Swedish Judicial Authority v Julian Assange
CO/12844/2010
High Court of Justice Queen's Bench Division the Administrative Court
16 December 2010
[2010] EWHC 3473 (Admin)
2010 WL 5093971
Before: Mr Justice Ouseley
Thursday, 16 December 2010
Representation
* Miss Gemma Lindfield (instructed by CPS ) appeared on behalf of the Appellant.
* Mr Geoffrey Robertson QC and Mr John RWD Jones (instructed by Finer Stephens Innocent ) appeared on behalf of the Respondent.
Judgment
Mr Justice Ouseley:
Preliminary Ruling
1 There have been a number of enquiries from media organisations, including the BBC and the Times, as to whether I would permit the use of “Twitter” in this court. Senior District Judge Riddle did permit the use of Twitter (that is, short text messages via web enabled facilities, such as a mobile, Blackberry or suitability equipped laptop). I am not going to permit Twitter. I make it clear for the media, domestic and foreign, that there is to be no use of mobile phones, Blackberrys or laptops other than by the parties and court staff. So those are to be switched off, if they are not switched off already.
2 In so requiring, I am following the practice of what happens in the 7/7 Inquest, which is held in court, but not the practice of what happens in the annex where the press usually are located. I am aware that the equipment from which tweets are sent is likely to have sound recording, even photographic, facilities. Their use would be a contempt of court, but it is very difficult to prevent such a use when the recordings would be posted directly to the web. I do not consider it practicable, at least today, for all that equipment to be examined to ensure either that it is not web enabled, which would defeat the whole purpose, or sound disabled. I do not consider it practical simply to take it, with all the additional media here, that the normal trust that rules would be followed and that facilities which are on will have that sound capability disabled will necessarily apply. There has been some indication, I go no further into it, that an attempt was made to use sound recording at the Magistrates' Court.
3 I recognise the scope for debate about the use of Twitter in Administrative Court cases in particular. I do not and cannot make a general policy statement. The issues involving Twitter go beyond the possible relationship to sound recording, and may include the potential for distraction and disruption to the appropriate atmosphere of the court — what might be termed, perhaps a bit pompously, its dignity.
4 A considered policy decision is necessary, which I do not wish to pre-empt by my decision. But I have to make a decision today. I do so without taking submissions, as I recognise, but I do so, so that the court can proceed with the business in hand, which is the appeal by the Swedish Judicial Authority.
Afternote: See now the Lord Chief Juctice's interim practice guidance of 20th December 2010.
Judgment on Substantive Appeal
5 MR JUSTICE OUSELEY: This is a prosecutor's appeal against the decision of Senior District Judge Riddle to grant conditional bail to Mr Assange, an Australian citizen, whose extradition is sought by the Swedish Judicial Authority to face charges of sexual assault and rape. There is a debate which may yet be had (but elsewhere) over whether the warrant is a warrant for questioning or a warrant for trial, but I proceed on the basis that it is an extradition warrant for trial, which he has to deal with.
6 As Sweden is a Part 1 country for the purposes of the Extradition Act 2003 , there will be no consideration of the strength of the case at the extradition hearing because no prima facie case has to be shown in relation to such a country. It is very difficult indeed, and would require very substantial evidence to persuade the court considering extradition that extradition had been sought in bad faith or for an ulterior purpose. I say that not because that is the suggestion, but lest it be thought that that is an issue which is likely to give rise to a significant basis upon which extradition could be resisted in this case.
7 The prospect of success at trial in Sweden is not irrelevant, however, to the attitude the person whose extradition is sought may have towards absconding. It is, however, only realistic for someone facing extradition on an accusation warrant to a Part 1 country to recognise that the warrant is likely to be upheld.
8 Senior District Judge Riddle initially refused bail, but granted it on 14 December, as a number of issues were resolved which satisfied him that there were no substantial grounds for believing that, with conditions on the bail, the defendant would not attend the hearing or surrender to the police as required: in other words, as Miss Lindfield emphasises, to attend throughout.
9 The prosecutor appeals on the grounds that there are no conditions which could effectively ensure attendance and surrender.
10 I have reservations about the use of the word “ensure” in this context given the statutory language, which requires me to be satisfied before refusing bail (or conditional bail) that there are substantial grounds for believing that he would not attend throughout, rather than certainty that he would. I accept that there is an incentive to abscond in all Part 1 extradition warrants which are contested. The incentives may be removal from family, the prospect of trial, conviction and of condign or less condign sentence.
11 I accept in this case that there is a general incentive to abscond when those matters are considered. A person who faces criminal proceedings in a country to which he does not want to go has an incentive not to go there — not to go through the extradition process, not to face trial, conviction and a prison sentence, though that incentive is qualified here in the circumstances to which I shall come.
12 I accept Miss Lindfield's submission that Mr Assange has or could obtain the means to go into hiding in the United Kingdom, and that there are no amount of restrictions that can prevent someone who is determined not to surrender from going into hiding and not surrendering. He has weak community ties, but that again is not to say that, in the circumstances of this individual, there are not other factors that can counter the lack of community ties, whether it be in the form of conditions and sureties or other incentives not to abscond and let other people down. I shall come to that.
13 I am troubled by the extent to which support is based on support for what he does at “Wikileaks” because it suggests that there are some people, not those who have given witness statements, who could support a desire on his part not to surrender, and could present his going into hiding as a legitimate response to the need to carry on what he sees and what some others plainly see as the invaluable informative journalist/human rights orientated work in Wikileaks. I regard some of those who have offered sureties as offering more gestures of support than a realistic basis for ensuring that he would attend.
14 I also accept that, notwithstanding that Mr Assange's face is well publicised, he would be able to avoid a media scrum for some weeks.
15 The real question for me is whether or not I am satisfied that there are substantial grounds for believing that, notwithstanding what conditions I might regard as appropriate, there are still substantial grounds for believing that Mr Assange would indeed abscond and not attend throughout the process.
16 The following factors are important in the judgment to which I have come. First, he clearly does have some desire to clear his name because, were he not to do so, the charges would always be hanging over him. There is some evidence of the decision-making process of the prosecutor, which, even without a response from the prosecutor here, would at least subjectively give him a basis for believing that the case against him in Sweden, were he to go there to face trial, would be one that could be resisted by an innocent man.
17 I have no reason to suppose that he does not believe that he would get a fair trial on these charges in Sweden, even though he clearly is capable of regarding those who make the allegations against him as making them from malign and improper motives and untruthfully.
18 Miss Lindfield has suggested that were I to take account of the evidence produced by Mr Stephens (the solicitor) and Mr Hurtig (a Swedish lawyer), she would wish to have time in order to take full instructions about what had happened in relation to two apparently differing decisions by Swedish public prosecutors. She has had a certain opportunity at least to be in a position to verify at a very general level whether a decision had been taken at one stage, however provisional, that the evidence was not strong enough to warrant prosecution. But the important point for my purposes at present is not whether there is a debate about that; the important point is that there is some basis for Mr Assange, quite apart from his own evidence, to believe, at least at the moment, that the basis upon which his extradition is sought is not to face a cast iron case, but to face one about which two views may be held, and therefore that he has some prospects of success.
19 It is also the case that in his subjective examination of his future prospects in Sweden, he will be, at least for the time being, comforted by the analysis of Swedish law provided by his Swedish lawyer, which suggests that, if convicted for the particular version of rape which appears to be the Swedish version here, he will not necessarily face a lengthy custodial sentence, if one at all. I do, however, accept Miss Lindfield's point that the domestic warrant has been appealed by Mr Assange and upheld in Sweden, which means there is a proper case to answer. However, that is not the point. I am approaching this on the basis that Mr Assange, being realistic, will expect to face trial, and therefore will expect to have to deal with charges which are properly brought but properly contestable.
20 The second point that I bear in mind is this. Although accepting that Mr Assange has an incentive not to face trial and has, through a network of supporters and his activities, the potential means to break even the most stringent conditions of bail, as a really determined person with or without help can, there is some force in the counter-argument that were he to abscond, he would diminish himself in the eyes of many of his supporters, whose judgment of his personal qualities that he will not abscond and will behave in a lawful manner, respecting the processes of the court, will be shown otherwise to be seriously wrong, exposing them as naive, foolish or deceitful. It would also damage the work which they regard as important in relation to Wikileaks, because the founder operator of Wikileaks would have been shown to be someone who exploited, quite ruthlessly, those who had put their trust in him with significant amounts of money, and would have let down his friends. Those who act as sureties or provide security can expect that the sums of money involved would be estreated and the sureties properly enforced.
21 Third, I also take into account the way in which Mr Assange has responded to the allegations which were made against him by the two Swedish women while he was still in Sweden. He was interviewed by the Swedish authorities on 30 August, and he did not give a no comment interview, as it is called; he was prepared to answer the questions which they put to him exploring the allegations put against him by the complainants. He remained in Sweden until, I accept, 27 September, and was told, for these purposes I accept, by the Swedish authorities on 15 September that he was free to leave. So the court does not approach this case on the basis that this is a fugitive from justice who fled to avoid investigation and prosecution.
22 Shortly after arrival in this country, aware that these allegations were still live because of the decision of the Swedish Supreme Court on 23 November, he had made arrangements which endured for six weeks or so that his solicitors should be the point of contact with the Metropolitan Police in the event that a warrant was issued in order to enable arrest to take place without a search and find operation preceding it. That again is not the action of somebody who is seeking to evade justice. Although I accept Miss Lindfield's point that further questioning is not actually the object of the warrant, he has expressed, and I see no reason to doubt it, a willingness to answer questions, either over the telephone or some other suitable form of communication, if the prosecutors in Sweden wish to put them to him.
23 Fourth, I also accept that there is some weight, although not a large amount, to be given to the fact that he is a well-known face at the moment, and that there are alerts out for him. As I have said, the point that troubles me most is whether there are supporters who would regard his work for Wikileaks as something which would be impaired by the extradition process and trial, rather than something which would be advanced by trial and acquittal, and would present absconding as a righteous and justified act in pursuit of a legitimate cause.
24 I have in the end concluded that with appropriate conditions, which will be adjusted to a degree from those which the Senior District Judge accepted, and in particular by adjustment in relation to the nature and number of sureties, that that particular aspect of this case can sufficiently be dealt with to mean that I no longer have substantial grounds for believing he would not attend throughout. I shall come to what those adjustments are in a moment. But I do also point out that the question of continuance of bail is not just a matter of whether Mr Assange abides by the conditions of bail; it is a question of a further judgment being made at later stages should there be significant changes in the process, that is to say, the District Judge who deals with the extradition hearing will be in a position to decide, in the light of how he sees the case going and what he has heard and what he has seen, whether there should be a further different bail decision taken revoking bail.
25 The matter may also need to be reviewed should the CPS investigation of what happened in Sweden in terms of the prosecution reveal that there is a significant untruth of a material nature in what I have been told. I have at present accepted what to me is an important point in the assessment of his attitude, namely that the two views taken of the strength of the case by the prosecution is correct.
26 For those reasons, I shall grant conditional bail.
27 I said there would be adjustments. Can I just deal with those briefly. There are two that require technical amendment. The first relates to the identification of the police station and the reporting hours. The reporting hours will have to be adjusted to between 2pm and 5pm, which are the hours of opening of the police station in Beccles, which is the local police station, and provision will have to be made for what I would call a doorstep provision between those hours on 25, 26, 27, 28 December and 1 and 3 January when the police station is not open. There will then have to be an adjustment in relation to the curfew. I do not understand the basis for having the curfew ending at 2 o'clock in the morning as opposed to 6 in the morning, in view of the other restrictions, and there will have to be, for the enforcement of the tag, a boundary set at Ellingham Hall, which I will approve but I have no map at present. I intend that it should permit him to leave the bricks and mortar to gain fresh air, but there be a discernible boundary outside beyond which he can go. Miss Lindfield, you are on your feet.
28 MISS LINDFIELD: I notice from other cases that usually it is just the precincts of a residence rather than to be permitted to go outside boundaries because of the nature of the equipment. I would be slow to accept something that maybe those who put the equipment in place would not be able to implement.
29 MR JUSTICE OUSELEY: I have no idea what the layout of the grounds is.
30 MR ROBERTSON: My experience is that 200 yards is ample.
31 MR JUSTICE OUSELEY: I suspect that is quite wrong. I think in fact it is a short distance outside the house within which this equipment operates.
32 MR ROBERTSON: We would be happy for the house.
33 MR JUSTICE OUSELEY: If it is going to be to the house, then confine it to the bricks and mortar. I do have a concern about what happens in bad weather, but there is not much I can do about that. That is the reason I queried the position in relation to the road, but maybe if it is bad weather, the requirement could be that the police would ring the relevant telephone number, which he would have to be brought to answer.
34 Now, sureties: as I have said, I am concerned about — I gather two have been taken.
35 MR ROBERTSON: Two have been taken.
36 MR JUSTICE OUSELEY: I think it quite inappropriate to take the whole lot. I am not interested in doing that, but my concern is that were he to break bail, he would do so letting down rather more people is a matter of some importance. As I understand it, Ms Harrison and Mr Farrell are expected to see him with some regularity. I think it would be appropriate for them to be added as sureties because they will be up there.
37 MR ROBERTSON: Ms Harrison has a house and can go to £25,000; Mr Farrell £5,000, as you see.
38 MR JUSTICE OUSELEY: It is not actually the amount of money in their case; it is the obligation on them that I am looking for. So I am content with Sarah Harrison in the sum of £5,000 and Mr Farrell in the sum of £5,000. Then, for reasons associated with their eminence, and I do not mean the others are not eminent, but I regard the following as appropriate additional sureties. Again, it is not the sum of money that I am concerned about, so the sort of sum of money they are talking about seems to me well within their capabilities. But the purpose is to make sure they understand they have too an obligation to make sure he attends. Those are Mr Knightly, Mr Dennis, Professor David, Sir John Salston and Lord Evans. On Mr Stephens' index, those are additional sureties 5, 6, 10, 12, 13, 14 and 17. The sureties will have to be taken at the City of Westminster Magistrates' Court.
39 MR ROBERTSON: Yes, might I — only because now we have a number of them, of course with Christmas, out of the country—
40 MR JUSTICE OUSELEY: Which ones are out of the country?
41 MR ROBERTSON: We have no problem with Ms Harrison and Mr Farrell; they can be taken immediately.
42 MR JUSTICE OUSELEY: Who are the ones out of the country? I tried to avoid that problem.
43 MR ROBERTSON: Some of them are in the country but out of London. Would it be possible if the sureties could be taken at the police station or at a police station?
44 MR JUSTICE OUSELEY: At a police station local to them.
45 MR ROBERTSON: A local police station.
46 MR JUSTICE OUSELEY: So if they are alerted to the need for a surety to be taken — you will need, I think, to give their addresses to the police so they can identify the police station, and the police station can know what is happening, when some strange person turns up offering surety in a case they may not have heard of.
47 MR ROBERTSON: Could we say four of those persons — you did indicate five as being appropriate.
48 MR JUSTICE OUSELEY: I am quite happy, if one is abroad or particularly difficult, to drop that one. So who was it?
49 MR ROBERTSON: We need to contact — we gather one or two of them are either abroad or outside London.
50 MR JUSTICE OUSELEY: I appreciate they may be outside London, but if they are abroad, I am prepared to drop them.
51 MR ROBERTSON: We will need to check. If we could have three out of that five, and possible replacements who we know are in court would be Mr Pilger, who does know him; Mr Shears, the well-known solicitor; and Baroness Worcester.
52 MR JUSTICE OUSELEY: All right.
53 MR ROBERTSON: Or Mr Tariq Ali. Those we have hold of, we know, as it were, now.
54 MR JUSTICE OUSELEY: Mr Shears—
55 MR ROBERTSON: Mr Shears is the solicitor.
56 MR JUSTICE OUSELEY: Is a substitute, and?
57 MR ROBERTSON: Mr Pilger and Mr Ali. Mr Pilger knows him.
58 MR JUSTICE OUSELEY: I am not sure Mr Pilger is not also a peripatetic Australian, as I understand it.
59 MR ROBERTSON: We must not be racist, my Lord.
60 MR JUSTICE OUSELEY: No, but just aware it is a long way.
61 MR ROBERTSON: In that case, I do not think Baroness Worcester has Antipodean roots, and I am certain Mr Ali does not.
62 MR JUSTICE OUSELEY: It is not so much that; it is peripatetic.
63 MR ROBERTSON: My Lord, we will try and get those four that you initially indicated, and if not, we will—
64 MR JUSTICE OUSELEY: You need to be certain what you need to do, so it will be the five, or in substitution for any two of them, Mr Shears and Lady Worcester.
65 MR ROBERTSON: Thank you.
66 MR JUSTICE OUSELEY: Their sureties will have to be taken before release.
67 The terms of the bail will have to be drawn up and I will have to approve them. Last time I asked leading counsel to do that, I ended up having to do the drafting myself, so poorly was it done. I do not intend to do it again myself.
68 MR ROBERTSON: I will certainly make sure that that will not happen.
69 MR JUSTICE OUSELEY: So if it keeps coming back “do a better job”, that will be to your client's disadvantage. So they need to be drafted properly. I will be grateful if you pass them in front of Miss Lindfield, but I will be here all day, if you can get them down today. You will certainly be able before that to get on making arrangements for the other sureties to be taken.
70 MR ROBERTSON: And that excludes the different basis, so we can forget about the £200,000—
71 MR JUSTICE OUSELEY: No, that is in addition. That too has to be taken. It is not a different basis; it is to deal with the particular problem. So the £200,000 has to be provided. I thought it had been taken.
72 MR ROBERTSON: It is in my solicitor's trust account.
73 MR JUSTICE OUSELEY: The normal arrangement is that you keep it or deposit it at the court.
74 MISS LINDFIELD: We would want it deposited, lodged with the City of Westminster Court.
75 MR ROBERTSON: I am just concerned to ensure that we get him up there before the snow hits.
76 MR JUSTICE OUSELEY: I understand. That can be done today, can it not, the lodging of the security?
77 MISS LINDFIELD: I think it can be done electronically, my Lord.
78 MR JUSTICE OUSELEY: Even that can be done today.
79 MR ROBERTSON: Mr Stephens tells me that he has had experience of this recently when it has taken two to three days, and what normally can be done is he will give an undertaking to send it today.
80 MISS LINDFIELD: It is the court — it is the City of Westminster Court the security monies is to go to. Bail was granted on the 14th and it could have been lodged in the interim period.
81 MR JUSTICE OUSELEY: If Mr Stephens says he has got the money in one of his accounts, I am prepared to accept an undertaking from him — that is, an undertaking to this court — that that money will be sent electronically to you, and that he will send it today. As I understand it, what he cannot guarantee is that it will arrive today. But if he undertakes that it be sent today, that will suffice for the taking of that security.
82 MISS LINDFIELD: Absolutely, my Lord, and he will need to liaise with the City of Westminster Court to do so.
83 MR JUSTICE OUSELEY: Let them know that it should be coming today, but I do understand that if you do things electronically as opposed to on foot, it takes longer.
84 MISS LINDFIELD: I understand it usually clears the same day.
85 MR JUSTICE OUSELEY: Okay, I will receive the revised bail conditions. If there is a problem, Miss Lindfield, you can make your comment on them. If I think I need to see you all again, I will, but I would hope not to have to.
86 MR ROBERTSON: My Lord, may we approach you later in the course of the afternoon if we have any difficulties? I hope there will not be.
87 MR JUSTICE OUSELEY: Yes, I would hope not to have to deal with it by coming back into court, so you can e-mail the material to my clerk and it will be brought to me. I will be here all day.
88 MR ROBERTSON: And the final question is costs. They should follow the event.
89 MR JUSTICE OUSELEY: I am not sure that is the appropriate order. Is your client assisted?
90 MR ROBERTSON: No. I think it is Part 44 . There is a special provision for costs, where one is discharged in extradition cases. But this is a bail case and not an extradition case.
91 MR JUSTICE OUSELEY: This is not a discharge; this is a bail application.
92 MR ROBERTSON: That is right and so costs would fall under — it is the court's discretion under part 44.3 . We do have one case before Collins J, where it was an extradition bail case and costs were ordered. It was Collins J at page 31 at the end saying in an extradition bail case where bail was granted, costs would follow the event.
93 MISS LINDFIELD: I wonder whether I could be handed a copy of that authority?
94 MR JUSTICE OUSELEY: Your reference in the CPR , Mr Robinson?
95 MR ROBERTSON: Part 44.3 .
96 MR JUSTICE OUSELEY: I am sorry, I am not sure that could be the right reference.
97 MR ROBERTSON: It is the CPR .
98 MR JUSTICE OUSELEY: 44.3.
99 MR ROBERTSON: “The court has discretionary”—
100 MR JUSTICE OUSELEY: Yes, that is the general costs discretion. Is there any specific discussion here in the White Book about extradition bail?
101 MR ROBERTSON: No, I do not believe so. But there is that one case where costs were ordered by Collins J.
102 MR JUSTICE OUSELEY: This was a bail appeal, was it?
103 MR ROBERTSON: Yes. It was an unsuccessful appeal by a privately funded appellant and he had to pay for his lack of success.
104 MR JUSTICE OUSELEY: So the prosecutor succeeded and Mr Jones failed. So he smarted under that and is now taking the opportunity to use it the other way.
105 MR ROBERTSON: That is right.
106 MR JUSTICE OUSELEY: Right, Miss Lindfield?
107 MISS LINDFIELD: My Lord, this was not an application I anticipated would be made.
108 MR JUSTICE OUSELEY: No.
109 MISS LINDFIELD: This is different. First of all, in this case I note that the basis for the application was not indicated. Secondly, this was a case where the requested person had made a number of applications.
110 MR JUSTICE OUSELEY: There are two issues. First of all, do you say that this court has jurisdiction to make an order in favour of the successful respondent to a prosecutor's appeal on bail? I may be able to get assistance. (Pause)
111 I do have a general discretion. I need not trouble you with that. So should it be exercised?
112 MISS LINDFIELD: My Lord, I would submit no. There is a difference between this and the case of Hurtle.
113 MR JUSTICE OUSELEY: I have a discretion. So you have to focus on the discretion. Why should the discretion not be exercised in Mr Assange's favour?
114 MISS LINDFIELD: Because this was an application properly bought — the independent submission made by the Crown Prosecution Service, exercising a right which they have under the Bail Amendment Act , and in any event, although you have not acceded to that application, you have changed the conditions so that they are more stringent. So although we were not successful in our appeal, in part some of what has been submitted has been accepted because or by virtue of the amendment to the conditions to allay the concerns of the court.
115 MR JUSTICE OUSELEY: Yes, thank you very much.
116 Mr Assange having essentially succeeded in defending the prosecutor's appeal, seeks the costs of doing so. Section 51 of the Senior Courts Act gives jurisdiction to use them. The question is whether the discretion which I have should be exercised in his favour. Of course, Miss Lindfield is right in saying she had the right to bring the appeal, but that does not answer the question. She had proper grounds for bringing the appeal, but that does not answer the question either. The question is whether the winner should bear his own costs, rather than the loser pay them.
117 In litigation, in principle, and there is no reason for a different discretion to be exercised here, the winner gets his costs. Although the bail conditions are more stringent in response to a point properly raised by Miss Lindfield, her essential contention was that bail conditions simply would not suffice, and on that essential issue, she has lost.
118 Accordingly, the appellant will pay the costs, to be subject to detailed assessment, of this bail appeal.
119 MISS LINDFIELD: My Lord, can that be from central funds?
120 MR JUSTICE OUSELEY: No. No power.
121 Mr Robertson, Miss Lindfield, if you are able in manuscript to agree the terms of the bail now, if you are able to set out and do the writing now, then that can be transferred to Robert who will be able to add it to the order and I will just approve it. I would be grateful if you could do that.
122 MR ROBERTSON: Certainly, your Lordship.
© 2011 Sweet & Maxwell
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