Extradition

Julian Assange Bail Appeal Trial

Julian Assange appeared in court this morning to appeal the court's decision last week to deny him a release on bail. Live updates were provided by The Guardian. and live tweeting in the court on the #wikitrial hashtag. It was apparently the first time a UK judge had allowed live tweeting during a trial (according to tweets).

An earlier article in The Guardian stated:

Assange's lawyer Mark Stephens visited him in Wandsworth prison yesterday afternoon and said his client was being held under harsher conditions than last week. He claimed Assange was being confined to his cell for all but half an hour a day, and denied association with others prisoners, access to the library or TV.

"He's subject to the most ridiculous censorship," Stephens said. "Time magazine sent him a copy of the magazine with him on the cover and they censored it not just by ripping off the cover but by destroying the whole magazine."

Stephens also claimed a number of letters to Assange from media organisations have not reached him. He said Assange was under 24-hour video surveillance and had complained that a tooth which broke off while he was eating had later been stolen from his cell.

According to Stephens, Assange's UK legal team had still not seen the prosecution evidence against him. "His Swedish lawyers have some of the material but not all and it's in Swedish so we can't take proper instructions."

Besides the lack of evidence provided by the Swedish prosecution, a key point is the fact that the crime Assange is accused of is not a crime in the UK. For extradition to go forward, the crime must be of a serious nature in both countries. This time, Assange's lawyers also offered a permanent address in England and suggested electronic monitoring, a curfew and travel restrictions as alternatives to incarceration. Over £200,000 was offered in surety for bail and ten international public figures also offered surety.

The appeal was granted with the following conditions:

Assange's counsel pointed out that it was a huge bail amount to be paid in cash, and Assange did not have the option of using Mastercard or Visa. The prosecution immediately appealed the decision, so Assange was taken back to jail to await the appeal trial which must be held within 48 hours. More information can be found here.

There may be many unintended consequences of the race to prosecute Julian Assange, the WikiLeaks founder. But as he faces extradition to Sweden, where he is accused of rape, one of the more eccentric side effects has already become clear: the rise to prominence of the European arrest warrant.

This legal instrument has been controversial since it was introduced in 2003, creating everyday injustices; but rarely has anyone outside the small group of lawyers that handles cases really cared. Now followers of the WikiLeaks story wonder how Assange could be extradited with so few questions asked. Why, for example, can our prisons detain someone (Assange is currently on remand in Wandsworth prison) for an offence under Swedish law that does not exist in British law? And how can a judge agree to an extradition without having seen enough evidence to make out a prima facie case?

The 2003 Extradition Act originated in an EU decision agreed just one week after 9/11. It was sold to voters as a way of ensuring cross-border cohesion in prosecuting suspects wanted across Europe for terrorism and serious crime. The level of cohesion in criminal justice systems across Europe, the argument went, and their common obligations under the European convention on human rights, provided a sufficient basis of trust that an arrest warrant by an EU country could be agreed by the UK with little scrutiny.

It's been downhill from there. Around three people per day are now extradited from the UK, and there is little to suggest that the majority are terrorists or serious criminals. In fact those involved in the process agree that many of the cases are "trivial".

INTERLUDE-BAIL APPLICATION 14/12/2010

The principles of bail in both English and Australian law are close. Without looking at bail legislation in the UK (no time sorry) these are most of the factors in NSW Australia that a court will consider in a bail application, with comments as to how they apply, or not,

Firstly there are the presumptions for bail, which have a set of legislated determinants which I won't go into but are an indicator of how a court will ordinarily look on a bail application from the outset. Defence makes submissions on presumptions, prosecutor might have a different view but most often agree on presumption.

OFFENCE: Circumstances of the offence, Strength of prosecution case, Likely penalty on conviction.

Only the strength of the prosecution case is really relevant here and while this is a factor for bail it is not a factor ordinarily for the extradition proper. (Will post on that later, an EU human rights "backdoor" might allow some of it through, per the UK Extradition Act.)