Why Clara Ponsati stands a fighting chance ... but it’s too close to call

In this newspaper, former SNP MP George Kerevan suggested we bombard Bute House with letters, insisting the Scottish Government “rejects the warrant” against Ponsati and send the Spanish government packing. Psychologically, I can understand why this kind of grandstanding might seem appealing. Emotionally, I can understand visceral reactions to the idea of seizing an academic from one of this country’s most ancient seats of learning, and packing her off on a flight to face the prospect of a grossly disproportionate prison term for an offence Scots law does not recognise.

READ MORE: Madrid has carried out a coup – and it directly affects Scotland

But I was dismayed to read Mr Kerevan’s rhetoric, when back in the reality-based community, meaningful, substantive steps were busily being taken to give Professor Ponsati a real shot, in the real world, of resisting her forcible removing from this country. Send as many letters to Nicola Sturgeon as you like. Spill an ocean of green ink if you like. The Scottish Government has no legal locus to “reject” anything. And if I may say so, there’s a strange irony in slating Spanish justice for being politicised, and simultaneously demanding that the First Minister should give unlawful instructions to Scotland’s court system about how to handle a case.

Demanding the impossible is not radical. The impossible will not help Professor Ponsati to resist extradition. The impossible only confuses folk who might be inclined to sympathise with the Catalan economist’s position. The impossible misdirects meaningful efforts you might make on her behalf. This is a predicament which demands reason before passion. Anything else is – frankly – self-indulgent. A woman’s life is at stake.

READ MORE: Leadsom responds as Wishart raises Ponsati case at Westminster

So what’s to be done? Clara’s legal team has a clutch of arguments. First thing’s first. What do the Spanish have to establish to extradite the academic? There’s been a world of confusion swirling around about what lawyers call “dual criminality.” In some circumstances, you could only be extradited if the crime you were accused of abroad was also a crime in this jurisdiction. Understandably, we are reluctant to give illiberal states abroad the right to impose their values on people now outside their jurisdiction. Saudi Arabia can prohibit women driving cars, but no UK Home Secretary worth their salt would give the nod for the extradition of a female driver who flouted the Saudi ban. Nobody would return a gay man to a state which criminalised the expression of his very being.

Applying this logic to Ponsati’s case, wouldn’t the Spanish have to establish that Ponsati could have been indicted in Scotland for rebellion to whisk her out off the country? And since Holyrood abolished common law crime of sedition in 2010, wouldn’t this be fatal to the case for extraditing her?

This is a neat bit of lawyering, but unfortunately it ain’t so simple. The Extradition Act isn’t limited to “dual criminality offences”. EU states maintain a list of 32 “European framework” offences which automatically qualify for extradition if they are punishable by imprisonment for a term of three years or greater. All the Scottish court would need is a certificate from the Spanish authorities, confirming that the charges against Ponsati fall under one of these headings, to extradite her. The content of Scots law matters not a jot here. As Robert Black QC observed this week, however, it isn’t clear which one of these headings charges of rebellion and malfeasance of public funds might be caught under – but the critical point is this. The dual criminality argument isn’t a magic wand.

Ponsati’s best argument, it seems to me, is that extraditing her to Spain would violate fundamental principles. The key provisions are sections 11, 13 and 21A of the Extradition Act. Section 11 outlines “bars to extradition”, including principles such as double jeopardy, the age of the accused, and the antiquity of the offence they’re alleged to have committed. For Ponsati, the key concept in the legislation is “extraneous considerations”. This might not sound terrifically promising, as legal considerations go, but bear with me.

The Act sets out what it means by “extraneous considerations” in section 13. Here’s the key point. “If and only if” the sheriff can be persuaded the European arrest warrant has been “issued for the purpose of prosecuting or punishing” Ponsati on the grounds of her “race, religion, nationality, gender, sexual orientation or political opinions” – the judge can knock back the warrant and return her to her Fife lecture hall.

Alternatively, the judge can close down the case if they’re satisfied the professor “might be prejudiced at her trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions”. Look at the facts. Look at the treatment of Ponsati’s pro-independence colleagues. Whatever you make of Catalan independence, whether or not you have any sympathy with Ponsati personally, these legal arguments have teeth.

But that’s not Ponsati’s only high-value card. She also has section 21A in her deck. The judge must take account of the human rights implications of her extradition. Would buying her a one-way flight to Madrid be compatible with her European Convention rights? You have a right to liberty, to be free from inhuman and degrading treatment, to exercise freedom of conscience and to manifest your conscience within the law. The European Court of Human Rights in Strasbourg is the ultimate arbiter of these questions – but the sheriff in Edinburgh seems likely to be confronted with what I call a “blunderbuss” human rights case on Ponsati’s behalf.

They tend go something like this. You load all the legal ammunition you can think of into the barrel. Odds and sods, human rights and statutory quibbles, anything and everything – in it goes. And when you come to court – bang – you strike the flint, and hope one of your many arguments finds its mark, if not at first instance, then on appeal.

Key human rights themes are already emerging. Will Ponsati face a fair trial in Spain? Will her guilt or innocence be determined by an independent and impartial tribunal? She has a right to free expression under Article 10. Speech, as a matter of law, is not sacrosanct. The right to free expression is not absolute. It is tempered by competing public interest questions and considerations of proportionality. But the Strasbourg court has consistently emphasised that restrictions on free political expression merit the closest and most searching examination. Having dredged through the rights issues, the sheriff must also be satisfied that ordaining Police Scotland to escort Professor Ponsati to the airport is proportionate.

Only if all these tests are met can the sheriff green-light her forcible return to Spain. And after that? If she loses? She appeals, and appeals, and appeals – from sheriff, to High Court, to London if necessary. Will she win? The American jurist Oliver Wendell Holmes defined the law as “predictions about what courts will do”. The Ponsati case touches strong feelings, fields big arguments, and calls on the courts of her adoptive country to make big judgments about this academic’s fate. But as Clara Ponsati continues to enjoy her liberty, as her legal briefs assemble their best arguments, as thousands of people contribute to her crowdfunder and back her case – this one remains too close to call.