On 11 April Julian Assange was arrested at the Ecuadorian embassy in London. He had been living there since 2012 when he was granted asylum by Ecuador. This followed a European Arrest Warrant (EAW) being issued, relating to a criminal investigation in Sweden. Mr Assange had appealed against the warrant and sought asylum at the embassy after losing his appeal in the Supreme Court.
Here we look at legal considerations for the UK in deciding whether to extradite Mr Assange to Sweden or the US.
What led to the arrest?
Ecuador revoked Mr Assange’s asylum meaning he could be arrested for failing to surrender in relation to the extradition proceedings. He was also served with a warrant for provisional arrest pending an extradition request from the US.
The Guardian reported that prior to revoking his asylum, Ecuador sought assurances from the UK Government that Mr Assange would not be subject to the death penalty or inhuman and degrading treatment in the event of his extradition. Under UK law people cannot be extradited if there is a possibility of the death penalty being imposed following a guilty verdict. This stems from the UK’s membership of the European Convention on Human Rights, to which Sweden is also a signatory.
Jeremy Corbyn and Shadow Home Secretary Diane Abbott have argued that the Government should refuse to extradite Mr Assange to the US, on the basis that “he is being pursued because he has exposed wrong doing by US administrations and their military forces.”
What has Julian Assange been accused of?
Mr Assange was wanted by Swedish authorities in relation to complaints made by two women of sexual assault and rape. He was released on conditional bail while his legal challenge to the EAW was ongoing. Having lost the final challenge in the Supreme Court he was required to surrender for extradition to Sweden as a condition of his bail. He failed to do so, which is a separate criminal offence for which he could receive a prison sentence of up to 12 months.
Swedish prosecutors subsequently announced the prosecution would be discontinued on the basis that it was not possible to continue the investigation without direct access to Mr Assange. However, it was clear it could be resumed if he became available at a later date. The time limit for bringing charges in relation to three of the allegations has now expired, and will do so in relation to the fourth allegation, of rape, in 2020. The Swedish Prosecution Authority has announced it is reviewing whether or not to resume the investigation following a request from the alleged victim’s lawyer.
After the Swedish prosecution was discontinued, Mr Assange argued the arrest warrant issued in relation to his failure to surrender should be withdrawn on the basis that it was disproportionate and contrary to the public interest. His lawyers argued, among other things, that he was justified in his failure to surrender because he feared being rendered to the US from Sweden. The court found there was no evidence to support this position, and that his failure to surrender had impeded the course of justice. The judgment noted: “[he] appears to consider himself above the normal rules of law and wants justice only if it goes in his favour.”
The United States
The US indictment states that Mr Assange is accused of conspiring to knowingly access a computer without authorisation to obtain information classified as secret.
The specific charge is significant because the first amendment to the US Constitution provides strong protection for freedom of expression. As a consequence, Mr Assange may have had a defence if the charge related to the publication of the information in question.
An extradited person can normally only be prosecuted in relation to the charges on which they are extradited. This is a rule known as ‘speciality’. However, according to Alex Bailin QC, a barrister specialising in extradition law, the US has a poor record of respecting speciality, raising the possibility that Mr Assange may be charged with further offences in the event that he is extradited.
What are the UK’s extradition arrangements with the US and Sweden?
Extradition between the UK and Sweden, and the UK and the US, is governed by parts 1 and 2 of the Extradition Act 2003, respectively.
The UK and Sweden both operate the EAW. This is a court-based procedure, whereby a UK court will certify a warrant received from a competent authority (such as a court or prosecuting authority) in another EU Member State, without the involvement of diplomatic channels or a substantive inquiry into the evidence against the subject of the warrant.
Part 2 of the 2003 Act gives effect to an extradition treaty between the UK and the US. It provides that a provisional arrest warrant can be issued where a person is accused of an offence in another jurisdiction and a magistrate has reasonable grounds to believe that there is sufficient information to justify an arrest – if they were accused of an equivalent offence in this jurisdiction. After a provisional warrant is issued, there would then be a period of 65 days for the US authorities to submit a formal extradition request.
Unlike the EAW, an extradition request under part 2 of the 2003 Act is made initially to the Home Secretary, who certifies if it is made in the right way by an appropriate authority, before passing it to a court.
After a warrant is issued by the court, there would be an extradition hearing, at which the court considers whether any bars to extradition apply. If the court decides that none apply, it will send the case back to the Home Secretary for a decision on whether or not to extradite. The Home Secretary must order extradition unless prohibited on specified grounds:
- If the person could face the death penalty (and adequate written assurances have not been received).
- There are no speciality arrangements in place.
- The person has been extradited to the UK from elsewhere and consent is required for onwards extradition.
The subject of the extradition request would be able to make representations to the Home Secretary, and appeal against both the decision of the court and of the Home Secretary.
If there were competing extradition requests, the Home Secretary would decide which request takes precedence.
What are the possible grounds for resisting extradition?
The grounds for resisting extradition under an EAW are limited and Mr Assange may have exhausted the possibilities in his legal challenge to the original Swedish request. However, there are various grounds on which extradition to a part 2 territory, such as the US, may be resisted. These are matters to be determined by the court, rather than the Home Secretary:
- Double criminality: one requirement that must be met is that the conduct that constitutes the alleged offence would also constitute an offence in the UK with a prison sentence of 12 months or more.
- Human rights: extradition can be barred where it would be incompatible with the person’s human rights.
- Forum bar: if the court decides that a substantial part of the relevant conduct took place in the UK and that extradition would not be in the interests of justice. In deciding whether it is in the interests of justice, the court is required to take account of where any harm resulting from the offence occurred and whether the UK is the most appropriate jurisdiction in which to prosecute, among other things.
- Extraneous considerations: extradition can be barred if it appears the request has been made for the purpose of prosecuting or punishing the subject on account of their race, religion, nationality, gender, sexual orientation or political opinions, or if they would suffer prejudice or punishment on those grounds if extradited.
In previous cases, Gary McKinnon successfully resisted extradition to the US on computer hacking charges on the basis that it would breach his human rights, and Lauri Love successfully argued that the UK was the appropriate jurisdiction in which he should be prosecuted for hacking related charges in the US.
Joanna Dawson is a Senior Library Clerk at the House of Commons Library, specialising in home affairs.
Photo: (CC BY-SA 2.0) David G Silvers. Cancillería del Ecuador.