For lawyers, Julian Assange is the gift that just keeps giving. His situation over the past eight years has touched upon many issues of national and international law. In the latest legal development, Assange failed in his bid to have a UK arrest warrant against him set aside. If he had succeeded, he would have been able to leave the sanctuary of the Ecuadoran embassy in London a free man, without fear of arrest or extradition to Sweden or, of more concern to him, the United States.
This is the first of three posts on the Assange saga. This post is a brief chronology, describing the main developments leading to his current predicament. The next post will consider the immunity issues raised, and the third will canvas the other legal issues that have arisen over the years.
As is well-known, Julian Assange is the founder and editor of Wikileaks. In early 2010 Wikileaks began releasing thousands of classified US government documents and files, many supplied by a US soldier serving in Iraq, Private Bradley (now Chelsea) Manning. The leaks hit headlines around the world. Manning was arrested in the US in May 2010 and charged with a number of offences under the Uniform Code of Military Justice and the Espionage Act 1917, including that of aiding the enemy, which carries the death penalty. (She was subsequently convicted of espionage and sentenced to 35 years’ imprisonment, but her sentence was commuted by President Obama and she was released in 2017.)
On a speaking tour in Sweden in August 2010, Assange had sexual encounters with two women, who subsequently complained to the police that the encounters had not been entirely consensual. After his departure, Sweden issued a European Arrest Warrant (EAW) in relation to specified sexual offences, which the United Kingdom acted upon when Assange was in London. After an extradition hearing in the UK in December 2010, he was held in custody for several days and then granted bail pending extradition to Sweden.
Assange challenged the validity of the EAW on several grounds, but by the time the case reached the UK Supreme Court the sole ground was that the EAW had not been issued by a “judicial authority” as required by the Extradition Act 2003 (UK): rather, it had been issued by the Swedish prosecutor. This complaint was rejected by a majority of the Supreme Court in May 2012. Assange sought unsuccessfully to set aside that judgment and reopen the appeal, arguing that the judgment had been based on grounds not argued at hearing. Five days later, on 19 June 2012, Assange sought protection in the London embassy of Ecuador, and two months later he was granted political asylum. When he did not respond to a notice to surrender for extradition, a warrant for his arrest was issued by the UK courts. As he had breached his bail, supporters including John Pilger and Jemima Khan forfeited several hundred thousand dollars in surety. He has remained in the Ecuadoran embassy in London – a not particularly large apartment in Mayfair – ever since.
The legal stalemate dragged on as Sweden insisted he be extradited to Sweden to face personal questioning by the Swedish prosecutors. Assange’s suggestions that he be interviewed in the Ecuadoran embassy were rejected. This led the UN Human Rights Council’s Working Group on Arbitrary Detention to conclude in February 2016 that Assange’s situation amounted to arbitrary detention on the part of the UK and Sweden. He was deprived of his liberty, and the detention was arbitrary because (in part) of the lack of diligence by the Swedish prosecutor in its investigations, which resulted in his lengthy detention. Following publication of the Working Group’s report, Assange applied unsuccessfully to the Stockholm District Court, and then the Svea Court of Appeal, to cancel the EAW. The Court disagreed with the UN Working Group’s view that Assange was in detention, and found there remained a risk that he would seek to evade prosecution.
In late 2016, Sweden finally relented and he was questioned in the embassy by an Ecuadoran prosecutor, in the presence of a Swedish prosecutor.
In May 2017, Sweden withdrew the EAW. The limitation period for some of the Swedish charges had expired, and the Swedish prosecutor decided that it was futile to pursue the remaining charges in the absence of Assange. Assange then applied to the Westminster Magistrates Court (the court designated to deal with extradition requests) to have the UK arrest warrant cancelled. He argued that since the arrest warrant had been issued for the purposes of his extradition, there was no legal basis for the continuing existence of an arrest warrant now that there was no underlying extradition request. However, the application was rejected on 6 February 2018. The judge in effect found that the existence or otherwise of an extradition request was irrelevant: the Bail Act clearly provided that it was an offence for a person to abscond while on bail, as Assange had done, and he could be arrested for it.
A week later the judge gave a second decision, on Assange’s submission that it was not in the public interest that he be prosecuted under the Bail Act 1976 (UK) for failing to appear, and that the arrest warrant issued back in 2012 for that purpose should therefore be withdrawn. Five main grounds were submitted to support this:
- Assange had reasonable grounds for failing to surrender, because he feared being sent to the US;
- the UN Working Group on Arbitrary Detention had found that his situation in the Ecuadoran Embassy was disproportionate and unreasonable;
- Assange had always been willing to be interviewed in London by the Swedish prosecutor, and if this had happened it would have brought the proceedings to an end at a very early stage;
- the past 5½ years, given his deteriorating mental and physical health, was adequate punishment for the actions he had taken; and
- the UK law had changed since the extradition request, and if such a request were made today he would not be extradited for an investigation.
The Court rejected each of these submissions. The judge found Assange would have been able to challenge any US extradition request, for example, if he feared he would not get a fair trial. The judge was particularly scathing of the UN Working Group’s conclusions; in her opinion the conditions in the embassy were not “inappropriate, unjust, unpredictable, unreasonable, unnecessary or disproportionate”. As to delay, the judge noted that if Assange had gone back to Sweden to be interviewed when he should have done, the proceedings would have been over, one way or the other, in 2012. She accepted that Assange had health problems but rather peremptorily concluded that “Mr Assange’s health problems could be much worse”. Finally, the judge disagreed on the effect of the change in UK extradition law.
The judge concluded that factors such as upholding public confidence in the criminal justice system outweighed those such as Assange’s mental and physical condition. In somewhat extra-judicial comments, she observed:
The impression I have, and this may well be dispelled if and when Mr Assange finally appears in court, is that he is a man who wants to impose his terms on the course of justice, whether the course of justice is in this jurisdiction or in Sweden. He appears to consider himself above the normal rules of law and wants justice only if it goes in his favour.
Assange’s current legal situation is, therefore, that:
- he is not subject to extradition to Sweden;
- most of the Swedish charges are now time-barred; the remainder will be time-barred in 2020, but have been withdrawn;
- he remains the subject of an arrest warrant in the UK, for failing to answer bail;
- if and when he presents himself to the UK authorities in answer to that warrant, he may or may not be charged with failing to answer bail; and
- if he is charged and convicted, the maximum penalty is 12 months’ imprisonment.
On a final note, concurrently with all the above developments have been criminal investigations into Assange and Wikileaks in the US. Unfortunately, none of that is public and it is therefore unknown what stage they have reached. All we know from newspaper reports is that a federal grand jury has taken evidence, and that the US Justice Department is considering whether charges should be brought, including charges of espionage. Thus Assange’s fear of being extradited to the US – whether from the UK, Sweden, or indeed Australia – is far from irrational. Ecuador granted him citizenship in January 2018, and, at least while the government of the day is sympathetic to him, Ecuador would be one of the few places where he would be protected from such extradition – if only he could get there.
Dr Alison Pert lectures in public international law at the University of Sydney, specialising in International Law and the Use of Force. She is the author of “Australia as a Good International Citizen” (Federation Press, 2014) and co-author (with Emily Crawford) of “International Humanitarian Law” (Cambridge University Press, 2015). She has worked in the constitutional, international, and international trade law areas of the Commonwealth Attorney-General’s Department and as a solicitor in private practice.