2011-02-11 Extradition hearing: Day three

The following is a reconstruction of the Julian Assange extradition proceedings on 11 February 2011 based primarily on the tweets of @federicacocco (Federica Cocco) and in much smaller part from the tweets of @channel4news. WL Central acknowledges those sources. The tweets have been preserved as much as possible and combined but are rewritten in parts for clarity, and legal terminology has been inserted where appropriate. Clarifying additions are generally in italics and may be assumptions within the legal context.

SC Robertson’s Submissions.
Robertson QC opens submissions with an account of the attack on Julian Assange by Fredrik Reinfeldt, prime minister of Sweden; Robertson says that Reinfeldt's comments earlier this week amount to his labelling Assange an "enemy of the people" in Sweden.

"This will influence a fair trial,” says Robertson, who quotes the prime minister as claiming that Assange and his lawyers are “sexist and condescending to Sweden."

The Swedish chancellor added to the prime minister's remarks, which Robertson says is an intolerable development; he adds that it is unprecedented for a government minister to comment in that way.

There is evidence of a 'toxic nature' of antagonism in those statements, all the more extraordinary as the Swedish Prime Minister said in January that he'd be wrong to comment. This is a complete contempt of the principle of presumption of innocence and Robertson requests an adjournment

Montgomery argues against adjournment. Even if Robertson was right (that the trial wouldn't be fair) the defence has spoken to media as well, the PM simply reacted to statements made by the defence. Robertson replies “That's a very cynical comment.”

Robertson says “We're talking about the head of government, descending into the public arena and making statements in regard to the evidence.”

Clare Montgomery QC opposes an adjournment, saying: “Those who seek to fan the flames of a media firestorm cannot complain when they are burnt.”

Robertson replies that the "Prime Minister of Sweden is painting Assange with a very venomous picture." The presumption of innocence is essential and the PM's statements will prejudice Assange at trial. The fact he made the statement now means the defence need more time to bring fresh evidence.

The Judge says that he will come back to the nature of that application in a moment and notes that the hearing meant to last two days has already been extended.

The Judge says that he’s been given the PM's statement by Assange's legal team and notes that the application is opposed by Montgomery. In a case of this type, it is likely there will be further developments but there has to be an element of finality. Robertson replies that “finality is less important than justice.”

The Judge notes that he’s very aware that any decision he makes in these proceedings will be the subject of an appeal. Even though Robertson has made a very strong application for an adjournment he proposes to refuse it, saying that The High Court can make a decision on appeal on this point but he wants the submissions finalised today.

Robertson presses the point and requests at least “a proper and idiomatic translation of the PM's statements” The Judge refuses an adjournment, saying there is “not enough time.”

Robertson continues his submissions saying that the burden of proof is on the prosecution, the standard of proof is “beyond any reasonable doubt.”

Robertson says there is a real risk of an unfair trial and questions the credit credibility applicable, if any, to Ms Ny's statement. The proper and fair way of dealing with this situation is to get Ms Ny in the witness box. “It is not appropriate to smuggle in a witness statement under the pretext that it's simply to supply useful information.” There are cases the defence has cited where prosecutors have come to testify. If statements are to be given in an evidential way, then she should come and testify…that is a fundamental principle of criminal law that proceedings become unfair if one side is not allowed to challenge statements of evidential weight.

Robertson continues that it's not fair for one side to be able to stay out of the witness box. If she doesn't come, his submission is that her written statement should be disregarded.

Robertson goes on to address the issue of unfair trials, that some people have said that the defence shouldn't worry about unfair trials since Sweden’s decisions can be appealed to the European Court of Human Rights. The problem with that is there are 139,000 cases pending before the European Court of Human Rights and on appeal there, it would take years before Strasbourg heard the matter and a decision was made. While that Court has a rule on urgent procedures it’s limited to cases in which the suspect risks torture.

Robertson reiterates, there is no evidence from prosecution other than the warrant, which was issued by the wrong entity, the issuing authority for the EAW should not be the public prosecutor, but the Swedish prosecution authority, and this is especially so because this is not a conviction warrant.

Robertson asserts: "Ny is absolutely, totally wrong to have issued the EAW. They may have thought the point was strictly technical, but it’s very significant" and points out that this was not an issue that was before the "Svea Court of Appeal which" Sven-Erik "Alhem confirmed in his evidence."

There is also the question of where the dividing line is between prosecuting and questioning relevant to the issuance of an EAW.

Robertson addresses proportionality asking “Is a European Arrest Warrant valid, under the principle of proportionality, for mere questioning as opposed to prosecution?”

“Was this warrant issued to commence a prosecution?” The answer is “No, it was issued for a preliminary investigation.”

“It has been said that Assange would be defined as suspect only after the preliminary investigation had ended.”

“This is the law, if we're being cosmopolitan we need to look at other systems. This is the system in Sweden.”

“You can't consider prosecution until preliminary investigations are closed. Ms Ny wrongly described Assange as a suspect.”

Roberston says that Assange was not formally notified of the charges against him and was not given the opportunity to organise witnesses and their evidence supporting him in his defence. It follows that no prosecution commenced and therefore the warrant is invalid.

The EAW issued was disproportionate in that Mutual Legal Assistance provisions should have been applied first. The prosecution said DNA test was necessary and Robertson questions why was that not necessary in August? In any event Mutual Legal Assistance allows for DNA tests.

On the subject of DNA Robertson says at some stage in his submissions that questions over whether Julian Assange would have to attend in person to give DNA sample "is a bum point."

On the issue of questioning/interrogation, Robertson says that Assange volunteered to be questioned but the Prosecutor refused to interview him. It wasn't until the 22nd that she asked Assange to attend an interview for the 28th. His luggage was stolen on the 27th, when he left to attend that prearranged meeting.

Robertson says that Assange offered to return but Ms Ny said it would have been too late. The Deputy prosecutor told Hurtig Assange’s defence lawyer in Sweden that Assange could come in and would be allowed to leave. “This evidence is extraordinary.”

Robertson’s point on proportionality is that there has been no “sensible explanation” as to why Mutual Legal Assistance or interviews via Skype were refused.

As for the dual criminality, (a crime must be equivalent in both jurisdictions) the onus of proof is on the prosecution and the EAW warrant system requires for these to be disclosed.

Going into finer detail on applying a dual criminality claim, Robertson submits that two elements are crucial in cases of sexual assault but the crucial one is “Did the victim consent?”

Robertson’s point is that there is nothing in the warrant's description saying the complainant(s) did not consent.

At about this time in his submissions Robertson says it is “‘crystal clear’ that non-consent element of rape is not present in case of complainant A.”

Robertson then gives a detailed description of the sexual act(s) including the positions of the complainant and Assange.

On the issue of the Swedish prosecutors method of complainant interview, Robertson says that Miss A was interrogated by phone and remarks “Isn't that interesting?”

At about this point in proceedings Robertson also says: “What is plain from interrogation of woman A, by phone, is that when she asked Assange to let go he did and put on a condom.”

“She was squeezing her legs together, he asked her why, she said ‘I want you to wear a condom’”.

The Judge interjects saying that Robertson has already made the point, get on with it.

Robertson proceeds on the issue of one of the allegations listed in the EAW saying that there is no such thing as 'minor rape' outside of Sweden and that is a misuse of terminology.

One the issue of a fair trial Robertson says: “The evidence is all one way.” All trials in Sweden are held in secret which distinguishes Sweden from every other country in Europe. Accordingly there is a “risk of flagrant denial of justice.”

Robertson returns to the issue of the Swedish Prime Minister attacking Assange and accusing the defence of lying, which is “outrageous” and demonstrates beyond a doubt that Assange “won’t get a fair trial.” This by “our authorities and our standards” which constitutes a denial of justice for Julian Assange.

SC Montgomery's Submissions
There are six brief points:
1) Marianne Ny's authority is “certifiable.”
2) The Framework decision and notification by Sweden makes the claim-Ny is authorised to issue an EAW
3) “Points of translation in regards to the prosecution role are mischievous”
4) The prosecution suggests that the easiest way of disposing of this point is (confirmed from) what the witness Sven-Erik Alhem said: “…everything was lawful and proper. Ny is authorised…clear material showing authorisation.
5) As for the Purpose of the warrant--It's clear that the Framework directive (allows it.)
6) …?

Montomery submits that “There is no reference to domestic phase because it's meant to be read generically, it's meant to be read in an EU context.”

Montgomery continues and says that Robertson is wrong to say he has a 'cosmopolitan approach.' The contents of the warrant plainly state the purpose is prosecution of Assange. It is not a conviction case, nor is it a post conviction sentence, the charges are clearly specified and it's clear the matter is for prosecution.

There is “no exceptionality test” and in Montgomery’s submissions the case could be decided on that point alone.

In relation to Ny's statements serving as evidence there is no defence submission stating or requiring that the prosecution statement is to take evidential form. Furthermore, the statements' purpose was not to serve as evidence. It should be “easier for a judicial authority to gather evidence” per part 2.”

Montgomery submits, regarding Robertson's plea to fairness and the suggestion that it is unfair that his witnesses have been cross examined but not Ms Ny: that "Fairness is not decided in a vacuum. Context is king."

“In every single case this court has acted on material” in an EAW “and any supplementary material, without supposing the material was…not valid.” It was never argued by the defence that an evidential form is required.

“It is the” view “of the judicial authority issuing the warrant that have the greatest weight.” Robertson did not tell the court that the warrant was issued by request of the competent authority.

To the question “Is the purpose of Ms Ny prosecution?” Montgomery says: “That's simply not dealt with by the defence”

Julian Assange’s presence is a requirement for interrogation in Sweden and the primary purpose is prosecution.

Montgomery addresses on dual criminality: “Does the offence call for a EAW?” and states that “an offence of rape will qualify if it is defined as rape by the issuing state per Article 2.2.”

At about this time: “…The position in law re EAW is that if Sweden says it's rape, it's rape.”

Montgomery concedes that proceedings had not reached the “technical Swedish stage of ‘prosecution’” which may turn out to be a significant issue. “There's no recourse to any pan-European authorities ie case law. Even if there were, it is clear the Swedish offence of rape falls within the definition of rape of pan-European approach.”

On the issue of the complainant’s evidence, the defence’s “attempt to play down minor rape as a not very serious offence, doesn't take into account that what Ms B describes... i.e. penetration whilst asleep, which would also be considered rape in the UK.”

“This not a case of the police ‘slipping under the bedclothes’”

Montgomery submits that Robertson is wrong, violence is relevant, it’s not simply a question of "rough consensual sex." Montgomery says of Robertson: "No doubt rough consensual sex is something on which he able to give some useful information to the court."

There is a “Bit of a gasp in media room” at this assertion of Robertson’s personal knowledge of rough consensual sex.

On the issue of proportionality, “even if Robertson was right to say minor rape is a trivial offence, triviality does not render extradition disproportionate.”

“Proportionality requires that the complainants have the right to a trial.” (Or: “Complainant has a right to be heard in a court.”)

Montgomery asserts that she has demonstrated that “the claim that Julian Assange was not asked to attend hearing whilst in Sweden was false.”

On the issue of Mutual Legal Assistance a person cannot be compelled to provide a DNA sample under that provision. “Assange provided DNA only because he was compelled under an inspector's order.”

In relation to “secrecy, no one suggested the Swedish Court is indifferent to this issue… calling it a'secret trial' is a parody. It's just that the evidence is considered in private.”

“Montgomery dismisses ‘secret trial’ fears as a ‘parody.’”

Montgomery concedes that Swedish authorities disclosed material concerning the investigation to the media but the impact on the fairness trial should be considered not by this court but by a Swedish court.

Some evidence is now in the public domain such as the “texts, the tweets.. that's for a Swedish Court to consider, not this one…There's nothing in this case now that suggests abuse or that the trial would reach a level of fragrancy.”

Montgomery finishes her submissions on the point that as “no soundbites on Guantanamo have been mentioned, I'm guessing we all agree extradition to the US is not a factor.”

Robertson QC gives a short reply to the CPS prosecutor’s submissions and says: “I never said rape was a trivial offence…we just said the terminology was improper for a serious offence. What matters for the open justice principle is the trial, the evidence, the conduct of the judges and the cross examination.”

Responding to Montgomery’s submission: “If Sweden says it's rape it's rape, is like saying if Sweden says sucking toes without washing them is rape, it's rape.”

Robertson states a point of extradition law, on dual criminality, that the “court has a right to check whether the offence actually amounts to rape”. And in relation to that: “Not only there was a consent to sex, the articulated wish for the sex to be protected was respected by Assange….The actions described are not criminal in this country.”

On sex and what appeared to be the issue of consent: "What may be wanted at some moment can with further empathy become desired."

Robertson also says at about this point that “There has been no answer to secret trial concerns, nor to issue of lack of bail.”

Robertson finishes with the statement: “It is clear the issuing authority is not legitimate under European law.”

Submissions are completed and the Judge advises that his judicial decision will be delivered on February the 24th.

UPDATE: The Guardian reports

Geoffrey Robertson QC told the extradition hearing,...that any resistance had been "unarticulated" on the part of Miss A, who has accused the WikiLeaks founder of ripping off her clothes, snapping a necklace, pinning her down and trying to force himself on her without wearing a condom.

"In so far as Mr Assange held her arms and there was a forceful spreading of her legs, there's no allegation that this was without her consent," he said....

The argument that Assange used the weight of his body to pin her down "describes what is usually termed the missionary position," he said.

Clare Montgomery QC, for the Swedish prosecutor, said of Miss A's account: "In popular language, that's violence." The account given by Miss B, meanwhile, "would undoubtedly be rape here. If you penetrate a sleeping woman there's an evidential assumption that she did not consent."

(Note: Link to be provided if Ms Cocco posts a twitter page as before on days 1 and 2)