Assange's legal team's skeleton argument on strong ground

By Greg Barns, Crikey, 12 January 2011:

Julian Assange’s lawyers are going for the jugular in their attack on the Swedish and UK government’s attempts to extradite Assange to Sweden where there is an investigation under way concerning his alleged in involvement in sexual offences. Not only do Assange’s lawyers run the usual arguments about the offences not being extradition offences — that is, there are no like charges in English law — but they say that the Swedish prosecutor who wants Assange extradited has no authority to do so, and that the whole thing is an abuse of process.

Strong stuff, but if the 35-page skeleton argument that Assange’s legal team has filed overnight with the City of Westminster Magistrates Court, ahead of the hearing in early February, is correct in its view of the law, then the Swedes are cactus! (See video here of Assange’s brief appearance at Belmarsh Magistrates’ court in London overnight.)

The Swedish prosecutor who is handling the Assange sex offences matter, Marianne Ny, a Public Prosecutor in Gothenburg, has no power to seek extradition, say Assange’s lawyers. The submission cites media statements by Ny and correspondence she had with the Australian High Commission in London in December in which she made it clear that her “purpose in requesting an arrest warrant, and subsequently an [extradition warrant], against Assange, was not in order to prosecute him, but in order to facilitate his ‘interrogation’, i.e. to facilitate his questioning.”

Assange’s lawyers correctly cite a line of strong and unambiguous English and European legal authority that says that you cannot extradite a person merely to question them. And you certainly cannot do so when there is documented evidence, as there is in this case, that Assange’s lawyers have repeatedly told the Swedish authorities that Assange was more than happy to meet them for questioning.

As to Ny’s argument that there was no other way of her getting Assange into the Gothenburg interviewing room, Assange’s lawyers say this is false.

What also emerges from Assange’s lawyers’ submission is that Ny has not complied with the cardinal principle of full disclosure — in other words, an accused person is entitled to see all the evidence against him. In the Assange case, much has been made of text messages said to have been sent by the women Assange is said to have slept with, including one where one of the women says she was half asleep. Other “messages from and between the complainants that the Swedish Prosecutor has refused to disclose but which Assange’s lawyer, (Bjorn) Hurtig, has seen (but was not allowed by the prosecutor to take notes or copies of), speak of revenge and of the opportunity to make lots of money and of going to the Swedish national newspaper, Expressen,” says the submission.

In short, Assange’s lawyers must be provided with copies of such potentially useful evidence before matters go any further.

By refusing Assange’s legal team access to the text messages, Ny is caught on the horns of a painful dilemma, argue Assange’s lawyers. And they are right.

In perhaps the most damaging portion of the submission, Ny is accused of abuse of process because either “Assange’s extradition is sought for purposes of prosecution, and thus a decision has been taken as to his prosecution and he is then entitled under Swedish law to disclosure of the entire investigation file, including the SMS messages and blog evidence — and yet these crucial items of evidence have not been disclosed to him, representing a serious violation of Swedish criminal procedure law and dereliction of duty on the part of Ny, and thus an abuse of process”, or “Mr Assange’s extradition is not being sought for the purposes of prosecution, in which case it should not have been sought at all. Either way, it is an abuse of process for Ms Ny to proceed in the way in which she is doing.”

The final argument raised by Assange’s lawyers, and one that should be supported by the Gillard government (but don’t hold your breath) is that if Assange is extradited, compliant Swedish authorities will allow the Americans to swoop on Assange and dump him in Guantanamo Bay or some other place of torture. This is a genuine threat given the extremist nature of the American political and legal responses to Assange so far and because of the pressure on President Obama to tack to the hard right on the issue.

Julian Assange’s legal team is on very strong ground and English courts have in recent years repeatedly shown a robustness that the political class of that country lacks when it comes to human rights. It would be a surprise if Assange were handed to the likes of Ny and the Americans, given that to do so would be to hand him over to a political and diplomatic witch-hunt in Sweden and the US.