Lawcast 219: Carl Gardner on the Assange asylum issues
Today I am talking to Carl Gardner, ex government lawyer and author of The Head of Legal blog, about the Assange Asylum issue. Before we look at the practical legality of the United Kingdom government’s threats to Ecuador warning them about The Diplomatic and Consular Premises Act 1987 – I want to put a few myths to bed by stating the legal position rather than some of the more bizarre and irrational concepts / constructs used by commentators and commenters in the press and on twitter
1. The European Arrest warrant
What is it? – was it correctly applied? – is it valid?
European Arrest Warrant
2. The United Kingdom Supreme Court judgment authorising Assange’s extradition to Sweden
Carl Gardner: Lord Kerr on the Assange case
Carl Gardner: Supreme Court judgment: Assange v Swedish Judicial Authority
Carl Gardner: Could Assange apply to set aside the Supreme Court judgment?
Carl Gardner: The Julian Assange ruling in full
Carl Gardner: Extradition proceedings against Julian Assange
Carl Gardner: Where does Julian Assange go from here
Carl Gardner: Julian Assange can get out of this?
Without Prejudice
podcast on the UK Supreme Court judgment
Charon: Podcast with Mark Stephens, Assange’s lawyer in 2010
Still relevant for context and history of Assange applications.
3. Swedish rape would not be rape in England.
The High Court ruled that “It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and he could not have had any reasonable belief that she did.”
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assange-summary.pdf
4. Sweden is a lickspittle legal system.
No – It is a sovereign state, bound by the European Convention and International law
5. But Assange hasn’t been charged.
In Sweden arrest is the first stage in the process followed by questioning. Charges are usually laid shortly before the trial.
6. Can Sweden extradite Assange to USA?
Not without UK permission (Home Secretary) S 58 Extradition Act / Article 28 Framework Decision
Neither Sweden or UK will extradite to USA where an individual will face the death penalty. This is covered by The European Convention on Human Rights in the protocols
Has Assange actually broken any US laws: US lawyers consulted think not.
7. The legality of UK Govt Threat to invoke The Diplomatic and Consular Premises Act 1987
The Diplomatic and Consular Premises Act 1987
Carl Gardner: Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy?
8. Is Britain bound to give safe passage?
No – ‘diplomatic asylum’ is not recognised by Britain – although some countries do recognise it. The concept is not recognised by International law – a matter of state derogation according to ICJ
9. Can Assange take UK to International Court of Justice?
No. He is not a state. Individuals are excluded from suit. Ecuador can and has indicated preparedness to do so
10. Will Ecuador win?
Yes (possibly) if arrest inside embassy or 1987 Act invoked. No – if Assange arrested on British soil.
Useful materials:
The Independent – Owen Jones: There should be no immunity for Julian Assange from these allegations.
Ecuador is wrong to describe the accusations against the WikiLeaks founder as ‘laughable’
The Blog That Peter Wrote: Assange Cultism
The Blog That Peter Wrote: Assange
Charles Crawford: Assange, Asylum and Immunity
Embassies have replaced churches as the setting for confrontations between rival legal orders and concepts of fairness. Assange is in a different world, writes a former UK ambassador
Assange case: a quick reference of legal issues for journalists (with sources)
Extradition of Assange to the US via Sweden for espionage
Dr Mark Klamberg, LL.D. Lecturer public international law, Stockholm University.
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Listen to the podcast (46 Mins)
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I’d like to thank Lawtel, Westlaw, Cassons For Counsel, City University Law School, David Phillips & Partners Solicitors, Inksters Solicitors, Iken, LBC Wise Counsel, Carrs Solicitors, JMW Solicitors – Manchester, Pannone, BPP Law School, Brecher Solicitors and Cellmark for sponsoring the the free student materials on Insite Law – appreciated.
Charon QC 
Ah, but what if Assagne was placed in a “diplomatic bag”. Remember the Dikko Affair where it appears it only failed because the container in question wasn’t properly marked as a diplomatic bag and UK customs were able to break into it without breaking the Vienna Convention?
http://en.wikipedia.org/wiki/Dikko_Affair
Diplomatic bag has to contain diplomatic goods/documents… not protected if human being inside – I am advised!
Is this a joke? Sweden has previously allowed the CIA to kidnap its citizens to Guantanamo Bay.
Also a myth: that embassies are “foreign soil.” (They aren’t.)
[…] afternoon I spoke to Charon QC about Ecuador’s decision to grant asylum to Julian […]
How, quite, can our Home Sec. stop Sweden extraditing Assange to USA if he is NOT facing DP? Or is it a legal given that after being dealt with by Swedish Courts he should be returned to the country he was last in – ie UK?
2nd question: How confident can he be, if at all, in view of the ‘history’ of extreme rendition behaviours of both UK and Sweden in the past?
Thirdly, what number is the podcast with a US lawyer on this subject??
I listened to the earlier pod cast on Assange issues first today!
Miranda
1. s 58 Extradition act covers extradition to US by Sweden without our consent – EAW issue.
I shall try and find the podcast for you – seems not to have been picked up by WordPress search – probably because I failed to tag post.
Not a fan of Assange either, and I think he should answer the allegations.
But let’s not be too cavalier – there are 168 people in Guantanamo Bay who are in practice serving life imprisonment without charge at executive discretion. So little details like the law don;t really seem to concern the US government that much.
It is pretty trite that Sweden will not intentionally extradite someone into either that position, or so as to face the death penalty. But presumably the least-possible-crazy interpretation of the fear is that Sweden’s courts will be easier to hoodwink with a guarantee that will not be kept, while ours might ask more questions. I’m not saying I agree that is the case, but it’s a plausible position.
The claim as anyone following the debate would know is not that Assange will be extradited from Sweden but that he will be “lent” to the USA under a bilateral arrangement called “temporary surrender”.
This arrangement doesn’t have the safeguards built into it that would be there if the extradition law was used. It means that Sweden would surrender him to be charged in the US before his case was processed in Sweden.
Re: point 3. The charge was that Assange penetrated the woman when she was only half awake, they had had consensual sex that night twice before and she continued with the sex without objection when she awoke.
I’m not sure how far that would get in Britain as a charge of rape. Her main concern afterwards was that the sex had been unprotected and she tried to get an HIV test at a police station.
Saw a conversation on Twitter regarding what crime Assange may be charged with in the US and wanted to put forwards one possibility. Putting on a tinfoil hat for a moment…
One of the crimes that Bradley Manning is charged with is the Computer Fraud and Abuse Act (18 U.S.C. § 1030). This law was amended by the Patriot Act to be included under the RICO Act. RICO is an anti-organised crime law that allows the leaders of organisations to be charged with crimes that they ordered others in their organisation to commit.
It’s not the easiest path, but if Manning were found guilty of the two charges under the CFAA a case could be brought against Assange by treating Wikileaks as effectively an organised crime syndicate.
This does seem extremely unlikely to me, but still the only legal charge that has anything approaching existence in the US legal system (in that Manning is actually charged with RICO qualifying crimes).
Ray, the ‘temporary surrender” of the Sweden US extradition treaty does indeed have plenty of protections as far as I’m aware.
here is the relevant clause from the 1984 supplement to the treaty
Click to access us-sweden-extradition-supplementary-treaty-35-ust-2501.pdf
“Article VI
If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:
(a) defer the surrender of the person sought until the conclusion of the proceedings against that
person, or the full execution of any punishment that may be or may have been imposed; or
(b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement [*7] of the
Contracting States.”
Note the first word “if” in the first sentence “If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:”
That means extradition to the US must be granted first before Sweden can temporarily surrender Assange. Extradition must be approved by the Swedish Supreme court, the UK Home sec & legal system, and also the European court of Human rights to be ‘granted’.
The claims of JA and his lawyers on this are pretty much baseless, like much of their assertions. He is not liable to be whisked away to US as soon as he gets to Sweden.
He will have full access to all the relevant courts to appeal any such move.
That’s from what I’ve read in the relavent treaties, feel free to correct me if I’m wrong anyone.
and Ray the High court found that the offences as described would indeed be classed as rape in the UK. This has been known since the Feb 2011 magistrates hearing and confirmed in Nov 2011 by the High Court:
“… even if the court was constrained to determine whether someone was an accused by solely considering the question of whether the prosecution had commenced, we would not find it difficult to hold that looking at what has taken place in Sweden that the prosecution had commenced. Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed in this way, it would be to look at Swedish procedure through the narrowest of eyes. On this basis, criminal proceedings have commenced against Mr Assange.” (para 153)
The Court dismissed this ground of appeal.
Click to access assange-summary.pdf
If I were one of Assange’s sureties I would be very,very angry with him ,,,
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The Swedish accusations being right or wrong I am sure could be dealt with fairly quickly and in the proper judicial manner, unfortunately JA & Wiki concerns regarding US conduct & intentions are prob very real, I for one would not trust them with my future well being in his position ? This is a sad world we live in when revealing awful truths upsets those in power that try to conceal these events from the electorate & the world !
[…] hesitate, in the present climate on twitter, to mention this – but Carl Gardner did a podcast with me some days before David Allen Green did his New Statesman piece and we drew on a number of sources […]