Common misconceptions

A quick summary of the common misconceptions in the Assange case, and why they are misconceptions.

Since this list was first compiled, more qualified people have analysed them, and we have updated where necessary. Experienced lawyer David Allen Green wrote about “legal myths” of the case – but so established are these myths that he had to write a second article explaining why all the criticism of his first was wrong!

We highly recommend Mr Green’s blog and the links from it to other legal experts, but we cover some items here that the experts have not yet written about.

Some misconceptions originating from Mr Assange can be found here, and we note what Nick Davies, an award-winning journalist journalist who worked closely with Wikileaks says here (32 minutes in):

Juilian [Assange] is spectacularly dishonest.. I don’t think I have ever met a human being as dishonest as Julian… The significances of the story of the two women in Stockholm is the ease with which that man and his supporters have been able to use the internet and the mainstream media with all its weaknesses to mislead millions of people..  there is almost no lie that Julian and his supporters can come up with which can’t be conveyed through the internet and also through the mainstream media..

Quick Links (some redirect to other pages on this site)
Assange has not yet been charged with anything (it reached the equivalent stage in 2010)
Assange is only wanted for questioning (actually criminal proceedings)
Sweden refuse to guarantee no extradition to USA (they can’t, legally)
Prosecutor gave permission for Assange to leave Sweden (no force measures were in place)
Is Assange willing to return to Sweden?
Prosecutor made no attempt to interview Assange in Sweden (a date was set for the day after Assange left)
Is appealing a decision by a prosecutor unusual in Sweden? (it doesn’t happen a lot, but 12% of appeals get upheld)
Sweden extradite for espionage (they don’t)
US allegations of espionage and extradition from Sweden (Sweden don’t extradite for that)
Extradition, deportation, and rendition (Egyptians and past mistakes)
Do the two women have a “Lawyer”? (no)
Assange admitted the allegations (he didn’t, and nor did his lawyer)
It wouldn’t be rape outside of Sweden (it would be, says English High Court)
Can extradite without prima facie evidence (true, but prima facie evidence isn’t proof)
Temporary Surrender is a “back door” (it is a standard process)
Grand Juries can bypass due process (they are part of the due process)
Expert witness opinion says… (expert opinions were based on false information)
Sweden have never refused an extradition from the USA (they have – for espionage)
Red Notices are for terrorists and dictators (they are for any arrest at any level of crime)
Orange notices are less important than Red Notices (they warn of wars, felling dictators, prison breaks etc)
Assange was under House Arrest (he was released on bail with a curfew)
Could the USA extradite Assange for something else and then charge him with espionage? (no; this is not possible)
But what if the USA went ahead and added extra charges anyway? (they wouldn’t be able to extradite anyone else; so they’d likely just wait for Assange to be back in the UK and apply to the UK)

“Mr Assange hasn’t been charged with anything”

This one is not so much false as very misleading, but is again frequently cited by wikileaks and many other sources.  In the UK, the Crown Prosecution Service charge a suspect when police have gathered enough evidence to bring criminal proceedings.  Sweden has a different process, which the High Court summarised quite clearly (see Ground 3):

Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced…. On this basis, criminal proceedings have commenced against Mr Assange.

Thus, stating that Mr Assange has not been charged implies that criminal proceedings have not begun.  This is absolutely not the case.  It would be more accurate to say that Mr Assange has been avoiding being charged, or that he faces charges immediately upon his return to Sweden.

The original Supreme Court judgement stated that Assange “stands charged”. As can be seen from the High Court judgement, this is not understood to be the case, due to the different times at which charges are brought in Sweden. In England, charges mark the clear beginning of criminal proceedings.  While criminal proceedings have begun in Sweden, formal charges are only laid immediately before trial. It was pointed out to the Supreme Court that their statement was wrong, and they amended it.  The judgement does note, however, on page 90, that the extradition process is so that suspects can “face charges”.  The Supreme Court did not make any correction to the fact that Mr Assange faces criminal proceedings – just their own error which contradicted the High Court.

It is worth comparing the extradition process in the recent case of Jeremy Forest, who illegally took a schoolgirl to France with him.  A European Arrest Warrant was issued, then French police arrested and detained him, and he was then extradited. He was charged on his arrival back in the UK – the English police having no power to charge him whilst he was abroad.  Mr Assange remains outside of Sweden; he similarly cannot be formally charged until he returns.

Had Mr Forest fought extradition, then he, like Mr Assange, could accurately claim to have been detained without charges for an extended period. He would, however, like Mr Assange, be subject to criminal proceedings.

“Mr Assange is only wanted for questioning”

This is outright false, but is again frequently claimed by lots of sources who should know better.  The Guardian, the BBC, and far too many others to mention.

Questioning is not a valid reason for extradition.  But the Swedish authorities have not issued any warrants for Mr Assange for just questioning.  The High Court made this very clear (page 4):

It was common ground that extradition is not permitted for investigation or gathering evidence or questioning

You can’t get much clearer than that: the prosecution stated quite openly that if they wanted Mr Assange for questioning, then they shouldn’t be given him.  Mr Assange will be arrested, questioned, and then perhaps charged and put on trial by the Swedish authorities.  That’s not questioning.

“The prosecutor gave permission to Mr Assange to leave the country”

This is very misleading.  The words of Mr Assange’s lawyer Mr Hurtig himself are recorded in the court record (page 7):

On 15th September Ms Ny told [Mr Hurtig] there were no “force measures” preventing Julian leaving the country, i.e. he was allowed to leave… [Hurtig] phoned his client to say he was free to leave the country

So what actually happened was that Mr Hurtig’s lawyer asked if the prosecution were able to detain Mr Assange at that point. They couldn’t, therefore he was able to leave the country.

This is quite different to being given permission to leave.

“The prosecutor made no attempt to interview Mr Assange”

Mr Assange’s own lawyer (Mr Hurtig) said this but changed his evidence in court.  The court record  (starting at the bottom of page 7) is quite clear enough. Some of the [clarifications due to abbreviation] are mine and some are the court’s.

In cross-examination the Swedish lawyer confirmed that paragraph 13 of his proof of evidence is wrong… [it reads] “in the following days [after 15th September] I telephoned [Ms Ny] a number of times to ask whether we could arrange a time for Mr Assange’s interview but was never given an answer, leaving me with the impression that they may close the rape case without even bothering to interview him.

He agreed that this was wrong. Ms Ny did contact him… He then confirmed that on 22nd September 2010 at 16.46 he has a message [still on his phone] from Ms Ny saying: “Hello – it is possible to have an interview Tuesday”. Next there was a message saying: “Thanks for letting me know. We will pursue Tuesday 28th at 1700”…

He conceded that it is possible that Ms Ny told him on the 21st that she wanted to interview his client. She requested a date as soon as possible. He agrees that the following day, 22nd, she contacted him at least twice.

Then he was then cross-examined about his attempts to contact his client. To have the full flavour it may be necessary to consider the transcript in full. In summary the lawyer was unable to tell me what attempts he made to contact his client, and whether he definitely left a message… He said “I don’t think I left a message warning him” (about the possibility of arrest). He referred to receiving a text from Ms Ny at 09.11 on 27th September, the day his client left Sweden…

Mr Hurtig was asked why he told Brita Sundberg-Wietman that Ms Ny had made no effort  to interview his client. He denied saying that and said he has never met her. He agrees that he gave information to Mr Alhem.

He agrees that where he had said in his statement (paragraph 51) that “I found it astonishing that Ms Ny, having allowed five weeks to elapse before she sought out interview”, then that is wrong. He had forgotten the messages referred to above. They must have slipped his mind.

The witness had to leave to catch a flight… The witness was clearly uncomfortable and anxious to leave.

It is worth noting that Mr Hurtig now states that he knew of the possibility of his client’s arrest before Mr Assange left Sweden, and was well aware that his client was wanted for questioning – and indeed appears to have arranged a specific date – several days before Mr Assange left Sweden.  He is unable to recall whether or not he informed Mr Assange of these important facts.

It was this behaviour that led the judge to draw the extraordinary conclusion that Mr Hurtig had deliberately intended to mislead the court and which drew a warning from the Swedish bar association.

Whether deliberate or not, he has certainly misled a lot of people, and this misconception is still common. He also misled the Expert witnesses (see next section).

Expert Testimony of Mr Sven Erik Alhem and Brita Sundberg-Weitman

This crops up quite a lot.  Mr Alhem’s opinion was based on the same false information that Mr Hurtig originally gave the court (see above).

Mr Alhem has also voiced his opinion on this opinion piece: he thinks that Mr Assange should return to Sweden as soon as possible if the court decides to deny his appeal (which it did).  He also reportedly said in court that Mr Assange should return as soon as possible, and that an attempted extradition to the USA was very unlikely, and impossible without a media storm. This matches the opinion of Mark Klamberg.

In court, Alhem said (page 6):

It would be “completely impossible to extradite Mr Assange to the USA without a media storm”. It is quite right to say that he would not be extradited to the USA.

“Sweden has never turned down an extradition request from the USA”

There aren’t many requests back and forth between the two countries, but two stand out.  In 1992 Sweden  refused to extradite Edward Lee Howard, who had betrayed his CIA employers and sold secrets to the Soviet Union, devastating US operations in Moscow.

He was wanted for espionage in the USA for revealing US secrets – a moderately good parallel to Mr Assange.  Sweden arrested him, investigated, then released him, since the extradition treaty at the time didn’t recognise espionage as an extraditable offence.

Howard died peacefully in Moscow in 2002.

On the other hand, Sweden did (unlawfully) deport two terrorist suspects to Egypt.  It is also worth noting that the case in question caused a scandal in Sweden, and any attempt to do the same thing again would result in an outcry.  However, Amnesty International has noted that Sweden still have problems and still do not include torture in their penal code. It is our understanding that this does not affect extradition, however, since Sweden are still bound by EU and ECHR laws on torture, and cannot extradite in cases where the person may be tortured or evidence gained by torturing somebody else may be used against them.

As described above, expert witness Sven-Erik Alhem agrees.

“Red Notices are unusual for sexual crimes or used only for terrorists and dictators”

In summary, here is a Red Notice for a guy wanted for making voyeur videos of college girls.  Here are details of a Red Notice issued for drink driving.  All a red notice means is: “we want to arrest this person and we know they went abroad.  Please arrest and detain if seen.”

It is perfectly normal for any level of crime if the suspect has left the country.

“Gadaffi only got an Orange notice but Assange got a red”

Other wise known as the “traffic light mistake”, because people assume that because red is the bad boy of traffic lights, it must also apply elsewhere.  Easy to assume, but just as easy to check.  Orange notices warn of immediate threat to life, and are more serious than red notices which (as detailed above) can be issued for Drink Driving.

Gadaffi later had a red notice issued once Libya requested one.

“Mr Assange has admitted X via his defence lawyer in court”

This has lots of variations, but can often be found as “he admitted penetrating a woman while she slept – and this is his DEFENCE!”, or words to that effect.

But this hearing was an attempt to prevent extradition, not to answer the accusations.  Mr Assange’s lawyers had no need to present his defence and (as far as I can see) never attempted to.

In order to be extradited, a warrant must show dual criminality: that the accusations are illegal in both countries.  Mr Assange’s lawyers argued that even if the allegations were correct as described, it wouldn’t be a crime in the UK.  They also argued that the warrant misrepresented the accusations.

This is obviously a skeleton argument prepared by the Assange team, and it is where the misconceptions originate, I think.  Starting at paragraph 3.81, we find:

Whereas, an accurate summary  of the conduct alleged by SW  in her interview.. would have been that…

the lawyer then begins to outline the accusations made in an interview by one of the women.  In a stand-alone bullet point some way down:

she was woken by his (4th) penetration… [further allegations are then outlined]

Mr Assange’s lawyer is very careful to explicitly state again that it is a hypothetical discussion in paragraph 3.92:

..it is worthy of note that, even if (for the sake of argument) the description of the conduct had been fair and accurate, and [Mr Assange] had “deliberately consummated sexual intercourse with her improperly”…

I think that the belief that Mr Assange has admitted anything come from reading part of the transcript, and excluding the preceding and the following paragraphs which make it clear that the lawyer is assuming (for the sake of argument) that all the allegations are true in order to discuss the legal validity of the warrant itself.

“Mr Assange is under house arrest”

This is claimed frequently, especially by wikileaks:

Julian Assange, who has been under house arrest without charge for over 500 days…

But other major news sources are also getting this one wrong.  House arrest is when a person is permanently confined to a single place.  Typically they are also forbidden to contact anybody else.  A discussion on “House Arrest” and its meaning in the UK can be found here, starting on page 20 (note it is not a legal term in the UK, though control orders of the most strict natures have been likened to it).

legal definition does exist for the US state of House Arrest.

The real bail conditions are listed here on the BBC:

  • security of £200,000
  • surrender of passport
  • obey a (night-time) curfew at an address in Suffolk
  • wear an electronic tag
  • report to a local police station every evening

So his movement was restricted at night only; he was free to go anywhere he wanted (inside the UK) during the daytime, and to talk to whoever he wanted.  This is not house arrest; it is “being out on bail”.

It is interesting to compare these bail conditions to those of Craig Charles, who spent three months on remand in Wandsworth prison.

“It wouldn’t be classed as rape in the UK”

Again, the High Court was very clear indeed on this point.  Nobody contests that consensual sex occurred.  However, both women reportedly insisted that a condom be used.  Mr Assange is accused of having sex with one woman while she was either asleep or half asleep, and deliberately not using a condom.

There are two issues: firstly if the woman as not awake she cannot have consented (by definition) to sex on that occasion.  Secondly, her previous consent had been conditional on using a condom.  Therefore, starting to have sex without a condom whilst she was asleep would breach consent in two different ways.

From the High Court judgment, paras 124-126:

It is quite clear [that the accusation is] that Mr Assange had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom.  The description of the conduct makes clear that he consummated sexual intercourse with her when she was asleep… it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom.

…the fact of protected sexual intercourse on other occasions cannot show that she was, or that Mr Assange could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her… it is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent [emphasis added]

We are not qualified to guess as to what the court would have said had a condom been worn, but note that the court drew two items out of the allegation at the end of para 124: the state of sleep, and secondly sex without a condom.

The court dismissed the appeal that the offence would not constitute rape in England. This may be clearer from the Summary:

In respect of Offence 4, Mr Assange contended that whilst rape was a Framework Offence and therefore didn’t require dual criminality, the conduct described in the EAW was not fairly and accurately described and that if it had it would not be rape. (para 59)…

The Court rejected Mr Assange’s contention that under the law of England and Wales consent to sexual intercourse on condition a condom was used was remained consent to sexual intercourse even if a condom was not used or removed. (paras 86-91)

The Court ruled that Mr Assange’s objections raised in relation to Offence 4 [rape] fail. (paras 104 – 127)

The UK/US Bilateral Treaty allows the U.S.A to extradite from the UK without any prima facie case (i.e. evidence).

Sources: Christine Assange, via wlcentral and jaraparila

The prima facie requirement was removed in 2003. However, it is untrue to say that no evidence need be provided. Reasonable suspicion must still be shown – i.e. enough evidence to suggest that the person may have committed a criminal act. This cross-party Parliamentary report from 2012 has an explanation on page 7:

Since the abolition of the prima facie evidence test, there is no requirement to produce evidence as to the  guilt of the accused in order to effect an extradition; there is a requirement only to produce information—which may include information that would not be admissible as evidence in a trial—to pass the reasonable suspicion test

The treaty is controversial, and the amount of evidence required has been
reduced, but it is untrue to say that no evidence is required. In
addition, from this 2010 review:

7.66 …the prosecutor responsible for the case in the United States will either obtain an arrest warrant or a Grand Jury indictment together with an arrest warrant. In either case, it is necessary for the prosecutor to satisfy the probable cause standard…

7.68 …in all extradition requests where a person is sought for prosecution the probable cause test will have been satisfied in the United States.

The US prosecutor has to have enough evidence to convince a US court to issue an arrest warrant.

It would be true to say that the US are required to provide less evidence than they used to.

Interesting note: from the figures on page 472, the US has not rejected any of the 42 extradition requests from the UK between 2004-2011.  The UK has rejected 7 of the 65 US requests.

The Swedish/US Bilateral Treaty gets around safeguards of normal extradition with a fast-track “Temporary Surrender” clause.

Sources: Christine Assange, via wlcentral and jaraparila

Temporary Surrender looks to be true.  But it is invoked:

if the person sought is being prosecuted or is serving a sentence in the requested State for a different offense that state may… temporarily surrender the person solely for the purpose of prosecution

They would have been surrendered at the end of their prison term or prosecution (if found innocent) anyway, so it’s not a way around the actual surrender – “fast-track” is accurate here, but it doesn’t bypass any safeguards.

It is worth noting that the UK also has Temporary Surrender agreements:

Although permitted by UK law, some international extradition agreements do not permit temporary surrender.

And the USA have asked to use the provision from the UK in the past.

The US Grand Jury convenes in secret. There are 4 prosecutors, no defence, and no judge. It can issue indictments for Extradition with no proper legal process.

Sources: Christine Assange, via wlcentral and jaraparila

A good definition of Grand Jury can be found here:

An American criminal justice procedure whereby, in each court district, a group of 16-23 citizens hold an in camera inquiry [in private with no public access].. They… have access to a judge from time to time but just to guide them over legal hiccups, not to preside over their deliberations…

The Grand Jury is designed to be a buffer or a referee between the ever-powerful government (i.e the district attorney), and individuals who are charged with crimes…

It is a specific requirements [sic] set out in the US Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury”.

Some States have opted out of Grand Juries for non-capital crimes – and the prosecutor goes directly to the court.  Grand Juries are an extra step where cases are checked by ordinary citizens and are part of the proper legal process.  They are weighted towards the prosecution, but this is because Grand Juries are to prevent cases going to trial if the prosecution case (on its own) fails to convince.  They are regarded by some as a right of a defendant.

Finally, as the Parliamentary report quoted above already noted:

the United States will either obtain an arrest warrant or a Grand Jury indictment together with an arrest warrant

“Sweden have refused to guarantee they will not extradite Mr Assange to the USA”

This is true, but very misleading.  The Swedish process (link to Swedish Government website, but article is in English) is quite clear about the correct process.  A request must be made to the Swedish government as a first step.  The courts may evaluate the claim if it is disputed, and then (under some circumstances) the government has a final veto.  However , the government veto does not always apply – it depends on the extradition treaty – which the government cannot bypass without renegotiating the treaty with the other country.

Mark Klamberg, lecturer in International Law at Stockholm University has written a blog post with a lot more detail, and which was the basis of the post by lawyer David Allen Green.

But in any case, leaking is legal in Sweden and espionage is regarded as a political crime; so any such request from the USA would be refused, as it was for Edward Lee Howard.

“Couldn’t the USA just extradite Assange for something else and then get him for espionage?”

No; extradition laws are specifically designed to prevent this.  If the USA charged Assange with “hacking” or something other than espionage, the Swedes would simply ask: “was this a military computer?” and treat the allegation as espionage (which it clearly would be).

In addition, extradition treaties only allow the accused to be tried for the crimes they are extradited for.  A country cannot request extradition for one thing and then, when they have the person, suddenly say: “ah yes, but now we are also adding this charge.”

The person may voluntarily stay to face additional charges, but they cannot be made to do so.

Professor Wong, who is the authority that the Swedish Prosecutors direct enquires towards, is very clear on this (video link) in an aside while discussing onward extradition to the USA:

..the principle of speciality… he is surrendered to Sweden for a specific purpose, and that purpose is the prosecution for those counts of molestation, coertion and rape.  He cannot be prosecuted for anything else – unless of course he consents to it.

The reason that extradition treaties give this sort of stipulation is precisely to prevent such abuses of the process.

But what if the USA went ahead and added extra charges anyway?

An interesting hypothetical question. Once Assange got to the USA, a prosecutor could try and bring additional charges.

However, the court would refuse to indict (since the USA is bound by the extradition treaty, and it forms part of its laws).  Should the court allow the indictment, an appeal would be successful.

Should all the appeals all the way up the US court system violate the US laws and the extradition treaty and Assange was then put on trial for espionage or hacking, it would create an interesting political and legal situation. At that point, any suspect fighting extradition to the USA anywhere in the world could use this as a defence:

Your honour, if I am extradited to the USA, they are likely to violate the treaty.  They may add additional charges, and since it has been shown that they do not honour promises, I may face the death penalty or torture, even if they guarantee it.

All such appeals in the EU would be likely to succeed – which would effectively render all extradition treaties with the USA meaningless overnight.

It would be much simpler for the USA to wait for Assange to reach a country which does actually extradite for espionage (such as the UK or Australia).  Since Assange will be returned to the UK after the Swedish authorities are finished with the current allegations, the USA would be much more likely to simply request his extradition from there – which will be legal, much less complex, and stands a good chance of succeeding.  See the case of Gary McKinnon, who was facing extradition from the UK to the USA for precisely this sort of offence.

Mr McKinnon was not extradited in the end; the Home Secretary said that his mental health condition would make it a very real risk to his health – had it not been for that factor, he very probably would have gone.

4 Responses to Common misconceptions

  1. David McMahon says:

    The final paragraph may need slight updating in the light of the Home Secretary’s decision to block Gary McKinnon’s extradition, announced on 16 October.

  2. Shona Duncan says:

    Quote:~ A country cannot request extradition for one thing and then, when they have the person, suddenly say: “ah yes, but now we are also adding this charge.”

    Yes they can. You almost had me convinced until you said that.

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