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

Comments on this blog are now closed.

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.)

Getty
Show Hide image

New Times: David Runciman on networks and the digital revolution

The digital revolution has had two profound effects on how power is distributed – both of which squeeze the state's power.

Left-wing political parties exist to use the power of the state to rectify unjust distributions of power in society. What has gone wrong with this project? First, the political parties bit. Established parties everywhere are struggling to seem relevant to most people’s everyday concerns: they look increasingly like the tired relics of a more hierarchical age. The exception, of course, is the current Labour Party, which has opened itself up to become the biggest mass-membership party in Europe. But the trade-off has been to move away from seeing the acquisition of power as its primary purpose. These days parties can only really draw people in by offering to be vehicles for the expression of political resentment and disenchantment. But that is no way to rectify the causes of their resentment; neglecting the challenge of power usually ends up making things worse.

However, this is just a symptom of the wider problem, which is the changing nature of power. Technology lies at the heart of it. The digital revolution has had two profound effects on how power is distributed. First, it has empowered individuals, by providing them with unprecedented access to information, tools of communication and the means of expression. This is power exercised as choice: we all now have multiple ways of registering our likes and dislikes that never existed before.

Second, the digital revolution has empowered networks, creating vast new webs that span the globe. Some of them, such as Facebook, are close to being monopolies. We end up joining the networks that other people have joined, because that’s where the action is. This gives a small number of networks an awful lot of power.

Both of these developments are deeply problematic for the power of the state. The proliferation of choice makes citizens much harder to satisfy. Many of us have got used to micromanaging our lives in ways that leaves government looking flat-footed and unresponsive, no matter how hard it tries. At the same time, states face global networks that they have no idea how to control. International finance is one of these: money is information and information now has too many different ways to flow. States are getting squeezed.

The paradox is that the same forces that are squeezing the state are also giving impetus to left-wing politics. There are huge imbalances of power being created in networked societies. The monopolists are hoovering up money and influence. Personal connections count for more than ever, now that networked connections have become ubiquitous. Education is turning into a way of pulling up the drawbridge rather than moving up the ladder. One temptation for the left is to assume that the evidence of injustice will sooner or later outweigh the disabling effects of these social forces on the state. That is part of the Corbyn gamble: hang around until people are sufficiently pissed off to start demanding social-democratic solutions to their problems.

I don’t think this is going to happen. There is nothing to suggest that popular dissatisfaction will find its way back to the state as its best outlet. It will be channelled through the networks that are making the life of the state increasingly difficult.

The other temptation is to think that the left can achieve its goals by bypassing conventional social democracy and channelling its own ambitions into network politics. This is the other side of the Corbyn gamble, or at least the view of some of the people who have attached themselves to him: a new politics is coming that uses digital technology to mobilise fleet-footed networks of activists who can generate change without going through the cumbersome and time-consuming process of winning general elections. That also looks pretty wishful to me. These networks are just another vehicle for expressing personal preferences. They don’t have any means of changing the preferences of people who think differently. You need to win power to do that.

The state’s power is being squeezed by networks of empowered individuals, but these networks don’t have the kind of power necessary to do the redistributive work of the state. What is the left to do? It needs to try to find value in the fact that the state is not just another network. The right does this instinctively, by talking up the state’s security functions and championing ideas of sovereignty and national identity. But that does nothing to address the deleterious effects of living in a modern networked society, where we are swamped by personal choice but impotent in the face of corporate and financial power.

Rather than trying to harness the power of networks, the left should stand up for people against the dehumanising power of Big Data. The state isn’t Google and should not try to pretend to be. We don’t need more choice. We don’t need more efficiency of the kind that digital technology is endlessly supplying. We need protection from the mindless bureaucratic demands of the new machine age: the relentless pursuit of information, regardless of the human cost. There are limits to what the state can do but it retains some real power. It still employs real human beings; it educates them and provides them with welfare. It should do what is in its power to make the work tolerable and the education meaningful, to provide welfare in ways that don’t leave people at the mercy of faceless systems. The left needs to humanise the state.

At the moment, too much energy is being spent trying to humanise the party. We are told that people are tired of robotic, careerist politicians; they want unspun versions of people like themselves. But robotic politicians aren’t the problem; the coming age of robots is. While the party tries to feel more comfortable with itself, the effects of a networked society are running rampant. Acquiring the power of the state is still the best way to fight back. It doesn’t matter if that has to be done in an ugly, mechanised, artificial way, by careerist politicians with whom we wouldn’t choose to spend our personal time. Better an ugly, artificial politics than an ugly, artificial world. 

David Runciman is a professor of politics and the head of the department of politics and international studies at Cambridge

This article is part of a New Times collection of the future of the left. Read the other pieces here.

 

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times