Assange Draft Skeleton Argument

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<p>IN THE CITY OF WESTMINSTER MAGISTRATES COURT</p> <p>DIRECTOR OF PUBLIC PROSECUTION MARIANNE NY, SWEDISH PROSECUTION AUTHORITY, SWEDEN (A SWEDISH JUDICIAL AUTHORITY) -vJULIAN PAUL ASSANGE</p> <p>____________________________________________ PROVISIONAL SKELETON ARGUMENT ON BEHALF OF MR. ASSANGE _____________________________________________</p> <p>Extradition hearing: 7-8 February 2011 [This skeleton argument is provisional and has been written without the benefit of the Prosecutions Opening Note. It will be perfected in due course]</p> <p>1. Introduction</p> <p>1.</p> <p>Marianne Ny, a Public Prosecutor in Gothenburg, Sweden, has requested the extradition of Julian Paul Assange to Sweden pursuant to a European Arrest Warrant (EAW) issued on 2 December 2010 and certified by the Serious Organised Crime Agency (SOCA) on 6 December 2010.</p> <p>2.</p> <p>It should be made clear at the outset that it is not accepted that Ms. Ny is authorised to issue European Arrest Warrants. In Enander v. The Swedish1</p> <p>National Police Board [2005] EWHC 3036 (Admin), the CPS confirmed that the sole Issuing Judicial Authority [in Sweden] for the enforcement of a custodial sentence or other form of detention is the Swedish National Police Board (Enander, paragraph 13, emphasis added). There is no evidence that that official position has changed since the High Courts judgment in Enander was handed down on 16 November 2005. Accordingly, if the Swedish National Police Board is the sole issuing judicial authority in Sweden, then Ms. Ny was not authorised to issue the EAW in this case, and it is invalid ab initio. If the CPS does not accept that this is the case, then it is put to strict proof that Ms. Ny is entitled to issue EAWs.</p> <p>3.</p> <p>On 23 December 2010, the Defence wrote to SOCA requesting proof that Ms. Ny was entitled to issue an EAW. While SOCA acknowledged receipt of this letter on 24 December 2010, stating that it would revert in due course. SOCA has yet to provide the confirmation sought that Ms. Ny was even entitled to issue the EAW, a matter on which it would have had to satisfy itself before certifying the EAW.</p> <p>4.</p> <p>Mr. Assange surrendered himself for arrest on the EAW by appointment with police officers on 7 December 2010. He had his initial hearing before Senior District Judge Riddle, and was denied bail. He was subsequently granted conditional bail by Senior District Judge Riddle on 14 December 2010. The Prosecution appealed to the High Court,1 which upheld the grant of bail on 16</p> <p>1</p> <p>It is worth noting that there was considerable confusion as to who was in fact responsible for taking the decision to appeal the grant of bail on 14 December 2010. On 14 December 2010, Ms. Lindfield indicated that she needed to take instructions from the Swedish Judicial Authority. Yet the Swedish Judicial Authority subsequently denied that it had any role in the decision (http://www.guardian.co.uk/media/2010/dec/15/julian-assange-bail-decision-uk). Yet the DPP stated on the BBC, on 16 December 2010, that the CPS had been acting as agents for the Swedish prosecutor: There was some confusion over whether Britain or Sweden was behind the bid to deny him bail. A spokeswoman for Sweden's prosecution authority said the case was in British hands. Britain's Director of Public 2</p> <p>December 2010, and ordered the CPS to pay the requested persons costs (CO/12844/2010, Judgment of 16 December 2010, Mr. Justice Ouseley).</p> <p>5.</p> <p>There has been correspondence between the Court and the Parties regarding the timetable which was set by the Court, without hearing the Parties, on 23 December 2010, just before the Christmas recess. The defence reserves its right to argue that this procedure was unfair to Mr. Assange and a breach of procedural due process.</p> <p>6.</p> <p>The extradition hearing in this case has been set for 7-8 February 2011.</p> <p>7.</p> <p>Mr. Assange will raise, inter alia, the following issues in opposition to his extradition to Sweden:</p> <p>(1) The certification of the European Arrest Warrant (EAW): Ms. Ny is not a judicial authority for the purposes of the Extradition Act 2003 (as set out above);</p> <p>(2) Extradition has been sought for an improper purpose, and the proceedings are an abuse of process and/or the EAW is not a Part 1 warrant for the purposes of section 2 of the Act;</p> <p>(3) Additional limb of abuse of process: non-disclosure by the Swedish Prosecutor;Prosecutions told BBC radio they had been acting as the agents for the Swedish government but declined to comment on the specifics of the case (http://www.telegraph.co.uk/news/worldnews/wikileaks/8206763/WikiLeaksfounder-Julian-Assange-granted-bail.html).</p> <p>3</p> <p>(4) Additional limb of abuse of process: the conduct of the prosecution in Sweden;</p> <p>(5) The offences are not extradition offences (section 10 of the Act);</p> <p>(6) Extraneous considerations (section 13 of the Act); and</p> <p>(7) Human rights (section 21 of the Act).</p> <p>8.</p> <p>These points will be developed in turn.</p> <p>2. The requested persons extradition has been sought for the purpose of questioning him further, and not for the purpose of prosecution</p> <p>9.</p> <p>This issue is raised in two discrete contexts: first, as a section 2 point, and second, as an abuse of process point. It is first necessary to set out the factual basis for the complaint before setting out the legal context.</p> <p>Factual background</p> <p>10.</p> <p>Ms. Ny has repeatedly and publicly stated that she has sought an EAW in respect of Mr. Assange simply in order to facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him.</p> <p>4</p> <p>11.</p> <p>On 18 November 2010, Ms. Ny explained her reasons for seeking an arrest warrant in these terms:</p> <p>Ny told AFP: I requested his arrest so we could carry out an interrogation with Assange []</p> <p>Ny reopened the rape investigation on September 1 but did not request his [Assanges] detention, making it possible for him to leave Sweden.</p> <p>We have exhausted all the normal procedures for getting an interrogation (and) this investigation has gotten to a point where it is not possible to go further without interrogating Assange himself, Ny said. (Exhibit to the Witness Statement of Mark Stephens, Exhibit MS-7, 14 December 2010, emphasis added)</p> <p>12.</p> <p>In fact, Ms. Nys claim that all the normal procedures for getting an interrogation had been exhausted is highly inaccurate. As is clear from the letter from Mr. Assanges Swedish lawyer, Mr. Hurtig (MS-4), the latter repeatedly sought to make Mr. Assange available to Ms. Ny for questioning, but all these efforts were rebuffed:</p> <p>9. Fifth, I can confirm that on behalf of Mr. Assange I have been trying for many weeks to arrange for him to be questioned by Ms. Ny, including by Mr. Assange returning to Sweden for questioning. All these attempts have been rebuffed by her. It is here useful to set out a brief chronology5</p> <p>(Letter of Mr. Hurtig, Exhibit MS-4 to the witness statement of Mark Stephens, underlining added)</p> <p>13.</p> <p>As Mr. Justice Ouseley found, when granting bail to Mr. Assange, Mr Assange has expressed, and I see no reason to doubt it, a willingness to answer questions, either over the telephone or some other suitable form of communication if the prosecutors in Sweden wish to put them to him (paragraph 22, Judgement).</p> <p>14.</p> <p>Ms. Nys statement was also wrong in that she was in touch with Mr. Assanges lawyer, Mr. Hurtig, at the relevant time.</p> <p>15.</p> <p>The significance of Ms. Nys statements to the media for present purposes is, however, the following: it is perfectly plain from those statements that Ms. Nys purpose in requesting an arrest warrant, and subsequently an EAW, against Mr. Assange, was not in order to prosecute him, but in order to facilitate his interrogation, i.e. to facilitate his questioning. This is an improper use of extradition, and of the EAW scheme.</p> <p>16.</p> <p>Other statements by Ms. Ny to the media to this effect are included in a bundle of material to be served on the Court.</p> <p>17.</p> <p>Ms. Nys position has been further confirmed in official, diplomatic communications from her to the Australian Embassy in Stockholm (and communicated to Mr. Assange via the High Commission in London pursuant to their consular assistance) made in December 2010, i.e. subsequent to the issuing of the EAW. Due to the significance of this communication, it is cited here in full (the significant passages, for these purposes, are underlined below):</p> <p>6</p> <p> 20 December 2010 [] Dear Mr Stephens</p> <p>Australian High Commission London</p> <p>As previously advised our Ambassador in Stockholm made representations to Ms Marianne Ny, Director of the Public Prosecution Authority in Sweden, for access to the documents requested in your letter of 7 December. He has received the following response: Starts Your request to obtain copies of the investigation against Julian Assange has been denied. This is mostly due to the confidentiality of the bulk of the requested documents which are only available in Swedish. Assange's lawyer Bjorn Hurtig received a copy of the majority of the investigation documents during his detention hearing in the Stockholm District Court on November 18. The same documents were also filed in court. The Stockholm District Court and defendant [sic] were verbally given a detailed explanation of the contents of the small number of documents not included in the written material that was submitted. The defence has asked for copies of all materials. Under Chapter 23, paragraph 18 of the Code of Judicial Procedure, I have decided to reject the defence's request to obtain copies of the documents not surrendered before the detention hearing. I consider it would be detrimental to the ongoing investigation into the matter. I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation. The right to access information about the case that Assange and his councillor Bjorn Hurtig have been privy to, does not include any third parties. As I have emphasised the defence has already received copies of the material that may be sent to Assange. If the Embassy so wishes, it is possible to get the file which has been released to the media.2 All subsequent documents to be added in the investigation after 1 September 2010 are confidential and I can therefore not disclose them.2</p> <p>This may be a reference to the file which was, quite wrongly, leaked to the media by the Swedish Prosecutors Office. 7</p> <p>It is possible to appeal against the refusal to disclose documents. Should you wish to appeal, I would ask you to come back to me so that I can issue a formal decision which can be appealed. Ends On 16 December the Australian Ambassador spoke directly to Ms Ny and confirmed that the key points she wished to convey were: our request for access to the documents requested has been denied. the defence has already been granted access to the majority of the investigation documents (in Swedish) and has been briefed verbally on those documents not included in the written material already provided. if a decision is made to charge Mr Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage). Third parties ('including the Australian Embassy) do not have the right to access information about the case Yours sincerely, Paula Ganly Minister Counsellor</p> <p>18.</p> <p>It is, therefore, clear from the foregoing, official diplomatic communications between Ms. Ny and the Australian High Commission (Mr. Assanges consular representatives), in December 2010 (after the issuance of the EAW on 2 December 2010), with reference to the underlined passages above, that:</p> <p>-</p> <p>a decision to prosecute the defendant has not been made yet. In other words, the Swedish Prosecutor has not yet decided whether to prosecute Mr. Assange or not;</p> <p>8</p> <p>-</p> <p>a decision to charge Mr. Assange has not yet been made. No such decision has been made at this stage.</p> <p>19.</p> <p>The position is further confirmed by Mr. Hurtig, who doubts whether Mr. Assange would be prosecuted at all, if extradited:</p> <p>6. Second, I have been asked about the likely outcome of the proceedings if Mr. Assange is extradited to Sweden. In my opinion, it is highly unlikely whether Mr. Assange will be prosecuted at all, if extradited. (MS-4, emphasis added)</p> <p>20.</p> <p>That there is considerable doubt as to whether Mr. Assange would be prosecuted at all, if extradited, only underlines the point that a decision as to whether he will be prosecuted at all remains to be taken by Ms. Ny. Yet the EAW should only have been issued for the purposes of prosecution.</p> <p>21.</p> <p>This is further confirmed by paragraph 7 of Mr. Hurtigs statement:</p> <p>I can confirm that the Swedish Prosecutor has made several remarks in the media to the effect that she is just seeking Mr. Assanges extradition to Sweden in order to hear his side of the story. (emphasis added)</p> <p>22.</p> <p>The Court is referred to the bundle of media clippings which further confirm Ms. Nys repeated position that she is merely seeking extradition to conduct an interview with Mr. Assange, with no decision having been taken whether to charge or to prosecute him.</p> <p>9</p> <p>23.</p> <p>It is clear from the context of these remarks that in stating that she wishes to hear Mr. Assanges side of the story, Ms. Ny is not merely stating a general fact of Swedish criminal procedural law, but making a specific remark in relation to the facts of this case.</p> <p>The law</p> <p>24.</p> <p>It is a well-established principle of extradition law, pre-dating the introduction of the Extradition Act 2003, that mere suspicion should not found a request for extradition. A persons extradition should not be sought merely in order for him to be questioned.</p> <p>25.</p> <p>In the House of Lords decision in Re Ismail [1999] 1 AC 320, 326-327, Lord Steyn stated in this regard:</p> <p>"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of 'accused' persons. It is also common ground that it is not enough that he is in the traditional phase 'wanted by the police to help them with their inquiries.' Something more is required... (emphasis added)</p> <p>26.</p> <p>An order for extradition should not, therefore, be made where the requested person is sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. The Re Ismail principle has been reaffirmed in several cases under the Extradition Act 2003.</p> <p>10</p> <p>The Vey case</p> <p>27.</p> <p>In Vey v. The Office of the Public Prosecutor of the County Court of Montluon, France (a Category 1 territory) [2006] EWHC 760 (Admin), the issue was whether the Appellants extradition was being sought for interrogation or prosecution in France.</p> <p>28.</p> <p>The facts in Vey were as follows.</p>...