Legal myths about the Assange extradition

A brief critical and source-based guide to some common misconceptions.

Whenever the Julian Assange extradition comes up in the news, many of his supporters make various confident assertions about legal aspects of the case. 

Some Assange supporters will maintain these contentions regardless of the law and the evidence – they are like “zombie facts” which stagger on even when shot down; but for anyone genuinely interested in getting at the truth, this quick post sets out five common misconceptions and some links to the relevant commentary and material.  It complements a similar post on the leading Blog That Peter Wrote.

[Add: this post is now supplemented by my more detailed post on the legal mythology of Julian Assange; also do see this excellent post by barrister Anya Palmer.]

Please note that particularly relevant in this case are the three English court rulings which are freely available on-line: Magistrates’ Court, High Court, and Supreme Court.

 

One: “The allegation of rape would not be rape under English law”

This is flatly untrue.  The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegation would also constitute rape under English law.

(See my post at Jack of Kent for  further detail on this.)

 

Two: “Assange is more likely to be extradited to USA from Sweden than the United Kingdom”

This is similarly untrue. Any extradition from Sweden to the United States would actually be more difficult. This is because it would require the consent of both Sweden and the United Kingdom.

(See Francis FitzGibbon QC’s Nothing Like the Sun for further detail on this.)

One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States; quite the reverse.  Ask Gary McKinnon, or Richard O'Dwyer, or the NatWest Three.

In reality, the best opportunity for the United States for Assange to be extradited is whilst he is in the United Kingdom.

 

Three: “Sweden should guarantee that there be no extradition to USA”

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'. 

(See extradition and criminal lawyer Niall McCluskey for further detail on this.)

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.

(See Mark Klamberg’s blog for further information on this.)

 

Four: “The Swedes should interview Assange in London”

This is currently the most popular contention of Assange’s many vocal supporters.  But this too is based on a misunderstanding. 

Assange is not wanted merely for questioning. 

He is wanted for arrest.

This arrest is for an alleged crime in Sweden as the procedural stage before charging (or “indictment”).  Indeed, to those who complain that Assange has not yet been charged, the answer is simple: he cannot actually be charged until he is arrested.

It is not for any person accused of rape and sexual assault to dictate the terms on which he is investigated, whether it be Assange or otherwise.  The question is whether the Swedish investigators can now, at this stage of the process, arrest Assange.

Here the best guide is the High Court judgment. In paragraph 140, the Court sets out the prosecutor’s position, and this should be read in full be anyone following this case:

140.  Mr Assange contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose of questioning Mr Assange rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated 11 February 2011 on behalf of the Prosecutor:

  "6. A domestic warrant for [Julian Assange's] arrest was upheld [on] 24 November 2010 by the Court of Appeal, Sweden. An arrest warrant was issued on the basis that Julian Assange is accused with probable cause of the offences outlined on the EAW.

  "7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange's case is currently at the stage of "preliminary investigation". It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.

  "8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.

  "9. It is submitted on Julian Assange's behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange's case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate Assange, in person, regarding the evidence in respect of the serious allegations made against him.

  "10. Once the interrogation is complete it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries."

And in paragraph 160 of the same judgment, the High Court explains why such a requirement is not “disproportionate” as submitted by Assange’s lawyers:

160.  We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange's surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge.

The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution.

Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.

 

Five: “By giving Assange asylum, Ecuador is protecting freedom of the press”

This is perhaps the strangest proposition.

Ecuador has a woeful record on freedom of the press. It is 104th in the index of world press freedom, and even the quickest glance at the examples of press abuse in Ecuador accumulated by Reporters Without Borders and Index on Censorship indicate a regime with a starkly dreadful and illiberal record on freedom of expression.

It has even recently been reported that a blogger called Alexander Barankov is to be extradited by Ecuador to Belarus, of all places, where he may face the death penalty. 

Whatever the reason for Ecuador granting political asylum to Assange, there is no basis for seeing it as based on any sincere concern for media freedom either in Ecuador or elsewhere.

 

The way forward

Due process is important.  It is the formal means by which competing demands and seperate interests can be accommodated and reconciled in any overall litigation process.  This is why due process is an important liberal principle.

Assange has challenged the arrest warrant in Sweden.  It was upheld. 

He then repeatedly challenged the European Arrest Warrant in the United Kingdom.  He lost at every stage, but each of his many legal arguments were heard and considered in extensive detail.

And in doing this, Assange had the assistance of first rate legal advice and advocacy from some of the UK's leading human rights lawyers, and he also had the benefit of having been granted bail in England in the meantime.  The extradition was fought by him all the way to the Supreme Court.  

Assange has been afforded more opportunities to challenge the warrant for his arrest than almost any other defendant in English legal history.  This is hardly "persecution" or a "witch-hunt".

The English side of the process is now almost over: there is a valid European Arrest Warrant which has to be enforced as a matter of international law. 

If Assange is extradited to Sweden, it may well be that the serious allegations of rape and sexual assault cannot be substantiated.  But that is entirely a matter for the Swedish investigators and for any Swedish court.  It is not an issue which can be dealt with by proxy in English litigation, and still less by heated internet exchanges.  In the event of an extradition request by the USA then Assange has the same rights under EU and ECHR law as he has in the United Kingdom, together with an additional safeguard of consent being required from both UK and Sweden.  It is difficult to see a sensible and well-based reason why Assange should not now go to Sweden.

Even taking the worries of Assange and his supporters at face value and at their highest, there is nothing which actually means the due process of a current rape and sexual assault investigation should be delayed any further or abandoned. 

It is important to remember that complainants of rape and sexual assault have rights too, even when the suspect is Julian Assange.

 

[Postscript, 22 August:  the "temporary surrender" Zombie fact has now been exposed by legal blogger Greg Callus.  This means all the supposed legal points argued by Assange supporters have been addressed by one UK legal blogger or other.]

 

David Allen Green is legal correspondent of the New Statesman

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Julian Assange gives his Sunday address to the faithful from a Kensington balcony. Photograph: 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.)

Alan Schulz
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An Amazonian tribe is challenging scientific assumptions about our musical preferences

The Tsimane’ – a population of people in a rural village in Bolivia – are overturning scientists' understanding of why humans prefer consonant sounds over dissonant ones.

It was 29 May 1913. Hoards of Parisians packed out the newly-opened Théâtre des Champs-Élysées. Messrs Proust, Picasso and Debussy were in attendance. Billed for the evening was the premiere of Le Sacre du PrintempsThe Rite of Spring, a ballet and orchestral work debuted by Russian composer Igor Stravinsky.

The attention and conjecture focused on the theatre that day meant expectations were high. However, within moments of the piece beginning, all preconceived notions held by the audience were shattered, as what was unfolding in front of them was a musical tragedy unlike anything they had ever witnessed.

A bassoon hummed into the ether before ballet dancers stomped on stage; the music, unpredictable with its experimental edge, drove forth the onstage narrative of a young girl whose selection during a pagan ritual saw her sacrificially dance towards death. Stravinsky’s composition and the ensemble of the night caused the room to descend from laughter and disruption to chaos and uproar.

The employment of dissonance – sharp, unstable chords – largely contributed to the audience’s disturbed reaction. Dissonant chords create a tension, one which seeks to be resolved by transitioning to a consonant chord – for example an octave or perfect fifth. These musical intervals sound far calmer than the chords which riveted the audience of The Rite of Spring.

Dissonant and consonant intervals find themselves as binary opposites; the frequencies at which notes played together vibrate determine whether an interval is consonant or dissonant. Consonant intervals have simple mathematical relationships between them, but greater digression from that simplicity makes an interval increasingly dissonant.

It’s long been believed  both experimentally and anecdotally – that the preference among Westerners for consonant chords highlights a universal, perhaps biologically-rooted, leaning among all humans towards consonant sounds. If you were present at the introduction of Stravinsky’s The Rite of Spring on that night of furore in Paris, you’d find it hard to disagree.

There is, however, a growing movement against this consensus. Ethnomusicologists and composers alike argue that favouring consonance may just be a phenomenon that has evolved from Western musical culture. And following the visit of a group of researchers to a remote Amazonian society, these claims could well be grounded in scientific evidence.

Led by Josh McDermott, an MIT researcher who studies how people hear, the group travelled to a village in the Amazon rainforest called Santa Maria. It’s populated by the Tsimane’ – a group of native Amazonians whose rural abode is inaccessible by road and foot, and can be reached only by canoe. There are no televisions in Santa Maria and its inhabitants have little access to radio, meaning exposure to Western cultural influences is minimal.

The researchers were curious to see how the Tsimane’ would respond to music, in order to determine whether they too had a preference for consonant sounds over dissonant ones. To everyone’s surprise, the Tsimane’ showed no preference for consonance; the two different sounds, to the Tsimane’ at least, were equally pleasant.

Detailing their research in a paper published by Nature, the group explains how the Tsimane’ people’s indifference to dissonance is a product of their distance from Western culture and music, removing any purported notion that humans are hard-wired to praise perfect fifths and fourths.

McDermott tells me that the Western preference for consonance may just be based on familiarity. “The music we hear typically has more consonant chords than dissonant chords, and we may like what we are most exposed to,” he says. “Another possibility is that we are conditioned by all the instances in which we hear consonant and dissonant chords when something good or bad is happening, for example in films and on TV. Music is so ubiquitous in modern entertainment that I think this could be a huge effect. But it could also be mere exposure.”

To fully gauge the Tsimane’ responses to the music, 64 participants, listening via headphones, were asked to rate the pleasantness of chords composed of synthetic tones, and chords composed of recorded notes sung by a vocalist. At a later date, another 50 took part in the experiment. They had their responses compared to Bolivian residents in a town called San Borja, the capital city La Paz, and residents in the United States – locations selected based on their varying exposures to Western music.

What made the Tsimane’ particularly interesting to McDermott and his group was the absence of harmony, polyphony and group performances in their music. It was something the researchers initially thought may prevent an aesthetic response from forming, but the worry was quickly diminished given the Tsimane’ participants’ measure of pleasantness on the four-point scale they were provided.

Unsurprisingly, the US residents showed a strong preference for consonance – an expected preference given the overrunning of Western music with consonant chords. Meanwhile, the San Borja and La Paz residents demonstrated inclinations towards consonant sounds similar to the US residents. The implication of these results – that consonance preferences are absent in cultures “sufficiently isolated” from Western music – are huge. We most probably aren’t as polarised by consonance and dissonance as we assume; cultural prevalence is far more likely to have shaped the consonant-dominant sounds of Western music.

McDermott raised the question about why Western music may feature certain intervals over others to begin with:

“One possibility is that biology and physics conspire to make conventionally consonant and dissonant chords easy to distinguish, and so that distinction becomes a natural one on which to set up an aesthetic contrast even if the preference is not obligatory. We have a little evidence for this in that the Tsimane' could discriminate harmonic from inharmonic frequencies, which we believe form the basis of the Western consonance/dissonance distinction, even though they did not prefer harmonic to inharmonic frequencies.”

There has been some criticism of this. Speaking to The Atlantic, Daniel Bowling from the University of Vienna said:

“The claim that the human perception of tonal beauty is free from biological constraint on the basis of a lack of full-blown Western consonance preferences in one Amazonian tribe is misleading.”

Though the results from the Amazonian tribe demonstrate a complete refutation of previous assumptions, people's musical preferences from other cultures and places will need to be analysed to cement the idea.

With research beginning to expand beyond WEIRD people – those from a Western, Educated, Industrialised, Rich and Democratic background – the tastes in music of people the world over may continue to surprise, just as the Tsimane’ did.

The Rite of Spring, which was met with ridiculing reviews has now been canonised and is considered to be one of the most important pieces of music of the twentieth century. A Tsimane’ crowd on that tender night a century ago in Paris may have responded with instant praise and elation. With further research, the imagined Bolivian adoration of a Russian composer’s piece in the French city of love may prove music to be the universal language after all.