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.)

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“There will be an absolute meltdown in 2020” : what’s holding back the introduction of electronic voting?

The government's reluctance to implement electronic voting will affect our future, and in – the case of Brexit – may have already dramatically affected our past. 

Imagine, just for a second, that the situation was reversed. Imagine if, for a hundred years, we had scanned, swiped, and tapped our votes into a secure, fool-proof electronic system and someone waddled along and said, “Alright lads, how about we try pencil and paper?”. How about we desperately try to find a spare hour to shuffle to the village hall in the rain and scratch an “X” onto a scrap of paper with a stubby bit of lead, and then let a volunteer named Deidre count it at two am? What could possibly go wrong?

If you picture this scenario – posited by my colleague Anna – then it quickly becomes clear how ridiculous it is that the UK has not yet implemented electronic voting in any lasting way, shape, or form. Not only are we not on board with popping online to vote, we’re also reluctant to use technology when it comes to marking our ballots, authenticating voters’ identities, and counting votes. Despite the success of electronic voting in countries such as Brazil, Estonia, and India, the UK continues to reject reform. Why?

 “I think the problem is political at the moment,” says Mike Summers, the program manager at Smartmatic, an electronic voting company who have run three national elections in the Philippines, have a 15 year contract with Belgium, and have counted around 3.7 billion electronic votes in 12 years. “I think there is a fear that if you enfranchise groups of younger people, then you don’t necessarily know how they’re going to vote.”

We can, however, make a pretty good guess. Smartmatic’s own research shows that 57 per cent of 18-24 year olds would be more likely to vote if they could do so online and 55 per cent said they would have used online voting at the last general election. As Labour's vote share could have been boosted at the last election if only more young people had turned out to vote, this might make electronic voting an uninviting prospect for Theresa May.

“Prior to the last parliamentary election the Labour party were vehemently in favour of electronic voting,” says Summers. “Things are moving very slowly compared to other developing and developed nations so our reading of the situation is that it’s a largely political one.”

The consequences of this inaction are severe. Holding off on a voting system that provides greater accessibility to all compromises the very notion of democracy, but it also has potentially more immediate repercussions. “In 2020 everything is going to hit the proverbial fan we’re going to be a laughing stock,” says Summers.

The reason for this is because of the wide array of elections sheduled for 2020. Not only will there be a general election, there are also police and crime commissioner elections, the London Assembly and the London mayoral elections, and also local elections. “There is real concern that because of the complexity of this event there is going to be an absolute meltdown.”

Electronic voting would help prevent such a meltdown by ensuring, among other things, that voters couldn’t accidentally mark a first past the post ballot with a preferential voting system (or vice versa), that votes could be counted faster, and that overseas votes would not be lost in the post. The last is of particular importance as the government are now planning to scrap the 15-year rule that bans long-term expatriates from voting in UK elections.

“That’s a potential five million additional expats who will be eligible to vote,” says Summers, “How are you going to service them?” The answer to that is via the postal vote, and the limitations of this traditional method make the case for electronic voting even stronger.

“Postal voters authenticate themselves with a signature – mine is easily forgeable – and their date of birth,” says Summers. “The traditional methods are not secure. With online voting we can use facial biometrics to compare a person’s digital facial portrait – a selfie, if you like – with their ID, and we can verify there is a match.

“The next problem is security, and putting your ballot in an envelope is not secure. We have very, very strong application level cryptography. The moment a voter casts their ballot we encrypt it on the voting side and digitally sign it as a method of proving the integrity. Additionally, when postal voters put their vote in the post box they have no way of checking it was received or counted, so you have no verifiability. We have a number of tools that voters can use to verify their vote was received and was included in the final tally.”

Nowhere is the importance of the postal vote clearer than in the case of Brexit. “You could argue that the outcome would have been different,” says Summers. “Lots of expats voted by post and a lot of the votes didn’t come back before the close of the election count. We have an office in Amsterdam and one of the guys plays in a local rugby club in The Hague. There are ten Brits on that team and six of them received their postal vote after the close of the election. If you’re an expat living overseas then are you going to vote for or against Brexit? If those voters had voted then the outcome could have been completely different.”

Yet the benefits of accuracy, transparency, verifiability, and accessibility are easily side-lined by one bloodcurdling word. Hackers. If Hillary Clinton’s emails can become your bedtime reading, isn’t it possible – nay, probable – that elections will be hacked, falsified, and corrupted?

“The easiest election to hack is a paper election,” says Summers. “It is important to educate people on the difference between election information systems, which the DMC use, and voting systems. The protections of voting systems are above and beyond anything you will use in any other online application, including online banking and ecommerce solutions.”

As a representative of Smartmatic, Summers would say this, but they and other companies have created a wide variety of solutions which – even if imperfect – are vulnerable to fewer mistakes than Deidre in the village hall. Even if there are flaws, it seems important to iron these out now – before 2020 – to ensure the success of electronic voting in the future.

Although the House of Commons’ Commission on Digital Democracy recommended that the UK should adopt electronic voting by 2020, there is little evidence that steps are being taken towards this goal. “I’d love to turn around and say I think steps are being taken but there is a lack of willingness to acknowledge the shortcomings that we have in terms of UK elections,” says Summers. For now, then, the debate rages on. Should we stick to the tried-and-tested, or should we transform the electoral process forever? I know – let's vote on it. 

Amelia Tait is a technology and digital culture writer at the New Statesman.