16-12-2010, 01:39 PM
Bail Arguments and the Appeal
Submitted by Peter Kemp on Wed, 12/15/2010 - 11:44
It's taken a while before some detailed information has come to light on the arguments presented by prosecutor and defence at the bail hearing yesterday.
The Telegraph reports:
http://www.telegraph.co.uk/news/worldnew...kiLeaks-Ju...
Earlier, during the two hour long hearing, the court was told that the “strength” of the evidence was poor.
His legal team argued that particularly the rape allegation was wrong and if the case was tried in Britain the case would not be classified as such a crime.
This refers or alludes to, apparently, the rape allegation being in the nature of a relatively minor sexual molestation in which case it seems to me, it then doesn't fit within the 12 month European Arrest Warrant system requirement of an offence where the maximum sentence must be 12 months or more for extradition to be valid. If in the UK such an alleged rape evidence was prima facie (on the face of it) low category molestation, per UK law, attracting less than 12 months custodial sentence, then it would not appear to qualify as an extraditable offence.
What interested me more was this further quote from the Telegraph.
But Gemma Lindfield, for the Swedish authorities, told the court that the “strength of the evidence” in bail hearings in extradition hearings “ought not to be the primary focus of this court”.
She said that the warrant had been issued in “good faith” by prosecutors with “impeccable reputations” and that British court system should not think otherwise.
UK bail laws (emphatically) apply. It was a bail application, not the substantive extradition case proper. Ms Lindfield has the wrong end of the stick here. A weak case is in fact a powerful reason why bail should be granted, is something that should be the primary focus. The UK Court would not care a jot about irrelevant character references for her colleagues, it focuses entirely on the extradition law applicable (update: bail is included), the lawful ie admissable evidence and oral submissions presented.
And it gets worse:
She added she wanted to explain to the court “why we don’t have the evidence”.
WHAAAAAT? We "don't have the evidence."
“How does one test the evidence strength of the allegations in a case made by a foreign jurisdiction,” Ms Linfield told the court.
You do it as any half respectable prosecution service would by producing the complainant written statements, medical evidence, other expert opinion eg DNA evidence, phone records, telephone taps whatever and you serve it on the defendant first as a legal right of defendants to avoid prosecution by ambush!!!. That's what you do.
You produce it in some form at a bail application, make submissions on it and let the judge decide how strong it is. (Ordinarily in normal Magistrate proceedings in Australia such evidence is produced in a police facts sheet because the full brief of evidence takes weeks/months and is yet to be served on the defence--these "facts" are a summary of what is alleged to have occurred plus police observations eg injuries, plus eg list of drugs seized/quantities whatever, plus eg how many witnesses were present and saw the conduct and other extraneous evidence*.)
So all they have is the allegations. Sounds like either the complainants have not made statements, or if they have, the Swedish authorities are too ashamed to provide them. Who cares about the impeccable reputations of her colleagues when all they can produce is allegations?
I am now firmly of the opinion as a result of that statement by Ms Lindfield, that this is all about a fishing expedition and an abuse of the EAW.
“It is submitted that the allegation is quite often the sole primary evidence in respect of these cases.”
Well if that's the case, if all they could produce at a UK bail was "Ms A alleges this", "Ms W alleges that", it is no wonder bail was granted yesterday. I await more reports on what exactly Ms Lindfield produced, further than allegations. I suspect there is no more.
Ms Lindfield appears to believe, apparently that bail should be refused on the basis that the risk of absconding can never be entirely eliminated. If that's the case, and applied in Sweden, heaven help Swedish defendants.
The question must be asked "Where are the sworn or affirmed statements of the alleged victims?" That is the meat, if you will, of the strength of the prosecution case, in the absence of corroborative non hearsay witnesses or other forms of evidence.
I think the Swedes miscalculated and didn't do their homework on the UK bail system. A half decent brief with reasonable strength demonstrated of their case (if it exists) and they might well have had their victory.
We await the appeal with great interest.
* Often stuffed full of inadmissable hearsay evidence which has to be objected to at a bail application beyond it being evidence only of a complaint.
UPDATE:
I forgot to mention an alternative to written statements, which is video recorded records of interview (ROI). This is quite often used with children. The alleged victim is questioned in the same way as giving oral evidence at a trial, ie no leading questions (putting words in the victim's mouth.) At trial, that witnesses evidence is played to the court and then the child is cross examined by CCTV with a support person in that CCTV recording room which is part of the court facility.
It will also be interesting at the appeal if the prosecution submits there was an error of law in the balancing exercise of all the factors involved in the lower court yesterday.
Prediction: The lower court decision to be upheld.
Submitted by Peter Kemp on Wed, 12/15/2010 - 11:44
It's taken a while before some detailed information has come to light on the arguments presented by prosecutor and defence at the bail hearing yesterday.
The Telegraph reports:
http://www.telegraph.co.uk/news/worldnew...kiLeaks-Ju...
Earlier, during the two hour long hearing, the court was told that the “strength” of the evidence was poor.
His legal team argued that particularly the rape allegation was wrong and if the case was tried in Britain the case would not be classified as such a crime.
This refers or alludes to, apparently, the rape allegation being in the nature of a relatively minor sexual molestation in which case it seems to me, it then doesn't fit within the 12 month European Arrest Warrant system requirement of an offence where the maximum sentence must be 12 months or more for extradition to be valid. If in the UK such an alleged rape evidence was prima facie (on the face of it) low category molestation, per UK law, attracting less than 12 months custodial sentence, then it would not appear to qualify as an extraditable offence.
What interested me more was this further quote from the Telegraph.
But Gemma Lindfield, for the Swedish authorities, told the court that the “strength of the evidence” in bail hearings in extradition hearings “ought not to be the primary focus of this court”.
She said that the warrant had been issued in “good faith” by prosecutors with “impeccable reputations” and that British court system should not think otherwise.
UK bail laws (emphatically) apply. It was a bail application, not the substantive extradition case proper. Ms Lindfield has the wrong end of the stick here. A weak case is in fact a powerful reason why bail should be granted, is something that should be the primary focus. The UK Court would not care a jot about irrelevant character references for her colleagues, it focuses entirely on the extradition law applicable (update: bail is included), the lawful ie admissable evidence and oral submissions presented.
And it gets worse:
She added she wanted to explain to the court “why we don’t have the evidence”.
WHAAAAAT? We "don't have the evidence."
“How does one test the evidence strength of the allegations in a case made by a foreign jurisdiction,” Ms Linfield told the court.
You do it as any half respectable prosecution service would by producing the complainant written statements, medical evidence, other expert opinion eg DNA evidence, phone records, telephone taps whatever and you serve it on the defendant first as a legal right of defendants to avoid prosecution by ambush!!!. That's what you do.
You produce it in some form at a bail application, make submissions on it and let the judge decide how strong it is. (Ordinarily in normal Magistrate proceedings in Australia such evidence is produced in a police facts sheet because the full brief of evidence takes weeks/months and is yet to be served on the defence--these "facts" are a summary of what is alleged to have occurred plus police observations eg injuries, plus eg list of drugs seized/quantities whatever, plus eg how many witnesses were present and saw the conduct and other extraneous evidence*.)
So all they have is the allegations. Sounds like either the complainants have not made statements, or if they have, the Swedish authorities are too ashamed to provide them. Who cares about the impeccable reputations of her colleagues when all they can produce is allegations?
I am now firmly of the opinion as a result of that statement by Ms Lindfield, that this is all about a fishing expedition and an abuse of the EAW.
“It is submitted that the allegation is quite often the sole primary evidence in respect of these cases.”
Well if that's the case, if all they could produce at a UK bail was "Ms A alleges this", "Ms W alleges that", it is no wonder bail was granted yesterday. I await more reports on what exactly Ms Lindfield produced, further than allegations. I suspect there is no more.
Ms Lindfield appears to believe, apparently that bail should be refused on the basis that the risk of absconding can never be entirely eliminated. If that's the case, and applied in Sweden, heaven help Swedish defendants.
The question must be asked "Where are the sworn or affirmed statements of the alleged victims?" That is the meat, if you will, of the strength of the prosecution case, in the absence of corroborative non hearsay witnesses or other forms of evidence.
I think the Swedes miscalculated and didn't do their homework on the UK bail system. A half decent brief with reasonable strength demonstrated of their case (if it exists) and they might well have had their victory.
We await the appeal with great interest.
* Often stuffed full of inadmissable hearsay evidence which has to be objected to at a bail application beyond it being evidence only of a complaint.
UPDATE:
I forgot to mention an alternative to written statements, which is video recorded records of interview (ROI). This is quite often used with children. The alleged victim is questioned in the same way as giving oral evidence at a trial, ie no leading questions (putting words in the victim's mouth.) At trial, that witnesses evidence is played to the court and then the child is cross examined by CCTV with a support person in that CCTV recording room which is part of the court facility.
It will also be interesting at the appeal if the prosecution submits there was an error of law in the balancing exercise of all the factors involved in the lower court yesterday.
Prediction: The lower court decision to be upheld.
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass