Email to WikiLeaks supporters dated 8th August 2011

(originally drawn from http://www.nnn.se/nordic/assange/docs/case4.pdf)

Subject: Long overdue court update
Date: 8 Aug. 2011
From: Sunshine Press (WikiLeaks)

Dear close friends and ardent supporters:

We apologise that we have not been in touch regarding the appeal hearing last month but below is a summary of what happened.

Appeal Hearing before the High Court, 12 and 13 July 2011
Gareth Peirce, Ben Emmerson QC, and Mark Summers for Julian Assange (appellant);
Claire Montgomery QC respondent (for the Swedish prosecution),
before judges Thomas and Ousley.

Summary: Julian Assange's appeal was held at the High Court in London on 12 and 13 July. The date of the judgment has not been announced. It may be handed down in the first week of August at the earliest— but it is more likely that it will be delivered in September/October. If Julian Assange's team wins the appeal, the prosecutor willappeal the decision, and vice versa.

In the appeal, Counsel for Julian Assange (appellant) successfully drew attention to:

- The discrepancy between the EAW and the statement by the complainants written by the police;

- The fact that the complainants did not go to the police to press charges but to inquire about ways to compel Julian Assange to get tested for STDs after they both discovered they had slept with him;

- That SW had felt railroaded by the police and others around her when a criminal investigation started;

- That AA did not feel she had been subjected to abuse and had no intention of reporting the events (she had gone to the police station to accompany SW). Emmerson QC managed to frame the discussion around the two women's statements, which showed clear consent. This forced  ontgomery QC to go beyond the wording of the EAW and concede that the women had had  consensual sex, although she later argued that they did not do so 'freely without coercion' (the discussion centered around the wording 'let him continue').

The press coverage of the appeal did not do Julian Assange's legal team justice. For the most part, the press reported more on Montgomery QC's reply, and focused on the sensationalist aspects of the case, quoting police narratives of interviews with friends of the complainants rather than the statements by the complainants themselves.

The press at times misquoted what was said in court. For example, the Guardian Live feed reported Judge Ouseley as saying "It is important to note that Assange tore the condom, not that he used one that gave up the ghost mid-action". This has now been deleted from the original page, but the sentence has been repeatedly reproduced elsewhere as Guardian Live coverage of the case. Other tweets reported the sentence as "He did not use [a condom], to give up the ghost in the middle of the action! (laughter from the courtroom)" and "it is important for double criminality that Assange tore the condom and it wasn't one that gave up the ghost in the middle of the act". Taken out of context, the tweet by The Guardian correspondent appeared damning. In fact, Judge Ousely was clarifying that the judges have to establish, for the purposes of double criminality, whether the description of conduct in the statement and the forensic tests (indicating 'wear and tear' of the condom) match the description in the EAW, which alleges that Julian Assange deliberately tore the condom.

Counsel for the appellant presented three submissions. The fourth (submission 3), a technical point on the dates of the allegation on the EAW was dropped after the prosecution submitted a different translation for one of the allegations of the EAW.

See http://justice4assange.com for updates and for detailed information of the appeal....

Over the past eleven months, all discussions on the 'Swedish case' have been centered on the allegations against Julian Assange and whether they are procedurally correct, not whether they are true. This is a terrible injustice as it means Julian Assange has still not been given any opportunity to respond to the allegations or give his version of events. Julian Assange's legal team is prevented by law from challenging the allegations on the facts of the  case or through Julian Assange's own version of events.

Instead, the legal team is limited to challenging the validity of the European Arrest Warrant and to showing how the EAW document does not match procedure or the allegations against him as presented by the prosecution.

The substance of the hearing

The first challenge to the validity of the European Arrest Warrant (EAW) was based on the grounds that the allegations on the arrest warrant did not reflect the description of the events as described in the complainants' statements (on which the EAW is based).

Emmerson QC and Mark Summers for Julian Assange argued that the judges were not examining the evidence, but the material that gave rise to the EAW (the complainants' statements), and therefore this was admissible in the proceedings.

Emmerson QC argued that the EAW for Julian Assange is not a fair, proper and accurate description of the conduct alleged (a requirement under the Castillo case, in which Lord Justice Thomas was one of the judges). Emmerson QC contrasted the statements by the two complainants with the EAW's description of the conduct. From the statements there was no indication of lack of consent, or of a reasonable belief of lack of consent on the part of Julian Assange-- which are the necessary elements to criminality in sexual offences under English law.

The EAW on the other hand made references to violence and mens rea ('acting in a manner designed to violate her sexual integrity'), which cannot be inferred from the original complaint. According to Montgomery QC for the Swedish prosecution, the original complaint indicated that the women did not 'freely' consent (i.e. did not actually consent)— and that the complaint satisfies the double criminality test.

With reference to the 'rape' allegation, the judges will have to determine if, as Montgomery QC argued, an alleged moment of lack of consent (as a result of not being fully awake) is sufficient to constitute 'rape' despite the fact that consent was present immediately before and immediately after the moment of penetration. Emmerson QC argued that this reasoning was 'crazy'— which has been repeatedly cited in the press.

In practice, if the courts find that the original complaint does not match the description of the allegations in the EAW, it allows the judges to apply the double criminality test to all four of the alleged crimes (including 'rape'). Montgomery, QC for the Swedish prosecution argued that it is not possible to 'untick' the 'rape' box in the EAW.

The judges will have to consider the applicability of the Castillo case to this case. They will also have to consider the greater implications of considering extraneous materials in EAW proceedings given that this will only apply to some European countries and not others given that in this case, Sweden has disclosed part of the material of the prosecution, while other EU countries may not disclose such information at any stage of the investigation (a consequence of having different systems of criminal procedure across the EU). The judges will also have to consider the implications of finding that there is double criminality, having looked at the original statement by the complainants, for the definition of consent under English law.

The second challenge to the validity of the EAW for Julian Assange was that the EAW has been issued for the purposes of questioning and not prosecution, which is contrary to the wording of the UK's Extradition Act. It was established that Julian Assange had not been charged. If the judges find in favor of Julian Assange's arguments, Submission 2 alone would invalidate the entire EAW.

Mark Summers, for Julian Assange, argued the Swedish prosecutor had acted disproportionately, because she had not availed herself of Mutual Legal Assistance (MLA), the standard inter-EU manner to conduct trans-state interviews. Summers argued that the judge had erred in February in finding that Julian Assange was 'accused' rather than suspected, given that the judge had failed to objectively find a point in the investigation which could be said to mark the threshold from 'suspect' to 'accused' (the Ismael test).

Montgomery QC argued that applying the Ismael test (i.e. English procedural standards) to European civil law jurisdictions to determine whether the threshold of 'accusation' has been crossed is inappropriate. Montgomery QC's argued that the judges must take a cosmopolitan approach even if technically, Julian Assange was not accused. Montgomery QC argued that the judges must follow the Asztaslos case, which discouraged extrinsic factual or expert evidence except in exceptional EAW cases. Asztaslos also allows for no (or very little) scope for argument on the purpose of the warrant.

The third ground for challenging the validity of the EAW (Submission 4) was that the Swedish prosecutor Marianne Ny is not a 'judicial authority' under the UK Extradition Act 2003. The wording of the act deliberately distinguished itself from the EU Framework Decision by inserting the word 'judicial'. This was reflected in Parliament during discussions about the Extradition Act bill. Parliamentary discussions explicitly addressed the issue of who should be considered a judicial authority. Parliament intended 'a judicial authority' to be an independent and impartial member of the judiciary, which would exclude prosecutors and policemen.

Lord Justice Thomas said that if this argument was correct, it drives a substantial wedge into the application of the European arrest warrant. Emerson QC argued that the decision in the case of Enander, which the prosecution relies upon, was erroneous because it had gone against parliamentary intention by finding that the police were a judicial authority and were therefore authorised to issue an EAW. The court found in Enander that the UK Extradition Act 2003 must be interpreted in terms of the Framework Decision, which gives states the powers to designate their own issuing authorities of EAWs. Montgomery, QC, argued that in Sweden there is no clear separation between powers and that Sweden has designated the prosecutor an
authority that can issue the warrant, and that the UK courts do not have the powers to nullify this.

Although we do not know when the judgement will come we imagine it will be when court re-opens in late September or early October.

Kind regards,
The WikiLeaks Team