Agentless Backup is Not a Myth

Julian Assange failed to arrive in time this morning to hear the Supreme Court's judgment on his appeal against extradition to Sweden to face allegations of sexual harassment and rape because he was reportedly stuck in traffic.

But he isn't about to board a plane to the Nordic country any time soon as his QC Dinah Rose afforded the WikiLeaks boss two weeks' breathing space to allow her to view the 117-page judgment to determine if she can convince the court to re-open the case and challenge the decision.

Rose surprised Supreme Court president Lord Phillips today by requesting the stay of extradition by arguing that the use of the 1969 Vienna Convention on the Law of Treaties (PDF), which helped determine that Assange should be returned to Sweden to face questioning from prosecutors in that country, had not been previously cited in court.

It was agreed by the majority of the justices that a Swedish public prosecutor could be considered a "judicial authority".

Assange supporters at the Supreme Court. Pic credit: Gavin Clarke

The Supreme Court judgment, meanwhile, reveals how the justices were split on the decision to extradite Assange. Five of the lords agreed that the request to send the WikiLeaker-in-chief was lawful.

However, Lady Hale was one of two sitting in the Supreme Court to dissent from that view. She offered this meaty retort:

Article 31.3(b) of the Vienna Convention on the Law of Treaties provides that there shall be taken into account, along with the context, 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation'. While the practice need not be that of all the parties to the treaty (as in this case it obviously is not) the practice has to be such as to establish the agreement of all the parties as to its interpretation.

Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondent’s extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others. This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time.

We have to interpret the Act of Parliament. Even without reference to the parliamentary materials, it seems clear that the term 'judicial authority' is restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of 'judicial' in United Kingdom law. We may talk about the 'legal system' or the 'justice system', when we mean not only the courts but those involved in the administration of justice. But when we use the word 'judicial' we mean a court, tribunal, judge or magistrate. Second, the Act uses the same term in relation to both the issuing and executing 'judicial authority'. The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute – especially in the same place – mean the same thing.

Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word 'judicial' ('other officer authorised by law to exercise judicial power') in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word judicial' which coincides with ours.

Of the seven Supreme Court judges who mulled over whether Assange should be returned to Sweden to face questioning from prosecutors in that country, six mentioned the Vienna Convention on the Law of Treaties in summing up.

The other dissenting judge, Lord Manse, concluded:

[T]he arrest warrant issued by the Swedish Prosecution Authority is incapable of recognition in the United Kingdom under section 2(2) of the 2003 Act. Parliament could change the law in this respect and provide for wider recognition if it wished, but that would of course be for it to debate and decide. I would therefore allow this appeal, and set aside the order for Mr Assange’s extradition to Sweden.

The Crown Prosecution Service, which has been instructing Swedish prosecutors in the case, confirmed to The Register this morning that it too had "no knowledge in advance of the decision being given this morning what that decision would be or what it would say".

Meanwhile, the Pirate Party was quick to issue a statement in support of the WikiLeaker-in-chief. Its leader Loz Kaye said:

The case has repeatedly raised issues with the European Arrest Warrant system, and many of the more problematic aspects will remain unresolved. It's absurd that the Swedish authorities have been unable to deal with this case outside of the courtroom, something that would have saved court time and taxpayers' money.

It's likely, however, that the case will continue to snake its ways through Britain's judicial system. The Supreme Court indicated to El Reg this morning that the case may indeed be re-opened based on Rose's point about the Vienna Convention.

And 40-year-old Assange is now almost certain to take his case to the European court of Human Rights to appeal against the Supreme Court's decision.

Elsewhere, Private Bradley Manning faces 22 counts that include the most serious charge of aiding the enemy by allegedly leaking around 700,000 classified diplomatic cables and war logs downloaded from government computers and handed over to the WikiLeaks site. If convicted, Manning, who is being held in Fort Leavenworth, Kansas, could get life in prison.

His court martial is expected to take place in September this year. ®

What you need to know about cloud backup