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Julian Assange: do recent changes to extradition law make any difference?

Author: Carl Gardner |

18 Aug 2014 | 14:55

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In a word – no.

In a press conference this morning (18 August), Julian Assange told reporters a Wikleaks spokesman could confirm that

"I am leaving the embassy soon"

and the Ecuadorian Foreign Minister, according to The Guardian

"referred to recent changes to the extradition laws in the UK which he believed would mean Mr Assange would not be facing extradition if the case started today."

Notice he did not claim these changes make any actual difference now; merely that they would have made a difference had the case started today. It started (and ended) some time ago, so they make no difference at all.

The changes he’s referring to are the new sections 12A and 21A of the Extradition Act 2003, inserted by the Anti-social Behaviour, Crime and Policing Act 2014, amendments which took effect a few weeks ago, on 21 July.

The new section 12A brings in a new bar to extradition under a European Arrest Warrant if the requesting country has not made a decision to charge, and the CPS (which in this case represents the “category 1 territory”, Sweden) cannot satisfy the extradition judge that

"the person’s absence from the category 1 territory is the sole reason for that failure."

This might or might not help someone in Assange’s situation. Arguably his absence from Sweden is indeed the “sole reason” why he’s not been charged; it’s even more strongly arguable that his absence is the sole reason why no decision has been made whether to charge him or not. But there would certainly be room for Assange’s lawyers to argue, based on points his supporters have made in public about the possibility of interviewing him by video, that his absence from Sweden isn’t the “sole reason” he’s not been charged.

The case isn’t being argued today, though. Section 156(3) of the Anti-social Behaviour, Crime and Policing Act provides that

"In a case where the Part 1 warrant (within the meaning of the Extradition Act 2003) has been issued before the time when the amendments made by this section come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the questions in section 11(1) of that Act."

The warrant was issued in 2010, of course; and the extradition judge decided all those questions in 2011. So the new provisions just don’t apply in Julian Assange’s case.

The new section 21A brings in another new bar to extradition where the judge thinks it would be disproportionate bearing in mind the seriousness of the alleged conduct, the likely penalty, and the possibility of “less coercive measures” by the requesting state. In a case of alleged rape (and the UK courts do see this as a case of alleged rape: see paragraphs 104–127 of the High Court’s 2011 judgment) it’s hard to argue that extradition would be disproportionate bearing in mind these considerations.

But in any event, section 157(5) makes exactly the same transitional provisions about the new “disproportionality” rule as apply to the new “no charge” rule. Where the arrest warrant was issued before the new rule came into force, it applies only if the case is still before the extradition judge.

Neither of the new rules applies, then. Julian Assange’s extradition case ended in 2012, with the Supreme Court’s ruling that he should be extradited to Sweden. The amendments don’t apply to his case retrospectively.

If this saga (or its extended UK sub-plot) is finally approaching its end, then it can only end with a flight to Sweden. In spite of what Assange seemed to say today, he may still see his departure as somehow conditional on a deal with the UK (which, as I’ve written before, seems to me hopeless). But assuming he does leave the embassy in the coming days or weeks, he’ll surely be arrested, then extradited in accordance with the courts’ rulings.

His surrender might conceivably be postponed briefly in accordance with article 23.4 of the European Arrest Warrant Framework Decision, if travelling would cause a serious risk to his health; and I dare say he’ll attempt some sort of last-ditch application for bail or an injunction in the short period before he’s extradited. But his position’s legally hopeless.

The only question is whether he really does leave the embassy soon, or not.

Carl Gardner is an ex-government lawyer, barrister, and author of the Head of Legal blog. Click here to follow Carl on Twitter.

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