Julian Assange's future remains in doubt as he continues to reside in the Ecuadorian embassy in London and to seek asylum from Ecuador.
It is timely to look again at the final court decision that led to his decision to seek asylum in that way.
Mr. Assange, the founder of WikiLeaks, lost his final domestic appeal against the enforcement of a European Arrest Warrant ("EAW") in favour of Sweden by a majority of 5-2 in the Supreme Court.
The appeal centered on the interpretation of "judicial authority" in the 2002 European Council Framework Decision on the EAW and the use of the same phrase in the UK legislation passed to give effect to the Framework Decision, the Extradition Act 2003.
The majority ruled that "judicial authority", despite its association in English with courts and judges, was broad enough in both the Framework Decision and the Act to encompass Swedish public prosecutors.
The judgment unreasonably favours administrative convenience over the need to interpret legislation in accord with what happened in Parliament and in accord with human rights safeguards.
Mr Assange, under house arrest without charge since December 2010, is wanted in Sweden for questioning about allegations of sexual misconduct. Although the alleged conduct is described as rape, the definition under Swedish law appears to go beyond what has traditionally been the offence of rape in United Kingdom and Australian jurisdictions.
On 18 November 2010, a Swedish Public Prosecutor obtained a domestic detention order in absentia against Mr Assange from the Stockholm District Court. The domestic detention order appears to be an equivalent of a domestic arrest warrant, in this case for questioning.
The Prosecutor issued an EAW. A UK administrative authority certified the EAW pursuant to the provisions of the 2003 Act.
The appeal to the Supreme Court was on the one point involving the meaning of "judicial authority".
The leading judgment of the majority was written by Lord Phillips, President of the Court. The majority found that even prosecutors who were involved in the case were included in "judicial authority" as used in the Framework Decision and in the UK legislation.
The majority of five coalesced around reliance on post-Framework Decision practice to interpret what was unclear on the wording of the Framework Decision, itself. That is, the majority relied upon the practice of 11 Member States to register public prosecutors as competent authorities to issue EAWs.
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Benedict Coyne is a National Committee Member and Queensland Convenor of Australian Lawyers for Human Rights (ALHR). He completed a graduate law degree at Southern Cross University graduating with first class Honours and the University Medal amongst other awards.
He had an incredibly interesting year in 2011 as Associate to the Hon Justice Bromberg at the Federal Court of Australia in Melbourne, including hearing (and substantially researching) the Eatock v Bolt case. He was admitted to practise in Victoria in November 2011 and is currently a lawyer in the new major projects and class actions department of Maurice Blackburn Lawyers in Brisbane.
He enjoys writing and performing poetry in his spare time.