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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Why aren’t there more scientists in the National Portrait Gallery?

If the National Portrait Gallery celebrates the best of British achievements, there’s a vast area that is being overlooked.

The National Portrait Gallery (NPG) in London is my favourite place to visit in the city, even though I’m a mere scientist, or uncultured philistine as the gallery’s curators might consider me. Much of my research involves “omics”. We have “genomics” and “transcriptomics" to describe the science of sequencing genomes. “Proteomics” characterises our proteins and “metabolomics” measures refers to the small chemical “metabolites” from which we’re composed. The “ome” suffix has come to represent the supposed depiction of systems in their totality. We once studied genes, but now we can sequence whole genomes. The totality of scientific literature is the “bibliome”. The NPG purports to hang portraits of everyone who is anyone; a sort of “National Portraitome”.

However, I am increasingly struck by the subjective view of who is on display. Some areas of British life get better coverage than others. Kings and queens are there; Prime ministers, authors, actors, artists and playwrights too. But where are the scientists? Those individuals who have underpinned so much of all we do in the modern world. Their lack of representation is disappointing, to say the least. A small room on the ground floor purports to represent contemporary science. An imposing portrait of Sir Paul Nurse, Nobel laureate and current president of the world’s most prestigious science academy (the Royal Society (RS)) dominates the room. Opposite him is a smaller picture of Nurse’s predecessor at the RS, astronomer Martin Rees. James Dyson (the vacuum cleaner chap), James Lovelock (an environmental scientist) and Susan Greenfield all have some scientific credentials. A couple of businessmen are included in the room (like scientists, these people aren’t artists, actors, playwrights or authors). There is also one of artist Mark Quinn’s grotesque blood-filled heads. Some scientists do study blood of course.

Where are our other recent Nobel winners? Where are the directors of the great research institutes, funding bodies, universities and beyond? Does the nation really revere its artists, playwrights and politicians so much more than its scientists? I couldn’t find a picture of Francis Crick, co-discoverer of the key role played by DNA in genetics. Blur, however, are there. “Parklife” is certainly a jaunty little song, but surely knowing about DNA has contributed at least as much to British life.

Returning to my “omics” analogy, the gallery itself is actually more like what’s called the “transcriptome”. Genes in DNA are transcribed into RNA copies when they are turned on, or “expressed”. Every cell in our body has the same DNA, but each differs because different genes are expressed in different cell types. Only a fraction of the NPG’s collection ends up “expressed” on its walls at any one time. The entire collection is, however, available online. This allows better insight into the relative value placed upon the arts and sciences. The good news is that Francis Crick has 10 portraits in the collection – considerably more than Blur. Better still, Sir Alexander Fleming, the Scottish discoverer of antibiotics has 20 likenesses, two more than Ian Fleming, creator of James Bond. I had suspected the latter might do better. After all, antibiotics have only saved hundreds of millions of lives, while Bond saved us all when he took out Dr No.

To get a broader view, I looked at British winners of a Nobel Prize since 1990, of which there have been 27. Three of these were for literature, another three each for economics and physics, a couple for peace, five for chemistry and 11 for physiology or medicine. The writers Doris Lessing, Harold Pinter and V S Naipaul respectively have 16, 19 and five portraits in the collection. A majority of the scientist winners have no portrait at all. In fact there are just 16 likenesses for the 24 non-literature winners, compared to 40 for the three writers. Albeit of dubious statistical power, this small survey suggests a brilliant writer is around 20 times more likely to be recognised in the NPG than a brilliant scientist. William Golding (1983) was the last British winner of a Nobel for literature prior to the 90s. His eight likenesses compare to just two for Cesar Milstein who won the prize for physiology or medicine a year later in 1984. Milstein invented a process to create monoclonal antibodies, which today serve as a significant proportion of all new medicines and generate over £50bn in revenue each year. Surely Milstein deserves more than a quarter of the recognition (in terms of portraits held in the gallery) bestowed upon Golding for his oeuvre, marvellous as it was.

C P Snow famously crystallised the dichotomy between science and the humanities in his 1959 Rede lecture on “The Two Cultures and the Scientific Revolution” (which was based on an article first published in the New Statesman in 1956). He attacked the British establishment for entrenching a cultural preference for the humanities above science, a schism he saw growing from the roots of Victorian scientific expansion. The gallery supports Snow’s view. Room 18, my favourite, “Art, Invention and Thought: the Romantics” covers that turbulent period covering the late eighteenth and early nineteenth centuries. Here we find the groundbreaking astronomer (and harpsichordist) William Herschel, the inventor of vaccination Dr Edward Jenner, the pioneering chemist Humphrey Davy and the physicist who came up with the first credible depiction of an atom, John Dalton. Opposite Jenner (who also composed poetry) is the portrait of another medically trained sitter, John Keats, who actually swapped medicine for poetry. Wordsworth, Coleridge, Burns, Blake, Clare, Shelley and Byron, all adorn the walls here. The great Mary Shelly has a space too. She wrote Frankenstein after listening to Davy’s famous lectures on electricity. The early nineteenth century saw the arts and science united in trying to explain the universe.

Room 27, the richest collection of scientists in the building, then brings us the Victorians. The scientists sit alone. Darwin takes pride of place, flanked by his “bull dog” Thomas Huxley. Other giants of Victorian science and invention are present, such as Charles Lyell, Richard Owen, Brunel, Stephenson, Lister and Glasgow’s Lord Kelvin. Inevitably the expansion of science and understanding of the world at this time drove a cultural divide. It’s less clear, however, why the British establishment grasped the humanities to the bosom of its cultural life, whilst shunning science. But as the gallery portrays today, it is a tradition that has stuck. However, surely the NPG however has an opportunity to influence change. All it needs to do is put some more scientists on its walls.