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Thursday, 2 May 2019

Julian Assange - A mitigation arguments in Crown Court sentencing hearing - Full description - 02 May 2019


 1
IN THE SOUTHWARK CROWN COURTBETWEEN:REGINA
v
JULIAN PAUL ASSANGEDefendant
 ________________________________________________________ NOTE OF MITIGATION _______________________________________________________For hearing on 1 May 2019 before HHJ Taylor
Chronology
1.
On 24 February 2011 the de
fendant’s ext
radition to Sweden was ordered by the (then)Senior District Judge Riddle.2.
On 2 November 2011, an appeal to the High Court against that order was dismissed (the
High Court holding (a) that Mr Assange was ‘
accused’ 
 in Sweden despite not having
 been charged there and (b) that the Swedish prosecutor was a 
 judicial authority’ 
 for the purposes of the EAW scheme).3.
On 30 May 2012, an appeal to the Supreme Court on the latter issue was dismissed.4.
On 14 June 2012, an application to re-open the Supreme Court appeal was dismissed andtime for surrender (pursuant to s.36 of the 2003 Act) was ordered to commence on 29June 2012.5.
Save for a period of initial detention in custody, the defendant had been on bailthroughout with conditions,
inter alia
, requiring him to (a) reside at a nominated address,(b) to report daily to a police station, (c) wear an electronic tag, and (d) to surrender to thecustody of the police as and when required to do so in order to affect surrender [tab 5].6.
On 19 June 2012, the defendant entered the Ecuadorian embassy. The reason for so doingrelated to his publically expressed fear that he would surrendered to the USA by Sweden,and be subjected to treatment there, including persecution and indefinite solitaryconfinement, relating to
his involvement in WikiLeaks’ publication of sensitive
USmilitary and diplomatic materials (such as the UN Special Rapporteur on Torture hadconcluded happened to Chelsea Manning).

 2
7.
On 28 June 2012, in accordance with
 R (Hart) Bow Stre
et Magistrates’ Court 
 [2002] 1WLR 1242, the police served upon the defendant a notice to surrender (to Belgravia police station on 29 June 2012) [tab 6]. The defendant failed to surrender as required.8.
On 29 June 2012, DJ Purdy issued a warrant for the de
fendant’s arrest
 under s.7 of theBail Act 1976 [tab 7].
1
 9.
O
n 16 August 2012, the defendant’s
humanitarian diplomatic asylum status was declared by Ecuador, based upon its assessment of a well-founded risk of him being
refouled 
 bySweden to the USA and there being subjected to persecution, inhuman treatment and physical harm.10.
On 8 October 2012, the (then) Senior District Judge ordered the forfeiture of sureties inthis matter
totalling £93,500 (pursuant to s.120 of the Magistrates’ Court Act 1980
), and£200,000 security [tab 8].
The Senior District Judge noted that the possibility that Mr
Assange’s asylum situation might afford him a substantive defence (reasonable excuse) toa Bail Act charge ‘
cannot be excluded’ 
 (p5).11.
In the same vein, on 4 December 2015, the UN Working Group on Arbitrary Detention
(‘UNWAG’)
 ruled (opinion 54/2015) that the defendant was being involuntarily deprivedof his liberty in the embassy (being forced to choose between remaining in the embassyand exposed to the situation from which he had been granted asylum is not free choice)[tab 12].12.
On 26 May 2017, the EAW was withdrawn (under s.41 of the 2003 Act) followingdiscontinuance of the underlying Swedish investigation and the underlying arrest warrantin Sweden.13.
On 6 February 2018, following submissions, the Senior District Judge ruled that the s.7Bail Act warrant remained valid and enforceable notwithstanding the discontinuance ofthe predicate extradition proceedings.14.
On 16 February 2018, the Senior District Judge further ruled that it remained in the public interest for the court to initiate breach proceedings under s.6 of the Bail Act, in theevent that the defendant left the embassy.
2
 15.
On 11
April 2019 Ecuador revoked the defendant’s asylum and invited UK police into
the embassy to arrest him.16.
On the same date, the defendant was brought before DJ Snow. The Court initiated s.6 proceedings against the defendant (in accordance with the 16 February 2018 rulingreferred to above). The defendant pleaded not guilty but was convicted, and committed tothis Court for sentence.
1. Re-issued on 15 July 2014 owing, it is believed, to technical fault in the first warrant.2. Where bail is granted by court, as here, and such proceedings are appropriate, they are initiated by thecourt: Criminal Practice Direction 2015, §14C.4.

 3
17.
He has not appealed that conviction and now stands to be sentenced.
Sentencing powers
18.
The Court’s sentencing powers below were limited to 3 months’ imprisonment and/or a
fine (ibid).19.
The maximum sentence in the Crown Court
is 12 months’ imprisonment
and/or a fine(s.6(7) Bail Act).
Mitigation
20.
First
, the background to, and the defendant’s reasons for, failing to surrender (even if they
do not constitute a defence to the charge) constitute a serious explanation for his conduct:a.
As will be known, Wikileaks published, in November 2010, together with othersa significant number of redacted U.
S. State department diplomatic ‘
cables
 allegedly provided by US Army Private Chelsea Manning (then known asBradley). b.
On 27 May 2010, Manning was arrested in respect of her alleged provision ofthose documents to WikiLeaks.c.
In July 2010, Manning was charged with offences, including
aiding the enemy
,a capital offence which carried the death sentence.
d.
Manning was then held at the Marine Corps Brig, Quantico in Virginia, from July2010 to April 2011 under
Prevention of Injury
 status, which entailed
de facto
 solitary confinement and other restrictions (including sleep deprivation and being forced to sleep naked) that caused domestic and international concern.
3
e.
After his arrest in the UK in December 2010, Mr Assange consistently and publically expressed his fear of onward
refoulement 
 once in Sweden to the USA(and of being subjected to similar treatment to that which Manning had received):
‘…
 Mr Assange’s strongly held fears of being removed to the United
States. That fear was held, and publicly expressed, right from the very

beginning. Indeed, in the early days there was a widely expressed view

that extradition to Sweden was a masquerade for the real intention of theSwedish authorities to forward Mr Assange to the United States and evenGuantánamo Bay. The theory was expressed in a number of ways,including openly in court, but there can have been no doubt that this wasa fear operating on the mind of the defendant in the extradition

 proceedings
…’
 (Senior District Judge Riddle, judgment, 8 October 2012,[tab 8] p.12).

 4
f.
US officials had publically called for the death penalty in respect of Mr Assange.
4
 g.
It was publically known from 2010 that US prosecuting authorities had opened aninvestigation into Mr Assange and it was feared that he might be the subject of asealed US indictment.
5
 h.
It was also reported publically in 2010 that ‘
informal discussions have alreadytaken place between US and Swedish officials over the possibility of theWikiLeaks founder Julian Assange being delivered into American custody
’.
6
 i.
In February 2012, the UN Special Rapporteur on Torture confirmed that Manningwas subjected to inhuman and degrading treatment (report, 29 February 2012).
7
  j.
On 14 June 2012, when the order for his extradition to Sweden became final, hissurrender to Sweden was now inevitable.k.
Sweden had, at the material time, a well-documented history of direct
refoulement 
 of persons to states in which they were at significant risk of ill-treatment,including torture and death.
8
4. For example, Mick Huckabee, Republican candidate for the 2010 Presidential election had called for those
responsible for the leaking of the US Embassy cables to be executed (‘
US embassy cables culprit should beexecuted, says Mike Huckabee: Republican presidential hopeful wants the person responsible for the
WikiLeaks cables to face capital punishment for treason’ 
had called for the death penalty ‘
 Leading US political figures have called for the death penalty tobe imposed on the person who leaked sensitive documents to whistle-blower website WikiLeaks as anger
intensified against those responsible for the international relations crisis’ 
, The Telegraph, 10 January2011)(https://www.telegraph.co.uk/news/worldnews/wikileaks/8172916/WikiLeaks-guilty-parties-should-face-death-penalty.html). Sarah Palin, former Republican Vice-Presidential candidate, had said that Mr.
Assange ‘
should be hunted down just like al-Qaeda and Taliban leaders
’, The Telegraph, 30 November
2010(https://www.telegraph.co.uk/news/worldnews/wikileaks/8171269/Sarah-Palin-hunt-WikiLeaks-founder-like-al-Qaeda-and-Taliban-leaders.html).5. It was later widely reported that the US interest in him was real and that criminal proceedings were in trainin the USA in respect of Mr Assange: a Grand Jury had been empaneled in Virginia and the US AttorneyGeneral has said publically that
Mr Assange’s arrest wa
s a
 priority’ 
. In 2017, then FBI director James
Comey told Congress that the only reason Mr Assange ‘
hasn't been apprehended is because he's inside the Ecuadorea
n embassy in London’ 
stated Mr Assange has ‘
no first amendment rights
’ (The Intercept, 14 April 2017)
Assange’s arrest is a ‘
 priority’ 

8. Sweden had been the subject of number of judgments related to this practice: see e.g.
 A.S. v Sweden
,Communication No. 149/1999, U.N. Doc. A/56/44 at 173 (2001); 
, Communication No.185/2001, U.N. Doc. A/57/44 at 198 (2002);
C.T. & K.M. v Sweden
, Communication No. 279/2005, U.N.Doc. CAT/C/37/D/279/2005 (2007);
 Bader v Sweden
 (2008) 46 EHRR 13;
 RC v Sweden
 (2010) App.

 5
l.
Regarding the USA in particular, Sweden also had, at the material time, a longand unfortunate history of illicit co-operation with the USA in the mistreatment ofdetainees and their rendition. The Court is respectfully invited to read, forexample, the UN
’s
Committee Against Torture’s
disturbing judgment in
 Agiza vSweden
 (2005) Communication No. 233/2003) (particularly §§10.2, 11.4, 12.28-30, 13.4-5) and
the UN’s Human Rights Committee’s judgment in
 Alzery vSweden
 (2006) Communication No. 1416/2005) (particularly §§3.10-11 & 11.6-7). In short, Sweden had passively allowed US military personnel to mistreatdetainees on Swedish soil (including stripping, blindfolding, hooding, manacling,forcible sedation by forced anal suppository, handcuffing into specially designedstress position harnesses etc.) and in delivering them to torture in third states. The judgments talk about
‘total surrender of power’ 
 by Sweden to the US authorities.m.
There existed no legal remedy available to him in the UK to protect against being
refouled 
 by Sweden to the USA.
9

n.
On 19 June 2012, Mr Assange accordingly sought refuge in the EcuadorianEmbassy and applied for asylum on grounds of fear of being
refouled 
 by Swedento the USA, and being subjected to ill-treatment there, including persecution,indefinite solitary confinement, and the death penalty.
10
 o.
On 16 August 2012, after careful investigation,
Mr Assange’s humanitari
andiplomatic asylum status was recognised (declared) by Ecuador, based upon itsassessment of a well-founded risk of him being
refouled 
 by Sweden to the USAand there being subjected to persecution, inhuman treatment and physical harm.21.
In that regard, the Court is invited to also note that, on 4 December 2015, the United Nations Working Group on Arbitrary Detention
(‘UNWAG’)
 ruled (opinion 54/2015)
11
 that being forced to choose between remaining in the Embassy and being exposed to thesituation from which he has been granted asylum; was not a free choice [tab 12].
12
 22.
On 8 October 2012, the (then) Senior District Judge noted that (although not broadlyrelevant to the liability of the sureties) the
 possibility that Mr Assange’s
 asylum situationmight afford him a substantive defence in law (reasonable excuse) to a Bail Act charge
cannot be excluded’ 
 [tab 8, p5].
41827/07, March 9;
 Njamba & Balikosa v Sweden
, Merits, UN Doc CAT/C/44/D/322/2007 (UNCAT2010);
 N v Sweden
 (2010) App. 23505/09, July 20;
 Aytulun & Güclü v Sweden
, Merits, Communication No 373/2009, UN Doc CAT/C/45/D/373/2009 (UNCAT 2010). See also
 Agiza
 and
 Alzery
 referred to below.9.
 Khemiri & others v The Court of Milan Italy
 [2008] EWHC 1988 (Admin).10. In February 2013, Manning pleaded guilty to 10 of the charges she faced. Between June-July 2013,Manning was tried in respect of the remaining charges, of which she was convicted of 21, but acquitted ofaiding the enemy (and hence avoided the death penalty). In August 2013, Manning was sentenced to 35years' imprisonment.11.http://www.ohchr.org/Documents/Issues/Detention/A.HRC.WGAD.2015.docx 12.
The ECHR likewise recognises that someone’s freedom of choice in such a situation becomes ‘theoretical’
 See eg.
 Amuur v France
 (1996) 22 EHRR 533, §48.

 6
23.
DJ Snow ruled otherwise, and the defence have not challenged that legal ruling, but themitigating force of the
context of the defendant’s actions
remains very relevant.24.
Secondly, Mr Assange wishes to provide to the court a personal expression of regret, to be provided in writing to the Court at the hearing.25.
Thirdly, as a result of his actions, Mr Assange has suffered very significant consequencesfor himself, punitive, significant and enduring in their nature:a.
He has spent almost seven years in confined conditions, without access toadequate medical care, space and natural light, in which circumstances his physical and psychological health have significantly deteriorated. In the timesince being notified of the listing of this matter, it has not been possible to provide updated medical evidence. We attach for
the Court’s
information earliermedical evidence from psychologist Dr Michael Korzinski (considered by theUNWAG and updated in 2017) outlining the psychological consequences [tab 16]and from Dr Tim Ladbrooke outlining the physical consequences [tab 17]. Wetrust that the court will accept from his lawyers that, since his admission to HMPBelmarsh, the defendant is currently the subject of a battery of tests and medicalintervention. b.
In particular, the circumstances of the past last two years he spent inside theembassy since May 2017, after the Swedish and extradition proceedings hadconcluded (and which period is solely referable to his fears concerning exposureto the USA), have been experienced by him as severe.c.
He has also forfeited significant security.26.
Fourthly, in most situations in which a defendant fails to surrender, his actions have (andare intended to have) a paralytic effect on the predicate criminal process. This case isdifferent. In short, he at all times remained (as he had been until then) willing andavailable to be interviewed to progress the Swedish investigation. As soon as he enteredthe embassy, he immediately notified the Swedish authorities of this.27.
In greater detail (and for the sole purpose of setting out the relevant history):a.
The preliminary investigation in Sweden concerned events that occurred inAugust 2010. The Chief Prosecutor of Stockholm determined that there was noevidence to support an allegation of rape. A public prosecutor in a different city(Goteborg) later reactivated the matter for investigation. b.
Mr Assange voluntarily remained in Sweden to cooperate with the preliminaryinvestigation and, on 30 August 2010, attended for police interview, answering allquestions asked of him.c.
On 15 September 2010, the prosecutor infor 
med Mr Assange’s counsel
in writingthat he was free to leave Sweden, which he did.

 7
d.
On 27 September 2010, the prosecutor issued an arrest warrant.e.
In the weeks that followed, Mr Assange offered to return to Sweden for interview,which offer was rejected by the prosecutor. On 12 November 2010, he offered to be interviewed by telephone or video-link interview, or to provide a statement inwriting, or to attend an interview in person at the Swedish embassy, all of whichare permissible in Sweden, all of which were declined by the prosecutor.f.
 Notwithstanding that Mr Assange had not been charged with any criminaloffence, on 2 December 2010, an EAW was issued by the prosecutor (rather than by a court). On 7 December 2010, the defendant voluntarily surrendered himselffor arrest by appointment in the UK.
 13
 g.
Those UK proceedings then concerned,
inter alia
, whether Mr Assange was
accused’ 
 in circumstances where Sweden could proceed (but was not proceeding) to interview him to progress its ongoing investigation. Sweden
’s
 position maintained before the extradition court was that
this is not anappropriate course in Assange's case. The preliminary investigation is at anadvanced stage and I consider that is necessary to interrogate Assange, in person, regarding the evidence in respect of the serious allegations made againsthim
.h.
What has since emerged (as a result of Freedom of Information requests made bythe press) is that the Swedish prosecutor was desirous of interviewing MrAssange by telephone or in London, but was advised not to do so by the CPSduring the currency of the extradition proceedings. The purpose of the followingit not to criticise the CPS, but to set out the relevant history:i.
In December 2010/January 2011, the CPS advised the Swedish prosecutornot to question Mr Assange over the telephone nor to question him inLondon (
 Maurizi v CPS and the Information Commissioner 
, First TierTribunal, General Regulatory Chamber, Appeal No: EA/2017/0041, [tab15] §40).
14
ii.
On 25 January 2011: the CPS repeated their advice to the Swedish
 prosecutor not to question Mr Assange: 
 My earlier advice remains, thatin my view it would not be prudent for the Swedish authorities to try tointerview the defendant in the UK. Such an interview would need to be pursuant to a
letter of request…Even if 
 the defendant was to consent tosuch an interview [by appointment] on a mutually agreed basis, thedefence would without any doubt seek to turn the event to its advantage. Itwould inevitably allege it was conclusive proof that the Swedishauthorities had no case whatsoever against him and hence the interviewwas in the hope that he would make a full and frank confession. He wouldof course have no obligation [under English law] to answer any
13. See, generally, the Agreed Statement of Facts and Issues before the Supreme Court in 2012 [tab 4] forthe relevant factual history to that point.14.http://download.repubblica.it/pdf/2017/esteri/decisione-maurizi.pdf  .

 8
questions put to him. Any attempt to interview him under strict Swedishlaw would invariably be fraught with problems. General experience hasalso shown that attempts by foreign authorities to interview a defendantin the UK, frequently leads to the defence retort that that someinducemen
ts or threats were made by the interviewers…Thus I suggest
 you interview him only on his surrender to Sweden and in accordancewith Swedish law
 [tab 9].i.
After Mr Assange entered the embassy on 19 June 2012, he made clear that heremained willing to be interviewed to progress the Swedish investigation [tab 18].The position, however, remained static. j.
In October 2013, Sweden advised the CPS that it proposed to withdraw the EAW.The CPS persuaded it not to:i.
18 October 2013: Swedish prosecutor to the CPS:
There is a demand inSwedish law for coercive measures to be proportionate. The time passingthe costs and how severe the crime is to be taken into account togetherwith the intrusion or detriment to the suspect. Against this background wehave found us to be obliged to consider to lift the detention order (courtorder) and to withdraw the European arrest warrant. If so this should bedone in a couple of weeks. This would affect not only us but you too in asignificant way
 [tab 9].ii.
18 October 2013: The CPS
to Swedish prosecutor: ‘
 I'd like to consider allangles
 [tab 9].iii.
21 October 2013: Swedish prosecutor to the CPS
 I am sorry that thiscame as a (bad) surprise. It is certainly OK for you to take your time tothink this over. Since middle of September I and [redacted] have beendiscussing the situation and I wasn't sure of it being possible to share ourthoughts without you being obliged to notify the defence
 [tab 9].iv.
29 November 2013, The CPS
to Swedish prosecutor: ‘
 I must apologise for the time taken to let you have my thoughts. I attach an article from yesterday's [London] Times. I have absolutely no idea what may have prompted the article or what discussions or negotiations may have beengoing on. I most certainly have not been involved in them. I am not sureto what extent you are aware of this apparent [US] development or if itaffects your general views
 [tab 9]. The two paragraphs that follow have been redacted by the CPS, but appear to be referencing an article aboutUS prosecution prospects.k.
Throughout all this, Mr Assange, through his Swedish lawyers, was proactive inattempting to progress the Swedish investigation, including to facilitate theinterview of him [tab 18]. Indeed he brought successive proceedings before theSwedish court to request the Swedish prosecutor to do so. Eventually, theSwedish court ruled that the failure to interview Mr Assange was disproportionate
(Swedish Court of Appeal ruling dated November 2014 [tab 10], p9), and the prosecutor therefore then did proceed to interview, which finally occurred twoyears later in the Embassy in November 2016 [tab 13].l.
In conjunction with
Mr Assange’s attempts to engage with the investigation, his
Swedish lawyers inspected the telephone records of the complainants (see, eg.Swedish Court of Appeal ruling dated 20 November 2014 [tab 10], p3-4). Thatinspection revealed text messages between the two complainants in which theysaid,
inter alia
, that there had been
no rape, that it was the ‘
 police who made upthe charges
’, and which made
 reference to selling their stories for money to atabloid newspaper. One Swedish police statement referred to one of the
complainants feeling ‘
railroaded by the police and others
 [tab 18].
15
 Wheninterviewed in 2016, Mr Assange drew attention to these [tab 13].m.
After further investigation, the Swedish investigation was discontinued in May2017 [tab 14].28.
It is thus clear that it was not
Mr Assange’s absence from Sweden that
had prevented theunderlying Swedish investigation from continuing between 2012 and 2017. He continuedto engage and cooperate with it.
Conclusion
29.
In all the circumstances, the defendant respectfully invites the Court to reflect the abovematters in the sentence it now passes.Tuesday, April 30, 2019
source: