A Typo in the Constitution

Greg Callus' musings on law, politics, media, culture, and life

Assange: the ‘Temporary Surrender’ canard

Cards on the table: I think Julian Assange should go or be sent to Sweden to face the allegations of sexual crimes in a Swedish court. I will do all I can to oppose any attempt by the United States to extradite him for his role in the Cablegate affair. 

His extradition from the UK to Sweden has been found to be lawful by both the English High Court and the UK Supreme Court. Sweden has sufficient due process, and the protections of Article 6 of the European Convention on Human Rights that I am satisfied he would receive a fair trial. I have no strong view on his innocence or guilt, and think the presumption of innocence is frequently forgotten by Assange’s detractors, and confused with a need to believe in his innocence by his supporters.

The ONLY reason I would have any concern about him being extradited from the UK to Sweden is if this extradition materially increased the likelihood of him being extradited to the United States. The burden is on him and his supporters to show that this is so.

If extradited to Sweden, he will either be in custody (awaiting trial or as a sentence after conviction), or released. If he is released, then the UK would only be able to get him back if he was serving an imprisonable sentence in the UK before he was sent (ie if convicted of an offence, such as failing to surrender under s6 of the Bail Act). Otherwise he would be free to go anywhere upon being found Not Guilty - and I’d expect him to choose somewhere more difficult for the US to reach him than its European allies. 

So going to Sweden and being found Not Guilty definitely reduces his chances of being extradited to the US. But how about if he were either in custody pre-trial or convicted and imprisoned? What if the US tried to extradite him from Sweden whilst he was in custody? Is that more likely than extradition from the UK?

Seumas Milne has published a Guardian editorial today which includes one of David Allen Green’s "Zombie Facts" - myths about the extradition of Julian Assange from the UK to Sweden. 

Milne says: 

There are specific risks in Sweden – for example, its fast-track “temporary surrender” extradition agreement it has with the US.”

He is referring to Article VI of the US-Sweden Extradition Treaty (supplemental, 1984). As a commenter on Lenin’s Tomb called Fiaro notes, this clause is almost identical to Article 14 of the operative US-UK Extradition Treaty . But even if the UK didn’t have such an awful, one-sided treaty with the US, it would still apply to the UK, because of Article 9 of the EU-US Extradition Agreement (to which the UK and Sweden are party). Temporary Surrender is not unique, rare, or actually relevant.

Imagine the UK were to jail Assange for (let us imagine) breach of bail conditions but send him to Sweden before he served his UK sentence. On conclusion of his Swedish trial, Sweden could temporarily surrender him back to the UK to serve his UK sentence. If he had been found Guilty in Sweden, the English courts would then decide whether to send him back to Sweden for his Swedish sentence. 

Temporary Surrender is a get-around in extradition law to allow people already prosecuted or convicted of crimes and serving jail time to be transferred temporarily, on the condition that they are returned to serve their prison sentence in the country that sent them. 

So could Sweden use Temporary Surrender to send Assange to the US if he was being prosecuted there? Yes, insofar as they could extradite Assange to Sweden (allowed for by the same Treaty). But there is one, very important condition that has to be met for Assange to be sent to the US from Sweden, whether by extradition or by Temporary Surrender - it can only be done with the agreement of the British Home Secretary.

If Sweden had originally arrested and prosecuted Assange, they would have been entirely free to send him, by extradition or Temporary Surrender, to the US as long as there was an undertaking that he wouldn’t be tortured or subject to the Death Penalty (ECHR strictures).

But Sweden didn’t arrest and detain him for prosecution. The UK did, and Sweden’s mechanism for having control of Assange is through the European Arrest Warrant, or EAW for short. The EAW is a creature of EU law - begat by the European Arrest Warrant Framework Decision, to which all EU Member States including the UK and Sweden are signatories. It is binding EU law, supreme to domestic law in this area, both in the UK and in Sweden. 

The EAW Framework Decision sets out how EAWs should work, and most importantly how to resolve clashes between competing demands for the same person. The State who originally have the Defendant in custody is the Requested State or Executing Member State. The States that want him are Requesting States. Requesting States that are using the EAW are also called the Issuing Member State. 

For the purposes of Julian Assange, the Requested State/Executing Member State is the UK. The Requesting State/Issuing Member State under the EAW is Sweden. The US is also a Requesting State in this hypothetical. The UK and Sweden are both Category 1 countries, but the US is Category 2 - this matters for determining how any US request is treated.

The EAW Framework Decision says that:

1) If the UK received both a request from Sweden and from the US, Article 16(3) leaves it up to the Home Secretary to decide which one to grant. Assange cannot be extradited from the UK without the express permission of the Home Secretary.

2) If Sweden receives an extradition request from the US, they are bound by Article 28(4) which states very clearly: 

Notwithstanding paragraph 1, a person who has been 

surrendered pursuant to a European arrest warrant shall not be 

extradited to a third State without the consent of the 

competent authority of the Member State which surrendered 

the person. Such consent shall be given in accordance with the 

Conventions by which that Member State is bound, as well as 

with its domestic law. 

So if Sweden has Assange persuant to the EAW that the UK Supreme Court upheld,  ”he shall not be extradited to a third State [the US] without the consent of the competent authority [the Home Secretary] of the Member State which surrendered the person [the UK]”. And the form of the UK’s consent would be in the ‘waiver of specialty’ which is codified not only in International Law, but also in section 58 of the Extradition Act 2003.

Consent to further extradition to category 2 territory

(1)This section applies if—

(a) a person is extradited to a category 1 territory (the requesting territory) in accordance with this Part;

(b) the Secretary of State receives a request for consent to the person’s extradition to a category 2 territory for an offence;

(c) the request is certified under this section by the designated authority.

(2) The designated authority may certify a request for consent under this section if it believes that the authority making the request—

(a) is a judicial authority of the requesting territory, and

(b) has the function of making requests for the consent referred to in subsection (1)(b) in that territory.

(3) A certificate under subsection (2) must certify that the authority making the request falls within paragraphs (a) and (b) of that subsection.

(4) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so.

We also know that, if the Home Secretary gave consent under s58, it would be as Judicially Reviewable as if she allowed his extradition from the UK to the US. In short, it makes no difference whether Assange is in Sweden or in the UK. The Home Secretary still gets the final say.

This is corroborated by Chief Magistrate Howard Riddle, in the original judgment in the Assange extradition matter (from end of page 27):

There was at one stage a suggestion that Mr Assange could be extradited to the USA (possibly to Guantanamo Bay or to execution as a traitor).  The only live evidence on the point came from the defence witness Mr Alhem who said it couldn’t happen.  In the absence of any evidence that Mr Assange risks torture or execution Mr Robertson was right not to pursue this point in closing.  It may be worth adding that I do not know if Sweden has an extradition treaty with the United States of America. There has been no evidence regarding this. I would expect that there is such a treaty. If Mr Assange is surrendered to Sweden and a request is made to Sweden for his extradition to the United States of America, then article 28 of the framework decision applies. In such an event the consent of the Secretary of State in this country will be required, in accordance with section 58 of the Extradition Act 2003, before Sweden can order Mr Assange’s extradition to a third State. The Secretary of State is required to give notice to Mr Assange unless it is impracticable to do so. Mr Assange would have the protection of the courts in Sweden and, as the Secretary of State’s decision can be reviewed, he would have the protection  of the English courts also. But none of this was argued. 

In spite of Magistrates’ Court rulings not in themselves being binding precedent, the Chief Magistrate at City of Westminster Magistrates’ Court is as persuasive an authority on European and English extradition law as exists in this country. Not only would the Home Secretary’s decision be judicially reviewable, Assange would get notice of it, so as to be able to injunct the Home Secretary from giving consent until the English Courts had determined it lawful.

If the Home Secretary always gets the final say on extradition to the US, whether Assange is in Sweden or in the UK, then it is difficult to see how him being extradited to Sweden makes any difference at all to his chances of ending up in the US. If anything, going voluntarily and being found Not Guilty in Sweden actually seems to be his best chance of avoiding the US extradition request entirely, assuming he can be found Not Guilty before the Virginia Grand Jury finishes its business.

There are two possible holes in this argument. The first is that Sweden or the US would break the law on requiring the Home Secretary’s consent. The second is that they would find a meaning of the law that is different to that I’ve stated above and persuade judges that they were correct.

Could the US/Sweden break the law and send him from Stockholm and across the Atlantic without the Home Secretary’s consent? Yes, but I think it vanishingly unlikely they ever would. Theresa May is the most compliant Home Secretary imaginable, as demonstrated by her contemptible decision to allow the extradition of Richard O’Dwyer for crimes against 20th Century Fox. Why would the US or Sweden risk even the slightest diplomatic incident, to avoid the scrutiny of the woman most likely to agree to his being extradited? That makes no sense.

Could another interpretation of the law be found, that contradicts my claim that wherever Assange is (in Sweden or the UK) that it always comes back to a final decision of the Home Secretary (and so makes no difference if he faces the Swedish allegations)? Absolutely - all law is arguable, and I could formulate a couple of ways to claim that other readings of the law are possible. But they are (in my view) so outside of mainstream legal thinking, so radically torturous for the plain text to endure, that I don’t think a single judge would ever agree to them. And for such tortured meanings to work, it would have to endure the scrutiny of the English High Court, Court of Appeal, UK Supreme Court, European Court of Justice, and European Court of Human Rights. That simply won’t happen. The law is simply too clear for this to be realistic. If you think you have another reading of the law that could plausibly be accepted by the relevant courts, I’d genuinely love to hear it.

Whether Julian Assange is in the UK or in Sweden, his chances of extradition to the US are unchanged, because the final decision will always be that of the British Home Secretary. Therefore, I see no reason for him not to face the sexual offences allegations. When (or if) the Home Secretary does entertain the request from the US, I will fight that with ever sinew of my being. But that is a separate fight for another day. On the issue at present, I see no reason why Swedish justice should not run its course.

GC

  • 22 August 2012
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