July 2011 High Court Appeal

News

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 a Feb-June 2012 Supreme Court 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.

Assange High Court Judgement 2 November 2011

Previous news:

Appeal hearing: 12 and 13 July 2011

This page contains:

- A narrative summary of the hearing

- Skeleton arguments for both Julian Assange and the the Swedish Prosecutor - available below in full

- 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 argument for the Appellant Julian Assange 110630 from swedenversusassange

Supplementary skeleton argument submitted by the Appellant Julian Assange 110722 from swedenversusassange

Skeleton Reply by the respondent - Claire Montgomery QC for the prosecutor

Skeleton Reply CM

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’, 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 the Cando 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.

Background

The High Court appeal hearing takes place on 12-13 July 2011.

If the court finds against him, Julian Assange’s lawyers will probably try to appeal the decision at a higher instance, the UK Supreme Court. If this action is also rejected, Julian Assange will be sent to Sweden within ten days of the extradition being agreed to by the UK court. Julian Assange may find himself in Sweden by the third week of August.

It is likely that once he is in Sweden, the United States will issue an extradition request for Julian Assange. A US secret grand jury was set up in December 2010 to consider charges against Julian Assange, including espionage. If extradited, he may face the death penalty, torture or other inhumane and degrading treatment, particularly after calls to declare him and WikiLeaks collaborators ’enemy combatants’ (see Timing: EAW & INTERPOL Red Notice ).

1360 days under house arrest.

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