Interviews in an Embassy

In the furore over the Julian Assange case, much has been made of a purported offer made by Mr Assange to be interviewed by the Swedish Prosecution Authority in the Ecuadorean Embassy.

This post has been picked up on by @loveandgarbage, a Scottish Lawyer, who claims that the well-known case of Smith v DPP and Commissioner of the Metropolitan Police [2011] UKSC 666 provides a sound legal basis for conducting such an interview. He summarises the case here.

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.

This is, however, one of the worst examples of a Misleading Case I have ever seen.

Although it is true that factually this case is very similar to that one, the principle loveandgarbage extracts from it is closer to garbage than love.

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”. Assange, however, claims to be in the sovereign territory of Ecuador. Accordingly, 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).

It is this sort of sloppy misreporting and misrepresentation of the law, coupled with an uncritical retweeting of anything that appears to support one’s case, that has bedevilled sensible discussion of this case. One hopes that from here on in things would be made clearer.

Quote of the Week

There are many places where you can find serious, informed and rigorous writing and speaking about this stupendously important case—unfortunately, the “Garrulous Law” blog is not one of those places.

I think that chap just made my week.

Assange Case Theories

You cannot help but have seen the decision of Ecuador to grant Julian Assange asylum from Sweden/USA/UK/etc. As expected, the internet has exploded with arguments and conspiracy theories.

You do not have to believe that Julian Assange is guilty to disbelieve the more ludicrous conspiracy theory being promoted by Wikileaks at the moment.

To understand this, let’s look at four possible ways of analysing what’s going on.

1. US Conspiracy

The central allegation is that the USA is using these proceedings to extradite him and subject him to a trial for treason, where he is at risk of being subjected to the death penalty.

Looking solely at what is the incontrovertible legal situation, this is what you have to be alleging if you want to make this story stick:

The United States, in order to prosecute an Australian national with a view to subjecting him to the death penalty, has persuaded two individuals to accuse him of a crime that is notoriously difficult to prove, in order to get him extradited from a country with a very US-friendly extradition treaty, to another country with much stronger protections against extraditions to the USA. This extraditing country is legally unable to extradite him to the USA if he faces the death penalty. This is done using a legal mechanism that then requires both countries to approve his extradition to the USA. This is to be done using a legal framework that has already taken the best part of two years with no end in sight, with multiple legal obstacles along the way in both the past and future.

Alternatively, they have done this to engage in extraordinary rendition of a man with a gargantuan media profile, and without regard to the major diplomatic outcry this would cause from the UK, Sweden, Australia, the EU and the rest of the world.

This is to be done in preference to:

Porn Trial: Is it Really the CPS’s Fault?

If you’ve been remotely following the legal news, you’ll have come across #Porntrial. I’m not going to go into the details, which are accurately summarised by Nick Cohen.

A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.

But is it fair to lump all the blame on the CPS this way?

The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:

4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.

The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.

The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.

The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.

Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.

The real target of people’s attentions should not be the CPS, but the law they were required to enforce.