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Extradition Skeleton Argument

The following are pages from the skeleton argument by the U.S. government during the Assange extradition hearing held on Feb 24, 2020. A shorter skeleton argument regarding “political offence” can be found here.

This text has been extracted from photos posted on Twitter by journalist Mac William Bishop.

TITLE PAGE

IN THE CITY OF WESTMINSTER MAGISTRATES' COURT DISTRICT JUDGE BARAITSER EXTRADITION HEARING THE UNITED STATES OF AMERICA -v- JULIAN ASSANGE

SKELETON ARGUMENT ON BEHALF OF THE UNITED STATES OF AMERICA

Date of hearing: 24 February 2020

Time estimate: 5 days

References are to the Defence Core Bundles [CB] and the United States Core Bundle [USCB] Essential reading: The first Affidavit of Gordon Kromberg [USCB2] ; The second Affidavit of Gordon Kromberg [USCB3].

CONTENTS PAGE

I. Overview ……………………………………………………………………………..3

II. Introduction …………………………………………………………………………4

III. Section 78 - Initial Stages …………………………………………………………..4

  A. Dual Criminality ..............................................................................5
  B. Submissions on dual criminality ...............................................................7
     1. Count 18 ...................................................................................8
     2. Patrick Eller ..............................................................................9
     3. The publishing of leaked information .......................................................10

IV. Abuse of Process - Summary …………………………………………………………….11

  A. Abuse of Process - jurisdiction ...............................................................12
  B. Abuse of Process - the correct approach .......................................................13

V. Submissions on Abuse in this Case ……………………………………………………….15

 A. Witnesses ......................................................................................18
    1. Eric Lewis ..................................................................................18
    2. Feldstein ...................................................................................19
    3. Prince ......................................................................................19
    4. Boyle .......................................................................................20
    5. Tigar .......................................................................................21
    6. Jaffer ......................................................................................21
    7. Pollack .....................................................................................22
    8. Shenkman ....................................................................................22
    9. Durkin ......................................................................................22
    10. Ellis ......................................................................................23
    11. Goodwin-Gill ...............................................................................23
 B. Submission of each POA .........................................................................23
    1. §7 First of the POA .........................................................................23
    2. §7 Second of the POA ........................................................................24
    3. §7 Third of the POA .........................................................................24
    4. §7 Fourth of the POA ........................................................................24
    5. §7 Fifth of the POA .........................................................................24
    6. §7 Sixth of the POA .........................................................................25
    7. §7 Seventh of the POA .......................................................................25
    8. §7 Eighth of the POA ........................................................................26
    9. §7 Ninth of the POA .........................................................................26
    10. §7 Tenth of the POA ........................................................................26
    11. §7 Eleventh of the POA .....................................................................30
    12. §7 Twelfth of the POA ......................................................................31
    13. Alleged recklessness to sources ............................................................31
C. Abuse of Process - Zakrzewski ...................................................................33

VI. Conclusion …………………………………………………………………………..38

VII. Anonymous Witnesses ………………………………………………………………….38

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1 This is an application for the defendant to stand trial in the United States of America. It is not a trial of the facts or issues, which the defence are endeavouring to make it. The sole questions are whether the statutory requirements of the Extradition Act 2003 (“the Act”) are satisfied. The Act is meant to be an exhaustive code to enable the court to deal sequentially with the questions set out for determination.

2. A very limited, residual abuse of process discretion is available where the statutory tests or bars to extradition are not engaged. This abuse of process is not to be equated to the abuse of process jurisdiction available in domestic criminal trials. It is an exceptional jurisdiction with a very high threshold and only arises in extradition proceedings if there has been a bad faith manipulation of the English extradition process which is not covered by the statutory scheme.

3. The defence have already conceded at §§ [3] (and [8]) of their written submissions on abuse of process (“Particulars of Abuse”) that “..each individual limb of the evidence relied on for the purposes of abuse engages the Act in its own right (and the evidence is thus admissible anyway).” That concession alone demonstrates that the application for abuse of process is misconceived as the evidence and allegations go to the statutory bars.

4. The defence are attempting to use an application for abuse of process in extradition proceedings as a means of collateral challenge to the facts set out in the Request which the Supreme Court has held to be impermissible. They are also attempting to use an application for abuse of process as a means of dealing with trial issues which, likewise, is impermissible. This even goes so far as to set out a defence, to the crux of the allegation against Mr Assange, that he published the classified materials so as to reveal the names of sources “…the release of some un-redacted materials came about as a result of 'a series of unforeseeable events ….outside of the control of Mr Assange or indeed Wikileaks..” [Particulars of Abuse [§83]].

5. The words of Lord Templeman in In re Evans [1994] 1 W.L.R. 1006, 1013 -1015 setting out the role of the Magistrate in extradition proceedings are apposite: “The magistrate will first consider whether the equivalent conduct would constitute an offence against the equivalent law of the United Kingdom…The magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial. …Main the magistrate is not concerned with proof of the facts, the possibility of other relevant facts or the emergence of any defence; these are matters for trial in the foreign state.”

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 'kitchen sink' approach of the defence, which is in any event wrong in law.

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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..”; Articles 3,6 and 10 of the ECHR require a 'flagrant breach which nullifies the right entirely'.

8. The prosecution apologise in advance for the length of this written argument. It was envisaged that the particulars of abuse to be served on 14 February 2020 would simply refine the particulars set out in the Statement of Issues (`SOI') (and accurately identify the evidence which demonstrates each particular), given that document, in December 2019, said only a “very small amount of potential evidence will remain outstanding”. In fact, the document served by the defence is 35 pages long and replete with misstatements of the law and the correct approach this court should adopt. It has therefore been necessary to set the position straight in some detail.

9. The following issues arise for this hearing: 9.1 whether the initial stages of the extradition hearing pursuant to section 78 of the 2003 Act are satisfied;

  • 9.2 whether the conduct relied upon by the defence, if established, would be capable of amounting to an abuse of process; per R (United States) v The Senior District Judge, Bow Street Magistrates' Court v Tollman and Tollman [2007] 1 W.L.R. 1157;
  • 9.3 whether an abuse, going to a material inaccuracy in the particulars set out in the Request, can be made out; Zakrzewksi v. Regional Court in Lodz, Poland [2013] 1 W.L.R 324;
  • 9.4 whether the political offence exception is available to the defence in proceedings under the Extradition Act 2003 (dealt with by separately served skeleton argument, USCB at Tab 5); and
  • 9.5 in so far as it arises, whether the defence is entitled to rely upon anonymous witnesses (witnesses 1 and 2 in the defence core bundle).

10. The Act reads:

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  1. 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.
  2. The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) --
    1. documents referred to in section 70(9);
    2. particulars of the person whose extradition is requested;
    3. particulars of the offence specified in the request;
    4. in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory;
    5. in the case of a person alleged to be unlawfully at large after conviction of an offence, a certificate issued in the category 2 territory of the conviction and (if he has been sentenced) of the sentence.
  3. If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
  4. If the judge decides that question in the affirmative he must decide whether --
    1. the person appearing or brought before him is the person whose extradition is requested;
    2. the offence specified in the request is an extradition offence;
    3. copies of the document sent to the judge by the Secretary of State have been served on the person
  5. The judge must decide the question in subsection (4)(a) on a balance of probabilities.
  6. If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.
  7. If the judge decides those questions in the affirmative he must proceed under section 79.
  8. The reference in subsection (2)(d) to a warrant for a person's arrest includes a reference to a judicial document authorising his arrest.

11. It appears that section 78(2) is conceded. It also appears section 78(4)(a) and ( c ) are conceded. It follows only section 78(4)(b) remains an issue; namely extradition offence. This is the dual criminality requirement, tested by application of section 137 of the Act.

12. The prosecution have already identified the English offences that are disclosed by the conduct with which the defendant is accused (in the Prosecution Opening Note). That document should be read alongside these submissions.

A. Dual Criminality

13. Section 137(3) of the 2003 Act provides, so far as is relevant:

137 Extradition offences: person not sentenced for offence

  • (1) This section sets out whether a person's conduct constitutes an “extraditiona offence” for the purposes of this Part in a case where the person --
    • (a) is accused in a category 2 territory of an offence constituted by the conduct, or
    • (b) has been convicted in that territory of an offence constituted by the conduct but not sentenced for it.

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  • (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.
  • (3) The conditions in this subsection are that --
    • (a) the conduct occurs in the category 2 territory;
    • (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
    • © the conduct is so punishable under the law of the category 2 territory.

(7A) References in this section to “conduct” (except in the expression “equivalent conduct”) are to the conduct specified in the request for the person's extradition“

14. For the purposes of section 137, conduct takes place “in” the requesting territory if the impact or effect of the conduct was felt, at least in part, in that territory (see Office of the King's Prosecutor, Brussels v. Cando Armas [2006] A.0 1).

15. Section 137(7A), set out above, reflects what has been repeatedly stated in case law. See Office of the King's prosecutor v Cando Armas [ibid] at [16]. In Norris v. The Government of the United States of America and others [2008] UKHL 16 the House of Lords confirmed that the Court should look to the conduct alleged (within the extradition request and not confined simply to that alleged in the indictment), ignoring mere narrative background, and not seek to match the ingredient of the foreign offence with those of an offence known to English law (§91): “The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both. cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. Had Mr Norris's appeal failed on the first issue the extradition order on count 1 would have stood.”

16. Where conduct in the request is reflected in different counts in the requesting state, and that conduct is closely interconnected and concerns the same criminal enterprise, it is not necessary to demonstrate a separate extradition offence for each of the counts; Tappin v. USA [2012] EWCA 22 (Admin) at §§44 and 46.

17. The transposition exercise to be conducted under section 137 should include, so far as is possible, transposition of the environment in the requesting state, to include local institutions, and laws effecting legal powers (Norris (supra) at §§93-99)

18. For the purposes of dual criminality, the court is concerned, and only concerned, with the content of the extradition request (Norris v Government of the United States of America [2008] 1 AC 920'per Lord Bingham at §91; In re: Evans [1994] 1 WLR 1006 per Lord Templeman at pp1013-1014 (supra)).

19. There can be no recourse to extraneous material; Sir John Thomas PQBD in United States of America v Shlesinger [2013] EWHC 2671 (Admin), §§5, 11 and 12:

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”…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's behalf that, in determining whether the conduct alleged in the extradition request constituted an offence under the law of England and Wales, it was permissible for the court to consider extraneous evidence served by the requested person. He accepted that there was no authority to this effect, but contended that it must be open to the court to receive such evidence, as whether the conduct constituted an offence under the law of England and Wales would not be determined in the state to which he was returned. He submitted that the position was analogous to the position that arises when the court considers bars to extradition, such as those relating to human rights, the rule against double jeopardy, passage of time and other matters set out in the 2003 Act. In such cases the court always receives evidence from the requested person. We cannot accept that submission. It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request. It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales. It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below. The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone.“

20. Indeed, since July 2014, this approach has the force of statute. Section 137(7A) [also cited above] of the 2003 Act provides that: ”(7A) References in this section to “conduct” (except in the expression “equivalent conduct”) are to the conduct specified in the request for the person's extradition.“

21. It is therefore plain that consideration of conduct for the purposes of assessing dual criminality must be by reference to the conduct in the request and accompanying papers only.

22. There is a bright line between determining an extradition offence and any abuse of process application. The defence consistently seek to elide the tests and attempt to modify the conduct against which the dual criminality test, pursuant to section 137 of the Act, is to be carried out. This is fundamentally wrong as a matter of extradition law.

23. The determination of extradition offence is solely and entirely tested against the conduct alleged in the Request. Defence evidence is utterly irrelevant.

24. The residual abuse of process jurisdiction is a separate jurisdiction as explained below. There can be no watering down of the conduct against which to test extradition offence. That conduct is solely to be found in the Request. It follows the extraneous material relied on by the defendant is irrelevant to the Court's consideration of the 'issue. It can only be relevant to a Zakrzewski type abuse of process argument which is, for the reasons set out in this skeleton argument, destined to fail.

B. Submissions on dual criminality

25. It appears the defendant makes two submissions as to dual criminality:

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  • 25.1 In relation to count 18, the “password hash” conspiracy amounts at most to a “bare request” with “no evidence of agreement, or information being sent”; and
  • 25.2 In relation to all charges, they seek to criminalise the act of publishing leaked information which is “essential to investigative press freedom” which “offends against the core notions of Article 10 ECHR” and “No precedent exists of the Official Secrets Acts being deployed in this way”.
1. Count 18

26. The absence or otherwise of “evidence” of an agreement is irrelevant. This Court must assess the allegation contained in the request and accompanying documents, and is not required to consider the sufficiency of evidence [see s.84(7) of the 2003 Act and Shlesinger [infra]].

27. The request does allege an agreement. The Request expressly so states at page 10 paragraph [25]: “In furtherance of this scheme, according to the Jabber communications, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defence computers connected to the Secret Internet Protocol Network…a United States government network used for classified documents and communications…” [request, p10, §25]. And at [request p11, §28]: The Jabber communications show that around 8'h March 2010, after ASSANGE indicated that he was “good” at “hash-cracking” and that he had a type of tool used to crack Microsoft password hashes, Manning provided ASSANGE with an alphanumeric string. A U.S. Army forensic expert subsequently examined the SIPRNet computers used by Manning and determined that the alphanumeric string that Manning sent to ASSANGE to crack was identical to a password hash stored on the SAM registry file of a SIPRNet computer used by Manning that was associated with an account that was not assigned to any specific user.

28. This is described as a “password cracking agreement” [request p12, §30 and p13, §31(d)].

29. “The United States will establish that in or around March 2010 ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers…”. Cracking that password would “have allowed Manning to log onto the computers under a surname that did not belong to her” [request p40 §87].

30. The matter is further addressed in the affidavit of Gordon Kromberg dated 17th January 2020: “An independent Grand Jury has already found probable cause of Mr. Assange's “agreement to obtain classified information through computer hacking” [16].

31. Upon Mr. Assange's extradition the US authorities “intend to prove this agreement, beyond a reasonable doubt, through a variety of evidence…” [1166].

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 “rainbow tables”, tools…

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… used for hash cracking. Subsequent to this conversation, Ms. Manning provided Mr. Assange with a hash password, which Assange then asked questions about “in order to help [Mr.] Assange crack it, such as “any more hints about this lm…no luck so far”. [§167]

33. There is “no question that neither Assange nor Manning was authorized to access this account - that is the whole reason why they needed to crack a stolen password hash in the first place” [§171].

34. Accordingly, the conduct described in the request would be indictable in this country as a conspiracy to commit a number of substantive offences set out in the Computer Misuse Act of 1990, the Official Secrets Act of 1911 and the Official Secrets Act of 1989 (for more detail as to which, see the prosecution opening note §29 et seq).

35. In any event, the conduct is so closely interconnected with the other conduct alleged in the request, that it is unnecessary to show a separate extradition offence in relation to count 18 alone (Tappin [supra]).

2. Patrick Eller

36. The reliance by the requested person on the witness statement of Patrick Eller, and the exhibits he produces (defence bundles H1 and H5) in relation to dual criminality is misplaced. This evidence is, simple, irrelevant and inadmissible in these proceedings:

  • 36.1 First, this Court cannot look to extraneous material when considering the issue of extradition offences (per section 137(7A) of the Act; Norris and Shlesinger [both supra]).
  • 36.2 Second, to the extend that it is asserted that Mr. Eller's statement is demonstrative of a lack of evidence, or of the innocence of Mr. Assange, this is an irrelevance. The instruction of Mr. Eller appears to have been targeted at this precise issue (see §7 “I was asked… to conduct a review of the available evidence and to consider the validity of the prosecution's claims within the request”). This is defence evidence for trial. It is irrelevant to extradition. There is no need to demonstrate a case calling for an answer in this Court (per s.87(7)). Evidential matters would also be irrelevant to any potential abuse argument (see AB, Symeou [both supra]).
  • 36.3 Third, Patrick Eller's understanding of the allegation in the request undermines the argument of the requested person. At §6, Mr. Eller states that he “note[s] the claim made by the US prosecutors, contained in their affidavits alleges first that Mr. Assange and Private Manning reached an illegal agreement during March 2010 in which Assange agreed to assist Manning in cracking a password stored on US Department of Defence (DOD) computers connected to… SIPRNet”. Mr. Eller confirms, therefore, that the allegation made by the US prosecutors amounts to an agreement to crack passwords held on computers connected to the classified network. This conduct amounts to an extradition offence.

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  • 36.4 Fourth, Mr. Eller's conclusions are an irrelevance. The key passages of Mr. Eller's statement are:
    • (a) “I found strong support for the proposition that the interpretation placed by the prosecution on the conversation with Manning and Assange could not be reliably or safely construed to be for the purpose of obtaining anonymity for Manning so that classified information could be extracted without personal anonymity being compromised” [§11, emphasis added];
    • (b) The SAM file alone would not be sufficient to crack the password hashes. Both the SAM and system files would be required. It would not have been possible therefore to crack the password [§32-4].
    • ( c ) In relation to the “password cracking agreement”, Mr. Eller does “not proffer a view as to whether it can be considered that there was such an agreement…” [§62], although he lists matters which he considers may be “relevant” to this issue, those being that Ms. Manning did not state explicitly that she was trying to crack the hash in order to obtain data anonymously, that she already had access to the data by “booting a Linux CD and reading the files without the access controls imposed by the Windows operating system” [§63] and that Ms. Manning did not have a decrypted password hash that could be used to crack the password [§64], she had only the encrypted hash from the SAM file, and not the key to decrypt it which could be derived from the system file [§65].

37. As to (a), this is an evidential matter and irrelevant to these proceedings (see above). In any event, the fact that the conspiracy would not succeed in achieving the desired anonymity does not mean that the conspiracy did not exist. 38. As to (b), this is also an evidential matter. In any event, again, the fact that the conspiratOrs are said not to have possessed all the information they needed to crack the password does not mean.that the agreement did not exist.

39. As to ( c ), there is considerable overlap with (a) and (b). Mr. Eller's statement is a summary of evidence that the defence may wish to deploy at trial. It is irrelevant for these proceedings. 3. The publishing of leaked information

40. The Statement of Issues (“SOI”) further alleges, in relation to dual criminality, that “all charges seek to criminalise the act of publishing leaked information”, which is said to offend against “the core notions of article 10 ECHR”. It is further said that “no precedent exists of the Official Secrets Acts being deployed in this way”.

41. If the argument is to be maintained that the charges offend core notions of the defendant's article 10 Convention rights, this is an argument that should be deployed pursuant to s87. It is irrelevant to the notion of dual criminality.

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42. The suggestion that “no precedent exists of the Official Secrets Acts being deployed” in “this way” is an irrelevance. It is noted that the SOI does not suggest that the conduct alleged would not amount to an offence under the Official Secrets Acts. This is, presumably, because it is conceded that it would.

43. For the reasons already set out in the prosecution opening note (§§28 to 56) the conduct detailed in the request would amount to a number of offences pursuant to the Official Secrets Acts.

44. It follows, for all these reasons, that section 78(4)(b) is satisfied and the offence specified in the Request is an extradition offence. The court should then move to section 79 of the Act — the bars to extradition. Section 79(1)(b) is raised (extraneous considerations under section 81, namely whether the request for his extradition was made for the purpose of prosecuting or punishing him, on account of his political opinion).

45. However, the defence have raised issues of abuse of process and the availability of the political offence exception. It is submitted that these can be determined and disposed of during this hearing to clear the way for the applications under sections 79(1)(b) and 87. The prosecution do not accept that when dealing with each bar to extradition and compatibility with the ECHR, irrespective of the abuse issue, much of the morass of evidence adduced by the defendant is admissible.

46. For example, the court should deal with each bar to extradition or Article of the ECHR in a focused way and only consider evidence that is relevant to that bar or Article at a time.

47. The purpose of this hearing (insofar as it relates to abuse of process) is to enable the court to consider whether any of the conduct relied upon by the defence warrants further investigation by the Court, because it is capable of meeting the high threshold that is necessary for the court to exercise its limited residual jurisdiction. It does not:

  • 47.1 First: Much of what is relied upon to support this application falls outside the Court's implied abuse of process jurisdiction to order a defendant's discharge on grounds of abuse of process. Fundamentally, the Court's abuse of process jurisdiction is regarded as a residual jurisdiction because it covers misconduct not caught by the statutory scheme. Almost the entirety of what is alleged in this application goes to bars to extradition.
  • 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 “it's all an abuse” argument). This a. ',roach would lead the Court into basic error. The defendant is not permitted to side step that much of the evidence deployed goes to the bars to extradition. Nor is he permitted to sidestep that many of issues

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  • … raised have already been conclusively determined, as a matter of English law, not to reach the threshold to be a bar to extradition.
  • 47.3 Third: The discretion focuses upon whether the statutory regime in the Extradition Act 2003 A is being “usurped” by the requesting state. That is, falsely manipulated by the requesting state to prevent the court being able to carry out its statutory function under the Act. The Court being manipulated and deceived is a key component. The discretion is not one that permits the extradition court to police the wider executive functions of a foreign state (in essence what part of the defence application invites) — the focus must be on whether the requesting state is subverting the Court's extradition processes. Fundamentally, there is a lack of nexus between the allegations in this application and the extradition process (still • less the trial process).
  • 47.4 Fourth: It is not the function of this Court to vouchsafe the freedom of the press in the United States. Its focus must on whether these extradition proceedings constitute an abuse of process in relation to the defendant.
  • 47.5 Fifth: Although not required to, the United States has provided a complete answer to the allegations made by the defendant.
  • 47.6 Sixth: As regards any application of Zakrzewksi, this application constitutes an indirect and contentious challenge to the factual or evidential basis of the conduct alleged in the United States and is impermissible per se.

48. To the extent that it matters, no proper basis has been advanced for the reliance upon anonymous witnesses.

A. Abuse of Process — jurisdiction

49. There is a fundamental presumption of good faith which applies to extradition proceedings; Ahmad and Aswat v. USA [2007] H.R.L.R 8 §101 (cited by the 'Supreme Court) in Secretary of State for Foreign and Commonwealth Affairs and another v Yunus Rahmatullah [2013] 1 A.C. 614. The United States is a country with which the UK has entered into five substantial treaties on extradition over a period of more than 150 years. It is an important criminal justice partner to the UK. The Tollman process operates so that nascent abuse applications can be considered and concluded, as a preliminary matter, without the requesting State being asked to respond to, or to litigate allegations, which do not fall within the Court's jurisdiction. It is to avoid the court's time being wasted and taken up with unmeritorious applications. It also provides the Court with a structured process by which it can seek, where so required, further information from a requesting state.

50. The procedure to be adopted, where it is submitted that the conduct alleged constitutes • an abuse of the Court's process, per Tollman, is that the defendant must:

  • 50.1 Identify with specificity what is alleged to constitute the abuse;

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