Ecuadorian by birth, so cannot as a matter of fact (that is, as a matter of Ecuadorian law, foreign law being a question of fact in an English court) be a member of the diplomatic staff of the embassy. Also, he’s not carried out any diplomatic duties, and there’s no evidence to suggest he is expected to do so now or in future, so again, he is not in fact any kind of diplomat. So he can’t be a diplomatic agent or entitled to immunity as a matter of law.

I think they win on that.

But even if they fail on it, they argue that he is not a diplomatic agent in law because his purported appointment was abusive. It was made for the sole purpose of interfering with the ordinary course of justice in the UK. It cannot have been Parliament’s intention that the 1964 Act should have that effect; and accepting diplomatic immunity in these circumstances would be inconsistent with the object and purpose of the Vienna Convention.

If the court held that Assange was entitled to diplomatic immunity in these circumstances, it would imply there was no limit to what interference a state could achieve in the criminal justice system of other states by means of bogus diplomatic appointments.

For instance, it would mean a state (let’s say, a state something like the Taliban’s Afghanistan) could confer nationality on and appoint a British citizen serving a whole life order (someone like Lee Rigby’s murderers, say), and successfully obtain a mandatory order or injunction compelling his release. Would it not also mean a state could even spring one of their nationals found guilty of genocide from the Hague by “posting” him at the moment of conviction to their embassy in the Netherlands?

Such a reading cannot reflect the balance of interests between sending and receiving states that is the purpose of the Convention, or reflect international law as a whole properly understood; and it cannot represent Parliament’s intention in the 1964 Act. Nor can it be a proper reading of the European Arrest Warrant Framework Decision, whose purpose it would undermine.

I think they win on that too.

But even if they don’t, there’s a third argument, that even if he is a genuine diplomatic agent entitled to immunity, that immunity must yield to other legal considerations in the particular circumstances, such as the widely recognised interest in proper investigation and prosecution of rape. The key aspect of the circumstances justifying cutting down the scope of immunity is that immunity only took effect after investigation began, and was granted for the purpose of evading investigation, prosecution and court orders.

This is the tricky one, because I think it’d be innovative on the scope of diplomatic immunity. But even on this, I reckon the UK authorities would win. The broad international legal trend is against absolute impunity, for instance when it comes to the immunity of heads of state. When you look at this case in that context, it’s not as hard as it first appears for the UK courts to set immunity aside if need be, as they did in the Pinochet case. It’s a case crying out for a bit of judicial activism, in fact. The House of Lords was daring enough to do something analogous in the Pinochet case, and I think our judges would be at least as daring today.

The case works its way up to the Supreme Court, as Assange is held in custody in the meantime (having not the slightest chance of being granted bail any more). Following the Supreme Court ruling, he’s finally extradited, there being no order of any international court requiring his release or preventing his surrender to Sweden.

21 Carl Gardner August 19, 2014 at 22:06

Is that any better?

I don’t think so, Brian! I think you’ve simply restated your argument that notification creates and confers immunity rather than defining when it takes effect in the case of a person entitled to it. I think the argument is defeated by the text, and that we’re just going to keep disagreeing on that however you put it.

Your valiant second attempt reminds me a bit of the way my old government clients would try putting the same argument at me three or four different ways in the hope I’d weaken. FCO people could be stubborn; Treasury people would try juggling figures or formulae about to present the same thing in a new way, and would sometimes wait a few days or weeks in case I forgot. Health people sometimes tried extra-complicated scientific arguments; DWP people just put their hand metaphorically round your throat saying “this will cost £100 trillion”.

22 Brian Barder August 20, 2014 at 00:32

Carl, I don’t want to prolong this unnecessarily, but I do want to enter a Not Guilty plea to your charge of having “restated [my] argument that notification creates and confers immunity rather than defining when it takes effect in the case of a person entitled to it.” I think if you re-read my previous comment you’ll agree that I’m saying it’s **the appointment to the diplomatic staff of an embassy** that creates and confers immunity, and that such immunity takes effect (and becomes in effect irreversible by the receiving state) from the moment that it’s notified. I don’t see any way in which HMG’s lawyers could persuade a court that a person validly appointed to the diplomatic staff of a diplomatic mission is somehow not a diplomatic agent. Incidentally the Ecuadorians don’t have to prove that he’s an Ecuadorian: the VCDR expressly provides that a citizen of a third country may be appointed to the sending country’s diplomatic staff, unless the receiving state has exercised its right to disallow such appointments — which to the best of my knowledge HMG has not done. For the reason set out earlier, I don’t buy your argument that Ecuadorian law requires all its diplomats to be Ecuadorian by birth: that requirement seems to apply to entry to a diplomatic career, not to a short-term temporary appointment such as that of Assange. I agree that if the dodge I envisage were to succeed, it could set a precedent for all sorts of malign jiggery-pokery, contrary to the purposes of the instruments concerned and of international law generally. But I suggest that the opposite is also true: if Assange’s diplomatic immunity, conferred by his valid appointment to a diplomatic post, were to be revoked or denied by a court of the receiving state on the basis of the arguments you advance, that too would create a precedent for attacks on the diplomatic status and immunities of bona fide diplomats all over the world, which would be equally inimical to the purposes of the VCDR and of international law generally.

Finally (and I mean that!), I’m not impressed by the argument that Assange couldn’t be a genuine diplomat because he would not have carried out any diplomatic duties. He could hardly have done so if he had only just been appointed. As to the lack of evidence that he would carry out any such duties in the future, that argument could be dismissed as purely speculative, as well as being undermined by UK state action in arresting and detaining him, not to mention perhaps also expelling him, and thus preventing him from carrying out any such duties.

My persistence in what you regard, almost certainly correctly, as error no doubt confirms your verdict on FCO people (of whom I used to be one) as ‘stubborn’. By the same token, I suppose your fertility of imagination in coming up with (literally) different counter-arguments to every proposition that I deploy suggests that you’d have been at home in the Treasury! I hope we can close this debate more amicably and with more mutual respect than those two once-great departments of state used to muster, in my day anyway. At any rate, I’ve now shot my bolt, and will spare you any further amateurish advocacy. Good night!

23 Carl Gardner August 20, 2014 at 11:20

I don’t want to prolong this unnecessarily ..

A pity! I’ve been enjoying this. I take your point about appointment rather than notification conferring immunity, but I don’t think it makes any real difference to the legal arguments on either side. You’re still relying on a purely formal step (appointment) as conferring immunity in itself, regardless of substance. Which I think is what leads you to say

I don’t see any way in which HMG’s lawyers could persuade a court that a person validly appointed to the diplomatic staff of a diplomatic mission is somehow not a diplomatic agent.

Your use of the word “validly” is interesting here. What does it add? How could anyone be “invalidly” appointed, on your approach? I don’t think that’s possible, and I wonder if your use of the word implies a tacit admission that pure formal appointment is not in fact enough to create immunity, and that some proper substance is actually required. I think the key is whether a person is, in fact, a diplomatic agent – meaning in substance, not purely by formal nomination.

I don’t buy your argument that Ecuadorian law requires all its diplomats to be Ecuadorian by birth: that requirement seems to apply to entry to a diplomatic career, not to a short-term temporary appointment such as that of Assange.

I think you’re dismissing that Ecuadorian legal argument far too easily! Ad hoc appointments of the kind you mention are governed by article 84 of that Ecuadorian legislation, which says they’re permitted – but only for appointments as head of mission. I think that does defeat your entire approach. Either he’s “appointed” head of mission (and on your own admission, Ecuador cannot unilaterally clothe him in immunity on that basis) or he’s “appointed” an ordinary member of staff, which is not permitted by Ecuadorian law. Either way, Ecuador cannot, in fact, appoint him unilaterally to a post in its London embassy. So he can’t be a diplomatic agent within the meaning of the 1964 Act.

if Assange’s diplomatic immunity, conferred by his valid appointment to a diplomatic post, were to be revoked or denied by a court of the receiving state on the basis of the arguments you advance, that too would create a precedent for attacks on the diplomatic status and immunities of bona fide diplomats all over the world

Fair point. But first, you begin by assuming he would have immunity which would somehow be “denied”. The question is the prior one of whether he ever has any immunity at all. Should a court always enforce diplomatic immunity in the case of anyone who claims it, simply because if it doesn’t, someone, somewhere, will start denying it to genuine diplomats?

But anyway, I don’t think the precedent I’m suggesting (that immunity is not absolute and unlimited even if it subsists) would be nearly as damaging as you suggest. All it would mean is that a diplomat’s immunity does not operate so as to bar his arrest and extradition for a serious crime universally recognised in proper legal systems (such as rape) where his appointment is merely formal, comes after the start of criminal procedures and after an order of extradition by a court in accordance with a multilateral agreement, and with the aim of protecting him from extradition. That’s a rare case, it doesn’t strike at the true purpose of diplomatic immunity (which is not to shelter suspected offenders), and it’s in line with the trend towards non-impunity.

I’m not impressed by the argument that Assange couldn’t be a genuine diplomat because he would not have carried out any diplomatic duties. He could hardly have done so if he had only just been appointed.

Isn’t that a bit like saying, when questioned by the registrar about your intended, “How do you expect me to know anything about her? I only met her five minutes ago”?

I think whether he’s done any work for the embassy must be relevant to whether it’s a genuine appointment, unless you think mere words of appointment alone make him a diplomat. Once you think substance matters at all, this seems to me a strong indication that he’s not one. If he were appointed, then actually worked at something for a couple of weeks before trying his escape, that’d boost his claim, I think. But I’m not sure I need this argument: I think the Ecuadorian law point would enough to defeat his claim to be a real member of the diplomatic staff.

Thanks for the debate!

24 Brian Barder August 20, 2014 at 15:20

With apologies for breaking my own self-denying ordinance, I can’t resist the temptation to respond one more time to your very fair questions, Carl, before scuttling back into my burrow.

In referring to the requirement that Assange must be “validly” appointed to a diplomatic post to acquire immunity, I meant that to be valid the appointment must not clash with any prior notification by HMG under the Convention that Assange, or a class of persons that would include Assange (such as citizens of third countries), would not be acceptable as members of the diplomatic staff of a (or the) London embassy, and that Assange must not be disqualified from such an appointment by any of the other provisions of the Vienna Convention. In my view the whole Convention is founded on the premise that anyone may be appointed to a diplomatic post (and hence acquire the privileges and immunities laid down in the Convention) unless one of the disqualifications provided for in the Convention applies. And I can’t find any kind of disqualification in the Convention that would apply to Assange. The idea that HMG could disqualify him unilaterally by saying that he doesn’t seem to behave like a “diplomatic agent” or that the appointing government doesn’t seem to intend genuinely to use him as one strikes me as a sound ethical or common-sense objection but not a legal one, since it would effectively empower all receiving states to refuse to recognise the diplomatic status of any diplomat it didn’t like.

If Ecuador were to decide to embark on an enterprise like this, it could and would presumably find it easy to make a two-line amendment to its own law about the citizenship of its temporary diplomats below the level of heads of mission.

I remain puzzled by the argument that a person newly appointed to an embassy post could have the validity of his diplomatic status called into question on the grounds that he hadn’t done any diplomatic work already. On that test every single newly appointed first-time diplomat would fail it.

In speaking of the receiving state being prohibited from “denying” the immunity and status of someone validly appointed to an embassy’s diplomatic staff, I meant denying that the person had ever legitimately acquired that status and immunity; I didn’t mean by “denying” acknowledging that it existed and then taking it away. If he’s validly appointed (i.e. not in any way disqualified under the Convention), and validly notified to the receiving state, he’s immune, and there’s nothing the receiving state can do about it except to chuck him out. I really can’t read the Convention any other way!

And that really must terminate my contribution to the debate, which I too have much enjoyed. Thank you for your patience — and for your ingenuity!

25 Bruce Barney August 22, 2014 at 09:38

Not to interject in a particularly enlightening conversation between you both, Messrs Gardner and Barder, but it does appear to me that Mr. Barder may be selectively ignoring fairly clear provisions of articles 9 and 11 of the VCDR that grant great latitude to receiving States regarding effective assumption of duties by a diplomatic agent. Article 9 explicitly states that a receiving state may, without any obligation to state its reasons, declare a diplomatic appointee unacceptable even before their arrival in the territory of the receiving State. Under such circumstances, the same article stipulates that the sending State is obliged to cancel or withdraw the appointment. Otherwise, the receiving State “may refuse to recognize the person concerned as a member of the mission.” No reasons or explanations required, so the debate over what grounds the UK may consider Assange unqualified is moot. His appointment would be dead upon Ecuardorian notification to the UK Government and before he steps back on UK soil. Also, I think that Mr. Barder cherrypicks what “particular category” of diplomatic official a receiving State may deem unacceptable by giving nationals of a third State as example. There’s no limitation on what category of official the receiving State may deem unacceptable as such determination is entirely at its discretion. He suggests that UK refusal to recognize any conceivable Assange diplomatic appointment would not be ethical, but that’s rather ironic, isn’t it, since the subject of discussion is effectively evading prosecution for alleged criminal or at the very least unethical acts.
You both are far more knowledgable on these matters than I am, but it does appear that appointing Assange a diplomatic agent would go against the spirit of the Vienna Convention regarding diplomatic immunities, as stated in the Preamble to the Agreement: “Realizing that the purpose of such privileges and immunities is not benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing States.” I’d say that puts paid to the very idea that any such appointment is possible.

26 Brian Barder August 23, 2014 at 19:44

To observe my vow of silence on this subject would be discourteous to Bruce Barney whose perfectly civil comment clearly deserves a reply.

His first point can be dealt with quickly. Article 9 of the VCDR deals with the right of the receiving state to declare “a head of mission or any member of the diplomatic staff” persona non grata (png) and to require the sending state to terminate his functions or to withdraw him from the UK — i.e., the receiving state can expel any member of the diplomatic staff of an embassy or other diplomatic mission. I have several times expressed the opinion that once Assange had been formally notified as a “member of the diplomatic staff”, the only remedy available to HMG would be to expel him under Article 9, and in that event his diplomatic status and immunities would continue until he left the UK (Art. 39(2)). But there’s no dispute about that: the issue is whether HMG would have the right under the Convention to refuse to recognise Assange as a “diplomatic agent” enjoying diplomatic immunity *after* his appointment to the embassy’s diplomatic staff had been notified to the FCO. Declaring him png would imply that HMG recognised his diplomatic status, since Art. 9 applies only to heads of mission and diplomatic staff.

The position under Article 11 is more complicated. Art. 11(2) says that the receiving state (in this case, HMG) “may refuse to accept [as members of the diplomatic staff] officials of a particular category.” Obviously if HMG wished to make use of this provision it would need to perform a specific act — namely, to define the category of persons whom it would refuse to accept and notify the government or governments concerned of its decision to refuse to accept persons in that category. I have acknowledged more than once in this debate that Art. 11(2) would enable HMG to notify the Ecuadorian government at any time up to its notification of Assange’s diplomatic appointment that it would refuse to accept as diplomats persons in any category that would include Assange, such as Australians, persons accused of rape, persons against whom extradition proceedings had been initiated, or whatever. To the best of my knowledge HMG has not taken any such action. Until it does, Ecuador is clearly free to appoint Assange or indeed anyone else (subject to the limitations imposed by the Convention, none of which apply to Assange) to its diplomatic staff, and from the moment at which the FCO is notified of that appointment, Assange becomes a diplomatic agent and has the full range of immunities under the Convention (and also under UK law).
The receiving state also has the right, under Art. 9(1), to declare an individual person png “before [his arrival] in the territory of the receiving state”. This however can hardly apply to Assange since he is already in the UK, and HMG presumably did not declare him png before he arrived here.
Interpretation of the Convention is greatly facilitated by reference to Professor Eileen Denza’s authoritative commentary on its terms, article by article, in her three editions (so far) of her “Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations” (1976, 1998 and 2008). My copy of this indispensable work is a first edition (I can’t afford the latest edition and it would take up a disproportionate amount of my time to find a library in which to consult it), which is especially relevant to the case of Mr Assange and my suggested scenario for getting him off Britain’s back. In her first edition commentary on Art. 39, Professor Denza describes the unsuccessful attempts by a number of countries at the Conference which drew up the Convention to provide that a person’s diplomatic immunities should come into effect only when the receiving state had “formally or tacitly accepted” that person’s appointment to a diplomatic post. Prof. Denza notes that this proposal “met with little support” and was rejected by the Conference, which approved instead the langauge of what became Article 39(1) under which every person entitled to diplomatic privileges and immunities (namely every member of the diplomatic staff of a diplomatic mission) enjoys those privileges and immunities “from the moment when his appointment is notified to [the FCO]”. Ms Denza regretfully concludes that in view of the clear rejection by the Conference of the proposal to make privileges and immunities conditional on the acceptance by the receiving state of the person’s appointment, no such interpretation can (“unfortunately”) be regarded as “legitimate”. Thus from the moment of notification, the receiving state has no right to refuse to recognise and respect the immune status of a member of an embassy’s diplomatic staff: all it can do is expel him which enables him to leave the country still without being liable to arrest or other process.

Finally (I hope!), there seems to be no legal basis for the claim that HMG would have the right, after Assange had been notified to the FCO as a member of the Ecuador embassy’s diplomatic staff, to refuse to recognise him as such on the grounds that the intention behind the appointment was obviously to give him protection from arrest and extradition, not to carry out any recognised diplomatic functions, and that the appointment’s motivation was clearly inconsistent with the purposes of the Convention. All that would undoubtedly be true, but the decisive objection to it is surely that if a receiving state could override the express provisions of the Convention unilaterally and on the sole basis of its interpretation of the real but undeclared purpose of the appointment, it would remove at a stroke the effectiveness of any of the protections for diplomats laid down in the Convention. There are numerous cases of persons being given diplomatic jobs in embassies or in international organisations such as the UN either to protect them from arrest, trial and in some cases execution, or to allow them to enjoy the benefits of duty-free liquor and other such privileges, or simply to reward them for favours bestowed on the relevant government (how many American ambassadors owe their appointments to the generosity of their contributions to their President’s election campaign funds?). In other cases diplomats have been appointed purely to remove them from their own countries and thus to exclude them from domestic politics. In all these cases the appointments have been motivated otherwise than in accordance with the purposes and principles of the Convention. But I know of no case where any of them have been challenged, either successfully or at all, on the basis suggested as a way to refuse to accept a diplomatic appointment for Assange.

My former colleague Mr Charles Crawford has entered the debate, not here but in a number of Tweets, the latest of which read: “How do you explain PNG-ing a diplomat? #Diplomacy is all about good manners. If you’re not welcome, you can’t come in”. It’s obviously impossible to argue a case of this kind of complexity within the compass of a Tweet, so I have simply replied to Mr Crawford with an invitation to read this comment and also to read or re-read my earlier comments on this blog post, which deal fully with his Tweet, apart from pointing out that Mr Assange can’t be told that he’s unwelcome and can’t come in, since in is what he already is.

27 charles crawford August 24, 2014 at 07:45

Brian’s opinions rest on a wobbly view of what international law is.

It is not only the Vienna Convention, important though that is. It is also a mass of principles and rules and conventions developed over centuries. These are not all written down as such. Plus court cases round the world keep refining the rules as they apply in the courtroom.

At the heart of all this are basic principles of etiquette and indeed sanity. If I invite you into my house that does not mean that you are free to roam through every room or drink all my beer or try on my underwear. I don’t need to give you as my guest list all the things you can’t do: that would be impolite. I instead leave you to rely on common sense discretion and courtesy.

So with diplomatic relations. Embassies are guests in other countries. They need to behave nicely.

One way of not behaving nicely is to use an Embassy as a space where criminals or fugitives from the law can try to gain asylum. Some Latin American countries have agreed among themselves some rules on such ‘diplomatic asylum’, in part to allow dubious politicians to flee safely from their own country. Everyone else flatly and wisely denies that any such right exists.

Why? To maintain the principle that Embassies are places where only legitimate inter-state business is done, not sanctuaries for anyone who manages to get through the door. World diplomacy would grind to a dead stop if anyone with a grievance could get into an Embassy and claim ‘asylum’. No state would accept an Embassy from a country that becomes known for easily granting diplomatic privileges to fugitives or troublemakers to help them escape the local jurisdiction. Why bring into your country a Tardis-like device for spiriting people away against your own wishes?

It is therefore blindingly obvious under diplomatic practice established down the ages that Ecuador can not wave a pen and transform Assange into some sort of Ecuador diplomat entitled to diplomatic privileges and immunities in the UK. The UK government is not obliged to accept the accreditation any Ecuadorean diplomats, let alone one who is (a) not from Ecuador and (b) is trying to escape the UK and wider EU legal system.

IF Ecuador tries to nominate Assange as an Ecuador diplomat and escort him to the border, the Ecuador Ambassador and everyone else involved will be committing the serious UK criminal offence of conspiring to pervert the course of justice and will be liable to be expelled on the spot. The UK police will sensibly intercept any car carrying Assange, haul him out and arrest him.

No UK court is going to find for Ecuador/Assange in such absurd circumstances: the Embassy will be in no-brainer breach of elementary diplomatic good manners. Carl’s legal detailed analysis of why such ploys crash at every hurdle is exemplary.

The Ecuador leadership know all this, of course. This is why they have not done anything so reckless. And so J Assange sits there, forlornly poring through Wikipedia trying to find a legal loophole he can sneak through that doesn’t and won’t ever exist.

28 idlemind August 24, 2014 at 15:51

just to ponder a particular point

Lets assume Mr Assange eventually finds himself in Sweden. I’m persuaded by the view that this case transits member states of EU, so when it comes to questioning Mr Assange in Sweden, what if he exercises his right to silence available to him under EU provisions [ECHR Article 6].

Are they not back to where they are now, in which case why is the questioning before charging condition seemingly important at all.

Given the passage somewhere above is true, Sweden would be never be able to charge him which of course could never be true. Sweden does indeed charge and commit to trial people in absentia, and even convict.

It just seems to me an inconvenient and expensive waste of time, why not just charge him and be done with it?

29 Carl Gardner August 25, 2014 at 17:45

Idlemind,

You say

Sweden does indeed charge and commit to trial people in absentia, and even convict

but the Swedish prosecution says

Under Swedish law the defendant must be present in person at the trial in cases involving this type of crime.

I don’t claim to have any expertise in Swedish criminal law. But I think your approach to the question of charging very much assumes an English law paradigm (for instance that formal accusation before trial simply depends on whether you have enough evidence to prosecute, and once you have that evidence, you should charge). Even the use of the word “charge” risks embedding English assumptions. Swedish law may not work like that, and it’s not obviously wrong just because it doesn’t. What the Swedes have said, as quoted in the High Court (here via David Allen Green in the New Statesman, is that)

According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.

The Swedish prosecution’s approach seems to have been upheld in their courts, and I don’t see that there’s any reason to assume it’s wrong, unlawful, or dodgy. I’m prepared to change my mind about that if some independent commentator with real knowledge of Swedish law sets out a detailed, convincing case. But I’ve not seen that yet.

Finally, I think you’re assuming it’d be normal for a rape suspect to be summonsed or charged by post in England. But I don’t think that would be normal. Usually a suspect would attend a police station in person to be charged. Stuart Hall is an example of this. If he didn’t turn up, he’d be arrested.

So I don’t think the Swedish approach, which was to seek an arrest warrant when Assange wouldn’t return willingly for questioning, has really been all that out of line with the sort of thing that would happen in England.

30 idlemind August 25, 2014 at 19:35

Notwithstanding, remember Assange was interviewed in Sweden the first time allegations were made, THAT prosecutor dismissed the case, but then Ms Nye re-opened it, and apparently he is required to be interviewed again.

“Under Swedish law the defendant must be present in person at the trial in cases involving this type of crime.”

simple to challenge
http://www.thelocal.se/20100526/26862
“A Swedish appeals court convicted a man in absentia of assault in April. The man’s absence turned out to be due to his untimely death a month previously and the prosecutor has now called on the court to re-open the case.”

presumably the dead man didn’t appear for interrogation for questioning, or in any court for conviction.

then there was Swedish Supreme Court Judge Stefan Lindskog, its on video here,
http://www.adelaide.edu.au/live/theassangeaffairapril2013.html

Supreme Court Justice Stefan Lindskog He noted that Sweden does indeed question or interview persons suspected of crimes overseas and called the whole affair a “mess” and said he has no idea why the prosecutor has not gone to London to interview Assange.

It is known Sweden interviewed a Serbian in his home state over murder allegations
http://www.unt.se/uppland/uppsala/mordmisstankt-forhord-i-serbien-1701566.aspx
its in swedish, but I am told it says
“This report dates to 22 March 2012 and says that Swedish investigators have traveled to Serbia to interview a 21 year old man suspected of the murder of a 26 year old man in Uppsala. However, there is nothing in the report to suggest that this is the second interview prior to charge which Assange is now required to undergo. If you read the linked reports, the victim was shot dead on Boxing Day 2011 and the 21 year old was quickly identified as a suspect, but had already fled abroad. Investigators traveled to Serbia to interview him in March and this was his first interview. ”

ultimately the man was extradited

As to Mr Green, and the High Court, they both accepted the terms as spoke by the same prosecutor Ms Nye, so really thats a circular argument. That Lindskog doesn’t entirely agree says more on available flexibility than Nye seems to be prepared to offer, even at 10 mill pounds. Perhaps I could I suggest, that changes to UK Law in respect of a successful bid on an EAW might have been some reflection on the proceedings of Assange’s hearings as to his status. Or in other words, it finally makes clear what is required in every other states EAW, the person must be charged.

but back to my point
what ‘if’ when the interview takes place, he simply states ‘my original interview is in your hands, I have nothing more to add, I insist on my right to silence’

are they not where they are right now

If Sweden is convinced they have a case, …charge him
surely this is the same in the UK and happens all the time
I am equally sure the same argument develops in Sweden, for murderers too
although perhaps, not to dead men….
well maybe not often… 😉

31 Andy J August 25, 2014 at 20:55

Idlemind,
Like Carl I have no knowledge of the Swedish criminal system, but taking the UK system (well the English and Welsh part at least) as a guide, no-one will normally be charged until they have been interviewed (this is distinct from being reported for an offence) (see s 37 of PACE 1984). Natural justice requires that a suspect has the opportunity to give his side of the story once the allegation has been put to him formally. Indeed since the Criminal Justice and Public Order Act 1994, if a defendant fails to mention in interview something on which he later relies as part of his defence, the prosecution may invite the jury to draw an adverse inference from this exercise of the right to silence. Perhaps the Swedes have something similar. Once a person has been charged in the UK, the police may not interview him again on the specific matter for which he has been charged, unless it is necessary to prevent harm to some other person, to clear up an ambiguity in a statement, or if it is the interest of the charged person for him to have the opportunity to comment on further information which the police have obtained since charging. Needless re-interviewing could be been seen by the court as oppressive, and might well undermine the prosecution case.

32 Carl Gardner August 26, 2014 at 00:16

Idlemind,

You say the prosecutor’s statement that

Under Swedish law the defendant must be present in person at the trial in cases involving this type of crime

is easy to challenge, but the example you cite fails comprehensively to do that. It wasn’t a case “involving this type of crime”; it was an appeal, not the initial 2009 trial, and the piece you link to does not say he failed to attend the trial; and finally, you simply presume that he did not attend for questioning. It’s quite possible he did attend for questioning, and did attend trial.

You mention a case invoking Serbia – but Serbia isn’t in the European Arrest Warrant system, is it? So it’s not a helpful example.

And on your point about him remaining silent in any future interview, I answered this in my last reply to you. As I said then, your approach to the question of charging very much assumes an English law paradigm (that formal accusation before trial simply depends on whether you have enough evidence to prosecute, and once you have that evidence, you should charge). Indeed, you make my point for me when you say

If Sweden is convinced they have a case, … charge him
surely this is the same in the UK

It’s not surely the same at all.

33 idlemind August 26, 2014 at 15:41

Im sorry I couldnt obtain more compatible events
given the assumptions in tow
that does seem a little clearer

cheers

34 batteriesinc August 29, 2014 at 08:43

>> “what ‘if’ when the interview takes place, he simply states ‘my original interview is in your hands, I have nothing more to add, I insist on my right to silence’” <<

Mr Assange may well do so, but on the Swedish side of the debate it appears commenters are forgetting that there is another party too – to merely state that the case was re-opened ignores the fact that there was a reason for it.

The original question by the girls to the authorities was if they could ask Mr Assange to at least have himself tested for STDs, which he declined. That refusal triggered a re-opening of the case, and an escalation into an investigation of rape, because that's the way Swedish law works. This view of "possible rape" status has, incidentally, persisted through all levels of UK court.

Back to the original topic: if it were possible to tattoo "diplomat" on Mr Assange's forehead and allow him to be shipped to Ecuador despite:
– a clear (and undisputed) breach of UK bail conditions;
– an international arrest warrant that the UK has no choice but to comply with as part of its international obligations;
– a pending rape case in another EU country,
then I would ask where the limits are. What crimes would fall within the scope of ad-hoc ambassador appointments and which not? DUI? Shop lifting? Murder?

I have a sneaking suspicion that this whole statement about an impending departure may well be an attempt to have other people do the thinking for him – and so far, it's not looking good…

35 idlemind February 18, 2015 at 08:48

Assange was arrested in absentia, before interview, so he had no chance to respond. He was charged two separate allegations – of rape and of molestation.

Yes the girls went there to make him have an STD test, but the Police decided to charge him based on their statements as those offences are contrary to statute law. The mention of STDs and testing disappears from everyones minds. I do not recall him refusing at any time.

Eva Finne then dropped the charges suggesting “I don’t think there is reason to suspect that he has committed rape,”. Claes Borgstrom lodged an appeal to a special prosecutors office on Aug 21. Assange was questioned by Police Aug 31. In Sept prosecutor Marianne Ny says Assange is allowed to leave Sweden, yet dually she reopening the rape investigation and in Nov orders a Red Notice.

Indifferent to the hearings in London, Ms Ny has said he is wanted for questioning. However it was determined that the ‘allegations’ Swe Police are interested in (described as molestation and level 3 minor rape by Geoffrey Robertson ) would amount to a clear allegation of rape in a British Court, hence their position was he is charged.

I still believe this is in error, that Sweden is vindictively manipulating and weakening Assange’s legal position by not formerly charging him (as they did in the first instance in absentia) so that he has no adequate defence available to him. His legal team have no access to Police or Court material or evidence, they cannot pursue enquiries. Which is why the whole thing looks as if its pretty much at sea most of the time. On that Swe SCJ Lindskog agrees that ”I think it is a mess”

see if this works for you,I think its instructive to both sides of the debate:
http://www.adelaide.edu.au/live/theassangeaffairapril2013.html

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