By Craig Murray
February 27, 2020 "Information
Clearing House" - In yesterday’s
proceedings in court, the prosecution adopted
arguments so stark and apparently unreasonable I
have been fretting on how to write them up in a way
that does not seem like caricature or unfair
exaggeration on my part. What has been happening in
this court has long moved beyond caricature. All I
can do is give you my personal assurance that what I
recount actually is what happened.
As usual, I shall deal with procedural matters
and Julian’s treatment first, before getting in to a
clear account of the legal arguments made.
Vanessa Baraitser is under a clear instruction to
mimic concern by asking, near the end of every
session just before we break anyway, if Julian is
feeling well and whether he would like a break. She
then routinely ignores his response. Yesterday he
replied at some length he could not hear properly in
his glass box and could not communicate with his
lawyers (at some point yesterday they had started
preventing him passing notes to his counsel, which I
learn was the background to the aggressive
prevention of his shaking Garzon’s hand goodbye).
Baraitser insisted he might only be heard through
his counsel, which given he was prevented from
instructing them was a bit rich. This being pointed
out, we had a ten minute adjournment while Julian
and his counsel were allowed to talk down in the
cells – presumably where they could be more
conveniently bugged yet again.
On return, Edward Fitzgerald made a formal
application for Julian to be allowed to sit beside
his lawyers in the court. Julian was “a gentle,
intellectual man” and not a terrorist. Baraitser
replied that releasing Assange from the dock into
the body of the court would mean he was released
from custody. To achieve that would require an
application for bail.
Again, the prosecution counsel James Lewis
intervened on the side of the defence to try to make
Julian’s treatment less extreme. He was not, he
suggested diffidently, quite sure that it was
correct that it required bail for Julian to be in
the body of the court, or that being in the body of
the court accompanied by security officers meant
that a prisoner was no longer in custody.
Are You Tired Of
The Lies And
Non-Stop Propaganda?
|
Prisoners, even the most dangerous of
terrorists, gave evidence from the
witness box in the body of the court
nest to the lawyers and magistrate. In
the High Court prisoners frequently sat
with their lawyers in extradition
hearings, in extreme cases of violent
criminals handcuffed to a security
officer.
Baraitser replied that Assange might pose a
danger to the public. It was a question of health
and safety. How did Fitzgerald and Lewis think that
she had the ability to carry out the necessary risk
assessment? It would have to be up to Group 4 to
decide if this was possible.
Yes, she really did say that. Group 4 would have
to decide.
Baraitser started to throw out jargon like a
Dalek when it spins out of control. “Risk
assessment” and “health and safety” featured a lot.
She started to resemble something worse than a Dalek,
a particularly stupid local government officer of a
very low grade. “No jurisdiction” – “Up to Group 4”.
Recovering slightly, she stated firmly that delivery
to custody can only mean delivery to the dock of the
court, nowhere else in the room. If the defence
wanted him in the courtroom where he could hear
proceedings better, they could only apply for bail
and his release from custody in general. She then
peered at both barristers in the hope this would
have sat them down, but both were still on their
feet.
In his diffident manner (which I confess is
growing on me) Lewis said “the prosecution is
neutral on this request, of course but, err, I
really don’t think that’s right”. He looked at her
like a kindly uncle whose favourite niece has just
started drinking tequila from the bottle at a family
party.
Baraitser concluded the matter by stating that
the Defence should submit written arguments by 10am
tomorrow on this point, and she would then hold a
separate hearing into the question of Julian’s
position in the court.
The day had begun with a very angry Magistrate
Baraitser addressing the public gallery. Yesterday,
she said, a photo had been taken inside the
courtroom. It was a criminal offence to take or
attempt to take photographs inside the courtroom.
Vanessa Baraitser looked at this point very keen to
lock someone up. She also seemed in her anger to be
making the unfounded assumption that whoever took
the photo from the public gallery on Tuesday was
still there on Wednesday; I suspect not. Being angry
at the public at random must be very stressful for
her. I suspect she shouts a lot on trains.
Ms Baraitser is not fond of photography – she
appears to be the only public figure in Western
Europe with no photo on the internet. Indeed the
average proprietor of a rural car wash has left more
evidence of their existence and life history on the
internet than Vanessa Baraitser. Which is no crime
on her part, but I suspect the expunging is not
achieved without considerable effort. Somebody
suggested to me she might be a hologram, but I think
not. Holograms have more empathy.
I was amused by the criminal offence of
attempting to take photos in the courtroom. How
incompetent would you need to be to attempt to take
a photo and fail to do so? And if no photo was
taken, how do they prove you were attempting to take
one, as opposed to texting your mum? I suppose
“attempting to take a photo” is a crime that could
catch somebody arriving with a large SLR, tripod and
several mounted lighting boxes, but none of those
appeared to have made it into the public gallery.
Baraitser did not state whether it was a criminal
offence to publish a photograph taken in a courtroom
(or indeed to attempt to publish a photograph taken
in a courtroom). I suspect it is. Anyway Le
Grand Soir has published
a translation of my report yesterday, and there
you can see a photo of Julian in his bulletproof
glass anti-terrorist cage. Not, I hasten to add,
taken by me.
We now come to the consideration of yesterday’s
legal arguments on the extradition request itself.
Fortunately, these are basically fairly simple to
summarise, because although we had five hours of
legal disquisition, it largely consisted of both
sides competing in citing scores of “authorities”,
e.g. dead judges, to endorse their point of view,
and thus repeating the same points continually with
little value from exegesis of the innumerable
quotes.
As prefigured yesterday by magistrate Baraitser,
the prosecution is arguing that Article 4.1 of the
UK/US extradition treaty has no force in law.
The UK and US Governments say that the court
enforces domestic law, not international law, and
therefore the treaty has no standing. This argument
has been made to the court in written form to which
I do not have access. But from discussion in court
it was plain that the prosecution argue that the
Extradition Act of 2003, under which the court is
operating, makes no exception for political
offences. All previous Extradition Acts had excluded
extradition for political offences, so it must be
the intention of the sovereign parliament that
political offenders can now be extradited.
Opening his argument, Edward Fitzgerald QC argued
that the Extradition Act of 2003 alone is not enough
to make an actual extradition. The extradition
requires two things in place; the general
Extradition Act and the Extradition Treaty with the
country or countries concerned. “No Treaty, No
Extradition” was an unbreakable rule. The Treaty was
the very basis of the request. So to say that the
extradition was not governed by the terms of the
very treaty under which it was made, was to create a
legal absurdity and thus an abuse of process. He
cited examples of judgements made by the House of
Lords and Privy Council where treaty rights were
deemed enforceable despite the lack of incorporation
into domestic legislation, particularly in order to
stop people being extradited to potential execution
from British colonies.
Fitzgerald pointed out that while the Extradition
Act of 2003 did not contain a bar on extraditions
for political offences, it did not state there could
not be such a bar in extradition treaties. And the
extradition treaty of 2007 was ratified after the
2003 extradition act.
At this stage Baraitser interrupted that it was
plain the intention of parliament was that there
could be extradition for political offences.
Otherwise they would not have removed the bar in
previous legislation. Fitzgerald declined to agree,
saying the Act did not say extradition for political
offences could not be banned by the treaty enabling
extradition.
Fitzgerald then continued to say that
international jurisprudence had accepted for a
century or more that you did not extradite political
offenders. No political extradition was in the
European Convention on Extradition, the Model United
Nations Extradition Treaty and the Interpol
Convention on Extradition. It was in every single
one of the United States’ extradition treaties with
other countries, and had been for over a century, at
the insistence of the United States. For both the UK
and US Governments to say it did not apply was
astonishing and would set a terrible precedent that
would endanger dissidents and potential political
prisoners from China, Russia and regimes all over
the world who had escaped to third countries.
Fitzgerald stated that all major authorities
agreed there were two types of political offence.
The pure political offence and the relative
political offence. A “pure” political offence was
defined as treason, espionage or sedition. A
“relative” political offence was an act which was
normally criminal, like assault or vandalism,
conducted with a political motive. Every one of the
charges against Assange was a “pure” political
offence. All but one were espionage charges, and the
computer misuse charge had been compared by the
prosecution to breach of the official secrets act to
meet the dual criminality test. The overriding
accusation that Assange was seeking to harm the
political and military interests of the United
States was in the very definition of a political
offence in all the authorities.
In reply Lewis stated that a treaty could not be
binding in English law unless specifically
incorporated in English law by Parliament. This was
a necessary democratic defence. Treaties were made
by the executive which could not make law. This went
to the sovereignty of Parliament. Lewis quoted many
judgements stating that international treaties
signed and ratified by the UK could not be enforced
in British courts. “It may come as a surprise to
other countries that their treaties with the British
government can have no legal force” he joked.
Lewis said there was no abuse of process here and
thus no rights were invoked under the European
Convention. It was just the normal operation of the
law that the treaty provision on no extradition for
political offences had no legal standing.
Lewis said that the US government disputes that
Assange’s offences are political. In the
UK/Australia/US there was a different definition of
political offence to the rest of the world. We
viewed the “pure” political offences of treason,
espionage and sedition as not political offences.
Only “relative” political offences – ordinary crimes
committed with a political motive – were viewed as
political offences in our tradition. In this
tradition, the definition of “political” was also
limited to supporting a contending political party
in a state. Lewis will continue with this argument
tomorrow.
That concludes my account of proceedings. I have
some important commentary to make on this and will
try to do another posting later today. Now rushing
to court.
With grateful thanks to those who donated or
subscribed to make this reporting possible.
This article is entirely free to reproduce and
publish, including in translation, and I very much
hope people will do so actively. Truth shall set us
free.
Craig's blog has no source of state, corporate
or institutional finance whatsoever. Support
Craig's work
https://www.craigmurray.org.uk/support-this-website/
Do you agree or disagree? Post
your comment here
Assanage Show Trial: Your Man in the Public
Gallery – The Assange Hearing Day 3
By Craig Murray
February 27, 2020 "Information
Clearing House" - Please try this
experiment for me.
Try asking this question out loud, in a tone of
intellectual interest and engagement: “Are you
suggesting that the two have the same effect?”.
Now try asking this question out loud, in a tone
of hostility and incredulity bordering on sarcasm:
“Are you suggesting that the two have the same
effect?”.
Firstly, congratulations on your acting skills;
you take direction very well. Secondly, is it not
fascinating how precisely the same words can convey
the opposite meaning dependent on modulation of
stress, pitch, and volume?
Yesterday the prosecution continued its argument
that the provision in the 2007 UK/US Extradition
Treaty that bars extradition for political offences
is a dead letter, and that Julian Assange’s
objectives are not political in any event. James
Lewis QC for the prosecution spoke for about an
hour, and Edward Fitzgerald QC replied for the
defence for about the same time. During Lewis’s
presentation, he was interrupted by Judge Baraitser
precisely once. During Fitzgerald’s reply, Baraitser
interjected seventeen times.
In the transcript, those interruptions will not
look unreasonable:
“Could you clarify that for me Mr Fitzgerald…”
“So how do you cope with Mr Lewis’s point that…”
“But surely that’s a circular argument…”
“But it’s not incorporated, is it?…”
All these and the other dozen interruptions were
designed to appear to show the judge attempting to
clarify the defence’s argument in a spirit of
intellectual testing. But if you heard the tone of
Baraitser’s voice, saw her body language and facial
expressions, it was anything but.
The false picture a transcript might give is
exacerbated by the courtly Fitzgerald’s continually
replying to each obvious harassment with “Thank you
Madam, that is very helpful”, which again if you
were there, plainly meant the opposite. But what a
transcript will helpfully nevertheless show was the
bully pulpit of Baraitser’s tactic in interrupting
Fitzgerald again and again and again, belittling his
points and very deliberately indeed preventing him
from getting into the flow of his argument. The
contrast in every way with her treatment of Lewis
could not be more pronounced.
So now to report the legal arguments themselves.
James Lewis for the prosecution, continuing his
arguments from the day before, said that Parliament
had not included a bar on extradition for political
offences in the 2003 Act. It could therefore not be
reintroduced into law by a treaty. “To introduce a
Political Offences bar by the back door would be to
subvert the intention of Parliament.”
Lewis also argued that these were not political
offences. The definition of a political offence was
in the UK limited to behaviour intended “to overturn
or change a government or induce it to change its
policy.” Furthermore the aim must be to change
government or policy in the short term, not the
indeterminate future.
Lewis stated that further the term “political
offence” could only be applied to offences committed
within the territory where it was attempted to make
the change. So to be classified as political
offences, Assange would have had to commit them
within the territory of the USA, but he did not.
If Baraitser did decide the bar on political
offences applied, the court would have to determine
the meaning of “political offence” in the UK/US
Extradition Treaty and construe the meaning of
paragraphs 4.1 and 4.2 of the Treaty. To construe
the terms of an international treaty was beyond the
powers of the court.
Lewis perorated that the conduct of Julian
Assange cannot possibly be classified as a political
offence. “It is impossible to place Julian Assange
in the position of a political refugee”. The
activity in which Wikileaks was engaged was not in
its proper meaning political opposition to the US
Administration or an attempt to overthrow that
administration. Therefore the offence was not
political.
For the defence Edward Fitzgerald replied that
the 2003 Extradition Act was an enabling act under
which treaties could operate. Parliament had been
concerned to remove any threat of abuse of the
political offence bar to cover terrorist acts of
violence against innocent civilians. But there
remained a clear protection, accepted worldwide, for
peaceful political dissent. This was reflected in
the Extradition Treaty on the basis of which the
court was acting.
Baraitser interrupted that the UK/US Extradition
Treaty was not incorporated into English Law.
Fitzgerald replied that the entire extradition
request is on the basis of the treaty. It is an
abuse of process for the authorities to rely on the
treaty for the application but then to claim that
its provisions do not apply.
“On the face of it, it is a very bizarre
argument that a treaty which gives rise to the
extradition, on which the extradition is
founded, can be disregarded in its provisions.
It is on the face of it absurd.” Edward
Fitzgerald QC for the Defence
Fitzgerald added that English Courts construe
treaties all the time. He gave examples.
Fitzgerald went on that the defence did not
accept that treason, espionage and sedition were not
regarded as political offences in England. But even
if one did accept Lewis’s too narrow definition of
political offence, Assange’s behaviour still met the
test. What on earth could be the motive of
publishing evidence of government war crimes and
corruption, other than to change the policy of the
government? Indeed, the evidence would prove that
Wikileaks had effectively changed the policy of the
US government, particularly on Iraq.
Baraitser interjected that to expose government
wrongdoing was not the same thing as to try to
change government policy. Fitzgerald asked her,
finally in some exasperation after umpteen
interruptions, what other point could there be in
exposing government wrongdoing other than to induce
a change in government policy?
That concluded opening arguments for the
prosecution and defence.
MY PERSONAL COMMENTARY
Let me put this as neutrally as possible. If you
could fairly state that Lewis’s argument was much
more logical, rational and intuitive than
Fitzgerald’s, you could understand why Lewis did not
need an interruption while Fitzgerald had to be
continually interrupted for “clarification”. But in
fact it was Lewis who was making out the case that
the provisions of the very treaty under which the
extradition is being made, do not in fact apply, a
logical step which I suggest the man on the Clapham
omnibus might reason to need rather more testing
than Fitzgerald’s assertion to the contrary.
Baraitser’s comparative harassment of Fitzgerald
when he had the prosecution on the ropes was
straight out of the Stalin show trial playbook.
The defence did not mention it, and I do not know
if it features in their written arguments, but I
thought Lewis’s point that these could not be
political offences, because Julian Assange was not
in the USA when he committed them, was
breathtakingly dishonest. The USA claims universal
jurisdiction. Assange is being charged with crimes
of publishing committed while he was outside the
USA. The USA claims the right to charge anyone of
any nationality, anywhere in the world, who harms US
interests. They also in addition here claim that as
the materials could be seen on the internet in the
USA, there was an offence in the USA. At the same
time to claim this could not be a political offence
as the crime was committed outside the USA is, as
Edward Fitzgerald might say, on the face of it
absurd. Which curiously Baraitser did not pick up
on.
Lewis’s argument that the Treaty does not have
any standing in English law is not something he just
made up. Nigel Farage did not materialise from
nowhere. There is in truth a long tradition in
English law that even a treaty signed and ratified
with some bloody Johnny Foreigner country, can in no
way bind an English court. Lewis could and did spout
reams and reams of judgements from old beetroot
faced judges holding forth to say exactly that in
the House of Lords, before going off to shoot grouse
and spank the footman’s son. Lewis was especially
fond of the Tin Council
case.
There is of course a contrary and more
enlightened tradition, and a number of judgements
that say the exact opposite, mostly more recent.
This is why there was so much repetitive argument as
each side piled up more and more volumes of
“authorities” on their side of the case.
The difficulty for Lewis – and for Baraitser – is
that this case is not analogous to me buying a Mars
bar and then going to court because an International
Treaty on Mars Bars says mine is too small.
Rather the 2003 Extradition Act is an Enabling
Act on which extradition treaties then depend. You
can’t thus extradite under the 2003 Act without the
Treaty. So the Extradition Treaty of 2007 in a very
real sense becomes an executive instrument legally
required to authorise the extradition. For the
executing authorities to breach the terms of the
necessary executive instrument under which they are
acting, simply has to be an abuse of process. So the
Extradition Treaty owing to its type and its
necessity for legal action, is in fact incorporated
in English Law by the Extradition Act of 2003 on
which it depends.
The Extradition Treaty is a necessary
precondition of the extradition, whereas a Mars Bar
Treaty is not a necessary precondition to buying the
Mars Bar.
That is as plain as I can put it. I do hope that
is comprehensible.
It is of course difficult for Lewis that on the
same day the Court of Appeal was ruling against the
construction of the Heathrow Third Runway, partly
because of its incompatibility with the Paris
Agreement of 2016, despite the latter not being
fully incorporated into English law by the Climate
Change Act of 2008.
VITAL PERSONAL EXPERIENCE
It is intensely embarrassing for the Foreign and
Commonwealth Office (FCO) when an English court
repudiates the application of a treaty the UK has
ratified with one or more foreign states. For that
reason, in the modern world, very serious procedures
and precautions have been put into place to make
certain that this cannot happen. Therefore the
prosecution’s argument that all the provisions of
the UK/US Extradition Treaty of 2007 are not able to
be implemented under the Extradition Act of 2003,
ought to be impossible.
I need to explain I have myself negotiated and
overseen the entry into force of treaties within the
FCO. The last one in which I personally tied the
ribbon and applied the sealing wax (literally) was
the Anglo-Belgian Continental Shelf Treaty of 1991,
but I was involved in negotiating others and the
system I am going to describe was still in place
when I left the FCO as an Ambassador in 2005, and I
believe is unchanged today (and remember the
Extradition Act was 2003 and the US/UK Extradition
Treaty ratified 2007, so my knowledge is not
outdated). Departmental nomenclatures change from
time to time and so does structural organisation.
But the offices and functions I will describe
remain, even if names may be different.
All international treaties have a two stage
process. First they are signed to show the
government agrees to the treaty. Then, after a
delay, they are ratified. This second stage takes
place when the government has enabled the
legislation and other required agency to implement
the treaty. This is the answer to Lewis’s
observation about the roles of the executive and
legislature. The ratification stage only takes place
after any required legislative action. That is the
whole point.
This is how it happens in the FCO. Officials
negotiate the extradition treaty. It is signed for
the UK. The signed treaty then gets returned to FCO
Legal Advisers, Nationality and Treaty Department,
Consular Department, North American Department and
others and is sent on to Treasury/Cabinet Office
Solicitors and to Home Office, Parliament and to any
other Government Department whose area is impacted
by the individual treaty.
The Treaty is extensively vetted to check that it
can be fully implemented in all the jurisdictions of
the UK. If it cannot, then amendments to the law
have to be made so that it can. These amendments can
be made by Act of Parliament or more generally by
secondary legislation using powers conferred on the
Secretary of State by an act. If there is already an
Act of Parliament under which the Treaty can be
implemented, then no enabling legislation needs to
be passed. International Agreements are not
all individually incorporated into English or
Scottish laws by specific new legislation.
This is a very careful step by step process,
carried out by lawyers and officials in the FCO,
Treasury, Cabinet Office, Home Office, Parliament
and elsewhere. Each will in parallel look at every
clause of the Treaty and check that it can be
applied. All changes needed to give effect to the
treaty then have to be made – amending legislation,
and necessary administrative steps. Only when all
hurdles have been cleared, including legislation,
and Parliamentary officials, Treasury, Cabinet
Office, Home Office and FCO all certify that the
Treaty is capable of having effect in the UK, will
the FCO Legal Advisers give the go ahead for the
Treaty to be ratified. You absolutely cannot
ratify the treaty before FCO Legal Advisers have
given this clearance.
This is a serious process. That is why the US/UK
Extradition Treaty was signed in 2003 and ratified
in 2007. That is not an abnormal delay.
So I know for certain that ALL the relevant
British Government legal departments MUST have
agreed that Article 4.1 of the UK/US Extradition
Treaty was capable of being given effect under the
2003 Extradition Act. That certification has to have
happened or the Treaty could never have been
ratified.
It follows of necessity that the UK Government,
in seeking to argue now that Article 4.1 is
incompatible with the 2003 Act, is knowingly lying.
There could not be a more gross abuse of process.
I have been keen for the hearing on this
particular point to conclude so that I could give
you the benefit of my experience. I shall rest there
for now, but later today hope to post further on
yesterday’s row in court over releasing Julian from
the anti-terrorist armoured dock.
With grateful thanks to those who donated or
subscribed to make this reporting possible. I wish
to stress again that I absolutely do not want
anybody to give anything if it causes them the
slightest possibility of financial strain.
This article is entirely free to reproduce and
publish, including in translation, and I very much
hope people will do so actively. Truth shall set us
free.
Craig's blog has no source of state, corporate
or institutional finance whatsoever. Support
Craig's work
https://www.craigmurray.org.uk/support-this-website/
Do you agree or disagree? Post
your comment here
|