Craig Murray: Assange Hearing Day 3

27 Feb

See also:

Craig Murray: Assange Hearing Day 1
Craig Murray: Assange Hearing Day 2

Note: as Murray himself says at the end of this account, he has had no time to proof read it and what follows does contain errors. I have left them as written because none are serious …

… and because I can forgive much in a writer who can pen such gems as: [prosecution counsel] looked at [the judge] like a kindly uncle whose favourite niece has just started drinking tequila from the bottle at a family party …

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 her 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. 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 post 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 in 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 were 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”, eg dead judges, to endorse their point of view, and thus repeating the same points continually with little value from exigesis 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 Conventioin. 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. (If a mod could proof read this very grateful).

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.

Now see Craig’s report on Day 4

10 Replies to “Craig Murray: Assange Hearing Day 3

  1. Possibly off-topic but I see you had a little skirmish with Petra Liverani on an Assange related article over on Off-G. PL seems to be another in the “impressionistic” school of researchers i.e. spouts the requisite logical terminology but recklessly mixes hunches with evidence. I had a similar encounter with one Peter Grafström who subscribes to the “bankers did it” meme. I “enjoyed” this remark from him:

    “And of course Trotsky was an agent for the western liberal capitalists and wanted to prevent Russia from industrialising and to remain a farmland – in complete alignment with the malthusian imperialists.”

    Don’t you love that “of course”?

  2. It belatedly occurs to me that ‘Petra’ may be a reincarnated/re-avatarised Flaxgirl. I detect the same mix of courteous reason and clear signs of intelligence with gob smackingly sweeping generalisations and the confusion you refer to, between logical argument and factual claim.

    Of course, Petra is in the pay of Mossad …

        • For your amusement, Petra/Flaxgirl is now claiming there were no atom bombs dropped on Japan. I have no idea what’s going on with her. Is it a frightened refusal to believe that horrible things can happen? That our lords and masters just “wouldn’t do that”? Gore Vidal had an all-too-credible theory that the US betrayed all of its agreements with the Soviets precisely because the US had developed the atom bomb before anyone else and used Japan as a demonstration that they would use it. Or does Petra think the Soviets would be impressed with a little magic lantern show?

  3. This has been fascinating reading over the past day or so at the end of an intense holiday touring India which covered over 1800 km in ten days even before the 12 hour journey from Delhi to Shimla. It’s not always possible to keep up and catch breath with what is happening outside the bubble when you are only in one place for 24-48 hours. Now there is time to relax until Sunday in the cooler less polluted air of the Himalayan foothills a dose of reality provides the necessary back to reality antidote.

    Reading this in the context of not dissimilar publc undermining of due process by politicians in a political party which aspires to serious government I was struck by the contrast provided by this opinion piece in the Indian Express which I found in a neat hessian bag hung on the hotel room door this morning:

    I don’t know what the details and the context of the case in question are all about. However, this section stood out:

    “Under the rule of law, no citizen can be denied the right to consult and to be defended by a legal practitioner of her choice. Therefore, by labelling those accused of sedition as “anti-national” and denying them the right to legal representation, bar associations in Karnataka’s Hubli and Mysuru stand accused of disregarding due process. First, the state slaps cases of sedition for flimsy reasons that would not stand the scrutiny of law and arrests individuals. Then, lawyers deal a body blow to possibilities of justice by preventing any lawyer from representing them in court. Apart from disallowing local lawyers to take up cases, bar associations have physically assaulted lawyers who have travelled to smaller cities to file applications seeking bail.”

    Along with:

    “Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him,” Justice Markandey Katju wrote in a 2010 judgement of the Supreme Court.”

    For the very fact that such statements outlining and publicly supporting the basic fundamentals of justice in a properly functioning society (at any level from Village hamlet to International) would represent the discovery of the mythical rocking horse dropping if encountered in the fifth column of what passes for the fourth estate in the West. Not to mention the lips of the likes of Keir Stamer, Rebecca Long-Bailey, Emily Thornberry, Lisa Nandy, Dawn Butler amongst a plethora of aspiring opposition leaders willing to throw their own members, never mind the citizenry, under a bus to placate special interest lobbies when it comes to due process principles.

    I watched the film “Joker” on the flight out to Delhi and, whilst I take the view there were parts of the production which could have been improved and more polished, I get why it made the liberal media critics so uncomfortable that they felt the need to go OTT against it. It held up not so much a mirror but a powerful magnifying glass to the shallow vanity of what is surely the real oldest profession, at least for what passes for its Western practitioners, which must have burned intensely into what little soul they possess.

    What we are witnessing is a culture at the fag end of its existence. A malice in blundeland parody past its sell by date which not even Python or Cook nor even Gilbert and Sullivan could adequately saterise to capture the essence of the depth and level of moral and ethical decay on display.

    In little over a century we have gone from lions led by donkeys to sheep led by snakes.

  4. I cannot understand why Vanessa Baraitser has been given the job of ensuing the result suits the establishment. To me, she seems somewhat unreal and unbelievable but surely they could have found someone with more presence of mind than this twit? Her childish and rather silly antics leave no-one(including not so bright people like me) in no doubt as to her role in this parody of Alice in Wonderland. The establishment, it seems, have had to scrape the barrel and came up with the short straw when they plumbed the depths too deeply. I honestly don’t know how Craig kept it together during this ghastly slapstick offering from the British Judiciary.
    Well done to Craig and yourself for the postings.

    • Hi Susan, and apologies for the latness of this reply. I’ve been out of sorts of late. Vanessa Baraitser’s somethig of an enigma, barely a trace of her on the internet. I could speculate but that’s all it would be, and in any case it’s a sideshow to the travesty unfolding.

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