The Supreme Court’s decision in the Julian Assange extradition case could potentially lead to embarrassment for the court, says Head of Legal’s Carl Gardner
Here’s today’s Supreme Court judgment: the justices decide by a majority of five to two to dismiss Julian Assange’s appeal against extradition. The term ’judicial authority’ in Part 1 of the Extradition Act 2003 does include public prosecutors such as the Swedish one in this case, and so the European Arrest Warrant for him is valid.
There are a few surprising things about what happened today. First, I find it a bit surprising that there was a dissenting minority (Lady Hale and Lord Mance) who would have allowed Assange’s appeal.
Secondly, I’m a bit surprised by the reasoning of the majority (Lords Phillips, Walker, Brown, Kerr and Dyson). With the exception of Lord Phillips they all emphasise to varying extents the relevance of Article 31.3(b) of the Vienna Convention on the Law of Treaties, which permits recourse, as an aid to interpretation, to “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. I’m surprised that this appears in at least some of the judgments (see Lord Walker at paragraph 94 and Lord Brown at paragraph 95) to have been the decisive point; what makes that more surprising is that the majority appear to take a range of slightly different approaches to it. Lord Kerr, for instance (para. 108) and Lord Dyson (see paras. 130, 154 and 171) conclude that Article 31.3(b) is satisfied and applies; I’m less sure whether Lord Phillips, with whom Lords Walker and Brown expressly agree but in whose judgment this question does not have quite the importance that it does in theirs, quite concludes that Article 31.3(b) is technically satisfied or whether he takes states’ practice as persuasive in a slightly less strong sense – something Lord Kerr refers to at para. 109. Lord Brown simply agrees with Lord Phillips; Lord Walker does too but apparently with a definite sense of Article 31.3(b) applying as Lords Kerr and Dyson concluded. In short, it’s a bit surprising the point has emerged as having quite this significance, and it’s not 100 per cent obvious that the reasoning of the majority is absolutely the same on this point in all respects.
I’m not going to go any deeper into the detailed reasoning of majority and minority now, though, because there was a much bigger and more significant surprise this morning: Dinah Rose QC, for Julian Assange, was granted a stay of the Supreme Court’s order of 14 days in order to consider an application to reopen proceedings before the Supreme Court. The basis of this application, if it’s made, will be that the Supreme Court’s consideration of the case has been unfair because the parties were given no notice of, or opportunity to address argument on, precisely this point about the Vienna Convention that it seems has been decisive.
That was certainly not something I considered on what could happen next. It’s a real surprise, and something that has only arisen because of what is written in the judgment. Assange’s legal team will have had I think 24 hours notice of the content of the judgment, which is why Dinah Rose was able to make the application she did today.
This is very rare. The only time I can remember this sort of thing happening before was when the House of Lords set aside its original judgment in In Re Pinochetin the late 1990s. In that case, the problem was that one of the law lords, Lord Hoffmann, had been biased because of his directorship of the charitable arm of Amnesty International, which had intervened in the case. Lord Browne-Wilkinson said:
“In principle it must be that your lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell & Co. Ltd. v. Broome (No. 2)  A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.
“However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.”
The same jurisdiction must now be inherent in the Supreme Court. The reference to Cassell v Broomeis interesting because it shows that the Supreme Court can reopen its proceedings not only where there is an allegation of bias but where the other aspect of fairness is in doubt – the obligation to fairly hear the parties. That was a case simply about a costs point which perhaps ought to have been raised by counsel at the conclusion of the case, but which was varied by their lordships on a later application.
If it’s right that the parties were unable to address this point (it’s difficult to know whether they really were unable to without having watched the entire hearing and without sight of all the written submissions) then the Supreme Court clearly can reopen its proceedings – and I suspect it probably will. While it’s not unusual for judgments in the senior courts to rest at least partly on points that weren’t actually argued – and I wonder what would happen to the justice system if those judgments were routinely subject to requests to have them reopened – there are a couple of reasons why this might be a special case in which the procedure should be reopened.
First, the Supreme Court does seem to have been alive to the point that it should allow the parties to make further submissions on points not fully addressed in written and oral submissions: paragraphs 82 and 208 of the judgment imply that written submissions on various points were invited and read after the hearing. Second, as it turns out, this Vienna Convention point appears, as things turn out, to be arguably the decisive point in the case, even though no such further submissions were apparently sought. Dinah Rose’s possible application may well therefore have some force.
Assuming the application’s made, the court will hear it, presumably at a specially arranged hearing. So in that sense there is I think more to come at the Supreme Court. Dinah Rose will argue that the procedure has been unfair and that she must be allowed to address the Vienna Convention points. I imagine she’d be invited to address those points there and then – before the court technically decides whether to formally reopen – so that the hearing and decision about (a) whether to reopen procedures at all to take account of Vienna Convention arguments and (b) whether to vary the judgment and order because of those arguments, will be rolled up together as one. That could simply result in the conclusion that the Justices are unmoved by further argument and that their original judgment stands.
But, but. This is unfamiliar territory, and there is potential for further surprise, and yet further twists if, as I suspect they will, Assange’s team want to play hardball about this.
Cassell v Broome was only about a costs point that the lords hadn’t properly addressed their minds to.Pinochet was about a question of bias which was pretty easy to determine and which Lord Hoffmann himself did not take part in deciding on. In this case, in addition to the question of procedural unfairness raised by the Vienna Convention issue, there may now also be a possible argument that these judges, who’ve already given judgment, have predetermined the point and ought not themselves to rule on whether that judgment should be reopened or varied. If that kind of argument is made, who knows where we might end up.
It’s difficult to say what effect any of this could have on how long Julian Assange stays in Britain now, or to what extent it puts his extradition at risk.
The possible application to reopen proceedings creates a ’cat among pigeons’ situation. This is an embarrassment, and even potentially something of a crisis, for the Supreme Court.
Carl Gardner is editor of the Head of Legal blog