Julian Assange remains in legal limbo after losing his UK Supreme Court appeal against extradition to Sweden on a European Arrest Warrant to face s-xual assault allegations in Sweden.

The 5-2 decision centred on the sole issue of interpetation of the term “judicial authority” meant in the British Extradition Act. The majority of the court found that the meaning of the term should be considered to extend beyond a court or judge to a prosecuting authority, reflecting the French meaning of the term in relevant European Union documents.

Assange’s legal team immediately asked for, and was granted, 14 days to consider the verdict on the basis that, in its view, it relied on a point relating to the Vienna Convention on Law of Treaties which had not been argued or considered during hearings. Assange’s legal team therefore now has a fortnight to prepare an application for the Supreme Court to reopen the case.

The stay will delay any immediate moves to extradite Assange to Sweden, but leave him in the legal limbo he has been in since late 2010. The Swedish investigation of Assange and the financial blockade of WikiLeaks by Visa, Mastercard and PayPal at the instigation of the Obama administration has severely disrupted WikiLeaks’s activities.

If extradited to Sweden, Assange will be held in detention while charges against him relating to a 2010 visit to Sweden are investigated (claims that he will be held “incommunicado” do not appear accurate). But while in Swedish custody, Assange will be exposed to the possibility of “temporary surrender” to the United States on a separate extradition warrant confected by the Obama administration in relation to WikiLeaks’s publication of diplomatic cables, military logs and videos.

Swedish authorities have declined repeated offers by Assange’s legal team for Assange to be interviewed by them in the UK to investigate the claims against him.

The judgment summary makes some interesting observations. The majority rejected parliamentary material on the issue as inadmissible, and indeed in his statement to the court Lord Phillips explicitly noted that some MPs when debating the Extradition Act had interpreted (incorrectly) the term “judicial authority” as relating only to judges and courts — an intriguing finding that suggests British MPs voted for a significant piece of legislation without understanding its importance.

The exact reasoning of the majority judges appears to revolve around two issues — that the British Parliament would have intended to give effect to the Framework Decision (the original EU decision to establish the EAW process), and that the broader meaning of “judicial authority” in French should therefore apply.

“The immediate objective of that Decision is to create a single uniform system for the surrender of those accused or convicted of the more serious criminal offences. That objective will only be achieved if each of the Member States gives the same meaning to ‘judicial authority’. If different Member States give different meaning to those two words, that uniformity will be destroyed. In these circumstances it is hard to conceive that parliament, in breach of the international obligations of this country, set out to pass legislation that was at odds with the Framework Decision. It is even more difficult to conceive that parliament took such a course without making it plain that it was doing so. For this reason it is logical to approach the interpretation of the words ‘judicial authority’ on the presumption that parliament intended that they should bear the same meaning in Part 1 of the 2003 Act as they do in the Framework Decision.”

On this basis, the majority judges preferred the French meaning of “autorité judiciaire”.

“In the final version of the Framework Decision the same weight has to be applied to the English and the French versions. It is, however, a fact that the French draft was prepared before the English and that, in draft, in the event of conflict, the meaning of the English version had to give way to the meaning of the French.”

Because the French meaning is wider than the English meaning and encompasses prosecuting authorities, the appeal was dismissed.

One of the dissenting judges, Lady Hale, argued that the normal meaning of “judicial authority” includes the concept of independence, and accordingly could not encompass anyone that is party to proceedings, and that the British interpretation was to be preferred over the vagueness of the European interpretation.

The longest and most detailed judgment, by Lord Mance, argued through extensive examples that not merely was the meaning of “judicial authority” unclear in the Framework Decision, but the intention of parliament was clearly to confine its meaning to judges and courts, not prosecutors, rending void the assumption that the definition was intended to reflect a broader meaning.

“… even though it be the case that bodies and persons other than courts, judges or magistrates were involved in decisions by states to request extradition under the arrangements in place prior to the Framework Decision, this cannot, in my view, undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the Extradition Act 2003, to the effect that the new Act would require the intervention of an issuing judicial authority in the sense of a court, judge or magistrate.”

The decision came after Department of Foreign Affairs and Trade officials refused to answer questions from Greens senator Scott Ludlam about what discussions the department had conducted with US officials regarding Assange, and confirmed that they had yet to respond to Ludlam’s FOI request for documents because the Obama administration was vetting the material, as required under the “third party consultation” provisions of the FOI Act.

Peter Fray

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