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Assange at the Supreme Court: Day Two
Day and night.
LONDON (Rixstep) — Day and night: yesterday was day, today was the other. From the realms of court presentations rivaling John Thaw on Kavanagh QC to the most worrying, confused, chaotic, ill-prepared, and embarrassing ordeal seen in modern times.
If Dinah Rose was the modicum of polish and preparation, Clare 'Monty' Montgomery was the epitome of a barrister team that couldn't find their left feet from their right. And a barrister who died so many times in her presentation that people were expecting her to break down and cry.
Don't ever encourage Monty to play poker: she has so many 'tells' she'd walk away from the table penniless every time. From hiding her face for the judges, to scratching her furrowed brow, to looking nervously away from everyone and supporting her head with her fingertips, Monty gave every impression of a legal adept who really didn't want her case and certainly didn't believe in it.
And of course the ramifications are obvious: the path Monty suggested for the court would lead the European Union down a slope to perdition that eclipses what's already gone before. Whilst Dinah's submission was elegant in its resounding simplicity.
There's a 'judge' in judicial.
What About Cambodia?
Monty - who dominated the proceedings for most of the day - tried citing precedents and current praxis in Europe dating back to 1957 and irrelevant agreements in the Scandinavian countries and Cyprus, all of which have no bearing on the case.
All that was missing was the news that postmen in Phnom Penh could issue EAWs too.
Monty kept arguing that the term 'independent judicial authority' must have different meanings depending on context (without being able to specify where those definitions were found) and that such aberrant legalese was somehow 'axiomatic'.
The supreme court judges kept interrupting her when she tried to describe how EAWs are meant - according to her - to be processed.
'Not here they're not!' was heard repeatedly from the judges' bench.
Monty was allotted the slot up to but not exceeding 15:00 local time. But of course she ran over. By 40 minutes. When Dinah again took over - to the relief of all present and viewing - she immediately reminded the court she'd been promised an hour. And she was granted that hour. And in fact overran by 20 minutes herself. Fair is fair.
Dinah then began plucking apart the desperate argumentation of Clare Montgomery piece by piece, and doing so in such a polished and elegant fashion as to incur cries of pleasure from those viewing online.
It's no wonder Dinah is called a 'star of the bar' in the UK.
General Public Interest
The case came before the UK Supreme Court not out of deference to Julian Assange but out of deference to the growing dissatisfaction in Britain with the haphazard and arbitrary way the EAW framework works. When the point man on the project admits he was naive and never foresaw the way it would be abused, and when one has the UK going through the expense and trouble of extraditing people back to Poland for unpaid parking fines, then yes, you know something's wrong.
The UK Extradition Act attempts to thwart such deterioration by specifically limiting who can issue an EAW and how. The formulation is clear, as is the formulation of how that wording came to be, as Dinah so eloquently pointed out the day before.
Monty's argument on the other hand boiled down to 'everybody's already abusing the EAW so let's not make a big deal of it'. Or as she is now famous for responding:
Julian Assange was seen to exchange several enjoyable moments with his solicitor Gareth Peirce through the day, although the pair demonstrated the same frustration as everyone else with Clare Montgomery's ill-conceived presentation.
The denizens at Flashback followed the hearing closely and took the opportunity to dig into the Swedish adaption of the EAW framework which took place during the tenure of the then minister for justice Thomas Bodström, more famous today for being the law firm partner of Claes Borgström.
The Swedish ordinance is indeed at odds with the framework, as Dinah intimated.
'As Dinah Rose points out, an EAW is a matter to be dealt with by an independent judicial authority', writes 'longbow4y'. 'Otherwise you're in violation of fundamental rights and freedoms as expressed in the charter.'
But in Sweden it's a prosecutor who requests detention of a court. But the detention is not a ruling on extradition. In the case of Julian Assange, the court ruled on the local arrest warrant but did not rule or consider anything else. Marianne Ny took the decision for the EAW and she's not only a prosecutor - she appointed herself chief police investigator as well.
Sweden regards the EAW as a mere 'administrative extension' of an earlier detention ruling for the entire EU. Dinah Rose says that this cannot be right, as the Swedish charter says expressly that there are additional demands put on an EAW, such as the principle of proportionality.
'And that's where we stand', says longbow4y. 'If the EAW is a separate decision, then Dinah Rose is right. If the EAW is a mere geographical extension of an earlier court decision, then Sweden is right.'
But hold on - for longbow4y will now quote directly from the Swedish ordinance that was supposed to build on the EAW framework.
The European arrest warrant is a judicial decision issued by a member state for the purpose of obtaining the cooperation of another member state in apprehending and surrendering an individual sought for prosecution or for execution of a custodial sentence or other measure depriving the individual of liberty.
'So that takes care of who makes the decision and why', summarises longbow4y. 'And Sweden doesn't fulfill the criteria. That's completely obvious.'
'And if this isn't the irony of fate? It's Claes Borgström's buddy Thomas Bodström [then minister for justice] who is responsible for the Swedish ordinance that regulates how Sweden interprets the EAW.'
At the End of the Day
The name 'Julian Assange' was not uttered often during the hearings, if at all. Julian's plight wasn't the issue. The issue was one of 'general public interest'. The issue concerns legal protections of all EU citizens.
The issue concerns the protection of everyone in the EU to be protected against arbitrary actions by individuals and agencies nowhere near the impartiality of a judiciary.
EAWs have been issued for minor offences such as possession of 0.45 grams of cannabis; theft of two car tyres; driving a car under the influence of alcohol where the limit was not significantly exceeded (0.81 mg/l); and the theft of a piglet.
In the UK persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens, unintentionally receiving a stolen mobile phone, and the theft of £20 worth of petrol.
Certainly the Supreme Court ruling will affect Julian Assange. But a sane and safe EAW framework is the only way EU citizens can be protected against abuse of power.
There are two paths the judges of the UK Supreme Court can take. The one is fuzzy and indeterminate where the road signs change all the time and no one has any fundamental rights; the other is the sensible straightforward path in accordance with the spirit of the EAW framework as it was originally intended.
Assange at the Supreme Court: Day One