While the stalemate at the Ecuadorean embassy in London is due to the US investigation into WikiLeaks, it is also a position created solely by Ny's obsession with questioning Assange on Swedish soil. According to Sweden's legal guidelines and practice, taking a statement from Assange should have been routine, but Ny's conduct has been, from the start, far from ordinary.
On 13 March 2015, Ny released a statement detailing her decision to finally question Assange in accordance with legal norms. It is a statement that, through necessity, sits on arguments that perfectly illustrate Ny's misconduct throughout a four and a third year process to obtain a piece of testimony that could have been given over the phone. Indeed, one complainant and six witnesses gave evidence unrecorded “Per telephone”.
The arguments are as follows: firstly, that “in less than six months' time” the allegations against Assange “will be subject to statute of limitation”. However, the Swedish Penal Code, Chapter 35 § 6 states that: “No sanction may be imposed unless the suspect has been remanded in custody or received notice of prosecution for the crime within: [...]”, and as far as Ny is concerned, Assange is subject to the Swedish version of remand (häktning), therefore the statutes can no longer be applied.
In the statement, the past lies used to justify the European Arrest Warrant (EAW) are absent. As is the reason for bypassing it. At every turn, Ny has not only sought to conceal the warrant's investigatory nature, which is grounds for rejection, but she has also exaggerated the allegations made against Assange in order for the EAW to pass the UK's 'dual criminality test' - without which the extradition attempt would have been rejected.
The reasoning for going to such lengths to secure an extradition, rather than applying to question Assange under the EU Convention on Mutual Legal Assistance (MLA), is that a EAW prevents a UK judicial authority from conducting a 'reasonable grounds' test on evidence.
It was a hopeless state of affairs, so much so that just three days after Sweden's Supreme Court (10 March 2015) called on the Attorney-General to “expeditiously submit its reply to the case, especially on the issue of the conduct of investigations and the principle of proportionality", following an appeal process to overturn the 18 November 2010 detention order, Ny reversed herself and decided to adopt MLA: “If Assange gives his consent, the prosecutor will promptly submit a request for legal assistance [...]”.
It took 1,576 days for the corrupt EAW to become sidelined. The Swedish Prosecution Authority responded by changing history on its website. In 2013, the case timeline contained no attempt to question, but between 13 and 20 March 2015 it was revised to: “The prosecutor makes repeated attempts to hold hearings with Julian Assange”.
However, in the past Ny has stated that she consistently refused to question Assange (on the premise that “the only police officer she was prepared to use” was indisposed - PDF, page 31), barring the one occasion when she knew Assange would be unavailable, because she'd just given him permission to leave the country (15 September 2010).
This served as the catalyst for the frenetic, covert activity needed ahead of the publication of the Iraq War Logs (22 October 2010) - Assange and WikiLeaks went off the grid. That Ny was aware of this development can be seen in her police officer's sudden availability. Ny would not have proposed this moment for questioning, were it possible to inform Assange. This is because the 'permission to leave' provided Sweden's security services with the perfect opportunity to lift Assange's “encrypted laptops, assorted electronics, additional encrypted hard drives” whilst in transit to Berlin (27 September 2010).
With one false attempt to question Assange in the bag, on 27 September 2010, Ny issued a secret in absentia arrest warrant. Björn Hurtig, Assange's Swedish lawyer was not informed until the 30 September 2010, after which Ny began refusing to question Assange in the UK (from 11 October 2010).
In Ny's MLA statement, it is argued that one reason for travelling to London is the need to secure a DNA sample from Assange. It goes without saying, that DNA was obtained on 7 December 2010, and that it has been available to Ny via a MLA request for 1,557 days. All Ny had to do was send this forensic report as part of a 'crime scene profile' to the UK. Equally unsurprisingly, Ny's legal playground, the Gothenburg Development Centre, stated in a 2008 paper that:
In assessing the need for sampling should be also be factored into the sample should not be taken if it is unnecessary. According to the legislative history example, it is natural that the sample is not taken if the individual is already registered line in the DNA registry or if DNA samples have already been taken during the investigation of the offence under Chapter 28. § 12 Code of Judicial Procedure.
Ny's DNA justification breaks her own guidelines. Where to next? On 8 December 2010, barrister Gemma Lindfield, acting on behalf of Ny at the Westminster Magistrates Court extradition hearing, perjured herself by stating that “[Assange] had been ‘uncooperative’ and had refused to give fingerprints or a DNA sample”. The impact of this lie on Howard Riddle's judgement could not have been more serious:
On the information I have, it does not seem unreasonable for a prosecutor in a serious matter such as this to expect and indeed require the presence of Mr Assange in Sweden for questioning, and if necessary to take a DNA sample.
Why would Ny select ambiguous testimony for the EAW over seven instances of later testimony taken solely to add clarity? Ny told the court that the later statements "..were materially the same”, but that is not true. Presenting a EAW underpinned by a evidential selectivity and falsehoods to a UK court, where it is used as the basis for 'dual criminality' and 'reasonable belief' tests, is not only dishonest, it is perjury.
Further, while Assange has been able to see the 26 August statement, he has not been given access (Svea Court of Appeal, November 2014) to the other seven, despite the fact that Swedish law has recently been amended (May 2014) to ensure that:
In one sent by her she described herself as "half asleep" and she accepted in a further interview that she was not fast asleep. These are matters of evidence which would be highly relevant at trial. But it is not for this court to assess whether the allegations may fail.
CPS guidelines on perjury in UK courts consider “actual impact on the proceedings in question” to be a key factor in determining sentencing levels; the Perjury Act 1911, Chapter 1 § 6, states: “The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.”
Lindfield and Ny had 78 days, from the moment they first misled the court to Riddle's judgement, to correct the record. They did nothing. And in doing so meet the test of perjury in: “wilfully mak[ing] a statement material in that proceeding, which [s]he knows to be false or does not believe to be true.”
The drift of perjury into UK courts goes further. Ny placed 'Offence No. 2' on the EAW (26 November 2010) after she had received DNA/ forensic results (25 October 2010), that disproved the allegation. Further, despite possessing eight interview statements by complainant SW, Ny fell back on the first statement, which was unsigned. Ny stated (High Court, November 2011) that 'Offence No. 4' “was based on the complaint of SW made at a hearing on 26 August 2010”, which means that the EAW is in part based on unsigned testimony.
The unsigned witness statement came from a 'concept' interrogation (that is, a police officer's interpretation of an interview which was not video or audio recorded), and contained a line: “They dozed off and she awoke and felt him penetrating her”, that Ny later interpreted as 'Offence 4'. However, text messages sent by the woman confirmed that she was half-asleep, as does her later testimony:
Anyone who is arrested or detained has an unconditional right, at its own request, inspect the circumstances which justified the decision (24 Ch. 9 a § RB). This right can not be restricted either with regard to the investigation of the crime or because of confidentiality.
In a process where no opportunity for abuse has been ignored, the rendering of exculpatory evidence into "secret information" for the purpose of concealment, is just another day. One that Assange must overcome from within the confines of the embassy.
Ny is a fabulist with an agenda. The political circle that once sat at her table, everyone lying to each other in pursuit of a quarry, are stepping back. They are experiencing an isolation. In their wake, the attempt to subvert the judiciaries of the UK and Sweden must be answered. The only justice left in this case is to bring Ny before a court, it does not matter where.
After Ny and her associates are gone, Sweden will need to address their intentions - the espionage law designed to clear a path for an editor's extradition to the United States will have to be recalled.
April 28, 2015