Julian Assange is in court again today – this time, at last, for the substantive hearing about his extradition. I wrote before Christmas about the Extradition Act 2003 and the issues the court will resolve:
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.
We were given a guide to the defence’s probable arguments in this draft skeleton argument prepared in January (names of complainants redacted by me):
Assange Draft Skeleton Argument
That’ll have been further developed now, but it shows us they’ll be relying on all the bulleted points I mentioned, plus an abuse of process argument which has several aspects: it’s an abuse, they’ll argue, because the European Arrest Warrant is defective since the prosecutor is not the appropriate judicial authority to issue it, because Julian Assange is not “accused” of an offence as required by the legislation since he is wanted only for questioning, and because the Swedish authorities have acted improperly and not given him proper disclosure of what he is suspected of.
The Extradition Act seems drafted in a way that confines the hearing to a strict sequence – a straitjacketed sequence, even – and to force the district judge to consider first whether there is an extradition offence, then whether extradition is barred because of an underlying political motive, and finally human rights questions. That sequence is mucked up a bit by the abuse of process arguments, which I’d guess the district judge may take first. And the judge could I suppose decide to hear argument on all points before determining any of them. But the clear legislative structure should give us a clue to what’s happening in the hearing. If at some point later today or tomorrow the defence is making its case that extradition is barred under section 11, then it may mean it has lost on the question of whether Assange is wanted for an extradition offence; if it gets to its human rights arguments, it may mean it’s lost on everything else.
As I’ve said before, I expect this hearing to end with an order to extradite Julian Assange to Sweden. If I’m right, we can look forward in the Spring to an appeal to the High Court under section 26 of the 2003 Act.