(CN) – Britain’s Supreme Court upheld an order extraditing WikiLeaks founder Julian Assange to Sweden where he faces a sexual misconduct investigation.
As Assange was in England, the Stockholm District Court obtained a domestic detention order and the Swedish Prosecuting Authority issued a European Arrest Warrant on Dec. 2, 2010.
But Assange challenged the arrest warrant as invalid by claiming that the prosecuting body did not constitute a “judicial authority” with warrant power under European framework and the U.K.’s Extradition Act.
A senior district judge dismissed Assange’s claims, as did the divisional court on appeal, clearing the way for a challenge before the Supreme Court.
A five-lord majority affirmed Wednesday, finding that the term “judicial authority” includes authorities that have the power to issue warrants in their own countries. This is consistent with the use of the term in the Extradition Act, according to the ruling.
In the United States, only judges can issue arrest warrants. But there are at least 11 EU member states that specifically include prosecutors among the authorities allowed to issue EU-wide arrest warrants.
Original drafts of the judicial authority law specifically named judges and prosecutors, but the final version was changed to the more generic “competent judicial authority,” according to the ruling.
“The reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors and that the draft referred to ‘competent judicial authority’ which envisaged different types of judicial authority involved in the process of executing the warrant,” the court said in a statement.
Parliament passed the Extradition Act after the EU adopted the framework decision, and the law had to conform to this broader meaning.
“It would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member state) by use of precisely the same term as employed in the framework decision,” the court said, summarizing a concurring opinion from Lord Kerr.
The majority also relied, to varying degrees, on Article 31.3(b) of the Vienna Convention on the Law of Treaties, which allows judges take into account “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”
Lords Brown and Walker noted that no member states have objected to the permission for authorities other than judges or courts to issue arrest warrants in some states. Thus the convention all but requires them to accept the expansive interpretation.
In dissent, Lady Hale questioned reliance on the premise of Article 31.3(b).
“Is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement,” she asked. “Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondent’s extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others. This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time.”
When the act was adopted, Parliament received testimony and other material that indicated limiting the “judicial authority” phrase to courts, judges or magistrates, the lords explained.
But the majority dismissed the parliamentary history as immaterial.
Lord Dyson’s concurring opinion says “there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations.”
Seizing on the Vienna Convention divide, Assange’s counsel wants the court to review the decision, claiming that it seems to rely on a point of law the lords had been not asked to address.
The Supreme Court gave Assange two weeks to make this application. The delay pushes the administrative process for Assange’s extradition to June 13.