HIGH COURT(S)RULING (S)
JULIAN ASSANGE
Justice for Assange
The application includes a request that the Supreme Court corrects the false statement that #Assange "stands charged" in Sweden. The correction sought is of particular importance to the Appellant because this false statement was subsequently reported by the international press.
The points being made as to the applicability of the Vienna Convention on the Law of Treaties (VCLT) are serious issues in international law. The submission includes a contribution from Prof. James Crawford, an expert in International Law. Prof. Crawford’s contribution has been key in the submission.
The Swedish prosecutor is not a judge, nor does she possess or exercise any judicial function (Bell, Judiciaries within Europe, 2006), cited in the submission by the appellant para 23.
View the Supreme Court’s further statement, following Dinah Rose QC’s request for an application to reopen the appeal.
Transcript of judgment by WLCentral and further WLCentral Resources
Source: UK Supreme Court
Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] UKSC 22
On appeal from [2012] EWHC Admin 2849 JUSTICES: Lord Phillips (President), Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Dyson
BACKGROUND TO THE APPEALS The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape.
Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assange’s absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (’EAW’) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(’the Framework Decision’), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (’the 2003 Act’).
Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a ’judicial authority’ as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance.
JUDGMENT The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act.
REASONS FOR THE JUDGMENT
References in square brackets are to paragraphs in the judgment
Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result tobe achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208-217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase ’judicial authority’ [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114-119][160-170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to ’competent judicial authority’ which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155-159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104].
Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase ’judicial authority’ had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161].
Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UK’s international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of ’judicial authority’ in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].
Source: UK Supreme Court
Justice will prevail...
Supreme Court Appeal
Breaking News 14 June 2012 14:15:
Supreme Court has rejected Julian Assange’s 12 June application to reopen the case.
"...the right of each party to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is...one of the most fundamental rules of natural justice...". - Hadmor Productions Ltd v Hamilton, cited in Assange submission to reopen Supreme Court Appeal
This is the Appellant’s application for that judgment to be set aside, and the appeal reopened, on the ground that the decision of the majority was reached on a basis which was not argued before the Supreme Court, and on which the Appellant was accordingly not given a fair opportunity to be heard.
The application includes a request that the Supreme Court corrects the false statement that #Assange "stands charged" in Sweden. The correction sought is of particular importance to the Appellant because this false statement was subsequently reported by the international press. The points being made as to the applicability of the Vienna Convention on the Law of Treaties (VCLT) are serious issues in international law. The submission includes a contribution from Prof. James Crawford, an expert in International Law. Prof. Crawford’s contribution has been key in the submission.
"It is notable that, following the hearing, the Court on three occasions wrote to the parties seeking further written submissions on points which the Court was considering including in its judgment, but which had not been argued before it,including elements of the Parliamentary process, and the applicability of Pupino. The applicability and effect of Article 31(3)(b) of the VCLT was not raised even at that stage. It is of particular note that the issues upon which the parties were afforded the opportunity to make subsequent written submissions were ultimately determined against the Respondent. The Respondent thus was afforded an opportunity to make submissions upon new issues which were adverse to the Respondent’s interest. By contrast, the Appellant was afforded no opportunity to make submissions upon the single issue, arising post-hearing, that was to be decided adversely to him, and determinatively so." (Para 20, Submission to reopen Supreme Court appeal, 12 June 2012)
Contents
The Swedish prosecutor is not a judge, nor does she possess or exercise any judicial function (Bell, Judiciaries within Europe, 2006), cited in the submission by the appellant para 23.
Summary of the judgment
Download the full judgment.View the Supreme Court’s further statement, following Dinah Rose QC’s request for an application to reopen the appeal.
Transcript of judgment by WLCentral and further WLCentral Resources
Source: UK Supreme Court
Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] UKSC 22
On appeal from [2012] EWHC Admin 2849 JUSTICES: Lord Phillips (President), Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Dyson
BACKGROUND TO THE APPEALS The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape.
Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assange’s absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (’EAW’) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(’the Framework Decision’), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (’the 2003 Act’).
Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a ’judicial authority’ as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance.
JUDGMENT The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act.
REASONS FOR THE JUDGMENT
References in square brackets are to paragraphs in the judgment
Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result tobe achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208-217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase ’judicial authority’ [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114-119][160-170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to ’competent judicial authority’ which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155-159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104].
Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase ’judicial authority’ had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161].
Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UK’s international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of ’judicial authority’ in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].
Other News
- Barbara Gunnell, The Unintended Consequences of the Assange Hearing’, ABC The Drum, 7 February 2012
- Timely interview with Geoffrey Robertson QC in Daily Beast, 31 january 2012.
- Esther Addley in the Guardian Julian Assange’s extradition battle enters final round, 30 January 2012 (note: Julian Knowles, Q.C. who is interviewed in this article shares his physical office space with Claire Montgomery, the lawyer for the Swedish prosecution).
Submission to the UK Supreme Court for the Appellant Julian Assange
Sweden does not follow the so called "investigating judge model", and Swedish public prosecutors have very strong powers compared with the situation existing in other Member States: They may decide on any kind of measures during investigations, including coercive measures... e.g. phone surveillance, or detention. (European Commission Evaluation Report on Sweden, Doc 99227/2/08 REV 2. October 2008, para 2.1., cited in the submission by the Appellant to the Supreme Court, paragraph 24)
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News
About this site.
NEWS
June 2012
Supreme Court has found against Assange 5-2. The court has allowed a window to reopen the case based on a fair trial objection by Rose QC. Read the summary of the Judgment and more.
We will warmly welcome Secretary Clinton to Stockholm next Sunday. First bilateral visit to Sweden by a US SecState for a very long time.
The Swedish Foreign Minister announced Secretary Hillary Clinton’s
"first visit [in] a very long time" four days after the judgment.
Stratfor e-mails have revealed that a sealed indictment has been issued by a secret grand jury in Alexandria, Virginia, for Julian Assange. The email is dated 26 January 2011. This means that there has likely been a sealed extradition order for over a year, which will be activated (unsealed) against Assange in Sweden, Australia and the UK when the US Government gives the order.
5 December 2011: The High Court has found that Sweden’s EAW against Julian Assange raises a point of law of general public interest, and grants Julian Assange the opportunity to apply for aSupreme Court Appeal appeal on this basis. The panel of 3 judges at the Supreme Court will decide on whether they want to hear his case on 19 December 2011.
22 November 2011: Brita Sundberg-Weitman, expert witness at the Magistrate’s Court and former Court of Appeal judge in Sweden publishes Weak Arguments in the Judgment on the Handing over of Julian Assange - in Swedish
15 November 2011: Julian Assange’s team have raised the following points of law as grounds to appeal to the Supreme Court:
1) Whether a European Arrest Warrant issued by a partisan prosecutor working for the executive (i.e. not an independent judge or investigating magistrate in the civil law system) is a valid Part 1 Warrant issued by a "judicial authority" within the meaning of sections 2(2) & 66 of the Extradition Act 2003?
- This point argues that the decision goes against parliamentary intent when enacting the 2003 Extradition Act:
- To have a warrant accepted and acted upon in the UK, the 2003 Act mandates that it must on its face have been issued by a "judicial authority" and not by a politician or policeman or prosecutor or lay person or intelligence officer or any other partisan state functionary to whom local law may give competency. (See para 6.17 of the appellant’s submission at the July appeal, p. 70 below).
- The 2003 Act could have provided that ’A Part 1 warrant is an arrest warrant which is issued by an authority of a category 1 territory notified to the secretariat under Article 6(3) of the Framework Decision’. It did not. Instead, the 2003 Act purposely preserved the ability of the UK, as executing member state, to determine whether a Part 1 warrant is issued by suitably independent - judicial - body (albeit premised upon the - now erroneous - assumption that other EU member states understood that ’judicial’ meant ’judicial’). The 2003 Act is abundantly clear. Section 2(2) requires a Part 1 warrant issued by a judicial authority, irrespective of whether a state has chosen to make an executive or other non-judicial body competent to issue an EAW and has notified it to the secretariat under Article 6(3) of the Framework Decision. (Para 6.16 of the appellant’s argument, p. 69 below).
- In any event, the Framework Decision [the EU decision that established the European Arrest Warrant] is not part of UK law. While a few member states have adopted the Framework Decision verbatim, others have implemented it in different ways in their domestic legislation. The UK parliament deliberately chose to implement the Framework decision indirectly by a statute that deviated from a number of its provisions and, whilst it may be used for background purposes in cases where the UK statute is imprecise or ambiguous, it cannot be used to circumvent or override the plain language of the statute. (Para 6.13 of the appellant’s argument, p. 68-9 below.)
2) Whether a person in respect of whom no decision to prosecute has been taken can be said to be ’accused’ within the meaning of sections 2(3)(a) of the Extradition Act 2003?
Julian Assange’s legal team have applied to the High Court for leave to appeal two points of law of general importance at the Supreme Court. The same High Court judges who dismissed Julian Assange’s case at the High Court will decide whether or not to certify these points, which must be of public importance and go beyond the specific facts of this case. They will decide this in open court, at the Royal Courts of Justice on 5 December 2011. A decision is expected the same day. If JA loses, he will be extradited to Sweden within 10 days and placed into Swedish custody.
2 November 2011: The High Court has delivered the judgment and found against Julian Assange. Download the judgment and a summary for the media.
Previous news:
- UK Home Office publishes independent review of UK Extradition agreements (18 October 2011). The EAW section is relevant to the Assange appeal
- John Pilger "The Smearing of a revolution" in the New Statesman (6 October 2011)
- Jennifer Robinson and Lizzie O’Shea "Sleepwalking into Dangerous Territory" in the Alternative Law Journal (6 October 2011).
Appeal hearing: 12 and 13 July 2011
This page contains:
A narrative summary of the hearing - new! Skeleton arguments for both Julian Assange and the the Swedish Prosecutor - available below in full - new! Summary of the appellant’s skeleton argument. The judgment of the appeal hearing (as soon as it is delivered!). Go to the Press tab (top of the page) for the press review of the appeal.Summary of the hearing
Below is the report from one of SvA’s contributors who was present at the hearing.
Appeal Hearing
Judges: Thomas LJ and Ouseley.
Appellant (Julian Assange): Gareth Peirce, Ben Emmerson QC, and Mark Summers.
Respondent (for the Swedish prosecution): Claire Montgomery QC, Aaron Watkins and Hannah
To note:
In the appeal, Counsel for Julian Assange (appellant) successfully drew attention to:
The discrepancy between the EAW and the statement by the complainants written by the police; The fact that the complainants did not go to the police to press charges but to inquire about ways to compel Julian Assange to get tested for STDs after they both discovered they had slept with him; That SW had felt railroaded by the police and others around her when a criminal investigation started; That AA did not feel she had been subjected to abuse and had no intention of reporting the events (she had gone to the police station to accompany SW).
Emmerson QC managed to frame the discussion around the two women’s statements, which showed clear consent. This forced Montgomery QC to go beyond the wording of the EAW and concede that the women had had consensual sex, although she later argued that they did not do so ’freely without coercion’ (the discussion centred around the wording ’let him continue’).
The Court summarised the arguments as follows:
1. The EAW had not been issued by a "judicial authority".
2. Offences 1-3 described in the EAW (set out at paragraph four offences: above) did not meet the dual criminality test (a principle of extradition that a person should only be extradited where the conduct is not only an offence under the law of the State requesting extradition, but also under the law of the State from which the person’s extradition is sought). None of the descriptions of the offences was a fair and accurate description of the conduct alleged. As regards offence 4, the conduct, if fairly and accurately described, would not have amounted to the offence of rape.
3. The condition in s.2(3) of the 2003 Act had not been satisfied as Mr Assange was not an "accused".
4. The issue of the EAW and subsequent proceedings were not proportionate.
Challenge 1: Misrepresentation in the EAW
The first challenge to the validity of the European Arrest Warrant (EAW) was based on the grounds that the allegations on the arrest warrant did not reflect the description of the events as narrated in the complainants’ statements (on which the EAW is based).
Emmerson QC and Mark Summers for Julian Assange argued that the EAW is not a fair, proper and accurate description of the conduct alleged (a requirement under the Castillo case, in which Lord Justice Thomas was one of the judges).
Emmerson QC contrasted the statements by the two complainants with the EAW’s description of the conduct. From the statements there was no indication of lack of consent, or of a reasonable belief of lack of consent on the part of Julian Assange - which are the necessary elements to criminality in sexual offences under English law. The EAW on the other hand made references to violence and mens rea (’acting in a manner designed to violate her sexual integrity’), which cannot be inferred from the original complaint.
According to Montgomery QC for the Swedish prosecutor, the original complaint indicated that the women did not ’freely’ consent - and that therefore the complaint is an accurate representation and would satisfy the double criminality test.
With reference to the ’rape’ allegation, the judges will have to determine if, as Montgomery QC argued, an alleged moment of lack of consent (as a result of not being fully awake) is sufficient to constitute ’rape’ despite the fact that consent was present immediately before and immediately after the moment of penetration. Emmerson QC argued that this reasoning of isolating a moment in which consent was presumed and designate it as rape - especially when consent was given immediately afterwards was ’crazy’.
If the courts find that the original complaint does not match the description of the allegations in the EAW, it allows the judges to apply the double criminality test to all four of the alleged crimes (including ’rape’). Montgomery, QC for the Swedish prosecution argued that it is not possible to ’untick’ the ’rape’ box in the EAW - this is the nature of the instrument. The judges will have to consider the applicability of the Castillo case to this case. They will also have to consider the greater implications of considering extraneous materials in EAW proceedings (i.e. the statements of the two women as narrated by the interrogating officer) given that this will only apply to some European countries and not others: Sweden has disclosed part of the material of the prosecution, but other EU countries may not disclose such information at any stage of the investigation (a consequence of having different systems of criminal procedure across the EU). The judges will also have to consider the implications for the definition of consent under English law if they do find that the original statements give rise to double criminality.
Challenge 2: Invalid Purpose of the EAW
The EAW has been issued for the purposes of questioning and not prosecution, which is contrary to the wording of the UK’s Extradition Act. It was established that Julian Assange had not been charged. If the judges find in favour of Julian Assange’s arguments, Submission 2 alone would invalidate the entire EAW.
Mark Summers, for Julian Assange, argued the Swedish prosecutor had acted disproportionately, because she had not availed herself of Mutual Legal Assistance (MLA), the standard inter-EU manner to conduct trans-state interviews in any criminal investigation. Summers argued that the judge had erred in February in finding that Julian Assange was ’accused’ rather than suspected, given that the judge had failed to objectively find a point in the investigation which could be said to mark the threshold from ’suspect’ to ’accused’ (the Ismael test). Montgomery QC argued that applying the Ismael test (i.e. English procedural standards) to European civil law jurisdictions to determine whether the threshold of ’accusation’ has been crossed is inappropriate. Montgomery QC’s argued that the judges must take a cosmopolitan approach even if technically, Julian Assange was not accused. Montgomery QC argued that the judges must follow the Asztaslos case, which discouraged extrinsic factual or expert evidence except in exceptional EAW cases. Asztaslos also allows for no (or very little) scope for argument on the purpose of the warrant.
Challenge 3: Swedish prosecutor is not a Judicial Authority according to the UK 2003 Extradition Act and Parliamentary Discussions
The Swedish prosecutor Marianne Ny is not a ’judicial authority’ under the UK Extradition Act 2003. The wording of the act deliberately distinguished itself from the EU Framework Decision by inserting the word ’judicial’.
This was reflected in Parliament during discussions about the Extradition Act Bill. Parliamentary discussions explicitly addressed the issue of who should be considered a judicial authority. Parliament intended ’a judicial authority’ to be an independent and impartial member of the judiciary, which would exclude prosecutors and policemen. Lord Justice Thomas said that if this argument was correct, it drives a substantial wedge into the application of the European arrest warrant.
Emmerson QC argued that the decision in the Enander case, which the prosecution relies upon, was erroneous because it went against parliamentary intention by finding that the police was a judicial authority and was therefore authorised to issue an EAW.
The judgment of the Enander case, which Julian Assange is challenging as unsound, found that the UK Extradition Act 2003 must be interpreted in light of the Framework Decision, which gives states the powers to designate their own issuing authorities of EAWs. Montgomery QC, argued that in Sweden there is no clear separation between powers and that Sweden has designated the prosecutor an authority that can issue the warrant, and that the UK courts do not have the powers to nullify this.
Skeleton Argument for the appellant Julian Assange
Skeleton Reply by the respondent - Claire Montgomery QC for the prosecutor
Summary of the legal argument by the Appellant
Submission 1: The European Arrest Warrant (EAW) is invalid because the EAW document does not reflect the allegations as they were described by the two women themselves during police questioning.
A misrepresentation of the conduct alleged is sufficient to invalidate an arrest warrant.
The original police complaint, accurately described, would give the following conduct:
* Claimed allegation 1 (AA - unlawful coercion):
An accurate description (in the claimant’s own account) of the facts that the allegation is referring to, is:
Julian Assange engaged in ’rough and impatient’ consensual foreplay with complainant AA, and he complied with her wish that he used a condom once she expressed her desire for him to use one.
’Rough and impatient’ foreplay does not constitute an offence under the UK Sexual Offences Act 2003. Therefore, this claimed allegation, if described in accordance with the complaint in the police report, would fail the requirement of double criminality.
* Claimed Allegation 2 (AA - sexual molestation):
An accurate description (in the claimant’s own account) of the facts that the allegation is referring to, is:
Julian Assange used a condom upon claimant AA’s request. The condom split.
Complainant AA believed that Julian Assange deliberately tore the condom while the two of them were having consensual sex. The claimed allegation is founded on AA’s subjective perception of events. The allegation must include a fair summary of contextual facts such as the fact that the claimant voluntarily continued to share her bed with Julian Assange for another week despite having repeated offers from other people to accommodate him elsewhere. The fact that AA threw a crayfish party the night after the alleged assault, in Julian Assange’s honour. During this party she published a tweet that spoke of "the world’s coolest smartest people, it’s amazing..." In addition to these contextual facts, the allegation would have had to include the conclusions by the Swedish forensic laboratory of the condom presented by AA ten days after the sexual encounter - the results indicated that the condom was torn by wear and tear rather than by a tool.
Therefore, this claimed allegation, if described in accordance with the complaint in the police report, would fail the requirement of double criminality.
* Claimed allegation 3 (AA - sexual molestation)
An accurate description (in the claimant’s own account) of the facts that the allegation is referring to, is:
Julian Assange pressed his naked erect penis against AA whilst they were voluntarily sharing a small bed. They had shared the bed for several days and engaged in consensual sexual activity previously
Complainant AA describes Julian Assange’s behaviour as "strange and awkward", but the EAW has misconstrued this to mean criminal behaviour in the form of ’sexual molestation’. This is a failure to provide a proper, fair and accurate description of the conduct alleged. Again, if described in accordance with the complaint in the police report, the claim would fail the requirement of double criminality.
* Claimed allegation 4 (SW - rape )
An accurate description (in the claimant’s own account) of the facts that the allegation is referring to, is:
In the context of repeated acts of consensual sexual intercourse, Julian Assange penetrated SW whilst she was ’half-asleep’. The penetration was met by consent on the part of SW, in full knowledge that Julian Assange was not wearing protection.
SW stated that she was ’half asleep’ when the sex began, which also means ’half awake’, sleep, or, as she later confirmed in a second interview, "... she wasn’t fast asleep but wasn’t fully awake either..." Thus, the claimed allegation in fact describes consensual unprotected sexual relations between SW and Julian Assange, after a night of repeated protected consensual sexual relations. On this occasion SW describes being somewhere between a sleeping and a waking state at the moment of penetration, but then consents to the sexual act when she is in a fully awake state.
If described in accordance with the complaint in the police report, the claim fails to constitute a Part 1 crime (’rape’), because the activity was consensual and there is no indication to suggest that Julian Assange reasonably believed that SW would not consent.
The common law precedent raised by Julian Assange’s defence team is the case of Castillo, 2005, in which the judge (Thomas L.J., who is also the judge in Julian Assange’s appeal case) found that an extradition order needed to carry a proper, accurate and fair description of the alleged conduct in order to be valid, especially in the case where a prima facie case cannot be tested.
A description that is not fair, proper and accurate in the EAW also invalidates it, as was held in the case of Murua, 2010. This does not imply bad faith on the part of the issuing authorities.
Submission 2: An EAW issued prior to the commencement of a criminal prosecution is not a valid EAW.
Suspicion is not sufficient grounds for extradition. Extradition cannot be sought merely for the purposes of questioning (even if questioning is held in custody and may be followed by prosecution). District Judge Riddle erred in stating that "I have no doubt that this defendant is wanted for prosecution in Sweden".
The purpose of the UK Extradition Act
The UK Extradition Act of 2003 provides an unequivocal requirement that arrest and extradition to EU countries can only be carried out with the purpose of being prosecuted, where the person is accused (section 2(3) of the Act).
The UK’s 2003 Extradition Act goes beyond the safeguards of the EU Framework Decision (which established the EAW), and imposes additional safeguards. Parliament included these in the act as a necessary protection against unlawful infringement of the right to liberty. One of these additional requirements is the concept of ’accused’ (the case of Ismail at the House of Lords, 1999).
In fact, these additional safeguards (section 2(3)(a) and 2(3)(b) of the UK Extradition Act are more restrictive than the Framework Decision and this was the intention of Parliament.
Julian Assange’s team analyses Hansard (records of Parliamentary discussions) from 2003. The meaning of the 2003 Extradition Act (which brought the Framework Decision into UK law) was discussed. Amendments were proposed in order to make it explicit that the EAW would not be valid if it was issued for the purpose of questioning. Although these amendments were not incorporated into the law, the purpose of the UK Extradition Act is clearly stated in the Parliamentary discussions, and these acknowledge that the Act was intended to go much further in terms of safeguards than the previous legislation. It is explicitly stated in Hansard that EAWs should only be possible for the purpose of putting a person on trial - i.e. not for interrogation, and not for fishing expeditions.
The Swedish language EAW is equivocal
The wording of the EAW is equivocal (which was discussed in the Magistrate’s Court with reference to the Swedish word, ’lagföring’), and it is therefore necessary for the court to consider extrinsic evidence in order to determine the purpose of the warrant. The court must consider whether a criminal prosecution has already commenced:
− The Swedish EAW states that the arrest warrant has been issued for the purposes of legal proceedings.
− The Swedish EAW does not refer to Julian Assange as ’the accused’. Rather, he is consistently referred to by his surname, ’Assange’.
District Court Judge Riddle erred in his findings
Julian Assange’s defence lawyers argue that the District Judge Riddle erred in his judgment, because he failed to consider that there is a systematic translation error in all Swedish language EAWs, and that EAWs in Sweden are issued incorrectly simply for ’legal proceedings’, which is not acceptable under UK extradition law (unless those legal proceedings entail a commenced prosecution).
Moreover, Judge Riddle could not establish which step could fairly be described as the commencement of a prosecution in this case, and yet found that the boundary between preliminary investigation and prosecution had been crossed (Judge Riddle’s claim goes beyond those of the Swedish prosecution themselves, who say that the decision of whether to prosecute has not yet been taken). The Magistrate’s Court Judge failed to apply the Ismail threshold, which is unambiguous in setting the boundary between suspicion and preliminary inquiries on the one hand and prosecution on the other.
Extrinsic evidence
In fact, the Swedish prosecutor’s own statements (issued both before and after the EAW was released) have repeatedly shown that Julian Assange is wanted in connection with questioning (not prosecution), his physical presence in Sweden is sought through the EAW instrument, and the prosecution has not yet decided whether it will charge him for the alleged offences.
Julian Assange’s defence team argues that where an EAW that has been issued for the purposes of questioning, or where the purpose is ambiguous, the court is entitled to consider extrinsic material. But even if, as the judgment of Asztaslos suggests, extrinsic material were only to be considered in exceptional cases, the Julian Assange extradition case would fall into the category of unprecedented and highly unusual cases: unequivocal statements have been made by the prosecutor to the media and to the Australian Embassy in Stockholm, after she issued the EAW, in which she states that the the prosecution has not yet decided whether to prosecute him, and the EAW has been issued for his questioning.
In any case, an invalid EAW is not cured by subsequent information. If the purpose of the EAW, at the time it was issued, was to question and not prosecute Julian Assange, under the UK Extradition Act 2003 it constitutes an invalid EAW. It remains invalid even if, hypothetically speaking, the prosecutor were to decide later on that she does want to prosecute Julian Assange.
Furthermore, it is not a necessary requirement under Swedish law that Julian Assange should be physically present in Sweden in order to answer the prosecution’s questions. Both Sweden and the UK have signed up to the Mutual Legal Assistance mechanism which allows for this kind of case. Julian Assange has made repeated attempts to arrange his own questioning by the Swedish prosecution via telephone, video link and in the Swedish Embassy in London. Yet, the Swedish prosecutor has denied these proposals without giving a substantive reason why.
Submission 2A: It is disproportionate to issue an EAW where the prosecution can use Mutual Legal Assistance
The Framework Decision, which is the EU instrument that established the EAW, is subject to the Charter of Fundamental Rights. The proportionality principle under the Charter makes proportionality a key part of how the Framework Decision is construed - in relation toS individual rights and freedoms.
In this case, the Swedish prosecutor fails the proportionality test because she has issued an EAW without first resorting to voluntary cooperation and mutual legal assistance. In this extraordinary case, it is the suspect, Julian Assange, who has sought these mechanisms and has repeatedly been denied these measures, and is instead left to challenge the draconian EAW regime, in which (as many cases have already shown before) his rights are much more likely to be overlooked.
In addition to this, if the court accepts this extradition on these grounds, it will open the floodgates for prosecutors across Europe to ignore mutual legal assistance, as well as issue EAWs pre-emptively, before a prosecution has commenced. If the court finds against this EAW, it will instead encourage the use of a less draconian measure for obtaining the desired result (questioning).
Submission 3: The EAW is not specific enough - Julian Assange cannot assert his speciality rights
The House of Lords has emphasised that the UK Extradition Act has been designed to protect rights. The courts must ensure that the procedures have been adhered to and that requirements have been followed.
Both the Extradition Act of 2003 (section 2.4.c) and the Framework Decision (Article 8.1) set out four requirements for the content of a valid EAW:
1) What is alleged to have happened.
2) The defendant’s participation in the offence.
3) When the offence allegedly occurred.
4) Where the offence allegedly occurred.
The EAW requesting Julian Assange’s extradition fails to adhere to these requirements. In allegation 3, for example, it states that the offence occurred "on 18 August 2010, or on any of the days before or after that date", which could mean any date on the calendar. A bracket of time must have a definite beginning and end date.
These requirements are necessary for the individual to understand which offences he is said to have committed and to have an idea of the extent of the allegations against him. If the alleged offence involves a dual criminality test, there must be sufficient detail for the court be able to carry out a transposition exercise.
An EAW must be sufficiently specific as to the alleged offences that the person is being sought for, so as to avoid that the case against the defendant is then broadened, beyond what he was originally extradited for. The ambiguity of the EAW for Julian Assange means that he would not be in a position to assert his speciality rights.
NOTE: Submission 3, a technical point, was dropped by the appellant in the hearing after the prosecution submitted a different translation for allegation 3 of the EAW, (from "or on any of the days before or after that date" to "or thereabouts").
Submission 4: A public prosecutor is not a ’judicial authority’ under the 2003 Extradition Act
Only judges, magistrates and courts can be judicial authorities, because only they independently exercise judicial power.
A prosecutor is not a judge. A prosecutor exercises a partisan role. Therefore describing a prosecutor as a judicial authority is contradictory.
EAWs in the UK can only be issued by "the appropriate judge" according to the 2003 Extradition Act. Even the Crown Prosecution Service (CPS) is not authorised to issue EAWs in the UK on the basis that they are partisan.
Parliament’s Intention
Hansard (records of Parliamentary discussions) show that the Parliament intended that the judicial authority means a judge, and assured that the law would be interpreted in this sense. This was certainly the requirement in the UK and the corresponding requirement on European countries issuing EAWs to the UK.
Hansard shows that Parliament raised the possibility that other countries could authorise prosecutors and policemen to issue EAWs. Although an amendment was proposed to define a judicial authority (and prevent policemen and prosecutors from issuing EAWs), in the end the amendment was not incorporated into law because it impositions upon foreign countries in UK law was considered excessive at the time. Instead, in the cited discussions it was established that Parliament would rely on a similar and similarly robust judicial process in the EU countries issuing EAWs as in the UK.
Although the Framework Decision accepts that member states can designate who is a judicial authority, the Framework Decision is not a part of UK law. Parliament deliberately deviated from the Framework Decision in the 2003 Extradition Act, and the House of Lords stated in 2006 (in Cando Armas) that where the wording of the 2003 Extradition Act deviated from the Framework Decision, this was due to a deliberate attempt by Parliament to provide necessary protections against unlawful infringement of the right to liberty. The 2003 Extradition Act provides for additional ’due process’ safeguards.
The UK Extradition Act deliberately carved out the ability for the UK to determine whether an EAW has been issued by an independent judicial body (section 2.2 of the Extradition Act).
Julian Assange’s defence team rejects the judgment of the Enander case, a habeas corpus case in which the Divisional Court ruled that an executive officer could be a judicial authority within the meaning of the 2003 Act. Enander was decided without taking into consideration Hansard or theCando Armas case (which was subsequently decided). The case law on who is a judicial authority has significantly developed since. Enander emptied the term judicial authority of Parliament’s intended meaning. The court simply abdicated its duty to test the impartiality and independence of the authority issuing the EAW, so as to not undermine the EU principle of mutual recognition. And yet the principle of mutual trust and recognition can only be strengthened on the condition that such decisions are taken by independent and impartial judicial authorities.
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