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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The good, the bad, and the meaningless: Jeremy Corbyn’s “digital democracy” decoded

The Labour leader has promised to “democratise the internet” but which parts of his manifesto would actually work?

Jeremy Corbyn has promised to “democratise the internet”, speaking this morning at the launch of his eight-point digital manifesto at Newspeak House in east London.

“Labour under my leadership will utilise the advances of digital technology to mobilise the most visible general election campaign ever,” said Corbyn, in a clip you might have watched via a livestream on his Facebook page, before it crashed.

His manifesto sets out how Labour hopes to democratise the internet so that “no one and no community is left behind”. Unfortunately, some of the terminology used isn’t so universal. In a bid to leave no one behind, we thought we’d decode the manifesto here.

The good

Universal Service Network

It’s hard to argue with Corbyn’s first and largest proposal – that high speed broadband should be accessible across the country. According to the Labour leader, this would cost £25bn to implement and would be funded by his proposed National Investment Bank, “at minimal cost to the taxpayer”.

Although this is good idea, it isn’t a new one. The Conservatives already announced plans for a similar Universal Service Obligation (USO) in March, whereby everyone has a legal right to request download speeds of at least 10Mbps. A report published by Ofcom last week shows the government faces resistance from internet service providers who don’t want to pick up the extra costs.

The People’s Charter of Digital Liberties

Corbyn’s second most eye-catching suggestion, a digital bill of rights, is a win for anyone wary of Theresa May’s Snoopers Charter. He promises to protect personal privacy and “[enhance] the on-line rights of every individual”.

Platform Cooperatives

Corbyn hopes to “foster the cooperative ownership of digital platforms for distributing labour and selling services”, which essentially means he wants services like Airbnb, Deliveroo, and Uber to be community-run (or, if you want to go there, nationalised). The National Investment Bank would fund these websites and apps, which in turn would allow greater regulations of employment contracts. It’s quite a utopian vision and it's easy to be cynical about how this could work in practice, but were it to work, it could arguably transform the entire economy. 

The bad

Digital Citizen Passport

“We will develop a voluntary scheme that provides British citizens with a secure and portable identity for their on-line activities,” claims the manifesto, explaining this can be used to interact with public services like health, welfare, education and housing. Without even considering any potential security or privacy issues, the largest criticism of this proposal is that it already exists, as Gov.uk’s Verify.

Programming For Everyone

By encouraging publicly funded software and hardware to be released under an Open Source License, Corbyn dreams of a world where everyone can share code and learn from one another. Unfortunately, this opens up multiple privacy and security concerns, and Corbyn's other suggestions for teaching code also already exist, as the EU’s All You Need Is (C<3de) programme. 

The meaningless

Open Knowledge Library

At first glance, Corbyn’s proposal for a “free-to-use on-line hub of learning resources for the National Education Service” is undeniably a good idea. The problem is that the idea ends there, with no real discussion of what it is and how it will work. At present, it simply sounds like a publicly-funded version of resources that are already available (Wikipedia, anyone?).

Community Media Freedom

The entirety of this policy basically boils down to “free speech, yo”, which is, unarguably, fantastic. Unfortunately, the manifesto offers little in the way of explaining how its goals, such as stopping the “manipulation of software algorithms for private gain”, will actually be achieved.

Massive Multi-Person On-line Deliberation

Corbyn’s plan to “organise online . . . meetings for individuals and communities to deliberate about pressing political issues and participate in devising new legislation” is Twitter. It’s just Twitter.

The extras

Outside of this eight-point manifesto, here are some other things we learned today about Labour’s digital plans:

  • According to Corbyn, some MPs don’t turn on their computers because they do not know how to, which, honestly, shall we deal with that first?
  • Team Corbyn hopes that technology – and the visibility it allows – will be Labour’s "path to victory", which is nice, but what he really means is: memes.
  • Corbyn reveals he has an “open mind” about nationalising the broadband network.
  • Corbyn calls online abuse appalling and says that Labour is chasing down offensive material.
  • A team of coders called Coders for Corbyn have released some digital tools to show your support for the leader. Yes, the Corbyn emoji  Jeremoji  is about to be a thing.
  • The entire manifesto features “online” written as “on-line” and really, that is the real issue here.

Amelia Tait is a technology and digital culture writer at the New Statesman.