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=== PAGE 28 === | === PAGE 28 === | ||
- | ... between the alleged surveillance and these proceedings. It is not the function of this Court | + | ... 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. |
- | 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 ==== | ==== The evidence on surveillance ==== | ||
- | 127. The crux of the abuse alleged is set out in the first statement of Ms Peirce (which is | + | 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 |
- | understood to be a hearsay account of the allegations in Spain). The allegation appears | + | visits and communications [§25], It is also said that electronic devices were scanned [§§25-26]. |
- | 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: | + | 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. | 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 | + | 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. |
- | 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 | + | 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 |
- | the suggestion that the surveillance in some way stopped a plan (or a device) to help Mr | + | unsustainable. How the issue of any warrant could be said to have stopped Mr Assange escaping from the embassy, in these circumstances, |
- | 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 | + | 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 |
- | allegations) is not repeated here. Neither their evidence | + | |
- | complaint submitted on behalf of Mr Assange in Spain) comes close to‘ demOHSKatmg | + | |
- | 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 === | === PAGE 29 === | ||
- | 132.2 **Second**: extradition request sets out the evidence upon which the US | + | * 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' |
- | 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' | + | |
- | personal and government computers. including classified information that Ms | + | |
- | Manning searched for and downloaded from US Govemment | + | |
- | 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. | + | |
- | + | ||
- | 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; | + | |
- | Embassy exist they will not be reviewed or used by prosecutors [§174]; (iii) “any | + | |
- | use of privileged material against Assange would be barred by American law” | + | |
- | [§I75] (privileged communications include confessions to past wrongdoing). | + | |
- | + | ||
- | 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 morever) to the best of the knowledge, information, | + | |
- | 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). | + | |
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. | ||
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=== PAGE 30 === | === PAGE 30 === | ||
- | 136. The Divisional Court rejected (in the context of submissions made in relation to an | + | 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). |
- | 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 | + | 137. English law permits the surveillance of communications and consultations between a lawyer and client; see Re McE [2009] UKHL 15; Regulation of Investigatory |
- | lawyer and client; see Re McE [2009] UKHL 15; Regulation of lnvestigatory | + | |
- | (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (‘the 2010 | + | |
- | 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 === | ||
Line 734: | Line 667: | ||
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 2011 '' | + | 148. The Guardian newspaper published on 2 September 2011 the following: |
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 [§17, §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 |