Regular CPS blogger Dr. Ted Bromund, Senior Research Fellow in Anglo-American Relations at the Margaret Thatcher Center for Freedom at Washington D.C.'s Heritage Foundation, and Andrew Robert James Southam, a former extradition case officer in the International Criminal Policy Directorate of the Home Office, write on the issues surrounding the Julian Assange case, specifically the extadition aspects of it.
There is much loose talk in Britain that, if extradited to Sweden, Julian Assange will then be sent surreptitiously to the U.S. to face ill treatment and a military court. In negotiating over Assange’s claim to asylum at the Ecuadorian embassy in London embassy, Ecuador is seeking a British and Swedish guarantee that Assange will not wind up in the U.S. That concern seems odd, coming from a government that has intimidated the free press within its own borders and operates a justice system that famously denies due process.
Britain’s response should be a robust defence of its extradition relations with Sweden and the United States. The British public should understand that extradition is a legal process, not a political one. Both U.K.-U.S. and Swedish-U.S. extradition processes are grounded on their free and fair domestic legal systems. Precisely because Britain, Sweden, and the U.S. have independent courts, they cannot promise that Assange will, or will not, be extradited anywhere.
The U.S. has made no extradition request to Sweden. But if it does, the case would proceed in accordance with normal legal processes. It would not simply be granted as part of the extradition request Sweden has made to the U.K. It would stand or fall on its own merits. Extradition processes in both Britain and Sweden are governed by compulsory documentary standards, legal tests, rights of defence, and rights of appeal.
If U.S. prosecutors were to make an extradition request to Sweden, they would have to submit the materials required by the 1961 US-Swedish Extradition Convention, the Supplementary Convention of 1983, the Swedish Extradition Act of 1957 and its updating legislation, including provisions in 2003. Swedish courts would then decide if all the tests have been met.
Under the dual criminality test contained in the U.S.-Swedish conventions, the alleged conduct would have to be an offence in the U.S. and Sweden, and be punishable (under Sections 4 and 6 of the Act, as amended) by least twelve months’ imprisonment. No one can be extradited from Sweden to the U.S. for a “political offense,” as extradition is precluded (under Section 7 of the 1957 Act) if there is a risk of persecution on account of membership of a social group, “political views” or “otherwise on account of political circumstances.” Extradition (under Article VI (4) of the 1961 Convention) is not permitted for military offenses. Extradition proceedings must also consider, inter alia, ill-health, the “personal circumstances of the person concerned,” and (Section 8, 1957 Act) the “nature of the act and the interests of the foreign state.”
Assange and his supporters claim that, if extradited from Sweden to the U.S., he could receive the death penalty. This is a clear effort to play on anti-American sentiments, and it is false. Sweden’s Extradition Act (Section 12(3)) proscribes the death penalty in all extradition cases. Moreover, as an EU country, Sweden is further (or, rather, redundantly) bound by the European Convention on Human Rights. Furthermore, under Swedish law, Assange or any other person subject to a U.S. extradition request will be legally represented, at Sweden’s expense if necessary, and able to challenge any request in court. If the Swedish Courts agree to the request for extradition, Assange will have full rights of appeal, including to the European Court of Human Rights.
The final decision on extradition does rest with the Swedish Government. But that does not mean that the Swedish Government can act on its own. On the contrary: if the Swedish Courts reject a U.S. request, it would not be lawful for the Government to continue extradition proceedings (Sections 16 and 20, 1957 Act). Only if and when an independent Swedish court decides that Assange can legally be extradited will the Government take the final decision. Nor can Assange be spirited away to the U.S. under a temporary surrender provision (Section 11, 1957 Act, as amended, and Article VI, 1983 Convention. Temporary surrender, a common feature of modern extradition systems, is available only when and if the Swedish Courts and subsequently the Swedish Government have agreed to extradite.
Finally, even after Assange arrives in Sweden, he still could not be extradited on to the U.S. without British consent, because the original Swedish request to Britain was made through the procedures of the European Arrest Warrant (Article 28(4). In order to give this consent Britain must, by the terms of its Extradition Act of 2003 (section 58), and as confirmed by Foreign Secretary Hague to Parliament on September 3, 2012, determine that the request from the U.S. to Sweden concerns an extraditable crime, that British Courts would have agreed to extradition if the request had been made to the U.K., and that onward extradition is not prohibited by any other legal test. Even if British consent is given for Assange’s onward extradition to the U.S., extradition must be separately agreed under Swedish processes.
No democratic government can comment on hypothetical extradition requests. But as the many controversial extradition cases between the U.S. and Britain have demonstrated, the Assange case highlights the fact that the British public – and too many MPs – do not understand Britain’s extradition arrangements with the U.S. That is too bad, because the U.S.- U.K. treaty embodies a modern and responsible approach to extradition, one that respects every single one of the protections from which Assange will benefit. The British Government should take every opportunity within the Coalition, in Parliament, and in the press to publicize and promote the existence of these protections, and the other relevant provisions in Part 2 of the 2003 Extradition Act. Sweden should do the same for its system, which affords similar protections.
Secondly, Britain should publicly report on how individuals extradited to the U.S. are prosecuted. It should set out the court process – which in the U.S., as in Britain, is open and transparent, and includes the right to legal representation and to appeal any conviction – and the visits the defendant receives, along with other treatment while on trial. Britain should also report on the outcome of the case, including any sentence if convicted, and whether and how convicted individuals have been repatriated to serve their sentence in the U.K.
Thirdly, this is an opportune time to clarify the onward consent processes in Sections 58, 130, and 131 of the 2003 Act. It is not clear if a British court is responsible for examining a request for onward extradition, or whether the decision will be made solely by the Home Secretary. Even if the U.S. never requests Assange’s extradition from Sweden, another high profile case will sooner or later require the exercise of these processes, and it would be well to eliminate this ambiguity now.
Fourth, the Home Office should report, regularly and online, on the status of British extradition requests to the U.S., and the actions the U.S. government is taking to meet them. This will show how the U.S. seeks, by lawful and independent legal processes, to meet British extradition requests. By the same token, the U.S. should publicize the fact that extradition requests made to it must proceed through the independent U.S. judiciary.
Legal process is the hallmark of criminal justice systems within trusted democracies. The wild claims of Assange and his supporters, and their alliance of convenience with Ecuador, reveal how little they know or care about the legal systems in the democratic nations of Britain, Sweden, and the United States.