Julian Assange launches new appeal against extradition

The Australian, currently resident in London, is wanted in Sweden on sex crimes accuastions. Lawyers acting on his behalf argued that the Swedish prosecutor in the case was not impartial because she was a party in the case.

The hearing at the Supreme Court in London, which will see his lawyers outline arguments to seven judges, is expected to last until tomorrow, with judgement expected at a later date.

Assange is attempting to overturn a High Court ruling that it would not be unfair or unlawful to extradite him. A key legal question before the Supreme Court justices is whether a European Arrest Warrant (EAW) issued against him by a Swedish public prosecutor is valid under provisions of the 2003 Extradition Act.

The Swedish authorities want Assange to answer accusations of raping one woman and sexually molesting and coercing another in Stockholm in August 2010, while on a visit to give a lecture.

Assange, whose WikiLeaks website published a mass of leaked diplomatic cables that embarrassed several governments and international businesses, says the sex was consensual and the allegations against him are politically motivated.

In November 2011, the High Court upheld a ruling by District Judge Howard Riddle that the computer expert should be extradited to face investigation.

Dinah Rose QC, appearing for Assange, told the judges the appeal raised a “significant issue of law” - whether the Swedish prosecutor who issued the European Arrest Warrant against Assange constituted “a judicial authority” for the purposes of the 2003 Extradition Act. The issuing of a warrant constituted “a serious interference with individual liberty”.

Ms Rose submitted that it was “a matter of fundamental legal principle” that a judicial authority was both independent and impartial.

Ms Rose added: “Since the Swedish prosecutor cannot fulfil those conditions, she is not a judicial authority and not capable of issuing a warrant for the purposes of he 2003 Act.”

The arrest warrant itself was therefore invalid, she said.

In written arguments given to judges, Ms Rose said the Swedish public prosecutor was not a “judicial authority” within the meaning of extradition legislation and “accordingly” could not issue a valid EAW, because she lacked “impartiality” and “independence”.

“She lacks the impartiality and the independence from both the executive and the parties which constitute essential features of the exercise of judicial authority, under domestic and European law,” said Ms Rose.

“As the facts of this case demonstrate, the prosecutor is in an adversarial relationship with the Appellant. For example, she has applied to the Swedish court for an order for his detention; and has made submissions opposing his appeal against that order. Contrary to the finding of the High Court, she cannot in these circumstances validly exercise ‘judicial authority’ over his case.

“To regard the Swedish prosecutor as a ‘judicial authority’ is to interpret Part 1 of the 2003 Act contrary to its plain meaning; contrary to the principle of legality; and in disregard of the safeguards for the rights of individuals which it was intended to contain. Such an interpretation would be inconsistent with the European Convention on Human Rights and is not required (or, indeed, permitted) under EU law.”

Ms Rose added: “It was always envisaged by Parliament that independent judicial scrutiny would be applied to both the issuance and execution of this draconian instrument. That is why Part 3 of the 2003 Act only permits United Kingdom judges to issue EAWs.

“Parliament believed that EAWs would be issued only by courts or judges, and assured that EAWs issued by other bodies would not be executed.

“Experience of the EAW system has shown, however, that that belief was misplaced. Whilst the vast majority of EAWs are issued by judges or courts, the UK has nonetheless received EAWs from bodies that are clearly not ‘judicial’.”

Ms Rose argued that the High Court had “misconstrued” Article 6 of the European Convention on Human Rights, which protects the right to a “fair trial”.

“Article 6 ... did no more than oblige member states to select, from within its pool of judicial authorities as defined by human rights norms and jurisprudence, and the basic principle of natural justice, that sub-set which were competent to issue EAWs,” she said. “The High Court accordingly misconstrued Article 6.”

She added: “The aim is to oblige member states to designate those judges within their respective systems that are competent to issue EAWs.

“It is not to permit member states to designate authorities which could not fairly or properly exercise judicial authority, and by that act of designation confer such authority upon them.”