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.