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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Theresa May’s stage-managed election campaign keeps the public at bay

Jeremy Corbyn’s approach may be chaotic, but at least it’s more authentic.

The worst part about running an election campaign for a politician? Having to meet the general public. Those ordinary folk can be a tricky lot, with their lack of regard for being on-message, and their pesky real-life concerns.

But it looks like Theresa May has decided to avoid this inconvenience altogether during this snap general election campaign, as it turns out her visit to Leeds last night was so stage-managed that she barely had to face the public.

Accusations have been whizzing around online that at a campaign event at the Shine building in Leeds, the Prime Minister spoke to a room full of guests invited by the party, rather than local people or people who work in the building’s office space.

The Telegraph’s Chris Hope tweeted a picture of the room in which May was addressing her audience yesterday evening a little before 7pm. He pointed out that, being in Leeds, she was in “Labour territory”:

But a few locals who spied this picture online claimed that the audience did not look like who you’d expect to see congregated at Shine – a grade II-listed Victorian school that has been renovated into a community project housing office space and meeting rooms.

“Ask why she didn’t meet any of the people at the business who work in that beautiful building. Everyone there was an invite-only Tory,” tweeted Rik Kendell, a Leeds-based developer and designer who says he works in the Shine building. “She didn’t arrive until we’d all left for the day. Everyone in the building past 6pm was invite-only . . . They seemed to seek out the most clinical corner for their PR photos. Such a beautiful building to work in.”

Other tweeters also found the snapshot jarring:

Shine’s founders have pointed out that they didn’t host or invite Theresa May – rather the party hired out the space for a private event: “All visitors pay for meeting space in Shine and we do not seek out, bid for, or otherwise host any political parties,” wrote managing director Dawn O'Keefe. The guestlist was not down to Shine, but to the Tory party.

The audience consisted of journalists and around 150 Tory activists, according to the Guardian. This was instead of employees from the 16 offices housed in the building. I have asked the Conservative Party for clarification of who was in the audience and whether it was invite-only and am awaiting its response.

Jeremy Corbyn accused May of “hiding from the public”, and local Labour MP Richard Burgon commented that, “like a medieval monarch, she simply briefly relocated her travelling court of admirers to town and then moved on without so much as a nod to the people she considers to be her lowly subjects”.

But it doesn’t look like the Tories’ painstaking stage-management is a fool-proof plan. Having uniform audiences of the party faithful on the campaign trail seems to be confusing the Prime Minister somewhat. During a visit to a (rather sparsely populated) factory in Clay Cross, Derbyshire, yesterday, she appeared to forget where exactly on the campaign trail she was:

The management of Corbyn’s campaign has also resulted in gaffes – but for opposite reasons. A slightly more chaotic approach has led to him facing the wrong way, with his back to the cameras.

Corbyn’s blunder is born out of his instinct to address the crowd rather than the cameras – May’s problem is the other way round. Both, however, seem far more comfortable talking to the party faithful, even if they are venturing out of safe seat territory.

Anoosh Chakelian is senior writer at the New Statesman.

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