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.)

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Connected - to save time, money and lives

Businesses and the public sector in the UK are increasingly exploring new ways they can work with the help of connected technology – and the benefits this will bring.

We live in a world that’s increasingly connected. EE was born three years ago and has spent this time creating one of the fastest and most reliable 4G networks in any country. The effect of this growth means more for the British population as a whole, along with its critical infrastructure and emergency responders, than it does for individuals and consumers.

Why? Mobility, according to analysts CCS Insight, is “the fulcrum of digital transformation”. In the short time that mobile networks have existed – and the even shorter and more profound growth arc of 4G – mobility has moved from being about faster speeds and more services on our phones to a whole new world of possibilities for the way we live and work.

The latest mobile technologies can make small companies look big. And, the experts warn, they can make big companies look unintentionally small.

Over 500,000 businesses in the UK use our network and services to increase productivity and save money. Much of the public sector uses it to save money too – and save lives. We’d like to walk you through the stories emerging from this new world – sharing some examples of what happens when workers, customers and machines become truly connected.

Connected Vehicle

Businesses in the UK have long treated their cars, vans and other vehicles as their mobile offices, workshops or command centres, whether for field engineers, sales reps or dozens of other roles. But it’s not always been easy. 

That’s changing. Take utility Northumbrian Water. It is responsible for 55,000km of pipelines, many in rural parts of the UK. It has found a solution in the Connected Vehicle service from EE that is based on transportgrade equipment. External antennae on a van connect to a ruggedised router that deals with extreme temperatures and can handle vibrations from road surfaces. 4G becomes a shared WiFi connection for workers and devices out in the field, increasing their efficiency significantly as workers can stay connected on site, rather than having to travel back to the office.

And is it effective?

“The business case writes itself,” said Alan Sherwen, head of IS service and operations at Northumbrian Water, which is now looking at a wider rollout.

Beyond the private sector, the public sector is throwing off its image as a technology laggard. Blue-light fire, police and ambulance services are doing more than just seeing the potential.

East Midlands Ambulance Service’s head of IM&T, Steve Bowyer, describes his experience with 4G’s “reliable, consistently fast data connections” as “quite transformational”.

The ambulance service knows that every second counts, especially when accidents occur in remote locations.

Bowyer calls the use of 4G-connected vehicles “an extension of our control room” – for example, 4G-equipped ambulances allow paramedics to send vital information to hospitals ahead of arrival.

And it’s a similar story with the police. Officers collect and submit evidence from the scenes of crimes and accidents. Staffordshire Police has started to use connected vehicles and more broadly estimates its 4G devices provide the equivalent of 250,000 additional hours of policing time on the beat each year. That’s the equivalent of 100 extra officers.

Rapid Site

The technology we’re talking about – fast, robust, often rural connectivity – isn’t always about being on the move. Industries such as construction that occupy a location sometimes for a matter of months are also employing high-speed, managed services to serve those on site.

Jackson Civil Engineering used to have to wait three months to get a line installed. It was holding back the business.

“The challenges I face are making sure the guys on site get connectivity and transmit information from laptops, mobile phones and tablets,” said Justin Corneby, the company’s IT manager. “If there’s no connectivity for our guys on the ground it almost stops them working completely.” Now setup at a new location takes under three days, and speeds tend to be up to 60Mbps where, before, a fixed line gave the company 8Mbps.

Housing association Green Square faces a similar challenge in its efforts to supply about 400 homes every year in the west of England.

Mark Gingell, ICT service manager at Green Square, said: “[We have] some challenges about how do we get our staff access to the internet. What we want is a seamless process for them to be able to log on and have the information at hand. The ultimate goal is to make great places where people can live.”

Public WiFi – in a box

Other types of business are on this connected journey too. Richardson’s operates 310 holiday boats on the Norfolk Broads and 4G Public WiFi from EE means not only coverage and simplicity for customers wanting internet access but knowing that compliance and online safety for families, through web filtering, is taken care of. In fact a whole range of businesses are now possible, many employing mobile payments systems which through their security and 4G connections open up a world of pop-up possibilities to businesses big and small.

Connected Health 

And lastly, the NHS is showing us that innovation can be built on even relatively simple technology. ‘Did not attend’ – or DNAs – cost the health service around £900m every year. That breaks down as £137 for every missed hospital appointment, £45 for each at a GP’s surgery. 

Intelligent messaging from EE means patients get a text message and simply reply to cancel or confirm an appointment. DNAs have been reduced by 67 per cent in one case, freeing up slots for others. That means there is the potential to save the NHS over £500m annually, just by improving the booking and scheduling service for patients with intelligent messaging. Meanwhile healthcare professionals get to target groups by demographics – for example, elderly people when it’s flu jab season. In short, this approach saves time, saves money and even saves lives.

Now you can

When we were the first to launch 4G in the UK, we had a simple message: Now you can. Most people took that to mean simply that smartphones, tablets, laptops and upcoming smart devices could get a faster network connection. But it’s been about much more than that.

Today, being connected in this way is a vital component for business and Britain’s vital public services. Our recent research of 1,000 UK businesses shows that 50 per cent of customers say 4G is critical to their business success. They report a 10 per cent uptick in productivity when adopting 4G – and gains can be greater in the public sector.

And we’re nowhere near finished. Now any organisation in the private or public sector can share in this connected story, employing new technology and innovative approaches as a managed service or in any way that best works for them. We are just as excited about the next three years as the last three.