Julian Assange appears tomorrow, 7 February, at Westminster Magistrates Court for what has been announced as a two-day hearing, but judging from past extradition hearings in the UK, it is likely (with appeals) to take much longer, even a year or more, with the second-last word being that of the Supreme Court (formerly House of Lords) and then, under certain circumstances, the last word from the Home Secretary.

Readers should note that the procedure is not to judge the actual case on its merits as a criminal procedure but to judge it according to relevant sections of the UK Extradition Act. Such evidence of the alleged offences that has surfaced is only relevant indirectly, such as to prosecutorial abuses, not to the arguable merits of that evidence and a future case in Sweden if extradition occurs.

The Skeleton Argumentbegins with a challenge to prosecutor Ms Ny’s authority to issue an European Arrest Warrant (EAW). The case of Enander v. The Swedish National Police Board [2005] EWHC 3036 (Admin) is cited; it states that only the Swedish National Police Board is the authorised authority.

Assange’s legal team will put to the court that the onus is on the Crown Prosecution Service to show that Ms Ny’s Department has the authority. They have already requested proof of the authority from the CPS so far without a reply.

Extradition for Improper purpose/Abuse of process:

A major issue is that Ms Ny Swedish prosecutor sought the EAW for the purposes of investigation and not for the purpose of prosecution, and as we know, the decision by Ms Ny has not yet made as to whether Assange will be charged. More detail on arrest for the purposes of investigation in adversarial systems here.

Arrest for the purposes of investigation is strictly curtailed in adversarial law nations and arises from the bitter historical legacy of abuses by authority that a person could be incarcerated for long periods “for investigation”. A wonderful mechanism to lock up people that the authorities don’t like, especially political dissidents. Others include people suspected of committing a crime but without sufficient proof, again, keeping such people in custody while authorities “permanently investigate” has the whiff of the jackboot all over it (and still does in various parts of the world.)

That is why defence lawyers in Australia, and in the UK etc look carefully at custody management records in the brief of evidence to ensure that legislative limits on time in custody for the purpose of investigation are adhered to. When they are not, the prosecution may be on a slippery slope to losing their case.

On this issue,(para 12) Ms Ny stated:

We have exhausted all the normal procedures for getting an interrogation (and) this investigation has gotten to a point where it is not possible to go further without interrogating Assange himself.

This does not sit well with former Swedish judge Sundberg-Weitman's question,well put by a colleage here at WLC:

The question Sundberg-Weitman raises is that of why Ny did not take the opportunity “to interview Assange whilst he was still in Sweden” and “why she did not accept Assange’s proposal to be interrogated in England,” which is a legitimate request, in accordance with “rules valid in both Sweden and Britain on Mutual Legal Assistance.”

Indeed. And the following explanation by Sundberg-Weitman sheds some light: “Possibly we see here a reflection of her view that it is a good thing to have a ”perpetrator” (!) locked up even in cases where he is subsequently acquitted in a court of law” ie bail refused as a question of policy. This is anathema to all defence lawyers in adversarial systems and most legal regimes that this writer is aware of.

(The right to bail applications ultimately is a human right, and a legal right in most jurisdictions, except Sweden it seems, where if the crime alleged is of a sexual nature, policy considerations based on gender appear to negate or seriously degrade the possibility of bail.)

It is clear that the Assange team’s argument is that the EAW is sought purely for the purposes of interrogation ie investigation and is accordingly an abuse of the EAW system. This is buttressed by citing Swedish lawyer Mr Hurtig’s statement, (para 21) “…she is just seeking Mr. Assange’s extradition to Sweden in order to hear his side of the story.”

“Mere suspicion” is not enough to justify an extradition order. The Skeleton Argument cites the decision in Re Ismail [1999] 1 AC 320, 326-327, Lord Steyn:

…it is not enough that he is in the traditional phase 'wanted by the police to help them with their inquiries.' Something more is required.

The Re Ishmael precedent will be thoroughly argued as precluding extradition, as will another precedent case from France Vey v. The Office of the Public Prosecutor of the County Court of Montluçon, France.

That case involved a lack of particulars contrary to section 2(4) of the Extradition Act 2003 which require details on the circumstances of the offences and not merely a “history of the accusation(s)” Extradition was denied in that case.

A further case of Asztaslos ) [2010] EWHC 237 (Admin) reaffirmed the principle of disallowing extradition for that particular “accusation case” warrant.

Note that in the UK and Australia, in relation to interrogation, a suspect has the right to remain silent. In the UK part of the caution given on arrest is that a tribunal of fact may take an adverse inference from that silence. In Australia no such caution is given and no such inference can be made.

(Inquisitorial systems differ, as does Sweden’s but it is noted that Assange volunteered one interview session with Swedish police before he sought permission to leave Sweden, and clearly stated his account of events contrary to the victim’s account put to him by police.)

Particulars of the alleged offences.

Particulars of Assange’s case on the warrant are still (to this writers knowledge) shrouded in mystery, apart from the four allegations, so it will be of great interest to see whether s.2(4) lack of particulars are sufficient to deny extradition by itself.

The particulars required are:

4(c)particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

Abuse of Process/particulars:

There is much legal precedent for denying extradition when abuse of process is demonstrated and Assange’s legal team have particularised it as follows, and submit it “is capable of amounting to an abuse of process”:

(I) She has not yet decided whether to prosecute him;

(II) She is seeking extradition for the purposes merely of questioning him in order to further her investigation;

(III) Arrest for the purposes of questioning would have been, and remains, unnecessary given that repeated offers have made on Mr. Assange’s behalf for him to be questioned by her, which she has rebuffed; and

(IV) The proper, proportionate and legal means of requesting a person’s questioning in the UK in these circumstances is through Mutual Legal Assistance

Accordingly the argument is, among others, that Ms Ny’s assertion that the Swedish procedures were exhausted to question Assange is false, that the method of questioning by the European regime of Mutual Legal Assistance (MLA--meaning questioning in the UK) had never been formally requested (and if so please prove it): amounts to an abuse of process, and the presiding judge must make a ruling that abuse did not occur if the decision is for extradition.

The next issue in the Skeleton Argument relates to the extradition law, section 2 requiring a statement within the extradition warrant, that shows the person is accused of an offence “with a view to his arrest and extradition…for the purpose of being prosecuted…”

Apparently no such statement exists in the warrant apart from the standard Preamble requesting extradition “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

Mr Assange is not referred to anywhere in the EAW as an “accused” and the upshot is that the court must decide whether he is an “accused” within the meaning of the Act. If there is ambivalence, secondary evidence, ie “extrinsic” can be examined in exceptional circumstances, and is admissible (as argued by the legal team) as it is “relevant to a potential abuse of process.”

This extrinsic evidence relates of course to the various statements of Ms Ny to the media, a letter to the Australian High Commissioner and as documented in the statement of Mr Hurtig on what Ms Ny said to him (although that is hearsay one must say and might be inadmissible).

Even if those exceptional circumstances did not allow extrinsic evidence to be allowed in, (para 70) the argument is, in any event, that the warrant does not state it is unequivocally for the purposes of prosecution of Mr Assange and therefore it should be rejected anyway.

The argument of prosecutorial abuse in not disclosing all the evidence.

The duty of prosecutors to make all evidence available to the defence is well known across all jurisdictions and enshrined in Article 6 of the European Convention of Human Rights “ECHR”. Strictly speaking Ms Ny must disclose all the evidence (including the highly contentious SMS messages) if Assange is charged, the normal course of events.

The “horns” of Ms Ny’s “dilemma” are that if she does disclose, the prosecution case might well be seen as utterly hopeless (and the legal team appear to be of that view—issue being abuse of prosecutorial powers) so that is the reason (I assume) that disclosure has not been made and why he has not been charged.

So, if the intention is to prosecute, then under Sweden’s laws and the Convention, Assange is entitled to all the evidence—not giving it is a prosecutorial abuse (and an abuse of his human rights.)

If the intention of extradition is NOT to prosecute then this is also an abuse of the EAW warrant and the prosecution should never have been brought in the first place.

(It is no wonder, given the strange nature of the case, that many people have a suspicion that there is a third possible reason for extradition, that this is all a ploy, a holding charge so that the USA can unseal an indictment and apply to Sweden to have Assange extradited to the US on charges related to their Espionage Act or conspiracy therof.)

Ms Ny is nonetheless caught between a rock and a hard place, and if extradition occurs, either of the three outcomes or combination: prosecution; no prosecution; extradition to the USA will likely not reflect well on the Swedish Prosecution Service.

Illegal and corrupt behaviour.

The Skeleton Argument reflects upon “illegal and/or corrupt behaviour” of the Prosecuting Authority in Sweden, namely the release of Assange’s name initially to the media; the prosecutorial forum shopping (ie the political input of Claes Borgstrom); the refusal by Ms Ny to interview Assange in Sweden; the refusal to provide all the evidence of the case to Assange in English; leaking parts of the prosecutors case to the UK media (fair trial issues arising); allowing the lawyer for the complainants to besmirch the suspects’s character before he is actually charged (prejudice, perverting the course of justice, contempt of court).

I don’t necessarily agree that it could (in an adversarial system sense) be contempt of court as Assange has not been charged and therefore, technically, there is no ongoing court case in Sweden (ie no listing for trial.) If Borgstrom commented after Assange was charged, that would be sub judice in the UK and elsewhere and then subject to contempt of court.

That he has commented at all adversely to Assange’s interests, is still reprehensible and risks prejudicing a fair trail. If this happened in Australia, he would be pilloried by the respective Law Society at least for professional misconduct, and it could likely result in a successful application by the defence for a permanent stay of proceedings

Whether the alleged offences are extraditable s10 offences.

Sweden has not provided an “Opening Note” stating which offences per the warrant parallel offences in English law. There is much conjecture on this topic and I will not address it here except to say that this is a grey area of Swedish law which may well not translate well to UK law. We await the CPS to produce its Opening Note.

Mens Rea-Guilty Mind

The issue of Mens Rea, mental elements of crime absent apparently with sexual offences in Sweden I have covered in detail here.

Human Rights s21 of the Extradition Act.

It is sufficient to summarise that if this section is triggered, an extradition must be compatible with the EHRC as interpreted through the UK’s Human Rights Act, and especially that the extradition is not for “gender specific” or “political” crimes.

Onward Extradition to the USA.

As Sweden has a recent poor record in allowing renditions to Egypt at the behest of the USA, (issue-breach of the Convention Against Torture “CAT”) the argument is that there is a danger of Sweden allowing a further extradition to the US where he would (it is argued) be likely to be subjected to some form of torture. (Readers might contemplate the treatment of Bradley Manning, a US citizen in assessing that risk for a non citizen.)

There is also the risk of a death penalty in the USA, especially given the statements of various political figures/commentariat in the USA.

Final Analysis.

It is this writers legal opinion that the Swedish case is weak and contains many issues, any of which could result in extradition being refused. Accordingly my view is it will be refused, but it might take an appeal or two before it is finally settled.

For some more details on a possible Sweden to USA extradition, another post here by a colleague at WLC.

Correction: Hearing is at Woolwich Crown Court, Belmarsh, not Westminster Magistrates Court--thanks to those who have pointed out the error.

Peter H Kemp

Solicitor of the Supreme Court of NSW.