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.

Rape

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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Trident is dangerous – and not for the reasons you think

Fixating on Trident is like replacing the guest bathroom while your own toilet flush doesn't work. 

Backing Trident is supposed to make a politician look hard, realistic and committed to Britain’s long history of military defence.That’s why the Tories delighted in holding a debate on renewing the nuclear weapons system in June 2016.

But it was the Tory Prime Minister who floundered this weekend, after it emerged that three weeks before that debate, an unarmed Trident missile misfired - and veered off towards the United States instead of Africa. Downing Street confirmed May knew about the error before the parliamentary debate. 

Trident critics have mobilised. Scotland’s First Minister, Nicola Sturgeon, called the revelation “serious”. Labour leader Jeremy Corbyn, a longstanding opponent of nuclear weapons, said the error was “pretty catastrophic”. 

The idea of a rogue nuclear missile heading for the White House may have fuelled the disarmament movement. But even if you enjoy the game of nuclear poker, fixating on Trident is dangerous. Because while MPs rehearse the same old Cold War arguments, the rest of the world has moved on. 

Every hour debating Trident is an hour not spent debating cyber warfare. As Peter Pomerantsev prophetically wrote in April 2015, Russian military theory has in recent years assumed that it would not be possible to match the West militarily, but wars can be won in the “psychosphere”, through misinformation.

Since the Russian cyber attacks during the US election, few can doubt this strategy is paying off - and that our defence systems have a long way to catch up. As shadow Defence secretary, Emily Thornberry described this as “the crucial test” of the 21st century. The government has pledged £1.9bn in cyber security defences over the next five years, but will that be enough? Nerds in a back room are not as thrilling as nuclear submarines, but how they are deployed matters too.

Secondly, there is the cost. Even if you back the idea of a nuclear deterrent, renewing Trident is a bit like replacing the guest bathroom when the regular loo is hardly flushing. A 2015 Centreforum paper described it as “gold-plated” - if your idea of gold-plated is the ability to blow up “a minimum of eight cities”. There is a gory but necessary debate to be had about alternatives which could free up more money to be spent on conventional forces. 

Finally, a nuclear deterrent is only credible if you intend to use it. For this reason, the British government needs to focus on protecting the infrastructure of the North Atlantic Treaty Organisation, now under threat from a US President who declared it “obsolete”. Eastern Europe has been nervous about the bear on its borders for some time - the number of Poles joining the country’s 120 paramilitary organisations has tripled in two years.  

Simply attacking Trident on safety grounds will only get you so far - after all, the argument behind renewing Trident is that the status quo will not do. Furthermore, for all the furore over a misfired Trident missile, it’s hard to imagine that should the hour come, the biggest worry for the crew of a nuclear submarine will be the small chance of a missile going in the wrong direction. That would be missing the rather higher chance of global nuclear apocalypse.

Anti-Trident MPs will make the most of May's current embarrassment. But if they can build bridges with the more hawkish members of the opposition, and criticise the government's defence policy on its own terms, they will find plenty more ammunition. 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.