The technical point certified for appeal by the High Court to the Supreme Court may be the screen behind which the British Establishment is sidling slowly towards an exit in the Assange case.
The Gallery inside the Royal Courts of Justice (Royal Courts of Justice)
By Craig Murray
CraigMurray.org.uk
It feels like a recurring nightmare. On the sadly misnamed sleeper train once again, down to London and a dash to the Royal Courts of Justice to hear yet another judgement intoned. Julian not in court again and not in good health; Stella battling on but fighting to keep her health as well; Gareth Peirce her calm and unstoppable self; my friends from Wikileaks marshaling legal and media resources and remaining determinedly resolute and cheerful.
The Lord Chief Justice of England and Wales, Ian Duncan Burnett, is just the sort of chap you would want to play the role in a comic opera production. Burly, with a broad open face crowned with full white hair, he exudes solidity, bonhommie and natural command. You expect him to deliver his judgement and then stroll over the Strand to Simpson’s for a few thick slices of roast sirloin and a bumper of claret. I don’t mean that as a criticism; I like nothing better myself.
The Lord Chief Justice doesn’t just get his own office; he does not just get the best scarlet silly costume you can imagine; he gets his very own court. What a court it is; acres of polished wood, larger than some theatres; galleried and storeyed, walls at every level lined all round with thousands upon thousands of exquisitely bound law books, locked behind glass doors which I strongly suspect are only ever opened to add another book destined to spend its natural life in there unvisited, with no possibility of parole.
The Lord Chief Justice gets a very high bench, so you all have to look right up to him; a construction made of several tons of mahogany, which looks like it should be draped with potted palms, have moustachioed waiters in tight white jackets popping in and out of its various stairways and entrances carrying silver trays, and house a string quartet in the corner. Rumour has it that there is in fact a string quartet in a corner, which has been trying to leave since 1852.
The Lord Chief Justice suddenly materialises from his own entrance behind his bench, already high above us, so he doesn’t have to mount the mahogany and risk tripping over his scarlet velvet drapery. I like to imagine he was raised up to the requisite level behind the scenes by a contraption of ropes and pulleys operated by hairy matelots. Next to him, but discreetly a little lower, was Lord Justice Holroyde, who delivered the judgement now appealed against, and today looked even more smug and oleaginous in the reflected glow of his big mate.
The appearance lasted two minutes. Burnett told us that the Court certified, as being a matter of general public interest, the question of whether “Diplomatic Assurances” not submitted in the substantive hearing, could be submitted at the appeal stage. It did not so certify the other points raised; it refused leave to appeal to the Supreme Court.
You can ignore the last phrase; it is customary that the High Court refuses leave to appeal; with the certification of public interest, Julian can now appeal direct to the Supreme Court which will decide whether or not to take the case. The refusal of leave by the High Court is purely a show of deference to the Supreme Court, which decides itself what it will take. The lawyers put this as “the Supreme Court dines a la carte.”
Inside Royal Courts of Justice. (Nick Garrod/Flickr)
Can’t Make Torture Legal
Now some of the appeal points which the High Court refused to certify as arguable and of general public interest, were important. One point was that the diplomatic assurances by the United States promised not to engage in certain illegal practices amounting to torture, but made that assurance conditional on Assange’s future behaviour.
Now, legally prohibited treatment of prisoners does not become lawful if the prisoner does something wrong. That ought to have been a slam-dunk argument, even without the fact that the decision on Assange’s future behaviour would be made by precisely the same authorities who plotted to kidnap or murder him.
All of which was not certified as an arguable point of law of general public interest.
What is certified and going forward is the simple question of whether the diplomatic assurances were received too late. Rather peculiarly, the High Court judgement of Burnett and Holroyde, against which Julian was seeking leave to appeal, blamed extradition magistrate Vanessa Baraitser for not having asked the United States for diplomatic assurances at the earlier stage.
The doctrine that a judge should suggest to counsel for one party, helpful points to strengthen their case against the other party, is an entirely new one in English law. The United States could have submitted their diplomatic note at any stage, but chose not to do so, in order to see if they could get away with making no commitment as to Assange’s treatment. They only submitted a diplomatic note after they lost the original case. It was not for Baraitser to ask them to do it earlier and the suggestion is a ludicrous bit of special pleading by Burnett.
This is more than just a procedural point. If the assurances had been submitted to the magistrate’s court, their value could have been objected to by Assange’s defence. The self-canceling conditionalities within the assurances themselves could have been explored, and the United States’ long record of breaking such assurances could have been discussed.
By introducing them only at the appeal stage, the United States had evaded all scrutiny of their validity.
That was confirmed by today’s judgement. Questions of the viability of assurances that, inter alia, make torture a future option, were ruled not to be arguable appeal points.
So the certified point, whether assurances can be submitted at the appeals stage, is not really just about timing and deadlines, it is about whether there should be scrutiny of the assurances or not.
A Backdoor Exit?
However it does not look like a substantial point. It looks like just a technical point on timing and deadlines. This is very important, because it may be the screen behind which the British Establishment is sidling slowly towards the exit. Was Lord Burnett looking to get out of this case by one of the curtained doors at his back?
If any of the other points had been certified, there would have been detailed discussion in court of the United States’ penchant for torture, its dreadful prison conditions, and its long record of bad faith (it is an accepted point of law in the United States that domestic authorities are not bound by any assurance, commitment or even treaty given to foreign governments). For the Supreme Court to refuse Assange’s extradition on any of those grounds would be an official accusation against the United States’ integrity, and thus diplomatically difficult.
But the Supreme Court can refuse extradition on the one point now certified by the High Court, and it can be presented as nothing to do with anything bad about the USA and its governance, purely a technical matter of a missed deadline. Apologies all round, never mind old chap, and let’s get to the claret at Simpson’s.
Can there really be an end in sight for Julian? Is the British Establishment quietly sidling to the exit?
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. His coverage is entirely dependent on reader support. Subscriptions to keep this blog going are gratefully received.
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.
“God have mercy on your souls.”
Tnx Craig, CN
CN’s own John Kiriaku shared his own fed prison experiences as2 US “assurances” credibility.
2 synopsise: Trial judge Mandates general inmate population; independant US jail State SAMs him.(Special Admin…ie solitary w/ communication extremely limited.)
Just trying to get my head round all this legal bullshit , Julian is innocent of any crime but is a smokescreen to cover the guilty of very serious crimes ,but the fight goes on to the very end till Julian is free and the guilty are behind bars
Thanks for keeping the truth at the forefront.
“The US promised not to engage in illegal practices amounting to torture, but made that assurance conditional on Assange’s future behaviour.” Who will decide what behaviour is unacceptable? Will spending too long in the shower or failing to get out of bed quickly enough meet the required threshold? He will be held at the mercy of his keepers. The assurance is worthless.
If a practice is “illegal” how can it be applied to Julian’s behavior?
“The US promised not to engage in illegal practices amounting to torture, but made that assurance conditional on Assange’s future behaviour.”
The process is the punishment. The U.S. doesn’t want to actually try Assange, it wants to silence him. Keeping him in perpetual legal limbo perfectly serves the interests of the establishment forces as they control the conditions of his confinement. They know that there are limits to how much the human spirit can endure, and time is on their side. Death by a thousand cuts still results in death and his deplorable treatment will be blamed on uncontrollable bureaucracy and nameless officials, shielding those responsible from accountability for their malfeasance. Justice delayed is indeed justice denied.
All law (except natural law) is technicality. Judges settle technical questions of interpretation and application. Lord Chief Justice Burnett and Lord Justice Holroyde took pains to adjudicate the matter of the correctness of USA’s providing imprisonment assurances after the first trial was decided. They dismissed the lateness as a matter of table manners among nations and courts. Murray proves that their adjudication was faulty for overlooking that these assurances are substantive claims that contradicted claims made in the trial, and so needed to be argued in a trial.
Did Burnett and Holroyde fail to grasp that the lateness matter could be shown to be substantive, showing them to be incompetent appellate judges? Murray imagines that they were instead told to give the Supreme Court an easy exit. Then Assange’s lawyers had better be also told not to mount Murray’s arguments, but to just pout about table manners among nations and courts. If they do that before the Supreme Court, we’ll know. The Supreme Court’s agreeing with that will not humiliate Burnett and Holroyde much, and will restore Baraitser’s voiding of extradition. However the Supreme Court’s buying the Murray-like argument will demolish Burnett and Holroyde, and only send poor Julian back to trial.
The deputy PM of Australia has plainly said Julian Assange has broken no law, and if British authorities will not release him, then they should try him before a just court in Britain. That means a jury verdict.
Let the people see what he might be charged with that a jury could make a deliberation.
It’s very plain these rulings by the so called High Court Magistrates should be overturned and put before a jury of the people. Justice and law are not owned by the High Court as a play thing and something to mock. The mischief they are engaged in should not be tolerated. Let them explain their rulings before a jury of the people.
It makes little difference who compose a jury, just 12 individuals chosen at random from millions of ordinary citizens and the results we can expect will be the same and be based on the careful weighing of the evidence presented. And not only will justice be done, it will be seen to be done.
British criminal law is based on a jury, defendants have the right to request a jury. This should not be denied Julian Assange anymore than a jury should not rule on a determination designed to place Blair and all his conspirators above just law. Would a jury really allow that after over a million innocent people have lost their lives, homes and cities destroyed, the middle east set ablaze and countries looted? And millions of pounds spent gathering damming evidence of the deceit that caused all of it?
An intriguing theory. And one which would allow Biden to deflect blame onto the Trump Justice Department, which was running the show under Baraitser. I can just hear him- ‘the Trump DOJ blew it.’ I sure hope you are right.
Free Julian Assange Now!
“Without a Free Press, there can be No Democracy”
Thomas Jefferson
This says it all!
I hope and pray you are correct.
Re the ultimate question: “Is the British Establishment quietly sidling to the exit?”
Answered by another question: If “the British Establishment” considers “official accusation against the United States’ integrity … diplomatically difficult,” thus impermissible, what, exactly, is the calculation that presumes letting Assange go free is NOT, itself, a diplomatic difficulty orders of magnitude greater?
It is also possible, and perhaps most probable, that the Supreme Court will rule against Assange on the technicality, while shielding the US from public scrutiny of its own dark record. I am hoping that will not be the case.
I am glad you are back, Craig. It was your reporting on the Assange trial that brought me to Consortium News in the first place.
Hear, hear. The best reporting on the Assange case was by Craig Murray.
Our reporting the day before reached the same conclusion as Murray: that Assange has a chance in the Supreme Court on the narrow issue of when the assurances were entered into the process and not on the merits of the assurances themselves.
Sadly, it seems that the White Supremacy driving foreign policy of the most powerful countries in NATO – the basic racist lie that a WHITE elite is more WORTHY – leads to their politicization of everything, even the justice system, peopled by that elite and who work in the service of that elite.
Covering up the wrongdoing- the torture and the droning, serving the war profiteers – the cover up, committed by and for the cultural Class Elite, is de rigueur in their minds. Therefore those who expose the truth to the rest of us must be punished.
And the “Elite Court” will find a way to twist their way out of holding the elite accountable for their crimes.
It’s all Kabuki theater. But it has led to a deep distrust of those in power, including the CROWN that allows itself to be discredited in the eyes of the public by working as “used car salespersons” to market the military war machinery whose profits fill their pockets.
Perhaps that’s why Stephen Hawking refused to accept the British Knighthood.
He recognized that divide and didn’t want to be part of it because he felt strongly about the inequities.
Perhaps Craig Murray is right that they’re trying to wiggle out of this embarrassment (can they be embarrassed?) But those of us who honor Julian for his enormous courage and commitment to democracy and truth and fear for his wellbeing have a ways to go before believing that somehow justice will be done.
On trying to tie this to the “:everything is about racism” theme: So they’re targeting a very white man?
Thank you for this excellent overview of the case. One can only hope Craig Murray is correct, and that the missed deadline is ruled sufficient to free Assange. Which then opens up the possibility the US reverts to Plan A: kidnapping or assassination. Given what the US has done in Ukraine, bringing us to nuclear brink once more, nothing is too fantastic to think at present.
I hope and pray. Thank you.
Impressive stonework! The Gallery inside the Royal Courts of Justice
Like the justice it represents, it dates back to the prehistoric Stone Age; “characterised by… early humans, sometimes known as cavemen” or primitive humans.
Oh, how far “human rights” (with emphasis on “The Right to freedom of thought, opinion and expression”) justice has progressed!
Please ,let it be so .Technicality will fine for all of us as pointing to justice regardless that it will be justice served for saving face .
Julian has suffered enough for the crime of being a journalist .
Brilliant commentary. We can only hope your rather optimistic surmise actually pans out in the nearest possible future.
The British legal system has made as much of a mockery of the word justice as their American colleagues have. I’m not a big fan of religion but I gotta say that the Egyptian concept of the feather on one side of the scale and the deceased’s heart on the other which, if weighted down by sin and villainy, sinks down to the Nile alligator who snaps it up, destroying that life forever, I find alluring. It would be a fine recompense for the abuse that the blindfolded lady with the scales has been treated to by both “legal” systems.
Unfortunately, I’m afraid this simply wishful thinking on the part of Craig Murray. We’ll see.