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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UnHerd's rejection of the new isn't as groundbreaking as it seems to think

Tim Montgomerie's new venture has some promise, but it's trying to solve an old problem.

Information overload is oft-cited as one of the main drawbacks of the modern age. There is simply too much to take in, especially when it comes to news. Hourly radio bulletins, rolling news channels and the constant stream of updates available from the internet – there is just more than any one person can consume. 

Luckily Tim Montgomerie, the founder of ConservativeHome and former Times comment editor, is here to help. Montgomerie is launching UnHerd, a new media venture that promises to pull back and focus on "the important things rather than the latest things". 

According to Montgomerie the site has a "package of investment", at least some of which comes from Paul Marshall. He is co-founder of one of Europe's largest hedge funds, Marshall Wace, formerly a longstanding Lib Dem, and also one of the main backers and chair of Ark Schools, an academy chain. The money behind the project is on display in UnHerd's swish (if slightly overwhelming) site, Google ads promoting the homepage, and article commissions worth up to $5,000. The selection of articles at launch includes an entertaining piece by Lionel Shriver on being a "news-aholic", though currently most of the bylines belong to Montgomerie himself. 

Guidelines for contributors, also meant to reflect the site's "values", contain some sensible advice. This includes breaking down ideas into bullet points, thinking about who is likely to read and promote articles, and footnoting facts. 

The guidelines also suggest focusing on what people will "still want to read in six, 12 or 24 months" and that will "be of interest to someone in Cincinnati or Perth as well as Vancouver or St Petersburg and Cape Town and Edinburgh" – though it's not quite clear how one of Montgomerie's early contributions, a defence of George Osborne's editorship of the Evening Standard, quite fits that global criteria. I'm sure it has nothing to do with the full page comment piece Montgomerie got in Osborne's paper to bemoan the deficiencies of modern media on the day UnHerd launched. 

UnHerd's mascot  – a cow – has also created some confusion, compounded by another line in the writing tips describing it as "a cow, who like our target readers, tends to avoid herds and behave in unmissable ways as a result". At least Montgomerie only picked the second-most famous poster animal for herding behaviour. It could have been a sheep. In any case, the line has since disappeared from the post – suggesting the zoological inadequacy of the metaphor may have been recognised. 

There is one way in which UnHerd perfectly embodies its stated aim of avoiding the new – the idea that we need to address the frenetic nature of modern news has been around for years.

"Slow news" – a more considered approach to what's going on in the world that takes in the bigger picture – has been talked about since at least the beginning of this decade.

In fact, it's been around so long that it has become positively mainstream. That pusher of rolling coverage the BBC has been talking about using slow news to counteract fake news, and Montgomerie's old employers, the Times decided last year to move to publishing digital editions at set points during the day, rather than constantly updating as stories break. Even the Guardian – which has most enthusiastically embraced the crack-cocaine of rolling web coverage, the live blog – also publishes regular long reads taking a deep dive into a weighty subject. 

UnHerd may well find an audience particularly attuned to its approach and values. It intends to introduce paid services – an especially good idea given the perverse incentives to chase traffic that come with relying on digital advertising. The ethos it is pitching may well help persuade people to pay, and I don't doubt Montgomerie will be able to find good writers who will deal with big ideas in interesting ways. 

But the idea UnHerd is offering a groundbreaking solution to information overload is faintly ludicrous. There are plenty of ways for people to disengage from the news cycle – and plenty of sources of information and good writing that allow people to do it while staying informed. It's just that given so many opportunities to stay up to date with what has just happened, few people decide they would rather not know.