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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What progressives can learn from Europe

The centre-left must articulate its own vision of a cohesive society, backed by an understanding of sovereignty that accepts the nation-state is the central pillar of security and belonging.

The debate about the Labour party’s future has seldom been more parochial or inward-looking. Those who pass comment on Labour’s fate from the right and left of the party do so with an almost entirely British lens. In this insular universe, it is as if the world beyond the UK’s shores never existed. ‘Socialism in one country’ is back with a vengeance. Yet to recover politically and electorally, British Labour must learn from social democrats and progressive forces across Europe. There are three critical lessons from other countries that the centre-left ought to heed.  

The first is that centre-left parties have to resist being squeezed between neo-liberalism and the new social movements. Yes, social democrats should rebuild their economic credibility and espouse a responsible governing agenda. But that should not mean rejecting all ties to social and environmental activism. The networked civil society is where most political energy and vitality currently resides in western democracies. The lesson of Podemos in Spain and Greece’s Syriza is that people want to be agents of change themselves, whether saving local high streets from unscrupulous developers or working to build their own affordable housing. Casting a ballot every four or five years no longer constitutes meaningful political engagement. Across Europe, social democrats have to form new alliances in pursuit of a better society reaching beyond traditional party structures. 

A further object lesson is that opposition to austerity on its own is not enough to win power. Of course, premature cuts have weakened growth, jobs and living standards. In southern Europe, the masochistic pursuit of austerity threatens to unleash a social catastrophe. However, centre-left parties must show they would be competent managers of the economy articulating a coherent plan to deal with debt: not just net public sector debt over the economic cycle, but tackling unsustainable financial sector and household debt. Social democrats have to show how they would govern in a world where there is less money around for state spending after the great recession and the impending threat of secular stagnation. This demands a strategy for regulating financial markets that promotes the public good, tackles systemic risks and reforms banks that are ‘too big to fail’. An industrial modernisation plan would rebalance our economies away from their reliance on financial services towards knowledge-intensive sectors and manufacturing. In reforming the tax system, there ought to be a major clamp-down on cross-border tax evasion and fraud while restoring the progressivity of tax using redistribution to tackle new inequalities.

Finally, the left must not be distracted from confronting deeper underlying forces in politics. Centre-left parties are losing elections because voters don’t trust politicians to protect their way of life against the impersonal forces of global change. Europe has pitched dramatically to the right - not only towards Christian Democratic and Conservative parties, but new forces adept at exploiting voters’ fears about economic insecurity, immigration and hostility to the EU. In the UK, UKIP has now become the dominant challenger to Labour in northern England and the Midlands; last year, the Danish People’s party surged to power. In the heartlands of European social democracy, from the Nordic states to France and the Netherlands, right-wing populists are on the rise. In Austria this week, a hard right presidential candidate was in touching-distance of power.

The failure to counter the right isn’t just about poorly executed electoral strategies, weak leadership, or the price of incumbency in coalition governments: something more profound is going on. Regardless of national context, social democracy’s support base is being eaten away. The left is losing, not just on the conventional politics of economic competence, but increasingly on the vexed politics of national identity.

That said, the temptation to raise the drawbridge against immigration ought to be resisted. Flirting with a restrictive immigration policy is superficially tempting when the populist right is winning, but imposing arbitrary limits would be economically damaging as well as politically unprincipled. Instead, low wage and vulnerable workers across the EU ought to be better protected. Permitting the uncontrolled exploitation of low-cost labour in Eastern Europe has undermined the entire European project. More safeguards against agency working and zero-hours contracts are needed.             

Rather than pretending that government on its own can do everything to shield citizens and communities from global market forces, the priority should also be to encourage intermediate institutions located between the central state and the free market that rebuild a sense of local attachment, recreate respect for traditional jobs and civic identities, and encourage a spirit of mutual obligation embodied in organisations like mutual’s and co-op’s. The left must end its ambivalence about English identity in the aftermath of devolution to Scotland, Wales and Northern Ireland. Labour must not be afraid ‘to speak for England’.

The centre-left must articulate its own vision of a cohesive society, backed by an understanding of sovereignty that accepts the nation-state is the central pillar of security and belonging. To navigate the hard road back to power, social democratic parties will have to acknowledge the communal attachments that give meaning to our lives in an era of unprecedented insecurity and upheaval. Only by securing the trust and allegiance of citizens within the nation-state can the centre-left win the argument for international engagement and co-operation: the cornerstone of a liberal world order. 

Patrick Diamond is Co-Chair of Policy Network. The Progressive Governance Conference takes place in Stockholm 26-7 May 2016