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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Understanding anxiety – my inside view of a debilitating disorder and how to control it

Following a number of recent anxiety attacks, I set out to learn why this happens to me.

As I stepped out of the office one evening after a routine day at work, I found myself glued to the floor. Legs bolted, knees quivering, heart racing – I was cemented into the ground by something paralysing.

I had to work out what was happening, and fast. Was a looming deadline holding me back from leaving? Was an unread message on my phone stopping me in my tracks? Perhaps fatigue had set me on edge. Or that passerby with an unsettling stare caught me off-guard. Maybe it was something more surreal; maybe a sense of dread had taken over, as I started to perceive each onlooker as a potential source of fear. Whether it was all of those things or none of those things, I eventually realised that the sticky situation I had found myself in was the onset of an anxiety attack.

Anxiety is a disorder of varying forms. People may be affected by generalised anxiety disorder – characterised by excessive worrying (often without an identifiable trigger), a specific phobia or panic disorder, in which terror can overwhelm a person without warning. The sufferer experiences physical and mental symptoms of distress that include a feeling of restlessness, shortness of breath, and agitation, exacerbated by the uncontrollable spiralling of their thoughts, which can often be self-deprecating and debilitating.

I had been in this situation before. The rising tension makes for an overwhelming and often paranoid experience, but my awareness of the fact that I was indeed having an anxiety attack was enough to know that this feeling wouldn’t persist for an indefinite amount of time; it would eventually pass, as all anxiety attacks do.

After roughly half an hour of concentrated breathing, conscious changes in thought patterns and eventually moving to a quieter spot, I had managed to calm down.

Though I had managed my anxiety attacks before via similar means, I was curious to know – what exactly was happening during my attacks? What can specifically be done while they’re happening? And could the panic and jitters of anxiety ever be beneficial?

The biology of an anxiety attack

The biological basis of an anxiety attack is tied to the actions of the body’s autonomic nervous system – a division of our nervous system that, without conscious control, regulates our bodily organs and systems.

When stimulated, the autonomic nervous system kicks into gear, causing the release of adrenaline into the bloodstream. And that’s when things flare up.

Pulses of adrenaline are produced in response to a stimulus  one that causes the body to kick into a defensive fight-or-flight mode. With anxiety, these stressful stimuli include excessive thoughts, heightened worries, trauma triggers and objects posing as threats. Even subconscious phenomena have been proposed as provokers; it is known that sufferers may wake up from a night’s sleep in a bout of panic. The stimuli add to the existing level of distress, making a person’s breath shallower, often inducing profuse sweating, and initiating a dark foreboding, all in the space of a moment.

Combating anxiety

According to the NHS, there are a number of techniques that can be employed to manage the distressing symptoms of an attack. Staying in a fixed spot, deep breathing and actively issuing a challenge in your mind to the fears on which you may be fixating are crucial things to do in the immediate stages. I wasn’t sure whether in my latest case I had done this instinctively or out of habit from past struggles. Either way, the methods were relieving.

The end of an attack is reached through an eventual depletion of adrenaline, which tells the body that it no longer needs to be on high alert. It brings with it tiredness but a welcome passing of the crisis. However, without a longer-term, pragmatic approach to tackling the disorder, it’s almost certain that an individual will face another intense period of anxiousness. So how should anxiety sufferers manage the issue over a longer period of time?

This is where therapy can be an extremely useful form of intervention. Cognitive behavioural therapy (CBT) is the most common form of therapy for the disorder, with research demonstrating its effectiveness in treating the closely related disorders under the umbrella of anxiety. CBT focuses on a reconfiguring of thought patterns, shifting perceptions and a redefining of negative sources of fear.

Recently, I spoke to David Potts, a CBT therapist, to discuss how therapy can be of benefit. He said: “In therapy we'd work on specifics. It would involve telling yourself what the triggers are. Often people have very negative views about what's happening to them [during an attack]; they'll think I'm having a heart attack or I'm going to die and those kinds of thoughts form a vicious cycle and the panic gets worse.”

According to Potts, being attuned to the occurrence of an anxiety attack is essential in taking active steps to overcome it. It can facilitate the process of calming down, allowing the person in the midst of an attack to separate the thoughts in their mind from the reality of a particular situation.

Therapy can also offer an individualised approach to understanding a person’s anxiety. Potts told me: “Often, from a therapy perspective, we are considering what’s happening to them [the patient] in their lives that lead them to be more anxious than other people. It could include things they’ve experienced in childhood, it could be ways that families are, or it could involve ways that they’ve learnt to manage different emotions.”

Beyond therapy, medication is available to aid anxiety. Appropriate to a disorder that can affect people in various ways, there are different types of medication. Selective serotonin reuptake inhibitors (SSRIs) are the most common form of medication. SSRIs are antidepressants that seek to increase levels of serotonin in our brains – a neurotransmitter thought to be central to the maintenance of mood. Other drugs available (in case of side effects from SSRIs) include serotonin and noradrenaline reuptake inhibitors (SNRIs), pregabalin and benzodiazepines. Though alleviating, medication is something that should supplement forms of therapy, as the pills themselves won’t solve the social triggers and problems that cause anxiety.

As people have increasingly moved towards holistic lifestyles, emphasis on exercise and dietary intake has been elevated. Eating healthier has been linked to reduced symptoms of anxiety, while exercise has been proven to reduce levels of stress in the long run. Reduced stress equates to a reduced risk of an anxiety attack.

Changes to the brain from exercise have been documented too. Researchers at Princeton University found that physical exercise generates excitable new brain cells in the hippocampus – an area of the brain involved in emotional responses. Though the excitability of the neurons would generally be unfavourable (priming the brain for anxiety), researchers found that the impact of exercise was one which had a calming effect, as the exercise was able to switch off the newly-generated, excitable neurons at times when they weren’t required.

When just a ten-minute walk has been shown to offer benefit, there seems to be very little to oppose the implementation of exercise as a form of therapy for anxiety.

Living with anxiety

Perhaps surprisingly, anxiety can be harnessed as a tool of empowerment for some. When it occurs at a smaller scale, it can serve as an informative warning against stressors, and help an individual focus and pinpoint their attention.

As a sufferer, acknowledgement of anxiety seems to be the key to unlocking the resources that can dull its impact. With carefully paid attention, responsibility and mindfulness, the waves of anxiety threatening to drench you can be reduced to smaller, more manageable ebbs and flows.