With Assange still caged behind bullet-proof glass, lawyers from both sides argued whether international or domestic law would determine whether an extradition can be made for a political crime, as Craig Murray reports.
In Wednesday’s proceedings in court, the prosecution adopted arguments so stark and apparently unreasonable I have been fretting on how to write them up in a way that does not seem like caricature or unfair exaggeration on my part. What has been happening in this court has long moved beyond caricature. All I can do is give you my personal assurance that what I recount actually is what happened.
As usual, I shall deal with procedural matters and Julian’s treatment first, before getting in to a clear account of the legal arguments made.
District Judge Vanessa Baraitser is under a clear instruction to mimic concern by asking, near the end of every session just before we break anyway, if Julian is feeling well and whether he would like a break. She then routinely ignores his response. Yesterday he replied at some length he could not hear properly in his glass box and could not communicate with his lawyers (at some point yesterday they had started preventing him passing notes to his counsel, which I learn was the background to the aggressive prevention of his shaking his Spanish lawyer, Baltasar Garzon’s, hand goodbye).
Baraitser insisted he might only be heard through his counsel, which given he was prevented from instructing them, was a bit rich. This being pointed out, we had a ten minute adjournment while Julian and his counsel were allowed to talk down in the cells – presumably where they could be more conveniently bugged yet again.
On return, attorney Edward Fitzgerald made a formal application for Julian to be allowed to sit beside his lawyers in the court. Julian was “a gentle, intellectual man” and not a terrorist. Baraitser replied that releasing Assange from the dock into the body of the court would mean he was released from custody. To achieve that would require an application for bail.
Again, the prosecution counsel James Lewis intervened on the side of the defence to try to make Julian’s treatment less extreme. He was not, he suggested diffidently, quite sure that it was correct that it required bail for Julian to be in the body of the court, or that being in the body of the court accompanied by security officers meant that a prisoner was no longer in custody. Prisoners, even the most dangerous of terrorists, gave evidence from the witness box in the body of the court next to the lawyers and magistrate. In the High Court prisoners frequently sat with their lawyers in extradition hearings, in extreme cases of violent criminals handcuffed to a security officer.
Baraitser replied that Assange might post a danger to the public. It was a question of health and safety. How did Fitzgerald and Lewis think that she had the ability to carry out the necessary risk assessment? It would have to be up to Group 4 to decide if this was possible.
Yes, she really did say that. Group 4 would have to decide.
Baraitser started to throw out jargon like a Dalek when it spins out of control. “Risk assessment” and “health and safety” featured a lot. She started to resemble something worse than a Dalek, a particularly stupid local government officer of a very low grade. “No jurisdiction” – “Up to Group 4”. Recovering slightly, she stated firmly that delivery to custody can only mean delivery to the dock of the court, nowhere else in the room. If the defence wanted him in the courtroom were he could hear proceedings better, they could only apply for bail and his release from custody in general. She then peered at both barristers in the hope this would have sat them down, but both were still on their feet.
In his diffident manner (which I confess is growing on me) Lewis said “the prosecution is neutral on this request, of course but, err, I really don’t think that’s right”. He looked at her like a kindly uncle whose favourite niece has just started drinking tequila from the bottle at a family party.
Baraitser concluded the matter by stating that the Defence should submit written arguments by 10am tomorrow on this point, and she would then hold a separate hearing into the question of Julian’s position in the court.
The day had begun with a very angry Magistrate Baraitser addressing the public gallery. Yesterday, she said, a photo had been taken inside the courtroom. It was a criminal offence to take or attempt to take photographs inside the courtroom. Vanessa Baraitser looked at this point very keen to lock someone up. She also seemed in her anger to be making the unfounded assumption that whoever took the photo from the public gallery on Tuesday was still there on Wednesday; I suspect not. Being angry at the public at random must be very stressful for her. I suspect she shouts a lot on trains.
Ms Baraitser is not fond of photography – she appears to be the only public figure in Western Europe with no photo on the internet. Indeed the average proprietor of a rural car wash has left more evidence of their existence and life history on the internet than Vanessa Baraitser. Which is no crime on her part, but I suspect the expunging is not achieved without considerable effort. Somebody suggested to me she might be a hologram, but I think not. Holograms have more empathy.
I was amused by the criminal offence of attempting to take photos in the courtroom. How incompetent would you need to be to attempt to take a photo and fail to do so? And if no photo was taken, how do they prove you were attempting to take one, as opposed to texting your mum? I suppose “attempting to take a photo” is a crime that could catch somebody arriving with a large SLR, tripod and several mounted lighting boxes, but none of those appeared to have made it into the public gallery.
Baraitser did not state whether it was a criminal offence to publish a photograph taken in a courtroom (or indeed to attempt to publish a photograph taken in a courtroom). I suspect it is. Anyway Le Grand Soir has published a translation of my report yesterday, and there you can see a photo of Julian in his bulletproof glass anti-terrorist cage. Not, I hasten to add, taken by me.
An Act vs. a Treaty
We now come to the consideration of Wednesday’s legal arguments on the extradition request itself. Fortunately, these are basically fairly simple to summarise, because although we had five hours of legal disquisition, it largely consisted of both sides competing in citing scores of “authorities”, eg dead judges, to endorse their point of view, and thus repeating the same points continually with little value from exigesis of the innumerable quotes.
As prefigured yesterday by magistrate Baraitser, the prosecution is arguing that Article 4.1 of the UK/US extradition treaty has no force in law.
The UK and U.S. Governments say that the court enforces domestic law, not international law, and therefore the treaty has no standing. This argument has been made to the court in written form to which I do not have access. But from discussion in court it was plain that the prosecution argue that the Extradition Act of 2003, under which the court is operating, makes no exception for political offences. All previous Extradition Acts had excluded extradition for political offences, so it must be the intention of the sovereign parliament that political offenders can now be extradited.
Opening his argument, Assange’s attorney Edward Fitzgerald QC argued that the Extradition Act of 2003 alone is not enough to make an actual extradition. The extradition requires two things in place; the general Extradition Act and the Extradition Treaty with the country or countries concerned. “No Treaty, No Extradition” was an unbreakable rule. The Treaty was the very basis of the request. So to say that the extradition was not governed by the terms of the very treaty under which it was made, was to create a legal absurdity and thus an abuse of process. He cited examples of judgements made by the House of Lords and Privy Council where treaty rights were deemed enforceable despite the lack of incorporation into domestic legislation, particularly in order to stop people being extradited to potential execution from British colonies.
Fitzgerald pointed out that while the Extradition Act of 2003 did not contain a bar on extraditions for political offences, it did not state there could not be such a bar in extradition treaties. And the extradition treaty of 2007 was ratified after the 2003 extradition act.
At this stage Baraitser interrupted that it was plain the intention of parliament was that there could be extradition for political offences. Otherwise they would not have removed the bar in previous legislation. Fitzgerald declined to agree, saying the Act did not say extradition for political offences could not be banned by the treaty enabling extradition.
Fitzgerald then continued to say that international jurisprudence had accepted for a century or more that you did not extradite political offenders. No political extradition was in the European Convention on Extradition, the Model United Nations Extradition Treaty and the Interpol Convention on Extradition. It was in every single one of the United States’ extradition treaties with other countries, and had been for over a century, at the insistence of the United States. For both the UK and U.S. Governments to say it did not apply was astonishing and would set a terrible precedent that would endanger dissidents and potential political prisoners from China, Russia and regimes all over the world who had escaped to third countries.
Fitzgerald stated that all major authorities agreed there were two types of political offence. The pure political offence and the relative political offence. A “pure” political offence was defined as treason, espionage or sedition. A “relative” political offence was an act which was normally criminal, like assault or vandalism, conducted with a political motive. Every one of the charges against Assange was a “pure” political offence. All but one were espionage charges, and the computer misuse charge had been compared by the prosecution to breach of the official secrets act to meet the dual criminality test. The overriding accusation that Assange was seeking to harm the political and military interests of the United States was in the very definition of a political offence in all the authorities.
The U.S. View
In reply Lewis stated that a treaty could not be binding in English law unless specifically incorporated in English law by Parliament. This was a necessary democratic defence. Treaties were made by the executive which could not make law. This went to the sovereignty of Parliament. Lewis quoted many judgements stating that international treaties signed and ratified by the UK could not be enforced in British courts. “It may come as a surprise to other countries that their treaties with the British government can have no legal force” he joked.
Lewis said there was no abuse of process here and thus no rights were invoked under the European Convention. It was just the normal operation of the law that the treaty provision on no extradition for political offences had no legal standing.
Lewis said that the U.S. government disputes that Assange’s offences are political. In the UK/Australia/US there was a different definition of political offence to the rest of the world. We viewed the “pure” political offences of treason, espionage and sedition as not political offences. Only “relative” political offences – ordinary crimes committed with a political motive – were viewed as political offences in our tradition. In this tradition, the definition of “political” was also limited to supporting a contending political party in a state. Lewis will continue with this argument on Thursday.
Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010.
This article is from CraigMurray.org.uk.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Maybe Assanges defence team is under performing the way they are about the Judge and some of the bench rulings is that when he is found guilty they can immediately appeal on a number of legal grounds regarding the bias and behavior of the judge. (?)
I only say this because on reading a number of columns and opinions all basically saying this trial should not be going ahead….but there it is. When politicians pontificate about the rule of law and you watch a show trial like this one going down it becomes even more painfully obvious that your stand for truth or human rights or justice for all is just part of the game you are allowed to play in. But show what they are really up to…… and you are pretty well toast. Chelsea Manning is another current prisoner/case in point. The shameful treatment she has received because she refuses to testify in a SECRET court should be a national scandal – but it isn’t.
How sad we have already gone so far down the rabbit hole of our own volition.
Craig Murray wrote:
> As prefigured yesterday by magistrate Baraitser, the prosecution is arguing that Article 4.1 of the UK/US extradition treaty has no force in law. . . .
> But from discussion in court it was plain that the prosecution argue that the Extradition Act of 2003, under which the court is operating, makes no exception for political offences. . . .
> Opening his argument, Edward Fitzgerald QC argued that the Extradition Act of 2003 alone is not enough to make an actual extradition. The extradition requires two things in place; the general Extradition Act and the Extradition Treaty with the country or countries concerned. “No Treaty, No Extradition” was an unbreakable rule. . . . He cited examples of judgements made by the House of Lords and Privy Council where treaty rights were deemed enforceable despite the lack of incorporation into domestic legislation . . .
> Fitzgerald pointed out that while the Extradition Act of 2003 did not contain a bar on extraditions for political offences, it did not state there could not be such a bar in extradition treaties. And the extradition treaty of 2007 was ratified after the 2003 extradition act. . . .
> In reply Lewis stated that a treaty could not be binding in English law unless specifically incorporated in English law by Parliament.
Very clearly, prosecution counsel Lewis and magistrate Baraitser are wrong, while defense attorney Fitzgerald is right.
No extradition treaty with any country has been explicitly incorporated into UK domestic law. The UK Extradition Act 2003 is a common ground for all treaties, all of them legally binding, without any of the different specific arrangements that apply to each country.
There is no mention of the United States or any other foreign countries in the currently in force UK Extradition Act 2003, excepting I think a few mentions of Hong Kong, now part of China. Nothing about the United States.
See: Extradition Act 2003 — legislation.gov.uk
For the specifics about the United States, there is naturally the UK–US Extradition Treaty, in force since 2007.
See: Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America
In the UK Extradition Act, there is only a classification into two groups of countries: “category 1 territories” (European Union countries) and “category 2 territories” (other countries that have signed different extradition “arrangements” with the United Kingdom, that is to say treaties). Apart from this, no differences in the Act for specific countries.
If Lewis and Baraitser were right, they could run to see Johnson, Corbyn, and the many other UK authorities and legal scholars who always complain about the unbalanced US extradition treaty, etc., and say to them: “Rejoice, no more worries, only the general UK Act applies to extraditions! All the different treaties with every country are just toilet tissue… It’s free bar, enjoy!” Completely absurd position.
Naturally they are very wrong, United Kingdom’s signatures and ratifications have some value, and the country usually has regard to its international obligations.
So the UK Extradition Act is just the general basis in the domestic law to support all the specific extradition treaties. There has been no need to incorporate any of the many different treaties into domestic laws, just that common ground:
“Many treaties require a change to domestic legislation which will be subject to the usual parliamentary procedures.
“. . . where treaty provisions require domestic implementation”
(Treaties — House of Commons Information Office)
“The Extradition Act 2003 (as amended) provides the domestic legal basis for extradition to and from EU Member States (including Gibraltar) under the European Arrest Warrant (‘EAW’). It also provides the domestic legal basis for all extradition requests received by the UK from other countries.”
(Extradition | The Crown Prosecution Service)
“Extradition is the formal process where one country asks another to return a person in order to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties the UK has extradition relations with over 100 territories around the world.”
(Extradition: processes and review – GOV.UK)
Of course, signed and ratified treaties are legally binding for the UK state, including of course its judicial branch:
“Treaties and conventions are legally binding agreements or contracts between States: the terms are sometimes used synonymously.”
(A Review of the United Kingdom’s Extradition Arrangements)
Many legal texts are written under the understanding that everyone knows treaties are legally binding:
“The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations. . . . an MoU is not legally binding”
(Treaties and Memoranda of Understanding (MoUs) — Treaty Section, Legal Directorate, Foreign & Commonwealth Office)
For example, the general bars to extradition included in the UK Extradition Act apply always for all countries, in addition to those specific to each country “in the relevant treaty”:
“Extradition from the UK . . .
“Bars to Extradition
“The statutory bars to extradition apply to all cases, even if there is no explicit clause in the relevant treaty.
“If the judge finds that any of the bars to extradition apply, the requested person must be discharged.”
(Extradition | The Crown Prosecution Service)
So, in summary, the UK–US Extradition Treaty — like all treaties — is legally binding:
“Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
— UK–US Extradition Treaty
According to the UK government, the UK–US Extradition Treaty is in force, legally binding. Johnson could inform magistrate Baraitser:
“To be frank I think the honorable gentleman has a point in his characterization of our extradition arrangements with the United States, and I do think there are elements of that relationship that are imbalanced and I certainly think they are worth looking at.”
— British Prime Minister Boris Johnson, February 12, 2020
(ASSANGE: A Tale of Three Extraditions — Consortium News — February 23, 2020)
As said, there is nothing specific about the United States in the UK Extradition Act. All the American specifics come only from the UK–US Extradition Treaty.
Well said JMG, pity the corrupt establishment and this Judge don’t give a shit about the law…
The defense is doing a great job. Thanks to Craig Murray for making it clear. Judge Baraitser is not neutral to put it mildly. A worse fate than a contentious judge awaits Assange if he is extradited to the US. If Assange is given every right US Citizens have and a venue change, he will not get a fair trial in the US.
Fox News, 10 hours ago:
Judge Andrew Napolitano: Prosecution of WikiLeaks’ Julian Assange violates First Amendment
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.
The trial gets some visibility.
In 2016 at Westminster Magistrates’ Court a judge ruled that activist Laurie Love could be extradited to the United States. Loves solicitor said that they would appeal and two years later the High Court upheld his appeal against extradition. I think one of the reasons was the inhumane American prison system.
Perhaps there will be a High Court Judge who thinks different about this case. I refuse to believe that all English people have forgotten what the Magna Carta is about.
District Judge Vanessa Baraitser should be ashamed of herself.
Feels like a trial in SA…. when apartheid ruled the courts.
At the end of the day, journalism may no longer be what it once was, but it will survive. Folks might just need to talk across the table more to get good information.
They should have let Mr. Assange be. Now he should be let free. He should be allowed to stay in a safe house. As we all hope to have – as sanctuary of sorts.
Justice will be served ultimately because the scales demand this if there is to be anything besides anarchy. Who wants that?
If this was the Olympics, Ms. Baraitser would be wearing the jersey of USA. Her hostility towards Assange could not have been clearer. This hostility has resulted in malfeasance of office and she should be removed from the case. What I heard from her today is a strong argument for her removal. This was not normal judicial conduct.
It’s really obvious that like the Iraq war “intelligence”, the end of this extradition case is fixed around the desired end. No matter what the law states, law is irrelevant. I therefore believe it is time to hold lawbreakers such as Judge Baraitser and the Belmarsh Prison Governor (for two) personally accountable for their decisions through filing legal claims against both. They are not above the law and they personally should be held to account under the law.
In order to get Assange and send a message to any person who might challenge the unlawful conduct of the US and the UK, both nations have doomed themselves. It’s not a joke to refuse to honor your treaties. If the US and UK feel that no nation will now use these same ideas to the determent of their own desires, they are mistaken. They are removing the force both domestic and international law. In so doing, they will bring down not only their own nations but all nations.
Thank you for your excellent reporting and analysis Mr. Murray. Thank you for your kindness and obvious commitment to justice.
Jill, I don’t believe you can take legal action against a judge for conduct in court, there are other procedures. However I believe julian’s defence have to raise at the first possible opportunity the HR convention breach in relation to a right to a fair trial. In e. human rights convention case law the right to a fair trial is considered impeded even if the proceedings have only an overt appearance of there not being an equal playing field between the contending parties.
Here is an article that looks at how British extradition laws work:
The decision about his fate is sealed; Washington will do whatever necessary to ensure that a member of the public never again exposes their shenanigans to the light of day. It is Washington’s hope that fear of government reprisal will shut us all up.
The failure to conflate hope with strategy is a very productive portal.
The failure to conflate attempt with achievement is another very productive portal.
Although not the only portals available, they are both useful portals through which to design/implement/monitor/modulate lateral (qualitative) challenges.
The opponents’ beliefs and implementation of their conflations not only render them complicit in the creation of useful portals, but also restrict their perception that others are passing through/transcending the portals of the opponents’ creation, including but not limited to “the rule of law”.