Why Assange lost

Explaining the extradition decision.

On 24 February 2011, the City of Westminster Magistrates' Court ordered the extradition of Julian Assange to Sweden under a European Arrest Warrant.

This extradition order does not necessarily mean, of course, that he will be extradited, still less that he will be charged, tried, or convicted. Assange may win an appeal of the extradition order, or Sweden may decide either not to continue or to interview him while he remains in England. However, unless some such external event intervenes, Assange will be shortly extradited to Sweden to be questioned about an allegation of rape, two allegations of sexual molestation, and an allegation of unlawful coercion.

There can be no doubt that these allegations are serious: far more serious than they have been represented by many internet commentators. The EAW for the arrest of Assange sets out the allegations:

Unlawful coercion

On 13-14 August 2010, in home of the injured party [A] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs while lying on top of her and with his body weight preventing her from moving or shifting.

Sexual molestation (1)

On 13-14 August 2010, in home of the injured party [A] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated sexual intercourse with her without her knowledge.

Sexual molestation (2)

On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [A] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity; that is, lying next to her and pressing his naked, erect penis to her body.


On 17 August 2010, in the home of the injured party [B], Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's integrity.

It is crucial to note that these are allegations. There have been no charges. There certainly has been no documentary or oral evidence published to support these allegations, and nor have these allegations been tested by cross-examination. Assange must be presumed innocent until proven guilty. However, the presumption of innocence does not mean such serious allegations should never be answered.

The main reason for the court ordering extradition was simply that a valid European Arrest Warrant (EAW) had been issued. If a valid EAW is correctly served on the correct person then, unless it can be shown that it is disproportionate, an abuse of process, or otherwise a violation of the defendant's human rights, a United Kingdom court is bound to order extradition, just as a Swedish court would be bound to order the extradition of a person requested by the UK government under an EAW.

It was contended by Assange's UK lawyers that it was not a valid EAW, for it had not been issued by a competent authority. This was always going to be a difficult submission, as the EAW had already been certified by the United Kingdom's Serious Organised Crime Agency (SOCA). But even if there was still doubt on this, Assange's own expert witnesses from Sweden confirmed that it had been validly issued. Once this fundamental question had been decided then it would have been exceptional had the EAW been refused on any other grounds.

It was submitted that the EAW had been issued too early in the criminal process: that it should not be used to aid an investigation but rather it should only be in respect of a formal charge. This was a stronger point for the Assange team to raise, and offers perhaps his best hope of a successful appeal. However, the court had the evidence of the Swedish prosecutor that Assange was not being sought to assist with inquiries but for the purpose of conducting criminal proceedings. The EAW was issued because "there was substantial and probable cause to accuse Julian Assange of the offences". In response to this, Assange relied on the evidence of two Swedish legal experts. However, their evidence on this and other key points was to be fatally undermined by Assange's own Swedish lawyer, Bjorn Hurtig.

In Hurtig's "proof" (or prepared) witness statement, he had said "astonishingly [the prosecutor] made no effort to interview [Assange] on the rape charge to get his side of the story" whilst Assange was still in Sweden. This was a highly important statement, but it was completely untrue. Indeed, in the sort of criticism rarely made by an English judge, it was held that Hurtig had deliberately sought to mislead the court on this point. The effect of this was catastrophic for the Assange case: not only did it discredit Hurtig, but the two key legal experts relied upon by Assange had wrongly based their expert evidence that the EAW should not have been issued on Hurtig's false claim.

By seeking to attack the credibility of the Swedish prosecutor, it appeared that Hurtig had provided evidence which, if retracted or disproved, had the effect of undermining any serious submission that the prosecutor had acted disproportionately in seeking Assange's extradition under an EAW. As District Judge Riddle concluded, it would have been a reasonable assumption for the prosecutor to make that Assange was deliberately avoiding interrogation.

Once the EAW was held to be valid, and any evidence as to disproportionality undermined by Assange's own Swedish witness, then the court had no difficulty in dealing with the many other points raised. Sweden is a signatory of the European Convention on Human Rights and so Assange can rely on any engaged Convention rights once extradited; the Swedish court is better placed than the London court to deal with any alleged abuses of process; the legal arguments before the Swedish court will be in public, even if the Swedish courts take witness evidence regarding sexual offences and rape in private; and the offences alleged were also offences in UK law (which, of course, no serious person could doubt).

The judgment ordering extradition is careful to emphasise that the defence case had been thorough and meticulous. The skeleton argument of Assange's UK lawyers alone is some 74 pages, consisting of 181 paragraphs. Two senior Swedish legal experts were even brought over to provide evidence in support of the defence. It is difficult to see what further submissions could have been made on behalf of Assange.

However, the defence did not succeed. And, unless the defence prevails at appeal, or some extraneous event occurs, Assange will be extradited to face questioning by the Swedish prosecutor over these undeniably serious allegations. He may then be charged and tried. That should not be prejudged. Assange is entitled to the benefit of due process.

But the simple fact is that Assange is being extradited because a valid EAW was issued and served for serious alleged offences, and that there was nothing in the particular circumstances of this case to prevent the EAW being implemented.


David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Why I’m thinking of joining the Labour Party

There’s a lot to admire in the direction Jeremy Corbyn is taking the party – perhaps it’s time to get involved.

Why I'm leaving Labour”, as Owen Hatherley remarked a few days ago, appears to be the new “why I’m leaving London”. However, aside from a few high(ish) profile departures, the bigger story is the net increase in membership of 90,000 that Labour has enjoyed since Jeremy Corbyn became leader. Indeed, the last few weeks have got me seriously considering whether I should add to these impressive numbers and join the party myself.

For me, one of the most cheering pieces of news since Corbyn’s victory was the convening of an advisory committee to shadow chancellor John McDonnell, including policy and academic heavyweights such as Mariana Mazzucato, Ann Pettifor, Joseph Stiglitz and Thomas Piketty. It was a clear indication that some fresh and serious thought was going to be put into the creation of a plan for remaking and rejuvenating the British economy. The early signs are that Labour will be offering a dynamic, high-tech economy of the future, with good pay and job security at its heart, which will stand in sharp contrast to the miserable Randian dystopia George Osborne has been pushing the country into during his time at the Treasury.

Also refreshing has been Corbyn’s use of Prime Minister’s Questions to give a voice to those affected by austerity. Given that our media and political class is disproportionately populated by people from privileged backgrounds, it’s really important that an extra effort is made to ensure that we hear first-hand from those bearing the brunt of these policies. It’s right in principle, and it turns out to be good politics as well. Because apparently many Conservative MPs are too stupid to realise that responding to the concerns of working class people with loud, derisive braying merely provides the public with a neat and powerful illustration of whose side each party is on.

Corbyn has taken a lot of flak in the media, and from MPs on the Labour right, for his response to the Paris attacks. But as someone who researches, teaches and writes on British foreign policy, Middle East politics and security issues, my admiration for the Labour leader has only grown in recent days.  

In the atmosphere immediately after a terrorist atrocity, a discourse emerges where caring about the victims and being serious about dealing with the threat are taken to be synonymous with advocating military responses and clampdowns on civil liberties, irrespective of the fact that fourteen years of pursuing this approach under the “war on terror” has only served to make the problem far worse. At times like these it takes a great deal of courage to articulate a careful, cautious approach emphasising non-military forms of action that address root causes and whose effects may be less dramatic and immediate. Many people were simply not in the mood to hear this sort of thing from Corbyn, but his policies are objectively more likely to make us safer, and I admire him for not being intimidated into silence despite the gallons of vitriol that have been poured on him.

In general, on national security, there is something heavily gendered about the narrative that casts the alpha male Cameron keeping Britain safe versus the dithering milquetoast Corbyn who doesn't understand the harsh realities. We reached the nadir of this stone age machismo during the last election campaign when Very Serious Jeremy Paxman put it to Ed Miliband that he couldn’t have Vladimir Putin in a fight.  After the disasters of the last decade and a half, the time is right to articulate a more intelligent, sophisticated alternative to the expensive, counterproductive militarism of the Conservative Party and the Labour right wing.

The question of whether Corbyn can win an election is certainly one that preoccupies me. He will struggle to attract voters to his right just as Yvette Cooper, Andy Burnham or Liz Kendall would have struggled to win back votes Labour lost to the SNP and the Greens. Enthusing and rallying the perhaps 30 per cent of the electorate who are broadly on the left is one thing, but adding the other 6-7 per cent that you need to win an election is another challenge altogether. Corbyn and his team have been on a steep learning curve since their shock victory in September, and they urgently need to clarify their message and improve their media strategy. Almost all the corporate press are bound to remain hostile, but there are ways to provide them with as little ammunition as possible.

More importantly, Corbyn’s team need to find ways of connecting directly with the public and bring them actively into what he's trying to do. In the current anti-politics mood, an opposition party based on a genuine, engaged mass movement could be a formidable force. Initiatives like “Momentum” will need to make quick and substantial progress.

Fundamentally, Corbyn’s Labour has to do what everyone concerned with genuine social progress has had to do throughout history: articulate points of view that go against prevailing orthodoxy, and do so in as persuasive a way as possible. By definition, these are battles against the odds. But you can't win them if you don't fight them. And for me, and I think most people on Corbyn's part of the left, five years of austerity have taken us beyond the point where we can accept the least worst version of the status quo. That prospect has simply become too painful for too many people.

So will I join? I’m still unsure. Without doubt there will be times when the leadership needs constructive, even robust criticism, and as a writer and researcher I may feel more free to articulate that outside of the Labour tribe. But whatever choice I make, the point for me is that this isn’t really about Jeremy Corbyn so much as the wider movement he represents, demanding a real change of course on politics, economics and foreign policy. That collective effort is something I will certainly continue to play an active part in.

David Wearing researches UK-Saudi-Gulf relations at the School of Oriental and African Studies, where he teaches courses on Middle East politics and international political economy. He sits on the steering committee of Campaign Against Arms Trade.