WikiLeaks editor-in-chief Julian Assange was granted bail in a London court yesterday and expected to be free by this morning — only to see the Swedish prosecutor’s office exercise its right to appeal, leaving Assange behind bars for another 48 hours.

The prosecution appeal will be heard in the Court of Appeals on Thursday December 16.

The decision came at the end of a tumultuous day during which the dilapidated Westminster central magistrates building was barely able to handle the huge crush of journalists, supporters and general public interested in the trial.

After a hearing in which the founder of the Frontline Club, Vaughan Smith, offered to house Assange at his mansion on the outskirts of London, Assange was granted bail. Later his lawyer, Mark Stephens, told journalists that the Swedish prosecution service had announced it would not appeal within the two-hour period allowed them after the judgement.

However, sources close to Assange’s legal team, say this was a miscommunication, as half an hour later it was announced that the Swedish prosecutors would appeal the ruling, and attempt to keep Assange behind bars.

Even had that not occurred, Assange would have remained behind bars tonight, as the court had made a condition of his release the deposit of £200,000 ($A300,000) bail (in addition to sureties). Stephens told journalists from the court steps that they were putting out the “begging bowl” — although it’s unclear whether or not they were mounting a public appeal for the funds.

Assange’s appeal hearing began at 2pm on Tuesday, the mood gearing up with the arrival of Geoffrey Robertson, senior counsel, sailing through the waiting throng of journalists and public, finding the door locked, and banging theatrically on it, black-rod style.

Once under way, the case was in many ways a repeat of the earlier hearing at which Assange had been refused bail. The Crown Prosecution Service, acting for the Swedish prosecutors restated their argument that Assange was facing serious accusations, had means and motive for flight and few ties to the community.

Assange’s team challenged with the argument that Swedish prosecutors have failed to even make full criminal charges, and are using the European arrest warrant as a fishing expedition, by which to build a case, an abuse of process. This time they could not only point out that one of the reasons that Assange had been denied bail was in error — said to have entered the UK without any record of his arrival, it now turned out that the border agency simply did not keep a permanent copy of such — but could also produce stable accommodation.

This was to be at the country — well, Home Counties — house of Vaughan Smith, former soldier, journalist, and founder of the Frontline Club, who praised Assange as a man of courage and integrity, said he had not the slightest doubt that Assange would not abscond, and that his country house was a mile from the nearest police station, to which he could report daily, and that in any case he will be “living surrounded by my staff [i.e. servants]” so could hardly just lit off.

The defence got a pretty easy hearing. The prosecution had a rougher ride — hardly surprising since they were coming into court without something the magistrate had explicitly requested last time, some evidence to fill out the accusations.

To recap, there are four charges — one of r-pe with physical coercion, two misdemeanour misconduct/harassment charges relating to offensive but not non-consensual s-xual behaviour, and one s-xual assault charge for s-x without explicit consent (see my timeline for more details). The magistrate had told the prosecution last week that coming into court without some evidence to buttress a bail request was bad practice. But as the Swedish Prosecution Service is continuing to withhold any evidence from public release, young prosecutor Gemma Lindfield was out on a long limb.

It wasn’t a pretty sight for the squeamish. Lindfield nearly fell apart on her feet, her address punctuated by long silences and hesitations, and she eventually patched together an argument about the bail act and extradition act reinforcing each other. She had to say something, but she knew that Assange would get bail now that residency conditions had been met.

This was duly granted, although the conditions were pretty onerous — not merely daily reporting, but the wearing of an electronic ankle tag, with the condition that Assange be at Smith’s house between 10am and 2pm, and 10pm and 2am, this presumably preventing a sudden dash in Wonder Woman’s transparent jet.

To put this in perspective, Mr Dewani is fighting extradition to South Africa where he is being accused of the murder of his newlywed wife in an allegedly staged car-jacking in a Cape Town township. He was out on bail immediately. Assange has a week and more to come banged up 23 hours a day, with no internet or TV, and little reading matter.

The delay in confirmation of the appeal and confusion over whether it was occurring appears to have resulted from communication between the Swedish prosecutors and the Crown Prosecution Service carrying the water in the UK.

It would appear that the CPS advised the Swedes not to appeal because — well, because it will most likely be another shellacking, with the Swedes sending them in with no ammunition, and an increasingly irritated court.

The Swedes appear to have insisted on an appeal being made, either because they genuinely feel that Assange will disappear — or because they are now so irritated by the global campaign for Assange, and the increasingly anti-Swedish rhetoric coming from parts of it.

One result of this goes well beyond the Assange case. The whole mess may put increasing pressure on the whole concept of a European arrest warrant, the recently inaugurated device to speed up extradition between EU states — and part of the EU’s drive to become a post-democratic superstate run by bureaucrats. The whole idea of an EAW is that states gradually conform their own bodies of law, not to a single law, but to something that is roughly comparative. After all, the whole point of an extradition process is to consider whether serving another country’s justice would amount to a rank injustice to your citizen — even if they have a case to answer. The EAW relies on a high degree of trust and mutual comprehension between legal systems.

The Assange case has shown that up as a fiction. Legal systems are, in the last analysis, cultural systems expressed through juridical and state processes. That there might be some gap between, say, Sicilian and Danish ideas of whether an altercation should be considered a breach of the peace or grievous bodily harm has always been obvious. Less obvious has been the idea that there might be major differences between northern European societies and their ideas of s-x, consent, reason and damage.

Effectively, Swedish society, over four decades of institutional and legal transformation by social movement philosophies, has evolved a legal-cultural system that gives so much power to the state in the conduct of s-x crime investigation that it strikes many people outside of it as, per se, a denial of natural justice, and starts to clash with the minimum conditions of evidence and capacity to answer accusations. Lest Swedish caricatures be perpetuated, it should be said that these laws provoke fierce debate in Sweden, with defenders matched by detractors.

Thus, Swedish protection of complainants’ anonymity, and of the state’s leeway to build a prosecution, is butting up against the British system. If this is happening in the bail hearing — and if the Swedes are insisting on such challenges proceeding, despite visible failure — then God knows what the hearing proper will look like. But it’s a mile away from the “speedy surrender” that the EAW was premised on. Indeed one reason for the emerging chauvinist response to this case — FUSweden appears to be a popular hashtag for it — is the feeling that European elites will happily trade away their citizens’ rights and transfer them between each other, simply to further the European ideal of a perfectly fluid, denationalised superstate.

So you’ve got a choice about why this is happening. The UK lefterati are arguing that this is a clear stitch-up. That that is happening at the higher levels, I don’t doubt. But I don’t believe for a second that this is what is motivating the prosecution process.

Despite Stieg Larsson, Sweden is one of the most incorruptible societies in the world. That’s the whole problem. Their institutional apparatuses have become so robotic-rule governed and relentless, that they march on even when base common sense dictates that they have wildly overshot the mark. It is their fidelity to the Swedish project of radical equality and universality that makes the prosecutors so Terminatoresque. If Assange’s legal team don’t understand that, if they wallow in ancient fantasies of US imperialism, they’ll never get the jump on this. Assange either r-ped someone, or he two-timed the gender equality officer of Uppsala University and she took her revenge.

In either case, the management of the case has been so chaotic as to ratify Stephens’ claim on the steps of the court that:  “This is not a prosecution, this is becoming a persecution. This is a show trial …”

Whether the Swedish refusal to provide evidence is of import is something the appeals court will have to consider. The decision will be one of law, not evidence — so the question will be not about what Assange did or did not do, but about Europe and how it should be run, and what sort of relationship there should be between body of law, form of government and nation.

The hearing is set for Thursday December 16.

Peter Fray

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