Some light on a key legal issue surrounding the Assange case

I think one important thing is forgotten in all of the fuss about whether or not Assange should be questioned in Sweden by the prosecuting authorities in Sweden or at the place and time of his choosing: the key case of Smith v DPP and Commissioner of the Metropolitan Police [2011] UKSC 666. Lest we forget in that case the accused, suspected of a series of serious crimes, had jumped bail after an earlier arrest and was hiding in a small maisonette flat in West London. He told the authorities – via email – that he did not want to attend the police station for questioning because he was worried that he might get put in jail and he wouldn’t like it. Instead he offered to answer questions in the flat by telephone or skype or in person in the flat provided he could be accompanied by his colleagues, Gripper and Slasher, and they could deal with any matters that arose if things got a bit tricky.

Although his argument was rejected in the lower courts, a strong dissent in the Court of Appeal that the suspect for a serious crime should be able to set the date, time, location, duration, manner, and nature of questions asked led to an appeal to the Supreme Court where, by a four to one majority the appeal was upheld but on slightly more limited grounds.

As a result of this crucial case it is the right of any accused person who has breached bail conditions and is located in England to tell the prosecuting authorities where, when, and how he or she should be questioned. Given this decision it is unsurprising that supporters of Julian Assange are pointing out that he should be allowed to determine where and when he is questioned in relation to the accusations against him. After all it is an absolute right of the suspect or accused in any criminal case to control the process, fought for over many long years. I am only surprised that so many lawyers south of the border and in Sweden seem oblivious to this key legal principle.

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I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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58 Responses to Some light on a key legal issue surrounding the Assange case

  1. kris says:

    I love the way you deftly and clearly cut through these complex legal issues. :-)

  2. Ben says:

    What is overlooked here, and it really is a key part of the ratio, is that the maisonette was in West London. That was the narrow ground upon which the appeal was upheld.

    As Lord Hope said “West London is generally understood to be a wonderful part of the world where people are of sufficient wealth that they can be trusted to answer the questions truthfully and honestly. I, like many of my brother judges, live in West London and some of my best friends are there. I am convinced that absolutely nobody who can afford to live there could be of such disreputable character that they would need to be treated like a common criminal in a police interview. It is on this narrow ground that we allow the appeal. If the Appellant had lived in, for example, Bermondsey, it would be a completely different matter and the Court would have to pay careful attention to such matters as the appellant’s income, schooling, background and demeanour before granting this right.”

    In so ruling the Court made it clear that it was extending the principle established in Sturges v Bridgman (1879) LR 11 Ch D 852, which held that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”, and firmly established that Londoners are to be afforded differential treatment based on their postcode.

    It is not correct to describe the right as absolute. Indeed, given that the Ecuadorean Embassy is, allegedly, sovereign territory outside the United Kingdom, it is not clear whether the ratio would apply to such a case. The Court was emphatic that the interview, and the suspect had to be “_in_ West London”. If, however, Assange is in Ecuador, then there are strong grounds for arguing that he is not in West London at all, and should be interviewed like the ordinary inhabitants of Bethnal Green (DPP v Jones [2010] UKHL 123).

    • That reply is just typical of the approach of the English lawyer. What was at stake in Smith – as anyone who has read the judgments can tell – is an issue of principle not that line by line dissection of cases to look for loopholes. The principle is clear. And the case cited in my post stands alone in supporting it.

      As for the land law principle my understanding was that embassies formed part of the jurisdiction in which they were situated. The UK government cannot argue on one hand that the status as an embassy is subject to UK legislation (and that status can be revoked) and then pretend that the embassy is sovereign territory for the purposes of the application of the decision in Smith v DPP.

      • Liadnan says:

        I’m too busy to read the case right now but didn’t Phillips go into some detail about c.61 of Magna Carta and the fairly crucial point that Smith had not contracted into the jurisdiction of West London mags and had changed his name to SMYTHE.

      • Ben says:

        This is the typical Scots Law approach of looking for the fastest way to prove your point without doing the basic work of painstakingly reading the judgment in detail. It’s noteworthy that you haven’t provided the wording of the judgment, as this point was touched on by Lord Bridge of Harwich. He made it clear that such niceties as whether the embassy is _technically_ part of the UK, or subject to statutory regulation, is a trivial technicality to be overlooked when applying the West London Principle.

        The principle, he ruled, would be fatally undermined as to be absurd if embassies were to be subjected to the exception: the principle is about the general character of West Londoners and buildings that consider themselves to be part of that neighbourhood. Embassies, being foreign, are not part of that character but break the continuity. They are, in his words “foreign impositions”. He was emphatic on this point. Irrespective of your so-called “land law” (presumably some kind of Scots invention; we know of no such thing south of the border).

        The only person looking for loopholes here is you, not me.

        • Scots law is about principle and in that follows the civilian tradition exemplified across continental Europe rather than this case chasing nonsense we get from south of the border.

          As for your claim that there is no “land law” south of the border – someone ought to tell Prof Gray to rename his book then.

          I am not sure if further correspondence with you is worthwhile.

          • Ben says:

            Everyone knows perfectly well that Prof Gray is a humourous legal academic who wrote that textbook as a massive piece of satire on a contemporary issue. Anyone who bothered to read it would realise that it was satire as it refers to cases with clearly humourous citations that cannot be found in any law reports or on Bailii. Not only that, but when on sale in Hammick’s it is clearly sold on the “humour” bookshelves, and the publisher’s own classification categorises it as “satire”.

            This is yet another example of pro-Assange media mindlessly posting whatever appears to be in support of their case based solely on the title, without bothering to examine the contents.

  3. Arthur says:

    You’re forgetting that the best way to ensure that the Swedish Authorities would extend a generous deviation from normal practice by offering to interview a suspect on their own terms is to publicly accuse them of acting as political puppets. Get’s them onside every single time I heard.

  4. legionseagle says:

    Ben makes an excellent point: indeed, it is clear law (based on the decision by the then House of Lords in Kirke v. Tumnus (acting in right of the High Kingdom of Narnia) [1982] AC 233 that a person cannot simultaneously be in two countries at once for jurisdictional purposes. You will recall that in that case the issue turned on whether the fugitive puma in question was to be considered to be “in” a wardrobe in the spare room of a manor house near Totnes, and therefore legally subject to the jurisdiction of the Dangerous Wild Animals Act 1976 or whether he remained “in” Lantern Waste, Narnia, and therefore answerable for treasonous acts committed therein.

    Assange cannot simultaneously be “in” Ecuador for the purposes of the Vienna Convention and “in” West London for the principle in Smith to apply.

    • David J Mudkips says:

      Best. Comment. Ever.

    • Echobeats says:

      Kirke v. Tumnus is indeed an apposite precedent in the Assange case. However, it is vital not to forget how the ratio of Kirke v. Tumnus interacts with that of its sequel, Tumnus & Anor v. Secretary of State for the Home Department [1012] AC (Cair Paravel) 9. You will recall that the Home Secretary contended that, since all four Kings and Queens of Narnia were both British Subjects and (in the English although not the Narnian timeline) minors, Narnia could not enjoy sovereign status under English law and thus it was immaterial whether the space inside the wardrobe was English or Narnian soil. However, their Majesties (sitting as iudices in causa sua) held that for the Home Secretary to even advance such an argument was in breach of the Geneva Convention (as amended by the Treaty of the Lantern Waste) and sentenced him to five years penal servitude as a non-verbal donkey. While this is of course a Narnian and not an English case, as a decision by the highest appellate court in a Common Law jurisdiction it must be afforded significant weight by an inferior English court, and only departed from after careful consideration and with at least four dozen paragraphs of painstaking justification.

      • legionseagle says:

        While I agree that at the time of that decision (1012) Narnia was undoubtedly a Common Law jurisdiction, you may be overlooking the important point that following the accession of Caspian X the Code Telmar – a civil law system – was ratified throughout the sovereign territories and their dependencies. Given that by the time the Home Secretary had completed his sentence (during which he pulled an ecologically sound mowing machine across the lawns of Chequers and was seemingly so fulfilled in that role that – reputedly – he showed considerable resistance to the thought of parole) the precedents from the former system were of persuasive authority even in Narnia, I do not think you can lay too much weight on Tumnus & Anor v. Secretary of State for the Home Department in the instant case.

  5. Pingback: Interviews in an Embassy — Garrulous Law

  6. Tom (iow) says:

    As I understand it, the government does not recognise the decision in Smith as legitimate, because the judges would not prove their oaths, so the decision is void at common law.

  7. Ben says:

    I have blogged my response here: http://garrulouslaw.com/2012/08/interviews-in-an-embassy.html . This is to ensure the public are better informed about this matter, and has absolutely nothing to do with either my ego or any bandwagons.

  8. Can a parallel be drawn to the process of being charged? Is the accused allowed to dictate where, when and how he is formally arrested?

  9. Coventry Man says:

    It is well known and established cinematographically that Pimlico is part of Burgundy and not in England at all. I’m not sure how far this extends to all of West London.

  10. Pharmakeus says:

    I may be only an armchair advocate, but I don’t see why Wikileaks can’t just hack the Swedish justice ministry and put these questions online for everyone to see, then Mr Ass Sange can answer them at his leisure?

  11. Remarkable as your blog piece is, it can’t apply to those of us in N Ireland, where “due process” has an altogether different meaning. And, of course, Poyning’s Law still applies, but only to those cases of conacre whereby the differences between the parties are biennial.

  12. Chris Keene says:

    Am I not right in thinking that since 1998, case law has led this only to apply to a 1 mile radius around Mornington Crescent station?

  13. Opus Fluke says:

    According to QI no Embassy is part of the country or state that it represents ergo the embassy in question is still subject to English law. As such, as far as I can see as a layman, the principle of setting date, time and location to answer questions would stand. If the person to be questioned were on a USA military base in Britain, considered to be legal USA territory, the law applied would be USA Federal Law. The real key here is if Mr Assange were to submit himself to returning to Sweden for questioning would the USA extradite him to its own territory for purposes other than dealing with the alleged sexual assaults? As things stand he appears to have the right to answer questions relating to the alleged incidents in the manner of his choosing up to and including having representatives of the relevant authorities meeting him face to face within the embassy. But as I say I am not a lawyer and am only giving my view in accordance with what facts I have. If this were a debate of Super Gravitation Theory versus Super String Theory I would be on firmer ground.

    • Ben says:

      You are clearly ignoring the remarks of Lord Bridge here. The case is carefully curtailed by the West London Principle, with a specific exemption that excludes embassies from the protection irrespective of whether they happen to be in West London or Mornington Crescent.

  14. awbmaven says:

    I think one important thing is forgotten in all of the fuss about whether or not Assange should be questioned in Sweden by the prosecuting authorities in Sweden or at the place and time of his choosing: the key case of Smith v DPP and Commissioner of the Metropolitan Police [2011] UKSC 666.

    If I were Assange’s lawyer, I would recommend he NOT go to Sweden for questioning until there are Swedish guarantees and sureties in place surrounding his human rights, namely that he will be protected from rogue Swedish authorities who have in the past extra-judicially removed persons from Sweden to places where they were then tortured (Mohammed El Zari & Ahmed Agiza cases: http://en.wikipedia.org/wiki/Repatriation_of_Ahmed_Agiza_and_Muhammad_al-Zery ).

    Assange needs guarantees that he would not be subject to “inhuman and degrading treatment” while in Swedish authorities care, and would not be passed on to authorities outside Sweden and subjected to “inhuman and degrading treatment”.

    Swedish authorities have proved in the Mohammed El Zari & Ahmed Agiza cases that they are evidentially not competent enough to guarantee persons they are charged with protecting will not be moved to places were rights against “inhuman and degrading treatment” are upheld.

    If these same “rogue” Swedish authorities would be involved in Assange in any shape or form, I would want very VERY strict guarantees & sureties in place before recommending Assange enter their control.

  15. Pingback: Citizen Journalism in the Assange Wikileaks case | Because This is All i Am

  16. Stitch says:

    Te end the nonsense, surely he would just have to move to Mornington Crescent.

  17. Arthur says:

    Crouch End

  18. Jezhop says:

    How does he pronounce “scone” ?

  19. iomadh says:

    I came here looking for the latest information about whether it was snowing. Do I have to commission wikileaks to find out if it snowing now you appear to have given up and have started being all serious about serious things? Things have gone downhill since you stopped having George Galloway anonymously write your posts.

  20. iomadh – Anonymous the hacktivists are giving george galloway legal advice? kinda figures?! p.s. i love this thread

  21. Chris says:

    I think the point this article is missing is that he is wanted for questioning in Sweden! Due to this pretty key point the precedent set by any UK court does not apply to where/when he is questioned, that rests with the Swedish courts. So the legal issue for the UK is wherether to extradite or not. The decision to extradite or not has been decided and appealed at every level and Assange has lost. the UKs role now is to deliver on the extradition as decided by the highest level of the courts and so the points in this article are essentially mute.

    Whether or not you are for or against Assange he has had his day in court over and over and a legal decision has been made, he is now just hiding from the legal process.

  22. BREAKING: Here is an official statement from the Swedish Prosecution Office addressing the legal issues raised in this controversial post: http://www.youtube.com/watch?v=01viXRa8Hqg&feature=related

    • legionseagle says:

      I think something may be being lost in translation, since from the 48th second onwards that seems like an endorsement of the more extreme action possible under the 1987 act, and that seems unlikely, surely.

  23. Daithí says:

    I’m sorry, I’ve checked both printed and electronic law reports for the case you mention, and sadly it does not seem to be found. It was very kind of you to provide the neutral citation so that I could avoid engaging with the compromised publishing industry. However, could it now be the case that because this case is so important to the fight for freedom, the establishment have exercised their influence on Bailii, the Incorporated Council for Law Reporting and the Supreme Court webmaster so as to remove all evidence? I demand a full public inquiry now.

  24. I’ve made an FOI request to the Supreme Court for this “conveniently” hidden judgment. Guess what? I’ve received the reply “no information held”, and I’m being labelled as vexatious by the authorities! What further proof is needed that something fishy is going on?

  25. Shona Duncan says:

    Nice. I’ll spread it around.

  26. Pingback: Initial thoughts on a suspiciously missing judgment | inforightsandwrongs

  27. Pingback: Whose blog is topical anyway? – Scottish Roundup

  28. Pingback: Blog posts from 2012 | Love and Garbage – some commonplace musings

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