Wikileaks and the arrest of Julian Assange
8 December 2010
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 Guardian.co.uk, 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.
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