Skeleton argument for the Appellant Julian Assange 110630

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Skeleton argument for the Appellant Julian Assange 110630

  1. 1. IN THE HIGH COURT OF JUSTICE Case No: CO/1925/2011ADMINISTRATIVE COURTBETWEEN:IN THE MATTER of an appeal pursuant to section 26 of the Extradition Act 2003. JULIAN PAUL ASSANGE Appellant v SWEDISH PROSECUTION AUTHORITY Respondent _____________________________________________ SKELETON ARGUMENT ON BEHALF OF THE APPELLANT _____________________________________________ Date of hearing: 12th & 13th July 2011 Time estimate: 2 days (1 day pre-reading) Essential Reading: Skeleton Arguments EAW and supplemental information (4.2.11) Witness statements of Mark Stephens (14.12.10; 10.1.11; 28.1.11 & 7.2.11) Witness statement of Andrew Ashworth (25.1.11) Report of Sven Erik Alhem (28.1.11) Witness statement of Goran Rudling (31.1.11) Report of Christophe Brunski (2.2.11) Transcripts of evidence in Magistrates’ Court (7 & 8.2.11) Witness statement of Jennifer Robinson (22.2.11) Judgment of the District Judge (24.2.11) Chronology: See below, paragraph 2 1
  2. 2. IndexIntroduction…………………………………………………………………………………………. 3Chronology…………………………………………………………………………........................... 3Submission 1……………………………..………………………………………………………….. 8 The established law……………………………………………………………………….... 9 How the Castillo principles operate under the 2003 Act…………………………………... 11 Section 2(4)(c)……………………………………………………………………………... 13 Other requirements of the 2003 Act………………………………………………………...13 The treatment of Castillo under the 2003 Act………………………………………………13 Proving misstatement………………………………………………………………………. 15 Bad faith not necessary…………………………………………………………………….. 17 Offence 1 (unlawful coercion – AA)………………………………………………………. 19 Invalidity…………………………………………………………………………..20 Section 64………………………………………………………………………… 21 Offence 2 (sexual molestation – AA)……………………………………………………… 22 Invalidity…………………………………………………………………………..24 Section 64………………………………………………………………………… 24 Offence 3 (sexual molestation – AA)……………………………………………………… 25 Invalidity…………………………………………………………………………..26 Section 64………………………………………………………………………… 27 Offence 4 (minor rape – SW)……………………………………………………………….27 Invalidity…………………………………………………………………………..29 Section 64………………………………………………………………………… 29Submission 2………………………………………………………………………………………… 33 Section 2(3) of the 2003 Act……………………………………………………………….. 33 The purpose and origin of section 2(3)(b)…………………………………………………. 34 The distinct purpose and origin of section 2(3)(a) ………………………………………… 34 The combined effect of sections 2(3)(a) & (b)…………………………………………….. 35 Ismail………………………………………………………………………………………..39 Extrinsic evidence is admissible…………………………………………………………… 40 The extrinsic evidence……………………………………………………………………... 44 Exceptional case ……………………………………………………………………………46 The issue…………………………………………………………………………………… 47 Case law……………………………………………………………………………………. 47 The decision of the District Judge…………………………………………………………. 55 The time for assessment of validity………………………………………………………... 57 Paschayan…………………………………………………………………………………...57Submission 2A………………………………………………………………………………………. 58Submission 3………………………………………………………………………………………… 61 The requirements of section 2(4)(c)………………………………………………………... 61 The present EAW…………………………………………………………………………... 63Submission 4………………………………………………………………………………………… 64 The words of the 2003 Act………………………………………………………………….64 The Parliamentary intent…………………………………………………………………… 65 The ECtHR approach………………………………………………………………………. 68 The Framework decision……………………………………………………………………68 The supremacy of the 2003 Act……………………………………………………………. 68 Enander…………………………………………………………………………………….. 70Conclusions………………………………………………………………………………………….. 72 2
  3. 3. Introduction1.1 The extradition of the Appellant has been requested by a Director of Public Prosecutions in Sweden. Sweden has been designated a Category 1 territory 1 pursuant to section 1 of the Extradition Act 2003 . Thus, Part 1 of the Extradition Act 2003 (“the 2003 Act”) applies, as amended by schedule 13 to the Police and Justice Act 2006 and by and by Part 6 of, and Schedules 7 & 8 to, the Policing and Crime Act 2009. Chronology2.1 On 13th August 2010, the Appellant visited Sweden at the invitation of a political group to give a lecture on Saturday 14th August 2010. As previously arranged, he was to remain in Sweden for the following week.2.2 At some point during the following week, two women [AA and SW] spoke to each other and realised that they had both had intercourse with the Appellant during the currency of his visit. SW wanted him to get tested for diseases, so on 20th August 2010 she went to the police to seek advice. AA accompanied her for support. Instead, the police treated their visit as the filing of formal reports.2.3 The reports were filed as: i. Case No. K246314-10 [complainant SW] as ‘rape’. ii. Case No. K246336-10 [complainant AA] as ‘molestation’.2.4 At 5pm on 20th August, police related the reports to the on-duty assistant prosecutor over the telephone who ordered that the Appellant should be detained ‘in absentia’2.2.5 A preliminary investigation was commenced and, on 21st August 2010, the case was taken over by the Chief Prosecutor of Stockholm (Eva Finne). At 4pm, having assessed the evidence, she cancelled the arrest warrant against the Appellant; she having made the assessment that the evidence did not disclose any offence of rape (against SW).1 . The Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI. 2003 No. 3333).2 . She also confirmed (in breach of Swedish law) to a popular tabloid, “Expressen”, that the Appellant was wanted for rape. This featured as its headline the next day and was repeated around the world. 3
  4. 4. 2.6 The preliminary investigation continued in respect of: i. Whether the conduct alleged by SW could constitute some lesser offence, ii. Whether the conduct alleged by AA could constitute ‘molestation’.2.7 On 25th August 2010, the Chief Prosecutor determined that: i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed. ii. The preliminary investigation into the conduct alleged by AA would continue (on suspicion of the offence of ‘molestation’).2.8 On 30th August 2010, the Appellant (who had voluntarily remained in Sweden to cooperate with the investigation) attended for police interview in respect of the ongoing Preliminary Investigation in respect of AA’s report. He answered all questions asked of him.2.9 Meanwhile, on 27th August 2010, the complainant’s counsel had appealed the Chief Prosecutor’s decision to a Senior Prosecutor in Goteborg. On 1st September 2010, that prosecutor (Marianne Ny) decided that: i. The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of ‘rape’. ii. The preliminary investigation into K246336-10 [AA] would be expanded to include all the conduct in the complaint.2.10 Afterwards, the Appellant received no word from police or prosecutors and instructed Mr Hurtig, who was in effect the public defender, to act for him. Between 8th – 14th September 2010, the Appellant’s counsel requested that he be interviewed. That request was deferred by the prosecutor.2.11 On 14th September 2010, the Appellant’s counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellant’s counsel that he was free to leave Sweden. She advised him that investigations were ongoing. The Appellant’s counsel asked whether the interrogation could take place in the next few days but was told it could not because the investigator was ill.2.12 On 21st September 2010 (3 weeks after the investigation had been re-opened and 4½ weeks after the allegations had been made) the prosecutor contacted (by text) the Appellant’s counsel to ask whether the Appellant could be made available for an interrogation on 28th September 2010. 4
  5. 5. 2.13 On 27th September 2010, the Appellant’s counsel advised the prosecutor that he had been unable to contact the Appellant3. The prosecutor stated that she would consider how to proceed. Later that day, the prosecutor ordered that the Appellant should be detained ‘in absentia’.2.14 On 30th September 2010, the Appellant’s counsel was advised of the existence of the arrest order. He advised the prosecutor that the Appellant was abroad. The Appellant offered to return to Sweden for interview on Sunday 10th October or on any date in the week commencing 11th October 2010. The Sunday was rejected as inappropriate. The week commencing 11th October 2010 was later rejected as being too far away.2.15 That was probably because police believed that the Appellant was attending a lecture in Stockholm on 6th October 2010. Plans were made to detain him then but that information proved inaccurate.2.16 Therefore, on 8th October 2010, the prosecutor again contacted the Appellant’s counsel to discuss possible appointments for interview. The Appellant’s counsel offered to speak to the Appellant about whether he would be able to attend on 14th October 2010. During the same conversation, the Appellant’s counsel offered a telephone interview4 which was declined (the prosecutor insisting that the Appellant be interviewed in person).2.17 At around the same time, the prosecutor stated that, notwithstanding the extant arrest order, that the Appellant was ‘not a wanted man’ and would be able to attend an interview ‘discreetly’.2.18 On 12th October 2010, the Appellant’s counsel advised the prosecutor that he had been unable to contact the Appellant. The prosecutor indicated her intention to issue an EAW if the Appellant did not attend for interview.2.19 On 2nd November 2010, the Appellant travelled to Switzerland (to lecture the U.N.) and on 10th November 2010 to the United Kingdom.2.20 On 12th November 2010, the Appellant’s counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or videolink interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy5 which were all declined (the prosecutor insisting that the Appellant be interviewed in person in Sweden).3 . Owing to ongoing developments in the United States of America, the Appellant had been keeping a deliberately low public profile and avoiding use of communication devices that could track his location. He had left Sweden for Berlin on 27th September 2010, without knowledge of the issuance of the arrest warrant and in accordance with the permission to leave granted by the prosecutor on 15th September 2010.4 . Telephone interviews with suspects abroad are lawful in Sweden and qualify for the purposes of the Preliminary Investigation.5 . All of which are lawful in Sweden and qualify for the purposes of the Preliminary Investigation. 5
  6. 6. 2.21 The prosecutor decided, without offering reasons, that it was inappropriate to take the same steps under the mutual assistance treaty.2.22 On 18th November 2010, the prosecutor successfully applied to the Stockholm District Court for an arrest warrant in absentia upon the prosecutor’s assertion of reasonable suspicion of the commission of: i. In case No. K246314-10 [complainant SW]; the offence of rape. ii. In case No. K246336-10 [complainant AA]; the offences of unlawful coercion and sexual molestation x 2.2.23 On 22nd November 2010, the Appellant appealed that order and, on 24th November 2010, the order was upheld by the Svea Court of Appeal (albeit that the rape offence concerning complainant SW was reduced to the lesser offence of ‘minor rape’).2.24 On 26th November 2010, an EAW was issued by the prosecutor pursuant to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between member states of the European Union 2002/584/JHA (“the Framework decision”). The EAW was submitted to, and received by, the Serious Organised Crime Agency (“SOCA”); an authority 6 designated by the Secretary of State for the purposes of Part 1 of the 2003 Act . SOCA declined to certify the EAW because it was not a valid Part 1 Warrant (it failed to specify the punishability in respect of each offence).2.25 On 28th November 2010, the Appellant applied to the Supreme Court for permission to appeal the decision of the Svea Court of Appeal. On 2nd December 2010, that application was refused.2.26 On 2nd December 2010, a replacement EAW was issued by the prosecutor and submitted to SOCA.2.27 On 6th December 2010, the EAW was certified by SOCA under s2(7) & (8) of the 2003 Act.6 . The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI 2003 No. 3109) as amended by the Serious Organised Crime & Police Act 2006 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No. 594) 6
  7. 7. 2.28 On 7th December 2010, the Appellant voluntarily surrendered7 himself for arrest by appointment in the United Kingdom and the ‘initial hearing’ was conducted at City of Westminster Magistrates’ Court. He was initially refused bail on 7th December but subsequently was granted bail subject to conditions8.2.29 Following an extradition hearing on 7th, 8th & 11th February 2011 at City of Westminster Magistrates’ Court (sitting at Belmarsh Magistrates’ Court), the Appellant’s extradition was ordered on 24th February 2011 by the Senior District Judge.2.30 Within the applicable time limits, on 1st March 2011, pursuant to section 26 of the 2003 Act, the Appellant appealed against the extradition order on the grounds set out in the Grounds of Appeal and further developed below.7 . Whilst in the UK, and as early as 2nd November 2010, the Appellant had instructed lawyers to write to the Metropolitan Police extradition squad after he heard that the prosecutor might seek an EAW. When it did come, the extradition squad called his lawyers and arranged to arrest him by consent the following day. They took a DNA sample at this time.8 . The Respondent appealed the grant of bail to the High Court; which appeal was rejected with costs by Ouseley J. on 16th December 2010. 7
  8. 8. Submission 13.1 The EAW alleges the following factual conduct: 1. “…Unlawful coercion On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting. 2. Sexual molestation On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge. 3. Sexual molestation On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity, i.e. lying next to her and pressing his naked, erect penis to her body. 4. Rape On 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity….”3.2 The Senior District Judge found that those factual allegations would establish dual criminality for the purposes of section 64 of the 2003 Act; on the basis that lack of consent (and lack of reasonable belief in consent) may properly be inferred9 from the conduct described, particularly the references to ‘violence’ and a ‘design’ to ‘violate sexual integrity’.9 . Pursuant to Balint v Municipal Court in Prague, Czech Republic [2011] EWHC 498 (Admin); R (Kulig) v Regional Court in Tarnow, Poland [2011] EWHC 791 (Admin); Naczmanski v Regional Court in Wloclawek [2010] EWHC 2023 (Admin); Zak v Regional Court of Bydgoszcz Poland [2008] EWHC 470 (Admin). 8
  9. 9. 3.3 However, that description of conduct is not accurate.3.4 The EAW misstates the conduct alleged and is, by that reason alone, an invalid warrant.3.5 Further, properly described, the conduct alleged in the EAW does not establish dual criminality pursuant to section 64 of the 2003 Act.3.6 The Appellant does not (and does not need to) allege bad faith or ulterior motive on the part of the Swedish authorities. So far as the Appellant is concerned, these were genuine attempts to summarise long statements. However, the fact remains that the conduct described in the EAW does not accurately reflect the accounts of the complainants. The established law3.7 In Castillo v The Government of Spain & Anor [2005] 1 WLR 1043, this Court held, at paragraph 25, that; “...the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect of the offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, whereas here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate...”3.8 Applying those principles to the facts of that case, Thomas L.J. proceeded to hold that; “...26. It is clear that in the light of the dossier held by the Court in Spain that the description in the request of the conduct which it is alleged constituted the offences was not a proper, accurate or fair description. 27. It did not make clear that the policeman was in his house and not near the car and that the device was not a timed device but one requiring a fuse to be lit. If the description had made that clear, (as it plainly should have done if the conduct alleged was to have been described properly and fairly), it would in my view have been quite impossible for anyone to conclude that the description could cover the offences under the law of the UK of attempted murder of the police officer or an attempt to cause him grievous bodily harm; a proper description of 9
  10. 10. the device and of the place where the policeman was at the time as taken from the dossier would have shown that there was no basis for charging him with an offence under the law of the UK in respect of an attempt to kill the policeman or an attempt to do grievous bodily harm to the policeman. 28. However, although I have reached that view in relation to those two charges (charges 6 and 7), it seems to me that on, what I consider to be a fair description of the conduct alleged, the description would cover the charge of attempting to cause an explosion likely to endanger life [offence 5]...” ...46. ...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences under the law of the UK of attempted murder of the police officer and attempt to cause serious bodily injury to the police officer cannot be made out. Although the District Judge had determined that the conduct described amounted to the crimes set out in charges 6 and 7, in my judgment that determination cannot stand in the light of the wrong description contained in the request...”3.9 Castillo was a case brought under the European Convention on Extradition 1957 10 (the “ECE”). The ECE had been incorporated into UK law in 1990 .3.10 Under the ECE, the requirement upon a Requesting State to establish a prima facie case had been abolished (Article 3). What existed instead (under Article 12) was an obligation to set out a description of the offence(s) and the conduct alleged to constitute the offence(s) for which extradition was requested; “...It is the obligation of a state making a request under the Convention, in the light of Article 12, to set out a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested. That requirement does not mean that the evidence has to be provided, because Article 3 of the Convention provides the state requesting extradition does not have to provide the courts of the state to which the request is directed with evidence and the court in that state does not have to be satisfied that there is sufficient evidence; as reflected in s 9(4) of the Act and paragraph 3 of the European Convention Extradition Order 2001 there is no requirement of evidential sufficiency. As the House of Lords made clear in re Evans [1994] 1 WLR 1006 at 1013 "The magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial."...” (Castillo (supra) per Thomas L.J. at para. 24).3.11 A request that did not set out a description of the offence, or the conduct constituting the offence, properly, accurately or fairly, was, by definition, one that did not comply with Article 12 ECE. It was, therefore, the obligation to set out a description of the offence and conduct constituting the offence which, the Court held in Castillo, carried with it an obligation to do so properly, accurately and fairly.10 . See SI. 1990 No. 1507; the various amendments to which were consolidated in SI. 2001 No. 962. 10
  11. 11. How the Castillo principles operate under the 2003 Act3.12 The legal requirement for a proper, accurate and fair description of offence and conduct has become, if anything, more concrete under the 2003 Act. 113.13 In 2003, the ECE was superseded in respect of many of its member states , by the Framework decision. The Framework decision has two underlying purposes; it seeks to encourage speedy transfer while ensuring that sufficient safeguards are in place so that fundamental rights are respected (Ballan, Re Judicial Review [2008] NIQB 140 per Kerr L.C.J. at para. 15).3.14 Pursuant to the first purpose, the Framework decision maintained the ECE abrogation of the requirement upon a Requesting State to establish a prima facie case (and introduced further abrogations such as in respect of dual criminality in certain circumstances).3.15 Pursuant to the second purpose, Article 8 of the Framework decision provides mandatory minimum content requirements of an EAW, which include (so far as is relevant to this case); “… The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex: …e. a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person...”3.16 That ‘due process requirement’ (per Kingdom of Spain v Arteaga [2010] NIQB 23 at para. 19) is enacted in the 2003 Act by section 2(4)(c) of the 2003 Act12.3.17 Section 2(4) of the 2003 Act provides, so far as is relevant, that an EAW must contain: “…(4) The information is-… c. particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence …”.11 . The ECE remains the operative extradition treaty with the UK in respect of 19 of its signatories (Albania, Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedona FYR, Moldova, Montenegro, Norway, the Russian Federation, Serbia, Switzerland, Turkey and the Ukraine); the remainder have since become signatories to the Framework decision.12 . The position is the same under Part 2. The particulars of conduct required by section 78(2)(c) are now the same as those required by section 2(4)(c); Dudko v The Government of the Russian Federation [2010] EWHC 1125 (Admin). 11
  12. 12. 3.18 The requirements of section 2(4)(c) of the 2003 Act and of Article 8.1(d) or (e) of the Framework Decision are the same (Arteaga (supra)).3.19 The House of Lords has repeatedly observed that compliance with section 2’s ‘validity’ provisions is a jurisdictional prerequisite of a Part 1 warrant under the 2003 Act. If an EAW does not conform to the requirements set out in section 2 of the 2003 Act, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the 2003 Act will not apply to it (Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL per Lord Hope of Craighead at paras. 28 & 42; Dabas v High Court of Justice, Madrid [2007] 2 AC 31, HL per Lord Hope of Craighead at para. 50; Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325, HL per Lord Hope of Craighead at para. 14)3.20 The burden of proving that the EAW complies with section 2 of the Act is on the Prosecution and the standard of proof is beyond a reasonable doubt (section 206 of the Act; Mitoi v Government of Romania [2006] EWHC 1977 (Admin))13.3.21 The House of Lords has also emphasised the principle of strict compliance with the requirements of section 2 of the 2003 Act; “…The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down…the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute…” (Office of the King’s Prosecutor, Brussels v Cando Armas 14 & another (supra) per Lord Hope of Craighead at paras. 23-24) .3.22 That principle is crucial in respect of territories in respect of which there exists no inquiry into evidential sufficiency. Thus, it is imperative that there be strict compliance with the provisions of the 2003 Act; “…Since Parliament has delegated to the executive the power to include any states it thinks fit - a power it has exercised generously - the need for rigour at this elementary level is far more than merely technical…” (Bentley v The Government of the United States of America [2005] EWHC 1078 (Admin) per Sedley L.J. at para. 17).13 . This was accepted by the District Judge (p 12 – “unless I am sure the warrant is valid, I must discharge”) although he seemed to think that certification by SOCA shifted the burden and placed at least an evidential burden on the appellant to demonstrate that SOCA had made a mistake (p 13).14 . See also Regina (Guisto) v Governor of Brixton Prison and another [2004] 1 AC 101, HL per Lord Hope of Craighead at para. 41; “…it is a fundamental point of principle that any use of the procedures that exist for depriving a person of his liberty must be carefully scrutinised.…the courts must be vigilant to ensure that the extradition procedures are strictly observed…The importance of this principle cannot be over-emphasised…”. 12
  13. 13. Section 2(4)(c)3.23 In basic terms, section 2(4)(c) requires the provision of sufficient particulars of the applicable law and alleged conduct so as to enable the defendant to understand the nature and extent of the allegations against him in relation to the offence, and in order that he may exercise any of the Act’s bars to, or restrictions upon, extradition (Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at para. 7).3.24 An EAW that misstates the conduct alleged, or the applicable legal provisions, is, by definition, one that does not provide sufficient particulars so as to enable the defendant to understand the nature and extent of the allegations against him. Such an EAW is not an EAW that complies with Article 8.1(d) or (e) of the Framework Decision, nor is it a valid part 1 warrant for the purposes of section 2(4)(c) of the 2003 Act. As was the position in Castillo under Article 12 ECE, so it is under the 2003 Act; see The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Other requirements of the 2003 Act3.25 In some case, the particular misstatement will engage other provisions of the 2003 Act. Such was the case in Castillo itself, where, upon the true facts, dual criminality was not made out. Such is also the case here The treatment of Castillo under the 2003 Act3.26 The case law of both England and Scotland has consistently applied the Castillo principles to section 2(4)(c) of the 2003 Act.3.27 In Palar v Court of First Instance Brussels [2005] EWHC 915 (Admin), Laws L.J. held, at paras. 7-8, that; “…7. On the face of it the translation of the warrant which I have read poses some difficulties…It is far from clear to me how it could be said that these facts are capable of constituting conduct which amounts to the extradition offences alleged. It is be noted (albeit in the context of the earlier legislation contained in the Extradition Act 1989) that in Castillo v the Kingdom of Spain and the Government of HM Prison Belmarsh [2004] EWHC (Admin) 1676, Thomas LJ said: "25. However the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect of the offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the 13
  14. 14. Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate." 8. I bear fully in mind that the background to the relevant provisions made in the 2003 Act is an initiative of European law and that the proper administration of those provisions requires that fact to be borne firmly in mind. It goes without saying that the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme. However, it remains the case that the conduct said to constitute the extradition offence in question has to be specified in the 15 warrant (section 2(4((c))…”3.28 In La Torre v Her Majestys Advocate [2006] HCJAC 56, in construing section 2(4)(c) of the 2003 Act, the High Court of Justiciary (per Clerk L.J, Lord McFadden & Lord Nimmo Smith) observed, at para. 92, that; “…[section 2(4)(c)] includes, and expands upon, a transposition of the requirements of article 8(1)(e) of the Framework Decision. We accept that the conduct must be fairly and properly described (R (Castillo) v Spain, per Thomas LJ at 1052, para 25). We accept that that is so as a matter of first principles of fairness, as well as to allow the rule of speciality to be given content (Aronson, per Lord Griffiths at pp 594D and 595D). But we also accept the submission of counsel for the Lord Advocate that one purpose of the 2003 Act was to simplify and streamline procedures for extradition to EU countries, and that a practical, rather than a technical, approach should be adopted to the specification given in the warrant (Welsh and Thrasher, per Laws LJ at para 26). As Lord Hope of Craighead said in Armas (at para 44):"The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities."…” (emphasis added).3.29 This Court recently reviewed this area of the law in The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Sir Anthony May P. held that the requirement for a proper, fair and accurate description of the conduct alleged is a validity requirement of section 2(4)(c) of the 2003 Act:15 . Other applications of Castillo under Part 1 of the 2003 Act include Fofana & Belise v Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin) and Central Examining Court of the National Court of Madrid v City of Westminster Magistrates Court & Anor [2007] EWHC 2059 (Admin). 14
  15. 15. “…56. Authority for the proposition that a European Arrest Warrant does not sufficiently conform with the requirements of section 2 of the 2003 Act is to be found in such House of Lords cases as Dabas and Pilecki, to which I have referred. Castillo tells us that sufficient conformity requires a proper, fair and accurate description of the conduct alleged. I respectfully agree with the Scottish Appeal Court in La Torre that the need to describe the conduct fairly, properly and accurately is a matter of first principles of fairness… 58. The courts task -- jurisdiction, if you like -- is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002... 60. …The question to be asked is whether the description sufficiently conforms with the requirements set out in section 2 by giving proper, accurate and fair particulars of the conduct alleged to constitute the extradition offences…. 64. The 2010 warrant does not, therefore, give particulars of conduct capable of constituting a viable extradition offence, so that it does not contain a description of the conduct alleged which is proper, fair and accurate. It is not proper or fair because it is improper and unfair to seek the extradition of a person upon charges which the courts own document show cannot be proved in their most material particular; that is to say, risk to life. It is not accurate because the lesser charges which could properly be alleged are not those alleged in the warrant...” (emphasis added)3.30 What the court is not permitted to entertain is “a debatable analysis of arguably discrepant evidence”. So, conflicting evidence will not engage this analysis. However, where it is the case that the underlying evidence is available and, taken at its highest, cannot sustain the description afforded to it in the EAW, then this jurisdiction is firmly engaged. Proving misstatement3.31 It has never been the law, even under Part 1 of the 2003 Act, that in the event of a serious fundamental misstatement, going to the heart of an extradition request, the Court is (and should be) impotent to look at ‘extraneous materials’. As a matter of law, the ‘invalidity’ of an EAW can be established by reference to extraneous materials. 15
  16. 16. 3.32 As stated above, the House of Lords had established in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL, per Lord Hope of Craighead at paras. 28 & 42, that section 2 ‘validity’ is a jurisdictional prerequisite of a Part 1 warrant under the 2003 Act. If an EAW does not conform to the requirements set out in section 2 of the 2003 Act, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the 2003 Act will not apply to it.3.33 Extraneous materials are only receivable in proceedings under the 2003 Act by virtue of section 202 of the 2003 Act. An invalid EAW is not one to which the provisions of the 2003 Act (including s202) can apply.3.34 The House of Lords in Dabas (supra) therefore confirmed the necessary implication that, as a matter of law, an ‘invalid’ EAW cannot be cured or saved by reference to extraneous materials; “…I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it….” (Dabas v High Court of Madrid (supra) per Lord Hope of Craighead at para. 50) (emphasis added). 163.35 Lord Hope was not stating a novel proposition . And it is a principle that continues to apply. In Zakowski v Regional Court in Szczecin, Poland [2008] EWHC 1389, Maurice Kay L.J. observed at paras. 3-4 that; “…[counsel for the Polish authority] submits that the passage that proscribes eking out by extraneous information is not part of the ratio in Dabas. However at the very least it is strongly persuasive authority, and no dissent to it is to be found in the other speeches. To my knowledge it has been followed in other cases in this court. I do not feel able to depart from it, nor would I wish to do so…”3.36 Thus, Dabas (supra) establishes that an ‘invalid’ EAW cannot be cured by reference to extraneous materials (because section 202 cannot apply).3.37 However, as this Court held in Murua (supra) the converse is not true. It is not the law that the ‘invalidity’ of EAW cannot be established by reference to extraneous materials.16 . See the following cases to similar effect; all considered by the House of Lords; Dabas v High Court of Madrid [2007] 1 WLR 145, DC per Jack J. at para. 45; Parasiliti-Mollaca v. The Deputy Public Prosecutor of Messina, Italy [2005] EWHC 3262 (Admin) per Hooper L.J. at para. 15; R (Pillar & Pillar) v The Provincial Court at Klagenfurt, Austria [2006] EWHC 1886 (Admin) per May L.J. at paras. 27-28. 16
  17. 17. 3.38 Where an EAW appears ‘valid’ on its face, such that it can properly be described as a Part 1 warrant, unlike in the Dabas situation, section 202 does apply. Evidence may therefore be adduced which demonstrates that an EAW in fact contains errors (and is thus invalid).3.39 The courts are not slavishly bound by the content of an EAW, even in respect of the legal (as opposed to factual) propositions contained within it. For example, on a proper evidential showing, a defendant who is subject to an ‘accusation’ EAW is plainly permitted to be heard to say “...in fact I have been convicted of this offence, and that EAW is therefore not valid...”. See, for example, Caldarelli v Court of Naples [2008] 1 WLR 1724, HL. “…Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer…”3.40 Thus it is that there exist numerous examples of the courts receiving and considering evidence which may demonstrate that an EAW in fact contains errors (and is thus invalid). See, for example, Michalak v The Circuit Court, Second Criminal Division in Olsztyn, Poland [2010] EWHC 2150 (Admin).3.41 As the court has repeatedly held, whether a given error has the effect of rendering an EAW invalid will be matter of degree. Minor errors do not affect validity. However, significant errors can. See, for example, Nowak v District court in Koszalin Poland [2009] EWHC 3519 (Admin) and Aryantash v Tribunal De Grand Instance, Lille, France [2008] EWHC 2115 (Admin) and Banasinski v District Court of Sanok [2008] EWHC 3626. Bad faith not necessary3.42 The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin) further confirms (at para. 59) that cases of misstatement are not necessarily to be categorised as allegations of bad faith and/or abuse of process17.17 . Pursuant to Bermingham & others v Director of the SFO and others [2007] QB 727 and R (The Government of the United States of America) v The Senior District Judge, Bow Street Magistrates Court & Ors [2007] 1 WLR 1157. 17
  18. 18. 3.43 Of course, a misstatement may also carry such an implication. But it is not legally necessary. That is because Castillo itself is express authority to the effect that the 18 principles of misstatement apply independently from those of abuse of process and are applicable regardless of the motivation behind the misstatement.3.44 Having registered (at paragraphs 26-28), the factual conclusion that the description of conduct in the request was not a proper, accurate or fair description, the High Court in Castillo went on to consider (at paragraphs 31-45) whether the misstatement had been the result of bad faith. Thomas L.J. concluded that; “...43. In my view, even giving the subsection a generous construction as suggested in Osman, I do not consider that it can be said the accusation was not made in good faith. I have no doubt that those framing the description of the conduct alleged against the applicant for the purposes did not have proper regard to the requirements of Article 12. That is most regrettable as, given the fact there is no enquiry into evidential sufficiency, it is of the utmost importance that the description of the conduct alleged is framed with the greatest care; it is an essential protection to the person whose extradition is sought. It is to be expected that the description will be framed with very considerable care and expressed in terms in which it can be easily understood by the court in the state to which the request is addressed. 44. But although there was a lack of care on the part of those framing the request, I do not consider that it can be inferred that those responsible were deliberately exaggerating the position or otherwise failing to act in good faith when drafting the description of the conduct in the request. Indeed, their subsequent behaviour is wholly inconsistent with a lack of good faith. It is important to note that they made the Court dossier available to the applicants lawyer in Spain and have produced it to this Court; they have been entirely open. There is nothing to suggest that in continuing to maintain their position in the light of the new materials which the Spanish authorities themselves made available that they have acted other than in accordance with the advice of the CPS and counsel. 46. I am therefore unable to conclude in respect of charges 6 and 7 that there was a lack of good faith...”.3.45 Nonetheless, Thomas L.J. went on to conclude, at para. 46, that; “...46. ...as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences under the law of the UK of attempted murder of the police officer and attempt to cause serious bodily injury to the police officer cannot be made out. Although the District Judge had determined that the conduct described amounted to the crimes set out in charges 6 and 7, in my judgment that determination cannot stand in the light of the wrong description contained in the request...”18 . Well established by then by the decision in R (Kashamu) v Governor of Brixton Prison [2002] QB 887, DC. 18
  19. 19. 3.46 A defendant would only need to rely upon the principles of abuse of process or bad faith if the misstatement was not sufficiently important to the integrity of the extradition request. That is absolutely correct as a matter of principle;  Serious fundamental misstatement, going to the heart of an extradition request, should be actionable regardless of its motivation. Neither the provisions of section 2 of the 2003 Act, nor Article 8 of the Framework decision, are dependent upon findings of bad faith.  Conversely, minor immaterial errors, not going to the heart of an extradition request (such as, for example, the misstatement of immaterial dates in the EAW) should not be fatal of themselves. In such cases, it should only be in cases where the defendant is able to additionally establish bad faith that the Court should be able to act. Offence 1 (unlawful coercion – AA)3.47 The EAW avers that: “…On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting...”3.48 Whereas, the defence have been able to gain access to the Swedish court dossier19. Examination of that dossier reveals that an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  AA worked as a press and political secretary of the Swedish Association of Christian Social Democrats. As such, she helped to organise the seminar on 14th August 2010 at which the Appellant was invited to speak;  She offered her apartment for the Appellant to stay in from 11th-14th August when she was away, however she returned, early, on Friday 13th August. She had never met the Appellant before. They went out for dinner. They agreed that the Appellant would remain at AA’s apartment even though she had returned one day early;  They had sex on that first evening, 13th / 14th August. The Appellant’s physical advances were initially welcomed but then it felt awkward since he was “rough and impatient”;19 . Exhibit JR/4 to the witness statement of Jennifer Robinson. 19
  20. 20.  “... they lay down in bed. [AA] was lying on her back and Assange was on top of her…”;  “…[AA] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom…”. She did not articulate this. Instead “…she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration…”;  “…[AA] tried several times to reach for a condom which Assange had stopped her from doing by holding her arms and bending her legs open and try to penetrate her with his penis without a condom. [AA] says that she felt about to cry since she was held down and could not reach a condom and felt that ‘this could end badly’. When asked [AA] replied that Assange must have known it was a condom Anna was reaching for and that he held her arms to stop her…”;  After a while Assange asked what [AA] was doing and why she was squeezing her legs together. [AA] told him that she wanted him to put on a condom before he entered her. Assange let go of [AA’s] arms and put on a condom which Anna found for him…” (emphasis added). Invalidity3.49 Thus, the summary contained within the EAW (“by using violence, forced the injured party to endure his restricting her freedom of movement”) is not accurate. Accurately described, the Appellant held AA during consensual sexual foreplay and, when actually asked to put on a condom, did so.3.50 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin).3.51 Murua and Castillo were clearly relied on in the Appellant’s oral and written submissions, and cited to the District Judge and supplied in the authorities bundle, yet the learned District Judge nowhere referred to Murua or Castillo in his Judgment, nor to the argument that the EAW did not contain a proper, fair and accurate description of the alleged conduct. In fact, the learned District Judge held that it was “unnecessary” to consider this “extraneous material”. In so ruling, the learned District Judge plainly erred in law (and consequently also in fact). 20
  21. 21. 3.52 When the allegations as set out in the Swedish court dossier, which constitute the Prosecution case, are examined, it is clear that the allegations in the EAW are not a “proper, fair and accurate description of the conduct alleged”. Section 643.53 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Section 64(3) of the 2003 Act provides that: “...(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)...”3.54 As the House of Lords laid down in Norris v. Government of the USA and others [2009] AC 920, HL, the “conduct test” for double criminality should be applied consistently throughout the 2003 Act. The conduct relevant under Part 1 of the Act is that described in the EAW and extraneous materials, ignoring mere narrative background but taking account of such allegations as are relevant to the description of the corresponding UK offence. The burden of proof is on the Prosecution to prove that the offences are extradition offences beyond a reasonable doubt (section 206 of the Act and Hertel v Government of Canada [2010] EWHC 2305 (Admin)).3.55 The High Court has shown itself to be rigorous in the application of the double criminality test (see, for example, Hertel v Government of Canada (supra); Elbeyati v Federation of Bosnia and Herzegovina [2011] EWHC 625 (Admin); Hoholm v Government of Norway [2009] EWHC 1513 (Admin)).3.56 “Rough and impatient” but consensual sexual foreplay does not constitute an offence pursuant to the Sexual Offences Act 2003.3.57 An offence contrary to section 3 of the Sexual Offences Act 2003 (see generally Archbold 22-24) is committed when A intentionally touches B in a sexual manner and: i. B does not consent, and ii. A does not reasonably (having regard to all the circumstances) believe that B consents. 21
  22. 22. 3.58 There is no allegation in the EAW either that AA refused consent or that the Appellant did not reasonably believe that she had consented. That is because the Swedish court dossier shows that AA told the police that she had consented to sexual intercourse. The description in the Swedish dossier does not permit the inference that the Appellant had a subjective intention to have sex irrespective of AA’s consent. On the contrary, even though she never articulated anything orally, when he realised that she was physically resisting, he “…asked what [AA] was doing and why she was squeezing her legs together. [AA] told him that she wanted him to put on a condom before he entered her. Assange let go of [AA’s] arms and put on a condom which Anna found for him…”. The Swedish dossier demonstrates compliance with AA’s wish for a condom to be used as soon as that wish was articulated.3.59 They agreed to have sex. AA did not mention her wish that the Appellant should wear a condom; he “roughly and impatiently” sought to penetrate her without one and she squeezed her legs together and tried to reach for one. He then asked her what she was doing and she said she wanted him to wear a condom. At that point he put one on. There is no allegation, then, of “violence”, of the kind required by section 75 of the Sexual Offences Act 2003, deducible or inferable from this material. Offence 2 (sexual molestation – AA)3.60 The EAW avers that: “…On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge...”3.61 Whereas, an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  During the same consensual sexual encounter mentioned above;  “…[AA] felt a strong sense of unexpressed resistance on Assange’s part against using a condom which made her feel that he did not in fact put on the condom he had been given. She therefore felt with her hand to check that Assange had really put it on. She felt that the edge of the condom was in the right place on the root of Assange’s penis…”; 22
  23. 23.  “…[AA] and Assange continued to have sex and [AA] says that she thought she ‘just wanted to get it over with’…”;  “…After a while [AA] noticed that Assange pulled out of her and started to arrange the condom. Judging by the sound [AA] thought Assange was removing the condom. He then penetrated her again and continued the intercourse. [AA] again felt with her hand that the edge of the condom was, as previously, around the root of the penis which is why she let him continue….”;  “…A while later Assange ejaculated inside her and pulled out. When Assange removed the condom from his penis [AA] saw it was empty of semen. When [AA] later started to move her body, she noticed something was ‘seeping’ out of her vagina. [AA] understood rather quickly that it must be Assange’s sperm….”;  “…She mentioned this to Assange, who denied it and replied that she was wet…”;  “…[AA] is convinced that Assange, when he pulled out of her the first time, broke the condom by the glans and then continued the intercourse with the subsequent ejaculation…”;  When asked, [AA] replied that she did not take a closer look at the condom, whether it was broken in the manner she believes but that she believes she still has the condom at home and will examine this…”.3.62 The true allegation underlying offence two is therefore that AA believes that the Appellant deliberately tore the condom he was wearing during consensual sex. Given that the allegation is founded solely upon AA’s subjective perception of these events, a fair factual summary might also therefore have made mention of the facts that:  AA permitted the Appellant to stay at AA’s apartment until Friday 20 August 2010.  AA threw a crayfish party at her apartment in the Appellant’s honour on the night of Saturday 14th August, which is the day after the alleged sexual assaults referred to in offences 1 and 2 above.  During the course of that party, she posted an online tweet reading “…sitting outdoors at 02.00 and hardly freezing with the world’s coolest smartest people, it’s amazing…” 23
  24. 24. 3.63 This is, of course, the sole offence that survived the examination of the Chief Prosecutor (and in respect of which the Appellant was interviewed on 30th August and answered all questions).3.64 However, a fair proper and accurate of this conduct would unquestionably have made mention of the subsequent laboratory’s conclusion, upon its examination of the condom in question, that the damage to the condom was not caused deliberately but was rather caused by “...wear and tear...” Invalidity3.65 Thus, again the summary contained within the EAW (“deliberately molested...acting in a manner designed to violate her sexual integrity...consummated unprotected sexual intercourse with her without her knowledge”) is not accurate. Accurately described, the Appellant used a condom as requested which, it seems, split.3.66 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). Section 643.67 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Consensual sex in which a condom splits does not constitute an offence pursuant to the Sexual Offences Act 2003.3.68 However, for the avoidance of doubt, even if there existed a rational or reasonable basis to allege that the condom was deliberately split, the allegation nonetheless does not amount to an offence in consent-based English law. It does not engage the “presumed non-consent” provision of Section 76(2)(a) of the Sexual Offences Act 2003 because there is no allegation or available inference that he deceived her “as to the nature and purpose of the relevant act” because the relevant act is that of sexual intercourse: R v B [2007] 1 WLR 1567, CA. The District Judge therefore erred in his decision on this issue by entirely overlooking the effect of the case of R v B, although it had been cited to him; 24
  25. 25. “...The obvious and straightforward way of reading that allegation [allegation 2] is that the complainant had made it clear that she would not consent to unprotected sex, and yet it occurred without her knowledge and therefore without her consent. Mr. Assange was aware of this. Unprotected sex is wholly different from protected sex in that its potential repercussions are not confined to disease and include pregnancy. Again this meets the criteria for section 64(3) set out above. In addition the terms ‘molested’ and ‘violated’ are inconsistent with consent…” (Judgment, page 23, emphasis added)3.69 Section 76(2)(a) of the SOA 2003 conclusively presumes a lack of consent where “...the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act...” This is a restrictive provision, confined to cases where the deception concerns “nature and purpose.” AA was not deceived as to the “nature and purpose” of the sexual act, namely an act of sexual intercourse.3.70 As the Court of Appeal held in R v B, if the complainant agrees to the act of intercourse, this constitutes consent for the purpose of the SOA 2003 even if she would not have consented, had she known all of the facts. Offence 3 (sexual molestation – AA)3.71 The EAW avers that: “…On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity, i.e. lying next to her and pressing his naked, erect penis to her body...”3.72 Obviously, context is essential in an allegation of this nature. If a stranger climbs through the victim’s bedroom window and presses his naked, erect penis to the victim’s body, an offence has plainly been committed. If, on the other hand, a husband tries to interest his spouse in sexual intercourse by that overture, even if the overture turns out not to be welcome at that particular moment, then clearly there can be no suggestion of a criminal offence having been committed, any more than if the spouse had pressed her naked body to her husband’s on an occasion when he turned out not to be interested in sex.3.73 In fact, an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:  “…According to [AA], Assange tried to make sexual advances towards her every day after that evening when they had sex. For example, he touched her breasts. [AA] had rejected Assange on all these occasions which Assange had accepted…” 25
  26. 26.  “…On one occasion, Wednesday 18 August, he suddenly took all his clothes off on the lower part of his body and rubbed it and his erected penis against [AA]. [AA] says she felt it was very strange behaviour and awkward and had therefore moved to a mattress on the floor where she slept instead of in the bed with Assange…”.3.74 That is to say that AA had continued to share a (single) bed with the Appellant for days after the events mentioned in offences 1 and 2 above, and that this incident (offence 3) occurred whilst they were voluntarily sharing a single bed together. It is worthy of note that this conduct was never classified as criminal by the Chief Prosecutor.3.75 There is no suggestion whatsoever, in this account, that the Appellant did not accept being rejected sexually by AA, as he had done “on all these occasions”. AA herself merely regarded it as “very strange behaviour and awkward”, requiring her simply to move to a mattress on the floor rather than to call in the police. Invalidity3.76 The summary contained within the EAW (“deliberately molested...acting in a manner designed to violate her sexual integrity... lying next to her and pressing his naked, erect penis to her body”) is not accurate. Accurately described, the Appellant pressed his naked body against AA whilst they were voluntarily sharing a single bed.3.77 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence that is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin).3.78 To present this, therefore, as an instance of “sexual molestation” and to describe it without any reference to the important detail in AA’s statement that this was basically just “strange” and “awkward” behaviour is to fall foul of the principle that the EAW should provide a “proper, fair and accurate description of the conduct alleged”. 26
  27. 27. Section 643.79 Further or alternatively, accurately described, the conduct would also not establish dual criminality pursuant to section 64(3) of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043. Bodily contact whilst consensually sharing a single bed does not constitute an offence pursuant to the Sexual Offences Act 2003. Offence 4 (minor rape – SW)3.80 The EAW avers that: “...on 17 August 2010, in the home of the injured party [SW] in Enköping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity…”3.81 Whereas, an accurate summary of the conduct alleged by SW in her interview on 20th August 2010 would have been that:  SW became captivated by the Appellant when she saw a television interview with him;  She later discovered that he had been invited to Sweden to give a talk organised by the Swedish Association of Christian Social Democrats. She found out from an advertisement where and when the talk would be held and went along on Saturday 14th August 2010.  She attended the talk and helped by buying a computer cable for the Appellant. She then attended an intimate lunch attended by the Appellant and the journalists who had organised the talk. She was flattered that the Appellant flirted with her at the lunch.  After the lunch, she, the Appellant and one other person went for a walk. She invited the Appellant to see the Swedish Museum of Natural History, where she worked. She bought a train ticket for him. They went alone to the Museum and went to see a film at the Cosmonova cinema. They started kissing and fondling in the cinema.  They went for a walk afterwards and agreed to meet after the crayfish party being thrown by AA in the Appellant’s honour that evening (see above paragraph 3.62). They did not meet because SW had stomach pains due to a sandwich that she had eaten. 27
  28. 28.  The Appellant did not contact her on the Sunday (15th August). On Monday 16 August 2010 she was urged by her friends to make a play for him; “…the ball is in your court…”. SW phoned the Appellant and they met that evening. They decided to go to her house She paid for their train tickets to Enköping (where SW lived). “…She had suggested that they should check into a hotel but he had said he wanted to see ‘girls in natural habitat’…”. They went to SW’s house. Although he was at first uninterested, and fell asleep snoring – while SW text-messaged her friends – they later woke up and, during the evening of 16th August 2010, the Appellant and SW had consensual sex and fell asleep. In the morning, they woke up and had sex again. SW then went out to get him breakfast and then they had sex for a third time; “...they were sitting in bed talking and he took her clothes off again. They had sex again and she suddenly discovered that he had put the condom only on the glans of the penis but she let it be…”. They fell asleep again. “…She was woken by his (4th) penetration of her. She immediately asked: ‘Are you wearing anything?’ and he answered ‘You’. She told him ‘You better don’t have HIV’ and he answered ‘Of course not’. She felt it was too late. He was already inside her and she let him continue. She didn’t have the energy to tell him one more time. She had been nagging him all night…” “…SW has never had unprotected sex. He said he wanted to come inside her, he didn’t say when he did it, but he did it. A lot of liquid seeped out of her afterwards…” Afterwards SW initiated jokes about the prospect of her being pregnant. She told him ‘what [if] I get pregnant?’ He answered ‘Sweden was a good country to have kids in’. She said that he would have to pay her student loans. They joked about what they would call the child. She asked whether he would call her and he said he would. 28
  29. 29. 3.82 A fair and accurate summary of the conduct would also have included reference to text messages (shown to the Appellant’s counsel but not copied to him) and evidence20 in which SW states that she was “half asleep” when the sex began, which of course also means “half awake” or sleepy. SW was re-interviewed concerning these and confirmed that “…she wasn’t fast asleep but wasn’t awake either…”. Invalidity3.83 The summary contained within the EAW (“deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”) is not accurate. Accurately described, in the context of repeated acts of consensual sexual intercourse, the Appellant penetrated SW whilst she was ‘half-asleep”, which penetration was met by consent on the part of SW.3.84 The EAW does not contain a description of the conduct alleged to constitute the alleged extradition offence which is fair, proper and accurate. It is therefore an invalid EAW pursuant to section 2(4)(c) of the 2003 Act; The Criminal Court at the National High Court, 1st Division (A Spanish judicial Authority) v Murua [2010] EWHC 2609 (Admin). The requirement for a clear description of the facts is crucial in Framework List cases where the requirement to establish dual criminality is abrogated (Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53 per Denham J. at para. 21). Section 643.85 Further or alternatively, accurately described, the offence would also not satisfy the requirements of section 64 of the 2003 Act: Castillo v The Kingdom of Spain [2005] 1 WLR 1043.3.86 It is surprising, to say the very least, in the context of repeated acts of consensual sexual intercourse, penetration commenced whilst the partner was ‘half-asleep”, which penetration was met by consent, should be said to amount to rape.3.87 Of course, offence 4 is certified as a Framework List offences. Section 64(2) of the 2003 Act provides that:20 . See evidence of Katerina Sonja Christina Svensson. 29
  30. 30. “...(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment...”213.88 It is settled law that, even in Framework list cases, conduct reasonably capable of constituting the extradition offence specified must be described in the Part 1 Warrant (Palar (Gheorghe) v Court of First Instance of Brussels [2005] EWHC 915 (Admin) per Laws L.J. at paras. 7-11). Where boxes are ticked the offence must nonetheless at least be recognisable as “rape” as that term is used in the language and law of European countries. The fact that these Framework List offences do not require a dual criminality check does not remove the court’s responsibility to satisfy itself that the conduct described in the warrant can reasonably qualify as a list offence.3.89 So, regardless of the breadth of consensual sexual conduct that Sweden terms ‘rape’ or ‘minor rape’22, conduct reasonably capable of constituting the Framework21 . In Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, HL, para. 5, Lord Bingham stated that “[u]nderlying the [framework] list is an unstated assumption that offences of this character will feature in the criminal codes of all Member States”22 . Sweden’s definition of rape as sex with a person in a “helpless state”, without a requirement that force was used or consent withheld, is in fact highly atypical of European states’ laws. Sweden’s Criminal Code, Chapter 6, Section 1 is not defined on the basis of a lack-of-consent by the victim. The word “consent” and indeed the concept of consent are not included in Swedish sexual offence law at all. Broadly speaking, the defining feature of these crimes is the escalating amount of violence, coercion, or threat that is used, except for one clause, known as “minor rape”, which is the one exclusively relied on in the EAW, which defines rape as a sexual act with a person who is in a “helpless state”. There appears to be no mens rea for this offence: once penetration and helplessness are proved it would be a factual decision for the court as to whether these had been “improper exploitation”. The elements of this crime do not correspond to what is generally defined as “rape” in national laws, the jurisprudence of the European Court of Human Rights or international law, all of which rely on the use or threat of force or a lack of consent by victims to define the criminality of the conduct. See, e,g,, the recently published study funded by the European Commission shows, Different systems, similar outcomes? Tracking attrition in reported rape cases across Europe. Jo Lovett & Liz Kelly. 2009. (London: CWASU, 2009, funded by the European Commission). Other European countries define rape as requiring either the threat or use of force or lack of consent by the victim (or both, but not neither). The European Court of Human Rights stated in M.C. v. Bulgaria (2005) 40 EHRR 20, that, in most European countries influenced by the continental legal tradition, the definition of rape contains references to the use of violence or threats of violence by the perpetrator. It noted however that there is “a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” (para. 163) and that investigations into rape in countries that are part of the Council of Europe, as well as the “conclusions” of such investigations, “must be centred on the issue of non- consent” (para 181). The Court held that although States that are members of the Council of Europe have a “wide margin of appreciation” in enacting rape laws, they are nonetheless limited 30
  31. 31. List offence of ‘rape’ as understood in this country must nonetheless be described in the Part 1 Warrant.3.90 The Palar approach is one that is: i. Echoed in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) at paras. 50-54 ii. Followed in Northern Ireland; see Kingdom of Spain v Arteaga [2010] NIQB 23. iii. Reflected in the case law of the Republic of Ireland; see The Minister for Justice Equality and Law Reform v Tighe [2010] IESC 61. iv. Adopted in the Netherlands; District Court of Amsterdam 26 October 2010, LJN BO7884. Where there is a manifest discrepancy between the factual and legal description of the offence in the EAW and the ticked box, the Court will hold that the issuing judicial authority could not reasonably have designated the offence as a Framework List offence. For example, in District Court of Amsterdam 7 July 2006, LJN AY2623 the issuing judicial authority could not reasonably designate the offence of using drugs as the Framework List offence “illicit trafficking in narcotic drugs and psychotropic substances”. Using drugs does not equate with trafficking in drugs. Therefore, in the Netherlands, if the District Court finds that the issuing judicial authority has wrongly ticked the box of a Framework List offence, the Court will go on to verify the double criminality of the offence as described in the EAW. by the requirements of the European Convention, as interpreted by the Court. Some Council of Europe countries that do recognise the “helpless state” of the victim as an element of rape do so only where this is combined with either proof that force was used or threatened or that the lack of consent can be demonstrated. Other European countries require that the defendant himself put the victim into the helpless state in order for criminal sanctions to attach. See M.C. v. Bulgaria (supra) paras. 74, 79 and 102. The ECHR also noted that international criminal law definitions of rape, like those of national or regional systems, rely on either force or lack-of-consent as the basis of criminalisation. This, in the ECtHR’s view, “also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” (para. 163). As summarised in a leading manual on international criminal law (Robert Cryer et al, An Introduction to International Criminal Law and Procedure, 2nd Ed, 2010, p. 255) “…the crime of rape [under international law] has two components. The first is a physical invasion of a sexual nature. The second component is, according to some authorities, the presence of coercive circumstances, or according to other authorities, the absence of consent…”. In Prosecutor v Kunarac, IT-96-23&23- 1, para. 460 (approved on appeal, Prosecutor v. Kunarac, Case No. IT-96-23/1, AC (12 June 2002), para. 128) the ICTY reviewed the law of various legal systems and concluded that the correct common-denominator element was lack of consent of the victim, and that the same should be recognised under international law. In its words, “the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim ... The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim…”. 31
  32. 32. 3.91 In the context of repeated acts of consensual sexual intercourse, penetration commenced whilst the partner was ‘half-asleep”, which penetration was met by consent, is: i. Not conduct reasonably capable of constituting the Framework List offence of ‘rape’ as understood in this country (such that section 64(2) may not be relied upon), and ii. Not conduct constituting the offence of ‘rape’ as understood in this country (such that section 64(3) may not be relied upon).3.92 In fact, it is worthy of note that, even if (for the sake of argument) the description of the conduct had been fair an accurate, and the Appellant had “deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”, that would nonetheless still not disclose conduct reasonably capable of constituting the Framework List offence of rape in any event. The fact (if it was so) that the complainant was asleep means that she is taken not to have consented ‘unless sufficient evidence is adduced to raise an issue’ as to whether she consented: section 75(1) of the 2003 Act. The facts of this case would remove the operation of section 75; stemming from several previous acts of intimacy. SW stated that they had sex several times that night, that on a previous occasion she noticed that he had not worn the condom properly but ‘she let it be’; and that when she awoke to find his penis inside her vagina, she decided to let him continue even though she knew he was not wearing a condom.3.93 One of the reasons why Parliament enacted that the presumption in section 75(2)(d) is rebuttable (rather than placing it in the category of irrebuttable presumptions, set out in section 76 of the Act) was to preserve the possibility of cases where consent was reasonably presumed as a result of previous sexual relations. For instance, if a wife had made it clear that she enjoyed the sensation of waking up with her husband penetrating her, it would surely be entirely reasonable for the husband to proceed on this basis. If the presumption were irrebuttable, however, the husband would commit the offence of rape simply because consent was not given on the particular occasion. It should be added that this appears also to have been the position at common law; in Page (1846) 2 Cox CC 133, at p. 134, Coleridge J held that there was no lack of consent when the defendant penetrated the complainant whilst she was asleep, since he had done so on several previous occasions and she had always acquiesced as she was waking. On this occasion she pushed him away on waking, when she saw that a woman was watching them, but that did not convert the offence into rape.3.94 Moreover, the effect of having intercourse without the use of a condom does not affect the analysis. As detailed above at paragraph 3.68-3.70, applying R v B, this does not affect the complainant’s consent to sex, since there is no deception as to the ‘nature and purpose’ of what is being done. 32

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