WikiLeaks editor-in-chief Julian Assange has lost his appeal against extradition to Sweden for further questioning on four allegations of s-xual misconduct and third degree r-pe.

Sitting at the Royal Courts of Justice, the appeals court dismissed all four separate arguments made by Assange’s legal team, thus committing him to extradition to Sweden, should the Supreme Court refuse to review the appeal.

Assange’s team has 14 days to request a review. His bail conditions requiring him to live at Ellingham Hall, home of Captain Vaughan Smith, owner of the Frontline Club, have been continued.

Extradition to Sweden would take Assange from an open-court, jury-based system, to the Swedish closed-court system run by judges alone, a process that many have argued falls short of European standards as set out by the ECHR. Geoffrey Robertson, part of Assange’s initial defence team, and still advising him in an informal capacity, today repeated his call for “the Australian government to make representations to Sweden to ensure that Assange gets a fair trial”.

Assange’s team argued that the law that triggered the extradition process was not issued by a competent authority in Sweden, that three of the four accusations were not crimes in Britain, hence not subject to double criminality, and that the fourth, “third degree r-pe/indecent assault” was not a “framework” offence, that the law (i.e. a European arrest warrant) was being used as a fishing expedition without a crime, and that the issuing of the law was disproportionate when questioning could have occurred by phone or in Britain.

In its full judgment (available here), the court dismissed all four arguments, a serious set-back for Assange and team. On the question as to whether or not the Swedish prosecutor was a competent authority, it noted that non-British court justice systems have a closer relationship between executive and judiciary — but that in any case the accusations had been reviewed by a district court before the EAW was issued.

On the second matter — whether the accusations amounted to actual crimes in Britain, or crimes that authorise unilateral extradition — the court concluded that they clearly were, and that no consideration of the Assange team’s more complex defence — that the allegations were misdescribed, based on complainant statements — was required. However, they desired to consider them anyway, and rejected that argument as well (even had they accepted it, it would not have been binding).

The “fishing expedition” argument was also unsuccessful — the Assange team had argued that for an intended extraditee to be “accused” as the warrant stated, an actual prosecution was required to have been started. The court concluded that though there is no clear definition of what “accused” means, a statement of intent by the Swedish prosecutor — that Assange was wanted for questioning with the intent of prosecution — satisfied the condition.

Finally, the question of proportionality — whether an EAW was manifestly over-the-top for what was required (in this case, questioning) — was dismissed in a few paragraphs, the court noting that it is not a legal requirement for the extraditing authority to be proportionate, and that, given the contestation of an arrest warrant, the Swedish prosecutors’ act wasn’t disproportionate anyway.

Were Assange to decline to challenge the ruling, he would be removed to Sweden within 10 days. To contest it is no straightforward matter. He must now petition for his case to be awarded a “certificate of general public importance” by the court, a hearing on which will take place in 21 days  (should he proceed). The certificate will be awarded should his lawyers successfully argue that an issue associated with the case is of  public interest, and will have consequences for citizenship, justice, etc, beyond this initial case.

On the face of it, that’s a slam-dunk. Assange’s case has become one of the most high-profile challenges to the automatic application of EAWs, and the manner in which a warrant has been enacted on a prosecution that the Swedish prosecution service has already discontinued once, should be a matter of interest. Yet, on the other hand, most of the issues raised by Assange’s defence against extradition have already been dealt with in precedent. It’s quite possible that the court could conclude that there is no novel point of law of  public interest that would warrant a referral onto the Supreme Court.

There are numerous areas where one could object to the whole EAW process — the manner by which a complete prosecution case can be introduced for example, with the defence having little capacity to foreshadow its case in any meaningful way. One legal expert argued that Assange had missed his best chance by abandoning an earlier line of defence, centred on the combination of negative Swedish publicity and the closed-judicial system in Sweden: “no British court would send someone to a system where a judge and two ex-politicians — which is the Swedish system — decide the case in a closed court, if the system were made clear to them”.

Assange’s most recent defence didn’t go in that direction. But if there is a point on which the Supremes will take an interest, it will almost certainly be — or at least should be — objection one, that the Swedish Prosecution Service is held by the EAW to be a judicial authority. This was dealt with extensively with regard to case law on EAWs in the judgement, which eventually comes up with what would, in other circumstances, be a political bombshell:

This observation is in keeping with the principle of the EAW, but in doing so it is a fundamental breach, by virtue of the EU doctrine of “mutual recognition” of differing legal systems, of the Anglo-Saxon separation of powers. Though the various EU treaties acknowledge the idea of an independent judiciary, that concept has a very different meaning on the Continent than in the Anglosphere. In particular, the notion of a Continental-style “inquisatorial” judiciary, is quite distinct from the adversarial, Anglo-Saxon, one, in which there is a stricter separation of prosecutor and judiciary, and less of a notion that the judiciary somehow represents the collective will of the society.

There are arguments for and against both systems — and a string of injustices on both sides of the English Channel suggests that each could benefit from a dose of the other — but the signal fact is that such systems are seen in all countries as an expression of national identity, but especially in the UK. Rightly or wrongly, the British believe that a heritage from Magna Carta through the 1688 revolution has given them a uniquely just justice system — especially compared with the collective systems (many of them of recent derivation, from Napoleon) of Europe.

That’s what makes paragraph 41 so crucial. Because it elevates a recent imperative — European integration, as represented by the notion of “reciprocal recognition” of incommensurate justice systems — as an overarching principle, it effectively overrides the core of English law, to conform it to alien legal traditions.

This is the sort of thing that British eurosceptics — who recently staged a substantial rebellion on Europe in the Tory Party — usually get enraged by. Yet, curiously, the EAW attracts little Tory angst compared to regulations on the straightness of bananas, or elf and safety regulation, etc. The reasons are not hard to find. Most people being shuffled around via EAWs are from “the criminal classes”, — Poles who’ve done a runner on dodgy loans in Pflfft, etc. When it’s Brits being hauled overseas, it is often as not politically unconnected types who’ve king-hit someone on a tourist holiday, or financial spivs who’ve been pinged by foreign financial authorities.

Yet the unlimited extension of the EAW represents the greatest challenge to national sovereignty — and ultimately to democracy — contained within the EU project. Indeed, in its own way it is more far-reaching than the euro. As Geoffrey Robertson notes, “the principle of the EAW is that extradition from the UK to Sweden should be as straightforward as extradition from NSW to Victoria …” One might add, to hammer home the point, from the UK to Romania, or rural Portugal to Finland, and so on. The EAW makes absolutely no allowance for many of the considerations that one entered into an extradition request — the question of defending oneself within a foreign legal system and language, isolation from support networks, and the residual misoxeny of national populations.

Why aren’t the British eurosceptic Right more exercised in this case? In part, of course, it is the identification of Assange with the Left, and the general impression that he is not sound on notions of national loyalty. Yet it may be with the Tory Right that Assange’s fate lies. If this group can be mobilised on the Right, as the radical Left has already been mobilised, then it may be possible to create a degree of oomph in the UK around the sudden and dramatic extension of trans-European non-state policing.

It is worth remembering that, by the end of November, Assange will have spent a year either in remand or bailed to house curfew with an electronic tag — the maximum amount of time he could have been jailed were he to be charged and convicted on the accusations made. He will need to turn this predicament into a wider cause in the next couple of weeks. Otherwise, the grey blur — now sporting a TISM-era mullet — may have to develop again a taste for smorgasbord.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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