2011-07-13 Eyewitness account from the Royal Crown Courts

I have to confess that I paid less attention to WikiLeaks over the last couple of months than before. The usual excuses: I had lots of other interesting things to do. Maybe the novelty had worn out. I had definitely also been lulled asleep by the fact that the Netherlands still seems running smoothly and by the assurance that Sweden would not be allowed to extradite without permission from the UK. So it was a rough awakening when I read on the brilliant website SwedenVersusAssange how an extradition would be realized:

That fast and that easy!

I realize that the trial at the Royal Crown Courts could actually be the last one that is going to be public (rape trials in Sweden are behind closed doors and the 'secret jury in Virginia' also doesn't sound like the place where ordinary democratic people will be invited to inform themselves). Then I also realize that I want to complete my journey as a witness to the best of my ability. To understand what is going on the best I can. To truly be able to assess how far justice will be done or how far I am seeing a society where those in power can now use all the systems, also those that are in place to protect the whole of society, to their advantage and to their advantage alone.

Some interesting observations on my way to the courtroom: It is opposite the street of 'Australia House'. This is the location of the Australian Embassy, the Australian Centre and the Australian High commission. Despite this, Australians present at the trial tell me, the Embassy is not represented at all. I find this amazing and would hope that my Embassy would do better in similar situations.


It also seems that there is less press, but maybe - because of the busy traffic- they are in a spot where we can't see them. It is sad that there is only a handful of protesters, given that this is the heart of London, but they'lI reach a huge crowd. I meet people from London Catholic Worker and Indymedia. Anybody who reads this: judges will keep the wishes of 'the general public' in mind when they make verdicts. However tiring the activity: it does make sense to come out and stand in front of the court. Respect to those people who have done that (and some of them did for all the court-days!)!

In the corridor I hear two Brit journalists that seem to know talk about the rumours of the party for Julian's 40the birthday. There were no Angelina Jolie or Brad Pit and no helicopters - but there were about 100 'really interesting people'.


The Royal Crown Courts turns out to be a gothic building and by gothic building I mean truly truly gothic. It has small stone winding staircases ("hold the rope ma'am, these stairs are really steep"), arches and combinations of arches everywhere, endless corridors that are crossing other corridors and corners that seem made for whispering secrets. The courtroom itself looks like a Harry Potter filmset: the walls are lined with wooden panelling up to the edge of the public gallery. The judges are high above the audience. Behind them is a big wooden shield with a weapon on it, carried by a lion and a horse. It is only visible because two huge, dark red but slightly faded, velvet drapes have been drawn aside. Next to them are doors with similar velvet curtains on brass rings. All the walls are lined with huge wooden bookshelves with ancient looking books in them. Completely fitting to the style of the court all the judges and lawyers wear wigs. Somewhere during the hearing one of the judges wants to take a sip of water and I notice that his glass is covered with a fragile gold plate.

However strangely reassuring it is that this place looks as something out of a movie, the perfect setting for this surreal process, in reality it is not. And suddenly it bursts alive as the room fills with court staff, lawyers, journalists, 'the Julian Assange party' and visitors. I begin to notice familiar faces, though some of the celebrities that posted bail money are now missing (Bianca Jagger, Jemima Kahn).

Though I read before that a lot of things in the court are 'at the discretion of the judge' I now find out what that actually means. In Belmarsh we, the public, were constantly supervised by three serious looking policemen. This despite the fact that we were behind a glass wall. In a similar way Julian was kept separate in a cage-like looking section of the courtroom - seated between two police-staff and totally isolated from the rest of the room. The Royal Courts have an even meaner looking cage - but thankfully it remains empty.

Julian and Kristinn Hrafnsson. sit next to Julian's main lawyer - Gareth Peirce. In front of them are the two men who are going to plead the case. Behind them is, pleasant surprise, Julian's former lawyer Jennifer Robinson, @suigenerisjen on Twitter. She sent a tweet when she attended the event at the Frontlineclub with Julian, but she doesn't tweet anything now. From the skeleton argument that is handed over I learn that both she and Mark Stephens have made a witness statement to support the fact that Assange now seeks to have the decision by the district judge overturned.

*I realise while I am typing that a lot of things are written down much better in the 'Skeleton argument' - so I'll not try to repeat everything accurately. More give an impression what it is like to hear all these arguments when you haven't read them. There is also very excellent blogging on all the legal sides of the case on: http://internationalextraditionblog.com/?s=Assange

**The skeleton argument is very detailed and precise and I believe I have seen much of its contents before. I believe these are the excellent work of Jennifer Robinson, Assange's former lawyer. It was all there but did somehow not get the attention from the district judge it deserved! Some of the cases mentioned in the skeleton argument were decided by Judge Tomas and the main judge now is also called Thomas. Coincidence?? - or would it be the same judge?? One of the court attendants thinks he is over 65 years old. I am not so sure, maybe he is younger. The second judge, Mr. Ousely, is said to be very strict. But he is also the judge who overruled the protest of Sweden against granting Mr. Assange bail in December and made Sweden pay for all the costs.

ImageI am surprised by the following, surprised that it is allowed: the new barristers for Assange, Ben Emmerson and Mark Summers work for the same law-firm as Claire Montgomery QC, the lawyer working for the Swedish prosecution.


This is even obvious from the public gallery: all of their wigs are made by the same firm. Where as the judges are provided with something that looks like good quality grey woolen carpet, the lawyers of Matrix chambers are sporting little blond angelic curls & of course small tails by which you can hang the hair-piece. The second lawyer for the prosecution is from a different firm though, she was also present in the Belmarsh court-cases and she is Ms. Gemma Lindfield: http://www.7br.co.uk/barristers-and-staff-profiles/gemma-lindfield.asp

The lawyers for Assange start off with the following:

A clear statement that in no way they want to belittle the experiences of the Swedish women: "What we are about to do is not an inquiry into the credibility of the complainants. Nothing that is said is meant to attack or undermine their complaints or to trivialise their experiences. To challenge whether they felt Assange's conduct was discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with. But what we have to establish is: does the behaviour described constitute an offence to the criminal law of this country, the UK?" (this is the principle of dual criminality - see below).

This statement will be typical of the approach of the new Assange team and is, I believe, a direct influence of his head lawyer Gareth Peirce. (Apologies if I make confusing statements as to how the UK system works. Gareth is the only one not wearing a wig. She sits quietly in the back - orchestrating her team by sending them little post-it notes). She has stated, in a beautiful interview, that she believes in the power of the law and the ability of societies to come together and do the right thing.

Just before the trial starts Gareth receives some bulky, important looking envelope that she opens. During the trial she goes out of the courtroom once or twice. Just a reminder that Julian's case might not be the only serious one she has to fight at the moment....

All the time in this trial - respect for different viewpoints will be sought and reasons why the viewpoints may be different are mentioned. This is an invitation to an honest exchange of opinions and that is what we now see happen all the time. The lawyers will mention points, the judges will engage in asking questions, the barrister for Sweden will be asked to comment etc. etc. I am definitely watching a bunch of highly skilled people, who know and respect each other very well, each doing the best job they can. They know that they are not only trying this case, but laying out the framework for future cases. As this will set a precedent and extradition law is a territory that is fairly new and that has to be developed as they go along.

As a spectator I cannot but also have a lot of respect for Claire Montgomery. I know that I want Assange to walk free. But I also do realise that 1. She has never chosen to argue this case. 2. Her opinions of what is going on may be very different to what she is representing as a professional. 3. There is a vast terrain where women should be better protected by the law. By mapping this terrain in the discussion, and defending it as strongly as she can, she opens the doors for better and more precise legislation in the future.

Another moment of careful consideration: Ben Emmerson has quoted the statement of one of the women who complained against Assange, inadvertedly using her name. He now realises that he didn't meant to do that and discussed with the court/ judge if their anonymity can be supported by the court. The judge asks if mentioning their names is not just the right thing to do - he may refer to normal English procedures, but it could also mean that he is referring to the article by Naomi Wolf: http://www.guardian.co.uk/commentisfree/2011/jan/05/julian-assange-sex-c... From the judges reactions on the proceedings it shows that they are extremely well prepared. The court decides to only use the initials and apparently there is a man who represents all the press who agrees in their name.

I have been struggling to complete my eye-witness account: One of the reasons is the way the trial goes. The first day and the morning of the second one Assange's lawyers explain why they feel that justice wasn't done, then Claire Montgomery argues her case, then the Assange lawyers have one more chance to respond. Similar discussions are repeated several times. In the end I have decided not to follow the events chronologically - but to present the different subjects that were discussed these two days. I present them to the best of my abilities - but (as I am neither a lawyer nor a journalist nor a native speaker) they may contain mistakes. Despite this - I feel that a 'layman's translation' is useful & will do the best I can.

The fair and proper description of the conduct alleged (The Castillo principle)

Ben Emmerson: If there is no fair and accurate description this will corrupt the whole process the court will go through to decide if an extradition is justified (These principles were ruled necessary by a Judge Thomas!).

Emmerson's first claim is that the testimony from the complainants was summarized by the police and that from that summary mistakes may have originated as to what was exactly said and what was intended. A lot of context was left out of the summaries - this context shows that there was never sex without consent or without a situation where Assange could honestly believe that there was consent. These omissions affected the formulation of the EAW and these formulations misled the Senior District Judge into believing that there was a lack of consent and a lack of reasonable belief in consent.

Important remark from the skeleton argument: The Appellant(Assange)does not (and does not need to) allege bad faith or ulterior motive on the part of the Swedish authorities. So far as the Appellant is concerned, these were genuine attempts to summarise long statements.

Then Mr. Emmerson proceeds to add the missing context to each and every accusation to prove his point:

Re. charge 1 on the EAW 'unlawful coercion': Accurately described the Appellant held AA during consensual sexual foreplay and, when actually asked to put a condom on, did so.

Re. charge 2 on the EAW 'sexual molestation': Appellant used a condom as requested which, it seems, split. A forensic laboratory concluded, upon examination of the condom in question, that the damage to the condom was not caused deliberately but was rather caused by "...wear and tear..."

Re. charge 3 on the EAW 'sexual molestation': The Appellant pressed his naked body against AA whilst they were voluntarily sharing a single bed.

Re. charge 4 on the EAW 'minor rape': In the context of repeated acts of consensual sexual intercourse, the Appellant penetrated SW whilst she was 'half-asleep', which penetration was met with consent afterwards on the part of SW.

Emmerson explains that under English law being deceived while having sex (eg. your partner is HIV positive and did not tell you or there is a third person in the room and you find that out later) is not considered non-consent. This because you are not deceived "as to the nature and purpose of the relevant act" Non consent is only recognized if you believe that you are doing something different and it turns out that you are having sex (some sad examples of young girls that thought they were going to have 'beauty operations' by what they thought was a doctor). If a woman tells a man she is using contraceptives while she is not - is she performing a sexual assault on that man?? (answer presumably "no"). This simply means that as long as AA or SW consented to have sex with him the fact that JA was not wearing a condom is not going to be relevant to the charges. If there has been lack of consent the prosecution must prove lack of consent!

Sex is an offence when:

-The complainant in fact did not consent
-The accused can not have reasonably believed that the complainant consented.
There is also mentioning here of Mens Rea (the guilty mind = someone knows that they are committing a crime). See: http://wlcentral.org/node/937

Claire Montgomery: Quote Henderson: "A woman does not consent to sex in general. The consent is this act of sex with this person in this time in this place". These women did not positively consent and that is shown by the phrase, in their witness statements, "I let it continue". For consent you need to have free capacity to make a choice, these women acquiesced into sex because they were already in a position they were very uncomfortable with. That is not a free choice - that is submission! As to reasonable belief: Did Assange undertake any steps to ascertain that there was consent before he acted?? Montgomery: Mr Assange originally denied that there was a moment when the condom broke.

Judge Ouseley: He did not use one, to give up the ghost in the middle of the action! (laughter from the courtroom - I can only make a guess what that sentence means!).

Ben Emmerson to Montgomery: You give very progressive and socially desirable interpretations of consent, however they are irrelevant considerations. They are not necessary for a fair and accurate pleading (as they have nothing to do with the current law). What law do you apply then, accusing me of 19th century conceptions of consent?? (Here he seems genuinely agitated) "Do I need in essence to go any further?? I am going to, but I don't need to." In the past there was this archaic idea in criminal law: a man could never rape his wife. Here the law has gradually improved (case by case) till the underlying principle had to go! The law is evolving - before it has evolved you cannot use the future terms. In those archaic days you would not win a court-case and accuse A of raping B by just, conveniently, forgetting to mention that A & B were married.

Fairness must be determined on the basis of relevance. For consent the moment before and the moment after are relevant. Eg. regarding charge 3. Was AA. consenting to his penis becoming aroused? He was lying beside her in a single bed. If a woman voluntarily chooses to spend the night that way there is a risk that she will come into contact with an erect penis at some point in time (laughter from the courtroom).

AA did not want to go to the police she went to support SW: To force Mr. Assange to do a blood-test, but not to file a complaint". Ms. SW felt that the police railroaded her.

If an EAW is not correct:

Cases of misstatement are not necessarily to be categorized as allegations of bad faith and/or abuse of process. The motivation behind the misstatement is not important.


As Assange's lawyers have chosen to not, in any way, to discredit the complainants - I realize during the trail that their statements more and more begin to sound as accurate representations of the 'truth'. It is important to keep in mind that that is possible, but that other possibilities are equally possible. Also there is the ever present gap between events and words, between what happened and the memories of it. If the women turn out to have a valid complaint - the Swedes have, by opting for these court-cases instead of for an interview with Mr. Assange, definitely reduced their chances of a fair trail. These court cases make it pretty obvious which behaviour could be punishable and how to formulate to be acquitted anyway.

Breathtaking 1:

In the beginning of the discussion Judge Ouseley wonders (and wants to discuss with lawyers for both teams) if you can divide the situations of AA (were she was held and could not reach for a condom / where Julian asked her what was happening, put on a condom and she consented to have sex) and SW (where she was asleep having told Julian earlier in the night that she wanted a condom to be used/ where she was awake, knew that Julian did not wear a condom and choose to continue) in a period of non consent and a period of consent. Luckily his end-conclusion seems to be that this is not acceptable. Ouseley: "Is there a relationship between that what has commenced and the acceptance of that same similar act?? The very same man continued with consent and knowledge.
Can you say: the first bit of this action - that is a crime???"

Breathtaking 2:

Montgomery argues that Castillo and a lot of case-work don't apply any longer as the extradition law has fundamentally changed in 2003. The judge doesn't agree.


Somewhere in the middle of the plea on consent Claire makes a slip of the tongue and says that "Assange stopped AA. reaching for a penis" (instead of a condom). This draws a clear laugh from Sarah Harrison, the hard working WikiLeaks journalist. Montgomery makes almost a full body turn to fix her with an angry stare. This makes me wonder: Is her anger just a slight embarrassment combined with a perceived disrespect for the court?? Or do these women know each other: The one that fights for Assange's freedom, the other one who is paid to help send him to Sweden. Does Sarah give off an angry vibe when Montgomery is pleading and does she somehow sense that all the time?? Anyway - good to hear that WikiLeaks staff members still have enough of a free soul inside of them to produce a laugh - even under such complex and continuing pressure!

Technical points

Emmerson says: There are 3 different principles in play which play differently on the 4 charges:

1. Does the description on the warrant present a fair and accurate description of the event?
2. (I did not manage to write this point down during the hearing but believe, based on the excellent tweets from m_cetera that it is the following): Do the real facts constitute a criminal offence?
3. The principle of dual criminality.

Dual criminality: it is getting a bit complicated here. But if I understand correctly there exists a European Convention on Extradition (1957) which is incorporated in English law and a Framework decision - which was signed by a lot of EU member states, but not by the UK. But in England some things were added to the European Convention: The 2003 Act. Some of the legal discussion centres around differences between all of these and moments where the UK chooses to validate habits from pieces of legislation it has not signed (yet).
Some of the offenses mentioned require dual criminality: the offense is punishable in both the country that wants extradition and the country that has to extradite. For offenses where this criterium is not valid, you still will need a fair and accurate description of the events. The Framework decision has an attachment which consists of a generic list of criminal conduct. On this list boxes can be ticked.

Emmerson: Dual criminality is still relevant: "If these acts had happened in London - would they have been criminal?".

Montgomery argues that ticking a box should be enough the validate the European Arrest Warrant. Emmerson argues that what is ticked in the box and what is given in the description of the offence should mirror the real events.
Montgomery (and at a certain point even the judge Thomas) wonder if it is allowed/ necessary to check what the real event is ("that is for the trial itself" "evidence is now available, but in many cases there would be no more information than what the requesting country puts on the form")

Judge: "We don't treat this as a good case/bad case. But just whether he is correctly charged!"

Montgomery tries to suggest that maybe the description that has been given in addition to ticking the box is not flawless: "You look at language in translation!"

The judge tells her off: "Even if they have problems with the translation I do not sympathize with them".

Emmerson: The requesting country cannot just tick boxes!

Montgomery: Sweden has tried the case in their court (after the case was thrown out- to bring it back in) and decided that the case was strong enough. Dual criminality, naming the accusation etc., it is all for them to decide. If the requesting country ticks a box, the receiving country cannot just untick it! Montgomery: Concept of rape is different in the UK than Sweden - response: "So what??"

Montgomery: argues that 'Dual criminality' should be based on conduct alone "There is no mental ingredient" (I think she means either 'mens rea/guilty mind' or "the belief the women consented". Maybe both.)

Judge: You have done the best you can on that offer, what is your source?

Montgomery: Probably, Norris.

Judge: Probably, Norris - that is not a jolly good demonstration of a source.

There is also case law on the "ticking of the boxes": a case called: Palar:
"Where boxes are ticked the offence must nonetheless at least be recognizable as "rape" as that term is used in the language and law of European countries".
Judge: "No doubt that the statutory requirement includes the question: would the conduct constitute an offense?".

Sometimes I don't have the impression of watching a court-case, but do I feel more as if I see a couple of brilliant pupils doing an exam with two very strict teachers. The judges know it all & just spur the lawyers on to present as much knowledge as they can. Emmerson, by all measures a strong man, starts certain sentences with a very slight stutter - I interpret that as a signal of utter respect. Both Emmerson and Montgomery get red ears when they are pleading. Is is obviously very challenging and emotional to do! The language is at certain points extremely formal/ archaic (Lawyer to judge): "Milord's I ought in all fairness take to the court.."

Strategies by Montgomery

-The exotic argument: because the language or the country are foreign and different from England, that doesn't mean that they are not right. The should be entitled to do their thing. She then tries to discourage the court from trying to understand what is going on.
-The simplicity argument: don't make it too complicated/ go too deep into details - that is not our task here!
-The expert argument: quote an expert (and several times she quotes the witnesses for the defense from Assange's trial at Belmarsh): "Mr. Hurtig has told us that Swedish rape-law is based on consent". The game of quoting witnesses from your adversary is played by both the prosecution and the defense: Quoting their adversaries unexpectedly on controversial points, they are able to give these points more validity than they maybe should have.
-The authority argument: "The district judge has said ..."

Reply judge to the last one: "It doesn't matter, we have to decide"

I am sure that a lot of these strategies can be very successful, but in this court the judges are often too strict to buy into them.

Strategy by Emmerson

Emmerson starts a very good attack on the strategy so far adopted by the Swedish team: Only part of the investigation file has so far been brought before the UK courts. He says: "As the prosecution did not choose to bring the rest of the file before the judges, the conclusion must be that the rest of the file is unhelpful!". He makes very clear that at the moment Montgomery has the whole investigation file at her disposal and can pick and choose whatever she wants to use to try to win the case for Sweden. The Assange team do not have such an option and can also not see if meanings have altered (and object) when things are presented out of context.

The judges now also get interested in this point and ask at what point in time Mr. Assange and his team will have the complete file at their disposal. The answer is: Only after he has been charged, three weeks into the case.

Has Assange been properly charged/ accused?

The above is the first sign of a complex controversy that is at the heart of this process: The Swedish prosecution claim that they cannot charge Mr. Assange without having had their interview. They first want to complete their investigation and then decide if they have a case and can charge. Despite of this they claim that they are certain that they will prosecute! And want to act accordingly! This will clearly make the whole interview pointless. But it is British law that you can never prosecute without laying charges. They even have to charge you before they interview you. The judge asks if they want to prosecute Assange without having charged him at all! Montgomery confirms that this is indeed the case!

I see judge Ousely go into deep thought at this stage of the process; he shows that by lifting his wig and moving it in the direction of his forehead. Then he keeps hold of it and slowly slides it backwards over his hair.

Additional English legislation.

Maybe European legislation allows certain things, but the UK parliament has created extra conditions "as a necessary protection against an unlawful infringement of the right to liberty". In theory this could mean that Assange wins the court-case on these grounds and is safe in England ... but can be hit by another Swedish effort to extradite him from another EU-country. It is important that the arrest warrant is proven invalid for all EU countries!

An EAW is invalid if you want to use it for investigation instead of prosecution

This part of the case is argued for Assange by Mark Summers. The House of Lords has ruled in a case called "Ismail": It is common ground that mere suspicion that an individual has committed offenses is insufficient to place him in the category of 'accused' persons [...]. Something more is required ... the competent authorities in the foreign jurisdiction have taken a step which can fairly be described as the commencement of a prosecution. Central question: has the decision been made to prosecute and does there exist any evidence (paperwork) to support that?? The judge even wonders if the EAW in itself could count as such paperwork, but then (lucky enough) denies it!

A yellow note is passed from Kristinn Hrafnsson to the barrister (maybe it came from Assange or Gareth): the website of the Swedish Prosecution Authority still states at this very moment that the case is under investigation. That would, by definition, make the EAW invalid!!

The note makes me wonder for a while how much precious time the Assange team have been forced to take time away from their own work to study the ins and outs of this complicated court case. Obvious answer: way too much!

The defense points out that, by doing the interview with Assange, Sweden could at any time they wanted have moved the case forward from investigation to prosecution. Also: if they were prosecuting they could and should have arrested Assange in Sweden! They also point out that if they would do the interview now - that would not undo the invalidity of the arrest warrant.

Montgomery argues that it is clear that the 'juridical process' has definitely commenced.

Ouseley answers: the juridical process is a very long process - all you have done is choose a phrase that actually doesn't help. If we are somewhere in a time continuum, we have to decide - on a fact basis - when an investigation turns into a prosecution.

Montgomery: If a wife is killed and the husband flees the country with the blood still on his hands you will want him arrested and brought back. It is obvious that the prosecution will start before the investigation. The answer to that is that it is clear that a crime has been committed.

Thomson: Some juridical authority will have charged him!

Was Marianne Ny entitled to issue this particular EAW?

Emmerson states that, similar to the two types of red notices, there are two types of EAW. One to prosecute: that one should be ordered by the juridical authority. One to find a person that is wanted for serving a sentence: that one can be ordered by the executing authority (ie. the police). A juridical decision (the decision to prosecute) should not be made by the executive authority.

Montgomery answers: "Each country nominates their own juridical issuing authority - in my position that is correct".

Emmerson: says that the European Court in Strasbourg will never agree with a mixture of the tasks of the juridical and the executive authority.

All the lawyers, together with the judges, are now joking about something (presumably abut Strasbourg) 'we' don't understand.

No trias politica

Montgomery now seems to argue that many European countries don't have a clear trias politica: a divide between the legislative, the juridical and the executive power. "They interlock in a much broader context". Being Dutch, I first object to being contrasted as 'Europeans' with 'The English'. I also object against the notion that there are no clear divisions between the separate powers in eg. my country. "If Mrs. Ny is an appropriate requesting authority she is also an appropriate executing authority".

What is clear to me, watching all this, is that it is a failure that there is no true authority on Swedish law present. People will start asking Claire Montgomery questions that she may not have anticipated ("how does Swedish law operate") and then all parties seem to kind of agree that the reconstruction they make together must be more or less the correct one. For certain answers she refers back to witnesses for Assange in the process at the district court. She quotes e.g. Mr. Hurtig. I would want a stronger source to "know" how Swedish law is supposed to operate than testimony from just one lawyer that was focusing on a different point while he made a remark. I find it disappointing that all this type of testimony is accepted as a proper representation of the truth. I have also to say that, despite all the testimony, I still simply cannot believe that the Swedish cannot prosecute without an interview.


Montgomery: I don't understand why they make a point on proportionality.

Judge: You don't? Or you don't want to? Why go through all of this if he was prepared to offer himself for an interview? If you know enough to incite before the interrogation - then why wait for the interrogation before the inditement? If you don't - then how can you seriously declare that you are going to indite? Why are we precluded from acting with sense in this European Union? If he could be interviewed by video?

Montgomery: The Supreme Court of Sweden asked Mr. Assange to be present in person.

Judge: Why? Cooperation is a two way street.

Montgomery argues that the Swedes want to prosecute anyway and then need to extradite anyway. If they extradite in the stage before the interview it will allow them to do their interview face-to-face.


There are two pieces of evidence with may have DNA on them: the torn condom and the results of the hospital examination SW undertook. As Assange has confirmed that both were his - it is unclear why the DNA tests are necessary.
As SW's objective of going to the police was for Assange to take a HIV-test - It is shocking to hear that he was never asked to do so by the Swedish authorities. They also never asked him to submit DNA voluntarily! Despite this Montgomery argues that one of the reasons to want Assange in Sweden is that there is no procedure for compulsory taking of DNA.

The skeleton argument mentions that the UK took DNA from Assange when they arrested him by consent - it makes one curious what is the purpose of that and if Assange does have any rights to have that DNA destroyed / taken off databases.

They were long days in court, but the judges managed to finish sort of in the limits of their working day. Around quarter to five the second day ends in a bit of a confusion. The judge says that the Court doesn't need to come together again and will deliver a verdict "in its usual way". Alexi Mostrous finds out that this means a period of four weeks or so.

Outside the court waits the usual tunnel of journalists that all of us now have to pass through. When Assange leaves the court he doesn't make a speech but suddenly somebody in the group of faithful protesters begins to play a guitar. People start singing. After all the pomp and professionalism of the court the song first sounds hesitant, then suddenly it sounds genuine and warm. A tribute from the activist world to bring home the fact that there are people who know what the price of all this is and who sympathize and support. It is the only moment so far that I think I see Assange more emotional than either brave, rational or withdrawn. Later on one of the singers returns with a box of WikiLeaks painted cupcakes. Leftovers from the birthday-party and a greeting back to all the protesters on the streets - Thank you!

I want to thank WL Central for offering me the opportunity to act as a journalist - but without the constraints set on other journalists by the system. I have no deadline and no limit as to the amount of words. I plan to order the full-transcript of the court-case so as to be prepared when the verdict comes: the court has let me know that I am the first and only one who has done so so far. If I find things in there that are important - I'll add them or mention them in a later article. Probably a comment when the verdict will come.

A last remark: I have run a couple of times straight into Assange and his supporters over the last couple of days. But I felt that all of them deserved their space and focus and do definitely not approve of the frantic following and questioning - so no personal comment or anything. As for me personally: this court-case has confirmed me in my opinion that supporting WikiLeaks is the right thing and I will continue to do so.

I look forward to your feedback!

With many greetings, Mirjam

The skeleton arguments

The full text of the skeleton arguments of both sides is now published on SwedenversusAssange. I myself wanted to get certain parts of the court proceedings in writing but gave up when they told me the (considerable) costs - I wonder if the judges will have the opportunity to view the recordings and the video-tapes.

A few comments

Firstly, brilliant report Mirjam, well done - the finer points of this case are not easy to understand and you have shed considerable light there.

Re: "I am surprised by the following, surprised that it is allowed: the new barristers for Assange, Ben Emmerson and Mark Summers work for the same law-firm as Claire Montgomery QC, the lawyer working for the Swedish prosecution."

Barristers congregrate, (if I may use that word) in chambers for the reason of cost savings and sharing resources. They operate individually and are not governed or controlled by any other practitioner in relation to their work (unless for example they are a junior working with a senior counsel). Their income and tax arrangements are as if they are a one person business. As a consequence, no other practitioner in that chambers can access their client files and therefore there is no conflict of interest that can arise. (Solicitors sometimes also work in chambers arrangements and the same principles apply.)

Hence from the same chambers, one practitioner might be the prosecutor (retained in this case by the Crown Prosecution Service) and another for the defence.

Gareth Peirce is a solicitor and they don't wear wigs, (that is customary) - she "intructs" the barristers, ie prepares documents and gives a "brief of evidence" to them.

"Judge Ouseley: He did not use one, to give up the ghost in the middle of the action!"

What he meant by this was (I believe) it couldn't have been his intention to use one which was defective.

The consent issues:

They had "let him continue", said Montgomery. "This is non-consensual. It is coerced, and the words used - 'I let him' - means non-consent," said the QC.

I assert Montgomery is ignoring context, per Emmerson's comment in the Guardian:

...the idea of isolating a moment of lack of consent in an encounter that was consenting both before and after "is crazy".

As per above - Emmerson:
In those archaic days you would not win a court-case and accuse A of raping B by just, conveniently, forgetting to mention that A & B were married.

Likewise a prosecution cannot win a court case by raising a doubt on consent for a miniscule period of time while forgetting to mention consent before and during.[Note for interest, the archaic 'no rape in marriage' principle was based on contract law]

Montgomery: argues that ‘Dual criminality’ should be based on conduct alone “There is no mental ingredient” (I think she means either ‘mens rea/guilty mind’ or “the belief the women consented”. Maybe both.)

No mental ingredient; she refers to the mental element - mens rea -(that the accused knew that the alleged victim did not consent) does not apply to dual criminality application. This is wrong where the UK does have a mental element in its legislation.

Lack of consent as an element of an offence is represented by conduct ("stop", trying to escape for example) of the complainant, knowing of that (or being reckless, or not reasonably believing there was consent) is the actual "guilty mind" element.

Again, well done Mirjam.

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