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This text has been extracted from [[https:// | This text has been extracted from [[https:// | ||
- | ====== TITLE PAGE ====== | + | === TITLE PAGE === |
**IN THE CITY OF WESTMINSTER MAGISTRATES' | **IN THE CITY OF WESTMINSTER MAGISTRATES' | ||
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// | // | ||
- | ====== CONTENTS PAGE ====== | + | === CONTENTS PAGE === |
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B. Abuse of Process - the correct approach .....................................13 | B. Abuse of Process - the correct approach .....................................13 | ||
V. Submissions on Abuse in this Case ................................................................15 | V. Submissions on Abuse in this Case ................................................................15 | ||
- | A. Witnesses | + | A. Witnesses ...................................................................18 |
- | 1. Eric Lewis ..................................................................................18 | + | 1. Eric Lewis ...............................................................18 |
- | 2. Feldstein | + | 2. Feldstein ................................................................19 |
- | 3. Prince | + | 3. Prince ...................................................................19 |
- | 4. Boyle .......................................................................................20 | + | 4. Boyle ....................................................................20 |
- | 5. Tigar .......................................................................................21 | + | 5. Tigar ....................................................................21 |
- | 6. Jaffer | + | 6. Jaffer ...................................................................21 |
- | 7. Pollack | + | 7. Pollack ..................................................................22 |
- | 8. Shenkman | + | 8. Shenkman .................................................................22 |
- | 9. Durkin | + | 9. Durkin ...................................................................22 |
- | 10. Ellis ......................................................................................23 | + | 10. Ellis ...................................................................23 |
- | 11. Goodwin-Gill | + | 11. Goodwin-Gill ............................................................23 |
- | B. Submission of each POA .........................................................................23 | + | B. Submission of each POA ......................................................23 |
- | 1. §7 First of the POA .........................................................................23 | + | 1. §7 First of the POA ......................................................23 |
- | 2. §7 Second of the POA ........................................................................24 | + | 2. §7 Second of the POA .....................................................24 |
- | 3. §7 Third of the POA .........................................................................24 | + | 3. §7 Third of the POA ......................................................24 |
- | 4. §7 Fourth of the POA ........................................................................24 | + | 4. §7 Fourth of the POA .....................................................24 |
- | 5. §7 Fifth of the POA .........................................................................24 | + | 5. §7 Fifth of the POA ......................................................24 |
- | 6. §7 Sixth of the POA .........................................................................25 | + | 6. §7 Sixth of the POA ......................................................25 |
- | 7. §7 Seventh of the POA .......................................................................25 | + | 7. §7 Seventh of the POA ....................................................25 |
- | 8. §7 Eighth of the POA ........................................................................26 | + | 8. §7 Eighth of the POA .....................................................26 |
- | 9. §7 Ninth of the POA .........................................................................26 | + | 9. §7 Ninth of the POA ......................................................26 |
- | 10. §7 Tenth of the POA ........................................................................26 | + | 10. §7 Tenth of the POA .....................................................26 |
- | 11. §7 Eleventh of the POA .....................................................................30 | + | 11. §7 Eleventh of the POA ..................................................30 |
- | 12. §7 Twelfth of the POA ......................................................................31 | + | 12. §7 Twelfth of the POA ...................................................31 |
- | 13. Alleged recklessness to sources | + | 13. Alleged recklessness to sources .........................................31 |
- | C. Abuse of Process - Zakrzewski | + | C. Abuse of Process - Zakrzewski ................................................33 |
VI. Conclusion ......................................................................................38 | VI. Conclusion ......................................................................................38 | ||
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VII. Anonymous Witnesses ............................................................................38 | VII. Anonymous Witnesses ............................................................................38 | ||
- | ====== PAGE 3 ====== | + | === PAGE 3 === |
==== I. OVERVIEW ==== | ==== I. OVERVIEW ==== | ||
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6. The court is best assisted by following the scheme of the Act, dealing with the tests and bars to extradition sequentially and individually as the Act dictates. This provides for a logical and sensible means for the court to determine the issues rather than the morass of issues and evidence the defence allege (incorrectly) can be dealt with under the broad umbrella of an abuse of process application. It allows the court to focus on the precise statutory test for each bar to extradition and not the nebulous ' | 6. The court is best assisted by following the scheme of the Act, dealing with the tests and bars to extradition sequentially and individually as the Act dictates. This provides for a logical and sensible means for the court to determine the issues rather than the morass of issues and evidence the defence allege (incorrectly) can be dealt with under the broad umbrella of an abuse of process application. It allows the court to focus on the precise statutory test for each bar to extradition and not the nebulous ' | ||
- | ====== PAGE 4 ====== | + | === PAGE 4 === |
7. The abuse application amounts to an aggregate of individual weak points and non -sequiturs. The approach of the defence is to obfuscate and confuse the statutory bars to extradition because each bar has a high statutory hurdle: Section 81 — "if (and only if) ... the request is in fact made for the purpose of prosecuting or punishing on account of his political opinions.."; | 7. The abuse application amounts to an aggregate of individual weak points and non -sequiturs. The approach of the defence is to obfuscate and confuse the statutory bars to extradition because each bar has a high statutory hurdle: Section 81 — "if (and only if) ... the request is in fact made for the purpose of prosecuting or punishing on account of his political opinions.."; | ||
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10. The Act reads: | 10. The Act reads: | ||
- | ====== PAGE 5 ====== | + | === PAGE 5 === |
- This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing. | - This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing. | ||
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* (b) has been convicted in that territory of an offence constituted by the conduct but not sentenced for it. | * (b) has been convicted in that territory of an offence constituted by the conduct but not sentenced for it. | ||
- | ====== PAGE 6 ====== | + | === PAGE 6 === |
* (2) The conduct constitutes an extradition offence in relation to the category 2 territory if the conditions in subsection (3), (4) or (5) are satisfied. | * (2) The conduct constitutes an extradition offence in relation to the category 2 territory if the conditions in subsection (3), (4) or (5) are satisfied. | ||
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19. There can be no recourse to extraneous material; Sir John Thomas PQBD in United States | 19. There can be no recourse to extraneous material; Sir John Thomas PQBD in United States | ||
- | ====== PAGE 7 ====== | + | === PAGE 7 === |
"...It is clear from the decision in Norris v Government of the USA (No.1) [2008] 1 AC 219 at paragraph 91 that the court must look at the conduct alleged in the documentation constituting the request to see if the conduct constitutes an offence under the law of the United Kingdom... It was submitted by Mr James Lewis QC on the respondent' | "...It is clear from the decision in Norris v Government of the USA (No.1) [2008] 1 AC 219 at paragraph 91 that the court must look at the conduct alleged in the documentation constituting the request to see if the conduct constitutes an offence under the law of the United Kingdom... It was submitted by Mr James Lewis QC on the respondent' | ||
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25. It appears the defendant makes two submissions as to dual criminality: | 25. It appears the defendant makes two submissions as to dual criminality: | ||
- | ====== PAGE 8 ====== | + | === PAGE 8 === |
* 25.1 In relation to count 18, the " | * 25.1 In relation to count 18, the " | ||
Line 201: | Line 201: | ||
32. Electronic messages show Ms. Manning and Mr. Assange conversing about cracking a password hash. Ms. Manning asked Mr. Assange if he was convey hash cracking, to which Mr. Assange replied that he was, and stated that he had " | 32. Electronic messages show Ms. Manning and Mr. Assange conversing about cracking a password hash. Ms. Manning asked Mr. Assange if he was convey hash cracking, to which Mr. Assange replied that he was, and stated that he had " | ||
- | ====== PAGE 9 ====== | + | === PAGE 9 === |
... used for hash cracking. Subsequent to this conversation, | ... used for hash cracking. Subsequent to this conversation, | ||
Line 219: | Line 219: | ||
* 36.3 Third, Patrick Eller' | * 36.3 Third, Patrick Eller' | ||
- | ====== PAGE 10 ====== | + | === PAGE 10 === |
* 36.4 Fourth, Mr. Eller' | * 36.4 Fourth, Mr. Eller' | ||
Line 252: | Line 252: | ||
* 47.2 Second: The defence application invites the Court to aggregate a great deal of the evidence upon which it relies and to find that abuse of process is made out (the " | * 47.2 Second: The defence application invites the Court to aggregate a great deal of the evidence upon which it relies and to find that abuse of process is made out (the " | ||
- | ====== PAGE 12 ====== | + | === PAGE 12 === |
* ... raised have already been conclusively determined, as a matter of English law, not to reach the threshold to be a bar to extradition. | * ... raised have already been conclusively determined, as a matter of English law, not to reach the threshold to be a bar to extradition. | ||
Line 268: | Line 268: | ||
50. The procedure to be adopted, where it is submitted that the conduct alleged constitutes • an abuse of the Court' | 50. The procedure to be adopted, where it is submitted that the conduct alleged constitutes • an abuse of the Court' | ||
* 50.1 Identify with specificity what is alleged to constitute the abuse; | * 50.1 Identify with specificity what is alleged to constitute the abuse; | ||
- | ====== PAGE 13 ====== | + | |
+ | === PAGE 13 === | ||
* 50.2 Satisfy the court that the matter complained of is capable of amounting to an abuse; and | * 50.2 Satisfy the court that the matter complained of is capable of amounting to an abuse; and | ||
Line 289: | Line 290: | ||
* 56.1 First: The focus of this implied jurisdiction is the abuse of the requested state' | * 56.1 First: The focus of this implied jurisdiction is the abuse of the requested state' | ||
- | ====== PAGE 14 ====== | + | === PAGE 14 === |
"The focus of this implied jurisdiction is the abuse of the requested state' | "The focus of this implied jurisdiction is the abuse of the requested state' | ||
Line 308: | Line 309: | ||
"It is the exclusive function of the court of the requesting state to try the issues relevant to the guilt or otherwise of the individual. This necessarily includes deciding what evidence is admissible, and what weight should be given to particular pieces of evidence having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how evidence was obtained, which may go to admissibility or weight, both of which are matters for the court conducting the trial. It is the function of that court to decide whether evidence was improperly obtained and if so what the consequences for the trail are. It is for the trial court to decide whether its own procedures have been breached." | "It is the exclusive function of the court of the requesting state to try the issues relevant to the guilt or otherwise of the individual. This necessarily includes deciding what evidence is admissible, and what weight should be given to particular pieces of evidence having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how evidence was obtained, which may go to admissibility or weight, both of which are matters for the court conducting the trial. It is the function of that court to decide whether evidence was improperly obtained and if so what the consequences for the trail are. It is for the trial court to decide whether its own procedures have been breached." | ||
- | That allegations of bad faith in the prosecution of an individual are a matter for investigation | + | That allegations of bad faith in the prosecution of an individual are a matter for investigation by the Court, in the requesting state, and only exceptionally a matter... |
- | by the Court, in the requesting state, and only exceptionally a matter... | + | |
- | ====== PAGE 15 ====== | + | === PAGE 15 === |
* ... for an extradition court (a fortiori when it is recognized that the requesting state has an inpdendent judiciary) was reiterated in Sofia City Court, Bulgaria v Dimintrinka Atanasoya-Kalaidzhieva [2011] EWHC 2335 (Admin) [§36]: | * ... for an extradition court (a fortiori when it is recognized that the requesting state has an inpdendent judiciary) was reiterated in Sofia City Court, Bulgaria v Dimintrinka Atanasoya-Kalaidzhieva [2011] EWHC 2335 (Admin) [§36]: | ||
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* 59.4 "the US Government from early 2017 onwards then engaged in a campaign of highly prejudicial and public statements, demonising Mr Assange as a ' | * 59.4 "the US Government from early 2017 onwards then engaged in a campaign of highly prejudicial and public statements, demonising Mr Assange as a ' | ||
- | ====== PAGE 16 ====== | + | === PAGE 16 === |
- | ====== PAGE 17 ====== | + | * 59.5 "in August 2017 a pardon was offered to Mr Assange by intermediaries close to the President (Congressman Rohrabacher and Charles Johnson)." |
+ | * 59.6 "the US proceeded (against all international legal norms) to violate Mr Assange' | ||
+ | * 59.7 "when (through its unlawful acts) the US Government learned that Mr Assange was being given diplomatic status on 21 December 2017, it issued its criminal complaint and sought a provisional extradition request on the same day." §7 Seventh of the POA; | ||
+ | * 59.8 " | ||
+ | * 59.9 "from February 2018 onwards, to execute its request, the US government engaged in diplomatic pressure on Ecuador to withdraw asylum." | ||
+ | * 59.10 "the US continued its brazen and deliberate invasion of Mr Assange' | ||
+ | * 59.11 the need for the US request to be afforded priority over Sweden' | ||
+ | * 59.12 " | ||
- | ====== PAGE 18 ====== | + | 60. The POA also cite the following (set out here for completeness), |
+ | * 60.1 "A discredited and unlawful prosecution theory"; | ||
+ | * 60.2 "The political war on journalism"; | ||
+ | * 60.3 " | ||
+ | * 60.4 "The violation of LPP"; | ||
+ | * 60.5 " | ||
+ | * 60.6 " | ||
+ | * 60.7 "The Swedish problem"; | ||
+ | * 60.8 " | ||
- | ====== PAGE 19 ====== | + | === PAGE 17 === |
- | ====== PAGE 20 ====== | + | * 60.9 “The most wanted list": and |
+ | * 60.10 “alleged recklessness to sources“ | ||
- | ====== PAGE 21 ====== | + | 61. Conspicuous by its absence is any particularisation of the prejudice the allegations of |
+ | abuse are meant to have caused in these proceedings or the proceedings in the United | ||
+ | States of America. As Laws LJ said in Bermingham [ante], prejudice must be shown. | ||
+ | This is of course at the heart of all abuse of process applications. He said: | ||
- | ====== PAGE 22 ====== | + | “...because he has been unfairlv prejudiced in his challepge to extradition in this country or because he will be unfairly prejudiced in the proceedings in the requesting country if surrendered there" |
- | ====== PAGE 23 ====== | + | 62. It follows the defendant must show the court why he is being prejudiced in these proceedings. It is obviously not enough to simply say he should not be extradited. Actual prejudice must be shown and particularised. There is simply no articulation of prejudice caused to the defendant in these proceedings. The evidence shows his allegations of abuse can be taken by him in the trial process in the United States of America and so he cannot show “he will be unfairly prejudiced in the proceedings in the requesting country”. |
- | ====== PAGE 24 ====== | + | 63. The absence of actual and demonstrable prejudice of the type identified by Laws LJ is fatal to the abuse of process application in its entirety. |
- | ====== PAGE 25 ====== | + | 64. It is submitted one only has to look at these particulars to see they are either to be dealt with under section 79 or 87 of the Act; or are utterly unsustainable as an abuse of process (and equally unsustainable under section 79 or 87 of the Act but the defence are entitled to make submissions and call relevant evidence in support of those submissions). |
- | 105. The alleged | + | 65. The Court will need to bear in mind the outer limits |
+ | Abuse of process is not an argument to be deployed in parallel with, or as a substitute | ||
+ | for, the statutory bars. Nor should the jurisdiction be invoked to cover a situation in which | ||
+ | an applicant | ||
+ | same point separately as an abuse of process. As noted above, many of the issues raised | ||
+ | have already been conclusively found not to constitute a bar to extradition. | ||
- | 6. § 7 Sixth of the POA | + | 66. Where the 2003 Act provides a remedy, the abuse of process jurisdiction does not arise. The jurisdiction is a residual one. Indeed, an alternative statutory route of challenge means there is no prejudice to the challenge the defendant can make in the extradition proceedings (see Laws LJ quoted above). An abuse only arises when by a bad faith manipulation the defendant is deprived of a challenge he could otherwise make in the extradition process. Where he is not so deprived of a challenge //a fortiori// there can be no abuse. Where the integrity of the statutory scheme is protected by other powers, there is no need to infer an abuse jurisdiction, |
- | 106. The particular is that the US proceeded (against all international legal norms) to violate | + | 67. Much of the evidence, |
- | Mr Assange‘s asylum in the Ecuadorian Embassy. This is simply wrong and the evidence | + | |
- | does not substantiate this allegation. But even ifit were true, the defendant was a fugitive | + | |
- | from justice (as regards | + | |
- | States while in the embassy. Mr Assange’s grant of asylum was not an immunity. The | + | |
- | rule ofintemational law simply makes the embassy | + | |
- | foreign state invites the host country in. | + | |
- | 107. One would expect both the United States of America and the United Kingdom to do all | + | === PAGE 18 === |
- | they could in their relations with Ecuador to persuade it that Mr Assange should not | + | |
- | escape justice indefinitely. That course was reasonable and lawful. Again, it is impossible | + | |
- | to characterise this as a bad faith manipulation of the English extradition proceedings. | + | |
- | 108. In fact, the defendant’s asylum was not violated and the Ecuadorian Embassy’s | + | ... Court's process. Such an argument can only be deployed pursuant |
- | inviolability was adhered | + | |
- | Metropolitan police, upon the invitation | + | |
- | unquestionably lawful. | + | |
- | 7. § 7 Seventh | + | 68. Similarly, it is not open to a defendant to argue that something less than a flagrant breach |
- | 109. The particular | + | 69. It is respectfully submitted |
- | Mr Assange was being given diplomatic status (on 21 December 2017), it issued its | + | |
- | criminal complaint and sought | + | |
- | utterly incapable of amounting | + | |
- | 110. Fugitives have attempted (unsuccessfully) to use diplomatic status to avoid extradition | + | ==== A. Witnesses ==== |
- | (see Teja and Osman). Osman became a Liberian ambassador (by paying $1m) to avoid | + | |
- | extradition. The Divisional Court held his diplomatic status was irrelevant as it had not | + | |
- | been recognised by the Court of St James in the United Kingdom. Only accredited | + | |
- | diplomats enjoyed diplomatic immunity in the United Kingdom and a diplomat could | + | |
- | only be accredited by the court of St James (which had a discretion whether or not to | + | |
- | accredit). It follows, even if the defendant had been made a diplomat while in the Ecuador | + | |
- | embassy he could not have enjoyed diplomatic immunity. | + | |
- | that a grant of diplomatic status is not a device to assist an individual to evade justice. | + | |
- | If true, it cannot even approach a bad faith manipulation of the English extradition | + | **1. Eric Lewis** |
- | proceedings. If true, the United States of America did exactly the right and proper thing. | + | |
- | ====== PAGE 26 ====== | + | |
- | 8. §7 Eighth of the POA; | + | 70. Eric Lewis has provided three witness statements (core bundle tabs 3 and 24), which are relied upon in relation to abuse. The first statement [core bundle tab 3] addresses: (i) where will Mr Assange be held pretrial; (ii) under what regime will Mr Assange be held on remand (this evidence goes to administrative detention and Special Administrative Measures); (iii) what restrictions will be applied to him and/or his counsel on access to classified information essential for his defence; (iv) what is Mr Assange’s potential criminal sentence; (v) where would Mr Assange serve his sentence if convicted. |
- | 112. The particular is that the request for a provisional | + | 71. As must be entirely plain to the Court, this statement does not engage its abuse jurisdiction. Where it relates to prison conditions, it goes to Article 3 Convention rights argument. Where it relates to the trial process in the United States, it goes to Article 6 Convention rights (as indeed the defence specify in the SOI (see §17)). Where it relates to length of sentence, this goes to Article 3. The system of plea bargaining has been dealt with as a matter arising (but not giving rise to any breach per se) under Article 6, see the ECtHR in Babar Ahmad v United Kingdom (2010) 51 E.H.R.R. SE6 and was discounted |
+ | as giving rise to an abuse of process | ||
- | 113. This is the subject matter ot‘ the separate submission | + | 72. In fact, it is noted that Mr Lewis' |
- | 114. It is self evident that if a defendant is not entitled as a matter of law to avail himself of a challenge (in this case prima facie evidence), conduct depriving him of such a challenge | + | === PAGE 19 === |
- | cannot be an abuse of process: he suffers no prejudice by the alleged abuse. The operation | + | |
- | of law has deprived him ofthe challenge. | + | |
- | 9. §7 Ninth of the POA | + | (24027/07): Al-Fawwaz v United Kingdom (67354/09); Bary v United Kingdom (66911/09); Mustafa (aka Abu Hamza) v United Kingdom (36742/08); Ahsan v United Kingdom (11949/08) (2013) 56 E.ll.R.R. 1 |
- | 115. This particular is that from February 2018 onwards, to execute its request, | + | 73. Mr Lewis' |
- | government engaged in diplomatic pressure on Ecuador to withdraw asylum. Again, if | + | |
- | correct, there is nothing remotely wrong in this and it is to be expected. This is not | + | |
- | different from particulars 6 and 7 above. | + | |
- | 10. § 7 Tenth oft/1e POA | + | 74. Finally, Mr Lewis‘s third statement (served on 13 January 2020) is directed squarely at the question of ' |
- | 116. This particular concerns surveillance and allegations over LPP. It requires a more | + | **2. Feldstein** |
- | detailed analysis as it appears to be a cornerstone of the defendant’s complaint. | + | |
- | 117. However, it is firstly noted that no prejudice to the defendant’s | + | 75. The statement of Professor Feldstein (journalism historian) statement |
- | 118. Mr Assange has issued a criminal complaint in Spain (on 29 July 2019) through his | + | 76. Setting that to one side, this statement constitutes allegations which fall squarely within s.81 (extraneous considerations) and s.87 (article 10 convention rights) submissions. It gives rise to no residual issue. As set out above, it is not the function |
- | lawyer in Spain [Bundle D, Second Statement of Mr Jimenez] about alleged surveillance | + | |
- | and these matters are under investigation there; a search has been conducted at the home | + | |
- | and office | + | |
- | arrested and questioned [§34]. It is also suggested that the witnesses have been given | + | |
- | ‘protected status’ [§34]; | + | |
- | European Investigation Order [34] (it is understood | + | |
- | evidence | + | |
- | ====== PAGE 27 ====== | + | |
- | 119. The second witness statement of Aitor Martinez Jimenez exhibits a self -serving | + | **3. Prince** |
- | document which appears to form part of (or is) the complaint before the Spanish Court. | + | |
- | It refers to “..facts that should be investigated in Spanish jurisdicton and that are | + | |
- | relevant to the effects of the extradition process against Mr Assange in the United Kingdom" | + | |
- | 120. This gives the appearance that part of the rationale | + | 77. Bridget Prince’s two affidavits are at Tab 13 of the core bundle. They concern the potential jury pool for Mr. Assange’s trial in the Eastern District of Virginia, and what is alleged |
- | generate materials for these proceedings. | + | |
- | 121. Setting that to one side, the fact that this matter is under investigation in Spain tells this Court nothing about the accuracy | + | 78. Evidence going to the lack of independence |
- | only adjudicate upon them if it too embarked upon the sort of wide— ranging investigation | + | |
- | the defence foresees in Spain. Many of the allegations | + | |
- | at all) would go to sensitive issues between States. The extent to which, for example, in | + | |
- | this sort of context, a state consented to the surveillance of its embassy is an obvious one. | + | |
- | 122. Press reporting of this issue puts a very different slant on the reports allegedly gathered by UC Global. See for example CNN Report of 15 July 2019 report - Security reports reveal how Assange turned an embassy into a command post for election meddling: | + | === PAGE 20 === |
- | “Despite being confined to the embassy while seeking safe passage to Ecuador, Assange met with Russians and world-class hackers at critical moments, frequently for hours at a time. He also acquired powerful new computing and network hardware to facilitate data transfers just weeks before WikiLeaks received hacked materials from Russian operatives.” | + | ... statements by public officials or political figures will engage Article 6 is a high one; Ali v UK (2016) 62 E.H.R.R. 7). |
- | 123. It is also of note that The Guardian published an article | + | 79. A third statement by Ms Prince was served |
- | “Revealed: | + | |
- | different slant again on matters, reporting | + | |
- | operation ongoing in the embassy | + | |
- | “Ecuador bankrolled a multimillion-dollar spy operation to protect and support Julian Assange in its central London embassy, employing an international security company and undercover agents to monitor his visitors, embassy staff and even the British police, according to documents seen by the Guardian..... | + | **4. Boyle** |
- | Documents show the intelligence programme, called “Operation Guest”, which later became known as “Operation Hotel" — coupled with parallel covert actions — ran up an average cost of at least $66,000 a month for security, intelligence gathering and counter-intelligence | + | 80. Mr. Boyle‘s statement is at tab 5 of the core bundle. It addresses the issue of subpoenas |
- | 124. The Court is not asked (and indeed cannot be asked) | + | 81. Mr Boyle makes clear that an individual called |
+ | prosecution. The essence | ||
- | 125. The Court shouId equally be wary of general expressions | + | 82. This is not capable |
- | against | + | * 82.1 First: |
+ | * 82.2 Second: | ||
+ | * 82.3 Third: to the extent that it is deployed to show extraneous influences, this is the defendant’s political motivation argument. | ||
+ | * 82.4 Fourth: | ||
- | 126. The objection to the " | + | === PAGE 21 === |
- | ====== PAGE 28 ====== | + | |
- | between the alleged surveillance | + | * ... properly subpoenaed, |
- | to police the surveillance activities of another state. The focus of an abuse application is | + | |
- | how the conduct alleged subverts | + | |
- | The evidence on surveillance | + | ** 5. Tigar** |
- | 127. The crux of the abuse alleged is set out in the first statement | + | 83. Professor Tigar‘s evidence at Tab 23 sets out his conclusions |
- | understood to be a hearsay account | + | * (i) The superseding indictment represents “an unprecedented advance on US prosecutions who obtain and publish truthful information" |
- | to be that a Spanish company, carrying out security functions at the embassy gathered | + | * (ii) The interpretation |
- | data about Mr Assange | + | * (iii) The “choice of targets" |
- | Particular emphasis | + | * (iv) The indictment reflects |
- | visits and communications [§25], It is also said that electronic devices were scanned | + | * (v) Wikileaks is a journalistic enterprise |
- | [§§25-26]. | + | * (vi) The US courts have taken a narrow view of judicial review and Mr. Assange |
+ | * (vii) The US government systematically over-classifies relevant information. | ||
+ | * (viii) The separation of powers | ||
- | 128. At § 28 Ms Peirce states: | + | 84. Issues (i), (iv), (v), (vi), (vii) and (viii) all relate to the defendant’s article 6 or 10 Convention rights. |
- | “Later, the focus of particular surveillance on the Ecuadorian Consul and Mr Assange appeared to immediately trigger | + | 85. Issue (iii) relates to the defendant’s s.81 extraneous considerations argument. As set out, throughout this argument, the defence cannot run a political motivation argument whilst simultaneously running |
- | 129. This is understood | + | 86. In relation |
- | 130. This appears, in turn, to relate to §76 of the criminal complaint. It sets out some detail of a meeting between the head of the Ecuadorian Intelligence Service and Mr Assange on | + | **6. Jaffer** |
- | 21 December 2017. It is suggested that this was a meeting about an Ecuadorian operation | + | |
- | (presumably the plan to make Mr Assange a diplomat) to remove Mr Assange from the | + | |
- | embassy and that information provided by the Spanish Company prompted the US to | + | |
- | issue an international arrest warrant. | + | |
- | 131. If this is the nexus between the surveillance and this extradition request, it amounts to | + | 87. Jameel Jaffer’s statement |
- | the suggestion | + | |
- | Assange to escape | + | |
- | having breached the conditions of his bail in the Swedish extradition proceedings). The | + | |
- | suggestion | + | |
- | unsustainable. How the issue of any warrant could be said to have stopped Mr Assange | + | |
- | escaping from the embassy, | + | |
- | 132. The evidence of Witnesses 1 and 2 (the only primary evidence cited in support of the | + | === PAGE 22 === |
- | allegations) is not repeated here. Neither their evidence '(nor even the wider self- servmg | + | |
- | complaint submitted on behalf of Mr Assange in Spain) comes close to‘ demOHSKatmg an | + | |
- | abuse of this process: | + | |
- | 132.1 First: | + | 88. The observation |
- | ====== PAGE 29 ====== | + | |
- | 132.2 Second: extradition request sets out the evidence upon which the US | + | 89. In addition, as the Kromberg Affidavit makes clear, it is also open to the Defendant |
- | Government expects | + | |
- | Court a good insight into the evidence which forms the basis of the prosecution | + | |
- | case [see Dwyer Affidavit | + | |
- | personal and government computers. including classified information | + | |
- | Manning searched for and downloaded from US Govemment computers; | + | |
- | electronic messages Ms Manning sent to and received from Mr Assange; | + | |
- | statements by Ms Manning and statements made by Ms Manning to others in | + | |
- | furtherance of and in scope of the conspiracy; testimony of former members and | + | |
- | affiliates of Wikileaks; documents and materials gathered from the Wikileaks | + | |
- | website and evidence from the “Wayback Machine” (information once on its | + | |
- | website); Assange’s public statements and tweets and testimony from those with | + | |
- | expertise in US military, intelligence and diplomatic fields. Self- evidently there | + | |
- | was sufficient evidence upon which to convict Ms Manning. | + | |
- | 132.3 Third: there is nothing, on the defence case, to show that any privileged materials were gathered in the embassy which are now deployed against Mr Assange. | + | **7. Pollack** |
- | 132.4 Fourth: The United States has put this beyond dispute. The first Kromberg | + | 90. Mr Pollack’s statement may be found at Tab 19 of the core bundle. It is entirely concerned with the procedure at any future trial and whether the defendant can receive a fair trial. Again, |
- | Affidavit states (i) no privileged communications will be used against | + | |
- | Assange | + | |
- | Embassy exist they will not be reviewed or used by prosecutors [§174]; | + | |
- | use of privileged | + | |
- | [§I75] (privileged communications include confessions to past wrongdoing). | + | |
- | 132.5 Fifth: developed procedures are in place to prevent agents and prosecutors | + | **8. Shenkman** |
- | receiving or viewing privileged materials in cases they are investigating. There is | + | |
- | a separate filter team. | + | |
- | 132.6 Sixth: (and morever) to the best of the knowledge, information, | + | 91. Mr. Shenkman’s statement contains a history of the Espionage Acts, and the Computer Fraud and Abuse Act. The best guide to his evidence is set out in his conclusions at §41. He concludes that there is no precedent for the US Espionage Acts extraterritorial application to a publisher of leaked information. He criticises the Espionage Act for its lack of a proportionality defence, and criticises both Acts for lack of definition. |
- | make in the affidavits submitted by the United States in support of the extradition request, contain no legally privilleged material and were not derived from legally privileged knowledge (Kromberg §5). | + | |
+ | 92. As set out above, it is not within this Court’s jurisdiction to investigate or police the drafting or application of foreign law or wider press freedom issues. Furthermore, | ||
+ | |||
+ | **9. Durkin** | ||
+ | |||
+ | 93. Mr Durkin’s statement may be found at Tab 17. His statement addresses five issues: | ||
+ | * (i) Access by the defence to evidence in the trial process; | ||
+ | * (ii) Access by the defence to classified material in trial process”; | ||
+ | * (iii) The discovery procedure and the “unprecedented volume of material"; | ||
+ | * (iv) Plea bargaining/ “trial tax”; | ||
+ | * (v) The rule of specialty and sentencing. | ||
+ | |||
+ | === PAGE 23 === | ||
+ | |||
+ | 94. This evidence is repetitive of evidence considered above. As must be clear it goes to whether Mr Assange can have a fair trial (although it is observed that even at this juncture the sorts of issues raised fall well short of any flagrant breach of Article 6 [see, for example, his complaint about the visiting hours]). Issue (v) relates to the specialty arrangement between the UK and the USA. This is a matter which can be raised before | ||
+ | the Secretary of State pursuant to s.95 of the 2003 Act. The issue of US sentencing practice and whether it comports with specialty has been exhaustively considered Welsh, Thrasher v The Secretary of State for the Home Department the Government of the United States of America [2007] 1 W.L.R. 1281 [2007] 1 W.L.R. 1281. | ||
+ | |||
+ | **10. Ellis** | ||
+ | |||
+ | 95. Yancey Ellis’ statement may be found at Tab 15 of the Core Bundle. It deals entirely with prison conditions in Alexandria jail and matters which may be material to Convention rights (although, again it is noted that many of these have already been determined as not precluding extradition to the United States). | ||
+ | |||
+ | 11. **Goodwin-Gill** | ||
+ | |||
+ | 96. Professor Goodwin - Gill’s evidence may be found at Tab 25 of the Core Bundle. The relevance of this evidence to these extradition proceedings is unclear. Professor Goodwin-Gill sets out an account of visiting Mr Assange for a “legal conference” (although as is clear it was not a privileged conference as it involved the attendance of Ecuadorian officials). He states he left a tablet and phone ‘at the door’. He states that he was shocked that his participation in the conference may have been shared with others and that his electronic equipment may have been copied. The broader issue of the alleged surveillance of the embassy is dealt with below. It suffices to state here that there is nothing in Mr Goodwin Gill’s statement which relates to the extradition process. | ||
+ | |||
+ | |||
+ | ==== B. Submissions of each POA ==== | ||
+ | |||
+ | **1. //§7 First of the POA;//** | ||
+ | |||
+ | 97. The particular is that the request is politically motivated at root. This, which is denied, is obviously to be dealt with under section 79 and 81 of the Act. | ||
+ | |||
+ | 98. This is, in any event, mere superstition and allegation (much of which does not cohere). It is clear beyond argument that there is an overwhelming case of computer misuse and disclosure of classified sources. These are serious crimes and the prosecution is undertaken by independent prosecutors in the United States of America. Moreover, per ... | ||
+ | |||
+ | === PAGE 24 === | ||
+ | |||
+ | ... Symeou and Atanasova (supra) that these allegations will be tried before an independent judiciary, puts them beyond the examination by the extradition court. | ||
+ | |||
+ | **2. //§7 Second of the POA;//** | ||
+ | |||
+ | 99. The particular is, knowing that publishing state secrets has been held to be lawful by the US Supreme Court, the US Government nonetheless brings this prosecution. This is arrant nonsense. It is clear beyond argument that what is alleged (complicity in illegal acts to obtain classified documents, an agreement and an attempt to obtain classified infomation through computer hacking and the disclosure of the identity of classified sources - which might lead to their serious mistreatment or even death) is illegal. It is illegal both here and in the United States of America. | ||
+ | |||
+ | **3. //§7 Third of the POA;//** | ||
+ | |||
+ | 100. The particular is that the prosecution was then deliberately situated in Alexandria, a jury pool known to contain an abnormally high proportion of government employees and contractors. This, which is denied, is obviously to be dealt with under Article 6 and section 87 of the Act. | ||
+ | |||
+ | 101. Moreover, this is nonsense. The prosecution is brought by the Eastern District of Virginia. The Federal system is the same throughout the United States of America. | ||
+ | |||
+ | **4. //§7 Fourth of the POA;//** | ||
+ | |||
+ | 102. The particular is that the US Government from early 2017 onwards engaged in a | ||
+ | campaign of highly prejudicial and public statements, demonising Mr Assange as a | ||
+ | ‘hostile non-state intelligence agency’, all designed to influence the public, increase the | ||
+ | pressure to bring a prosecution, | ||
+ | denied, is obviously to be dealt with under Article 6 and section 87 of the Act. | ||
+ | |||
+ | **5. //§7 Fifth of the POA;//** | ||
+ | |||
+ | 103. The particular is that in August 2017 a pardon was offered to Mr Assange by intermediaries close to the President. | ||
+ | |||
+ | 104. The evidence does not support this bald statement. The late affidavit of Jennifer Robinson (served on 14 February 2020) speaks of a “pardon, assurance or agreement”. If this offer is true it cannot amount to an abuse of process. Day in day out in all criminal justice systems defendants are offered immunity, lesser pleas and other indictments to cooperate with the authorities. In the United Kingdom there is even a statutory basis for | ||
+ | granting immunity. Sections 71 to 74 of the Serious Organised Crime and Police Act 2005 allows immunity for serious crimes to be granted in return for co-operation. See also McKinnon v USA [2008] UKHL 59 [33] which makes this unarguable as a head of abuse. | ||
+ | |||
+ | === PAGE 25 === | ||
+ | |||
+ | 105. The alleged offor was rejected by the defendant so no deal was made. It is impossible to see how this can show a bad faith manipulation of the English extradition proceedings. | ||
+ | |||
+ | **6. //§7 Sixth of the POA;//** | ||
+ | |||
+ | 106. The particular is that the US proceeded (against all international legal norms) to violate Mr Assange‘s asylum in the Ecuadorian Embassy. This is simply wrong and the evidence does not substantiate this allegation. But even if it were true, the defendant was a fugitive from justice (as regards the United Kingdom authorities) and a suspect in the United States while in the embassy. Mr Assange’s grant of asylum was not an immunity. The | ||
+ | rule of international law simply makes the embassy of a foreign state inviolate unless the foreign state invites the host country in. | ||
+ | |||
+ | 107. One would expect both the United States of America and the United Kingdom to do all they could in their relations with Ecuador to persuade it that Mr Assange should not escape justice indefinitely. That course was reasonable and lawful. Again, it is impossible to characterise this as a bad faith manipulation of the English extradition proceedings. | ||
+ | |||
+ | 108. In fact, the defendant’s asylum was not violated and the Ecuadorian Embassy’s inviolability was adhered to, showing respect for international law. The arrest by the Metropolitan police, upon the invitation of the government of Ecuador, was unquestionably lawful. | ||
+ | |||
+ | **7. //§7 Seventh of the POA;//** | ||
+ | |||
+ | 109. The particular is that when (through its unlawful acts) the US Government learned that Mr Assange was being given diplomatic status (on 21 December 2017), it issued its criminal complaint and sought a provisional extradition request on the same day. This is utterly incapable of amounting to an abuse of process. | ||
+ | |||
+ | 110. Fugitives have attempted (unsuccessfully) to use diplomatic status to avoid extradition (see Teja and Osman). Osman became a Liberian ambassador (by paying $1m) to avoid extradition. The Divisional Court held his diplomatic status was irrelevant as it had not been recognised by the Court of St James in the United Kingdom. Only accredited diplomats enjoyed diplomatic immunity in the United Kingdom and a diplomat could only be accredited by the court of St James (which had a discretion whether or not to accredit). It follows, even if the defendant had been made a diplomat while in the Ecuador embassy he could not have enjoyed diplomatic immunity. A State will be astute to ensure that a grant of diplomatic status is not a device to assist an individual to evade justice. | ||
+ | |||
+ | If true, it cannot even approach a bad faith manipulation of the English extradition proceedings. If true, the United States of America did exactly the right and proper thing. | ||
+ | |||
+ | === PAGE 26 === | ||
+ | |||
+ | **8. //§7 Eighth of the POA;//** | ||
+ | |||
+ | 112. The particular is that the request for a provisional arrest warrant in December 2017 defied the prohibition on extradition for political offences contained in the Anglo-US Treaty. | ||
+ | |||
+ | 113. This is the subject matter of the separate submission by the defence that the defendant can avail himself of treaty provisions. This particular is misconceived. For example in the 1972 treaty there remained the requirement for a //prima facie// case to be presented. However, the Divisional Court in Norris held that no such requirement was within the 2003 Act. If this particular could be capable of abuse all extraditions such as Norris were abusive, which they clearly were not. | ||
+ | |||
+ | 114. It is self evident that if a defendant is not entitled as a matter of law to avail himself of a challenge (in this case //prima facie// evidence), conduct depriving him of such a challenge cannot be an abuse of process: he suffers no prejudice by the alleged abuse. The operation of law has deprived him ofthe challenge. | ||
+ | |||
+ | **9. //§7 Ninth of the POA;//** | ||
+ | |||
+ | 115. This particular is that from February 2018 onwards, to execute its request, the US government engaged in diplomatic pressure on Ecuador to withdraw asylum. Again, if correct, there is nothing remotely wrong in this and it is to be expected. This is not different from particulars 6 and 7 above. | ||
+ | |||
+ | **10. //§ 7 Tenth of the POA//** | ||
+ | |||
+ | 116. This particular concerns surveillance and allegations over LPP. It requires a more detailed analysis as it appears to be a cornerstone of the defendant’s complaint. | ||
+ | |||
+ | 117. However, it is firstly noted that no prejudice to the defendant’s ability to make a challenge" | ||
+ | |||
+ | 118. Mr Assange has issued a criminal complaint in Spain (on 29 July 2019) through his lawyer in Spain [Bundle D, Second Statement of Mr Jimenez] about alleged surveillance and these matters are under investigation there; a search has been conducted at the home and office of the accused [First statement of Ms Peirce §34] and the accused has been arrested and questioned [§34]. It is also suggested that the witnesses have been given | ||
+ | ‘protected status’ [§34]; Mr Assange has been asked to provide evidence pursuant to a European Investigation Order [34] (it is understood that Mr Assange provided that evidence in Westminster Magistrates’ Court). | ||
+ | |||
+ | === PAGE 27 === | ||
+ | |||
+ | 119. The second witness statement of Aitor Martinez Jimenez exhibits a self-serving document which appears to form part of (or is) the complaint before the Spanish Court. It refers to “..facts that should be investigated in Spanish jurisdicton and that are relevant to the effects of the extradition process against Mr Assange in the United Kingdom" | ||
+ | |||
+ | 120. This gives the appearance that part of the rationale for this criminal complaint is to generate materials for these proceedings. | ||
+ | |||
+ | 121. Setting that to one side, the fact that this matter is under investigation in Spain tells this Court nothing about the accuracy of the allegations. As must be plain, this Court could only adjudicate upon them if it too embarked upon the sort of wide—ranging investigation the defence foresees in Spain. Many of the allegations (if there is any substance to them at all) would go to sensitive issues between States. The extent to which, for example, in this sort of context, a state consented to the surveillance of its embassy is an obvious one. | ||
+ | |||
+ | 122. Press reporting of this issue puts a very different slant on the reports allegedly gathered by UC Global. See for example CNN Report of 15 July 2019 report - //Security reports reveal how Assange turned an embassy into a command post for election meddling//: | ||
+ | |||
+ | “Despite being confined to the embassy while seeking safe passage to Ecuador, Assange met with Russians and world-class hackers at critical moments, frequently for hours at a time. He also acquired powerful new computing and network hardware to facilitate data transfers just weeks before WikiLeaks received hacked materials from Russian operatives.” | ||
+ | |||
+ | 123. It is also of note that The Guardian published an article on 15 May 2018 entitled “Revealed: | ||
+ | |||
+ | “Ecuador bankrolled a multimillion-dollar spy operation to protect and support Julian Assange in its central London embassy, employing an international security company and undercover agents to monitor his visitors, embassy staff and even the British police, according to documents seen by the Guardian ... Documents show the intelligence programme, called “Operation Guest”, which later became known as “Operation Hotel" — coupled with parallel covert actions — ran up an average cost of at least $66,000 a month for security, intelligence gathering and counter-intelligence to “protect” one of the world’s most high-profile fugitives.” | ||
+ | |||
+ | 124. The Court is not asked (and indeed cannot be asked) to consider these articles beyond that they show that the case presented on behalf of Mr Assange may rather more nuanced than is presented here (regardless of who consented to the alleged surveillance or ordered it or received the product of it). | ||
+ | |||
+ | 125. The Court shouId equally be wary of general expressions of outrage about the surveillance of privileged communications. As is set below, there is no absolute rule against surveillance which includes privileged communications as a matter of UK law. | ||
+ | |||
+ | 126. The objection to the " | ||
+ | |||
+ | === PAGE 28 === | ||
+ | |||
+ | ... between the alleged surveillance and these proceedings. It is not the function of this Court to police the surveillance activities of another state. The focus of an abuse application is how the conduct alleged subverts the extradition process. | ||
+ | |||
+ | ==== The evidence on surveillance ==== | ||
+ | |||
+ | 127. The crux of the abuse alleged is set out in the first statement of Ms Peirce (which is understood to be a hearsay account of the allegations in Spain). The allegation appears to be that a Spanish company, carrying out security functions at the embassy gathered data about Mr Assange (allegedly at the behest of the US intelligence agencies [see §13). Particular emphasis is placed upon the surveillance of Mr Assange’s legal and medical | ||
+ | visits and communications [§25], It is also said that electronic devices were scanned [§§25-26]. | ||
+ | |||
+ | 128. At §28 Ms Peirce states: | ||
+ | * “Later, the focus of particular surveillance on the Ecuadorian Consul and Mr Assange appeared to immediately trigger the issuing of December 22“d 2017 International Arrest Warrant by the United States [Gareth Peirce statement §28]. | ||
+ | |||
+ | 129. This is understood to be the foundation for the defence submission [Statement of issues at [11]] that the extradition request (issued on 22 December 2017) was issued in conjunction with deliberate monitoring of Ecuadorian official in the London Embassy. | ||
+ | |||
+ | 130. This appears, in turn, to relate to §76 of the criminal complaint. It sets out some detail of a meeting between the head of the Ecuadorian Intelligence Service and Mr Assange on 21 December 2017. It is suggested that this was a meeting about an Ecuadorian operation (presumably the plan to make Mr Assange a diplomat) to remove Mr Assange from the embassy and that information provided by the Spanish Company prompted the US to issue an international arrest warrant. | ||
+ | |||
+ | 131. If this is the nexus between the surveillance and this extradition request, it amounts to the suggestion that the surveillance in some way stopped a plan (or a device) to help Mr Assange to escape the Embassy (without being arrested by the British authorities for having breached the conditions of his bail in the Swedish extradition proceedings). The suggestion that this could amount to an abuse of this Court’s proceedings is | ||
+ | unsustainable. How the issue of any warrant could be said to have stopped Mr Assange escaping from the embassy, in these circumstances, | ||
+ | |||
+ | 132. The evidence of Witnesses 1 and 2 (the only primary evidence cited in support of the allegations) is not repeated here. Neither their evidence (nor even the wider self-serving complaint submitted on behalf of Mr Assange in Spain) comes close to demonstrating an abuse of this process: | ||
+ | * 132.1 First: The conduct which is the focus of the US indictment is alleged to have occurred between 2009 and 2011, some five years (at least) before it alleged that the monitoring in the embassy took place. | ||
+ | |||
+ | === PAGE 29 === | ||
+ | |||
+ | * 132.2 Second: extradition request sets out the evidence upon which the US Government expects to support the charges. This is not exhaustive but it gives this Court a good insight into the evidence which forms the basis of the prosecution case [see Dwyer Affidavit at §64]: evidence gathered from Ms Manning' | ||
+ | * 132.3 Third: there is nothing, on the defence case, to show that any privileged materials were gathered in the embassy which are now deployed against Mr Assange. | ||
+ | * 132.4 Fourth: The United States has put this beyond dispute. The first Kromberg Affidavit states (i) no privileged communications will be used against Mr. Assange in criminal proceedings; | ||
+ | * 132.5 Fifth: developed procedures are in place to prevent agents and prosecutors receiving or viewing privileged materials in cases they are investigating. There is a separate filter team. | ||
+ | * 132.6 Sixth: (and moreover) to the best of the knowledge, information, | ||
133. However widely it is put by the defence, it is submitted that allegations going to the surveillance of the embassy cannot be capable of amounting to an abuse of this Court' | 133. However widely it is put by the defence, it is submitted that allegations going to the surveillance of the embassy cannot be capable of amounting to an abuse of this Court' | ||
- | 134. To the extent that the second statement of Ms Peirce raises any separate issue (in terms of any hard copy materials seized from the embassy), the United States Prosecutor has affirmed that the assurance that no privileged materials could be used against Mr Assange during criminal proceedings in the United States would equally apply to any | + | 134. To the extent that the second statement of Ms Peirce raises any separate issue (in terms of any hard copy materials seized from the embassy), the United States Prosecutor has affirmed that the assurance that no privileged materials could be used against Mr Assange during criminal proceedings in the United States would equally apply to any material. |
- | material. | + | |
135. This is sufficient to dispose of this particularisation concerning surveillance and LPP. | 135. This is sufficient to dispose of this particularisation concerning surveillance and LPP. | ||
However, it is further noted that: | However, it is further noted that: | ||
- | ====== PAGE 30 ====== | ||
- | 136. The Divisional Court rejected (in the context of submissions made in relation to an | + | === PAGE 30 === |
- | Applicant’s article 6 Convention rights), that the monitoring of lawyer-client | + | |
- | conversations could lead to a flagrant denial of the right to a fair trial, where there were | + | |
- | mechanisms in place to ensure it did not reach the prosecution (Pham v. USA [2014] | + | |
- | EWHC 4167 (Admin), citing the admissibility decision in Barbar Ahmad and others v. UK (2010) 51 E.H.R.R). | + | |
- | 137. English law permits the surveillance of communications and consultations between a | + | 136. The Divisional Court rejected (in the context of submissions made in relation to an Applicant’s article 6 Convention rights), that the monitoring of lawyer-client conversations could lead to a flagrant denial of the right to a fair trial, where there were mechanisms in place to ensure it did not reach the prosecution (Pham v. USA [2014] EWHC 4167 (Admin), citing the admissibility decision in Barbar Ahmad and others v. UK (2010) 51 E.H.R.R). |
- | lawyer and client; see Re McE [2009] UKHL 15; Regulation of lnvestigatory | + | |
- | (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (‘the 2010 | + | 137. English law permits the surveillance of communications and consultations between a lawyer and client; see Re McE [2009] UKHL 15; Regulation of Investigatory |
- | Order): directed surveillance carried out on premises originally used for legal | + | |
- | consultations, | + | |
- | intrusive surveillance for the purposes of Part II of RIPA; Covert Surveillance and | + | |
- | Property | + | |
- | surveillance by UK authorities). | + | |
138. In the context of abuse of process, the deliberate and unlawful invasion of a suspected person' | 138. In the context of abuse of process, the deliberate and unlawful invasion of a suspected person' | ||
- | “The police were unquestionably guilty of grave prosecutorial misconduct in this case. They acted in the knowledge that the Attorney General and the Chief of Jersey Police had not given authority to install the audio device without the consent ofthe relevant foreign authorities and would not do so; and that the foreign authorities had refused their consent.” | + | * “The police were unquestionably guilty of grave prosecutorial misconduct in this case. They acted in the knowledge that the Attorney General and the Chief of Jersey Police had not given authority to install the audio device without the consent ofthe relevant foreign authorities and would not do so; and that the foreign authorities had refused their consent.” |
- | 139. Accordingly, | + | 139. Accordingly, |
- | privileged material relating to Mr. Assange has been obtained, there can be no abuse of | + | |
- | process of the extradition court. The material has no impact on proceedings in this court. | + | |
- | The material will not be used in the criminal trial in America. Therefore, there has been | + | |
- | no usurpation of the statutory extradition regime and there is no prejudice that can accrue | + | |
- | either in these proceedings or upon Mr. Assange’s return. | + | |
- | 1 1. § 7 Eleventh of the FDA | + | **11. //§ 7 Eleventh of the POA//** |
- | 140. This particular alleges that in order for the US request to be afforded priority over | + | 140. This particular alleges that in order for the US request to be afforded priority over Sweden’s request, on 23 May 2019, the US ratchetted up the charges to add multlple Espionage Act offences (by means of a Superseding Indictment). This escalation in the charges had nothing to do with the requirements of justice. |
- | Sweden’s request, on 23 May 2019, the US ratchetted up the charges to add multlple | + | |
- | Espionage Act offences (by means of a Superseding Indictment). This escalation in the | + | |
- | charges had nothing to do with the requirements of justice. | + | |
- | 141. This again is arrant nonsense. The Swedish request was discontinued and never remade because of the time the defendant spent in the embassy. When the United States of America made its request there was no extant request and no need for any increase in | + | 141. This again is arrant nonsense. The Swedish request was discontinued and never remade because of the time the defendant spent in the embassy. When the United States of America made its request there was no extant request and no need for any increase in charges. Indeed any charge would have sufficed because there was no competing request from Sweden when the defendant was arrested from the embassy. |
- | charges. Indeed any charge would have sufficed because there was no competing request from Sweden when the defendant was arrested from the embassy. | + | |
- | ====== PAGE 31 ====== | + | === PAGE 31 === |
142. There is not and has never been a need for a decision of the Secretary of State to accord precedent to the Swedish request. This particular is not only fanciful but a hopeless grasping at straws. | 142. There is not and has never been a need for a decision of the Secretary of State to accord precedent to the Swedish request. This particular is not only fanciful but a hopeless grasping at straws. | ||
- | 12. 7 Twelfth of the POA | + | **12. //§ 7 Twelfth of the POA//** |
- | 143 This pariicuiar sates that pressure was exerted on defence witness Chelsea Manning, in order to attempt to force her to provide evidence against Mr Assange. | + | 143 This particular states |
- | 144. This is not capable of giving rise to an abuse of this Court‘s process for all of the reasons set out above. However, it is commonplace for “witness to be ordered to court to give evidence against a defendant (which is not even what is alleged here); there is nothing | + | 144. This is not capable of giving rise to an abuse of this Court‘s process for all of the reasons set out above. However, it is commonplace for “witness to be ordered to court to give evidence against a defendant (which is not even what is alleged here); there is nothing inherently wrong in that. It cannot be an abuse of process to lawfully require someone to give evidence while respecting their right to claim the privilege against incrimination. Indeed section 2 notices under the CJA 1987 have even abrogated the right to claim such privilege. |
- | inherently wrong in that. It cannot be an abuse of process to lawfully require someone to | + | |
- | give evidence while respecting their right to claim the privilege against incrimination. | + | |
- | Indeed section 2 notices under the CJA 1987 have even abrogated the right to claim such | + | |
- | privilege. | + | |
- | 145. It follows the incarceration of Ms. Manning for contempt of court cannot amount to an | + | 145. It follows the incarceration of Ms. Manning for contempt of court cannot amount to an abuse of the extradition court in this country, in a case concerning Mr. Assange. Mr Kromberg explains the function of the Grand Jury and the purpose of calling a witness before it. The evidence is not evidence which is admitted at trial. Even where it is alleged that a witness has been coerced to give evidence at a trial: this does not constitute an abuse of the extradition process (see Symeou on coerced evidence at [25] and [39]). |
- | abuse of the extradition court in this country, in a case concerning Mr. Assange. Mr | + | |
- | Kromberg explains the function of the Grand Jury and the purpose of calling a witness | + | |
- | before it. The evidence is not evidence which is admitted at trial. Even where it is alleged | + | |
- | that a witness has been coerced to give evidence at a trial: this does not constitute an | + | |
- | abuse of the extradition process (see Symeou on coerced evidence at [25] and [39]). | + | |
- | 146. Within the particulars there is an argument the defendant did not recklessly reveal the | + | 146. Within the particulars there is an argument the defendant did not recklessly reveal the identity of those named within the materials Wikileaks published. This is Mr Assange’s defence; it is a trial issue par excellence. This account should also be considered in light of paragraphs 31-34 of the indictment and Mr Assange’s use of ‘insurance’ tactics so as to defeat prior restraint. Paragraph 42 of the indictment also refers to Mr Assange' |
- | identity of those named within the materials Wikileaks published. This is Mr Assange’s | + | Wikileaks “may face some threat as a result” and where he discussed not being obliged to protect sources. |
- | defence; it is a trial issue par excellence. This account should also be considered in light | + | |
- | of paragraphs 31-34 of the indictment and Mr Assange’s use of ‘insurance’ tactics so as | + | |
- | to defeat prior restraint. Paragraph 42 of the indictment also refers to Mr Assange' | + | |
- | statements in 2010 whereby he described it as “regrettable” that sources revealed by | + | |
- | Wikileaks “may face some threat as a result” and where he discussed not being obliged | + | |
- | to protect sources. | + | |
- | 147. It is of note that the five media partners with whom Wikileaks worked drew a distinction between their handling of the material and Wikileak’s | + | 147. It is of note that the five media partners with whom Wikileaks worked drew a distinction between their handling of the material and Wikileaks' |
- | 148. The Guardian newspaper published on 2 September | + | 148. The Guardian newspaper published on 2 September |
https:// | https:// | ||
+ | |||
+ | === PAGE 32 === | ||
+ | |||
+ | * " | ||
+ | |||
+ | 149. The New York Times published on 25 July 2010: | ||
+ | |||
+ | * "The Times and other news organizations agreed at the outset that we would not disclose -- either in our articles or any of our online supplementary material -- anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromised American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site." | ||
+ | |||
+ | 150. The New York Times magazine published on 26 January 2011: | ||
+ | |||
+ | * " | ||
+ | |||
+ | https:// | ||
+ | |||
+ | https:// | ||
+ | |||
+ | === PAGE 33 === | ||
+ | |||
+ | * "As for the risks posed by these releases, they are real. WikiLeaks' | ||
+ | |||
+ | 151. The aforegoing contrasts the actions of the defendant with those of reputable media outlets. He is described as a source. He was warned not to publish the names of informants and others in danger if they were identified. He, according to his former media partners, deliberately chose to do so (in contradistinction to what any self-respecting and professional journalist would do). | ||
+ | |||
+ | ==== C. Abuse of Process - Zakrzewski ==== | ||
+ | |||
+ | 152. If it is alleged that the particulars contained in an extradition request are materially inaccurate, the Supreme Court has accepted it may amount to an abuse of process. However, even this narrow area of discretion operates so as to preclude the extradition Court from adjudicating upon disputed matters of fact going to the conduct alleged in the requesting state. | ||
+ | |||
+ | 153. Thus, in Zakrzewski v. Regional Court in Lodz, Poland [2013] 1 W.L.R 324 the Supreme Court (per Lord Sumption at §13, emphasis added) set out the conditions in which the Court' | ||
+ | * 153.1 Firstly, the jurisdiction "is exceptional" | ||
+ | * 153.2 Secondly, the true facts required to correct the error or omission "must be clear and beyond legitimate dispute" | ||
+ | * 153.3 Thirdly, the error or omission must be material to the operation of the statutory scheme. | ||
+ | * 153.4 Fourthly, the sole juridical basis for the inquiry into the accuracy of the particulars in the [warrant] Request is abuse of process. The materiality of the error in the warrant will be of critical importance. | ||
+ | |||
+ | 154. There appear to be three areas of potential Zakrzewski abuse: | ||
+ | |||
+ | === PAGE 34 === | ||
+ | |||
+ | * (i) Firstly, in relation to the " | ||
+ | * (ii) Secondly, there is said to be evidence that Ms. Manning' | ||
+ | * (iii) Thirdly (in the SOI) there are said to be further areas which could be undermined by the "hard evidence" | ||
+ | |||
+ | 155. Each of these arguments is an impermissible attempt to litigate matters of US law and/or evidence, and to reverse the fundamental basis upon which extradition operates- that the Court is not concerned with foreign law when assessing dual criminality, | ||
+ | |||
+ | **1. Passcode hash** | ||
+ | |||
+ | 156. As to the passcode hash, as a matter of English law, conspiracy under either the Computer Misuse Act or the Official Secrets Act is illegal at the point of agreement. It does not require participation in " | ||
+ | |||
+ | 157. If submissions are to be made to the effect that, as a matter of US law, illegality would only arise upon the publisher participating in illegally obtaining material, the submissions are misplaced. | ||
+ | |||
+ | 158. It is not the function of the extradition court to resolve conflict of opinion as to the meaning of foreign law. Such a dispute, even if legitimate, cannot give rise to a Zakrzewski abuse in this jurisdiction. | ||
+ | |||
+ | 159. It is well established that the Court should not undertake analysis of foreign law for the purposes of determining whether the conduct alleged amounts to an offence in the foreign jurisdiction (see Dabas v. Spain [2007] 2 A.C. 31 §55, Cando Armas v. Belgium [2005] UKFIL 67 at §16 and Norris v. USA [2008] UKHL 16 §§85 and 89). | ||
+ | |||
+ | 160. This approach is consistent with other areas which fall to be considered under the 2003 Act: | ||
+ | |||
+ | 161. In relation to s.12A of the 2003 Act "It is no part of the function of the extradition court to embark upon an investigation of the legal niceties in the jurisdiction of the requesting judicial authority. It should not seek to resolve apparent conflicts of opinion about the meaning of foreign law.": [Puceviciene v. Lithuania [2016] 1 W.L.R. 4937 at §62]. | ||
+ | |||
+ | 162. In relation to limitation periods: | ||
+ | |||
+ | === PAGE 35 === | ||
+ | |||
+ | * "this kind of debate should only be entered by the courts of the requested state in the most exceptional of circumstances when there is the clearest possible evidence of the engagement in abuse by the prosecuting authorities of the requesting state... the domestic courts should be extremely reluctant to engage in evaluating the competing arguments about the local law of limitation in the requesting state. It is always wise never to say ' | ||
+ | |||
+ | 163. In relation to abuse of process also predicated on the contention that a limitation period had expired: | ||
+ | |||
+ | * "... the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved." | ||
+ | |||
+ | 164. In relation to abuse of process predicated on the contention that the requesting authority had failed to comply with its own legal procedure: | ||
+ | |||
+ | * "... though Lord Hope couches his language in terms that the judge 'need not concern himself' | ||
+ | |||
+ | 165. It is, fundamentally, | ||
+ | |||
+ | 166. A further, insurmountable hurdle is that the factual contentions of the defendant are manifestly not "clear beyond legitimate dispute" | ||
+ | |||
+ | 167. The defendant' | ||
+ | |||
+ | === PAGE 36 === | ||
+ | |||
+ | 168. Such acts are " | ||
+ | |||
+ | 169. The defendant' | ||
+ | |||
+ | 170. The superseding indictment is brought on the basis of the rule of law and not to prosecute the defendant for his political opinions. A motion for selective prosecution (which could be brought on the basis that the prosecution was brought for a discriminatory purpose) may be filed if the defendant wishes to challenge this [§l 7, §68]. | ||
+ | |||
+ | 171. If extradited, the defendant may challenge the charge against him at first instance with one appeal as of right, and further discretionary appeals as far as the Supreme Court [§67]. | ||
+ | |||
+ | 172. If extradited, the defendant may challenge the indictment on the basis that his conduct was protected by the free speech provisions of the First Amendment, or that the charges are “void for vagueness”, | ||
+ | |||
+ | I73. Bias among potential jurors is remedied by a robust jury selection process (far more rigorous than that which would be afforded to the defendant in England) and by the large size of the jury pool in Northern Virginia [§§72-81]. | ||
+ | |||
+ | 174. After the guilty pleas of Ms. Manning, a " | ||
+ | |||
+ | 175. Mr. Boyle’s assertions to the continued incarceration of Ms. Manning and the nature of her summons before the grand jury are disputed and have already been litigated unsuccessfully, | ||
+ | |||
+ | 176. Even if, therefore, it were permissible to litigate an alternative construction of the US law under which the defendant is indicted, the scope of American criminal law in this case is not clear beyond legitimate dispute and could not therefore amount to a __Zakrzewski__ abuse. | ||
+ | |||
+ | 177. The first head of __Zakrzewski__ abuse identified by the defendant must fail because, **first** | ||
+ | this court should not entertain rival constructions of US law under the heading of abuse of process and, **second**, because the facts relied on by the defendant are not clear beyond legitimate dispute. | ||
+ | |||
+ | **2. Most Wanted** | ||
+ | |||
+ | === PAGE 37 === | ||
+ | |||
+ | 178. As to the most wanted lists, the defence contention is a simple evidential dispute, of a type that the extradition courts should not, indeed cannot, entertain. | ||
+ | |||
+ | 179. The defendant submits that the allegation that Ms Manning’s disclosure was given in response to the Wikileaks “most wanted" | ||
+ | |||
+ | 180. This assumes that the US prosecution is somehow bound to accept the account given by Ms Manning in her own defence or mitigation. As need hardly be said, this is not the position. After Ms Manning' | ||
+ | questioning about the offences or surrounding circumstances [Kromberg l §§142-3]. Thereafter Ms. Manning refused to testify before a grand jury and has been found to be in contempt [§§145—156]. | ||
+ | |||
+ | 181. The second affidavit of Gordon Kromberg (§§12 and 13) maintains the factual position of the prosecution. Ms. Manning __is__ alleged to have responded to requests made in the most wanted list. | ||
+ | |||
+ | 182. Therefore: | ||
+ | * 182.1 The defendant’s submissions as to this issue amount to an evidential dispute of the kind that is irrelevant in extradition proceedings. | ||
+ | * 182.2 Because the defendant’s submissions represent an evidential dispute there is no matter of fact relied on by the defendant in furtherance of the abuse argument which is clear beyond legitimate dispute (Zakrzewski [supra]). | ||
+ | |||
+ | **3. Other areas** | ||
+ | |||
+ | 183. The final area of Zakrzewski abuse identified in the SOI is that there are “other areas” which could be “undermined by hard evidence”. These are not identified and so cannot be responded to with precision; however, it will be noted by the Court that the mere assertion that prosecution allegations can be “undermined” is a formulation of the sort of evidential dispute which the extradition courts cannot consider. | ||
+ | |||
+ | **4. Eller** | ||
+ | |||
+ | 184. Should the defendant seek to rely on the witness statement of Mr. Eller (and his exhibits) to argue that an extradition offence is not made out or in furtherance of a __Zakrzewski__ abuse argument, any such argument must also fail. For the reasons set out below, Mr. Eller’s statement and exhibits are relevant, if at all, to evidential dispute at trial. This is precisely the sort of evidence Lord Sumption warned the Court not to consider in __Zakrzewski__ [§13]. | ||
+ | |||
+ | === PAGE 38 === | ||
+ | |||
+ | ==== VI. CONCLUSION ==== | ||
+ | |||
+ | 185. No issue of abuse or Zakrzewski abuse arises. | ||
+ | |||
+ | ==== VII. ANONYMOUS WlTNESSES ==== | ||
+ | |||
+ | 186. If the Court agrees that the allegations about surveillance in the Embassy are incapable of constituting an abuse of the Court' | ||
+ | |||
+ | 187. There does not appear to be any application in the files nor any witness statement explaining the basis upon [which] they seek anonymity. All that appears in the evidence is that: | ||
+ | |||
+ | 188. [3] "After being made aware of the evidence outlined below lawyers acting for Mr Assange in Spain, Baltasar Garozon Real and Aitor Martinez took a number of steps towards alerting Spanish prosecuting authorities. __Those steps involved establishing protection for witnesses involved__, and the confidentiality necessary if arrests and search warrants were thereafter to be ordered by a court. That confidentiality has been maintained by Mr Assange' | ||
+ | |||
+ | 189. [5] "... In addition the Central Investigative Court No. 5 has agreed a set of proceedings, | ||
+ | |||
+ | 190. [6] "To avoid unnecessary interference with the Article 8 ECHR rights and/or the privacy, confidentiality and Data Protection rights concerning third parties whose confidential or private data appears in the material before the court I have taken a selective approach to what I have included of the attachments but can confirm that all the attachments mentioned in the exhibited Criminal Complaint were filed with the court in Spain."; | ||
+ | |||
+ | 191. (pg.66) "Third Additional Pleading: It is requested the adoption of protection measures for the witnesses who are cited in the body of this statement of complain[t] and whose statements are provided in copy of notarial deed in sealed envelope to prevent their knowledge until it has been adopted the measure that, respectfully, | ||
+ | |||
+ | 192. "With this affidavit I make myself available to the justice system, with the aim of cooperating openly in relation to some events that I have information about and by their ... | ||
+ | |||
+ | === PAGE 39 === | ||
+ | |||
+ | ... contents may reveal unlawful activities. I wish to express that at no point have I intended to commit nor am I aware of having committed any unlawful activities myself. That is why I wish to make myself available to the justice system to ask it for protection and be granted the status of a protected witness given that, with this decision which I have taken freely, my family and I are put at risk with the information and documentation I am | ||
+ | providing.” __Witness 1__ | ||
+ | |||
+ | 193. “I have made this affidavit so that it can be presented before the judiciary. I intend that my explanation of facts be put before the authorities and I understand that it may contain activities that are considered to be illicit. I never participated in illicit acts, nor did I intend to participate in such acts nor was I aware of them. That is why, despite being subjected to a confidentiality agreement, I am now putting these facts before the justice system. However, as a prior necessity I require the status of a protected witness, given that with | ||
+ | this information, | ||
+ | |||
+ | 194. The Court cannot grant an application for anonymity unless it is satisfied that there is a genuine cause for anonymity, __generally a justified fear for the safety of the witness or others which cannot otherwise be protected__, | ||
+ | |||
+ | 195. It is noted that the identity of Witnesses 1 and 2 must be known to any accused persons in Spain. It is wholly unclear what possible basis they could have for submitting that they have a justified fear for their safety in these proceedings. Any application that their evidence remains anonymous would fall at the first hurdle given that there is simply no evidence about this. | ||
+ | |||
+ | James Lewis QC | ||
+ | |||
+ | Clair Dobbin | ||
+ | |||
+ | Joel Smith | ||
+ | |||
+ | 17 February 2020 |