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extradition_skeleton_argument [2020/02/26 14:17]
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extradition_skeleton_argument [2020/02/27 01:33] (current)
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 === PAGE 34 === === PAGE 34 ===
 +
 +  * (i) Firstly, in relation to the "passcode hash allegation", it is said that illegality only arises if the publisher actually participated in illegally obtaining the material. This is said to be "flatly contradictory to Manning's unchallenged evidence before her Court Martial".
 +  * (ii) Secondly, there is said to be evidence that Ms. Manning's disclosures were not linked to the Wikileaks "most wanted" lists.
 +  * (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, through the "back door" of an abuse argument. 
 +
 +**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 "illegally obtaining the material"
 +
 +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 === === PAGE 35 ===
  
-=== PAGE 36 ===+  * "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 'never,' but the circumstances when it is justified must surely be truly exceptional." (Villota v. Spain [2014] EWHC 2623 (Admin) at §35 and §40)
  
 +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." (Battistini v. Italy [2009] EWHC 3536 (Admin) §15)
 +
 +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' with the criminal law of the requesting state, the thrust is that he should not do so, except in true abuse of extradition process cases, and should not do so, not as a matter of discretion, but as a matter of jurisdiction. Such inquiry is simply not his task. The effect of the Framework Decision, and the interpretation of the 2003 Act Part I, go further than the traditional assumption of good faith between sovereign states and a need to accommodate different national legal processes. 52. The circumstances of this appeal illustrate the point, and the way in which the contrary view would undermine the legislative intention. The context is an extradition case, pursuant to what is intended to be a simplified decision-making process in an area of mutual recognition of judicial decisions in criminal matters. There is a disagreement among the Greek lawyers about what the Greek Code of Criminal Procedure requires. It would be quite extraordinary for the District Judge to hear evidence from competing experts on Greek law, including the Prosecutor of the requesting state, so as to rule as a matter of fact on what Greek law was, then to find whether in fact the actions of the Prosecutor had breached whatever the law was found to be, then to rule on the effect on the validity of the warrant of a breach of its Code, each of which might be quite uncertain in Greek law, and then to rule on whether that caused the EAW to be invalid as a matter of English law implementing the Framework Decision. And if extradition then ensued, the matter would be dealt with by the Greek Courts who would be unlikely to regard the views of the English Courts on Greek law as of more than passing interest. If it did not ensue, the Greek Courts would never have the chance to put it right." [Symeou v. Greece [2009] 1 W.L.R. 2384, §§52-3]
 +
 +165. It is, fundamentally, not the rule of this court to enquire into whether the conduct alleged amounts to an offence as a matter of US law. The request and further information assert that it does. This is the end of the matter. The defendant's argument is, in reality, an attempt to litigate dual criminality by reference to the provisions of US law under which the defendant is indicted. This does not go to an abuse of process.
 +
 +166. A further, insurmountable hurdle is that the factual contentions of the defendant are manifestly not "clear beyond legitimate dispute". The request and further Affidavit of Gordon D. Kromberg assert:
 +
 +167. The defendant's extradition is requested in relation to an "agreement to obtain classified information through computer hacking" [§6] and publishing classified documents containing the unredacted names of innocent people [§6].
 +
 +=== PAGE 36 ===
  
 168. Such acts are "illegal and not protected by the constitution” [§§7-9]. 168. Such acts are "illegal and not protected by the constitution” [§§7-9].
  
-169. The defendant's extradition is requested for agreeing to assist Manning in cracking a +169. The defendant's extradition is requested for agreeing to assist Manning in cracking a password hash [§166], in order to obtain unauthorised access to an account in a which would have allowed Manning to log onto a classified DOD account in a manner which would make it more difficult for investigators to identify her [§168, 171].
-password hash [§166], in order to obtain unauthorised access to an account in a which +
-would have allowed Manning to log onto a classified DOD account in a manner which +
-would make it more difficult for investigators to identify her [§168, 171].+
  
-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].+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 [§17, §68].
  
-171. lf 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].+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. lf extradited, the defendant may challenge the indictment on the basis that his conduct +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”, although the US prosecutors are of the view that such arguments would have no merit [§69-71].
-was protected by the free speech provisions of the First Amendment, or that the charges +
-are “void for vagueness”, although the US prosecutors are of the View that such arguments would have no merit [§69-71].+
  
-I73. Bias among potential jurors is remedied by a robust jury selection process (far more +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].
-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 "providence enquiry" was initiated to ensure that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts which Manning had chosen to admit and Manning was not subjected to exhaustive questioning about the offences or surrounding circumstances [§§ 142-3]. Thereafter, Mrs. Manning refused to testify before a grand jury and has as a consequence been incarcerated [§§ 145-156]. 174. After the guilty pleas of Ms. Manning, a "providence enquiry" was initiated to ensure that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts which Manning had chosen to admit and Manning was not subjected to exhaustive questioning about the offences or surrounding circumstances [§§ 142-3]. Thereafter, Mrs. Manning refused to testify before a grand jury and has as a consequence been incarcerated [§§ 145-156].
  
-175. Mr. Boyle’s assertions to the continued incarceration of Ms. Manning and the nature of +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, in America [§§157-165].
-her summons before the grand jury are disputed and have already been litigated unsuccessfully, in America [§§ 157-165].+
  
-176. Even if, therefore it were perrmissible litigate an alternative construction of the US law +176. Even if, thereforeit 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.
-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** 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 +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.
-of process and, **second**, because the facts relied on by the defendant are not clear beyond +
-legitimate dispute.+
  
-2. **Most Wanted**+**2. Most Wanted**
  
 === PAGE 37 === === PAGE 37 ===
  
-178. As to the most wanted lists, the defence contention is a simple evidential dispute, of a +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.
-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 +179. The defendant submits that the allegation that Ms Manning’s disclosure was given in response to the Wikileaks “most wanted" lists is contradictory to the evidence given in Ms Manning‘s Court Martial.
-response to the Wikileaks “most wanted" lists is contradictory to the evidence given in Ms Manning‘s Court Martial.+
  
-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 +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's guilty pleasa “providence enquiry” was initiated to ensure that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts which Ms Manning had chosen to admit and she was not subjected to exhaustive 
-position. After Ms Manning's guilty pleasa “providence enquiry” was initiated to ensure +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].
-that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts +
-which Ms Manning had chosen to admit and she was not subjected to exhaustive +
-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 +181. The second affidavit of Gordon Kromberg (§§12 and 13) maintains the factual position of the prosecutionMs. Manning __is__ alleged to have responded to requests made in the most wanted list.
-of the prosecution Ms. Manning __is__ alleged to have responded to requests made in the +
-most wanted list.+
  
 182. Therefore: 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]).
  
-182.1 The defendant’s submissions as to this issue amount to an evidential dispute of the +**3. Other areas**
-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” +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.
-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**+**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 precisely the sort of evidence Lord Sumption warned the Court not to consider in __Zakrzewski__ [§13].+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 === === PAGE 38 ===
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 ==== VI. CONCLUSION ==== ==== VI. CONCLUSION ====
  
-185.No issue of abuse or Zakrzewski abuse arises.+185. No issue of abuse or Zakrzewski abuse arises.
  
 ==== VII. ANONYMOUS WlTNESSES ==== ==== VII. ANONYMOUS WlTNESSES ====
  
-186. lf the Court agrees that the allegations about surveillance in the Embassy are incapable of constituting an abuse of the Court's process, then the evidence of Witnesses 1 and 2 is irrelevant. Submissions as to their  evidence being anonymous are set out here for fullness.+186. If the Court agrees that the allegations about surveillance in the Embassy are incapable of constituting an abuse of the Court's process, then the evidence of Witnesses 1 and 2 is irrelevant. Submissions as to their  evidence being anonymous are set out here for fullness.
  
-187. There does not appear to be any application in the files nor any witness statement explaining the basis upon they seek anonymity. All that appears in the evidence is that:+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's lawyers both in Spain and in the UK, all of whom have been made aware of the likely progression of steps being taken." [Ms Peirce - Statement 1] 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's lawyers both in Spain and in the UK, all of whom have been made aware of the likely progression of steps being taken." [Ms Peirce - Statement 1]
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 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."; Jimenez Statement 2 (18 December 2019). 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."; Jimenez Statement 2 (18 December 2019).
  
-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 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, is requested, at certain risk to their personal integrity and security, therefore ..." Complaint to the Spanish Court +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, is requested, at certain risk to their personal integrity and security, therefore ..." Complaint to the Spanish Court (Central Examining Magistrate Number 5).
-(Central Examining Magistrate Number 5.+
  
-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+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 === === PAGE 39 ===
  
-contents may reveal unlawful activities. I wish to express that at no point have I intended +... 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
-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__ providing.” __Witness 1__
  
-193. “I have made this affidavit so that it can be presented before the judiciary. I intend that +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 
-my explanation of facts be put before the authorities and I understand that it may contain +this information, as well as the documentation that I am providing, my family and I will be put at risk.” __Witness 2__
-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 factsbefore the justice system. +
-However, as a prior necessity I require the status of a protected witness, given that with +
-this information, as well as the documentation that I am providing, my family and I will +
-be put at risk.” __Witness 2__+
  
 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__, and that justice requires that the evidence be given. Per R. (on the application of B) v Westminster Magistrates' Court [2014] UKSC 59; [2015] A.C. 1195, Lord Hughes gave the following explanation of the correct approach to the test in the context of extradition proceedings (at [73]). 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__, and that justice requires that the evidence be given. Per R. (on the application of B) v Westminster Magistrates' Court [2014] UKSC 59; [2015] A.C. 1195, Lord Hughes gave the following explanation of the correct approach to the test in the context of extradition proceedings (at [73]).
  • Last modified: 2020/02/26 14:17