Julian Assange’s extradition hearing

by Carl Gardner on February 7, 2011

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.

{ 11 comments… read them below or add one }

1 Nicola Weaver February 7, 2011 at 14:38

Would he be guaranteed a fair trial outside the UK?

Is there not reasonable doubt that he WOULDN’T?

Of course there is.

Thus, he shouldn’t be extradited.

FYI, all the Wikileaks videos are on this hub:
http://wikileaks.videohq.tv

2 Carl Gardner February 7, 2011 at 14:52

Okay, Nicola – but what basis is there for suggesting he wouldn’t get a fair trial? I worry a bit that your approach just depends on an assumption that foreign legal systems are automatically worse than Britain’s. Many are clearly very much worse, but Sweden isn’t the most obvious example.

3 nemo February 8, 2011 at 00:20

One of the tweets suggests all points are being heard first:
“Judge says he will not make a decision today.”

Is your prediction based on familiarity with the EAW hearing for ‘innocent’ British man Andrew Symeou, where the UK judge was not concerned about improper conduct by the Greek police and incorrect process by the authorities, nor arguments about ECHR concerns?
A very sobering case, and illustration of the injustice of the EAW system, and probably typical of how most cases are rubber stamped.

One point it makes very clear by comparison is how very much Assange is entangled in political motives – Swedish party politics, international politics at a constitutional/sovereignty level and feminist/sexual politics.
So why is this not in their arguments?
Can you please comment on how specific and proven this needs to be to argue about “political motivations”? Any examples?

And similarly for the huge “prataomdet” campaign on twitter and
the web and newspaper articles, all of which was organised by a collusion of media writers and editors, and close friends of one of the two women in the case, and possibly public relations companies?

4 nemo February 8, 2011 at 05:58

Some of the arguments put by the prosecution today (reading the reported tweets with care) seem quite disingenuous!

Firstly, as they well know, currently the laws in Sweden are based around concepts of ‘coercion’ or ‘helplessness’, hence their description of alleged events in terms of ‘consent’ do not really apply.
See the discussion of these issues in the English summary chapter and the English abstract of the:
SOU 2010:71, “Proposed amendments to the legislation on sexual crimes (27 October 2010)”

Even this recent statement describing an alleged act in this case shows how it gets down to fine points of law:
“It is a complicating factor that this person when she wakes up in one way or another gives her consent,” said Nils-Petter Ekdahl, a judge and expert on Sweden’s sex crimes legislation. “Does the consent also apply to what happened when one was sleeping? This question has not been tested by the justice system.”
(As one of the experts behind SOU 2010:71, as is Marianne Ny, he should know it is not consent-based yet either…)

Secondly, regarding the “strong intent to prosecute”, they only seem to demonstrate strong determination!
Their double-negative “cannot assume only wanted for questioning” carries as much weight as “it is entirely possible that after questioning he could be charged”, something which would apply to just about any person who might be extradited for questioning on a fishing expedition…

The prosecutor has an obligation to objectively judge that a case is likely to lead to a conviction (not simply that there is a prima facie case), before charging. Given what is known from all the reported statements and leaked reports etc., this looks doubtful.
The whole case seems to be instigated and driven by the prosecutor and by Claes Borgström; the women are as much dragged into this as Assange and may well not cooperate and if they do not do so and present evidence in court then the case collapses.

Much greater doubt on the prospect of conviction (hence grounds to charge, hence to extradite) is cast by two landmark rulings made by the Supreme Court of Sweden overturning two rape convictions, the details of which seem applicable to this case.
The rulings, B 1013-09 and B 1867-09, issued on 3 Jul 2009 are reported in English at http://www.thelocal.se/20448/20090703/

Sweden’s Chancellor of Justice praised them for demanding higher standards of evidence. (In a Swedish Radio report however, Director of the prosecutors Nils Rekke was astonished).

“Testimony from the victim of an alleged rape is not sufficient to secure a conviction without additional supporting evidence, Sweden’s highest court ruled on Friday.

In overturning two rape convictions from 2008, the Supreme Court (Högsta Domstolen) ruled that a victims testimony ought not to be given more weight than that of an accused rapist if there is nothing else indicating that one of them is more credible than the other.

According to the court, in order to secure a rape conviction, prosecutors must also present forensic or some other type of evidence to support the plaintiffs testimony, something which was lacking in both cases.”

… … …

“When discussing the incident later, the girl admitted that she didn’t consider the incident to be a case of rape at the time.

The court also found that it could not be shown beyond a reasonable doubt that the man had forced himself on the girl using violence, as there was no physical evidence indicating violence had been used and certain details of the girls account raised doubts with the court.”

Please read the full article for more points, and look for and an analysis by Lena Holmqvist at Uppsala Uni. (in Swedish).

5 James Medhurst February 8, 2011 at 12:56

Nemo,

Are you saying that this is a conspiracy orchestrated by the United States and Sweden against Assange or are you saying that this is a conspiracy orchestrated by women against men? I suggest that it is difficult for it to be either but particularly difficult for it to be both!

6 anonym February 9, 2011 at 01:58

I attended the public viewing zone in this case, both on the 7th and on the 8th of February and heard the arguments of both sides.
I have to say that it should be clear to everyone that it is obvious Julian Assange’s case wasn’t handled the way other cases like this are usually handled in Swedish jurisdiction. And that’s a basic human right to be handled equally.

I think that’s the best reason to deny the extradition to Sweden. There is no proof the swedisch would do better job now.

(@ Carl Gardner: that’s actually the reason why I think swedisch jurisdiction is not to be trusted in this case. I don’t live in the UK so don’t accuse me of being too patriotic like you accused Nicola Warner. Actually I am really wondering how you can write such stuff and make predictions. It seems you are not well informed or your mind is not clear toward this case. So I am really disapointed by this site.)

7 anonym February 9, 2011 at 02:00

sorry if my english is weird but i think it is understandable

8 Mikael Bertilsson February 9, 2011 at 09:30

The article mentions an analysis written by Lena Holmqvist of Uppsala University. I can not find it. Does anybody have a link to it? Thanks!

9 nemo February 9, 2011 at 14:19

Mikael,

that was actually in my long ‘comment’ rather than the article.
The link to the analysis by Lena Holmqvist is:
http://www.dagensjuridik.se/2009/09/vad-sager-egentligen-hds-valdtaktsdomar

There was also an item in Swedish at:
http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=2946680

I’d most welcome your comments or summary, since machine translations only go so far, particularly when legal terms are involved.

10 nemo February 9, 2011 at 15:14

anonym,

Please stick around; whatever Carl’s views, he seems to tolerate others in a gentlemanly way. This site was more lively in mid Dec.
As I see it, he was reading Nicola’s assertions in a formal logical way, and was trying to draw out a more reasoned argument.
(Perhaps by “outside the UK”, Nicola had in mind “Sweden, and USA if he gets there”.)

Having followed the live twitter of the two days, and then looking at some of the media reporting, it is hard to get a coherent view of how it all went in terms of the actual legal arguments (as put in the numerous documents of Assange’s team) and in terms of the emotional impact of the cross-examination, which seems to focus on creating a lot of drama on certain points out of proportion to the whole argument.

To pick one example, on the matter of the deleted blog posts, it seemed to end up deflated on the minor point of possible reasonable motives for deleting them.
How much did this seem to you to distract from the more important issue of what the blogs revealed in contradicting the primary accusations?
(Was it more a footnote to defend against claims of
improper conduct? What about the matter of the second deletions
that occured during the night of 13-14 Sept when the whole web site
was shut down by its owner/administrator – i.e. not Ms A., but
most likely Jonas Lejon. He might be able to explain her motives.
Seems the police had no interest in making inquiries.)

11 nemo February 9, 2011 at 16:00

James, you’re putting me in a position I don’t like!
(apologies to Sven-Erik Alhem :-) )

I have not used the term conspiracy, and I guess in these circles you have a precise legal understanding of what that would be, so it will get rather tedious to ask you to explain that and define more concretely “the United States and Sweden” etc.; that is if you are to be taken as sincerely asking for an explanation.

Perhaps you are simply trying to make a joke about the logic of set membership, however given the state of feminist power in Sweden, at least there such an implication falls flat.

I encourage you to express your views more directly instead of having me reduced to be saying such simple statements about what is a complex and murky matter, with many players and several agendas against a shared enemy.

I am half promped to post more on the prataomdet campaign – how
familiar are you on the details of that, (beyond the Guardian etc. articles)?

Leave a Comment

{ 1 trackback }

Previous post:

Next post: