At the final day of the extradition hearing on 11th February 2011 SC Montgomery from the Crown Prosecution Service, acting for the Swedish prosecution authorities, made what this writer considers to be some extraordinary submissions. One of them was directed personally at Robertson and was simply unacceptable, if, and I believe it to be so, that the tweeter @federicacocco correctly recorded it:
Robertson SC has every right to report her to the Bar Council of England and Wales. It was uncalled for and unhelpful to the case and one can’t help thinking of automatic adverse inferences on both counsel and his client, the respondent/defendant Julian Assange which would have been aggravated if there had been a jury involved.
Perhaps I’m wrong and the English bar allows practitioners to insult each other at the bar table in such fashion but I rather doubt it.
The other submission that stood out to this writer was this assertion of Ms Montgomery QC from the Guardian:
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."
There are never any evidential “assumptions” in any matter, in any evidence Act that I am aware of, especially pertaining to criminal law. There may be presumptions in law, for example, that a woman with children removed and in out of home care, having a newborn child may be subject to a presumption that that newborn child is in need of care and protection , but such presumptions are uncommon and are always rebuttable. Another example, there is a presumption in my country that a child 10 to 14 is incapable of committing acrime, rebuttable by the prosecution on evidence advanced.
If as Montgomery claims there is an evidential assumption that there is no consent in the circumstances of a sleeping woman, then it follows that there would be an automatic assumption of guilt on such sexual intercourse occurring: assumed non consent plus victim asleep plus penetration would be automatic rape under Montgomery’s novel dictum. That's what happens when the prosecution does not have to prove lack of consent.
Assumption or presumption of guilt is of course contrary to Article 6(2) of the European Convention on Human Rights.
Context is of course the key here. If a stranger breaks into a house and penetrates a sleeping woman then of course non consent could be ‘assumed’ as a starting point. Those particular circumstances on a complaint would make the burden of proof as to non consent much less difficult for the prosecution given that people do not ordinarily consent to uninvited strangers in their bed.
If it was the partner of some period of time who “penetrated” under ongoing consensual arrangements that’s a different story altogether, as Robertson put it this way:
But the crucial point, in the case of the break and enter merchant above, in adversarial systems, is that the onus is still on the prosecution to prove lack of consent, but not in (inquisitorial system) Sweden.
Montgomery’s “assumption” in view of the evidence of a short but consensual sexual relationship (up to the time of the allegation by all accounts) between Assange and complainant “B” (European Arrest Warrant-EAW- alleged offence 4) is an arrant nonsense. It is an assumption that many might make but it is one that has not a shred of substance in law as we know it, in adversarial systems of criminal justice. One wonders what instructions the Swedish authority gave Montgomery SC on this point, if at all.
Leaving aside the arguments against the authority of prosecutor Ny to issue an arrest warrant, a technical knockout point if ever there was one (which I will leave to the judgement but suspect it will be rejected), a major issue is not the strength of the prosecution case as such, but the particulars of the alleged offences, which are, for rather various reasons highly relevant to the case. Of course those particulars when analysed cannot help but reflect on the strength of the prosecution case, but the Extradition Act does not require the strength of the prosecution case to reach a minimum threshhold for extradition to be granted. That may be a question for the EU Framework Agreement establishing the EAW system that may be subject to revision in future as a result of this case.
The EAW warrant can be found as the last Pdf file on this page at Finers Stephens Innocent. It gives the particulars of the alleged offences (which need to be examined in detail) as follows:
This warrant relates to in total: 4 offence(s) was (were) committed
Including the time, place and degree of participation in the offence(s) by the requested Person.
1) Unlawful coercion
On 13-14 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.
2) Sexual molestation
On 13-14 August 2010, in the in the 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 unprotected sexual intercourse with her without her knowledge.
3) Sexual molestation
On 18th August 2010 or on any of the days before or after that date, in the 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 ie lying next to her and pressing his naked, erect penis to her body.
4) Rape
On 17th August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with 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 express wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated the unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.
Firstly it has to be noted that immediately after this, in the warrant, only the box “rape” is ticked. Extraditable offences are stated in Article 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States and of course “rape” is there, however, the problem is whether or not the above first 3 sequences at least constitute “rape”.
Secondly it has to be noted that these Article 2 (para 2) offences do not have to be of a “dual criminality” nature:
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
Double criminality being offences which have direct equivalents in both states. Article 2 Para1 also has the 12 month sentence requirement for an accusatory warrant as distinct from a sentence warrant in the case of a convicted person (4 months).
Unlawful coercion above might at its highest constitute attempted “rape” but that is not included in the Article 2 para 2 list, it could therefore be part of para 4 where dual criminality (I prefer that term as “double” infers more criminality) applies ie there is an equivalent offence:
[Art2 Para4] For offences other than those covered by [Art 2] paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.
Also another relevant part:
Article 4: Grounds for optional non-execution of the European
arrest warrant.
The executing judicial authority may refuse to execute the European arrest
warrant:
1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing
Member State;…
So, back to alleged offence 1. Note that the particulars do not have ‘lack of consent’ as an element. If the warrant specified “without consent” on the conduct alleged, it could for example be a common law offence of common assault, intentionally causing fear or apprehension of violence. As the box ‘rape’ is ticked and the UK has no apparent equivalent of “unlawful coercion” it falls within Article 2(4) and should be excluded.
Robertson described this as the "missionary position" which on the particulars is essentially what it is.
Alleged offence 2. This is clumsily worded, obviously missing clarity due to the likely differences in sentence structure. It should read “consummated unprotected sexual intercourse with her without her knowledge of non condom use. This is apparently the “broken condom” incident, but no mention of that in the warrant, which probably explains why it’s an allegation of ‘molestation’ and not a sexual assault matter which it would be under UK law provided the prosecution had a prima facie case with evidence that the accused knew that the condom was broken. Again it should be excluded per Article 2(4).
Alleged offence 3 in this writer’s legal opinion is ridiculous. As there is no allegation that Assange was in the complainant’s bed without her consent, the argument here, apart from rejection again per Article 2(4), could have been for His Honour to be invited by Robertson to take judicial notice of involuntary tumescence in males, especially in the early hours of the morning with a full bladder.
Robertson has argued all these 3 alleged offences should be rejected, for the Article 2(4) reasons above and this writer has not seen any prosecuting ‘opening note’ upon which the prosecution has the onus to demonstrate equivalencies in UK law.
The terminology used by Ms Ny in her statement, ie “minor rape” (Finers Stephens Innocent link as above), was said by Robertson on Day 3 to be “a misuse of terminology.” It is represented apparently by the two allegations of sexual molestation in the warrant. I ask readers to consider this: imagine a crime “minor murder”? Using terminology such as “minor rape” is again, arrant nonsense that says more about Swedish policy framing that it says about justice.
But the real problem for the defence is alleged offence 4, (complainant B), for which there is no dual criminality applicable. It is the most serious of the four offences alleged. It is the one for which Montgomery QC made the submission at the beginning of this article on ‘assumed’ lack of consent, a recognition perhaps of its importance to the judicial outcome. On all external accounts Ms B did earlier have consensual sex with Assange, but even if that was in evidence, it has little to no relevance to the extradition proceedings.
The argument that Robertson apparently made for dual criminality here, including the cosmopolitan interpretation argument (along with pointing out the missing ‘lack of consent’ element), may not be sufficient to overcome the letter of the EAW law. He also said:
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.
Again more of a problem with the EAW system rather than a convincing argument against extradition, but still rather relevant to sequences 1 to 3.
For the purposes of extradition, as Montgomery submitted in effect, simply by ticking the box and alleging “rape” with particulars sufficient to qualify for what is generally regarded on the face of it to be rape: may be Article 2 paragraph 2 sufficient for that part of the extradition process to succeed for Sweden, (if the missing non-consent element is held not to be relevant). But that does not mean that sequence 4 alone passing the test will necessarily determine the outcome.
To be continued…Fair trial/prosecutorial conduct; human rights.