Extradition proceedings against Julian Assange

by Carl Gardner on December 7, 2010

Julian Assange’s arrest under a European arrest warrant, and the initial hearing before a district judge, has been the biggest news story in the UK today.

All this is happening under Part 1 of the Extradition Act 2003. Sweden having issued a European arrest warrant (here’s the Interpol “red notice”) it seems Assange attended a police station this morning, and was arrested presumably under section 3. The initial hearing today took place in accordance with sections 7 and 8, the district judge simply setting the date of the full extradition hearing (or at least its formal opening) under section 8(1)(a), and making a decision on bail or custody in the meantime.

I’m not remotely surprised that bail wasn’t granted in this case. The charges of rape and sexual assault are serious ones, but more importantly, Julian Assange is a non-EU national merely visiting the UK, rather than having a home or close relationships here which would prevent him fleeing the jurisdiction. He’s known for moving from country to country. And at today’s hearing he couldn’t or wouldn’t give an address in the UK. That on its own seems to me to make it difficult for the district judge to grant him bail. A number of famous names came forward to “stand surety” for him by putting up substantial sums to guarantee his reappearance, but there is a tendency, perhaps due to the influence of US crime dramas and the lack of accurate drama or televised reporting of English courts, to think that these decisions are about “posting bail” and that money matters a lot. It’s not as important as that. For a start, not all of those who were prepared to put up money even know Assange. Why should he care about them losing money?

So what happens from here? The full extradition hearing must begin next week, though the district judge can adjourn further, and is likely to if either side needs more time. It may well be that next week simply consists of a second application for bail, based on an argument that the evidence asked for today by the district judge is weak, or that it hasn’t been provided, and applying to the High Court if refused again. That would seem to me the strongest tactical approach to trying to get bail. If I were Julian Assange’s solicitor, I’d also like to be able to tell the courts where my client would propose staying (and accept the condition of staying there), I’d want him to offer his own financial security, to hand in his passport and undertake not to apply for another one, and I’d offer daily reporting to a police station too. I think this is the sort of package of conditions you need to offer if you want to make a realistic bail application in a case like this.

As for the full extradition hearing itself, all the district judge has to decide is

  • whether the offence he’s wanted for is an “extradition offence” (section 10 read with section 64, I think in this case section 64(3) in particular); there seems to be no dispute about this;
  • whether extradition is “barred” under section 11, which it is by reason of “extraneous conditions” under section 11(1)(b) read with section 13 if extradition is really about punishing him for his political views, or if they might prejudice his trial, and
  • whether extradition would comply with human rights (section 21).

Unless Assange can persuade the court that this is politically motivated or that his trial in Sweden might not be fair, or can persuade it that for instance extradition would breach his right to freedom of expression, then extradition will go ahead. His solicitor Mark Stephens has suggested there could be other technical arguments, but I suspect they’re uphill.

In reality the “political crime” and human rights arguments are one and the same. Assange’s extradition would not shut Wikileaks down. It’s only an interference with free speech in the sense it can be seen as “punishing” him for leaking information, and to suggest that is much the same as saying it’s a political extradition. Interestingly, it’s not clear where the burden of proof lies – how much evidence Assange has to bring, in other words, to make the court decide the extradition would be political. He must bring at least some objective evidence of it, though. If all there is is suspicion arising from the timing of his arrest, I doubt he can win.

A final point worth making is the potential role of the European Court of Justice – or rather, its lack of one. If any point arises as to the correct interpretation of the EU Framework Decision establishing European arrest warrants, one thing that won’t happen is a reference to the European Court. Article 10.1 of Protocol 36 to the Treaty on the Functioning of the European Union provides (in opaque language) that no such reference can be made by a British court for five years after the Lisbon Treaty came into force – which means for another four years. The question will be purely for the English courts. Nor will the European Court of Human Rights prevent the extradition: I don’t think anyone is suggesting Julian Assange will be killed or tortured in Sweden.

I expect extradition to go ahead some time early next year.

I did surprise me a bit though that Ken Clarke was willing to comment on the case on Channel 4 News, (at 3:30) suggesting that because it’s Sweden, he’d be astonished if there were a “sub-plot”. So would I. But I’m not sure it’s sensible for the Lord Chancellor to say so while the case is still before the courts. I suppose he’d say politicians no longer have a role in these cases, and in any case the district judge won’t be influenced by him. Fair points. Important that politicians be seen not to influence things too, though.

{ 80 comments… read them below or add one }

1 HelenNPN December 7, 2010 at 23:57

I enjoyed your analysis. Will you continue to review the details of Assange’s case as it rolls out? thanks.

2 Carl Gardner December 8, 2010 at 00:10

As much as I can, Helen!

3 simply wondered December 8, 2010 at 01:30

is a uk dj in any position to be able to make a prima facie analysis of the strength of the case against him? is it the likelihood of his being extradited or the strength/seriousness of charges against him in sweden that is relevant?
i hadn’t realised he couldn’t/wouldn’t give a uk address. that can’t have helped…
otherwise i thought he was a pretty good candidate. assuming he has no history of failing to report.

4 Carl Gardner December 8, 2010 at 01:42

Whether or not he’s in a good position to, I think he may be required to, if he thinks it’s relevant – see para. 9 of Schedule 1 to the Bail Act 1976:

http://www.legislation.gov.uk/ukpga/1976/63/schedule/1

Normally the strength of the evidence would be relevant to the question of bail in an ordinary English case – the weaker the evidence, the more likely you think the person will want to face it. That’s why I suspect he’s asked to see it.

The key is to remember it’s only potentially relevant to bail – the extradition decision itself does not involve consideration of the evidence. Only the three bullet points I set out above.

Yes, I think the seriousness of the offences matters too.

I don’t think “likelihood of extradition” really enters into it. Whether he’s extradited depends on purely technical arguments – it’s impossible to quantify the likelihood of them winning on, say, the political motivation argument, without listening to their argument in full and judging on it, really. Too much mental gymnastics there I think.

5 Anonymous December 8, 2010 at 08:22

How much longer could it take if he appeals an extradition decision?

6 Steve December 8, 2010 at 09:46

The TV kept mentioning a posibility that he could be extradited to the US. Surely that is unlikely? What grounds would the US have to apply for extradition?

7 simplywondered December 8, 2010 at 10:17

carl – my question was pretty much ‘do normal rules apply re bail’. your answer seems to be ‘yes’.

i should have said that, really shouldn’t i!

8 ObiterJ December 8, 2010 at 10:37

IMHO it is totally out of order for any politician to comment on this case now that it is before the courts. Clarke – (the Secertary of State for Justice) – ought to shut up and allow the courts to do their job as per the relevant legislation. Certain American politicians have also commented. This would suggest that there is US interest in getting Mr Assange.

9 Concerned Citizen December 8, 2010 at 10:38

1) One of the celebs offering bail money did in fact know Assange quite well (The judge also seemed to make this mistake in his comments).

2)Litttle has been made of the fact that new info from wikileaks suggests that Sweden has had a covert function in NATO, sending information to the U.S. without the knowledge of it’s citizens.
There seems to be no agreement in these discussions over whether extradition to the US would be more or less likely in Sweden. Any opinions on this?

3)Clarke’s comments are a disgrace (quite apart from his usual intolerable air of smugness) and he should be criticised for this. He cannot be reguarded as an independent commentator.
Hi profile media statements can affect these cases.

10 simplywondered December 8, 2010 at 10:41

what??? politician in ‘gob shut’ shock? now that would be news.

it sits well with the tories bangin’ on endlessly about the ‘politically motivated’ release of megrahi.

i do have to give clarke some points for resiling from the pre-election pledge (or ‘indication’ or ‘aspiration’ or ‘maybe if the wind is in the south south west’) to jail anyone who ever saw a knife. still, not doing what you say you will is quite the thing these days.

11 Matt W December 8, 2010 at 11:36

Hmmm. No one has noted that the US has form for trying to pressure the Swedish legal process through political channels, and that on that occasion timings looked fishy.

Pirate Bay. 2006.

That was for alleged copyright infringement. How much more so for national security (?) – that’s a speculation.

12 simplywondered December 8, 2010 at 11:45

pirate bay was ‘organised crime’ though (ahem!)

13 Rachel Brown December 8, 2010 at 13:36

I too was shocked to read that Assange’s solicitor had not even advised his client on the address he should provide and there was some confusion over this at the bail hearing. Did his solicitor really think a celebrity backed surety would suffice. I agree with you the a proposed place of residence and strict reporting conditions would have, I am sure, sat more comfortably with the UK court.

I am very interested in the timeline of proceeding by the Swedish prosecution. Assange’s lawyer have stated that he did cooperate with Swedish police and prosecutors and only left with the express permission of the Swedish prosecutor. My understanding (and perhaps I am applying UK law too much here) is that no person would be allowed to leave the country in which criminal allegations of a sexual nature had been made unless it had been held that no further action was to be taken. Does this not then show that the “timely” resurrection of these allegations and if so, proves political motivation for this extradition. Swedens general extradition policy and the 1960 Treaty with the US must mean it would be easier for Assange to be extradited to the US from Sweden than from the UK. Perhaps this is just the first stage in the master plan?
Can anyone throw any light on the timeline from allegations to permission to leave Sweden and to the allegations being “resurrected”?
In addition, the Australian Prime Minister has said that they are investigating as to whether any federal offences have been committed and it has been said that Assange would be arrested upon entering Australia. This surprises me because the US are claiming the offences in question came under their jurisdiction by reason that the information disclosed was their property despite being a “cyberworld” disclosure. This makes sense to me but what it must mean it that one cannot have committed those offences in more than one jurisdiction and as I understand it none of the information disclosed belonged to Australia so surely they are wasting their time investigating this?

14 Matt Wardman December 8, 2010 at 13:56

There is a very broad spectrum of attacks on Wikileaks as covered in the Groan :

http://www.guardian.co.uk/media/2010/dec/07/wikileaks-under-attack-definitive-timeline

I’m quite happy to say that a lot of it looks “orchestrated” (in quotes).

I’m not commenting on the technicalities of what exactly “rape” is, or is not, in this case, and the strangeness (or not) of Swedish Law; that tar pit is already full of hippopotami. But I think the USA govt would welcome any ‘ally’ in causing distraction to Wikileaks.

Especially as no one has yet come up with any crime which Assange may have committed apart from these allegations.

From my point of view the EAW etc is a separate issue from Wikileaks, and I am amongst the thousands willing to republish the database myself if the main site goes down. In my case, my motivation is idealogical support for an open internet, and in recognition of the good work that Wikileaks has done in the past – at present something like this is necessary, even if I don’t agree with every individual action.

15 Alex December 8, 2010 at 14:35

It seems that according to the Wikipedia article on the EAW, if someone wanted for extradition was allowed to leave the country before the request, then the extradition does not have to be granted (I cba to look it up again, but the case described was something to do with Ireland and Hungary).

If that is true, and it is the case that Assange was allowed to leave Sweden, then doesn’t that mean he could stop the extradition on this basis?

16 Carl Gardner December 8, 2010 at 14:46

@Anon:
I don’t know. Depends. I doubt very much the proceedings will take more than three months though, at the outside. See the 60 day time limit in article 17.3 of the Framework Decision.

@ConcernedCitizen:
Up to the US if they want to try. Afua Hirsch in the Guardian last week wrote about possible prosecution under the US Espionage Act
http://www.guardian.co.uk/world/2010/dec/01/wikileaks-cables-us-espionage-law

@Rachel Brown:
I’ve no idea whether extradition from Sweden is easier than from the UK – though British conventional wisdom is that it’s far too easy from here to the US, of course. I’d want to see a detailed explanation of why it’s easier through Sweden, if someone wants me to think that. Looking at article 28.4 of the Framework Decision, it looks as though the UK would need to consent before Sweden could extradite him on to the US.

@Matt:

I very much agree that these things are legally separate, though of course I understand the allegation that they’re really linked. I’d be more concerned if the US were trying to extradite him there to face charges related to Wikileaks. This is different (unless/until there’s real evidence it’s all a conspiracy).

I think the most important thing for British commentators on all this is to take care to treat these rape allegations in the same way as we would similar allegations made in this country by British women. It’s remarkable how quickly people who normally are quick to condemn British justice and point to virtue abroad can, in different circumstances, suddenly rage against foreign legal systems’ infuriating divergence from our domestic expectations. I think we know little about what these two women allege in detail and why Swedish prosecutors want him for rape and other sex offences, and we should not simply dismiss them out of hand. The presumption of innocence does not mean we have to conclude now that the suspicion is false.

I understand Assange’s argument that he was in Sweden, ready to answer questions, that he left without objection and is willing to answer questions here from the Swedes. Those arguments do impress me. There may be another side to it, though, that we’ve not heard – there may be a good reason why the Swedes think it’s essential he be there in order to be questioned. We don’t know enough about the detailed facts to draw definite conclusions, I don’t think.

17 Carl Gardner December 8, 2010 at 15:00

@Alex:

You’re thinking of the Ciaran Tobin case. It’s about Irish extradition law, not the meaning of the Framework Decision itself:

http://www.courts.ie/Judgments.nsf/1073ee973657c17a80256ec4002f18aa/fd7fbd2d0e422eed802573fc005307fe?OpenDocument

so it doesn’t help Assange.

18 Matt W December 8, 2010 at 16:03

Unity has quite a good article mapping the shape of the confusion cloud, which includes a video interview back in August with the Swedish prosecuters.

Here:
http://www.ministryoftruth.me.uk/2010/12/07/the-great-wikileaks-clusterfuck/

Video:
http://www.youtube.com/watch?v=SLy2UOaA0CU.

But – as we have all said – that is a side issue re: Wikileaks.

Perhaps the real victim of the Wikileaks case will be the figleaf of US intelligence supremacy, and European Govts will be more willing to refuse access to shedloads of personal financial data on millions of people for “security” reasons, which issue goes back at least a decade and a half.

19 Cathy December 8, 2010 at 16:15

I have heard that he has been denied access to his lawyer until the day before his hearing. Is this true? Can you explain? To my American lawyer sensibilities this sort of prohibition sounds appalling; what’s the English view?

20 Carl Gardner December 8, 2010 at 16:28

Yes, sounds appalling, but can easily be misreported. He’s in prison, and the prison has I think to allow him reasonable access to his lawyer. You have to book in advance. The complaint is that the prison have offered an appointment only next week, just before the hearing. Not ideal, and I hope they get it brought forward. But not quite the same as being denied access to his lawyer.

21 Cathy December 8, 2010 at 16:41

I appreciate that distinction, although I do have to wonder if it’s ultimately a distinction without a difference… I think, for instance, in US jurisprudence, if an administrative rule about booking appointments has the effect of depriving one of their right to effective assistance of counsel, the rule would be unconstitutional. (At least in ideal US jurisprudence. We do often stray away from our ideals ourselves, unfortunately…)

22 Carl Gardner December 8, 2010 at 16:53

The rule doesn’t that effect, though, Cathy. The problem is the late appointment. I doubt lawyers have unimpeded 24-hour instant access to their clients without prior arrangement in jails in the US or in any liberal democracy.

I hope the appointment is moved forward too, but let’s not exaggerate this into an indictment of British justice. We British are already going OTT in our readiness to instantly condemn Swedish justice, without knowing much about it.

23 Rachel Brown December 8, 2010 at 17:07

Having read some more on this, I do not think that it would necessarily be easier for the US to extradite Mr Assange from Sweden than from the UK. In addition to Mr Gardener’s point re. UK consent, BBC Legal Affairs Analyst, Clive Coleman has said that “the United States would have to show that there were reasonable grounds for the extradition from Sweden. This is arguably a higher test than the test which applies when an extradition is sought from the United Kingdom.” And I don’t think the 1960 Treaty would be applicable because it specifically excludes a political offence for which a charge made under the 1917 Espionage Act would surely be considered as such?

I find we have only the media to throw any light on this but it does appear that Swedish prosecutors advised there was a lack of evidence to proceed several months ago and did permit Mr Assange to leave the country. The ressurection of this case comes in time with the release of the US Embassy Cables which must surely show the relationship between both the EAW for sexual offences and WikiLeaks mose recent and most damaging disclosures.

My main frustration with this case though is that it once again highlights the unfair terms under which a European Arrest Warrant can be successfully made. It strikes me as an injustice of the most fundmental kind that a man can be extradited and have his liberty (for example, Andew Symeou for 11 months in Greece) taken from him without even a prima facie case having been put before the court approving the EAW.

In addition, this case may reveal that the Swedish law on rape is bad law. I cannot come to terms with a law in which the complainant has to be advised by a lawyer whether or not she has been raped because that “rape” is still considered as such despite being consensual. But naturally, being a UK resident, I am not privy to the full context of this law.

If true, this article is probably the most insightful that I have read:
http://www.crikey.com.au/2010/12/02/when-it-comes-to-assange-r-pe-case-the-swedes-are-making-it-up-as-they-go-along/

To Cathy: I cannot believe for one second that would be true. There is no legal provision that I know of under which such a court order could be made. And this would deny him the prepartion of his defence, an Article 6 contravention I would think.

24 james c December 8, 2010 at 17:41

Carl,

Do you not think that Assange has wider issues than simply obtaining bail and fighting extradition?

For example, it might suit him to be imprisoned and have the UK authorities responsible for his personal safety. It may also suit him to show that wikileaks functions even while he is locked up.

He may also wish to use the process as a forum to embarrass the Swedish authorities or obtain the maximum publicity (possibly for his own protection)?

I say this because he is obviously a highly intelligent man who will probably have thought several moves ahead.

25 Carl Gardner December 8, 2010 at 17:59

But Rachel, Cathy’s immediate and reasonable but as we know ultimately unjustified suspicion of our own law on legal access to prisoners, based on reports she’s read, should caution us against immediate suspicion of the Swedish law of rape.

We do not know any of these incidents was consensual, and I think it’s wrong to say they were. We haven’t seen the evidence. The CPS in court yesterday said one of the offences suspected relates to having sex with a woman when she was asleep – which I think would be rape here, too. He’s only wanted for questioning, so it’s not necessarily outrageous that what’s suspected is not spelled out with the clarity of a formal charge.

And we mustn’t have double standards about rape. In England, if a woman felt confused about something that had happened with a man, went to the police or a rape crisis centre saying “I don’t think it was rape, but… ” and the professionals felt on the basis of what she said, it was or might well be rape, we would not rubbish her, or their conclusions. Let’s not do it just because it’s abroad.

26 Rachel Brown December 8, 2010 at 20:24

I do fear that words are being put in my mouth! I have only commented on the Swedish law on rape and its concept of what appears to be “consensual rape”. I repeat that I do not know the full context of this law.

I agree that we cannot comment either way about consent and Mr Assange’s case. That is why equally we must not assume that these complainants fall into the category of being women “who were confused about something”. Which makes me wonder why the example of a woman who said, “I do not think I was raped…” has been raised. Such a complaint would not generally be taken any further unless she was not of a sound mind or had the mental age of a youth. And that would properly reflect the subjective nature of the law of rape.

Going back to this case, I have not read anywhere that these women are incapable of deciding for themselves whether or not a rape has occured. It does seem to be of issue though if the law on rape is so far removed from what a lay person of sound mind would consider rape (nonconsensual/violence etc) to be that a lawyer is needed to identify it. And that is being suggested is the case in Sweden.

And looking at double standards, are these present in relation to the way Mr Assange has been treated? In the country, have you ever come across an instance where a man has been remanded in custody until his next court hearing in seven days’ time without even an indictment or what we might call committal papers?

And I am not certain that he is only wanted for questioning. I have not had the benefit of reading that elsewhere for myself. And my understanding is that an EAW can only be made for the purposes of a criminal prosecution (which must exclude an investigation and therefore questioning?) or to serve sentence/detention order. Or is it broader than this?

27 Anonymous December 8, 2010 at 22:44

Former CPS Extradition Specialist thinks extraditing Assange will be an uphill struggle

http://www.guardian.co.uk/media/2010/dec/08/julian-assange-extradition-attempt?CMP=twt_fd

28 Swede December 9, 2010 at 00:04

Being a Swede myself, and very much supporting the free press and what Wikileaks has achieved, I must mention this, though:

Even if the connection between the sexual offence alligations in Sweden and the publications of all documents indicate a set-up, I can assure you, this is not the case. First of all, to persuade both a Swedish prosecutor and two different courts is almost impossible. And the two women has been big fans of JA for a long time, so a set-up from them is also really a long-shot.

The issue here is instead the fact that the prosecutor didn’t consider all possibilities to question JA before he left Sweden, and even approved he did. During the preliminary investigation she didn’t do her work properly, I think. Probably she and her staff went home at 5 pm and didn’t realise the consequences for JA. Now she has to question him, but isn’t sure herself it will even be a prosecution (she actually said that in a TVNews interview).

Actually it can be good for JA to be sent to Sweden, because this sexual abbuse case has first priority over any extradition clames from the US. Also, before Sweden can send him to USA, a Swedish court not only has to approve the US claims, they also has to ask UK authorities for permission, because he came from there. This means that two countries have to approve.

If the Swedish case is dropped, and JA is a free man, Sweden has to wait 2 weeks before they don’t have to ask UK for permission. This case might actually be a good insurance for JA.

If he still is in Sweden, 2 weeks after acquittal or served time, not only has a Swedish court to approve the US alligations (which he of course can appeal to higher court), but even the Swedish gouverment has to approve. They can actually change the court’s decision, and in the name of humanity deside to not extrade him. But, and this is important, the gouverment can’t change the court’s decision the other way around.

Ladies and Gentlemen, these all issues and claims will take over 18 months, and by then the US alligations will be much more modest, or even dropped.

So. Actually. If there is a set-up, I think we shall look at JA and maybe the two women instead. He is quite intelligent, you know. At least, this would be the case in my movie script, ha ha!

Thank you for your time.

29 simply wondered December 9, 2010 at 00:26

‘In England, if a woman felt confused about something that had happened with a man, went to the police or a rape crisis centre saying “I don’t think it was rape, but… ” and the professionals felt on the basis of what she said, it was or might well be rape, we would not rubbish her, or their conclusions. ‘

well sadly the system would. many times a woman goes and says ‘i am certain i have been raped ‘ and they are still rubbished. so let’s not get all uppity about sweden and rape. which, to be fair, is what you are saying anyway, carl.

30 Rachel Brown December 9, 2010 at 01:08

To Suede, I think you make some very good points, particularly about the way the prosecutor has progressed the investigation. I was musing earlier (in relation to the extradition regarding the most serious offence taking precedence) whether an extradition of a sexual offence or that for a political offence (if JA was charged under the US 1917 Espionage Act) which would be considered more serious? If it could be proven that national security had been compromised or, as it of debate at present, deaths has been caused, if that could be proven, it may take precedence over the Swedish EAW. Its an arguable point anyway, both are serious offences but which is most serious. We may find out in the coming months!

31 Alessandra December 9, 2010 at 01:23

I am interested to hear the views from lawyers about this news piece, since I haven’t seen any other article about the judge’s request. Yet, it seems to me like the most important development in the case, from a legal perspective, after Assange was arrested.
=========
JULIAN Assange has received a glimmer of hope in his battle against sexual abuse allegations, with a British judge saying the WikiLeaks founder may be released from jail next week unless Swedish prosecutors produce evidence in London to back up their allegations.

Senior district judge Howard Riddle said Swedish authorities would need to show some convincing evidence if they wanted to oppose bail for the 39-year-old Australian when he appears in court next Tuesday to oppose extradition to Sweden.

Mr Assange was yesterday refused bail and sent to Wandsworth prison when he appeared before Judge Riddle to answer a Swedish extradition application.

The internet activist’s lawyers say if he stays in jail, it will be much harder for them to organise his defence against the Swedish sex charges and to stave off what they believe is a US government plan to charge him with espionage-related crimes over the publication of thousands of secret American cables.

Gemma Lindfield, the lawyer representing Swedish authorities at the initial extradition hearing in the City of Westminster Magistrates Court, said she believed the strength of the evidence over the sex charges was not relevant to the process of extraditing him under a European Arrest Warrant.

Judge Riddle disagreed, saying the four charges, including rape, were “extremely serious allegations (and) if they are false, he suffers a great injustice if he is remanded in custody”.

The judge said he would “suggest” to Ms Lindfield that “if she is going to oppose bail in future”, she would need to be armed with some substantial material to back up the allegations.

===========

To my non-lawyer ears, it actually sounds like due process, you see. A concept that seems completely foreign to Ms. Lindfield. No, your honor, there is no evidence behind the allegations, but since when was that relevant in any lawsuit, charge, extradiction or imprisonment action?

Does this make sense from a legal perspective or not?

32 Carl Gardner December 9, 2010 at 02:33

Rachel,

I’m sorry – I’m not intending to put words in your mouth, or to be fierce. I just think all the talk there’s been on the web about Swedish law on so-called “consensual rape” is positively unhelpful: what the CPS said on Tuesday he is suspected of is not consensual.

http://liberalconspiracy.org/2010/12/08/more-light-finally-on-the-allegations-against-julian-assange/

I keep pointing this out because I think talking about “consensual rape” in connection with this case risks distorting people’s idea of what Assange is suspected of. He may turn out completely innocent, and we must presume he is. And the process hasn’t been great at clarifying what he’s suspected of, perhaps precisely because he’s only suspected, not charged. But I don’t think this case has anything to do with fuzzy or complex or non-English concepts of rape or sexual assault. If the Swedish system does have any problem with any of that, nothing I’ve seen suggests they’re relevant to this case.

On your second point, about competing extradition requests, I think the CPS would need to consider which was more serious etc., take account of all the circumstances and decide which had priority. Presumably that’d be a judicially reviewable decision.

Alessandra:

Yes, it does make sense. I think Gemma Lindfield is absolutely right: the strength of the case against Assange is not relevant to the question of extradition. That’s the way the European Arrest Warrant works. It’s controversial; if you think it’s wrong, you’re not alone. How does interstate extradition work in the States? (From your blog, I think you’re American). I’m not sure a case has to be proved to the “requested state”. The EAW is meant to work in a similar way.

However the strength of the evidence is relevant to the question of bail. That’s the apparent difference between what she and he were saying. The stronger the evidence is, the more likely he’d be to run off rather than attend court again – it’s the way the English criminal law system thinks.

You might not like the EAW system, but what’s not happening here as far as I can see is any wrong, unethical or bad prosecuting or judging (or defending for that matter). I’ve seen nothing that would make me critical of any of the UK lawyers involved in this.

33 Alessandra December 9, 2010 at 02:58

Thanks, Carl. I wish I could answer your interstate arrest warrant question, but I know very little of legal procedures anywhere. However, what I was thinking of are the million of cases I’ve read of or seen (real ones, but also the ones in television series–and, yes, I know they are fiction) where the prosecutor has a heck of a time putting together evidence to get the judge to issue a plain arrest warrant (without any “interstate” additional complications)… that’s what basically prompted my question. When you are not a lawyer, so many elements can seem ethically questionable because you don’t know how the system usually works in reference to finer details of all these procedures.

34 Carl Gardner December 9, 2010 at 03:07

These TV dramas have a lot to answer for! Seriously, though, they may have had to out together their evidence in Sweden – I don’t know. The idea of the EAW (and I think perhaps interstate extradition in the US) is to make sure only one state has to worry about the evidence, with the other state essentially just trusting the first, and handing the person over. Lots of people here oppose the EAW precisely because it gets rid of the evidence check in the requested state.

35 Matt Wardman December 9, 2010 at 11:52

On fictions about the EAW. From yesterday’s Independent:

“Q What happens next?

A First his lawyers will return to court next week to try to secure his release on conditional bail. Eventually there will be an extradition hearing at which the Swedish prosecution authorities will present prima facie evidence to show there is case for Mr Assange to answer.”

http://www.independent.co.uk/news/uk/crime/assange-could-face-espionage-trial-in-us-2154107.html

I think that’s just wrong.

36 Avinor December 9, 2010 at 15:06

Here is a google translation from the Swedish penal code section on rape (brottsbalken, 6 kap, 1§):

“Whoever by assault or otherwise by force or by threat of criminal offense, forcing a person to sexual intercourse or to carry or endure a sexual act which by virtue of the violation and the circumstances are otherwise comparable to sexual intercourse, is sentenced for rape to imprisonment for least two and not more than six years.

The same applies to a person carrying out a sexual intercourse or a sexual act under the first paragraph is comparable to sexual intercourse by improperly exploit that person by reason of unconsciousness, sleep, intoxication or other drug abuse, illness, physical injury or mental disorder or otherwise in view the circumstances are in a helpless state.

Is a crime referred to in the first or second paragraph with regard to the circumstances of the crime is considered less serious, be sentenced for rape to imprisonment for up to four years.

Are the crimes referred to in the first or second paragraph is considered gross, convicted of aggravated rape to imprisonment for at least four and no more than ten years. In assessing whether the crime is gross special consideration shall be, if violence or the threat of a particularly serious nature or if more than one person assaulted the victim, or otherwise participated in the assault or the perpetrator in the light of the approach or otherwise exhibited particular ruthlessness or brutality . ”

The original is here: https://lagen.nu/1962:700#K6P1S1

No “consentual rape” or “sex-by-surprise” here. Unfortunately there has been a lot of misinformation and misunderstandings in the English-language press.

37 Anonymous December 9, 2010 at 15:25

Heh, just noticed, Carl.

Love the Wire Coathanger Mobile avatar.

38 Matt Wardman December 9, 2010 at 15:29

@avinor

There’s a human translation over at Interpol, here, which I think is the same section:

http://www.interpol.int/public/Children/SexualAbuse/NationalLaws/csaSweden.asp

Rgds

39 FomaJuju December 9, 2010 at 20:53

The Australian crocodile of Assange – the hero or the criminal?

As the person, he has thrown down a challenge to hypocrisy of all governments, the state structures, certainly he is a Hero. As the leader among the network resources which have given the compromising evidence on the state organizations – the outstanding showman
It is the conflict of interests of the state, the rights of the person and a small group of old vegetables which have forgotten that they a microscopic part of this mad world.

The full text of article – the hero or the criminal?
http://newshe.msk.ru/?p=430

40 Avinor December 9, 2010 at 23:32

@Matt

Yes, but the Interpol translation is a bit out of date. But I found a recent translation at the Swedish prosecution service:

http://www.aklagare.se/PageFiles/346/Chapter%206.pdf

It also includes the section on sexual molestation (chapter 6, section 10) and unlawful coercion (chapter 4, section 4)

41 Alessandra December 9, 2010 at 23:49

“These TV dramas have a lot to answer for! ”

Heh, they do. But there were some “Law and Order” episodes which were simply magnificent. 🙂

As a lawyer, you must know that fact can be much stranger than fiction! This whole wikileaks saga as it is–and I believe we haven’t seen anything yet–is already much better than a lot of spy and hacker novels sitting on the shelves.

42 Chafik Ben Guesmia December 10, 2010 at 21:05

Good analysis. Can’t the political reason (or plot, conspiracy..) be as a sufficient reason to reject extradition in this case, as the legal proceedings did change jurisdiction in Sweden and no evidence of charges were provided nor to the court nor to Assange’s lawyer? How can a bail be denied and an application for extradition be accepted without establishing the facts and therefore without providing a basis for charges?

43 Matt Wardman December 10, 2010 at 23:11

@Chafik

Reversing the order…
> How can a bail be denied and an application for extradition be accepted without establishing the facts and therefore without providing a basis for charges?

As I understand it, because they are qualitatively different. The European Arrest Warrant process is not really “Extradition” – it is more like an administrative transfer; the hearing of the case is reserved for the requesting jurisdiction.

Some of us do not agree with that basis, and with the implied assumption that all courts in European countries are assumed to be equal (cf the comparison Carl made with Inter-State transfer in the US), but that is what we have in place, and the process is the process.

The merits or otherwise of the case itself are not considered, only matters of legal process.

The bail hearing considers the details of the case as part of the risk assessment of the suspect absconding.

>Can’t the political reason (or plot, conspiracy..) be as a sufficient reason to reject extradition in this case, as the legal proceedings did change jurisdiction in Sweden and no evidence of charges were provided nor to the court nor to Assange’s lawyer?

Again, AIUI the political plots etc (e.g., if the Swedish legal process were believed to be being manipulated by political pressure from the US) could be relevant, but only in so far as they affected legal process, and the judge appeared to be very sceptical that the Swedish process would be open to such alleged manipulation !

I can see that it could be a legal process problem if charges were seen to be very unlikely to be to be laid in Sweden (ie essentially that no real enquiry exists), but a European Arrest Warrant can be issued in pursuit of enquiries before charges are laid.

(IANAL – I am anal but not a lawyer)

44 Matt Wardman December 10, 2010 at 23:14

(I’m not getting into the issue of whether the US/UK Extradition treaty is itself more like an administrative transfer process after the 2003 revision …. ahem).

45 Chafik Ben Guesmia December 10, 2010 at 23:55

@ Matt

Thank you ! That was quite enriching.

46 Unity December 11, 2010 at 01:05

Matt:

You’re correct in thinking that that the Swedish prosecutors do not have to provide prima facie evidence to justify the charges against Assange, as we would understand the term.

EAW’s are more of an administrative transfer and can be used only to secure the extradition of an individual who has absconded after being convicted, except in cases where they have been convicted in their absence, or where charges are to be preferred against an individual.

What the Swede have to show, therefore, is that intend to charge Assange with these offences and have reasonable grounds to do so, which is a somewhat less stringent requirement than that of producing prima facie evidence.

On the technical aspects of one of the the allegations, my understanding is that, in general, you initiate a sexual act with a sleeping partner at your own, perhaps considerable, risk.

In the case of rape, the offence is committed at the point of penetration, if this is done without consent, and the offence is not vitiated by consent given after the fact, however freely. That said, cases hinging on this point are extremely rare but only because it is unsual for a partner who consents after the fact to lodge a complaint.

47 Alessandra December 12, 2010 at 00:30

BREAKING

Just released at the Daily Mail:

WikiLeaks founder Julian Assange’s lawyer says he has seen secret police documents that prove the whistleblower is innocent of rape claims made against him by two women in Stockholm.

Björn Hurtig, who is representing Mr Assange in Sweden, said the papers, which form part of the official Swedish investigation, reveal both women had ‘hidden agendas’ and lied about being coerced into having sex with Mr Assange, 39.

Australian Mr Assange met both women at a seminar in Stockholm last August. After having intercourse with each, at different times, he faced sex charges – which he strenuously denies – that were withdrawn and then reinstated.

Mr Hurtig said in an exclusive interview from his Stockholm office: ‘From what I have read, it is clear that the women are lying and that they had an agenda when they went to the police, which had nothing to do with a crime having taken place.

‘It was, I believe, more about jealousy and disappointment on their part. I can prove that at least one of them had very big expectations for something to happen with Julian.’

48 truth December 12, 2010 at 01:01

carl@headoflegal.com Are you a Lawyer?

“The charges of rape and sexual assault are serious ones,”

thats considered libel, as Assange has yet to be charged. and the pending charge is likely to be, from what I’ve heard, “surprise sex”. some obscure swedish law for having sex without a condom (albeit consensual sex). implying that he raped somebody is damaging to his character as without warrant..

I politely ask you cease and desist from your illegal actions.

thanks

49 Matt Wardman December 12, 2010 at 11:06

>Just released at the Daily Mail:

Link? I can’t find anything at the Mail, though others are reporting it.

50 Matt Wardman December 12, 2010 at 11:12
51 Carl Gardner December 12, 2010 at 13:08

@truth:

Not a sensible comment. It’s quite true he’s not been charged, as I keep pointing out to others all over the internet, and make clear in these comments. My references to “charges” in the OP was I accept a slip of the keyboard, but only easily done in commenting on this complex case on to which I have been genuinely trying to shed light.

I have not implied Julian Assange is guilty of rape, and I don’t think you should say I have, accuse me of unlawful conduct or cast professional aspersions on me.

If you want to comment here, do so more reasonably.

52 Carl Gardner December 12, 2010 at 14:09

@Unity:

I don’t think the Swedes do have to show they intend to charge him, or even that they have reasonable grounds to suspect him (which would be a sort of evidential test).

There are only three matters the court needs to determine in order to determine the extradition issue, as I explained above: (1) is he wanted for an extradition offence; (2) is extradition “barred” (in this case, because politically motivated and (3) is extradition compatible with human rights.

The bail pending extradition or discharge issue is legally distinct, and does depend to some extent on the strength of the evidence.

53 Alessandra December 12, 2010 at 17:08

What Hurtig says seems quite plausible to me at this stage (the sexual misconduct allegations were at first the byproduct of jealousy and other unethical pursuits coming from an outraged, “lover scorned” experience).

However, after the case was dismissed, that’s when things get suspicious:
“But Sweden has an internally entrepreneurial public service culture, and Marianne Ny, a prosecutor attached to a special crime development unit in Gothenburg, on the other side of Sweden, took the case. She had been persuaded to by Claes Borgstrom, a member, like [Ms. A], of the Social Democratic Party – indeed, an ex-government minister, and gender equality ombudsman.

Ny proceeded with the case, the courts permitted Assange to come to London to work on the ”cablegate” release, and Ny and Assange’s lawyers differ over who made it impossible for an interview to take place, such that a European arrest warrant was finally issued.”

If [Ms. A] had belonged to the enemy political party of Claes, would he have taken up the case? I have my doubts. Then there is the counter-pointing fingers for the “impossible to interview Assange” imbroglio, the whole Interpol involvement, and the timing of the arrest, issues which have been discussed at length in the media and which are all suspect.

With the little information at hand, however, it sounds like if the CIA had wanted to do a honey-pot sting, they would have set Assange up in a way that would make it difficult for him to defend himself. The way this case stands with all these accusation holes and loony charges, albeit the large population of incredibly dim-witted folks in intelligence agencies, it makes one wonder if they could actually reach such a low point in their modus operandi. Always possible, we must say. It appears, though, that the powers that be just jumped on the wagon of opportunity to get a hold of Assange and let him languish a bit behind bars, while not initially involved in setting up the false charges in the first place. As to the remark in the media that Sweden is not a “banana republic,” heh.

To twist even more the convoluted tale, I also saw a report that one of the women (presumably [Ms. A]) was making the prosecution more difficult because she has been more recently refusing to cooperate with the prosecutors. Although only reported at rumor level, this strengthens the case for Hurtig’s claim.

Edited to anonymise complainant. I know her name is all over the internets, but she may entitled to anonymity under Swedish law, and anyway I support anonymity for complainants in sex offence cases – Carl

54 Matt W December 12, 2010 at 18:29

What we really need is for Assange to start suing people for defamation under English jurisdiction; that way we’ll get the CIA on side for our Libel Reform Campaign…

55 James Medhurst December 12, 2010 at 21:39

My understanding of the UK Sexual Offences Act is that to have sex with someone without a condom when they insist that a condom should be used would be rape. I do not think the position in Sweden is likely to be any different. There is no such thing in Sweden as an offence of ‘surprise sex’. If anyone disputes this, I would be very grateful if they could provide some authority for this proposition.

56 Haze December 13, 2010 at 08:55

You people miss the point. The trial in Sweden will be a farce and may not go ahead. What will is US attempts to extradite him from Sweden – that’s the honey pot. He’ll be charged under some distant law that’s never convicted anyone, there’ll be a reinterpretation of the constitution in relation to the free speech rights, he’ll be given an unfair trial, by media, akin to an OJ Simpson showcase and then sent to prison for some riduculous length of time – like 500 years. That’s the fear in relation to his extradition to Sweden.

57 txwikinger December 13, 2010 at 19:01

1) What about double jeopardy? The complaint was first dismissed in Stockholm and then the lawyer of the two women went court shopping to another court in Goetebourg. There could be a case made that this would fall under the principle of double jeopardy.

2) So far there is no charge against J.A. Currently, there is only a request to be interviewed. This interview could without any problems be conducted in the UK. A lengthy extradition fight would not be necessary. Should after the interview a charge be filed, consideration of extradition becomes more sensible.

3) The Espionage Act 1917 includes capital punishment. In fact the FBI site refers to six Germans that had been executed under the Act after entering the USA to commit acts of sabotage in 1941. The possibility of the case under which extradition is sought could only be a holding case in order to extradite further to the USA with the possibility of capital punishment would fall under Art. 39 in regards of Human Rights. – It would be interesting if Sweden has a similar requirement as the UK in their extradition law that the country that provided extradition before must consent to further extradition. And if so, how a consent from the UK would be given.

4) What is the burden of proof in all these questions. In a criminal case usually the burden is very high (i.e. beyond reasonable doubt). Would Sweden have to proof beyond reasonable doubt that there would not he any further extradition, or that there are no political motivations behind the extradition request (in particular in conjunction with the fact that the lawyer representing the two women in Sweden is a Swedish politician who has gone to procure the extradition request via court shopping).

I am not sure if this extradition request is really so clear cut and easy in particular due to the fact that there are allegation of illegal CIA activity inside Sweden (http://www.hrw.org/en/news/2006/02/20/europe-pending-questions-cia-activities-europe) in conjunction with Sweden having handed over two Eqyptians to the CIA for rendition.

58 Carl Gardner December 13, 2010 at 19:37

@txwikinger:

Double jeopardy can in principle be a bar to extradition under section 12 of the 2003 Act,

http://www.legislation.gov.uk/ukpga/2003/41/section/12

but it would only work if Assange had actually been prosecuted and acquitted previously:

http://www.bailii.org/ew/other/EWLC/2001/267(2).html#para6

Since he’s never been charged or acquitted, section 12 on double jeopardy doesn’t apply.

His team may argue that the warrant is an “abuse of process”, in other words, that although double jeopardy doesn’t apply, it’s still unfair. There are potentially two bites at arguing that – as a preliminary point prior to the extradition hearing proper or later, as part of the extradition hearing proper, as a human rights point, i.e. extradition would breach human rights because the extradition proceedings themselves and any prosecution in Sweden are an abuse of process in breach of the article 6 right to a fair hearing.

On consent to further extradition from Sweden, article 28.4 of the European arrest warrant Framework Decision would require Sweden to get the UK’s consent to any extradition “on” to the USA. I think the CPS would give that consent, and I’d normally expect the CPS to consult the Attorney General about it, with the DPP making the actual decision. If that happened here, it might well focus critical attention again on the “role” of the Attorney General.

As far as burden of proof is concerned, extradition “on” to the USA simply isn’t an issue in the extradition proceedings – Sweden does not have to show it won’t “extradite Assange on” to the USA. So no burden.

As far as political motivation is concerned, as I wrote in the original post, I think it’s unclear what the burden and standard of proof is, except that Assange certainly has to bring at least some objective evidence that the case is really about his political views, or that they cause unfairness to him. If he can’t, then I don’t think Sweden needs to prove anything. In that sense at least what’s called an “evidential burden” of proof is on him. If he could put forward some cogent, credible evidence (as opposed to just assertion) that all this is political, or that Swedish justice would be unfair to him because of his politics, then Sweden might well effectively have to prove to the district judge that it’s not so.

59 Alessandra December 14, 2010 at 06:47

Lady Ludford MEP, the Liberal Democrat European justice and human rights spokeswoman, claimed the arrest warrant system, which she said she supported, was being used by Sweden to carry out a fishing expedition. Sweden had yet to formally charge Assange with any offence.

In a letter to the Guardian, Ludford wrote that past cases showed that it was “not a legitimate purpose for an EAW to be used to conduct an investigation to see whether that person should be prosecuted”. She added: “Normal cross-border cooperation on collection of evidence or interrogation of suspects called ‘mutual legal assistance’, using for example video-conferencing or a summons for temporary transfer of a suspect, should be used when more appropriate. “I urge the UK courts to refuse to allow the Assange EAW to be a fishing expedition without a pending actual prosecution. EU rules should be properly respected so that the integrity of the European arrest warrant process is protected.”

http://www.guardian.co.uk/media/2010/dec/13/assange-in-court-appeal-release

60 Carl Gardner December 14, 2010 at 15:36

@Alessandra:

Yes, an interesting letter from Baroness Ludford:

http://www.guardian.co.uk/media/2010/dec/14/european-arrest-warrant-julian-assange

I’ve some sympathy with what she says, but I think she’s going too far. She says

the EAW is restricted to “the purposes of conducting a criminal prosecution”, which must mean imminent charge followed by trial.

but this is an Anglocentric approach, assuming all systems reflect our own. It’s not the “cosmopolitan” approach required by the Asztaslos case she cites:

http://www.bailii.org/ew/cases/EWHC/Admin/2010/237.html

You have to make some allowance for foreign systems seeing procedures in other than our standard framework of suspicion-arrest-questioning-charge. What, for instance, would Baroness Ludford recommend a prosecutor to do in a system which, hypothetically, does not permit charge unless a person has been questioned first (and so given their side of the story)? If there is such a system (and I can imagine it sounding attractive to a lot of liberal-minded people) then prosecutions would absolutely depend on arrest and detention for questioning.

In any event that case suggests that the court will not “look behind” the warrant. if the Swedes say they want to prosecute Assange, in other words, the court will be slow to allow the defence to argue that they don’t, really.

Finally, “fishing expedition” is one of those phrases connoting disapproval that can easily be misused. I don’t think Baroness Ludford can properly accuse the Swedish prosecutor here of merely fishing, since she does seem to have some evidence in the case to give rise to her suspicion.

61 Alessandra December 16, 2010 at 05:10

Assange’s lawyers told the newspaper that British prosecutors told them it was the Swedes who were opposing bail for Assange — which sounded logical, since Sweden wants him for questioning on sex-crime allegations.

Assange’s lawyer told Bloomberg News that Sweden didn’t ask Britain to appeal the judge’s ruling and it was “confusing” as to why British prosecutors decided to appeal.

“The question is, why did they make this decision if they said yesterday that they were acting on behalf of the Swedish authorities?” Mark Stephens said. “It’s fair to say that this is all a bit fishy. The whole case reeks.”

This latest development comes amid reports that the U.S. is closer than ever to indicting Assange under the controversial and archaic Espionage Act and seeking his extradition. The U.S. government has been angered by his organization’s recent release of hundreds of secret diplomatic cables, which comes months after the site leaked classified military documents on the wars in Iraq and Afghanistan.

“From what I’ve heard, the impetus to get an indictment is growing rapidly,” David B. Rivkin Jr., a Washington attorney who is an expert on constitutional law and a former Justice Department official, told AOL News today.

Rivkin, who wrote an article in USA Today about how the Espionage Act can be used to prosecute Assange, said he is not surprised that efforts are being made to keep the WikiLeaks boss in jail.

“The decision [to appeal the bail] was made by the British prosecutor,” Karin Rosander, director of communications for the Swedish prosecutor’s office, told the Guardian.

“I got it confirmed by the CPS this morning that the decision to appeal the granting of bail was entirely a matter for the CPS. The Swedish prosecutors are not entitled to make decisions within Britain. It is entirely up to the British authorities to handle it,” she said.

On Tuesday it was thought the appeal had been lodged by Swedish prosecutors with the CPS acting “merely as its representative,” the Guardian said.

In response to questions from the Guardian, the CPS confirmed what Rosander said, stating: “In all extradition cases, decisions on bail issues are always taken by the domestic prosecuting authority. It would not be practical for prosecutors in a foreign jurisdiction … to make such decisions.”

http://www.aolnews.com/2010/12/15/its-uk-prosecutors-not-swedes-who-want-assange-in-jail/

=============
On the other hand, the man who is suspected of murdering his newlywed wife is out on bail…

Assange has been held in prison for a week without having been charged in Sweden. If his encounter with the women had taken place in England, I also read that by British law, however, the government could not have held him for this long without charging him of something–unless he had been suspected of being involved in terrorism. Is this correct?

And the solitary confinement? If he loses the bail question, could the UK just keep him in solitary confinement for months or for years while the extradition process winds its way?

And is it the judge or the prison warden who decides who can have access to television or correspondence or the internet while in prison?

62 Chris Jones December 16, 2010 at 10:27

Can one country (e.g Sweden) legally have someone extradited to face charges and then allow them to be extradited to a second country (e.g. USA) on unrelated charges? Wouldn’t this be an injustice?

63 Anonymous December 16, 2010 at 12:19

@chris jones

I believe it requires them to get permission from the first country for the further extradition. And I’m assuming that that permission would be from the same Court which made the first decision.

I’m not sure what the position is if the suspect is released without charge in the first extraditing country after their due process has finished – ie if Assange is sent to Sweden then the case is withdrawn.

I’d expect that he would be treated as a free person who happens to be in Sweden, and so would be subject to the standard Swedish procedures, as the process which had started with the extradition from the UK was finished. I don’t believe that he would have a right to be returned to the UK as a priority over a new request.

IANAL.

@carl
Can we get rid of this spam from THE? He’s comment dumping across several blogs.

@alessandra
>And the solitary confinement? If he loses the bail question, could the UK just keep him in solitary confinement for months or for years while the extradition process winds its way?

He didn’t lose (but he might still on Appeal). Keep him in confinement- probably, but not in solitary unless there are *very* good reasons. Typically that would be Assange being a serious physical danger to himself or his co-detainees, or at risk, and I don’t think that is likely to be the case.

Matt

64 Chafik Ben Guesmia December 16, 2010 at 14:52

I would like to know if extradition to the USA will be less or more difficult from UK Vs. to Sweden from the UK ? I am referring to both European and UK-USA conventions, treaty…

65 Sebastian December 17, 2010 at 01:54

Here is what I found in a library of UK House of Commons:

“The European arrest warrant in practice”

” … 1
Background
1.1
Introduction
The European Arrest Warrant (“EAW”) has replaced all the previous instruments concerning extradition between EU Member States. The warrant is a judicial decision by a court in one Member State to require the arrest and return of a person who is in another Member State …”

Please note ” … The warrant is a judicial decision by a court … ”
Was there any judical decision by a COURT (sa opposed to PROSECUTOR) taken in Sweden in this case?

Also
” … It applies where the person whose return is sought either faces prosecution for a criminal act where the maximum sentence is 12 months imprisonment or more, or has been sentenced to a prison term of at least four months. …”

Is Mr. Assange FACING PROSECUTION since no charges have been laid yet?

Source:

http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04979.pdf

66 Carl Gardner December 17, 2010 at 02:12

Sebastian,

On the “court” point, a Swedish court did indeed approve the EAW,

http://www.nytimes.com/2010/11/19/world/europe/19assange.html

and Assange failed in his appeal to the Swedish Supreme Court.

http://www.thestar.com/news/world/article/900250–swedish-supreme-court-denies-julian-assange-s-appeal

On the question whether he is wanted “for the purpose of a prosecution”, the relevant British case is Asztaslos, mentioned above:

http://www.bailii.org/ew/cases/EWHC/Admin/2010/237.html

which says first, that you need to take a “cosmopolitan” approach to this question – not assuming that the lack of a formal charge as we’d expect in English law means a prosecution is not in view – and second, that courts should be slow to “look behind” an EAW if it says on its face that the person is wanted for the purpose of a prosecution.

I expect the defence to make an Asztaslos argument at the main hearing, but it’s by no means the slam-dunk it might appear at first blush. I doubt they win on it, or any other argument, frankly.

I think his defence will be hard-fought and admirable, and of course you never know – but I expect him to be extradited in the end.

67 Alessandra December 20, 2010 at 15:44

Basic “how things work” question: in a criminal case, if a prosecutor obtains evidence that someone committed a crime, are they obliged to prosecute the individual, or do they have a choice to leave it aside? Can they decide which cases they will prosecute (among the cases for which they believe they have criminal evidence tied to a particular suspect)?

68 Matt Wardman December 20, 2010 at 16:17

Alessandra

I’ll leave the technicalities and wrinkles for Carl, but basically on more serious charges the police submit an investigation/evidence file to the Crown Prosecution Service, who decide whether to pursue it based on the strength of evidence, the likelihood of prosecution etc.

69 nemo December 20, 2010 at 17:18

The Swedish Prosecutor posted a “clarification” ca 24 h ago at
http://www.aklagare.se/In-English/
It also points out that the door is actually not totally closed to
further extradition to other EU countries.

70 Alessandra December 20, 2010 at 17:36

Thanks, Matt.

71 nemo December 20, 2010 at 17:37

Carl,

After statements were reported in the media regarding
possible on-going extradition from Sweden to US requiring UK
approval, the Swedish Prosecutor posted a “clarification” at
http://www.aklagare.se/In-English/
It points out that the door is actually not totally closed to
further extradition to other EU countries in certain circumstances,
without asking UK.

Might I suggest you write a piece on this issue as a new topic, and also to gather up the comments getting lost above on the question
of UK giving approval for extradition to US (directly or from Sweden).

(sorry the above #19 sent itself while editing – please remove it)
(and why is another comment not getting through?)

72 Sebastian December 21, 2010 at 04:23

Some musings on the subject:
Judging from the arguments put above, Mr. Assange is likely to be extradited to Sweden, where almost certainly he will face US extradition request. Sweden has a long history of kowtowing to world powers, including Nazi Germany (during WW2 Sweden allowed German merchant ships to use Swedish territorial waters to run Allied blockade – but only until it became clear that Germany will loose the war). So it appears the extradition of Mr. Assange to USA is a foregone conclusion. Judging from the statements of several high ranking US politicians (including Vice-president) it seems that Mr. Assange’s chances of having a fair trial in the USA are about as high as that of a Russian dissident having a fair trial in the former Soviet Union.
Recently, an Australian TV channel (SBS) screened a documentary containing a perfect illustration of governments’ technique of silencing inconvenient people using (or should I say abusing) justice system: During WW2 British warship HMS “Barham” was lost. British government wanted to keep this fact secret, so when a Scottish psychic revealed it during a public session, she was charged, sentenced and imprisoned on basis of (wait for it!) Witchcraft Act 1735. These days witchcraft has apparently been replaced by “sex crimes”.
Meanwhile, the prevailing mood amongst my interlocutors here in Melbourne has been succinctly put by one of them as follows: “It’s a sad day for Justice when a man can be arrested, kept in solitary confinement and almost certainly extradited solely on the basis of sour grapes of two sluts, who willingly jumped into bed of a celebrity stranger at the first opportunity, then boasted about it publicly, turning sour only after learning that they were both bedded by the same man at the same time.”

73 Matt Wardman December 21, 2010 at 05:37

Sebastian

I think the Sweden comparison pushes it a little far; the country is not currently sandwiched between two superpowers at war with each other. Having said that, it’s quite possible that the US will find (or use creatively) a charge for Assange.

It sounds as if using the Witchcraft Act creatively was what the UK authorities did – Helen Duncan had been talking publicly about a battleship destroyed by a German U-Boat which Berlin had not found out about, and about which thousands of families were keeping quiet; I find that acceptable in wartime.

I love that Helen Duncan the dodgy medium has the primary Wiki article, and that the NZ MP has to make do with Helen Duncan (politician).

I’ll leave your interlocutors to their fulminations, but have you seen the recent more detailed alleged reporting of leaked docs in the Guardian.

http://www.guardian.co.uk/media/2010/dec/17/julian-assange-sweden

Whatever we think, Julian Assange getting cross about leaked documents is a belly-laugh.

74 Alessandra December 21, 2010 at 07:19

‘Meanwhile, the prevailing mood amongst my interlocutors here in Melbourne has been succinctly put by one of them as follows: “It’s a sad day for Justice when a man can be arrested, kept in solitary confinement and almost certainly extradited solely on the basis of sour grapes of two sluts, who willingly jumped into bed of a celebrity stranger at the first opportunity, then boasted about it publicly, turning sour only after learning that they were both bedded by the same man at the same time.”’

It is a sad day indeed. Not only sad, but infuriating. What is particularly infuriating is that Mr. Assange is being framed (as we assume at present) by two women who are perverting laws and procedures which are designed to protect and give justice to real victims of rape and accompanying emotional bullying. Using these laws and measures in a twisted way to make a false accusation will then tarnish future or current victims, when their cases are evaluated or become public.

However, my money is on the table that none of this would have happened (arrest, extradiction request, etc) if it had been Joe Shmoe, and not Julian Wikileaks Assange.

What I take issue with in your comment, however, is the number of sluts in this case. It’s not two, but three.

Perhaps it’s time people started criticizing women AND men for thinking and behaving like sluts, instead of normalizing a risk-infested, destructive and harmful way of thinking about sex, devoid of any moral or committed relationship framework.

Thinking and behaving in a “slut”-like way is terrible and irresponsible, and, more importantly, contrary to macho jingoism, that certainly also applies to men.

It’s this issue of the normalization of reckless, loveless, respect-less sex–euphemistically called ‘casual’ sex– that liberals (US meaning) anywhere are too cowardly and devoid of ethics to address, whether it applies to men or to women.

All the three individuals in this case (two women and one man) have harmful views and behaviors about sexuality and personal relationships. It’s not merely the “bodies of women” that are destroyed with such an ideology, it is the bodies AND minds of women AND men.

And yet, this is the model that is being consistently pushed in just about every television show and movie, being taken up by a large number of people, young and old. I believe the damage that this does to the individual lives of millions of people is being completely ignored by a good part of society.

The detrimental behaviors that led to this false rape case (as we assume at present) are something no one cares to face. Not to mention that it then devolved into a profound legal mess.

Correct me if I am wrong, but I bet that none of your “interlocutors” slamming the “slut” label on the women do the same when it refers to men being promiscuous or engaging in marriage-less or commitment-less sex. This is what I have seen in similar “interlocutors” elsewhere: a swarm of male sluts attacking two women for what the former (and so many of their buddies) are themselves.

75 Carl Gardner December 21, 2010 at 23:53

@Alessandra:

On your point about obligations to prosecute, Matt’s right about the position here. In England and Wales there is no “obligation to prosecute”. This was a point well made at the time of the BAe systems case by Lord Goldsmith as I recall.

In some countries there is an obligation to prosecute if the prosecutor thinks there is enough evidence – Germany is I think an example.

On your other point, I certainly don’t assume it’s a “false rape” case. Julian Assange is entitled to be presumed innocent until proved guilty, but that doesn’t mean assuming the allegations are false. On the contrary, I think it’s important that rape allegations be taken seriously by everyone, and these allegations the same as any others.

I don’t say the allegations are true, of course – it would wrong, and anyway I can’t know. But nothing I’ve seen or heard makes me think there’s any good reason to just dismiss them at this stage as false, trivial or undeserving of proper investigation.

76 Carl Gardner December 21, 2010 at 23:54

@Nemo:

Sorry – I didn’t realise comments weren’t getting through, and I’m not sure why not. All approved now.

77 Alessandra December 22, 2010 at 00:33

“On your other point, I certainly don’t assume it’s a “false rape” case. Julian Assange is entitled to be presumed innocent until proved guilty, but that doesn’t mean assuming the allegations are false. On the contrary, I think it’s important that rape allegations be taken seriously by everyone, and these allegations the same as any others.”
============
When I wrote “we” (and maybe I should have used “I”), I did not mean to imply that all the people participating on your blog were part of this “we,” or agreed with me, but I was referring to the group of people around the world who, like me, question the veracity of these allegations, this “we.”
Rape allegations are always a serious matter, because rape is a serious matter. It is exactly for this reason that false rape allegations are particularly damaging both to falsely accused people, as well as to real rape victims.

“I don’t say the allegations are true, of course – it would wrong, and anyway I can’t know. But nothing I’ve seen or heard makes me think there’s any good reason to just dismiss them at this stage as false, trivial or undeserving of proper investigation.”
============
I am speaking from my perspective as someone who has read the media, nothing more. And I strongly feel the rape allegations are trumped up and highly irresponsible. Obviously that is my assumption (based on deduction). More information could change how I see this case, but at the moment, we simply disagree very much on the nature of the allegations.

78 nemo December 22, 2010 at 02:15

Carl

thanks – I had succeeded by splitting it into shorter pieces,
so now there are multiple copies which you may care to
clean up (as well as #19 above).

Also the rest of the reply from Anders has appeared.
This is in the CPS thread which probably few still look at now;
however we are discussing the roles of the prosecutor in Sweden and obligations to investigate and how it ends up if the victim is uncooperative.
I’m hoping that he and others will help to fill in more details,
or tease out the pertinent questions.
Might you have some way to move it to a more suitable title?

79 Alessandra December 23, 2010 at 07:20

an interesting short article on the EWA (excerpt):

…this case clearly demonstrates that, under the eaw, the British courts have no right to take into account the evidence against an accused Briton or foreign guest in Britain. It is a clear case of the once-sovereign British law being trumped by EU imperial law.

In fact, under the all-powerful eaw, EU law even trumps the sovereign law of any nation to which a foreign national is subject in his own country, if that foreign national is charged under EU law while resident in Britain.

Speaking to a crowd of journalists from around the world, Member of the European Parliament Gerard Batten said: “[Under the eaw] extradition has now become ‘judicial surrender’ and extradition reduced to a mere bureaucratic formality. British courts have been emasculated of their ability to protect the rights of accused persons from unjust arrest and imprisonment in relation to the eaw and their extradition to any EU member state.”

Mr. Batten further said that what is particularly sad is that Britain, the very home of the defense of freedom and the right of speech, is simply not allowed to hear prima facie evidence in an allegation before granting extradition to another EU member state.

http://www.thetrumpet.com/index.php?q=7777.6360.0.0

80 Alessandra December 23, 2010 at 20:58

For an excellent recap of many, if not all, procedural and political problems with this case, there’s a new article:

http://www.smh.com.au/technology/technology-news/the-truth-lies-trapped-in-a-web-of-intrigue-20101223-196mv.html?from=smh_sb

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