The Ministry of Justice has at last set the date for the abolition of Indeterminate Sentences for Public Protection (IPPs), in accordance with the Legal Aid, Sentencing and Punishment of Offenders Act of 1 May 2012. From 3 December 2012, no more IPPs will be handed down. But abolition, however welcome, is not retrospective: it doesn’t affect those currently serving IPPs, nor those who may receive IPPs between now and the 3rd of next month, although there seem to be some signs that the processing of applications for release by IPP prisoners who are past their tariffs is being quietly speeded up and improved.
This is the most welcome culmination of years of campaigning against a huge injustice in our penal system, supported by every significant civil rights organisation and expert but passing almost unnoticed in parliament and the media. It has been the subject of numerous posts on this blog and elsewhere and of literally many hundreds of comments on them, mostly from the relatives and other loved ones of IPP prisoners suffering justified fears that they may never be released, despite never having committed any offence serious enough to warrant a sentence of life imprisonment.
The problems facing those now serving IPPs are not by any means resolved, but at least we know that the relevant ministers and their department are aware of them; and it’s probably unrealistic to suppose that there will be a single dramatic identifiable move to resolve them. It will now be for each individual IPP prisoner and his family and solicitors to do whatever they can to remedy specific shortcomings in the management of their cases, appealing to their MPs and the Justice Secretary and their prison authorities and the Independent Prison Monitors and the local newspapers as appropriate for support, and doing everything possible to satisfy their parole boards that they have reduced the risk of reoffending on release to acceptably low levels. It’s bleak and obvious advice but probably the most realistic that can be offered.
Meanwhile it will be of some comfort to know that a major blot on our system of justice is within sight of being removed. If there’s one thing about it that’s a matter for deep regret, it’s that this long overdue reform owes absolutely nothing to the Labour party in parliament, whose leaders have been consistently ambiguous or even openly hostile to the abolition of this evil and unjust régime. The LibDems have remained almost entirely silent, and the sole credit for a brave and necessary reform belongs to a handful of Conservative ministers, including notably Ken Clarke and now Chris Grayling, the present Justice Secretary and his immediate predecessor.
(Hat-tip: Lorna Elliott, once again.)
Many commentators have apparently missed the point about Abu Qatada‘s successful appeal against deportation. The Special Immigration Appeals Commission (SIAC) accepted the Jordanian government’s assurances that Qatada, if returned to Jordan for trial on old terrorism charges, would not be tortured and that the government, from the King down, would do everything possible to ensure him a fair trial. The problem is over two statements, made years ago, which it’s generally agreed may well have been produced by torture. These were used in evidence against Qatada when he was tried in Jordan and convicted in absentia, and are now in a sealed file of evidence used at the earlier trials. If they had the power to prevent those tainted statements being used again when Qatada is re-tried after being deported to Jordan, the King and his government would clearly do so. The SIAC judgment of 12 November (pdf) accepts that assurance: “with the significant qualification that all members of the executive government have made it clear to their British interlocutors that they cannot interfere in judicial decision-making“. The SIAC judgement exhaustively analyses Jordanian law and judicial processes and comes to the definite conclusion that re-use of the two tainted statements at any future trial of Qatada is a real possibility. This would not only contravene Qatada’s human rights under the European Convention (as the European Court has confirmed, Britain being a signatory to the Convention and hence legally bound by it) and under the UK Human Rights Act (as SIAC, a British court, has confirmed): it would also be in flagrant contravention of the UN Convention Against Torture, to which Britain and Jordan are both signatories. It is up to those who shrilly denounce SIAC’s judgment to state the grounds on which they disagree with SIAC’s carefully argued conclusion that under current Jordanian law and practice there must be a real risk that the two statements will be used in evidence against Abu Qatada if and when he is re-tried in Jordan.
Most, if not all, of SIAC’s critics have also missed an important further point made almost at the outset of its judgment:
This is our open judgment on that appeal. There is a closed judgment, in which we have set out our closed reasons for reaching the same conclusions as those set out in this judgment.
In other words, SIAC’s judgment that Qatada could not lawfully be deported to Jordan, because of the risk just described, was also reinforced by additional classified evidence which is too sensitive to be revealed publicly. There has been much criticism of the provision whereby SIAC may hear secret (“closed”) evidence, not revealed to the appellant or his lawyers but heard in closed session at which the appellant’s interests are looked after by a special advocate, a barrister with the necessary security clearance. This is not the place to debate the rights and wrongs of that procedure: the point is that SIAC had other, undisclosed grounds for reaching the conclusion it did, in addition to those in its lengthy published judgment.
On the BBC’s besieged Newsnight programme last night (12 November), the Conservative MP Peter Bone said the government should have ignored the SIAC judgment and put Abu Qatada on a plane to Jordan forthwith. Mr Bone later told ITV’s Daybreak programme:
Enough is enough. Put this terrorist on a plane and send him home and worry about the European Court afterwards. There are times when we need to put the public interest in front of the European Court and this is one of them… We should not be kow-towing to this Mickey Mouse European court.
In vain Shami Chakrabarti of Liberty tried to explain to Mr Bone that he was calling on the government to disregard the finding of a British court, not just a European one. Mr Bone wouldn’t have it. A skim through Peter Bone’s voting record on civil rights issues in the house of commons shows that his public incitement to law-breaking last night and this morning was entirely in character.
Finally, where was the voice of Labour in defence of the European Court of Justice, the Human Rights Act and the Special Immigration Appeals Commission when the home secretary, Theresa May, performed her predictable whinge in parliament about the SIAC judgment yesterday? Her Labour Shadow, Yvette Cooper, far from robustly defending the rule of law and respect for the fundamental rights of even the most unsavoury of the inhabitants of our country, instead outdid Theresa May in denouncing SIAC, the European Court, the home secretary’s record of attempting to deport Qatada, and the government’s action in “watering down” New Labour’s infamous Control Orders. Ms Cooper demanded that Qatada be held in custody (contrary to SIAC’s decision) until he could be deported, if necessary under the government’s Control Orders Lite, despite the fact that he has never been charged with any offence in this country, still less convicted. She twice recited the tabloids’ cliché about Qatada being allowed “on our streets”, as if this alone represented a threat to national security. Once again Ed Miliband’s One Nation Labour follows Blair’s old, discredited New Labour, positioning a once great liberal party to the authoritarian populist right of one of the most reactionary Tory-led governments in modern British history. If this represents the convictions of Labour’s front bench, they are in the wrong party. The only other explanation is a tremulous fear that the tabloids and the Murdoch press (and their political adversaries) will accuse them of being ‘soft on crime’. But cowardice is no excuse. Time for some backbone, Ed, Yvette and Sadiq!
I wrote the following letter to the Guardian minutes before leaving London for a river cruise up the Elbe from Berlin to Prague. The letter was published in the Guardian of 9 October, along with several others on the subject of abortion following the proposal by the Health Secretary, of all people, that the period in a pregnancy during which an abortion is permissible (on rigorous conditions) should be drastically shortened:
• The health secretary’s reactionary call for halving the period in pregnancy when abortion may be permissible (Report, 6 October) lacks logical as well as scientific justification.
Defenders of women’s right to choose whether and when to have an abortion should beware of accepting the anti-abortionists’ implicit claim that abortion should be banned from the point when the foetus, if removed from the womb, could theoretically survive.
There is no logic to this claim, and the test is purely hypothetical: some foetuses could be helped to survive outside the mother at almost any stage, others couldn’t. So long as it is a foetus and not a baby, it’s part of and dependent on the mother, who should have unfettered rights to decide its future.
Once born, it is a baby and a human, and quite different considerations apply, but not until then.
The alleged link between potential hypothetical viability and the ban on abortion is based purely on religious superstition about “the beginning of life” and should be firmly resisted.
Otherwise, scientific advances will eventually make foetuses potentially viable from the moment of conception – and we shall be back to the cruel days when all abortions were banned and back-street abortionists flourished.
If the space allocated by the Guardian for letters had been bigger, I would have added an acknowledgement of Owen Barder‘s blinding aperçu that there’s no necessary basis in logic or morals for the assertion that an abortion becomes unacceptable at the point where the foetus might hypothetically survive if removed from the womb, one of those Eureka! observations (except that I didn’t discover it, he did). It’s obvious when you think about it, yet even the most radical of the pro-choice campaigners never seem to challenge the underlying premiss of the anti-abortionists that once the foetus is theoretically “viable” on its own, aborting it must be wrong. Once you point out that there is no basis for this assertion, the whole case for repeatedly reducing the period in which abortions are permitted falls apart. Throughout her pregnancy, every woman should have the unfettered right to decide what happens to every part of her body and its contents, and it’s utterly unacceptable that anyone else should attempt to limit or deny that right.
(This post is being published, all being well, from aboard a river cruise ship moored on the Elbe in the heart of beautiful, beautifully restored Dresden, of whose virtual destruction by giant fire-storm, set off by the bombers of the Royal Air Force only a few weeks before the end of the second world war, we Britons ought to be suitably ashamed. But that’s a different point of controversy: this post is about abortion and women’s rights, once again under threat from religious bigots and other misogynistic obscurantists.)
The following very informative letter was published in the Guardian on Tuesday, 25 September:
Criminal justice and human rights
Indeterminate sentences for public protection were introduced by David Blunkett in 2005 for 153 specific violent or sex crimes of varying seriousnesss (Strasbourg judges attack ‘open-ended’ prison terms, 19 September). Judges set a minimum prison term (tariff) for each crime, but could not set a release date. This was the Parole Board‘s job after viewing how well the prisoner had “addressed his/her offending behaviour” – usually by means of cognitive behaviour therapy courses intended to “cure” anti-social or criminal behaviour. But Blunkett forgot to finance or staff these courses adequately and the Parole Board was notoriously risk averse, releasing only 4% of all IPPs awarded each year.
So queues swelled of prisoners going past their tariff dates. Numbers grew from 434 in 2005 to 4,461 in 2008 – when the law was changed to ensure fewer IPPs. But by June 2012 there were 6,078, with 3,531 beyond tariff – with no clue when they might be released. This causes extreme worry and anguish to both prisoners and their loved ones; children suffer, families disintegrate. IPPs were finally scrapped by Ken Clarke in May this year, but are now defended by his replacement, Chris Grayling – and judges are still awarding them. Shame on this country that it has taken the European court of human rights to condemn this legal lottery.
BK (name and address supplied)
The following letter was submitted to the Guardian on the same day and not published:
It’s a national scandal that it has taken seven years for the maladministration of Indeterminate Sentences for Public Protection (IPPs) to be declared in breach of the human rights convention (Strasbourg judges attack ‘open-ended’ prison terms, 19 September): that our English courts have failed to make such a declaration despite condemnation of this vicious system by every penal reform organisation and expert in the land, even including the prison governors’ association; that IPPs are still being handed down despite parliament’s decision to abolish them; that even now it’s only the way the system has been negligently and callously run that has been pronounced unlawful, not the inherently oppressive system itself; that Labour, which introduced the system in 2005, still lacks the courage to denounce it; that it took a Tory Justice Secretary, Ken Clarke, to abolish it and to promise to reform the way applications for release by existing IPPs are assessed; and, perhaps worst of all, that Clarke’s successor, Chris Grayling, plans to appeal against the European Court’s unanimous judgment, thereby heaping further international obloquy on our failed justice system, instead of getting down to the urgent task of reforming it to meet our international and national, legal and moral obligations.
Brian Barder, London
25 September 2012
I have put on this website a list of documents on the Web referring to Indeterminate Sentences for Public Protection (IPPs). The list is of course by no means comprehensive. Some of them refer to IPPs among many other subjects (if you don’t see IPPs immediately, use the Find facility — ctrl+F). It is a web page, not a blog post, so it does not accept comments. Comments on any of the documents may however be made at the end of this blog post.
The list of documents, including links to the full texts of each, is at
I have not tested each link, and some of them may not work.
My most recent blog post about IPPs (and the recent judgment of the European Court of Human Rights) is at http://www.barder.com/3717 and is open for comments.
In a historic ruling today, the European Court of Human Rights (ECtHR) has ruled that it is a breach of IPP prisoners’ human rights to keep them in jail indefinitely because there are no available rehabilitation courses that they need to do to demonstrate that they can safely be released, or because of delays in providing them. The court has awarded the three IPP prisoners who took their cases to the court substantial compensation of between 15,000 and 20,000 euros (between £12,000 and £16,000). This will set a precedent for thousands of similar claims to the English courts by IPPs who have been delayed in or prevented from taking courses set as conditions for consideration for their release. However the government has already announced its intention to appeal against the ECtHR’s ruling, so the rest of this post has to be read as provisional. If the government wins on appeal, we’re back to square one.
There is a full account of the European Court’s ruling and its immediate implications on the BBC News website at http://www.bbc.co.uk/news/uk-19630617. This however is slightly marred by a misunderstanding in its final paragraph:
IPPs have been replaced with a system of longer sentences for some offenders coupled with extensive supervision and monitoring after release.
As regular visitors to this blog will know, this is wrong. Parliament has passed an Act containing a provision to abolish all IPPs for the future, but the Justice Secretary (formerly Kenneth Clarke, now the more hard-line Chris Grayling) has still not set a date for abolition of future IPPs to come into effect, so judges are still handing down IPP sentences. Even when a date is set for abolition, existing IPPs won’t be directly affected.
It’s also worth remembering that there is no legal requirement for any IPP prisoner to complete any particular course as a condition for his or her release. But in practice parole boards tend to refuse to consider an IPP for release at the end of his tariff (the minimum sentence, representing the element of the sentence deemed appropriate for punishment and deterrence) unless they have evidence that the prisoner has completed at least one course — often more than one — to demonstrate that he’s unlikely to reoffend if released. But many of these courses are simply not available, especially in smaller prisons, and even when they are available, there may be a wait of several years before the prisoner gets to the front of the queue for a place. As a result, thousands of IPPs are kept behind bars many years after they have served the punishment part of their sentences. It is this that the European court has ruled a breach of their human rights under the European Convention on Human Rights by which the UK is bound under international law.
The European court’s ruling attributes the breach in the IPPs’ Convention rights to lack of resources in many English prisons, leading to insufficient courses being available and IPPs consequently being unable to satisfy the de facto conditions for their release. It is difficult to see how the government — even if eventually forced to accept the ECtHR’s ruling — can correct this breach. Obviously it would take years and cost millions to provide all the different courses in every single prison with enough places provided on each to ensure that there are no long waiting lists. The only other escape from the dilemma seems likely to be a drastic reform of the criteria to be used by the parole boards in deciding whether to release an IPP, not including having taken a course which was not immediately available. Such a liberalising reform was promised by Mr Clarke as Justice Secretary but never introduced. Mr Grayling may now be forced to introduce a reform on these lines, probably much against his will.
It’s too early to predict with confidence how the government, with its new hard-line Justice Secretary, will respond to this damning and potentially expensive ruling. On the face of it, and if they lose their appeal against it, they will have to reform the release criteria urgently, and avoid the multiplication of further problems in the future by bringing the abolition of future IPPs into effect immediately. Both moves, if they happen, will be both welcome and disgracefully overdue.
It’s also worth recalling that virtually all penal reform bodies, and a few media commentators and bloggers (including this one), have been pointing out for years the sheer nightmarish injustice of the system, one element in which which the European court has now at last condemned. The failure for so long by this government and its Labour predecessors to correct this scandalous injustice seems likely now to cost the UK taxpayers many millions of pounds in compensation to its thousands of victims. Those in all three main parties responsible for this costly, negligent and callous indifference to easily avoidable injustice should now be held to account, in the court of public opinion if not at the Old Bailey.
But on a sadder note, it must also be recognised that by no means all IPPs will be eligible either for compensation or for accelerated release, even if the government loses its appeal. Only those who can show that their release has been significantly delayed by an absence of specific available courses, specifically prescribed as conditions for consideration for release, are likely to have a case for compensation. IPPs who have not yet completed their tariffs are unlikely to qualify for compensation. And it may take a long time before the release criteria to be used by parole boards can be changed to make them more flexible in the way that Kenneth Clarke advocated long ago. Moreover, all these changes will be opposed and obstructed by right-wing Tory MPs and tabloid media commentators who will call them “soft on crime” and another example of European interference in British affairs — even though the European Court of Human Rights has nothing whatever to do with the European Union.
Perhaps most regrettable of all, the European Court has not ruled that the whole concept of indefinite preventive detention after an offender has paid his debt to society by completing his tariff is in breach of the human rights convention, as many of us hoped it would eventually do. The limited scope of the ruling will leave loopholes through which this most right-wing of governments will try to squeeze, even if it loses its appeal. So there’s still much to be done.
Up-date (19 Sept. 2012): Today’s Guardian carries a very useful report on the ECtHR ruling, the government’s lamentable reaction to it, and the justifiably excoriating comments by Frances Crook of the Howard League for Penal Reform and Juliet Lyon of the Prison Reform Trust: the Guardian website version of the report is here, and well worth reading. The new Justice Secretary, Chris Grayling, has confirmed that the government intends to appeal and is considering on what grounds it can do so. Grayling has pointed out (correctly, I’m sorry to say) that the ruling of the European Court does not say that the IPP system as such is unlawful or in breach of the European Convention; nor does it mean that even post-tariff IPP prisoners must or will be released any earlier than would have been the case before the ruling. The government has three months in which to lodge an appeal and has made it clear that it will not pay the compensation awarded by the Court to the three men until and unless all possibilities for appeal have been exhausted.
It’s worth highlighting the facts that all three men who have won their appeals in the European Court of Human Rights (ECtHR) were in privately run local prisons with few if any facilities for rehabilitation, such as the rehab courses often demanded by parole boards before they will consider applications for release; and that the tariffs set by the judges in the three men’s IPP sentences were two years, 12 months and nine months respectively — indicating that their offences had in no case been judged to be extremely serious, and certainly nothing like serious enough to deserve a life sentence (which is what an IPP is liable to amount to). The one of the three appellants who had served the longest time beyond the end of his tariff had served for two years and 10 months beyond his tariff. There is of course ample evidence on this blog and elsewhere that many, many IPPs have served for much longer periods after their tariffs had expired, so if the ECtHR ruling is not overturned on appeal, some IPP prisoners may expect to receive even more handsome compensation than that awarded by the ECtHR. The seven European judges, including the British judge, whose ruling was unanimous, summed up their finding in words that could almost have been copied out from any of the numerous posts on the subject on this blog, including the comments on them:
“The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired,” says the ruling.
“Moreover, once the applicants’ tariff had expired, their detention had been justified solely on the grounds of the risk they had posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing”. The judges said that in those circumstances their detention had been “arbitrary and therefore unlawful“.
Any self-respecting British government would bow its head in shame at such a damning verdict on its own and previous governments’ failures. Mr Grayling should abandon any thought of appealing against this patently justified ruling, and undertake radically to reform a fundamentally rotten system without delay, whatever the cost in compensation to its thousands of victims. In slower time, there will need to be an inquiry into how such gross and callous negligence was allowed to persist over so many years, and why our domestic courts failed to denounce it in the definitive terms now adopted by the European Court.
An excellent article about the scandalous continuation of Indeterminate Sentences for Public Protection (IPPs) despite their apparent abolition by Act of Parliament (see my most recent blog post on the subject here, including comments on it) has appeared in the blog The Justice Gap, at http://thejusticegap.com/News/the-disappeared-the-ipp-prisoners-trapped-in-the-system/. (Hat-tip: Lorna Elliott on Facebook.) This should be compulsory reading for everyone interested in removing a vicious injustice from our penal system.
I have submitted the following comment on Sophie Barnes’s Justice Gap article:
An excellent article. The only missing pieces of the jigsaw are:
(1) an explanation of how IPPs are still being handed down even after parliament has passed a law (given royal assent on 1 May 2012) which includes abolition of future IPPs — it’s because that part of the Act comes into effect only on a date to be fixed by the Justice Secretary, and no such date has been fixed so far;
(2) that even when the date is fixed (if ever), it won’t apply retrospectively, so existing IPP prisoners won’t be affected;
(3) that the outgoing Justice Secretary, Ken Clarke, was committed to reforming the system for assessing IPPs for release after they had served their tariffs, but that reform had not been introduced when Clarke was sacked by the prime minister last week; and
(4) that Clarke has been replaced as Justice Secretary by Chris Grayling, reputedly a hard-liner on penal policy who may be reluctant either to fix a date for abolition of IPPs or to reform the system of assessing existing IPPs for release in the ways Ken Clarke had promised to do. Of course refusing to fix a date for abolition is tantamount to frustrating the will of parliament, but it will please the right-wing hangers and floggers on the Tory back benches.
So the outlook for reform and abolition of this wicked blot on our justice system has become bleak with the deeply regrettable removal of Ken Clarke, who was far more liberal and enlightened on the issue than most of his fellow-Tories, than his successor as Justice Secretary, and than the Labour opposition front bench. The LibDems are strangely quiet. It’s a mess.
Today’s Guardian (20 Aug 2012) publishes a letter from me dismissing one suggested solution for Mr Assange’s future and proposing another:
Letters: Diplomatic dilemmas and Julian Assange
Your editorial (17 August) states categorically that “an embassy car is not diplomatically protected”, although I don’t know how you square that with Article 22(3) of the Vienna Convention (“The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”). This, however, seems unlikely to help Mr Assange to get himself to Ecuador without being arrested when he leaves the embassy to get into the car or at the port or airport when he gets out of it. A safer way might be for Ecuador to appoint him to the diplomatic staff of their embassy in London, for which the UK government’s agreement would not be required. Mr Hague would then expel him, after the Ecuadoreans had refused to waive his diplomatic immunity. But Assange would retain his diplomatic immunity from arrest until he had left the UK, presumably on his way to Ecuador and political asylum. Such diplomatic chicanery to enable Assange to escape British and Swedish due process would lay Ecuador open to retaliation – Britain could expel its ambassador or even break off diplomatic relations – but the Ecuadoreans might think it worthwhile. No doubt Mr Assange would!
Since I submitted my letter, a friend much better qualified than I has queried my assertion that the British government’s approval would not be required for Ecuador to appoint Mr Assange to the diplomatic staff of its embassy in London, citing Article 8 (2) and (3) of the Vienna Convention:
2.Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Mr Assange, being an Australian citizen, would be covered by (3), which seems to entitle the British government to withhold consent from the appointment to the Ecuador embassy of a national of neither Ecuador nor the UK — but arguably, by implication (“may reserve”), only if HMG has availed itself of the permission given in 8(3) to reserve that right in respect of nationals of a third state and has notified Ecuador that it has decided to exercise it. The Convention seems unclear about whether the right under (2) of the receiving state (the UK) to withdraw its consent to an appointment “at any time” also applies to (3) and therefore to Mr Assange. All one can say is that an attempt by Ecuador to go down this route would seem likely to provide lucrative employment for many years to lawyers representing Ecuador, the United Kingdom, Mr Assange, and Sweden, and probably the judges of one or more international courts and tribunals, before the matter could be resolved. Throughout this time, Mr Assange would presumably continue to be confined either to the London flat which serves as the embassy of Ecuador, or possibly to an English prison while he once again contests, this time on grounds of his disputed claim to diplomatic immunity the UK’s right to extradite him to Sweden.
The other letters on the subject also published today (including one from the indefatigable Mr Keith Flett) raise some other interesting questions. One letter-writer thinks the British government should “insist” on Sweden sending its prosecutors to interview Assange in the Ecuadorean embassy in London — forgetting that it’s for the Swedes, not us, to decide where they should question him about serious allegations made by Swedes about crimes allegedly committed in Sweden. If the questioning were to result in a decision to prosecute Assange, he would clearly need to be in Sweden to be arrested and charged, which could hardly happen in a foreign embassy in London. Another letter questions William Hague’s announcement that HMG doesn’t recognise the concept of diplomatic asylum, recalling that Britain didn’t object the the Americans sheltering Cardinal Mindszenty from the communist government of Hungary for 15 years in their embassy in Budapest. But Mr Hague’s announcement probably refers to a convention on diplomatic asylum signed by a number of South American states, including Ecuador, but not by the UK, which among other things obliges the country where a refugee has been given shelter in a foreign embassy to give the refugee safe passage to the embassy’s home country. HMG has already made it clear that it will not give Assange safe passage to Ecuador or indeed to anywhere else other than Sweden, and Britain has absolutely no obligation to do so under international law.
Today’s excellent Guardian editorial provides a refreshing reminder that the issue at stake here is the serious allegations of sexual assault and rape made against Mr Assange arising from his conduct in Sweden. The Guardian has tried to work with Mr Assange and knows whereof it speaks. Those who are emotionally committed to him as the founder of Wikileaks and the orchestrator of the publication of a vast mass of American classified documents hardly seem the kind of people who would argue that a serious rape allegation should not be followed up by proper investigation; radical feminists have long protested at the frequent failure of police forces here and elsewhere to take accusations of rape and other offences against women sufficiently seriously. It is these allegations which Mr Assange is struggling so ingeniously and energetically to avoid answering, not extradition to the United States on an application by the US which has not been issued, to face charges which have not been laid. The motives of the Ecuador government in coming to his rescue to save him (temporarily) from extradition to Sweden seem connected with its practice of irritating Washington (which clearly has no love for either Wikileaks or its founder) whenever possible, and strengthened by Mr Hague’s inexplicable blunder in explicitly threatening to use non-existent powers to send his coppers into the Ecuador embassy without its permission to arrest Mr Assange, in plain contravention of international law, thus regrettably putting Britain in the dock alongside Mr Assange. None of this should distract attention from the only serious issue: should Mr Assange go to Sweden, preferably voluntarily but otherwise in handcuffs, to answer the allegations against him? Of course he should.
Postscript: Amid the plethora of blog posts and comments on the Assange affair, here are two which usefully explode some myths and provide clarification of the law:
If I were to be asked, however improbably, to advise the Foreign Secretary, William Hague, on the position regarding Julian Assange and the alleged right of the British authorities to enter the Ecuadorean embassy to arrest him without Ecuador’s permission, I might write a submission on these lines:
The British government’s threat to force its way into the Ecuadorean embassy to arrest Assange without Ecuadorean consent was a tactical and public relations blunder, and the claim that Britain had a right in law to take that action was embarrassingly wrong. Under the Vienna Convention, which can’t be overridden by any UK law, the embassy has immunity from search or entry without its consent. There should be an inquiry to establish the responsibility for such an extraordinary blunder. How best to try to end the impasse over Assange’s future (and if possible to fulfil our legal obligation to extradite Assange to Sweden) depends now on persuading the Ecuadoreans to persuade, or compel, Assange to leave the embassy and give himself up, as the only alternative to lifelong detention inside the embassy, or to persuade Assange himself of this reality, or to persuade the Swedes to drop their application for Assange’s extradition (given that he has not been charged with any offence), or to turn a blind eye to an Ecuadorean arrangement to fly him to Ecuador without being arrested between the embassy and the plane. Several of these options, but regrettably not the last, are worth trying simultaneously. If they all fail, there may be no alternative to doing nothing, and accepting that Assange will remain indefinitely in the Ecuador embassy.
Julian Assange, an Australian citizen and the founder of Wikileaks, has taken refuge in the embassy of Ecuador in London to avoid being arrested by the Metropolitan Police under an EU arrest warrant and extradited to Sweden, where he is wanted for questioning about alleged sexual offences, although he has not been charged with any offence there. Assange fears that if extradited to Sweden, he risks being re-extradited by the Swedes to the United States and prosecuted there for offences (some of which might carry the death penalty). Meanwhile the government of Ecuador has granted Assange political asylum as a political refugee; the British government says it will not grant Assange safe passage from the Ecuadorean embassy to a UK airport or port to enable him to go to safety in Ecuador; and the Foreign & Commonwealth Office has reportedly informed the government of Ecuador in writing that the UK government claims the right, under the UK’s Diplomatic and Consular Premises Act 1987, to send its policemen or others to enter the Ecuadorean embassy, if necessary without the consent of the Ecuador ambassador, and there to arrest and remove Mr Assange — a claim vigorously rejected by the Ecuador government as contrary to the Vienna Convention, 1961, and thus in breach of international law.
The legal position
Assange has been lawfully arrested for extradition to Sweden under a valid warrant which HMG is legally obliged to try to execute. Assange has violated his bail conditions by taking refuge in the Ecuador embassy and is therefore liable to be re-arrested and held in UK custody pending extradition to Sweden. The immediate question is whether HMG may lawfully arrest Assange inside the embassy without the consent of the Ecuadorean authorities.
The Vienna Convention 1961 provides that “The premises of the [diplomatic] mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission… The premises of the mission … and the means of transport of the mission shall be immune from search, requisition, attachment or execution” (Article 22). That seems as clear as it could possibly be.
The UK’s Diplomatic and Consular Premises Act 1987 purports to empower the Foreign Secretary to decide what land and premises may have diplomatic or consular status and thus be entitled to diplomatic immunity, and to withdraw diplomatic or consular status from any land or premises if “a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post” (S. 1(a)) — but the Secretary of State may exercise his powers under the Act only “if he is satisfied that to do so is permissible under international law” (S. 1(4)). (The limitation expressed in the word “exclusively” applies only to consular premises, which are irrelevant to the present case. Diplomatic as distinct from consular premises, such as an embassy, may obviously be used for purposes other than and additional to those of the mission, without risking withdrawal of their diplomatic status and immunities by the Secretary of State.) The Vienna Convention forms part of international law and thus part of UK law, binding on the government and everyone else. Accordingly, the Secretary of State’s powers under the UK law can’t override the protection given to the Ecuador embassy under the Vienna Convention. In fact, they couldn’t anyway, even if the UK law didn’t stipulate that they can’t. A state can’t escape from its obligations under international law by passing a law purporting to give itself permission to do so. If it could, all treaty obligations would be worthless, including those imposed by the United Nations Charter.
It’s worth noticing that not only the embassy itself but also “the means of transport” of the Ecuador embassy — such as the ambassador’s official car — are “immune from search, requisition, attachment or execution” under the Convention, which suggests that if Assange could be put into an embassy car without leaving the embassy premises, he could then be driven to an airport or port without any fear of the car being stopped and Assange hauled out of it and arrested. On the car’s arrival at the airport or docks there might in principle be a few moments when Assange could be arrested and prevented from escaping to Ecuador, but probably not before then.
The protection given to embassies under the Vienna Convention is essential if diplomats are to be able to do their jobs without interference and harassment by the local government. There are many British embassies and high commissions around the world which would be vulnerable to invasion and perhaps personal violence, the seizure of confidential documents, the wrecking of communication systems and the arrest of embassy staff, if the host countries were able to ignore their Vienna Convention obligations — and some would be quite likely to attack our embassies if they could quote as a precedent for doing so action by HMG to invade the Ecuador embassy in order to arrest Assange in clear contravention of our international law obligations and indeed of our own law.
By the same token, Britain (like many other western countries) has from time to time been able to protect refugees from oppression or injustice in totalitarian states by giving them temporary asylum in one of HM embassies, pending discussions with the host authorities of safeguards to be observed when they leave the embassy. Such a case occurred during my own time as a First Secretary in the British embassy in Moscow in the early 1970s, at the height of the cold war. The case of Cardinal Mindszenty of Hungary also comes to mind. In the words of Wikipedia,
The Venerable József Mindszenty (March 29, 1892 – May 6, 1975) was a cardinal of the Roman Catholic Church as the Archbishop of Esztergom in Hungary. He supported Church freedom. He was an opponent of communism and the Stalinist persecution in his country. As a result, he was tortured and given a life sentence in a 1949 show trial that generated worldwide condemnation, including a United Nations resolution. Freed in the Hungarian Revolution of 1956, he was granted political asylum and lived in the U.S. embassy in Budapest for 15 years. He was finally allowed to leave the country in 1971. He died in exile in 1975 in Vienna, Austria.
Even communist Hungary in cold war days resisted the temptation to violate the immunity of the American embassy in Budapest by forcibly entering it to arrest the Cardinal, although for 15 years he was unable to leave the embassy’s premises for fear of being arrested immediately if he did so.
It has been suggested that our legal obligation to extradite Assange to Sweden overrides our Vienna Convention obligation to respect the immunities enjoyed by the Ecuador embassy. Such an argument doesn’t survive a moment’s thought. We are obliged to arrest and extradite Assange if and when we can legally lay hands on him. At the moment, we can’t. There can be no blame for failure to do the impossible, an established legal principle as well as a matter of common sense.
It’s thus safe to predict that if Britain were to act in the way we have apparently threatened to do (even claiming the legal right to do), and forced our way into the Ecuador embassy to arrest Assange without the ambassador’s permission, we would arouse a storm of protest and indignation around the world. The episode could only end in our humiliation and a formal undertaking never to repeat our offence. Legal action against us would be almost certain. We would have few, if any, defenders. Assange might even benefit from the event, since the courts might well rule that his arrest on foreign diplomatic premises had been illegal.
By threatening the Ecuadoreans with action in plain contravention of international law, we have wrong-footed ourselves, incurred widespread international incomprehension and dismay, and fatally antagonised the government of Ecuador just at the time when we need their help and cooperation in ending the impasse over Assange’s future. Before doing anything else, we should make it publicly clear that in no circumstances will there be any entry into the Ecuador embassy in London without the consent of the ambassador, for the purpose of arresting Assange or for any other reason. That done, we can consider the options, however unattractive they might be:
a. We could informally indicate to the Ecuadoreans that we will turn a blind eye to any action they might take discreetly to remove Assange to Ecuador, without fuss or publicity.
b. We could equally discreetly seek to persuade the Swedish authorities to agree to question Assange by telelink between Stockholm and the Ecuador embassy in London (as Assange has suggested), in the hope that following questioning they will decide that there is insufficient evidence to warrant charges: or try to persuade them to agree to withdraw the arrest warrant on the grounds that in the absence of any charges against Assange, continued attempts to extradite him to Sweden would be oppressive.
c. We could appeal to the Ecuador government to accept that we have a legal obligation to try to extradite Assange to Sweden, that he can be confident of due process and an impartial judicial system in both the UK and Sweden, and that rather than sentencing him to what could amount to life-long imprisonment in the Ecuador embassy without his having been charged with or convicted of any crime, the lesser evil is to persuade him to leave the embassy and give himself up to face extradition and questioning — not necessarily even prosecution — in Sweden.
d. We could do nothing, and hope that eventually either Assange will get tired of being cooped up in the Ecuador embassy and walk out of his own free will, or the Ecuadoreans will get fed up with harbouring their controversial guest (never the most accommodating or cooperative of friends) in their smallish embassy, and will set a deadline beyond which he will not be allowed to stay.
e. We could try to deport Assange to Australia as an undesirable alien. But to do that we would need to take physical possession of him, which in turn would depend on success with (b) or (c). And once he is in UK hands, there should be no further obstacle to extraditing him to Sweden as we are legally obliged to try to do. Deportation to Australia might become an option if Sweden withdrew its application for extradition.
Of these, (a) is the most tempting. But our tacit complicity would inevitably become known and Sweden would have just grounds for complaint. Both (b) and (c) are worth a try, not being mutually exclusive, although we have damaged the chances of success with (c) by trying to bully and bluff the Ecuadoreans instead of inviting their help and cooperation in the search for a solution. If both (b) and (c) fail, there will be no alternative to (d).
One final recommendation. The threat to force our way into a diplomatic mission without its ambassador’s consent and in contravention of international law was a major and incomprehensible blunder which has done us great harm, as well as greatly complicating the search for a solution to the problem of Assange’s future. Not only ministers and MPs but also the general public are entitled to know who was to blame for this blunder: at what level in the FCO or other department it was approved: whether the FCO legal advisers or the Law Officers of the Crown were consulted about it in advance and if so what advice they gave: and whether ministers knew of it in advance, were advised of its illegality as well as its inadvisability on practical grounds, and approved it nevertheless — and if the answers to any of those questions is Yes, which ministers and/or officials should be held to account. This clearly points to the need for a public inquiry. Ministers should announce one now.
PS: The media and the pundits are gleefully rehashing the old myth that inside an embassy one is on the sovereign territory of that embassy’s home country, and that the laws of the surrounding country don’t apply in the embassy’s buildings and grounds. This, sadly, is not so. Diplomats are required by the Vienna Convention to “respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State” (Art. 41). They are immune from being prosecuted or (in most circumstances) even sued if they break the law of the country in which they serve, but that doesn’t mean they have no obligation to “respect” (i.e. comply with) them, and if they break the law in a sufficiently serious way, the receiving State is entitled to expel them. The FCO seems to be arguing that by harbouring Assange, a bail-breaker wanted by the police, the Ecuador diplomats are either breaking UK law or at least behaving in an unacceptable manner, incompatible with their responsibilities as diplomats. Unfortunately for the FCO, the many precedents, from Cardinal Mindszenty downwards, don’t support this argument, which, if accepted, would blow a large hole in international theory and practice regarding the right of asylum in diplomatic premises for fugitives from harsh treatment in the receiving State, whatever the rights and wrongs of the case. In any event, complaining about the behaviour of the Ecuadorean diplomats does nothing to promote a solution of the main problem — what to do about Assange? — apart from further antagonising the very people whose cooperation we need if ever we are all going to escape from the present impasse.
Update (2330, 16 Aug 2012): An excellent post on ‘The Blog That Peter Wrote’ corrects many widespread misconceptions about Assange, and also performs an invaluable service by supplying a link to the text of the FCO ‘letter’ — actually an Aide Memoire, less formal than a letter but still an expression of British government policy — which is available on the Web here. The relevant passage in this revealing document reads as follows:
- We must reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable, and that we have made clear the serious implications of same for our diplomatic relations.
- You should be aware that there is a basis in law in the UK (the Diplomatic and Consular Premises Act 1987) that would permit us to take steps to arrest Mr Assange within the current premises of the embassy.
- We sincerely hope that such a point is not reached, but if you cannot resolve the presence of Mr Assange on your premises, that route is open to us.
If that’s not a threat based on an unsustainable assertion of a non-existent legal right, I don’t know what is. If harbouring a dissident or refugee from the authorities of the host country in one’s embassy is incompatible with the Vienna Convention, the FCO needs to explain why Britain and numerous other western countries have repeatedly allowed our embassies to be used in precisely this way; and even if it were to be accepted that this behaviour is incompatible with the Convention, there is nothing in the Convention that would entitle a host government to respond by entering the embassy premises without the ambassador’s consent. The worst that the host government could legally do in response to behaviour in an embassy that it believed to be incompatible with the Convention would be to break off diplomatic relations with the country concerned, or (slightly lower on the scale) expel the ambassador, with or without other members of her diplomatic staff. Either measure would prompt reciprocal retaliation and have extensive ramifications going way beyond the problems presented by Mr Assange.
It seems that my celebration in a recent blog post of the abolition by parliament of the vicious system of Indeterminate Sentences for Public Protection (IPPs) was a little premature, although we have all long recognised that much more remains to be done to rescue existing IPP prisoners and their families from their continuing Kafka-esque plight. It now transpires that –
- The provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which abolishes IPPs still hasn’t been brought into effect by the Ministry of Justice, despite the Act having received the Royal Assent and passed into law on 1 May this year;
- There have been indications that IPP abolition may not be brought into effect until well into next year, if then;
- Judges have continued to hand down IPPs in some cases even after Parliament had formally approved their abolition (perfectly legally, since the relevant clause abolishing them has still not been brought into effect, but in clear contradiction to the will of Parliament and the government);
- Nothing has yet been done to correct the obvious defects in the current criteria used by parole boards in deciding whether or not to release IPP prisoners who have served the punishment part of their sentences, even though the effect of those criteria is to ensure that in practice very few IPP prisoners are ever released. The Ministry of Justice has publicly recognised the need to change them;
- Even when an IPP prisoner is released, now or in the future, he – it’s almost always he — is released on licence, usually for ten years, and is liable to be recalled to prison, potentially indefinitely, even if he has not broken any law again (“reoffended”), essentially on the whim of the probation officer supervising him.
No wonder the thousands of people serving IPPs and their families are wondering bitterly whether the purported abolition of IPPs in LASPO is going to make any practical difference to them or indeed to anyone else.
All this and more, including some of the likely reasons for the delays and failures to follow through on LASPO, is spelled out in detail in Mark Mullany’s admirably clear and informative post here. This should be compulsory reading for all who remain worried about IPPs and the ominous inactivity ever since their apparent abolition by statute. Additional light on this frustrating situation is shed by comments on my earlier post about IPPs here, here and here (warm thanks to their contributors).
Many of LASPO’s provisions not connected with IPPs are open to serious objection. Some of these, such as the additions to the list of offences that will now attract mandatory life sentences regardless of the circumstances of individual cases and overriding the judges’ discretion, have clearly been forced on the Ministry of Justice as a quid pro quo for the abolition of IPPs and eventual liberalisation of the criteria for deciding whether to release existing IPP prisoners. It’s an open secret that there has been strenuous objection to the abolition of IPPs from the more reactionary elements on the Tory back benches, potentially from the more primitive tabloids, and – if rumours are to be believed — even from the home office and perhaps from some of the prime minister’s advisers. It would be intolerable if political cowardice were to be allowed to frustrate the will of Parliament as expressed in the approval of LASPO, prolonging the uncertainty and misery of tens of thousands of victims of this disgraceful system (most of them wholly innocent of any offence). The inertia (to put it at the most charitable) of the Labour front bench in the face of this foot-dragging by the government on an issue of clear principle defies comment.
So pressure on ministers is still necessary after all. Write to your MP, and to the newspapers, and to any of the members of the House of Lords who have been tireless in raising these matters, such as the admirable Lord Ramsbotham, and to the Labour shadow minister of Justice. Having at last won the main battle, it would be obscene now to lose the war.