Julian Assange has lost the case at the extradition hearing. Full ruling here in PDF. While this writer expected considerable difficulty for Assange's case on count 4, Chief Magistrate Howard Riddle found all four counts to be extraditable. More on that and his findings for another day.
An important first point is that this extradition finding should not be misinterpreted as some species of proven guilt. Julian Assange is still presumed innocent until proven guilty by a proper trial process. The extradition process and appeals to follow in the UK are not that trial process.
The European Arrest Warrant system is flawed and has again been used by a signatory nation to the Framework Decision 2001 (PDF) without having to prove the strength of the prosecution case.
Counsel Geoffrey Robertson made this following point in submissions on day 3 of the hearing:
That was not only inherently descriptive of the nonexistence of evidence presented to the extradition court by the Swedish prosecution authority in its case against Julian Assange, it is more importantly descriptive of the major flaw in the EAW system. As long as there are some allegations made that appear to qualify for the Article 2 (para 2) offences of the Framework decision (which do not have to be of a "dual criminality" nature) then in addition, to tick the "r*pe" box is sufficient to qualify for surrender of the person:
This is perhaps the most unfair part of the Framework Decision (link above) allowing different member nations all sorts of "outlier" defined crimes that depart from what is ordinarily known as "sexual assault" and those "crimes" don't have to be tested for dual criminality.
Art 2 Para 2. The following offences,[eg r*pe] 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:
As "defined"... "without verification of the double criminality" are the operative and crucial words. Any EU member of the EAW system can define what is r*pe, at variance to any other member state; any issuing member can slap a three year penalty into the statute books, and the letter of the law is that it only has to be alleged in an EAW and it matters not a jot the strength of the prosecution case behind such an allegation.
Define a crime away from its norm (ie lack of non-consent element), legislate a 3 year penalty, allege and extradite.
Julian Assange has been found extraditable under the unfair regime that appears to have automatic success built in for the "outlier" nations like Sweden: re-define, legislate, allege and extradite.
What is needed to counter the "outliers" is a major amendment to the EAW to remove the abuse of extradition without proof, to a minimum standard of proof.
Such a protective mechanism for defendants already exists in the criminal law committal to trial process. This would do it:
When all the prosecution evidence and any defence evidence have been taken in committal extradition proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable extraditable offence.
Two words changed from the NSW Criminal Procedure Act for committals.
Witnesses and alleged victims by two different standards of burden on the defence could be called for cross examination.
For a witness, not an alleged victim-s91
The Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
For alleged victims-s93
The Magistrate may not direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.
With such a regime in place, there would have been little doubt that the "substantial reasons" and "special reasons" burden on the defence would have been met and the chances of Julian Assange being extradited very low, given the chance to cross examine the alleged victims and other witnesses for the prosecution. This is a case loaded with prosecution wrecking circumstances, even if those were limited to the prosecution's mistakes such as allowing contamination of evidence with the complainants colluding together before during and after police/prosecutor's interviews.
While such a new regime would mean translators, travel for witnesses and alleged victims from time to time, it would tip the balance back more evenly for defendants to an EAW and ensure that prosecution cases were sound.
As it is, the EAW system is seriously questionable.
We await the appeals to follow and reform of the EAW.