Assange Attorney: British Ruling Sets Alarming Precedent for Judicial Independence in Europe

Democracy Now*

HAVANA TIMES — Helena Kennedy, a member of Julian Assange’s legal team and a prominent British civil liberties attorney, joins us from London to discuss the court ruling upholding Assange’s extradition to Sweden.

“The idea of a prosecutor demanding someone is brought by force to their country in order to be questioned — and [not] a judge or court — is alarming because we believe in judicial independence,” Kennedy says.

“[Assange] is concerned [that] once he is on Swedish soil, he becomes much more vulnerable to the intentions of the U.S. to have him extradited to stand trial on much more worrying charges.”

AMY GOODMAN: We are joined in Britain by one of the attorneys for Julian Assange, Helena Kennedy. When the judge announced the Supreme Court’s decision to uphold Assange’s extradition, he invoked the 1957 European Convention on extradition. I want to ask Helena Kennedy about the significance of that Convention and why it was put into effect. We’re going to just go to a clip of the ruling first. This is Lord Nicholas Phillips, President of the Supreme Court in Britain.

NICHOLAS PHILLIPS: The Swedish public prosecutor has requested the extradition of Mr. Assange on charges of serious sexual offenses. That request has raised a point of law of general public importance. It is not a point in respect of which the particular facts of Mr. Assange’s case have any relevance. This summary is about that point of law. It used to be the case this country would not extradite a person to another European country until a court here had considered the evidence against that person. The court would not approve extradition unless the evidence justified his being subjected to a criminal trial. All that changed in 2001 when we gave effect to the 1957 European Convention on extradition.

AMY GOODMAN: That’s Lord Nicholas Phillips, President of the Supreme Court in Britain, explaining the decision to extradite Julian Assange, the founder of WikiLeaks, to Sweden. Helena Kennedy, you’re one of the members of Julian Assange’s legal team. Can you respond to the decision that was just handed down hours before this broadcast?

HELENA KENNEDY: Well, I’m a consultant to the team, and extradition is one of the areas of law that I have some practice and knowledge of. It is right that it is comparatively recently that we have become much more closely involved in legal arrangements with the rest of Europe about the handing over of persons sought for questioning or for proceeding on to criminal trial. On a much more sort of familiar basis so that we do it with little examination of evidence and the idea is that we respect the legal systems of these other countries to be just and fair, even if they’re different from ours. The problem about that is, or course, in other parts of Europe we don’t have a common law system. In fact, the American system is much closer to the British system, and there’s a civil law system, where the whole arrangements are rather different. And so, one of the concerns that was raised in this case was that a really important point of law, which was about this request having been made by prosecutor who wanted to question Assange. There is still an issue as to whether he would ever be charged.

There is no doubt that if the old processes had been relied upon, the evidence would not have been enough to justify a prosecution here in Britain. But they were invoking the new arrangement. The new arrangement in this last decade or so has been that a Euro warrant can be issued and that it does not involve a close examination of evidence, and the request had been made by a judicial authority. That’s how it has always been presented and that’s how it was introduced into law in Britain. Two of the judges, interestingly, did not go along with this decision. It was a 5-2 majority decision. But another two of the five say that had parliament known the judicial authority might mean a prosecutor and not a judge, it may be that the arrangement would not have been accepted by parliament. But now that it has been and has been going on for the last years, this practice should be accepted as one that is respectful of other jurisdictions.

Now, the concern that we all had, and I think that any democrat in Britain would have, is that the idea of a prosecutor demanding that someone is brought by force to their country in order to be questioned, and that that is not a decision being made by a judge or a court, is alarming to us because we believe in judicial independence. We believe that the state sometimes does things that have to be called into question, or certainly have oversight by an independent judge, and that hasn’t happened here. And so, that is why this was a very important issue and went all the way to our Supreme court, and the court has, by a majority, come down saying that really they have to be respectful of the fact and other systems, this is what happens; that a prosecutor can make these decisions without judicial oversight. Well, I think that has left a lot of us feeling very unhappy about the arrangement we’ve entered into and as to whether it really complies with our respect for the rule of law and independence of the judiciary to overview what decisions are made by prosecutors, because it is not a happy situation that prosecutors can decide who they’re going to have brought by warrant and by force back for questioning without any judicial intervention.

NERMEEN SHAIKH: Helena Kennedy, isn’t it relevant at all that Julian Assange hasn’t in fact been charged with any offense in Sweden yet? Doesn’t that have any bearing on the European arrest warrant?

HELENA KENNEDY: Well, the European arrest warrant says that you can be arrested in order to be questioned, but it is interesting that Assange volunteered to be questioned here at the Swedish Embassy or at Scotland Yard. He didn’t see why that it was required that he should go all the way to Sweden. And of course, what he suspects and is concerned about is that as soon as he sets foot on Swedish soil, that he becomes much more vulnerable to the perhaps intentions of the U.S. to have him extradited from there to the United States to stand trial on much more worrying charges, from his perspective, because he would face the sort of American sentences that go along with espionage.

AMY GOODMAN: While Julian Assange didn’t address the news media after today’s Supreme Court decision, the news reports said he was caught in heavy traffic. I want to play for you what he said in November after he lost his initial appeal.

JULIAN ASSANGE: I have not been charged with any crime in any country. Despite this, the European arrest warrants is so restrictive that it prevents U.K. courts from considering the facts of a case, as judges have made clear here today. We will be considering our next step in the days ahead. The full judgment will be available on swedenversusassange.com. No doubt, throw the many attempts made to try and spin these proceedings as they occurred today, but they are merely technical. So, please go to swedenversusassange.com if you really want to know what’s going on in this case.

AMY GOODMAN: That was Julian Assange, not this time, but in November after he lost his initial appeal. Speaking to us from Oxford, England is Helena Kennedy. She is a consultant to Assange’s legal team. I’d like you to respond to that and also the decision of the judges when raised by his attorney Dinah Rose, that they allow her to argue on this point that she said that she hadn’t gotten a chance to argue on, the decision that they had made that he can stay for another two weeks. What are the avenues that Assange has right now?

HELENA KENNEDY: What came up in court was the Vienna Convention was invoked by the judge’s to say that, basically, the words — the French words — are the words which they looked at which is “judicial authority”–”autorité judicial,” and that that has been translated into judicial authority which we the British common law listeners took to be a judge and a court and certainly that is what the British Parliament thought. Whereas, in fact, to Europeans who have a different system, it would be interpreted as being a prosecutor, and therefore in endorsing the Vienna Convention on extradition, then we committed ourselves to the French interpretation. So, I think, I know, that Dinah wants to be able to have a look at that and to see whether that is a proper interpretation, because she didn’t have the opportunity of dealing with it; it wasn’t raised by the other side at the original hearing.

Now, I’ve spoken to Julian Assange since the — he is caught in traffic — and I spoke to him since his hearing of the judgment. We will all look at what this means and whether we think it is likely to make any difference. It is very rare for the Supreme Court to give an opportunity to revisit an argument. The last time I remember it was in the Pinochet case. But certainly one will have a look at this. But, it is — the sense one is getting is that even in this court, there was argument as to whether this is an acceptable thing within the common law tradition that you just hand somebody over on the say so over prosecutor, and there was definite unease in two of the judges. The sole woman we have and another judge both took a different position and therefore didn’t go along with the majority. So there’s serious argument that there should be on this — and may actually have to be revisited by parliament in the fulness of time, but It might not be good for Assange because the decision is going to be as it stands at the moment. So, it’s a matter of serious concern.

I listened to Glenn talking about the implications of this if he’s returned to Sweden. Glenn Greenwald is right. Sweden does not let people out on bail. It is very, very rare that they would allow anybody, particularly someone who is a foreign national, to be in any position other than in custody and in secure custody. So, it means that he will be returning there, and even if a decision is made which is favorable to Assange in Sweden, one just wonders if he’s going to be slapped with a warrant from the United States wanting him to be extradited to the U.S. And that has to be a matter of concern for us and for those who are advising him legally.

NERMEEN SHAIKH: If the legal team has to seek recourse with the European Court of Human Rights in Strasbourg, which is apparently the last court of appeal, what is the likely outcome of that? Is it possible that the European Court could stay his extradition?

HELENA KENNEDY: You have to understand that the European Court isn’t quite like a last court of appeal. It is an avenue that is open. If it’s an issue which the European Court would think was a matter that needed to be resolved because it had implications for lots of other countries. It is very rare for a case like this on this kind of point to go to European court. But, obviously, we will take a look at that and we will put that argument in writing to the European court, and they can either say yea or nay and that will determine whether there is any further avenue left to us. So we’re getting to the situation where there’s going to be — the options are narrowing by the day, and so I think that we will probably have to make decisions over the next 48 hours as to what happens next.

AMY GOODMAN: Finally, Helena Kennedy, you said you spoke to Julian Assange. He is caught in traffic. Usually does make a statement after a decision is handed down. What was his response to the high court ruling that he should be extradited to Sweden?

HELENA KENNEDY: Well, in many ways, Julian of course is skeptical about any kind of judicial decision making in this field, and he’s very aware that Britain, of course, is part of Europe and has made agreements and has found a sort of modalities and arrangements for our different systems to work together. So there is a general unwillingness not to respond to a call from another country for somebody to be taken there on a warrant. So, it is right that this has political — with a small p — implications, if not even with a big P. But, I think that he was actually heartened that there was so much argument, clearly, between the judges and that two of the judges came to the view that this was not right that a prosecutor could call for somebody to be just handed over for questioning. And was also heartened by the fact that two of the judges who remained, who went along with the judgement, still had reservations about whether parliament would have agreed with this, but basically, ended up going with the majority decision on the basis it had been in practice now for a number of years and it was now inbedded. So, that is how they came to that majority opinion. So, he has been heartened by the fact that in many ways it points to just how complicated this whole issue is.

AMY GOODMAN: Helena Kennedy, I want to thank you for being with us, joining us from Oxford, England. She is a consultant to the Assange legal team.

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