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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Britain has built a national myth on winning the Second World War, but it’s distorting our politics

The impending humiliation of Brexit is going to have a lot more in common with Suez.

The Crown, Peter Morgan’s epic drama covering the reign of Elizabeth II, ended its first series with a nemesis waiting just off-stage to shake up its court politics. In the final episode, Egyptian president Gamal Nasser gives a rip-roaringly anti-imperialist – and anti-British – speech. The scene is set for the Suez Crisis to be a big plot point in Season 2.

Suez has gone down in history as the great foreign policy debacle of postwar Britain. The 1956 crisis – which saw Israel, France and Britain jointly invade Egypt to take control of the Suez Canal, only to slink off again, nine days later, once it became clear the US wasn’t having any of it – is seen as the point at which it became clear that even the bigger states of Europe were no longer great powers in the world. “President Eisenhower’s humiliation of Britain,” Jack Straw wrote in his 2012 memoir, “had been total.”

This was, though, a fairly limited sort of humiliation. Britain was not invaded or occupied; there was no sudden collapse in living standards, let alone a significant body count. Our greatest national debacle is nothing more than the realisation that Britain could no longer do whatever it wanted without fear of reprisal. As humiliations go, this one’s up there with the loss of status men have faced from the rise of feminism: suddenly, Britain could do what it wanted a mere 80 per cent of the time.

The Crown begins in 1947, when Prince Philip gives up his Greek and Danish royal titles and becomes a British subject, so that he can marry Princess Elizabeth. That year saw another British foreign policy debacle, one on which the show remains oddly silent. In the partition which followed India’s independence from the British Empire, 70 years ago this week, upwards of a million people died; in the decades since, the borders drawn up at that time have been the site of numerous wars, and Kashmir remains a flashpoint.

All this, one might think, might count as a far bigger regret than Suez – yet it doesn’t feature in the national narrative in the same way. Perhaps because partition was about the withdrawal of British forces, rather than their deployment; perhaps it’s simply that it all happened a very long way away. Or perhaps we just care less about a body count than we do about looking bad in front of the Americans.

I think, though, there’s another reason we don’t talk about this stuff: the end of empire is hidden behind a much bigger part of our national myth. In the Second World War, Britain is undeniably one of the good guys; for 12 months, indeed, Britain was the only good guy. Never mind that it still had the largest empire the world had ever seen to fall back on: Britain stood alone.

The centrality of the Second World War to the national myth warps our view of history and our place in the world in all sorts of ways. For starters, it means we’ve never had to take an honest account of the consequences of empire. In a tale about British heroes defeating Nazi villains, British mistakes or British atrocities just don’t fit. (Winston Churchill’s role in the 1943 Bengal famine – death toll: three million – by ordering the export of Indian grain to Britain rarely comes up in biopics.) In this dominant version of the national story, the end of empire is just the price we pay to defeat fascism.

More than that, our obsession with the Second World War creates the bizarre impression that failure is not just heroic, but a necessary precursor to success. Two of the most discussed elements of Britain’s war – the evacuation of Dunkirk, and the Blitz – are not about victory at all, but about survival against the odds. The lesson we take is that, with a touch of British grit and an ability to improvise, we can accomplish anything. It’s hard not to see this reflected in Brexit secretary David Davis’s lack of notes, but it’s nonsense: had the Russians and Americans not arrived to bail us out, Britain would have been stuffed.

Most obviously, being one of the winners of the Second World War infects our attitude to Europe. It’s probably not a coincidence that Britain has always been both one of the most eurosceptic EU countries, and one of the tiny number not to have been trampled by a foreign army at some point in recent history: we don’t instinctively grasp why European unity matters.

Once again, Suez is instructive. The lesson postwar France took from the discovery that the imperial age was over was that it should lead a strong and unified Europe. The lesson Britain took was that, so long as we cosied up to the US – Athens to their Rome, to quote Harold Macmillan – we could still bask in reflected superpower.

Until recently, Britain’s Second World War obsession and national ignorance about empire didn’t really seem to affect contemporary politics. They were embarrassing; but they were also irrelevant, so we could cope. Brexit, though, means that hubris is about to run headlong into nemesis, and the widespread assumption that Britain is a rich, powerful and much-loved country is unlikely to survive contact with reality. India will not offer a trade deal for sentimental reasons; Ireland is not a junior partner that will meekly follow us out of the door or police its borders on our behalf. The discovery that Britain is now a mid-ranking power that – excepting the over-heated south-east of England – isn’t even that rich is likely to mean a loss of status to rival Suez.

Morgan says he has planned six seasons of The Crown. (This looks entertainingly like a bet the Queen will be dead by 2021; if not, like Game of Thrones before it, he might well run out of text to adapt.) It’ll be interesting to see how the show handles Brexit. It began with the royal family facing up to a vertiginous decline in British power. As things stand, it may have to end the same way. 

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Brexit. You can find him on Twitter or Facebook.

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear