IN THE SOUTHWARK CROWN COURT IN THE SOUTHWARK CROWN COURT BETWEEN: BETWEEN: REGINA REGINA v v
JULIAN PAUL ASSANGE JULIAN PAUL ASSANGE
Defendant Defendant __________
______________________________________________________________________________________________________ NOTE OF MI
NOTE OF MITIGATITIGATIONON ____________
__________________________________________________________________________________________________ For hearing on 1 Ma
For hearing on 1 May 2019 before HHJ Taylory 2019 before HHJ Taylor
Chronology
Chronology
1.1. On 24 February 2011 the deOn 24 February 2011 the de fendant’s extfendant’s extradition to Sweden was ordered by the (then)radition to Sweden was ordered by the (then) Senior District Judge Riddle.
Senior District Judge Riddle. 2.
2. On 2 November 2011, an appeal to the High Court against that order was dismissOn 2 November 2011, an appeal to the High Court against that order was dismiss ed (theed (the High Court holding (a) that Mr Assange was ‘
High Court holding (a) that Mr Assange was ‘accused’ accused’ in Sweden despite not having in Sweden despite not having been charg
been charged there ed there and (band (b) that ) that the Swedish the Swedish prosecutor waprosecutor was a s a ‘‘ judicial a judicial authority’ uthority’ for the for the purposes of the EAW scheme).
purposes of the EAW scheme). 3.
3. On 30 May 2012, an appeal to the Supreme Court on the latter issue was dismissed.On 30 May 2012, an appeal to the Supreme Court on the latter issue was dismissed. 4.
4. On 14 June 2012, an application to re-open the On 14 June 2012, an application to re-open the Supreme Court appeal was dismissed andSupreme Court appeal was dismissed and time for surrender (pursuant to s.36 of the 2003 Act) was ordered to commence on 29 time for surrender (pursuant to s.36 of the 2003 Act) was ordered to commence on 29 June 2012.
June 2012. 5.
5. Save for a period of initial detention in custody, the defendant had been on bailSave for a period of initial detention in custody, the defendant had been on bail throughout with conditions,
throughout with conditions, inter aliainter alia, requiring him , requiring him to (a) to (a) reside at a nominated addreside at a nominated address,ress, (b) to report
(b) to report daily to a police daily to a police station, (c) wear station, (c) wear an electronic tag, and an electronic tag, and (d) to surrend(d) to surrender to theer to the custody of the police as and when required to do so in order to affect surrender [tab 5]. custody of the police as and when required to do so in order to affect surrender [tab 5]. 6.
6. On 19 June 2012, the defOn 19 June 2012, the defendant entendant entered the Ecuaered the Ecuadorian embassy. The dorian embassy. The reason for reason for so doingso doing related to his
related to his publically expressed fear that publically expressed fear that he would surrendered to the USA by Swhe would surrendered to the USA by Sweden,eden, and be subjected to treatment there, including persecution and indefinite solitary and be subjected to treatment there, including persecution and indefinite solitary confinement, relating to
confinement, relating to his involvement in WikiLeaks’ publication of sensitivehis involvement in WikiLeaks’ publication of sensitive USUS military and diplomatic materials (such as the UN Special Rapporteur on Torture had military and diplomatic materials (such as the UN Special Rapporteur on Torture had concluded happened to Chelsea Manning).
7.
7. On 28 June 2012, in accordance withOn 28 June 2012, in accordance with R R (Hart) (Hart) v v Bow Bow StreStreet Magistrates’ Court et Magistrates’ Court [2002] 1 [2002] 1 WLR 1242, the police served upon the defendant a notice to surrender (to Belgravia WLR 1242, the police served upon the defendant a notice to surrender (to Belgravia police station on 29 June 2012) [tab 6]. The d
police station on 29 June 2012) [tab 6]. The defendant failed to surrender as required.efendant failed to surrender as required. 8.
8. On 29 June 2012, DJ Purdy issued a On 29 June 2012, DJ Purdy issued a warrant for the dewarrant for the de fendant’s arrestfendant’s arrest under s.7 of the under s.7 of the Bail Act 1976 [tab 7].
Bail Act 1976 [tab 7].11 9.
9. OOn 16 August 2012, the n 16 August 2012, the defendant’sdefendant’s humanithumanitarian diplarian diplomatic asylum omatic asylum status was dstatus was declaredeclared by Ecuad
by Ecuador, based upon its assessment of a well-founor, based upon its assessment of a well-founded risk of him ded risk of him beingbeing refouled refouled by by Sweden to the USA and there being subjected to persecution, inhuman treatment and Sweden to the USA and there being subjected to persecution, inhuman treatment and physical harm.
physical harm. 10.
10. On 8 October 2012, the (then) Senior District Judge ordered the forfeiture of sureties inOn 8 October 2012, the (then) Senior District Judge ordered the forfeiture of sureties in this matter
this matter totalling £93,500 (pursuant to s.120 of the Magistrates’ Court Act 1980totalling £93,500 (pursuant to s.120 of the Magistrates’ Court Act 1980 ), and), and £200,000 security [tab 8].
£200,000 security [tab 8]. The Senior District Judge noted that the possibility that MrThe Senior District Judge noted that the possibility that Mr Assange’
Assange’s asylum sits asylum situation might afford him uation might afford him a substantive defence (reasonable a substantive defence (reasonable excuse) toexcuse) to a Bail Act charge ‘
a Bail Act charge ‘cannot be excluded’ cannot be excluded’ (p5). (p5). 11.
11. In the same vein, on 4 December 2015, the UN Working Group on Arbitrary DetentionIn the same vein, on 4 December 2015, the UN Working Group on Arbitrary Detention (‘UNWAG’)
(‘UNWAG’) ruled ( ruled (opinion 54opinion 54/2015) that the defendant was being involuntarily /2015) that the defendant was being involuntarily depriveddeprived of his liberty in the
of his liberty in the embassy (being forced to choose between remaining in tembassy (being forced to choose between remaining in t he embassyhe embassy and exposed to the
and exposed to the situation from which he had been granted asylum is not free choice)situation from which he had been granted asylum is not free choice) [tab 12].
[tab 12]. 12.
12. On 26 May 2017, the EAW was withdrawn (under s.41 of the 2003 Act) followingOn 26 May 2017, the EAW was withdrawn (under s.41 of the 2003 Act) following discont
discontinuance of the underinuance of the underlying Swedish inveslying Swedish investigation and the tigation and the underlying underlying arrest warrantarrest warrant in Sweden.
in Sweden. 13.
13. On 6 February 2018, following submissions, the Senior District On 6 February 2018, following submissions, the Senior District Judge ruled that the s.7Judge ruled that the s.7 Bail Act warrant remained valid and enforceable notwithstanding the discontinuance of Bail Act warrant remained valid and enforceable notwithstanding the discontinuance of the predicate extradition proceedings.
the predicate extradition proceedings. 14.
14. On 16 February 2018, the Senior District Judge further ruled that it remained in theOn 16 February 2018, the Senior District Judge further ruled that it remained in the public
public interest for interest for the the court court to to initiate breach initiate breach proceedings proceedings under under s.6 s.6 of of the Bthe Bail ail Act, Act, in in thethe event that the defendant left the embassy.
event that the defendant left the embassy.22 15.
15. On 11 April 2019 Ecuador revoked the defendant’s asylum and invited UK police intoOn 11 April 2019 Ecuador revoked the defendant’s asylum and invited UK police into the embassy to arrest him.
the embassy to arrest him. 16.
16. On the same date, the defendant was brought before DJ Snow. The Court initiated s.6On the same date, the defendant was brought before DJ Snow. The Court initiated s.6 proceedings
proceedings against against the the defendant defendant (in (in accordance accordance with with the the 16 16 February February 2018 2018 rulingruling referr
referred to above). The defed to above). The defendant pleendant pleaded not guiltaded not guilty by but was convicted, ut was convicted, and committed toand committed to this Court for sentence.
this Court for sentence.
1.
1. Re-issued Re-issued on on 15 15 July July 2014 2014 owing, owing, it it is is believed, believed, to to a a technical technical fault fault in in the the first first warrant.warrant. 2.
2. Where Where bail bail is is granted granted by by a a court, court, as as here, here, and and such such proceedings proceedings are are appropriate, appropriate, they they are are initiated initiated by by thethe court: Criminal Practice Direction 2015, §14C.4.
17.
17. He has not appealed that conviction and now stands to be sentenced.He has not appealed that conviction and now stands to be sentenced.
Sentencing powers
Sentencing powers
18.18. The Court’s sentencing powers below were limited to 3 months’ imprisonment and/or aThe Court’s sentencing powers below were limited to 3 months’ imprisonment and/or a fine (ibid).
fine (ibid). 19.
19. The maximum sentence in the Crown CourtThe maximum sentence in the Crown Court is 12 months’ imprisonmentis 12 months’ imprisonment and/or a fineand/or a fine (s.6(7) Bail Act).
(s.6(7) Bail Act).
Mitigation
Mitigation
20.20. First, the backFirst, the background to, and tground to, and the defendahe defendant’s rent’s reasons for, failing to asons for, failing to surrender (even if theysurrender (even if they do not constitute
do not constitute a defence to a defence to the charge) constitthe charge) constitute a ute a serious explanserious explanation for his conation for his conduct:duct: a.
a. As will be known, Wikileaks As will be known, Wikileaks published, in November 2010, together with otherspublished, in November 2010, together with others a significant number of redacted U.
a significant number of redacted U.S. State department diplomatic ‘S. State department diplomatic ‘cablescables’’ allegedly provided by
allegedly provided by US Army Private US Army Private Chelsea Manning Chelsea Manning (then known (then known asas Bradley).
Bradley). b.
b. On 27 May 2010, Manning was arrested in respect of her alleged provision ofOn 27 May 2010, Manning was arrested in respect of her alleged provision of those documents to WikiLeaks.
those documents to WikiLeaks. c.
c. In July 2010, Manning was charged with In July 2010, Manning was charged with offences, includingoffences, including ‘‘aiding the enemyaiding the enemy’’,, a capital offence which carried the death sentence.
a capital offence which carried the death sentence. d.
d. Manning was thManning was then held at the en held at the Marine CorMarine Corps Brig, ps Brig, Quantico in Virginia, from Quantico in Virginia, from JulyJuly 2010 to April 2011 under
2010 to April 2011 under ‘‘Prevention of InjuryPrevention of Injury’’ status, which entailed status, which entailed dede facto
facto solit solitary confinement and other ary confinement and other restrrestrictions (including ictions (including sleep depsleep deprivation andrivation and being forced to sleep naked)
being forced to sleep naked) that caused domestic and international concern.that caused domestic and international concern.33 e.
e. After his arrest in the UK in December 2010, Mr Assange consistently andAfter his arrest in the UK in December 2010, Mr Assange consistently and publically
publically expressed his fear expressed his fear of onwaof onwardrd refoulement refoulement once in Sweden to the USA once in Sweden to the USA (and of being
(and of being subjected to subjected to similar tsimilar treatment to reatment to that which Mathat which Manning hnning had receivad received):ed): ‘…
‘… Mr Mr Assange’s Assange’s strongly strongly held held fears fears of of being being removed removed to to the the UnitedUnited States. That fear was held, and publicly expressed, right from the very States. That fear was held, and publicly expressed, right from the very beginning. Indeed, in the early days t
beginning. Indeed, in the early days there was a widely expressed viewhere was a widely expressed view that extradition to
that extradition to Sweden was a masquerade for the real intention of theSweden was a masquerade for the real intention of the Swedish authorities to forward Mr
Swedish authorities to forward Mr Assange to the United Assange to the United States and evStates and evenen Guantánamo Bay. The theory was expressed in a number of ways, Guantánamo Bay. The theory was expressed in a number of ways, including openly in court, but
including openly in court, but there can have been no doubt that this wasthere can have been no doubt that this was a fear operating on the mind of the defendant in the extradition a fear operating on the mind of the defendant in the extradition proceedin
proceedingsgs…’…’ (Senior Dis (Senior District Jtrict Judge Riddle, judgment, 8 udge Riddle, judgment, 8 October 2012,October 2012, [tab 8] p.12).
[tab 8] p.12).
3.
3. See, See, e.g.e.g. https://wwwhttps://www.theguardian.com/w.theguardian.com/world/2011/mar/15/bradley-manningorld/2011/mar/15/bradley-manning-military-doctors-treatm-military-doctors-treatmentent
(Guardian, 15 March 2011);
(Guardian, 15 March 2011); https://wwwhttps://www.theguardian.com.theguardian.com/world/2011/apr/10/bradley-mannin/world/2011/apr/10/bradley-manning-legal-
g-legal-scholars-letter
f.
f. US officials US officials had publically called had publically called for the for the death penalty in respect of Mr Assandeath penalty in respect of Mr Assange.ge.44 g.
g. It was publiIt was publically known frcally known from 2010 that om 2010 that US prosecuting authorities had opened US prosecuting authorities had opened anan investigation into Mr Assange and it was feared that he might be the subject of a investigation into Mr Assange and it was feared that he might be the subject of a sealed US indictment.
sealed US indictment.55 h.
h. It was also reported publically in 2010 that ‘It was also reported publically in 2010 that ‘informal discussions have alreadyinformal discussions have already taken place between US and Swedish officials over the possibility of the taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody WikiLeaks founder Julian Assange being delivered into American custody’.’.66 i.
i. In February 2012, the UIn February 2012, the UN Special N Special Rapporteur on Torture confirmed that ManRapporteur on Torture confirmed that Manningning was subjected to inhuman and
was subjected to inhuman and degrading treatment (report, 29 February 2012).degrading treatment (report, 29 February 2012).77 j.
j. On 14 June 2012, when the order for his extradition to On 14 June 2012, when the order for his extradition to Sweden became final, hisSweden became final, his surrender to Sweden was now inevitable.
surrender to Sweden was now inevitable. k.
k. Sweden hadSweden had, at the ma, at the material time, a well-documented history terial time, a well-documented history of directof direct refoulement refoulement of persons to states in which they were at significant risk of ill-treatment, of persons to states in which they were at significant risk of ill-treatment, including torture and death.
including torture and death.88
4.
4. For For example, example, Mick Mick Huckabee, Huckabee, Republican Republican candidate candidate for for the the 2010 2010 Presidential Presidential election election had had called called for for thosethose responsible for the leaking of the US Embassy cables to be
responsible for the leaking of the US Embassy cables to be executed (‘executed (‘US embaUS embassy cables culprit sssy cables culprit should behould be executed, says Mike Huckabee: Republican presidential hopeful wants the person responsible for the executed, says Mike Huckabee: Republican presidential hopeful wants the person responsible for the
WikiLeaks cables to face capital punishment for treason’
WikiLeaks cables to face capital punishment for treason’ , The Guardian, 1 December 2010), The Guardian, 1 December 2010) ((https://www.theguardian.com/world/2010/dec/01/us-embassy-cables-executed-mike-huckabeehttps://www.theguardian.com/world/2010/dec/01/us-embassy-cables-executed-mike-huckabee)). Pentagon. Pentagon officials
officials had called for the death penalty ‘had called for the death penalty ‘ Leading US Leading US political figurpolitical figures es have called have called for the for the death penalty death penalty toto be imposed on the person who leaked
be imposed on the person who leaked sensitive documents to whistle-blower website WikiLesensitive documents to whistle-blower website WikiLeaks as angeraks as anger
intensified against those responsible for the international relations crisis’
intensified against those responsible for the international relations crisis’ , The Telegraph, 10 January, The Telegraph, 10 January 2011)
2011) ((https://www.telegraph.co.uk/news/worldnews/wikileaks/8172916/WikiLeaks-guilty-parties-should-
https://www.telegraph.co.uk/news/worldnews/wikileaks/8172916/WikiLeaks-guilty-parties-should-face-death-penalty.html
face-death-penalty.html)). Sarah Palin, former Republican Vice-Presidential candidate, had said that Mr.. Sarah Palin, former Republican Vice-Presidential candidate, had said that Mr. Assange ‘
Assange ‘should be hunted down just like al-Qaeda and Taliban leadersshould be hunted down just like al-Qaeda and Taliban leaders’, The Telegraph, 30 November’, The Telegraph, 30 November 2010
2010 ((https://wwwhttps://www.telegraph.co.uk/new.telegraph.co.uk/news/worldnews/ws/worldnews/wikileaks/8171269/Sarah-Palin-hunt-WikiLikileaks/8171269/Sarah-Palin-hunt-WikiLeaks-
eaks-founder-like-al-Qaeda-and-Taliban-leaders.html
founder-like-al-Qaeda-and-Taliban-leaders.html)).. 5.
5. It It was was later later widely widely reported reported that that the the US US interest interest in in him him was was real real and and that that criminal criminal proceedings proceedings were were in in traintrain in the USA in respect
in the USA in respect of Mr Assange: a Grand of Mr Assange: a Grand Jury had been empaneled in Virginia and the US AttorneyJury had been empaneled in Virginia and the US Attorney General has said publically that
General has said publically that Mr Assange’s arrest waMr Assange’s arrest was as a ‘‘ priority’ priority’ . In 2017, then FBI director James. In 2017, then FBI director James Comey told Congress that the only reason
Comey told Congress that the only reason Mr Assange ‘Mr Assange ‘hasn't been hasn't been apprehended is because apprehended is because he's insihe's inside thede the Ecuadorea
Ecuadorean n embassy embassy in in London’ London’ . . (Washington (Washington Post, Post, 3 3 May May 2017)2017) ((https://wwwhttps://www.washingtonpost.com.washingtonpost.com/news/post-politics/w/news/post-politics/wp/2017/05/03/read-the-full-testimonyp/2017/05/03/read-the-full-testimony-of-fbi-
-of-fbi-director-james-comey
director-james-comey-in-which--in-which-he-discusses-clinton-ehe-discusses-clinton-email-investigationmail-investigation)). CIA director Mike Pompeo. CIA director Mike Pompeo stated Mr Assange has ‘
stated Mr Assange has ‘no first amendment rightsno first amendment rights’ (The Intercept, 14 April 2017)’ (The Intercept, 14 April 2017) ((https://theintercept.com/2017/04/14/trumps-cia-director-pompeo-targeting-wikileaks-explicitly-threatens-
https://theintercept.com/2017/04/14/trumps-cia-director-pompeo-targeting-wikileaks-explicitly-threatens-speech-and-press-freedoms
speech-and-press-freedoms)). . The then US Attorney The then US Attorney General Jeff Sessions said General Jeff Sessions said publicly in 2017 publicly in 2017 that Mrthat Mr Assange’s arrest is a ‘
Assange’s arrest is a ‘ priority’ priority’ for the Trump administration (Guardian, 21 April 2017) for the Trump administration (Guardian, 21 April 2017) ((https://www.theguardian.com/media/2017/apr/21/arresting-julian-assange-is-a-priority-says-us-attorney-
https://www.theguardian.com/media/2017/apr/21/arresting-julian-assange-is-a-priority-says-us-attorney-general-jeff-sessions
general-jeff-sessions)).. 6.
6. https://wwwhttps://www.independent.co.uk/ne.independent.co.uk/news/uk/crimews/uk/crime/assange-could-face-espiona/assange-could-face-espionage-trial-in-us-2154107.htmlge-trial-in-us-2154107.html
(Independent, 8 December 2010). (Independent, 8 December 2010). 7.
7. https://wwwhttps://www.theguardian.com/world/2012/mar/12/bradley-m.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuanning-cruel-inhuman-treatment-uman-treatment-unn(Guardian,(Guardian, 12 March 2012)
12 March 2012) 8.
8. Sweden Sweden had had been been the the subject subject of of a a number number of of judgments judgments related related to to this this practice: practice: see see e.g.e.g. A.S. v Sweden A.S. v Sweden,, Commun
Communication No. 149/1999, U.N. Doc. A/56/44 at 173 (20ication No. 149/1999, U.N. Doc. A/56/44 at 173 (20 01);01); Karoui Karoui v Swedenv Sweden,, Communication No. Communication No. 185/2001, U.N. Doc. A/57/44 at 198 (2002);
185/2001, U.N. Doc. A/57/44 at 198 (2002); C.T. & K.M. v SwedenC.T. & K.M. v Sweden, Communication No. 279/2005, U.N., Communication No. 279/2005, U.N. Doc. CAT/C/37/D/279/2005 (2007);
l.
l. Regarding the USA in particular, Sweden also had, at the material time, a longRegarding the USA in particular, Sweden also had, at the material time, a long and unfort
and unfortunate hisunate history of illitory of illicit co-operation with the USA cit co-operation with the USA in the mistreatment ofin the mistreatment of detainees and their rendition. The Court is respectfully invited to read, for detainees and their rendition. The Court is respectfully invited to read, for example, the UN
example, the UN’s’s Committee Against Torture’sCommittee Against Torture’s disturbing judgment indisturbing judgment in Agiza Agiza vv Sweden
Sweden (2005) Communi (2005) Communication No. 233/cation No. 233/2003) (part2003) (particularly §§10.2, icularly §§10.2, 11.4, 12.28-11.4, 12.28-30, 13.4-5) and
30, 13.4-5) and the UN’s Human Rights Committee’s judgment inthe UN’s Human Rights Committee’s judgment in Alzery Alzery vv Sweden
Sweden (2006) Communication (2006) Communication No. 1416/2005) (particularly §§3.10-11 & 11.6No. 1416/2005) (particularly §§3.10-11 & 11.6--7). In short, Sweden had passively allowed US military personnel to mistreat 7). In short, Sweden had passively allowed US military personnel to mistreat detain
detainees on Swedisees on Swedish soil (inch soil (including stripping, blindfoldingluding stripping, blindfolding, hooding, hooding, manacling,, manacling, forcible sedation by forced anal
forcible sedation by forced anal suppository, handcuffing into specially designedsuppository, handcuffing into specially designed stress position
stress position harnesses etc.) and harnesses etc.) and in delivering them to in delivering them to torture in thtorture in third states. Tird states. Thehe judgments
judgments talk abtalk aboutout ‘total surrender of power’ ‘total surrender of power’ by Sweden to the US authorities. by Sweden to the US authorities. m.
m. There existed no legal remedy available to him in There existed no legal remedy available to him in the UK to protect against beingthe UK to protect against being refouled
refouled by Sweden to the USA. by Sweden to the USA.99 n.
n. On 19 June 2012, Mr Assange accordingly sought refuge in the EcuadorianOn 19 June 2012, Mr Assange accordingly sought refuge in the Ecuadorian Embassy and applied for asylum on grounds of fear of
Embassy and applied for asylum on grounds of fear of beingbeing refouled refouled by Sweden by Sweden to the USA, and being subjected to ill-treatment there, including persecution, to the USA, and being subjected to ill-treatment there, including persecution, indefinite solitary confinement, and the death penalty.
indefinite solitary confinement, and the death penalty.1010 o.
o. On 16 August 2012, after careful investigation,On 16 August 2012, after careful investigation, Mr Assange’s humanitariMr Assange’s humanitarianan diplomatic asylum status
diplomatic asylum status was recognised (declared) by Ecuador, based upon itswas recognised (declared) by Ecuador, based upon its assessment of a
assessment of a well-founded risk of him beingwell-founded risk of him being refouled refouled by Sweden to the USA by Sweden to the USA and there being subjected to
and there being subjected to persecution, inhuman treatment and physical harm.persecution, inhuman treatment and physical harm. 21.
21. In that regard, the Court is invited to also note that, on 4 December 2015, the UnitedIn that regard, the Court is invited to also note that, on 4 December 2015, the United Nations Working
Nations Working Group Group on Arbitrary on Arbitrary DetentionDetention (‘UNWAG’)(‘UNWAG’) ruled (opinion 54/2015) ruled (opinion 54/2015)1111 that being forced to choose between remaining in the Embassy and being exposed to the that being forced to choose between remaining in the Embassy and being exposed to the situation from which he has been granted asylum; was not a free choice [tab 12].
situation from which he has been granted asylum; was not a free choice [tab 12].1212 22.
22. On 8 October 2012, the (then) Senior District Judge noted that (although not broadlyOn 8 October 2012, the (then) Senior District Judge noted that (although not broadly relevant to the liability of the sureties) the
relevant to the liability of the sureties) the possibility possibility that Mr that Mr Assange’sAssange’s asylum situation asylum situation might afford him a substantive
might afford him a substantive defence in law (reasonable excuse) to a defence in law (reasonable excuse) to a Bail Act chargeBail Act charge ‘‘cannot be excluded’ cannot be excluded’ [tab 8, p5]. [tab 8, p5].
41827/07, March 9;
41827/07, March 9; Njamba & Njamba & Balikosa v SwedenBalikosa v Sweden, Merits, UN Doc CAT/C/44/D/322/2007 (UNCAT, Merits, UN Doc CAT/C/44/D/322/2007 (UNCAT 2010);
2010); N v N v SwedenSweden (2010) App. (2010) App. 23505/09, 23505/09, July 20;July 20; Aytulun & Aytulun & Güclü v Güclü v SwedenSweden, Merits, , Merits, CommunCommunicationication No 373/20
No 373/2009, UN 09, UN Doc CAT/C/45/D/373/2009 Doc CAT/C/45/D/373/2009 (UNCAT 2010). (UNCAT 2010). See alsoSee also Agiza Agiza and and Alzery Alzery referred to referred to below.
below. 9.
9. Khemiri & others v The Cour Khemiri & others v The Court of Milan Italyt of Milan Italy [2008] EWHC 1988 [2008] EWHC 1988 (Admin).(Admin). 10.
10. In In February February 2013, 2013, Manning Manning pleaded pleaded guilty guilty to to 10 10 of of the the charges charges she she faced. faced. Between Between June-July June-July 2013,2013, Manning was tried in respect of
Manning was tried in respect of the remaining charges, of which she was convicted of 21, the remaining charges, of which she was convicted of 21, but acquitted ofbut acquitted of aiding the enemy (and hence avoided the death penalty
aiding the enemy (and hence avoided the death penalty). ). In August 2013, Manning was sentenIn August 2013, Manning was sentenced to 35ced to 35 years' imprisonment.
years' imprisonment. 11.
11. http://wwhttp://www.ohchr.org/Documw.ohchr.org/Documents/Issues/Detention/A.Hents/Issues/Detention/A.HRC.WGAD.2015.docxRC.WGAD.2015.docx
12.
12. The ECHR likewise recognises that someone’s freedom of The ECHR likewise recognises that someone’s freedom of choice in such a choice in such a situation becomes ‘theoreticsituation becomes ‘theoretical’al’ See eg.
23.
23. DJ Snow ruled otherwise, and the defence have not challenged that leDJ Snow ruled otherwise, and the defence have not challenged that le gal ruling, but thegal ruling, but the mitigating force of the
mitigating force of the context of the defendant’s actionscontext of the defendant’s actions remains very relevant.remains very relevant. 24.
24. Secondly, Mr Assange wishes to provide to the court a personal expression of regret, toSecondly, Mr Assange wishes to provide to the court a personal expression of regret, to be provided in writing to
be provided in writing to the Court at the hearing.the Court at the hearing. 25.
25. Thirdly, as a result of Thirdly, as a result of his actions, his actions, Mr Assange has Mr Assange has suffered very signifsuffered very significant consicant consequenequencesces for himself, punitive, significant and enduring in their nature:
for himself, punitive, significant and enduring in their nature: a.
a. He has spent almost seven years in confined conditions, without access toHe has spent almost seven years in confined conditions, without access to adequate medical care, space and natural light, in which circumstances his adequate medical care, space and natural light, in which circumstances his physical
physical and and psychologpsychological ical health health have have significantly significantly deteriorated. deteriorated. In In the the timetime since being notified of the listing of this matter, it has not been possible to since being notified of the listing of this matter, it has not been possible to provide
provide updated updated medical evmedical evidence. idence. We attach We attach forfor the Court’sthe Court’s information earlierinformation earlier medical evidence from psychologist Dr Michael Korzinski (considered by the medical evidence from psychologist Dr Michael Korzinski (considered by the UNWAG and
UNWAG and updated iupdated in 2017) outlining the psyn 2017) outlining the psychological consequences [tab 16]chological consequences [tab 16] and from Dr Tim Ladbrooke outlining the physical consequences [tab 17]. We and from Dr Tim Ladbrooke outlining the physical consequences [tab 17]. We trust that the court will accept from his lawyers that, since his admission to HMP trust that the court will accept from his lawyers that, since his admission to HMP Belmarsh, the defendant is currently the subject of a battery of tests
Belmarsh, the defendant is currently the subject of a battery of tests and medicaland medical intervention.
intervention. b.
b. In particular, the circumstances of the past last two years he spent inside theIn particular, the circumstances of the past last two years he spent inside the embassy since May 2017, after the Swedish and extradition proceedings had embassy since May 2017, after the Swedish and extradition proceedings had concluded (and which period is
concluded (and which period is solely referable to his fears solely referable to his fears concerning exposureconcerning exposure to the USA), have been experienced
to the USA), have been experienced by him as severe.by him as severe. c.
c. He has also forfeited significant security.He has also forfeited significant security. 26.
26. Fourthly, in most situations in which a defendant fails Fourthly, in most situations in which a defendant fails to surrender, his actions have (andto surrender, his actions have (and are intended to have) a paralytic effect on the predicate criminal process. This case is are intended to have) a paralytic effect on the predicate criminal process. This case is different. In short, he at all times remained (as he had been until then) willing and different. In short, he at all times remained (as he had been until then) willing and available to be interviewed to progress the Swedish investi
available to be interviewed to progress the Swedish investi gation. As soon as he enteredgation. As soon as he entered the embassy, he immediately notified the Swedish authorities of this.
the embassy, he immediately notified the Swedish authorities of this. 27.
27. In greater detail (and for the sole purpose of setting out the relevant history):In greater detail (and for the sole purpose of setting out the relevant history): a.
a. The preliminary investigation in Sweden concerned events that occurred inThe preliminary investigation in Sweden concerned events that occurred in August 2010.
August 2010. The Chief Prosecutor of Stockholm determined that The Chief Prosecutor of Stockholm determined that there was nothere was no evidence to support an allegation of
evidence to support an allegation of rape. A public prosecutor in a different rape. A public prosecutor in a different citycity (Goteborg) later reactivated the matter for investigation.
(Goteborg) later reactivated the matter for investigation. b.
b. Mr Assange voluntarily remained in Sweden to cooperate with the preliminaryMr Assange voluntarily remained in Sweden to cooperate with the preliminary invest
investigation aigation and, on 30 August 2010, attended nd, on 30 August 2010, attended for police interview, answering for police interview, answering allall questions asked of him.
questions asked of him. c.
c. On 15 September 2010, the prosecutor infor On 15 September 2010, the prosecutor infor med Mr Assange’s counselmed Mr Assange’s counsel in writingin writing that he was free to leave Sweden, which he did.
d.
d. On 27 September 2010, the prosecutor issued On 27 September 2010, the prosecutor issued an arrest warrant.an arrest warrant. e.
e. In the weeks tIn the weeks that follhat followed, Mr Assowed, Mr Assange offered to return to ange offered to return to Sweden for interview,Sweden for interview, which offer was rejected by the prosecutor. On 12 November 2010, he offered to which offer was rejected by the prosecutor. On 12 November 2010, he offered to be interviewed
be interviewed by by telephone telephone or vor video-link interview, ideo-link interview, or to or to provide provide a statement a statement inin writing, or to attend an interview in person at the Swedish embassy, all of which writing, or to attend an interview in person at the Swedish embassy, all of which are permissible in Sweden, all of which were declined by the prosecutor.
are permissible in Sweden, all of which were declined by the prosecutor. f.
f. Notwithstanding Notwithstanding that that Mr Mr Assange Assange had had not not been been charged charged with with any any criminalcriminal offence, on 2 December 2010, an EAW was issued
offence, on 2 December 2010, an EAW was issued by the prosecutor (rather thanby the prosecutor (rather than by
by a court). a court). On 7 On 7 December 20December 2010, the 10, the defendant vdefendant voluntarily oluntarily surrendered surrendered himselfhimself for arrest by appointment in the UK.
for arrest by appointment in the UK. 13 13 g.
g. Those UK proceedings then concerned,Those UK proceedings then concerned, inter aliainter alia, whether Mr Assange was, whether Mr Assange was ‘‘accused’ accused’ in circumstances where Sweden could proceed (but was not in circumstances where Sweden could proceed (but was not proceeding)
proceeding) to to interview interview him him to to progress progress its its ongoing investigation. ongoing investigation. SwedenSweden’s’s position
position maintained maintained before before the the extradition extradition court court was was thatthat ‘‘this is not anthis is not an appropriate course in Assange's case. The preliminary investigation is at an appropriate course in Assange's case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate Assange, in advanced stage and I consider that is necessary to interrogate Assange, in person,
person, regarding regarding the the evidence evidence in in respect respect of of the the serious serious allegaallegations tions made made againagainstst him
him’’.. h.
h. What has since emerged (as a What has since emerged (as a result of Freedom of Information requests made byresult of Freedom of Information requests made by the press) is that the Swedish prosecutor was desirous of interviewing Mr the press) is that the Swedish prosecutor was desirous of interviewing Mr Assange by telephone or in London, but was advised not to do so by the CPS Assange by telephone or in London, but was advised not to do so by the CPS during the currency of the extradition proceedings. The purpose of the following during the currency of the extradition proceedings. The purpose of the following it not to criticise the CPS, but to set out the relevant history:
it not to criticise the CPS, but to set out the relevant history: i.
i. In DecembeIn December 2010/Jr 2010/January 2011, the anuary 2011, the CPS advised the Swedish prosecutorCPS advised the Swedish prosecutor not to question Mr Assange over the telephone nor to question him in not to question Mr Assange over the telephone nor to question him in London (
London ( Maurizi Maurizi v Cv CPS anPS and the d the Information Information Commissioner Commissioner , First Tier, First Tier Tribunal, General Regulatory Chamber, Appeal No:
Tribunal, General Regulatory Chamber, Appeal No: EA/2017/0041, [tabEA/2017/0041, [tab 15] §40).
15] §40).1414 ii.
ii. On 25 January 2011: the CPS repeated their advice to the SwedishOn 25 January 2011: the CPS repeated their advice to the Swedish prosecutor not
prosecutor not to question to question Mr Assange: Mr Assange: ‘‘ My My earlier earlier advice advice remains, remains, thatthat in my view it would not be prudent for the Swedish authorities to try to in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK. Such an interview would need to be interview the defendant in the UK. Such an interview would need to be pursuant to a
pursuant to a letter of request…Even if letter of request…Even if the defendant was to consent to the defendant was to consent to such an interview [by appointment] on a mutually agreed basis, the such an interview [by appointment] on a mutually agreed basis, the defence woul
defence would without d without any doubt seany doubt seek to turn the event to its advantage. ek to turn the event to its advantage. ItIt would inevitably allege it was conclusive proof that the Swedish would inevitably allege it was conclusive proof that the Swedish authorities had no
authorities had no case whatsoever against him and hence the interviewcase whatsoever against him and hence the interview was in the hope that he would make a full and fran
was in the hope that he would make a full and frank confession. He k confession. He wouldwould of course have no obligation [under English law] to answer any of course have no obligation [under English law] to answer any
13.
13. See, See, generally, generally, the the Agreed Agreed Statement Statement of of Facts Facts and and Issues Issues before before the the Supreme Supreme Court Court in in 2012 [tab 2012 [tab 4] 4] forfor the relevant factual history to that point.
the relevant factual history to that point. 14.
questions put to him. Any attempt
questions put to him. Any attempt to interview him under strict Swedishto interview him under strict Swedish law would
law would invariably be fraught witinvariably be fraught with problems. General experiench problems. General experience hase has also shown that attempts by foreign authorities to interview a defendant also shown that attempts by foreign authorities to interview a defendant in the UK, frequently leads to the defence retort that that some in the UK, frequently leads to the defence retort that that some inducemen
inducements or threats were made by the interviewers…Thus I suggestts or threats were made by the interviewers…Thus I suggest you interview him
you interview him only on only on his surrender to his surrender to Sweden and in Sweden and in accordanaccordancece with Swedish law
with Swedish law’’ [tab 9]. [tab 9]. i.
i. After Mr Assange entered the embassy on 19 June 2012, he made clear that heAfter Mr Assange entered the embassy on 19 June 2012, he made clear that he remain
remained willied willing to be inteng to be interviewed to progress the rviewed to progress the Swedish investigation [tab 18].Swedish investigation [tab 18]. The position, however, remained static.
The position, however, remained static. j.
j. In October 2013, Sweden adviIn October 2013, Sweden advised the Csed the CPS that it proposed to PS that it proposed to withdraw the EAW.withdraw the EAW. The CPS persuaded it not to:
The CPS persuaded it not to: i.
i. 18 October 2013: Swedish prosecutor to the CPS:18 October 2013: Swedish prosecutor to the CPS: ‘‘There is a demand inThere is a demand in Swedish law for coerci
Swedish law for coercive measures to be proportionave measures to be proportionate. The time te. The time passingpassing the costs and how
the costs and how severe the crime is to severe the crime is to be taken into account togetherbe taken into account together with the i
with the intrusion or detntrusion or detriment to triment to the suspect. he suspect. Against this bacAgainst this background wekground we have found us to be obliged to consider to lift t
have found us to be obliged to consider to lift the detention order (couhe detention order (courtrt order) and to withdraw the European arrest warrant. If so this should be order) and to withdraw the European arrest warrant. If so this should be done in a couple of
done in a couple of weeks. This would affect not only us but weeks. This would affect not only us but you too in ayou too in a significant way
significant way’’ [tab 9]. [tab 9]. ii.
ii. 18 October 2013: The CPS18 October 2013: The CPS to Swedish prosecutor: ‘to Swedish prosecutor: ‘ I'd I'd like like to to consconsider ider allall angles
angles’’ [tab 9]. [tab 9]. iii.
iii. 21 October 2013: Swedish prosecutor to the CPS21 October 2013: Swedish prosecutor to the CPS ‘‘ I am I am sorry that sorry that thisthis came as a (bad) surprise. It is certainly OK for you
came as a (bad) surprise. It is certainly OK for you to take your time toto take your time to think this over. Since middle of September I and [redacted] have been think this over. Since middle of September I and [redacted] have been discussing the situation and I
discussing the situation and I wasn't sure of iwasn't sure of it being possible to t being possible to share oshare ourur thoughts without you being obliged to
thoughts without you being obliged to notify the defencenotify the defence’’ [tab 9]. [tab 9]. iv.
iv. 29 November 2013, The CPS29 November 2013, The CPS to Swedish prosecutor: ‘to Swedish prosecutor: ‘ I must apologise I must apologise for the time
for the time taken to let taken to let you have my thoughts. I you have my thoughts. I attach an article fromattach an article from yesterday
yesterday's 's [London] Times. [London] Times. I have I have absolutely no absolutely no idea what idea what may havemay have prompted
prompted the article the article or what or what discussions discussions or negotiations or negotiations may hmay have bave beeneen going on. I most certainly have not been involved in them. I am not sure going on. I most certainly have not been involved in them. I am not sure to what extent you are aware of this
to what extent you are aware of this apparent [US] development or if itapparent [US] development or if it affects your general views
affects your general views’’ [tab 9]. The two paragraphs that follow have [tab 9]. The two paragraphs that follow have been redacted by the CPS, but
been redacted by the CPS, but appear to be referencing an article appear to be referencing an article aboutabout US prosecution prospects.
US prosecution prospects. k.
k. Throughout all this, Mr Assange, through his Swedish lawyers, was proactive inThroughout all this, Mr Assange, through his Swedish lawyers, was proactive in attempting to progress the Swedish investigation, including to facilitate the attempting to progress the Swedish investigation, including to facilitate the interview of him [ta
interview of him [tab 18]. Indeed he brougb 18]. Indeed he brought successive proceedings before theht successive proceedings before the Swedish court to request the Swedish prosecutor to do so. Eventually, the Swedish court to request the Swedish prosecutor to do so. Eventually, the Swedish c
(Swedish Court of Appeal ruling dated November 2014 [tab 10], p9), and the (Swedish Court of Appeal ruling dated November 2014 [tab 10], p9), and the prosecutor therefore then
prosecutor therefore then did proceed to did proceed to interview, which finally occurred twointerview, which finally occurred two years later in the Embassy in November 2016 [ta
years later in the Embassy in November 2016 [tab 13].b 13]. l.
l. In conjunction with Mr Assange’s attempts to engage with the investigation, hisIn conjunction with Mr Assange’s attempts to engage with the investigation, his Swedish lawyers inspected the telephone records of the complainants (see, eg. Swedish lawyers inspected the telephone records of the complainants (see, eg. Swedish Court of Appeal ruling dated 20 November 2014 [tab 10], p3-4). That Swedish Court of Appeal ruling dated 20 November 2014 [tab 10], p3-4). That inspection revealed text mes
inspection revealed text messages between the two complainants in which theysages between the two complainants in which they said,
said, inter aliainter alia, that there had been, that there had been no rape, that it was the ‘no rape, that it was the ‘ police who police who made upmade up the charges
the charges’, and which made’, and which made reference to selling their stories for money to a reference to selling their stories for money to a tabloid newspaper. One Swedish police statement referred to one of the tabloid newspaper. One Swedish police statement referred to one of the complainants feeling ‘
complainants feeling ‘railroaded by the police and othersrailroaded by the police and others’’ [tab 18]. [tab 18].1515 When When interviewed in 2016, Mr Assange drew attention to these [tab 13].
interviewed in 2016, Mr Assange drew attention to these [tab 13]. m.
m. After further investigation, the Swedish investigation was discontinued in MayAfter further investigation, the Swedish investigation was discontinued in May 2017 [tab 14].
2017 [tab 14]. 28.
28. It is thus clear that it was notIt is thus clear that it was not Mr Assange’s absence from Sweden thatMr Assange’s absence from Sweden that had prevented thehad prevented the underlying Swe
underlying Swedish invedish investigatstigation from continuing between 2012 and ion from continuing between 2012 and 2017. He co2017. He continuedntinued to engage and cooperate with it.
to engage and cooperate with it.
Conclusion
Conclusion
29.29. In all the circumstances, the In all the circumstances, the defendant respectfully invites the Court to reflect the abovedefendant respectfully invites the Court to reflect the above matters in the sentence it now passes.
matters in the sentence it now passes.
Tuesday, April 30, 2019 Tuesday, April 30, 2019 Mark Summers QC Mark Summers QC Matrix Matrix 15.
