Quote tb="tb"It was common cause in the High Court appal - ie, both the Crown and Mr Assange agreed - that he was wanted not simply for questioning but for the purpose of prosecution.
Hey, but feel free to keep an arguing a legal nonsense when even Assange says you're wrong ...'"
Except that actually, it's not a legal nonsense. In order to get your head around it, it would be necessary for you to wade through the most recent judgment, of the Supreme Court, which can be found at this link:
[urlhttp://www.bailii.org/uk/cases/UKSC/2012/22.html[/url
The Supreme Court judgment is based on the interpretation of various bits of Swedish, English and EU law. It would be impossible to briefly summarise even this one aspect of it, and so I do not even attempt, but instead draw attention to the fact that in EU law, legislation is drawn up in one main language (in this instance, French), and while it is then translated into all the other EU languages, we have to note that:
(a) a direct translation is often impossible, for reasons including that the legal systems in various countries as well as the nature and roles of their judicial institutions are very different. Eg a word such as "judicial" can mean a range of different things and doesn't translate into one all-encompassing accurate foreign word.
(b) the language of the prime text takes precedence. Thus it is necessary to consider what the actual law is in the French. Even if the English version clearly says one thing, nevertheless if the French version actually means something else, that displaces the clear English words.
"Prosecution" is a term which can mean all sorts of things to different nationalities but the point here is that a person who is wanted for questioning because serious allegations (like rape) have been made against them is, for this purpose, wanted "for the purposes of conducting a criminal prosecution" and that is despite the fact that they have not yet been charged, and might never be charged.
The relevance is, of course, that an EAW (European Arrest Warrant) in Assange's case needs to be for the purposes of conducting a criminal prosecution, so what you need to get your head around is that the Swedish "criminal prosecution" does NOT start only at the moment when a formal decision to prosecute is made, but includes the pre-charge activity which is the stage that Assange's case has reached.
And so yes, he is wanted for questioning, and has not been charged. And also, at the same time, he is wanted for the purposes of conducting a criminal prosecution.
The appeal to the Supreme Court, incidentally, was restricted only to the issue of whether the EAW had been issued by a "judicial authority" and the answer to that particular question is as clear as mud. It is a classic example of how rubbish our government is at drafting legislation, and how ready it is to plough on and force the issue and push things through even when specific potential problems are nailed to its forehead, and when clearly ministers are bot misinformed, and don't bother to check basic points. As a result, this EAW was (so the majority of the law lords held) issued by a "judicial authority" when in plain speak it certainly wasn't, it was issued by a prosecutor; but it goes something like this: in Sweden, before EAWs, prosecutors were among those who could issue a detention request; what we need to know is who can actually issue such things in any given member state, and as before EAWs, the Swedish prosecutor could do so, then that makes them "count" as a "judicial authority" for the purposes of an EAW. Even though they are clearly (to an English lawyer) no such thing; and even though when the thing was being debated in committee etc ministers assured parliament that EAWs would only be signed off by a judge, or a court. In other words, we envisioned a process whereby a prosecutor would go to a Swedish court or judge, set out their case and grounds, and have to convince the court or judge to issue the EAW. Whereas the result of the awful drafting, bad translation, and failure to heed direct criticism, has led to a situation where the reverse is true, and a Swedish prosecutor is thus deemd a "judicial authority" for the purposes of this EAW, which is therefore valid.
I would also point out that the question of whether Assange's being wanted for questioning counted as being wanted for the purposes of prosecution was answered in the affirmative by the judge who originally heard the case, and he found this:
Quote tbSo, says the defence, the warrant has not been issued specifically for prosecution. It has simply been issued for
the purposes of legal proceedings. Nowhere in the warrant is the requested person referred to as an “accused”.
Similarly there is no reference to him ever having been charged or indicted. Because the warrant is equivocal, the
court is entitled to examine extrinsic evidence. Moreover this is an exceptional case because the prosecutor
herself had made clear unequivocal public statements that no decision has been taken yet as to whether to
prosecute Mr Assange and that the EAW has been issued for the purpose. Merely for questioning him further.
However the defence did not accept that it is necessary to find that this is an exceptional case in order for the
court to consider the evidence bearing on the subject.
I am satisfied that there is no equivocal statement or ambiguity in the warrant. The English version of the
warrant states that it is for the purposes of conducting a criminal prosecution or executing a custodial sentence
or detention order. The warrant refers to offences, indicates the relevant provisions of Swedish criminal law;
and identifies specific conduct against Mr Assange . There is simply nothing equivocal about the English version
of the warrant. As for the Swedish language version, “lagforing” is the term used in the official Swedish
language version of the Framework Decision. Mr Robertson says this is not to the point: it simply indicates that
all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision
was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A
request for the purposes of “lagforing” is a lawful request for the purpose of the Framework Decision and the Extradition Act 2003. '"
If you want to read the whole thing,the full report is here:
[urlhttp://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/Misc/2011/5.html[/url
As for Assange saying this is wrong, well, I'm sure as hell he ain't happy about it, but as he did not appeal against this finding to the Supreme Court, what do you conclude?
I have no sympathy with Assange, who should have stayed to face the music, but I have great respect and admiration for Lord Mance, a brilliant jurist, and one of the 2 dissenting Lords of Appeal (the decision was 5-2), and had I been one of the judges then I would have sided with him. You may disagree, but I would recommend his judgment (para. 195 [iet seq.[/i as a compelling read for those with an interest in such things and even if you do, you have to concede that he has a point.
