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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Not since the Thatcher years have so many Tory MPs been so motivated by self-interest

Assured of an election win, backbenchers are thinking either advancing up the greasy pole, or mounting it for the first time. 

One hears despair from Labour not just about probable defeat, but from MPs who felt they had three years to improve the party’s fortunes, or to prepare for personal oblivion. In the Conservative Party, matters seem quite the opposite. Veterans of the 1983 election recall something similar: a campaign fought in the absolute certainty of winning. Theresa May talked of putting the interests of the country first when she engineered the poll, and one must believe she was sincere. However, for those expecting to be Tory MPs after 8 June there are other priorities. Theirs is not a fight for the national interest, because that for them is a foregone conclusion. It is about their self-interest: either advancing up the greasy pole, or mounting it for the first time. They contemplate years ahead in which to consolidate their position and, eventually, to shape the tone and direction of the party.

The luxury of such thoughts during a campaign comes only when victory is assured. In 1983 I worked for a cabinet minister and toured marginal seats with him. Several candidates we met – most of whom won – made it clear privately that however important it was to serve their constituents, and however urgent to save the country from the threats within what the late Gerald Kaufman later called “the longest suicide note in history”, there was another issue: securing their place in the Thatcher revolution. Certain they and their party would be elected in the aftermath of the Falklands War, they wanted their snout in the trough.

These are early days, but some conver­sations with those heading for the next House of Commons echo the sentiments of 1983. The contemporary suicide note has not appeared, but is keenly awaited. Tories profess to take less notice of opinion polls than they once did – and with good reason, given the events of 2015 and 2016 – but ­imagine their party governing with a huge majority, giving them a golden opportunity to advance themselves.

Labour promises to change the country; the Liberal Democrats promise to force a reconsideration of Brexit; Ukip ­promises to ban the burqa; but the Tories believe power is theirs without the need for elaborate promises, or putting any case other than that they are none of the above. Thus each man and woman can think more about what the probability of four or five further years in the Commons means to them. This may seem in poor taste, but that is human nature for you, and it was last seen in the Labour Party in about 2001.

Even though this cabinet has been in place only since last July, some Tory MPs feel it was never more than an interim arrangement, and that some of its incumbents have underperformed. They expect vacancies and chances for ministers of state to move up. Theresa May strove to make her team more diverse, so it is unfortunate that the two ministers most frequently named by fellow Tories as underachievers represent that diversity – Liz Truss, the Lord Chancellor, who colleagues increasingly claim has lost the confidence of the judiciary and of the legal profession along with their own; and Sajid Javid, the Communities Secretary, whom a formerly sympathetic backbencher recently described to me as having been “a non-event” in his present job.

Chris Grayling, the Transport Secretary, was lucky to survive his own stint as lord chancellor – a post that must surely revert to a qualified lawyer, with Dominic Grieve spoken of in that context, even though, like all ardent Remainers in the government, he would be expected to follow the Brexit line – and the knives are out for him again, mainly over Southern Rail but also HS2. David Gauke, the Chief Secretary to the Treasury, and the little-known Ben Gummer, a Cabinet Office minister, are tipped for promotion with Grieve if vacancies arise: that all three are white men may, or may not, be a consideration.

Two other white men are also not held in high regard by colleagues but may be harder to move: Boris Johnson, whose conduct of the Foreign Office is living down to expectations, and Michael Fallon, whose imitation of the Vicar of Bray over Brexit – first he was for it, then he was against it, and now he is for it again – has not impressed his peers, though Mrs May considers him useful as a media performer. There is also the minor point that Fallon, the Defence Secretary, is viewed as a poor advocate for the armed forces and their needs at a time when the world can hardly be called a safe place.

The critical indicator of how far personal ambition now shapes the parliamentary Tory party is how many have “done a Fallon” – ministers, or aspirant ministers, who fervently followed David Cameron in advising of the apocalyptic results of Brexit, but who now support Theresa May (who is also, of course, a reformed Remainer). Yet, paradoxically, the trouble Daniel Hannan, an arch-Brexiteer and MEP, has had in trying to win selection to stand in Aldershot – thanks to a Central Office intervention – is said to be because the party wants no one with a “profile” on Europe to be added to the mix, in an apparent attempt to prevent adding fuel to the fire of intra-party dissent. This may appease a small hard core of pro-Remain MPs – such as Anna Soubry, who has sufficient talent to sit in the cabinet – who stick to their principles; but others are all Brexiteers now.

So if you seek an early flavour of the next Conservative administration, it is right before you: one powering on to Brexit, not only because that is what the country voted for, but because that is the orthodoxy those who wish to be ministers must devotedly follow. And though dissent will grow, few of talent wish to emulate Soubry, sitting out the years ahead as backbenchers while their intellectual and moral inferiors prosper.

Simon Heffer is a columnist for the Daily and Sunday Telegraphs

Simon Heffer is a journalist, author and political commentator, who has worked for long stretches at the Daily Telegraph and the Daily Mail. He has written biographies of Thomas Carlyle, Ralph Vaughan Williams and Enoch Powell, and reviews and writes on politics for the New Statesman

This article first appeared in the 27 April 2017 issue of the New Statesman, Cool Britannia 20 Years On

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