Extradition has lost its way
Julian Assange, the Australian founder of Wikileaks, is spending another night in Wandsworth prison, in solitary confinement in the segregation wing, forbidden to have any contact with other prisoners, in conditions described by his lawyer as ‘Dickensian’. Apparently he is not allowed the use of a telephone (beyond two calls a day) or television set; he is not allowed to see newspapers; an envelope that had contained a copy of Time magazine with his picture on the cover, sent to him by Time, did reach him but with the magazine missing; other mail is also not getting through to him; visitors are rationed and limited. He is confined to his cell for 23-1/2 hours of every 24. He won his appeal today against the denial of bail, but as the Swedish authorities have given notice of their intention to appeal against the grant of bail, he will remain behind bars for at least another 48 hours and perhaps longer.
One might well ask of what heinous crime Mr Assange has been convicted by a jury of his peers to deserve such harsh and humiliating punishment? None. Then with what crime has he been charged, to be required to be kept behind bars pending his trial, among murderers and robbers? None. His sole offence is to be wanted in Sweden for questioning. He has volunteered to answer any Swedish questioning, conducted by Swedish policemen, in Britain, perhaps in the Swedish embassy or in a London police station, but the offer has been declined — or ignored.
So what evidence of a reasonable suspicion that he might have committed some offence in Sweden has been produced to the court to justify removing him against his will to a foreign country on the application of the Swedish authorities? None. What behaviour has he been accused of by some private Swedish citizens that is, on the face of it, an offence or offences under both Swedish and English law? None.
None of this has the slightest formal connection with Mr Assange’s recent activity in releasing the celebrated Wikileaks. We are asked to believe that this monstrous injustice is being visited on him purely on the basis of some vague and so far unsubstantiated accusations by some ladies with whom he once had sex, and that all this would be happening to him even if Wikileaks had never been invented. It’s pure coincidence, we are to suppose, that in the United States quite reputable political leaders are demanding that Mr Assange be extradited to the US, put on trial for treason (on the basis, presumably, that as an Australian he has a duty of loyalty to the United States), and executed. But this has nothing to do with the Swedish application for his extradition to Sweden to answer questions about a possible offence for which he has not even been charged. And meanwhile he remains a prisoner, incarcerated in an English prison.
By what possible right do our own authorities dare to deny this man, who is doubly entitled to the presumption of innocence (not having been either charged with or convicted of any offence), the ordinary facilities available to a free man? Why can’t he telephone whoever he likes, for as long and as often as he chooses? Why can’t he have whatever visitors he wants? Watch television and receive all his mail, unopened and uncensored? Send out for his meals? Wear his own clothes, including his ties and shoe-laces? His treatment is a slap in the face of English justice. If in the end he is extradited, the injustice will be even more grotesque.
The case of the computer hacker Gary McKinnon, whom the Americans want to extradite for hacking into the Pentagon’s secret computer system from his bedroom in Wood Green, North London, has aroused widespread concern about the manifestly unequal provisions of the UK-US extradition treaty, now at last being reviewed by the new coalition government. Now we see the utterly unacceptable consequences of the European Arrest Warrant, under which anyone may be extradited from any EU member country to another on application, without a shadow of due process or any other legal protection against abuse. Anyone who suspects that I must be exaggerating the scandalous character of this system only has to read the article in today’s Guardian by the newspaper’s admirable legal affairs correspondent, Afua Hirsch:
Now followers of the WikiLeaks story wonder how Assange could be extradited with so few questions asked. Why, for example, can our prisons detain someone (Assange is currently on remand in Wandsworth prison) for an offence under Swedish law that does not exist in British law? And how can a judge agree to an extradition without having seen enough evidence to make out a prima facie case?
The 2003 Extradition Act originated in an EU decision agreed just one week after 9/11. It was sold to voters as a way of ensuring cross-border cohesion in prosecuting suspects wanted across Europe for terrorism and serious crime. The level of cohesion in criminal justice systems across Europe, the argument went, and their common obligations under the European convention on human rights, provided a sufficient basis of trust that an arrest warrant by an EU country could be agreed by the UK with little scrutiny.
It’s been downhill from there. Around three people per day are now extradited from the UK, and there is little to suggest that the majority are terrorists or serious criminals. In fact those involved in the process agree that many of the cases are “trivial”… [Emphasis added]
It’s beyond belief that not only the previous government but also our elected parliament, supposedly the sturdy guardian of our ancient liberties, indolently sat on their hands while these travesties of fundamental rights were passed into law. Our present government has promised to make a bonfire of the illiberal measures for which a succession of Labour home secretaries were shamingly responsible. That bonfire can’t be lit a moment too soon.
Brian
If, as I think may be the case, Sweden has a system of Roman law, what we see here might be the traditional British refusal to understand the investigative phase that is undertaken by an instructing judge before the case is formally made.
Brian writes: Thank you for this, Peter. But I see no evidence here of any lack of understanding on the part of “the British” (government? people? courts? me?) of the differences between either the legal systems or indeed the laws of other EU countries. On the contrary: the defect of the European Arrest Warrant is that it assumes that all EU countries have the same systems and laws, and the widespread criticism in Britain of the EAW reflects its failure to allow for those differences. The EAW might have some degree of justification if the EU had become a genuine federation of member states with a single sovereignty, facilitating the transfer of suspects or persons charged with offences in one federal unit to another. But even then, virtually automatic transfers (like transfers from Gloucestershire to Somerset) would invite abuse unless the member states of a sovereign EU federation had substantially the same legal systems and substantially the same criminal and civil laws — which is not the case even in most existing federations. Extradition proceedings between two states of the United States are hedged about with all sorts of complex safeguards: a fortiori, extradition between two sovereign member states of the EU should involve even stronger safeguards. At the very least extradition should be agreed only when the applicant state produces prima facie evidence of a defined offence having been committed by the person sought, and of the person sought having been formally charged with that offence in the applicant country; and the UK court should have to be satisfied that the offence alleged was an offence under the laws of England (or wherever) as well as under those of the applicant state. There should also be provision for an executive power, akin to the power of pardon, to disallow an extradition, even if approved by the sending country’s court, either on grounds of natural justice (including extenuating circumstances) or on grounds that the offence or the grounds for applying for extradition were essentially political.
It’s one thing to say that all EU member states have equally reliable judicial systems (which is the implied justification for the near automaticity of the EAW): quite another to say that those systems are all the same, and that when it comes to sending a suspect or accused person from one country to another against her will, one size fits all.
Sweden does indeed have a Roman law system, but I believe that Brian makes a very strong case: this is not a “traditional refusal” to see things the other man’s way, but a case of the Brtish system actually falling over itself to accomodate the other man’s way, to the extent of not even asking for supporting evidence.
A strange and disturbing twist to this saga is that it appears that the decision to appeal against allowing bail to Assange was taken by the Crown Prosecution Service (CPS) and had nothing to do with the Swedish authorities. How did that public misunderstanding arise? Did the CPS feed disinformation to the media?
It looks as if Assange has been unjustly deprived of his liberty. Is that not a crime? Whose heads should roll?
Has the British public the right to see the legal and political advice on which the original decision to detain him, to deny him bail and to deprive him of comtact with others and receipt of mail was taken? If not, I am living in a country that has given up a substantial portion of the freedoms for which my parents’ and grandparents’ generations made great sacrifices. Can I take legal action against those who have betrayed me?
Brian writes: Thank you for this, Iain. But I doubt if the treatment meted out to Mr Assange has broken any UK law. The heads that IMO ought to roll are the heads of the ministers and MPs who meekly signed up for the European Arrest Warrant and the UK-US Extradition Treaty. It looks as if Mr Assange is going to suffer the injustice inherent in both these deplorable instruments.
Dear Brian, Well said. I totally agree with you regarding the conditions under which Assange has been held. The interesting thing is that Mr Assange has not even been charged and yet he is accorded absolutely zero respect in the English prison. Heads ought to roll for that but I will be up a long time waiting for the tumbrils. Perhaps Head No. 1 to go ought to be the Justice Minister.
It beggars belief that there is no connection between how Mr Assange was treated in prison and the Wikileaks business. One detects the stealthy hand of the U.S. in all of this.
Since you wrote your words above, Mr Assange was granted bail on an extensive package of conditions which, to be frank, I don’t think I have ever seen in over 40 years involvement with the criminal law. It is amazing that, until he case reached the High Court, nobody seemed to recognise that Mr Assange had actually co-operated with the Swedes and had remained in the U.K. knowing that a warrant was on its way.
Also since you wrote, it has become much clearer that American lawyers are preparing a case and I would not be surpised if an extradition request arrived from them in the near future. After all, under our absymal Extradition Act 2003 arrangements, it would be easier for the US to get him extradited from here (no need for a prima facie case) than it would be from Sweden.
A number of future possibilities exist in this case. I will not tempt Mr Assange’s fate by mentioning them but I trust that his lawyers will be considering the possibilities.
Brian writes: Thank you for this. I entirely agree about the extraordinary conditions imposed on Mr Assange’s bail, such that if he were now to abscond, the surrender of his sureties would go quite a long way towards reducing the UK budget deficit. Actually his disappearance now would entail other benefits too: the British and Swedish justice systems would be spared untold embarrassment, certain vindictive Americans would be robbed of their prey, and Mr Assange, safely holed up in a humpy on the outskirts of Alice Springs, could get on with the serious business of publishing the next quarter of a million American secret documents.
More seriously, it’s increasingly sad and frustrating to watch helplessly as the trap closes inexorably on this man. The judge warned him yesterday that his eventual extradition to Sweden was virtually inevitable and there seems to be an element in Sweden in cahoots with those in the US currently working on an indictment against Mr Assange, probably for either conspiracy or espionage, either of which would put him away in the hell-hole of a high security American penitentiary for much of the rest of his life, if convicted. Assange himself seems to believe, rather surprisingly, that he’s more likely to be extradited from Sweden than from the UK. There seems to be no solid evidence that Wikileaks has caused any identifiable damage to US security or other interests apart from some embarrassment, yet the Americans seem determined to hunt him down as if he was a terrorist threatening to blow up the White House. In his current electorally weakened position and with his re-election campaign looming, Mr Obama seems unlikely to risk a presidential intervention to put an end to this ugly display of vengefulness. Perhaps the Swedes’ better angel will put in an appearance and call a halt to this nefarious process in the nick of time.