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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Forget fake news on Facebook – the real filter bubble is you

If people want to receive all their news from a single feed that reinforces their beliefs, there is little that can be done.

It’s Google that vaunts the absurdly optimistic motto “Don’t be evil”, but there are others of Silicon Valley’s techno-nabobs who have equally high-flown moral agendas. Step forward, Mark Zuckerberg of Facebook, who responded this week to the brouhaha surrounding his social media platform’s influence on the US presidential election thus: “We are all blessed to have the ability to make the world better, and we have the responsibility to do it. Let’s go work even harder.”

To which the only possible response – if you’re me – is: “No we aren’t, no we don’t, and I’m going back to my flowery bed to cultivate my garden of inanition.” I mean, where does this guy get off? It’s estimated that a single message from Facebook caused about 340,000 extra voters to pitch up at the polls for the 2010 US congressional elections – while the tech giant actually performed an “experiment”: showing either positive or negative news stories to hundreds of thousands of their members, and so rendering them happier or sadder.

In the past, Facebook employees curating the site’s “trending news” section were apparently told to squash stories that right-wingers might “like”, but in the run-up to the US election the brakes came off and all sorts of fraudulent clickbait was fed to the denizens of the virtual underworld, much – but not all of it – generated by spurious alt-right “news sites”.

Why? Because Facebook doesn’t view itself as a conventional news provider and has no rubric for fact-checking its news content: it can take up to 13 hours for stories about Hillary Clinton eating babies barbecued for her by Barack Obama to be taken down – and in that time Christ knows how many people will have not only given them credence, but also liked or shared them, so passing on the contagion. The result has been something digital analysts describe as a “filter bubble”, a sort of virtual helmet that drops down over your head and ensures that you receive only the sort of news you’re already fit to be imprinted with. Back in the days when everyone read the print edition of the New York Times this sort of manipulation was, it is argued, quite impossible; after all, the US media historically made a fetish of fact-checking, an editorial process that is pretty much unknown in our own press. Why, I’ve published short stories in American magazines and newspapers and had fact-checkers call me up to confirm the veracity of my flights of fancy. No, really.

In psychology, the process by which any given individual colludes in the creation of a personalised “filter bubble” is known as confirmation bias: we’re more inclined to believe the sort of things that validate what we want to believe – and by extension, surely, these are likely to be the sorts of beliefs we want to share with others. It seems to me that the big social media sites, while perhaps blowing up more and bigger filter bubbles, can scarcely be blamed for the confirmation bias. Nor – as yet – have they wreaked the sort of destruction on the world that has burst from the filter bubble known as “Western civilisation” – one that was blown into being by the New York Times, the BBC and all sorts of highly respected media outlets over many decades.

Societies that are both dominant and in the ascendant always imagine their belief systems and the values they enshrine are the best ones. You have only to switch on the radio and hear our politicians blithering on about how they’re going to get both bloodthirsty sides in the Syrian Civil War to behave like pacifist vegetarians in order to see the confirmation bias hard at work.

The Western belief – which has its roots in imperialism, but has bodied forth in the form of liberal humanism – that all is for the best in the world best described by the New York Times’s fact-checkers, is also a sort of filter bubble, haloing almost all of us in its shiny and translucent truth.

Religion? Obviously a good-news feed that many billions of the credulous rely on entirely. Science? Possibly the biggest filter bubble there is in the universe, and one that – if you believe Stephen Hawking – has been inflating since shortly before the Big Bang. After all, any scientific theory is just that: a series of observable (and potentially repeatable) regularities, a bubble of consistency we wander around in, perfectly at ease despite its obvious vulnerability to those little pricks, the unforeseen and the contingent. Let’s face it, what lies behind most people’s beliefs is not facts, but prejudices, and all this carping about algorithms is really the howling of a liberal elite whose own filter bubble has indeed been popped.

A television producer I know once joked that she was considering pitching a reality show to the networks to be called Daily Mail Hate Island. The conceit was that a group of ordinary Britons would be marooned on a desert island where the only news they’d have of the outside world would come in the form of the Daily Mail; viewers would find themselves riveted by watching these benighted folk descend into the barbarism of bigotry as they absorbed ever more factitious twaddle. But as I pointed out to this media innovator, we’re already marooned on Daily Mail Hate Island: it’s called Britain.

If people want to receive all their news from a single feed that constantly and consistently reinforces their beliefs, what are you going to do about it? The current argument is that Facebook’s algorithms reinforce political polarisation, but does anyone really believe better editing on the site will return our troubled present to some prelap­sarian past, let alone carry us forward into a brave new factual future? No, we’re all condemned to collude in the inflation of our own filter bubbles unless we actively seek to challenge every piece of received information, theory, or opinion. And what an exhausting business that would be . . . without the internet.

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 24 November 2016 issue of the New Statesman, Blair: out of exile