I strongly disagree with the Chief Magistrate's account of the WGAD decision in her judgment released today on Assange's arrest warrant. bit.ly/2EZx1q6
For my reasoning on this see my blog on the WGAD decision: ukconstitutionallaw.org/2016/02/09/lio…
In para 36 of the judgment the Chief Magistrate rejects the idea that living in the Ecuadorian Embassy for six years is simply a case of self-confinement, hence a restriction of liberty rather than a deprivation of liberty.
The reasoning is that Assange is free to leave the embassy when he wishes, he is free to receive visitors, choose the food he eats, sleeps and exercises, can sit on the balcony, and is not locked in at night, use his computer, mobile phone unlike a prisoner....
This comparison with Wandsworth prison, or any prison, and her belief that Assange is free to leave, leads her to the view that Assange isn't deprived of his liberty.
I disagree with this line of reasoning. First, the line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in European human rights jurisprudence ‘as a matter of degree or intensity, but not one of nature or substance’ (Guzzardi).
Thirdly, liberty must be capable of being realized in practice. Where exercising liberty has considerable coercive results, this constitutes a restriction of liberty in actuality. Assange can hardly be said to be voluntarily ‘self-confined’.
Fourthly, the fact that Assange is deliberately resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.
Fifth, liberty is not a privilege gained for good behavior, it is a right which demands justifications from those seeking its restriction.
Having said all this, the grounds for determining whether a deprivation of liberty is arbitrary is a separate question. This rests, inter alia, on considerations of proportionality. This is where the WGAD could have been clearer.
Another version of my argument can be found here: bit.ly/1oNns3X
And here: bit.ly/2BVrodT
In sum: as counterintuitive as it may seem, liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention.
This is the link to the ruling today - I posted the link in my original tweet to the 6 February ruling ... judiciary.gov.uk/judgments/juli… apologies...
