Wikileaks and the arrest of Julian Assange

8 December 2010 by

Updated | Wikileaks founder Julian Assange was arrested yesterday and refused bail after a hearing at Westminster Magistrates Court.

He was not arrested in relation to the whistle-blowing website Wikileaks, but rather on suspicion of having sexually assaulted two women in Sweden. His lawyers have said that “many believe” the arrest was politically motivated.

The mechanism for his arrest is of interest. He was arrested under a “European arrest warrant”, with a view to extraditing him to Sweden to face the charges. Carl Gardner explains the process in an excellent post on his Head of Legal Blog:

All this is happening under Part 1 of the Extradition Act 2003. Sweden having issued a European arrest warrant (here’s the Interpol “red notice”) it seems Assange attended a police station this morning, and was arrested presumably under section 3. The initial hearing today took place in accordance withsections 7 and 8, the district judge simply setting the date of the full extradition hearing (or at least its formal opening) under section 8(1)(a), and making a decision on bail or custody in the meantime.

European arrest warrants make it relatively easy for European states to extradite suspected criminals such as Assange. They have been fairly controversial (see this post) and are currently under review by the coalition government (see our post), alongside the also-controversial extradition arrangement with the United States. It would appear that the United States have not submitted their own extradition request, which may reflect the difficulty in finding a crime to accuse him of.

Gardner finds it unsurprising that bail wasn’t granted in this case, given the seriousness of the charges and the likelihood that he may have fled the jurisdiction. In relation to the Swedish charges, the New York Times reviews the law relating to sexual assault in Sweden, which is not much stricter on sexual assault than other European states.

The full extradition hearing has to be within 21 days. A judge will have to decide (again, thanks to Carl Gardner):

  • whether the offence he’s wanted for is an “extradition offence” (section 10read with section 64, I think in this case section 64(3) in particular); there seems to be no dispute about this;
  • whether extradition is “barred” under section 11, which it is by reason of “extraneous conditions” under section 11(1)(b) read with section 13 if extradition is really about punishing him for his political views, or if they might prejudice his trial, and
  • whether extradition would comply with human rights (section 21).

According to Afua Hirsch at The Guardian, Assange will argue, amongst other things, that he would be unfairly deprived of his liberty in Sweden and therefore should be protected under human rights law.

Human rights law is often (some say increasingly) invoked, although rarely successfully, in extradition proceedings. If a person can show that there is a real risk of his rights – such as to a fair trial or against inhuman and degrading treatment – being breached in the receiving state, then a UK court will not extradite him as that would amount to a UK public authority – the court – causing the breach, which is unlawful under section 6 of the Human Rights Act 1998.

For example, the High Court recently questioned whether the Russian criminal justice system was too corrupt to ensure a fair trial for a man faced with extradition (see my post). The court was asked to decide whether the lack of accountability of prosecutors in Russia would lead to a “flagrant denial of justice” if a man were extradited. The extradition request ultimately failed for other reasons, but the judge expressed significant concerns in relation to the Russian justice system.

But Sweden is not Russia. Assange may argue that since the charges are politically motivated, he will not receive a fair trial. But without solid proof of such serious allegations, he will not succeed. European Arrest Warrants are designed to make extradition between states simple and quick, and it will be difficult even in such a high-profile case to prevent this happening.

He may also invoke the right to freedom of expression. Article 10 of the European Convention on Human Rights provides that everyone has a right to freedom of expression, but a state can restrict that right, amongst other reasons, in the interests of national security and the prevention of crime. If Assange was facing extradition to the United States, which may follow soon, this argument would be at front and centre.

But as things stand, unless he can show that the sexual assault allegations are politically motivated, which seems unlikely, it is hard to see how freedom of expression will play much of a part. The Wikileaks site is still running despite his arrest, and freedom of expression rights can legitimately be breached to prevent crime.

Update, 8 December 2010 – Afua Hirsch, writing on, asks what is likely to happen next for Assange:

In short, for every politician itching to put Assange on trial, there is a legal obstacle to be overcome, which makes one thing and one thing only certain – for the question of Assange’s future under the law, there is no end in sight.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more


  1. THE says:

    We all remember President George W Bush and his lies concerning Iraq; and I wonder how many Americans are asking where Wikileaks was when we needed them?

    All Anglo-American Politicians know the number of American and non-American lives were lost because of President George W Bush’s lies on Iraq.

    These American Citizens were denied their right to Life, Liberty, and the pursuit of Happiness, but the Dictators of America have hypocritically and conveniently remained silent on that.

    The American Constitution doe not allow the Dictators of America to seek to rule the world, but do their best to ensure the Right of American Citizens, including the thousands of American Soldiers who were killed, and the many others who were serious injured to Life, Liberty, and the Pursuit Of Happiness.

    Can any of us think that President George W Bush will be tried for treason and executed, yet these American Dictators are treating Private First Class Bradley Manning and the founder of Wikileaks like criminals?

  2. THE says:

    Do any of you remember President George W Bush and his lies concerning Iraq, and I wonder how many Americans are saying where was Wikileaks when we needed them?

    All Anglo-American Politicians know the number of American and non-American lives were put in danger because of President George W Bush’s lies on Iraq, and who were denied their right to Life, Liberty, and the pursuit of Happiness, but the Dictators of America have hypocritically and conveniently remained silent on that.

    Can any of us think that President George W Bush will be tried for treason and executed, yet these American Dictators are treating like Private First Class Bradley Manning and the founder of Wikileaks like criminals.

  3. Corrupted Mind says:

    Extremely fascinating case. Having worked in this area I’m happy to provide a few views.

    1. First hearing was routine. Bail 101, if you have no fixed place of abode how on earth could any judge presume you will return for the full hearing.

    2. Second hearing will be routine too. There is no doubt that this is an ‘extradition offence’, non-extradition lawyers will look at ‘extraneous conditions’ and think there is a gap – there isn’t – he has been accused of an offence (one, admittedly which he has been arrested before in the Cat 1 receiving country and which he is on ‘conditional release’ for). The bar for the “political opinions” part of the test is also extraordinarily high – “I believe in free information” – will not fulfil the test. It is also indisputable that his extradition to Sweden would comply with Human Rights (sly aside: otherwise another couple of prisoners recently removed under the proceedure may have something to say about that).

    3. Onward extradition: regrettably extradition has garnered a bad reputation because of all the mis-information spread willy nilly as a consequence of McKinnon. Extradition to the US for any capital offence (Espionage Act included) is prohibited by Soering (i’m sure some US lawyer has been informing senators which is why they have stopped bleating about it). All EU countries would be prohibited from extraditing Assange while he is being investigated for a separate offence. So Whatever happens, the US will have to join the queue behind Sweden. The US are in a bit of a bind really, as they have to find an offence which he is guilty of which does not apply to any of his media partners (including importantly the US based New York Times). More importantly, they have to do so without bringing the first amendment into play – a court judgment confirming Wikileaks status as a member of the media would be the worse possible outcome. It seems, at least to me, that they are pursuing “soft” measures to handle Wikileaks with the hope that by strangling its finance and taking it offline it will be able to reduce its power rather than destroy it completely.

  4. Swede says:

    Against what everybody think, Julian Assange is very lucky to have this case in Sweden over him. It protects him from being extraded to the US by UK and/or Sweden, before this case is closed or put to court.

    And it will be juridically difficult to extrade him from Sweden, because political or military reasons are not enough.

    This will take time, folks. By then people in the US will come to sence (believe it or not) and all alligations from them will be much more modest or even dropped.

    There is no set-up. And if there is, it might actually be one from Assange himself?

  5. Alessandra says:

    So for us in the legal peanut gallery, the sexual aspect of the wikileaks sage brings up several questions. Assange has been now formally charged (as I understand) with four counts of sexual misconduct, based on allegations, but although he and his lawyer have repeatedly asked to know what the allegations are, they were denied this information. Is this how things normally work?

    Mark Stevens: No, I haven’t spoken with him or anything else. It’s very difficult obviously to prepare the case but at the moment I don’t have details of the evidence against him yet and this is something that the prosecutor – perhaps one would even say ‘persecutor’ – from Sweden has been playing hide-and-seek with for some months now. Julian Assange sought information in August, asked about the nature of allegations against him and has this far being denied access to that information. I think he believes he could rebuff it.

    John Robles: Neither he nor you even have the charges or details on the case against him in Sweden?

    Mark Stevens: Well, we have the details of the charges now and that was read in court yesterday. But the allegations were made back in the middle of August and for the very first time yesterday we heard what they were in court. But Julian has a right to have it communicated to him in a language so that he understands not only the charges but the allegations because he hasn’t actually been charged.

    John Robles: Is that a normal procedure just to give you one day to prepare? I mean that sounds really unreasonable to put it mildly.

    Mark Stevens: Well, I think it is unfortunate. It’s fair to say that.

    John Robles: How can you properly prepare a case in one day? I don’t think that’s possible.


    Mark Stevens: That’s right. The Chief Prosecutor of Sweden’s said there was not a shred of evidence against him and that he didn’t need to have the case pursued and she gave him permission to leave the country. He’d stayed there for 40 days trying to resolve this and they refused to meet him and give him the evidence. Then, of course, a politician got involved and he took these women out of Stockholm to Guttenberg and on the same facts started another prosecution with another prosecutor. I know that in most countries that would be an abuse of process. It appears though that in Sweden this is what the Prosecutor is doing.


    John Robles: There’s one thing I want to ask you: what exactly is going to happen on the 14th? Is that going to be like a pretrial hearing or is it the actual extradition hearing or what?

    Mark Stevens: No, it’ll be the hearing when the issues are identified and then once they are identified we’ll have an idea of how long the hearing will take place and the date will be scheduled, probably the end of January or the beginning of February.


    My question: If the charges were read yesterday in court, why does his lawyer say he hasn’t yet been charged? I’m at a loss here to understand what he meant.

  6. ObiterJ says:

    He isn’t.

  7. Carl Gardner says:

    How is he safer in the UK from extradition to the US?

  8. ObiterJ says:

    @ Derek – I would say none.

  9. derek says:

    A concern of mine; what assurances are there that if the extradition is carried out and assange ends up in sweden then he is safe from a US extradition which could be politically motivated?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights conventions human rights damages Human Rights Day human rights decisions human rights news Human Rights Watch Huntington's Disease immigration Immigration/Extradition immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraq War Ireland islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: