Julian Assange threatens to make the EU look good

The case against Europe’s extradition system is being hurt by the WikiLeaks founder's dissembling

Perhaps the most annoying thing about Julian Assange (yes, I know it’s a long list) is that he is in danger of giving the European Arrest Warrant (EAW) a good name. Maybe my memory is failing, but I don’t recall any of his supporters being critical of the EU’s fast-track extradition system when it was being debated 10 years ago. That is hardly surprising, since most of them are the type of people who would be enthusiastic cheerleaders for anything emanating from Brussels. Doubtless, they looked upon those opposed to the creation of a common judicial area in Europe as swivel-eyed Europhobes. But maybe we had a point after all.

What an exquisite pickle they are in, these followers of Julian. They are potentially out of pocket, because the £240,000 they put up for Assange’s bail risks being forfeit. At the same time, they have to pretend the government in Ecuador is a burning beacon for liberty and free expression. Yet journalists there have been jailed and media organisations shut down for filing negative reports about the administration in Quito. So virulent is the anti-Americanism of Assange’s claque, that they are content to overlook the inconvenient truth that if the Wikileaks founder actually lived in Ecuador he would probably be behind bars.

One of his supporters yesterday took issue with these tiresome reminders of Ecuador’s poor record on press freedom, observing that “nowhere is perfect”. Christine Assange, mother of the self-styled martyr, said: “There are much more serious issues than some rumour of poor press freedom in Ecuador.” When you also consider that Assange’s right-on disciples would normally be outraged if a man accused of sexual assault escaped proper investigation, then you have more hypocrisy on show than at any time since the last convocation of the Pharisees. “Ye are like unto whited sepulchres…” (Matthew 23:13). Mind you, it was more like Life of Brian outside the Ecuadorian embassy on Sunday as the faithful and the gullible began shouting “Welease Julian” and “I am Julian”. The only difference is that Mrs Assange really thinks he IS the Messiah, when the rest of us know he’s just a very naughty boy (allegedly).

The dissembling around Assange has done great damage to the argument against the EAW. Amid all the sound and fury about American “witch-hunts” and British post-colonial bullying, we should remember the central issue: here is a man trying to avoid being extradited to face serious allegations of sexual assault. The warrant was issued by Sweden in 2010 and in February last year his “judicial surrender” was ordered by City of Westminster Magistrates’ Court. Assange’s legal advisers began a series of challenges that went all the way to the Supreme Court.

In particular, they questioned the validity of the warrant, because it had been issued by the prosecuting authorities in Stockholm rather than by a judge, as is required under the Extradition Act 2003. This, they said, was indicative of a fishing expedition rather than a proper judicial process, a view that was not accepted by the English courts. The Swedish prosecutor said Assange was not being sought to assist with inquiries but for the purpose of conducting criminal proceedings. Another claim made by Assange’s side is that he is accused of activities that may not be a crime here. It used to be a fundamental protection in British law that no one would be sent to another jurisdiction for something that is not an offence here. It was called the principle of dual criminality.

When the EAW was drawn up, this principle was removed for a list of 32 offences. However, in Assange’s case, the allegations would amount to a crime here, whatever George Galloway, another of his Left-wing cheerleaders, may say. The warrant for his arrest specifies four alleged offences: one of unlawful coercion, two of sexual molestation and one of rape. The latter states that “On 17 August 2010, in the home of the injured party [B], Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state.” The big problem for Assange is the way he has tried to muddy the legal waters. His Swedish lawyer, for instance, was accused at the original hearing of deliberately attempting to mislead the court by claiming no effort was made to interview his client before he left the country for Britain. Howard Riddle, the district judge, said: “It would be a reasonable assumption from the facts that Mr Assange was deliberately avoiding interrogation before he left Sweden.”
The most fundamental flaw in the EAW is that no one has the power to consider whether the Swedes have made out a prima facie case for extradition. Hearings are supposed to be a formality because the system assumes the legal systems of all signatory countries contain the same safeguards and reflect shared cultural priorities. Yet this is not so, because most continental jurisdictions do not have habeas corpus; so it is possible to be held for months or years while an investigation takes place before a charge is laid.
Here, that cannot happen. In implementing the EAW, the last government set aside a fundamental tenet of British law, something that Assange’s case has once again exposed. But he has not been able to test whether he would have been extradited under the old system. His lawyers should bring a writ of habeas corpus to do just that as soon as he surrenders himself to the police, as he eventually must. If the courts refuse to hear it, we will see how far our ancient protections have been eroded.