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IN THE CITY OF WESTMINSTER MAGISTRATES’ COURTDIRECTOR OF PUBLIC PROSECUTION MARIANNE NY, SWEDISHPROSECUTION AUTHORITY, SWEDEN (A SWEDISH JUDICIAL AUTHORITY)-v-JULIAN PAUL ASSANGE ____________________________________________ SKELETON ARGUMENTON BEHALF OF MR. ASSANGE _____________________________________________

Resumption of extradition hearing: 7-8 February 2011

PROCEDURAL BACKGROUND

1.

Ms. Marianne Ny, described in the EAW as Director of Public Prosecutions, hasrequested the surrender of Julian Assange to Sweden pursuant to a second Europeanarrest warrant (EAW) issued on 2

nd

December 2010 and certified by the SeriousOrganised Crime Agency (SOCA) on 6

th

December. Her first attempt at an EAW, on 26

th

November, was rejected by SOCA.2.

Mr. Assange surrendered himself for arrest on the EAW by appointment with policeofficers on 7 December 2010. The extradition hearing was opened and adjourned to 14December 2010, and subsequently adjourned again to 7-8 February 2011, with a reviewhearing on 11 January 2011.

23.

Mr. Assange will raise the following issues in opposition to his extradition to Sweden.(There is obviously an overlap between issues 3 and 4, and to some extent issue 5):(1)

Ms. Ny was not eligible to issue the EAW.(2)

Ms. Ny is not “a judicial authority”.(3)

These proceedings are an abuse of process because the warrant is being sought for acollateral purpose, namely so as forcibly to bring Mr. Assange to Sweden for questioning, without any fixed intention at the time of its issue to charge or arrest or prosecute him.(4)

The EAW is not a Part 1 warrant for the purposes of section 2(3)(b) of the Act, because it is not issued “with a view to his arrest … for the purpose of being prosecuted for the offence” and/or because it fails to provide sufficient particularsunder s2(4)(c) of the Act because the offences are not described with sufficient particularity.(5)

The application for the EAW is disproportionate given the prosecutor’s refusal toresort to mutual legal assistance or to question Mr. Assange by telephone, videolink,Skype, on affidavit or during his proffered attendance at the Swedish Embassy or New Scotland Yard.(6)

Offences 1-3 do not constitute extradition offences because the conduct alleged wouldnot amount to an offence under English law.(7)

Offence 4 is not an extradition offence because the conduct does not fall within theEuropean Framework offence of rape.(8)

The extradition of Mr. Assange to Sweden would involve the real risk of a flagrantdenial of his human rights, especially because the trial would be held in secret.Sending him abroad to face a trial where justice would not be seen to be done would blatantly offend the UK’s due process and open justice traditions, and breach Article

347 of the Charter of Fundamental Rights of the European Union (2000/C 364/01)(Charter) and Article 6 of the European Convention on Human Rights.

INTRODUCTION

4.

The prosecution opening note (served 10

th

January 2011) contains a short section, “Spiritof the 2003 Act”, which by selective quotation from the authorities gives the impressionthat the swift surrender of “accused” persons should be virtually automatic to category 1states whose good faith and human rights excellence may be presumed. The note givesthe impression that this court is bound to defer to the request of the issuing “judicialauthority”, once satisfied that the warrant is in order on its face. But that is not the true“spirit” in which the Extradition Act of 2003 should be applied.5.

It is of course accepted that the primary mischief which the 2003 Act was designed tocure was delay (

Osman

, for example, had taken seven years) and that the category 1arrangements did evince a high degree of confidence that the justice systems of category1 states would work fairly and effectively. But given the number of times all such stateshave been found at fault by the European Court of Human Rights (ECtHR), this wascertainly not an automatic assumption. Neither the Council Framework Decision of 13June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (Framework Decision) nor the 2003 Act embodied any “spirit”that requires justice to be sacrificed to expediency, or that UK courts must defer to lawsor procedures in other European states that are either disproportionate or are antipatheticto our own principles of fair trial. Quite the contrary.

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