The use of a European Arrest Warrant (EAW) in the Swedish Prosecution Authority's investigation of Julian Assange has caused controversy. In the UK, only a judicial authority (a Judge or a Magistrate) can issue a warrant under the Extradition Act 2003, and with good reason; a prosecutor is liable to be partisan. Further, according to the EAW Framework Decision, an EAW can only be issued "with a view to the arrest and surrender [...] of a requested person" and Assange is wanted for questioning.
There is also a disconnection between the EAW issued by Gothenburg's chief prosecutor Marianne Ny (after Eva Finné - the chief prosecutor of Stockholm where the allegations originated - had dismissed all of the most serious claims) and testimony. The three charges based on the testimony of Anna Ardin are as follows:
On 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.
Recently, gender has become a powerful political currency in Sweden, one that is often used by those seeking elected office or politically connected positions. Ny is a long-time campaigner for further reforming Sweden's sexual offences legislation. In August 2010, Ardin was a Social Democratic Party (SDP) candidate in the Stockholm City Council elections, as was Irmeli Wreath (the police officer who interviewed Wilén whilst Ardin was present). Their legal representative Claes Borgström served as the SDP's Equality Ombudsman between 2000 and 2007. Bias through political motive cannot be discounted in this case and illustrates the danger of recognising a prosecutor as a judicial authority.
The controversial use of the EAW was noted at the City of Westminster Magistrates’ Court in 'The judicial authority in Sweden -v- Julian Paul Assange'. Judge Howard Riddle stated that Mutual Legal Assistance (MLA) “was a more proportionate response than issuing an EAW” for the purpose of questioning a witness.
It must have been understood that the EAW would prove contentious, so why employ it in the first place? Further, it is clearly not representative of the factual substance of the allegations. Why?
Assange's lawyer, Mark Stephens, has stated that "the arrest warrant was sent back by Scotland Yard because it did not comply with [UK] law and was defective." This explains why an Interpol red notice issued for Assange on 20 November 2010 was, for some time, without a warrant to back it. A credible source has stated that Ny had failed to fill out the answers in the pre-printed form correctly and /or fully. Was the EAW then embellished and resubmitted because its initial interpretation of the allegations had failed to describe anything that Scotland Yard recognised as a crime? But why take this route anyway, when the far simpler path of MLA could have been used to question Assange in the UK?
Judge Howard Riddle stated: “through Mr Hurtig, Mr Assange offered to be interviewed in Sweden after 9th / 10th October, rejected as “too far away”, and later in a variety of ways from outside Sweden. All those offers were rejected by Ms Ny, who made it clear that the interview should take place in Sweden. A number of reasons have been speculated as to why she took that view. I am not in a position to say what the reason was.” While Riddle is “not in a position to say,” we are in that position.
KR: The prosecutor has stated that, according to circumstances in the investigation, her opinion is that it's necessary that he is present in Sweden, and she hasn't stated exactly what circumstances, but that's her statement.
MK: But isn't it the case that Swedish prosecutors have gone abroad to question defendants in serious cases at other times?
KR: Yes, that's true, it has happened. And it's for the individual - it's for the prosecutor - to decide which measures to take. So it's... it's all about what the prosecutor decides to do.
MK: But what you're saying is there are circumstances in this case that make it very different. It's hard to understand what they might be!
KR: Yeah. And the prosecutor hasn't stated exactly what kind of circumstance - what circumstances - but that's her... her decision.
MK: So how is the deadlock going to be resolved then?
KR: I have no idea really.
When someone holds a position that is "hard to understand", there is usually a logical reason behind their choice. In the Assange case, any use of MLA by Ny creates a significant risk of derailing the prosecution. The reason for the extradition attempt is to bypass this risk.
The danger to Ny's case stems from the possibility that, through disclosure, Assange's defense would gain possession of a document that would be admissible as evidence in any future extradition hearing. According to UK Home Office guidelines, a MLA Letter of Request (LOR) must consist of:
1. A description of the offences charged or under investigation and sentence or penalty.
2. Copy of legislation that criminalizes the conduct in requesting country, information on offence, penalty and rights afforded to the accused.
3. A summary of the facts giving rise to the request and connection this case has to the UK.
An LOR in the Assange case might very well meet the disclosure test and therefore could be turned over to the defence. Furthermore, as well as assessing whether the disclosure test has been met, a UK judicial authority would have to review the evidence (to UK standards) in relation to the charges. This would destroy the case against Julian Assange.
1. If the LOR was denied, for all intents and purposes the case would collapse.
Denial of the LOR seems likely. If Ny's first attempt at a EAW was dismissed by Scotland Yard, one could imagine the UK Central Authority (UKCA) doing the same. UKCA is required to compare the charges to the evidence summary. Here, Ny would also have to embellish the evidence - a rather different prospect to the manipulation of an EAW, where the 'interpretive nature' of the charges temporarily provides cover.
2. If the LOR were to be released to the defence, it could be admissible in open court.
If submitted in evidence at extradition proceedings by the defence to show an abuse of process, it could be employed by the defence to circumvent the inability of the court to test the evidence. This loophole would not only cause the case to collapse, it would have serious repercussions for Ny in Sweden.
Even at this stage, an LOR document taken to the ECHR would, without question, show a breach of the duty of candour regarding the UK CPS Disclosure Manual (35.54) and would cause: "proceedings stayed on grounds of abuse of process."
The deliberate mishandlings in this case are shocking. From the police investigation, the police bias, the bias of the prosecutor, it is impossible to conclude that a fair trial is possible. Perhaps before justice can be confidently determined in this case, the systemic abuse of process and misconduct of those involved should be addressed.
Liberty's Policy Director Gareth Crossman: The UK's extradition laws have been radically overhauled in recent years. The Extradition Act 2003 created a system of fast track processing of extradition applications. This means that British citizens can be removed from the UK to many jurisdictions without the need for a court to hear that there is any evidence against them. The United States is one country where the fast track process has been introduced. However, Liberty does not think that debate over extradition should focus on the US and the non reciprocal nature of our extradition procedures as this might allow principled debate to be construed as anti-Americanism. In any case, summary extradition should not take place from any state.
Liberty does not believe anyone should be removed from the United Kingdom without a British Court being satisfied that there is evidence. When Liberty argued this during the passage of the Extradition Bill the government responded that the removal of safeguard would be balanced by the introduction of a protection that no-one would be removed from the UK if doing so would breach their human rights.
November 27, 2012
On 13th-14th August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs while lying on top of her and with his body weight preventing her from moving or shifting.
On 13-14 August 2010, in home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated sexual intercourse with her without her knowledge.
On 18 August 2010, or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Julian Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity; that is, lying next to her and pressing his naked, erect penis to her body.
However, Ardin's account contains information that suggests Ny's interpretation is based on selectivity. For instance, with regards to the first charge, Ardin's testimony also states that: "Anna allowed Assange to remove all of her clothes. Assange asked Anna what she was doing. Anna then told him that she wanted him to wear a condom. At that, Assange released Anna’s arms and put on a condom that Anna fetched for him."
The second charge: "Anna did not look closely at the condom in order to see if it was broken in the way that she suspected."
The third (and first) charge: "Assange resided with her, but that they rarely slept together because Assange was up all night, working with his computer. Anna states that she had consented to have sex with Assange."
The charge based on the testimony of Sofia Wilén is as follows:
However, Wilén's account also contains information that suggests Ny's interpretation is based on selectivity. For instance, Wilén's testimony states that: "They had sex again and she suddenly discovered that he had placed the condom only over the head of his penis; but she let it be. They dozed off and she awoke and felt him penetrating her. He was already inside her and she let him continue."
(2) In a case within subsection (1) (a) or (b), the authority may arrange for the evidence to be so obtained only if the authority is satisfied—
(a) that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b) that proceedings in respect of the offence have been instituted in that country or that an investigation into the offence is being carried on there.
(The request must establish reasonable grounds for believing that the offence in question has been committed - as opposed to a fishing expedition - this would be done within the body of the request which should set out the factual background of the information possessed by the foreign authority which led to the belief).
UK Crown Prosecution Services' Disclosure Manual, Chapter 35 states:
35.29. In view of the nature of their contents, a letter of request (LOR) will not usually satisfy the disclosure test. However, if the principle of speciality under section 9(2) of the CICA that limits the use to which material obtained can be put, is not respected and/or there is a material departure from the requirements of sections 7 and 8 of the CICA, the defence legitimately may be able to raise an abuse argument or seek to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984, then the prosecutor should carefully consider disclosure.
Crime (International Co-operation) Act 2003, Section 14 (2) states:
At first Ny claimed (in a Time magazine interview) that Swedish law prevented her from using (page 17) MLA to question Assange in the UK, “Swedish law prohibits formal legal interviews over a telephone or video link. The Swedish embassy in London is not Swedish territory in the sense that we can hold interrogations there without formal approval of British authorities." Later, Ny was forced to admit that MLA is employed by Sweden whenever cases cross national boundaries. The Swedish government is a signatory to the MLA EU Convention and their International Judicial Cooperation policy states: "Swedish prosecutor or court can then request legal assistance regarding a hearing by telephone if an agreement has been concluded regarding such legal assistance under an international agreement with the other country or if that country otherwise provides such assistance."
It is worth noting that Ny also stated: “A case in the southern Swedish city of Helsingborg where a suspect was heard via telephone was heavily criticized by the Ombudsmen for Justice as not being in accordance with existing law.” However, she does not mention and no one has been criticised for the fact that Ardin was permitted to give evidence via telephone. Perhaps this is because it is standard practice and complies with the Code of Judicial Procedure, which states that: "The investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience."
In a witness statement submitted by fax to the Westminster Magistrates' extradition proceedings (Ny refused to give evidence in person, which enabled her to sidestep being cross-examined on it), Ny stated: “It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that it is necessary to interrogate Assange in person regarding the evidence in respect of the serious allegations made against him.”
Apparently, questioning Assange via video link was not 'personal' enough for Ny, but if this is the case, perhaps Ny ought to come to the UK in person?
During a BBC Radio 4 interview, the Director of Communications for the Swedish Prosecution Authority seemed as perplexed as Judge Riddle: