Assange, Extradition and Human Rights

Mr Julian Assange was arrested yesterday after the Ecuadorian government withdrew the asylum they had given him in their embassy, thereby depriving him of the immunity they had conferred upon him from arrest. He was first arrested for failing to attend court  on 29 June 2012 in contravention of his bail conditions. He was then further arrested on behalf of US authorities under an extradition warrant under section 73 of the Extradition Act 2003.

 

The shadow Home Secretary has intervened urging the Prime Minister to block the extradition of Mr Assange to the United States on human rights grounds,  calls echoed by the Leader of the Opposition and the Shadow Lord Chancellor. The purpose of this post is to explain why, legally, this cannot be done. Ironically, the best hope Mr Assange now has of avoiding extradition to the US is if the Swedish authorities apply for him to be extradited there for other offences.

 

The Extradition Act 2003

The United States is a “category 2” country for the purposes of the Extradition Act 2003. In almost all respects, the decision whether to grant extradition is a matter for the courts, and not for the Secretary of State. In particular it is for the judge, not the Secretary of State, to decide whether extradition may be denied on human rights grounds. This is for good reasons that are illustrated by the Assange case itself. It is best to have cases like this decided by rules set down dispassionately in advance and adjudicated upon by judges, rather than through the discretion of politicians whose choices may be influenced by considerations unrelated to the justice of the case. We need clear rules of extradition that may be quickly applied. If the UK wishes those who are suspected of violating its criminal law to be tried here, and not to be able to flee to other jurisdictions to escape sanction, comity requires that we extradite to other countries those accused of offences there. There need to be safeguards in place (for example ensuring that any person extradited will obtain a fair trial) but we do not wish the extradition hearing to enable the accused to be able to run all the same substantive arguments as to his innocence as he would in the criminal trial (thereby obtaining two bites of the justice cherry, and encouraging flight).

 

The Indictment

Under the doctrine of specialty, a person extradited to stand trial may only be tried for those offences specified, and not for any other pre-extradition offences.  The offence alleged in the US indictment is that of conspiring with Chelsea Manning to obtain unauthorised access to information held on a computer holding information of the United States classified as “secret”. Hacking.

 

In the United Kingdom, it would similarly be an offence to conspire to commit the unauthorised obtaining of data held on a computer contrary to section 1 of the Computer Misuse Act 1990 (this is of significance, as we shall see).

 

The Role of the Judge

The first issue for the judge is to determine whether the offence on the warrant is an extradition offence (we will not extradite for, say, road traffic offences, or for breaches of esoteric offences we do not recognise).

 

An extradition offence is one  that is both an offence in the UK and the country seeking extradition. Further that offence must carry a term of imprisonment of 12 months or longer. The maximum prison sentence for the UK equivalent offence is 2 years. This “dual criminality” test here seems satisfied.

 

Second the court must consider if any of the bars to extradition apply: double jeopardy, passage of time, if the real motive for the prosecution is in fact to punish the defendant for another reason such as political belief, hostage-taking considerations, and the forum seeking extradition is inappropriate for reasons of justice.

 

It may be that some will argue that the motivation for prosecuting Mr Assange is for his political beliefs, but this seems hard to sustain. It is his alleged role in the hacking that is the concern, not his libertarian views.

 

This last requirement (the forum) is the only one possibly applicable, but is itself carefully defined. The essential questions are whether the United States is the appropriate forum for any trial (it plainly is) and whether such a trial would be unfair on the defendant? It was on this basis that Mr Lauri Love (another alleged hacker) successfully resisted extradition to the United States, because of his physical and mental fitness to be extradited. As far as is known, no equivalent consideration applies to Mr Assange, but his condition after seven years confined to the Ecuadorian embassy may not be good.

 

Third for some countries  the court must conclude that there is evidence which would be sufficient to make a case requiring an answer if there were a summary trail of an information against him. This however is not required for many states, including the United States.

 

Human Rights

The third requirement is that the extradition must be compatible with accused’s Convention rights as defined by the Human Rights Act. Most obviously, if the accused would not be afforded a fair trial extradition would be refused under article 6. It was  on this basis of the accused’s human rights that in 2012 Theresa May as Home Secretary refused the extradition of Mr Gary McKinnon’s to the United States on the basis of his article 2 right to life (there was a risk of suicide were he to be extradited). However, this power to decline on human rights grounds was (rightly) transferred to the courts by the Crime and Courts Act 2013, reducing the Secretary of State’s role.

 

The most relevant Convention Right applicable to Mr Assange is Article 10 (freedom of expression). After all, Mr Assange’s motive was to disseminate information through Wikileaks, which he then did. Would extradition to the United States violate his right to freedom of expression?

 

Given the “dual criminality” rule, it is hard to understand how it could. If Mr Assange were to be tried for equivalent offences in the United Kingdom, would the court interpret the Computer Misuse Act to permit this kind of hacking, or declare that that Act is incompatible with the Human Rights Act? This seems implausible. Mr Assange is not simply charged with publishing information obtained illegally by Chelsea Manning, but with conspiring to obtain unauthorised information from a computer system. This is not required by freedom of expression.

 

The Secretary of State

The extradition process is now “substantially judicialised“. The Secretary of State’s role is now limited to considering whether he is prohibited from allowing extradition on the basis of the death penalty, specialty, or earlier extradition to the UK. None of these apply here, and so if the court makes an order for extradition the Secretary of State must comply.

 

The calls by newspapers and politicians for the government to act to prevent extradition of Mr Assange are therefore misconceived at best. This is a matter for the courts, and on its face all the conditions for extradition are met.

 

Sweden

There is however one way in which Mr Assange might avoid extradition to the United States.

 

Originally, Mr Assange had sought asylum in order to avoid a European Arrest Warrant from Swedish authorities in relation to rape allegations. This warrant is no longer extant, but the proceedings may recommence.

 

Where the Secretary of State receives competing extradition request he may order one request to be deferred until the other has been disposed of. The relevant considerations include the seriousness of the offences, where they were committed and the date when each request was received. Rape is a more serious offence than hacking, and the original Swedish warrant was seven years earlier.

 

If Mr Assange were extradited to Sweden, he could not be extradited from there to the United States for offences the UK would not also extradite him for (an aspect of the specialty rule). He could not therefore be any worse off. Sweden’s extradition treaty with the United States is differently worded from that between the US and UK, and prohibits extradition for an “offense connected with a political offense”. Mr Assange’s alleged hacking may be said to be covered by this wording, in a way that it is not under the UK legislation.

 

Ironically therefore, once Mr Asasange has served his punishment in the United Kingdom for skipping bail, his best hope for avoiding extradition to the United States is that he is extradited to Sweden first.

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Royal Assent and Brexit

Brexit is a feast for constitutional lawyers. Royal Assent to Bills that have passed both Houses and how exactly it is given, including the Great Seal Act 1884, is not normally the kind of detail that most lawyers, even those who are specialists, carry around in their heads. Royal Assent has been, for centuries, a formality. Why worry about the details of this formal flummery?

 

It has now been argued by Professor Finnis that were the European Union (Withdrawal) (No 5) Bill to pass both houses, it would be legitimate for the government to withhold Royal Assent.  This follows on from his suggestion that the passing of such a Bill should be prevented by the government choosing to prorogue Parliament. I have previously addressed the importance of not dismissing Finnis’ arguments on the basis of some of the other (offensive) views he holds.

 

Finnis’ Argument

The crux of Finnis’ argument is that the Commons, and in particular its speaker, is behaving illegitimately. Ordinarily, the government is in control of the legislation that is presented to the Commons. This is for very good reasons. The government, aided by a professional civil service, is able to take an holistic view of law and expenditure. Allowing MPs control of the legislative process gives rise to the danger that majorities will be constructed for inconsistent and incoherent things. There may be a majority for extra public spending, no larger deficit and lower taxes for example. A single entity, the government, must make the hard choices, and if the Commons doesn’t like them, its remedy is a vote of no confidence requiring the government to be replaced by another.

 

There are, admittedly, Private Members Bills, but these are allocated limited time, cannot cover matters requiring further expenditure, and are small in number. They usually cover such crucial matters as the regulation of sunbeds and the control of horses.

 

Finnis argues that the European Union (Withdrawal) (No 5) Bill is illegitimate in two ways. First it seeks to take away decision making from the government in the conduct of international relations, second it will impose a charge on the public purse without government approval. (The latter is somewhat doubtful, but the necessary European elections would not be cost free). If the Commons wishes to pursue these goals its correct course would be to pass a vote of no confidence and find a different set of ministers prepared to pursue the objectives in the Bill. Its refusal to do so, whilst taking on tasks that are properly the government’s, justifies the exceptional steps of proroguing Parliament or withholding Royal Assent. Or so he argues.

 

The Crown and the Monarch

One distraction, about which Finnis is correct, is in relation to the Monarch. In the modern era, we need to distinguish between the Crown (the institution) and the Monarch (the person). The former is many centuries old and will last as long as the State. The latter is Elizabeth II, a youthful 92. It is the Crown that gives Royal Assent, not the Monarch the person. The Monarch is nowadays no more than a pen. In almost all circumstances where she exercises any legal powers she now does so in accordance with the advice of the relevant minister. Where it is inappropriate for such advice to be definitive (as it is in deciding who to appoint as Prime Minister) she now does so in accordance with a rule (whomsoever the Commons has already determined has the confidence of a majority).

 

Royal Assent is not performed by the Queen alone. The Bill first goes to the Lord Chancellor, and she needs the Great Seal. The details of this are unnecessary. The relevant other officers of the Crown (who are members of the government) could prevent the pen (the Queen) from giving Royal Assent.

 

The only option for the current Monarch if asked to do something to which she had a profound moral objection would be abdication, not refusal.

 

Royal Assent

Is it conceivable that Royal Assent could be legitimately refused in any circumstances? Again, I think it is best to concede to Finnis that there may be highly unusual cases where ,between the passing of a Bill through both Houses and the decision whether to give Royal Assent, circumstances have dramatically and unexpectedly changed where the enactment of the Bill would be inappropriate.

 

Ordinarily however, and for hundreds of years, Royal Assent has just been a formality. In the United States the President has exercised an analogous “pocket veto” power in relation to  Bills. This may be thought legitimate in that system because the President has his own democratic mandate independent of Congress. The UK government has no such separate mandate. Its democratic legitimacy is only sourced from the Commons.

 

Confidence

If any government did try to withhold Royal Assent from a Bill (save in the ultra rare change of circumstances situation above) the response of the Commons would be swift. The government would lose a vote of confidence and be swiftly replaced.

 

The only reason why Finnis’ argument is of relevance is because of lack of time. Votes of confidence, and the process of coalescing around a candidate for Prime Minister who commands majority support takes time, especially where as now no party has a majority in the Commons. If a Bill needs to be passed urgently, as one requiring delay to Brexit or more sensibly changing the default to revoke possibly would, a rogue government could prevent it altogether by pocketing the Bill for the brief period necessary.

 

It is important therefore for it to be said loudly and clearly that this is illegitimate. Yes, ordinarily the government is in charge of legislation before the Commons because it can take an holistic view, but that is only because that is what the Commons itself ordinarily thinks best. Where, as now, our democratically elected body takes, exceptionally, a different view, that is legitimate because it itself is the body mandated by the voters to take that decision. The formal details of the Royal Assent Act 1967 or the Great Seal Act 1884 are irrelevant.