IN THE SUPREME COURT OF THE UNITED KINGDOM ON APPEAL FROM THE HIGH COURT OF JUSTICE (ADMINISTRATIVE COURT) (ENGLAND AND WALES) [2011] EWHC 2849

B E T W E EN :-

JULIAN PAUL ASSANGE

Appellant

- and -

SWEDISH PROSECUTION AUTHORITY

Respondent

Respondent’s Summary Reply to Application to Reopen Statutory Appeal

Introduction

1. By an application dated 12 June 2012, the Appellant seeks to persuade the

Supreme Court that it should reopen these proceedings following judgment on 30

May 2012. The Appellant makes this application so that he can be heard on one

issue which featured in the judgment of the Supreme Court but which was not

addressed in argument, namely the relevance and application of the Vienna

Convention on the Law of Treaties (VCLT) as a way of bringing into consideration

the practice of Member States when deciding how the term “judicial authority”

came to be used in the final version of the Framework Decision.

2. On receipt of the Appellant’s application, the Supreme Court indicated that any

response from the Respondent should be provided in time for the afternoon of 13

June 2012. This brief document is submitted in compliance with that request to

assist the Court by shortly setting out the Respondent’s position. In the limited

time available to the Respondent it has not been able to fully set out its

opposition to the Appellant’s submissions on the operation of VCLT, but in

summary, and for the purposes of determining whether to reopen the appeal

hearing, the Respondent submits that such submissions do not need to be made.

3. For reasons which are set out more fully below, it is submitted that: (a) the Court

broadly considered the question of state practice which it was entitled to do

(irrespective of the VCLT), (b) the parties considered and made submissions on

the issue of state practice, and (c) in considering state practice generally and

without reference to the VCLT the majority would have reached precisely the

same conclusions on this issue.

4. For these reasons it is submitted that the appeal should not be reopened. Further

argument focussing on the narrow issue of VCLT as a means of having regard to

state practice would be otiose and is unnecessary as part of Mr Assange

receiving a fair hearing.

Submissions

5. It is not disputed that in appropriate circumstances the Supreme Court is able to

reopen proceedings. It is submitted however that analysis of the Supreme Court’s

judgment in the present case does not justify such an unusual course being

taken.

6. The issue in focus (Lord Phillips’ “critical question” at para 60) is the extent to

which an understanding of the development of the use of the term “judicial

authority” in the Framework Decision can be reached by reference to the

practices of Member States.

7. At para 67 of the Court’s Judgment Lord Phillips treats Article 31.3(b) VCLT as

providing support for the consideration of state practice, but importantly it is not

treated as the only foundation upon which such practice may be taken into

account in understanding the meaning of the term “judicial authority”. Reference

to the VCLT is no more than reference to one basis for undertaking what is an

obvious and unavoidable exercise, and one in which the parties themselves

engaged throughout the hearing,

8. Lord Phillips makes clear that what states do in practice “coupled with the

comments of the Commission and the Council in relation to these [practices]” in

the form of Commission Reports and Evaluation Reports is a “ legitimate guide to

the meaning of these two words in the Framework Decision.” This straightforward

approach to interpreting the meaning of the term “judicial authority” within the

Framework Decision is uncontroversial whether founded on the basis of VCLT or

not. Not to have regard to state practice and to attribute it considerable

importance would be wholly unrealistic, and if such a submission were to be

made it was plainly open to the Appellant to advance it during the hearing.

9. The opinion of Lord Walker expressly relies not only upon Lord Phillips’ approach

set out at para 67, but importantly also upon the powerful conclusion concerning

the inapplicability of Pepper v Hart(at para 94 and with which Lord Brown, Lord

Kerr and Lord Dyson also concurred) which led to the Court’s decision to

disregard the Parliamentary material. This decision, it is submitted, leaving aside

any question about VCLT, was itself decisively undermining of the Appellant’s

narrow approach to the term “judicial authority” within the 2003 Act.

10. To the extent that Lord Walker also relied upon Lord Phillips’ reasoning at para

67, it is submitted that what is effectively endorsed is the exercise of considering

and placing importance upon what Member States have done in practice and

what the Council and Commission have done or not done having considered that

established practice in its evaluation exercises. Reference at para 94 to “the

Vienna Convention Point” is, it is respectfully submitted, shorthand for the

broader issue of state practice. It does not appear to amount to an elevation of

the VCLT itself to a position of critical importance in Lord Walker’s conclusion.

11. It is further submitted that Lord Kerr’s judgment also supports the view that

state practice is not to be considered only by recourse to VCLT. At para 109 Lord

Kerr stated “Even if I had been of the view that the necessary pre-conditions for

the activation of article 31.3(b) were not present, the possible relevance of such

practice as exists would not have ended there. As Lord Mance has pointed out,

Brownlie in Principles of Public International Law, 7thed (2008), suggests that

subsequent practice by individual parties, falling short of showing that there has

been universal agreement as to the propriety of the nomination of judicial

authorities, is nevertheless of "some probative value". The continuing widespread

use of prosecutors as issuing judicial authorities, without demur from the

European Commission, and with apparent acceptance by member states who

have nominated only judges or courts as their own issuing judicial authorities

must, on any showing, indicate strongly that the Framework Decision does not

exclude prosecutors from the category of issuing judicial authorities.”

12. The Respondent respectfully endorses the view that, irrespective of VCLT,

state practice clearly had to be (and was) considered as an indicator of the

meaning to be attributed to the term “judicial authority”.

13. At para 151 Lord Dyson concluded “I would, therefore, dismiss this appeal. To

interpret an issuing judicial authority as including a public prosecutor gives a

meaning to that phrase which (i) accords with the interpretation repeatedly

applied and acquiesced in by the Member States and approved by the Council

and the Commission, (ii) is supported by other analogous texts and (iii) promotes

rather than frustrates the principle of mutual recognition and trust which

underpins the Framework Decision. On the other hand, the only arguments

advanced by Miss Rose in support of the contrary interpretation are, for the

reasons that I have given, without foundation.”

14. First, it is plain from the above that Lord Dyson did not base his decision

solely upon the issue of state practice. There were other powerful reasons why

the Appellant’s case failed which remain unaffected by any reference to VCLT.

Second, although Lord Dyson’s reference to the importance of state practice in

understanding the meaning of “judicial authority” is earlier (at para 130) dealt with

by reference to VCLT, it must be noted that this follows the observation at para

129 that “I agree with Lord Phillips that the manner in which the Member States,

the Commission and the Council acted after the Framework Decision took effect

was in stark conflict with a judicial authority being restricted to a judge. The

statistics are that in relation to accusation EAWs, in 11 Member States the

issuing authority is a public prosecutor, in 17 it is a judge and in 2 it is the Ministry

of Justice. In relation to conviction EAWs, in 10 Member States the issuing

authority is a public prosecutor, in 14 it is a judge and in 6 it is the Ministry of

Justice or National Police Board.” The Respondent submits it cannot plausibly be

contended that such reference to state practice was acceptable or prompted only

by reference to VCLT. It is evident that Lord Dyson also took the view that the

Court and the parties should broadly have regard to established practice.

15. Finally, Lord Brown expressly states at para 95 that he “would certainly not

discount entirely the various other strands of reasoning on which [Lord Phillips]

relies.” However he does place emphasis “upon the fifth of Lord Phillips’ reasons

(paras 67-71 of his judgment)”. It is submitted that this is also reference by Lord

Brown to the significance of state practice in general as evidence of the meaning

to be given to the term “judicial authority” in the Framework Decision, rather than

as express reliance upon the principles of the VCLT.

Conclusion

16. Accordingly, it is submitted that the majority of the Court considered state

practice relatively broadly (albeit with reference to VCLT in part). The Court was

bound to examine the question of state practice. In conducting this analysis VCLT

is not treated by the Court as the only foundation for considering state practice.

Further argument concentrating on VCLT would not conceivably change the

Court’s right to consider state practice broadly.

17. There was no lack of opportunity for the Appellant to address the significance

of state practice, and indeed he did so.

18. In addition, it is also evident that Lord Phillips, Lord Dyson, Lord Walker, Lord

Kerr and Lord Brown expressed support for alternative grounds to dismiss the

Appellant’s appeal which remain entirely unaffected by any reference to VCLT.

19. For all these reasons it is submitted that the Appellant’s application should be

dismissed. The Appellant’s hearing was fully argued and fairy conducted on all of

the issues upon which the majority reached its decision.