Team Assange had a less than totally successful day in court, after Assange’s Swedish lawyer, while giving evidence, informed the court that he had incorrectly reported that the Swedish prosecutors had made no effort to interview Assange while he was in the country in late August/early September last year.

High-profile Stockholm lawyer Björn Hurtig told the court that he had inadvertently misinformed them, and had only realised the mistake very recently. Having said that prosecutors had made no effort to contact Assange during the five week period, he now realised they had called him about a week before Assange departed Sweden — with court permission — in late September.

Hurtig’s admission put him in the firing line for some pretty ferocious cross-examination from Clare Montgomery for the prosecution service, who made Hurtig — who was giving his evidence by interpreter — take out his phone and check back through his text messages. Hurtig said that he would undoubtedly have tried to contact Assange, but that he was a hard man to get in touch with.

The admission bangs a hole in at least one part of Team Assange’s case — that the Swedish prosecutors waited until he was out of the country to issue a warrant for his arrest for further questioning, and then did not apply a principle of proportionality to the process of arranging an interrogation.

Nevertheless Hurtig did manage to get into evidence the notion that there was a record of SMS messages between the two complainants, in which they discuss getting revenge on Assange and selling their story for money. However due to Swedish evidence law, Hurtig is only able to view such material, not to take a copy of it with him.

There is at least some available corroboration of the texts in evidence in the 100 page police report which was re-leaked last week, after already doing the rounds months earlier. In that, police ask a witness who is a colleague of Sofia Wilén, the second complainant. Asked about SMS messages she and Wilen had exchanged during the week about revenge and going to the papers for money, she said it was “just a joke — to help support Sofia.”

In the morning the Assange team scored some much needed points with the evidence of former Swedish chief prosecutor Sven-Erik Ahlem, who said that the Swedish prosecutors should have interviewed Assange much earlier in a case of this type — but also said that if he were Assange he would return to Sweden to “clear his name”.

The latter remark will have no legal standing, and there’s no jury to influence — but it’s difficult to know how much of Assange’s case will have weight against a European Arrest Warrant either, for the simple reason that so few EAW’s get challenged, and the warrant itself is designed to make challenge next to impossible.

Sheer police bungling won’t swing it. If it did, no-one would be extradited ever, to anywhere. What seems likely is that Assange will lose this round, and the decision will then be appealed to the High Court. Crucial to a final judgement will be two issues: whether Sweden’s unique system of holding practically all r-pe and s-x crime trials in camera stands in violation of the European law, EU human rights statutes and other such things, and whether the things Assange is being accused of do not constitute crimes in the UK at all, thus making the use of an EAW incorrect.

Two of the accusations/charges Assange is facing — unprotected s-x despite the complainants express objections (but with her consent), and an uninvited turkey rub — could not be charged in the UK, in their specific Swedish incarnation (as ofredande, misconduct). A third — s-xual coercion, alleging that in order to prevent a condom being applied, Assange pinned the complainant’s body down with his weight mid s-x — falters on the grounds that the s-x itself was consensual throughout, and there is thus no criminal act.

Assange’s team is arguing that the fourth accusation — of “minor rape”, for beginning unprotected s-x while the complainant was asleep or half-asleep (accounts vary) — fails the test too, because consent was either present from the start or almost immediately given. There being neither actus reus nor mens reas in the incident, there’s nothing that can actually be a crime.

Should the High Court agree on either of these as deal breakers, Assange will be free (a third argument will be the technical one that the Swedish prosecutor Marianne Ny did not have the authority to request the warrant), and Sweden’s reputation for probity, hardly hardy after 50 million Stieg Larsson book sales, will take a further blow. Assange, I would imagine, will marry Jemima Goldsmith, and sue all the biopic makers for a slice of the rights. His memoir will come out in 2019, and the publishers will deserve that.

Your correspondent wasn’t in court today. It would have been awkward to run into Bianca Jagger again. Not just for the queue-jumping thing, but for Nassau in the 70s, and that summer on Allen Klein’s yacht. Last time I got into that sh-t Carly Simon wrote a mean song about me. You know how it is. Perhaps you don’t. Assange is back in court on Friday, with a decision, even at this level, probably weeks away.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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