The Assange appeal: stranded in the Strand
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The Royal Courts of Justice in London's Strand always provide an entertaining reminder that the British are by and large a law-abiding lot.
They are also a good place to study England's deeply embedded class system and pragmatic judicial practice.
All were in evidence on Monday December 5 when two different 'Breaking News' stories emerged from Court 4: 'Julian Assange granted leave to appeal' and 'Julian Assange refused permission to appeal'. Both in a way were true.
Since cameras are absolutely forbidden in court (but tweeting is allowed) let me describe the scene. Any ham Hollywood film about Dickensian London describes the decor. One half of the court is packed. Julian Assange sits surrounded by close allies and lawyers; in the row behind, his country mansion host Vaughan Smith, his Australian lawyer and friend Jennifer Robinson, journalist John Pilger and several WikiLeaks associates, squeeze themselves against each other into hard wooden benches. On the other side of the aisle a Queen's Counsel could turn cartwheels. The Swedish Prosecution Authority team has no supporters or friends, only journalists to fill the space.
Proceedings begin when two wigged and robed judges – Mr Justice Ouseley and Lord Justice Thomas – mutter (no other word for it) their thoughts to each other and to the bewigged 'silks' three feet away from them, as if they were picking up mid-sentence a dinner-party conversation of some weeks earlier. No attempt is made to explain or speak to the courtroom or the public gallery or the press.
Those of us fortunate enough to have been at the earlier dinner parties know who is who and even that Sweden's QC is a former world-class fencer and that both barristers come from the same chambers (Matrix, 'experts in extradition' and also where Cherie Booth, barrister wife of former Prime Minister Tony Blair, operates).
There is an English expression, 'plum in the mouth', which describes an upper class failure to articulate, rendering much of what this social class says incomprehensible to all other classes. Court 4 was a veritable plum orchard. 'Mutter…awest wowant…mutter…pwoper authowity wah wah'. Mark Summers, Assange's QC, attempted to tell the judges why their earlier judgment might possibly be susceptible to an alternative interpretation without in any way hinting that their lordships could be other than perfect.
Claire Montgomery, fencing QC for the Swedish Authority, had the easier task of telling their lordships how utterly excellent their first decision had been. Both judges wrote down her kind comments and left the room to confer.
Justices Ouseley and Thomas had ruled less than a month before that Assange should be extradited to Sweden, under a European Arrest Warrant, to be questioned about allegations that he had sexually molested two women. Assange, at this hearing, was seeking permission to appeal to the Supreme Court against that decision. The judges were being asked in effect to say that their earlier judgment could be wrong. Unsurprisingly they did not say that.
After not many minutes' deliberation they returned and muttered that leave to appeal had been refused. However, they added, since the operation of the European Arrest Warrant was a matter of public importance, Julian Assange could appeal. So could he appeal or couldn't he?
Everyone looked at their neighbour quizzically and asked what had happened. The WikiLeaks team, including stern Kristin Hrafnsson, looked nonplussed. Assange seemed neither devastated nor pleased. Summers and Montgomery gave no clue that they had won or lost. Alexi Mostrous, from the London Times, tweeted with precision at 10.34am a summary that is hardly bettered by any subsequent more considered reports:
'Great result for #Assange. Refused appeal but judges say it's of "general public importance" – so he can appeal directly to Supreme Court' at aleximostrous
A few minutes later, Gareth Peirce, the soft-spoken and shy human rights lawyer who has taken over Assange's case was persuaded to explain to the press outside the courtroom what this meant. It was a result no-one seemed to expect. He had not been granted leave to appeal, but may write within 14 days to the Supreme Court to ask if they are willing to hear an appeal. Three new judges will consider whether to hear the case; Lord Thomas has suggested that if they do decide to hear the case the point of law in question should be decided as quickly as possible. Since Julian Assange is about to tick up a year of being electronically tagged he would possibly agree. If the judges say no, that is the end of the road. Or it is until another (European?) rabbit is pulled from the hat.
So, back to those law-abiding Brits I mentioned at the beginning. I don't mean the judges who appear to have shrugged off the responsibility of deciding even whether some other body should decide. I mean the Assange and Bradley Manning supporters outside the court who waved banners and chanted while the police pretended to look ferocious and prevent them from obstructing the pavement. The protesters for their part pretended to look aggrieved and oppressed. Pretended? Yes, I think so. I had been inside the court, left the building, and crossed the road before I remembered someone I needed to speak to. So I went back through the crowd, past the police and back through the wrought iron gates and Victorian carved porch. No policeman stopped me. No press or court pass was required. Anyone among the crowd could equally have gone in and out of the building with me as long as they put their bags through the X-ray machine (and left their banners in the lobby).
Waiting outside for winners and losers to come out and make their statements is a ritual. It shows that justice is public and everyone can have their say (even if you can't hear the judges).
And in due course Julian Assange did emerge and announce himself pleased with the result before returning to an East Anglian curfew that is just a few days short of a year. In 14 days' time, by when he must have made his final appeal, it will be December 19. Unless the Supreme Court judges act with uncharacteristic haste, it is absolutely certain that Assange will be spending a second Christmas in wintery Norfolk.
Barbara Gunnell is a writer and editor based in London.
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