The legal mythology of the extradition of Julian Assange

Why the “zombie facts” of Assange supporters are wrong.

Two years ago serious allegations of sexual assault and rape were made against Julian Assange, the founder and editor-in-chief of Wikileaks.

The allegations followed a visit by two women (known in legal documents as AA and SW) to a Swedish police station on 20 August 2010. From what they told the police, a formal criminal investigation was commenced.  Due process started its course.

And then came the legal mythology. Since August 2010 a number of inter-connected assertions have been made about legal aspects of the criminal investigation and subsequent proceedings by supporters of Assange.  Some of the assertions are false and misleading but they remain widely circulated. In my previous quick post I described these contentions as “zombie facts” which carry on regardless even when shot down. 

This creation of this Assange legal mythology presents rather a paradox. 

The great merit of Wikileaks was that it placed into the public domain information which would enable informed public debate. That is why I and many others support the Wikileaks project in principle, and wish it could be disconnected from the on-going Assange matter.  

Nonetheless, a detailed and sourced approach to the legal issues relevant to the Assange extradition remains important, and this post builds on the earlier post in setting out the correct legal situation. In doing this, I have no view on the ultimate outcome of the investigation and any trial. I am neutral as to whether Assange is charged, or whether he is convicted or acquitted, so long as the complaints are properly dealt with and the investigation reaches its natural conclusion. (Indeed, there are obvious questions to be asked about the conduct of the investigation and the complaints; but those are a matter for the investigation and any hearing.)

The starting point is to understand what the process has been so far.

 

The process to date

In July 2010, Assange explained in a TED talk why Sweden was attractive to Wikileaks (see here at 0.20).  It would appear that Wikileaks was at that time hosted in Sweden to take advantage of its liberal protections for the media and journalists.  In August 2010 Wikileaks itself promoted a story in Reuters which described Sweden as a “legal shield” – their tweet is here.

Assange came to Sweden in August 2010.  Between 13 and 18 August there was a sequence of alleged incidents of sexual abuse against AA. There was also an allegation of rape in respect of SW.

On 20 August 2010 both AA and SW went to a police station. As a result of what the police were told, a criminal investigation was commenced into sexual molestation.

On 31 August 2010, Assange was questioned about the allegations, which he denied. This interview is important, as it meant that from this stage he knew of the allegations against him. 

Following this interview, the Swedish prosecutor decided to proceed with the investigation. On 22 September 2010, messages were left with Assange’s lawyer saying that Assange was now required for “interrogation”, the second stage interview before a prosecution. 

(Assange’s Swedish lawyer was later to falsely maintain that the prosecutor had not tried to contact him. When this was exposed as incorrect, he then claimed that he was not able to pass the messages on to his client.) 

On or about 27 September 2010, Assange left Sweden for England. It is not clear whether Assange was aware of the request for interrogation.  However, his Swedish lawyer confirmed that Assange could return in October 2010. This offer is declined by the prosecutor, as Assange was then required sooner.

The Swedish prosecutor proceeded to obtain a warrant for Assange’s arrest on 20 November 2010. Assange instructed his Swedish lawyer to challenge the warrant and it is appealed to the Court of Appeal of Svea. On 24 November 2010 the appeal court upheld the warrant.  The significance of this is that the allegations giving rise to the warrant have already been tested in the Swedish legal system.

On 26 November 2010 the prosecutor issued a European Arrest Warrant (EAW). This EAW is certified by the UK serious crime agency on 6 December 2010. The following day Assange surrendered himself to a London police station. 

Assange instructed his English lawyers to challenge the EAW, and a hearing was held before the Chief Magistrate of England and Wales on 7 and 8 February 2011.  Assange’s barrister attacked the extradition on a number of detailed grounds.  However, in a detailed judgment handed down on 24 February 2011, it was decided that the EAW was valid and that the alleged offences would constitute offences both in England and Sweden.

The Chief Magistrate also heard witnesses on behalf of Assange. Under cross-examination, it became clear that Assange’s own Swedish lawyer had misled the court and Assange's other witnesses over whether the Swedish prosecutor had been in contact to request interrogation before Assange left Sweden. In a scathing passage of the judgment , the Chief Magistrate even accused Assange's Swedish lawyer of “a deliberate attempt to mislead the court”.

Assange then instructed new English lawyers to appeal the decision of the Chief Magistrate. This hearing took place at the High Court on 12 and 13 July 2011. Just as Assange had had the Chief Magistrate at the first hearing, the High Court was headed by the President of the Queen’s Bench Division. Again, Assange's case was being dealt with by a senior and experienced judge.

The High Court took three and a half months to consider Assange's legal submissions and in a carefully detailed and reasoned judgment dated 11 November 2011 the High Court rejected each ground of appeal. In particular, they held that the allegations in the EAW would constitute offences in English law.

The High Court even considered a range of extraneous material so as to be satisfied that the EAW even contained fair and accurate descriptions of what was alleged – see my post here for more on this.

Assange was then given one further opportunity to appeal. In February 2012, the Supreme Court heard argument on the technical but important point of whether the Swedish prosecution authority could issue an EAW. In May 2012, in a 93 page judgment of some 266 paragraphs, the Supreme Court held that the EAW was valid.

By May 2012 it thereby appeared that extradition was inevitable. All legal avenues in England had been exhausted. A number of the UK’s leading human rights lawyers had made detailed and complex submissions to a number of England’s top judges at three hearings, and all of the submissions had been addressed in three lengthy judgments. Few respondents in English legal history have ever had such an opportunity to challenge an extradition request.  But Assange had failed and the EAW was upheld.  A return to Sweden was imminent.

It was at this stage Assange seeks protection in the London Embassy of Ecuador, and on 16 August 2012 he was granted political asylum.  

It was just under two years to the day of the allegations being first made.

 

The substantive allegations

One common assertion by supporters of Assange is that the allegations do not really constitute rape or sexual assault. 

For example, Assange’s then English solicitor was quoted as saying on 11 December 2010:

Whatever 'sex by surprise' is, it's only a offense in Sweden -- not in the U.K. or the U.S. or even Ibiza. I feel as if I'm in a surreal Swedish movie being threatened by bizarre trolls. The prosecutor has not asked to see Julian, never asked to interview him, and he hasn't been charged with anything. He's been told he's wanted for questioning, but he doesn't know the nature of the allegations against him.

One cannot explain why Assange’s English solicitor should say such things.  Assange had already had the allegations put to him on 31 August 2010.  The prosecutor had asked his Swedish lawyer for interrogation on 22 September 2010. 

The same English lawyer was also widely reported as saying:

The honeytrap has been sprung. Dark forces are at work. After what we've seen so far you can reasonably conclude this is part of a greater plan.

These were remarkable statements by an English solicitor about a case.

The allegation of “sex by surprise” was a flat mischaracterisation of the allegations in the EAW.  The accusations were not of “sex by surprise”.  Instead, the accusations were as follows:

"1. Unlawful coercion

On 13-14 August 2010, in the home of the injured party [AA] 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 whilst lying on top of her and with his body weight preventing her from moving or shifting.

2. Sexual molestation

On 13-14 August 2010, in the home of the injured party [AA] 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 unprotected sexual intercourse with her without her knowledge.

3. Sexual molestation

On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.

4. Rape

On 17 August 2010, in the home of the injured party [SW] in Enkoping, 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 sexual integrity."

The High Court held that the test of "dual criminality” was met in respect of each of these offences: they were offences in both England and Sweden.  The High Court even examined extraneous materials, such as the statements of AA and SW, to see if the allegations were a fair description (see my post here for more on the statements of AA and SW).

Meanwhile, alongside the mischaracterisation of the accusations were the on-going attacks on the complainants by those supporting Assange.  Various suggestions were made of connections to the CIA or that the complainants were seeking revenge.  Unfortunately there are even websites devoted to effectively “slut-shaming” the complainants.

But the simple fact is that the allegations do constitute a criminal offence in both England and Sweden. 

If the version of events of AA and SW is not correct, or if AA and SW are unreliable witnesses, then the correct forum for challenging such evidence is in a Swedish trial and not the proxy of English extradition hearings and still less heated internet battles. 

Indeed, the more emphasis which is placed by Assange supporters on the credibility of the complaints or the complainants, the more it becomes obvious that this is a matter for due process in Sweden and not for anything else.

 

The investigation

There have been various criticism of the conduct of the investigation. Some of these criticisms have more force than others. For example, it is not clear what happened between 20 and 31 August 2010 where it appeared the more serious allegation seemed to be dropped, only to be revived on or about 1 September 2010. It is also not clear why the prosecutor waited until 22 September 2010 to arrange for a date of the interrogation.

However, if any of these points amount to an abuse of process, then again – as with the substantive allegations – the correct forum to challenge the conduct of the investigation is a Swedish court room.

It is often forgotten that Assange has already challenged the investigation once in Sweden, but his appeal was rejected by the relevant appeal court in November 2010.  It was only then that the EAW was issued.

What has become clear is that the Swedish approach to criminal proceedings is different from that of England or other common law jurisdictions. The interrogation requested takes place at a late stage, just before prosecution. Assange is thereby not required for mere questioning – indeed, he was questioned on 31 August 2010. 

As the English High Court held (paragraphs 152 and 153):

Plainly this is a case which has moved from suspicion to accusation supported by proof. […]

In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced.

Some commentators have made the point that the prosecutors should come to the UK to question Assange. However, this appears to misunderstand the procedural stage of the investigation. Assange is not required for mere questioning; he is required to surrender for interrogation before any charges can be made and prosecution brought.

Assange has already been questioned.  The prosecutor has also told the English courts that the need to deal with the other witnesses and expert evidence means that the interrogation stage needs to take place in Sweden.  That is a matter for a prosecutor to decide. The allegations are about incident in Sweden, and in respect of Swedish complainants on the basis of witness and expert evidence in Sweden.

And, of course, it is not for the accused in a serious crime investigation to determine how any investigation should proceed. 

 

Sweden and extradition

Some supporters of Assange contend that he would happily return to Sweden to be interrogated, if only he could be certain that he would not then be extradited to the United States. 

The underlying concern is that Assange is somehow likely to be extradited to the United States from Sweden. 

However, this is the most curious of the contentions, as - even without any guarantees - Assange would be far safer from any extradition to the United States in Sweden than he would be in England.

If Assange was genuinely concerned about avoiding extradition, rather than avoiding the rape investigation, then properly advised he should go to Sweden without delay. 

And here there is also an obvious point to be made. The United States has actually not made an extradition request. Although it is reported that there is a “Grand Jury” investigation currently proceeding (and even that there is a “sealed indictment”), there remains no extradition request.  There may never be one.

It is not even clear for what crime the United States could indict Assange and apply for his extradition.  If it were an espionage or computer offence in respect of his role at Wikileaks then not only would he possibly have protection under the First Amendment of the United States Constitution, the actual extradition treaty between Sweden and the United States prohibits extradition for political or espionage offences.  The treaty also prevents extradition where there is a death penalty.

In Sweden Assange would furthermore have the protection of any onward extradition requiring both the consent of the United Kingdom and Sweden.  Accordingly, any decision to extradite Assange to the United States would be subject to legal challenges in both Sweden and England.

In my previous post I made the straightforward (and I thought uncontroversial) point that any extradition of Assange from Sweden would be subject to international law.  This was in the context of whether the Swedish government could provide a guarantee against Assange being extradited.  My actual words were:

It would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request. 

By asking for this 'guarantee', Assange is asking the impossible, as he probably knows.  Under international law, all extradition requests have to be dealt with on their merits and in accordance with the applicable law; and any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'. 

[...]

Also Sweden (like the United Kingdom) is bound by EU and ECHR law not to extradite in circumstances where there is any risk of the death penalty or torture.  There would be no extradition to the United States in such circumstances.

My implicit contention was that any decision to extradite Assange would be subject to judicial oversight in respect of compliance with international law, as well as national law.   This would be because any decision to extradite would ultimately be under the terms of the relevant treaty between Sweden and the United States.

However, an American legal blogger has challenged me and has even demanded in a Guardian blogpost an apology and retraction from the New Statesman.  His concern is whether the government or the courts have the final word.

Unfortunately, it would appear that he made a simple mistake and missed that any extradition of Assange would have to comply with international law, and not just national law.

On this I am grateful for confirmation from Swedish legal scholars Mark Klamberg and Pål Wrange.

Klamberg’s view is:

…if there is an extradition treaty the Government is bound by an international obligation to extradite and it is only for legally sound reasons that it may refuse. An extradition treaty limits in a considerable way the discretion of the Government to deviate from the ruling of the Supreme Court.

Wrange’s view is:

To put it shortly, Green is right, but his argument can be misinterpreted (no need to develop that here, though). As Klamberg has explained in his blog post on the Swedish extradition procedure, the Government always makes the final decision. However – and this is a very important caveat – even if the Government has leeway under national law, it is bound by international law. Both the Swedish and the UK Governments have extradition agreements with the US, and these agreements provide that extradition shall take place, if the legal requirements are met. Hence, the Government could not provide a guarantee, without potentially violating an international obligation.

I am most grateful to Glenn Greenwald, the American blogger who raised this interesting issue, but on the basis of (and subject to) what Klamberg and Wrange have now said, I stand by what I said in my original post. 

 

Accordingly, the Swedish legal position is clear. 

The Swedish government simply cannot give any prior guarantee in respect of an extradition request which has not even been made.  It is a legal impossibility.   Even though this is a "pre-condition" being demanded on behalf of Assange, it cannot lawfully be given. Any "guarantee" would bind neither the Swedish courts nor the government itself should the United States demand extradition.

And the Swedish government is bound by international law in dealing with any United States extradition request (if one was ever made).  It would be a matter for a Swedish court as to whether the government was in breach of its international obligations in ordering extradition.   And this would be in addition to any legal challenges which Assange could bring against an extradition decision under Swedish, EU and ECHR law, and any actions against the UK government given that their consent would also be required.

 

There are a couple of short final points to be made about the relationship between Sweden and the United States. 

First, Assange’s supporters often refer to the dreadful 2001 case of Agiza and Al-Zery. Here, in an extra-judicial move, two men were renditioned by Sweden to Egypt at the request of the CIA. 

Is this case analogous to the Assange extradition? The first answer is that there is a distinction between judicial and extra-judicial activities – and Assange is wanted for a judicial process. Second, rendition is not extradition.  Third, the Agiza and Al-Zery case caused scandal in Sweden leading, among other things, to payments of substantial compensation once the judicial system was engaged.  It was an awful incident but it is not one which carries over easily to the Assange situation.

But in any case, it appears that in 2006 Sweden stopped rendition flights for the USA. This was reported in December 2010 following a disclosure.

The disclosure was by Wikileaks.

 

Conclusion

The above analysis is moot to the extent that Assange is now in the London Embassy of Ecuador. If he can get safe passage beyond UK territorial waters and arrive in Ecuador, he would appear safe from the Swedish criminal investigation, let alone any extradition request by the United States.

But subject to this, there appears two possible explanations for why he is seeking to avoid extradition to Sweden.

First, it may be possible that there is a subjective fear of being extradited to the United States from Sweden, based on the mistaken belief that it would be easy to extradite him to the United States.  However, as set out above, even if the United States can get round the First Amendment, Assange would have protections under the Swedish-United States treaty, under ECHR and EU law, and under the domestic law of both Sweden and England. Nonetheless, if he has that fear then this mistaken belief may be sincerely held.

But even taking any subjective fears at their very highest, unless and until there is any extradition request by the United States, then due process of an investigation into allegations of rape and sexual abuse in Sweden must be the priority, and Assange should return to face the accusations.  As it stands the criminal investigation is frustrated and unresolved. And complainants of rape and sexual abuse have rights too.

Then there is the rational explanation. In view of the significant protections he would have against onward extradition to the United States from Sweden, it would appear that the only rational (as opposed to subjective) explanation for his refusal is not that he is seeking to avoid any onwards extradition; it is that he simply wants to avoid interrogation and any prosecution for allegations of sexual assault and rape in Sweden.

 

David Allen Green is legal correspondent of the New Statesman

A poster about Julian Assange outside the Ecuadorian embassy. Photo: Getty Images

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.)

Photo: Getty
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The New Statesman 2016 local and devolved elections liveblog

Results and analysis from elections across the United Kingdom. 

Welcome to the New Statesman's elections liveblog. Results will be coming in from the devolved legislatures in Scotland and Wales, local elections in England, and the mayoral contests in London, Salford, Bristol and Liverpool. Hit refresh for updates!

01:27: A thought. The BBC is kind of going for a "Labour leadership says this would be a good figure. His critics say something else. Who is right?". That helps the party leadership, even though, to be frank, the baseline the Labour leadership wants to use is too low to be a useful yardstick. But mostly, the BBC's focus on balance hurts Labour. Cf. "Economists disagree over George Osborne's economics", which of course they do. It's just as that the division is not as finely balanced as Osborne would like to suggest. 

01:23: Labour are pretty confident that they will win Edinburgh Southern from the SNP - most of which mirrors Ian Murray's Edinburgh South seat. If you've never been, it is basically the plushest part of Edinburgh. It's as if Labour had been reduced to just one seat in London - and that seat was Kensington. 

01:21: Results from Glasgow and Fife indicate a third-placed finish is on the cards for Labour. 

01:18: Ukip look likely to be the largest party in Thurrock, and are making gains in Basildon too. 

01:15: You'll be shocked to hear that Labour's Joe Anderson is on course to be re-elected as Mayor in Liverpool. In Edinburgh, Edinburgh Western remains a good chance for the Liberal Democrats while Edinburgh Southern remains hopeful for Labour. (I'd like to apologise in advance for getting these two seats mixed up at some point around 4am.) 

01:10: A word from the Local Government Information Unit (LGiU) who are kindly assisting me with keeping track of the results.  Their Chief Executive, Jonathan Carr-West, has this to say about the results so far:

“The main focus so far tonight continues to be the Labour vote and what it tells us about Corbyn’s leadership. Many Labour councils who have very different political outlooks from the national leadership may feel aggrieved by this relentless focus on the national: especially if, as is likely, it is costing them votes. This will exacerbate the rift that already exists between a radical leadership and a pragmatic local government base.
So far, Labour are holding safe councils (Newcastle, Liverpool, Sunderland and Halton) - but we expect to see them losing significant numbers of seats as the night progresses. To put this in context, the last time these councils were contested Labour gained 823 seats.

We’re also looking at a Labour wipe out in Scotland and losses in the Welsh Assembly. While a Khan victory will be spun as the story of the night, the reality is that no opposition has lost councils seats in this way for thirty years.”

01:04: For those of you just joining us. In Wales, Labour is set to remain the largest party though the Conservatives are rumoured to make gains in the constituencies. In Scotland, the SNP will not win every seat after failing to displace the Liberal Democrats in Orkney. They are confident in Motherwell and Glasgow, but Edinburgh is anyone's game.  In England, Labour are on course to do worse than their first year under Ed Miliband and fall back on 2012 (it was 2012 when these seats were last contested). 

01:01: In terms of the battle for second place, there was also a 7.5 per cent swing from Labour to the Conservatives in Rutherglen. If that keeps up, the Tories will beat Labour to second-place - but only just. 

00:59: The SNP have taken Rutherglen with a nine point swing, putting them on course to take all of Labour's seats. 

00:56: Labour have been whomped by the SNP in Rutherglen, with James Kelly losing his seat by close to 4,000 votes (that's a lot in a Holyrood constituency). 

00:51: That is really a thumping win for the Liberal Democrats. Elsewhere, I am hearing bad news for Labour in Portsmouth, good news in Norwich, where they believe they may have taken three seats off the Greens, and that the Tories have made gains in Nuneaton, which is Labour-dominated at a local level but has sent a Conservative to Westminster since 2010. 

00:48: Rats! The Liberal Democrats have held Orkney, and I am down £20. They are up 32 per cent of the vote there. 

00:45: Turnout from Ogmore, where Labour are fighting both an Assembly seat and a by-election to, is above 40 per cent. Labour are confident of holding it. 

00:42: Labour have gained a seat from the Conservatives in Birmingham and are doing real damage to the Liberal Democrats in Newcastle. My comment about the Liberal Democrat revival is aging really, really well. 

00:40: Scotland incoming! Rutherglen result imminent! Scotpocalypse! Scotpocalypse! 

00:38: McDonnell is beasting Nicky Morgan on BBC doing a very good "more in sorrow than in anger" routine. 

00:34: For an alternative view on Zac Goldsmith, Andrew Boff, a Conservative member of the London Assembly, said this earlier today on Newsnight:

"I don't think it was dog whistle because you can't hear a dog whistle. Everyone could hear this"

00:31: Duncan Smith droning on about how Zac Goldsmith's campaign is not at all racist, oh no. I'm not getting paid enough for this. 

00:29: Iain Duncan Smith has appeared on screen. He says he is "hopeful" that Zac Goldsmith will be elected tonight. In Wales, the Conservatives have walked out of the count in marginal Delyn. Labour are sounding fairly pleased about that, as you'd expect.

00:27: I have made two discoveries. The firsts is that the lights in the New Statesman offices are motion-sensitive. The second is that sitting and typing is not quite enough motion. (It's just me here tonight.)

00:26: Council seats so far: Labour have 59, the Liberal Democrats have four, Ukip have none, the Greens have none. The SNP are hopeful of picking up all the Scottish Parliament seats in Motherwell and Glasgow, but Edinburgh is trickier territory. 

00:25: Speaking of bets...I look likely to owe Wings Over Scotland £20 (I bet on a clean sweep for the SNP in the constituencies), as Labour are buoyant about Edinburgh Southern and the Liberal Democrats are hopeful in Edinburgh Western.

00:19: John McDonnell doing a good job putting a brave face on some grim early numbers for Labour. This line about needing only do better than a general election is nonsense, psephologically speaking but he's making it sound like good sense. A validation of Jeremy Corbyn's decison to ignore even some of his closest allies and put him in as shadow chancellor. And still only 9 to 1 on Betfair as Labour's next leader. 

00:10: People on the BBC and keep talking about 2012 as a "high point for Labour". Is this true? Well, sort of. It was Ed Miliband's best year. However, that doesn't mean that Labour doesn't still have room to gain seats tonight - governments tend to lose seats in opposition and Labour lost seats pretty consistently in the areas up for election tonight throughout their 13-year-stay in government. So they still can and should make gains. And bear in mind, even Ed's good years were padded out with gains in safe Labour seats, which went from Labour strongholds with say, 40 Labour councillors and 20 Liberal Democrats to 58 Labour councilors and three Greens. In the places Labour needs to win at Westminster to get back into government, there is real room for growth. Which is why I wouldn't worry overmuch about losing some* seats in safe seats if when the marginals report Labour is making headway there. 

*Some is key. Going from a majority of 10,000 to 5,000 in Labour heartlands is fine if Corbyn is putting on 5,000 votes in seats Labour lost by that kind of margin. Going from a majority of 10,000 to -1,000 in Labour heartlands, less so. 

00:06: Labour look likely to lose Crawley

00:02: Labour have kept control of Newcastle Council, taking a seat from the Liberal Democrats. (I knew that would happen the second I typed the words "Liberal Democrat revival"). 

00:00: For those of you just joining us: welcome. Labour is projected to lose seats but remain the largest party in Wales, where the Conservatives seem to be gaining ground. In England, the Liberal Democrat revival appears to be a thing and not just a Twitter meme. In Scotland, the SNP are sounding buoyant while the Conservatives believe they may beat Labour into third. London won't count until tomorrow but everyone - Labour, Tory, Cannabis is Safer Than Alcohol - is getting jittery over low turnout. 

23:55: That early worry I heard from Wales has vanished completely from the Tory side. Vale of Glamorgan is rumoured to be close - a close to six point swing to the Conservatives. So we have biggish swings away from Labour so far tonight. 

23:52: Labour are down 17 per cent in the six seats we've had so far (from 2012 when last contested). Still not very much data, but that would put the party in the mid to low 20s in terms of nationwide share. Personally I think it's unlikely to be that bad when all the results have rolled in. 

23:48: How about that Liberal Democrat fightback, huh? The Liberal Democrats have won a seat in Sunderland from Labour. 

23:47: The knives are already out for Kezia Dugdale in Scotland, where Labour may come third. 

23:42: Bad news for Labour from Wales. Clywd South is in play and the Tories may well win it. Cardiff North, which is Conservative-held at Westminster, looks likely to go the same way in the Assembly having been Labour-held since 2011. Newport West and Llanelli are worth looking out for too. 

23:39: Good news for Labour - they've held the first seat to declare out of Newcastle, and the Liberal Democrats, their main opposition, have privately conceded that Labour will remain large and in charge in Newcastle. 

23:35: Speaking of the Liberal Democrats, they are feeling cautiously optimistic about winning a seat in Edinburgh Western from the SNP, while they expect to recover a bit from 2015. (Things could hardly get worse, I suppose.)

23:32: The first Labour gain of the night, as a Liberal Democrat councilor in Stockport defects. 

23:30: Labour sources are gloomy about their chances of holding onto Exeter Council, where Ben Bradshaw is the party's only remaining MP in the South West. Looks like it will slip into no overall control. Party is also nervous about holding Derby. 

23:25: Tory mole in Wales tells me that things look bad for them - potentially worse than the losses shown in YouGov's poll. The election has become "a referendum on steel", apparently. 

23:20: Early results from Sunderland show Labour doing fairly badly (you know, for Sunderland) and Ukip doing very well. But one swallow doesn't make a summer and we need more data before we know anything. 

23:15: We should get our first result from Scotland in 45 minutes or so. Rutherglen, Labour-held since the Scottish Parliament's creation in 1999, and highly likely to go to the SNP. 

23:13: And what the results mean so far, according to ace numbercruncher Matt Singh:

23:07: Those numbers from Sunderland, where Labour have held in St Anne's ward. Labour down 15 points on 2012, when these seats were last fought, Tories down 3. It's Ukip who are making the headway (they didn't stand last time and expect them do post performances like this throughout the United Kingdom tonight and as results roll in over the weekend). 

23:04: Back to Wales - YouGov's poll "looks about right" according to my Plaid Cymru source. What does that mean? Labour could go it alone and do deals on a vote-by-vote basis - they govern alone now with just 30 seats. If the poll is even a little out - let's say either Labour or the Liberal Democrats get one more seat - they might do a deal if they can get a majority with the Welsh Liberal Democrats. 

23:01: Pallion Ward in Sunderland is the first to declare, and it's a Labour hold! More on percentages as I get them. 

22:58: Why isn't it an exit poll, I hear you ask? Well, an exit poll measures swing - not vote share, but the change from one election to the next. People are asked how they've voted as they leave polling stations. This is then projected to form a national picture. Tonight's two polls are just regular polls taken on the day of the election. 

22:57: The Sun's poll - again, not an exit poll, I'm not kidding around here - of Scotland has the SNP winning by a landslide. (I know, I'm as shocked as all of you) But more importantly, it shows the Conservatives beating Labour into second place. The Tories believe they may hold onto Ettrick as well. 

22:55: What news from Scotland? Labour looks to have been wiped out in Glasgow. Liberal Democrats think they might hold at least one of Orkney or Shetland, while the seats in Edinburgh are anyone's game. 

22:52: Hearing that turnout is low in Waltham Forest, Lewisham, Hackney and my birthplace of Tower Hamlets (the borough's best export unless you count Dizzie Rascal, Tinchy Stryder or Harry Redknapp, that's me). Bad news for Labour unless turnout is similarly low in the Tory-friendly outer boroughs. 

22:47: YouGov have done a poll (note: not an exit poll, it should not be taken as seriously as an exit poll and if you call it an exit poll I swear to god I will find you and kill you) of the Welsh Assembly. Scores on the door:

Labour 27

Plaid Cymru 12 

Conservatives 11

Ukip 8

Liberal Democrat 2

There are 60 seats in the Assembly, so you need 30 seats for a majority of one. 

22:40: In case you're wondering, how would closing a seven point deficit to say, six, compare to previous Labour oppositions, I've done some number-crunching. In 1984, Neil Kinnock's Labour turned a Tory lead of 15 per cent at the general election to a Conservative lead of just one per cent. In 1988, one of 12 per cent went down to one per cent. (He did, of course, go on to lose in both the 1987 and 1992 elections). In 1993, John Smith's Labour party turned a deficit of eight points at the general to a Labour lead of eight points in the local elections. William Hague turned a Labour lead of 13 points to one of just six in 1998, while Iain Duncan Smith got a Tory lead of just one point - from a Labour lead of nine. In 2006, new Tory leader David Cameron turned a 3 point Labour lead to a 13 point Tory one. Ed Miliband - remember him? - got from a Tory lead of seven points to a two point Labour one. 

22:35: John McDonnell is setting out what would be a good night as far as the party leadership is concerned - any improvement on the 2015 defeat, when the party trailed by close to seven points. Corbyn's critics say he needs to make around 400 gains.

I've written about what would be good at length before, but here's an extract:

"Instead of worrying overmuch about numbers, worry about places. Although winning seats and taking control of councils is not a guarantee of winning control of the parliamentary seat – look at Harlow, Nuneaton, and Ipswich, all of which have Labour representation at a local level but send a Conservative MP to Westminster – good performances, both in terms of increasing votes and seats, are a positive sign. So look at how Labour does in its own marginals and in places that are Conservative at a Westminster level, rather than worrying about an exact figure either way."

22:31: Oh god, the BBC's election night music is starting. Getting trauma flashbacks to the general election. 

22:22: A few of you have been in touch about our exit poll. Most of you have been wondering about that one vote for George Galloway but the rest are wondering what happens - under the rules of the London mayoral race (and indeed the contests in Salford, Bristol and Liverpool), 2 votes would not be enough for Sadiq. (He needs 2.5). However, all the other candidates are tied - which makes it through to the second round. What happens then is the second preferences are used as a tie-break. Of the tied candidates, Sian Berry has the most second preferences so she goes through to face Sadiq Khan in the final round. Final round is as follows:

Sadiq Khan: 3

Sian Berry: 2

3 votes is above the quota so he is duly elected. An early omen? 

22:19: Burnham latest. A spokesperson for Andy Burnham says:

"Approaches have been made to Andy Burnham to give consideration to this role. It is early days and no decision as been taken. Whatever the decision, he will continue to serve the leader of the party and stay in the shadow cabinet."

22:17: Anyway, exit poll of the office. We've got:

Sadiq Khan: 2

George Galloway: 1

Caroline Pidgeon: 1

Sian Berry: 1

22:15: Update on Andy Burnham. He has been asked to consider running. More as we get it. 

22:13: People are asking if there's an exit poll tonight. Afraid not (you can't really do an exit poll in elections without national swing). But there is a YouGov poll from Wales and I am conducting an exit poll of the four remaining members of staff in the NS building. 

22:11: It's true! Andy Burnham is considering running for Greater Manchester mayor. Right, that's it, I'm quitting the liveblog. Nothing I say tonight can top that. 

22:09: Rumours that professional Scouser Andy Burnham is considering a bid for Greater Manchester mayor according to Sky News. Not sure if this is a) a typo for Merseyside or b) a rumour or c) honestly I don't know. More as I find out. 

22:06: Conservatives are feeling good about Trafford, one of the few councils they run in the North West.

22:03: Polls have closed. Turnout looks to be low in London. What that means is anyone's guess to be honest. There isn't really a particular benefit to Labour if turnout is high although that is a well-worn myth. In the capital in particular, turnout isn't quite as simple a zero-sum game as all that. Labour are buoyant, but so are the Tories. In Scotland, well, the only questions are whether or not the SNP will win every single first past the post seat or just the overwhelming majority. Both Labour and Tory sources are downplaying their chances of prevailing in the battle for second place at Holyrood, so make of that what you will. And in Wales, Labour look certain to lose seats but remain in power in some kind of coalition deal. 

22:00: Good evening. I'm your host, Stephen Bush, and I'll be with you throughout the night as results come in from throughout the country. The TV screens are on, I've just eaten, and now it's time to get cracking. 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics.