Will WikiLeaks unravel the American 'secret government'?

[Peter Lemkin]

Extradition Part 1
Submitted by Peter Kemp on Sun, 12/12/2010 - 08:24


This is the first of a series looking into the extradition process by which Sweden is seeking to have Julian Assange extradited from the UK.

While I'm not a European lawyer, our Aussie system has a lot in common with the UK, which is logical since our legal heritage came from the UK.

Here's my take on a preliminary examination of legislation and it's application to the Swedish extradition application.

Firstly, there is the European Arrest Warrant system (EAW) by which signatory parties have a common warrant form in all the different languages which for the purposes of extracting relevant information (and not going through tortuous online translations from Swedish), I shall cite the UK version, but keep in mind it's the UK form designed for UK prosecutors to extradite from other category 1 territories.

That form template is here:

http://www.cps.gov.uk/legal/d_to_g/extradition/annex_b/

Scrolling down we find the following:

Statement

I am satisfied that a Crown Prosecutor in the Crown Prosecution Service, whose function is to decide whether or not to prosecute an individual for the alleged commission of criminal offences, has decided to charge the person named herein and to try him for the offences specified above and for which this warrant is issued.

Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person:...

Note in bold: "to charge" and the immediate response has to be but Sweden hasn't charged him!

This ties in with Julian Assange's lawyer Mark Stephens saying on Channel 4 News that there are other legal arguments that will likely be advanced:

http://www.channel4.com/news/catch-up/di...10/clipid/...

And the question he raises is: Can such an extradition warrant be used for the purposes of investigation?

Maybe it can. I can't give a definitive answer, yet, (or may not be able to unless I find some case law) but the warrant form indicates that in the English version, extradition for investigation would be unusual. If there was to be a variation of that sentence, the bureaucrats would have allowed for it, one would think. Stay tuned on that one.

One day someone might leak (nudge nudge, wink wink say no more) a copy of that warrant in Swedish (presumably) and then we'll know.

The next bit of legislation to look at is the UK's Extradition Act 2003, here:

http://www.legislation.gov.uk/ukpga/2003/41/contents

In Assange's matter, the warrant is a part 1 extradition to a category 1 territory. Category 1 territories are all the EU member states plus Gibraltar.

Section 11 Bars to extradition

(1)If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of—

(a)the rule against double jeopardy;

(b)extraneous considerations;

©the passage of time;

(d)the person’s age;

(e)hostage-taking considerations;

(f)speciality;

(g)the person’s earlier extradition to the United Kingdom from another category 1 territory;

(h)the person’s earlier extradition to the United Kingdom from a non-category 1 territory.

Section 11 (b) extraneous considerations is where we need to look and that's section 13:

13 Extraneous considerations

A person’s extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that—

(a)the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.

Prejudice...at his trial. Eureka, as they say, in a land down under.

Like cannot get a fair trial, might be extradited to the US (a complex issue of the UK having a veto on that if extradited to Sweden, deserving of a separate post.)

To be continued PART 2.