If this happens, the hearing at the High Court in London will acquire epochal importance, writes Alexander Mercouris.
The Royal Courts of Justice on the Strand, home to the High Court in London. (Sjiong, CC BY-SA 2.0, Wikimedia Commons)
By Alexander Mercouris
Special to Consortium News
Julian Assange’s lawyers are considering bringing a cross appeal to the High Court in London disputing parts of District Judge Vanessa Baraitser’s Jan. 4 judgment not to extradite Assange to the United States, according to a report by journalist Tareq Haddad.
Baraitser refused the U.S. request on narrow grounds, saying Assange’s extradition would put his life and health at risk. But Baraitser sided with the U.S. on every other point of law and fact, making it clear that in the absence of the life and health issues she would have granted the U.S. request.
That opens the way for the U.S. government to seek the extradition of other persons, including journalists, who do the same things as Assange did, but who cannot rely on the same life and health issues.
It also means that if the U.S. wins the appeal it filed last Friday in High Court it can try Assange in the U.S. on the Espionage Act charges that went unchallenged by Baraitser. If Assange’s lawyers counter the U.S. appeal with one of their own in the High Court against Baraitser’s upholding of the espionage charges, it would be heard simultaneously with the U.S. appeal.
Stella Moris, Assange’s partner, has written that Assange’s lawyers are indeed considering a cross appeal:
“The next step in the legal case is that Julian’s legal team will respond to the US grounds for appeal. Julian’s lawyers are hard at work. Julian’s team has asked the High Court to give them more time to consider whether to lodge a cross appeal in order to challenge parts of the ruling where the magistrate did not side with Julian and the press freedom arguments. A cross appeal would provide an opportunity to clear Julian’s name properly.
Although Julian won at the Magistrates’ Court, the magistrate did not side with him on the wider public interest arguments. We wanted a U.K. court to properly quash the extradition and refute the other grounds too. We wanted a finding that the extradition is an attempt to criminalise journalism, not just in the U.S. but in the U.K. and the rest of the world as well; and that the decision to indict Julian was a political act, a violation of the treaty, a violation of his human rights and an abuse of process. Julian’s extradition team is considering all these issues, and whether they can be cross-appealed.”
The Question of a Political Offence
During Assange’s extradition hearing, the prosecution and the defence clashed about whether the court should adhere to the U.S.-U.K. extradition treaty or the Extradition Act, which made the treaty part of British law.
Article 4 of the treaty prohibits extradition for a political offence, as British law for centuries has done. The Act mysteriously omitted this. Assange’s attorneys clearly argued for the treaty to be followed, but Baraitser cited the Act.
In his article, Haddad pointed to comments by British MP and former Cabinet Minister David Davis to the House of Commons on Jan. 21.
Davis, who as the Conservatives’ shadow home secretary played a central role in the parliamentary debates which resulted in the 2003 Extradition Act becoming law, told the House of Commons:
“Although we cannot, of course, discuss the substance of the Assange judgment here today, the House must note the worrying development more generally in our extradition arrangements – extradition for political offences. This stems from an erroneous interpretation of Parliament’s intention in 2003. This must now be clarified.
Article 4 of the U.K.-U.S. extradition treaty provides that extradition will not be granted for political offences. In the U.K., the treaty was implemented in the Extradition Act 2003. It has been claimed that, because the Act does not specifically refer to political offences, Parliament explicitly took the decision to remove the bar when passing the Act in 2003. That is not the case — Parliament had no such intention.
Had it intended such a massive deviation from our centuries-long tradition of providing asylum, it would have been explicit….”
In making these points Davis cited reassurances given to the House of Commons during the parliamentary debates which took places before the 2003 Extradition Act was voted into law. Davis specifically referred to certain comments made by the British Minister Bob Ainsworth. According to the official record of the debates in Hansard, Ainsworth told the House of Commons:
“The Bill will ensure that no one can be extradited where the request is politically motivated, where the double jeopardy rule applies or where the fugitive’s medical condition— an issue raised by my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) — would make it unjust. On conviction in absentia cases, we will extradite only where the fugitive can be sure of a retrial. We will not extradite unless we are certain that the death penalty will not be carried out. Finally and very importantly, extradition cannot take place where it would be incompatible with the fugitive’s human rights.” (Emphasis added)
British courts do not usually weigh comments made in parliament when considering how to interpret an Act of Parliament. The British legal tradition is to interpret an Act of Parliament strictly on the basis of its own wording. British courts do not generally look at what was said during parliamentary debates about an Act, even by ministers who propose it. However there have been numerous exceptions, and it is not a hard and fast rule.
British appeal courts also are generally reluctant to look at evidence, such as Davis’s comments, which come about after the judgment that is being appealed. That too, however, is not a hard and fast rule.
One should be cautious about the idea of a cross appeal to the High Court on Assange’s behalf. Despite the fact that Baraitser sided with the U.S. government on most of the contentious issues of law and fact in the case, she did in the end refuse the U.S. government’s request for Assange’s extradition. The normal practice in an appeal is to uphold a judgment made in one’s favour, not to challenge it by bringing a cross appeal, which could serve to undermine it. That often means going along with things in the judgment with which one is unhappy.
There is however nothing normal about Assange’s case. As Moris’ comments show, one has to be aware, perhaps more than in almost any other case, of the overriding and even transcendent issues of media freedom and human rights that arise.
Read the entire article here.