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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Assange, An Application By (Cancel an Arrest Warrant : Ruling No. 2) [2018] EW Misc B3 (MagC) (11 February 2018) URL: https://www.bailii.org/ew/cases/Misc/2018/B3.html Cite as: [2018] EW Misc B3 (MagC) |
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Case No: 1800196207
IN THE WESTMINSTER MAGISTRATES COURT
(EXTRADITION)
181 Marylebone Road,
London, NW1 5BR
Date: 13th February 2018
B e f o r e :
SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) EMMA ARBUTHNOT
- - - - - - - - - - - - - - - - - - - - -
AN APPLICATION BY JULIAN ![]() |
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- - - - - - - - - - - - - - - - - - - - -
Mr Assange
was represented by Gareth Peirce of
Birnberg Peirce and Partners
Aaron Watkins was in attendance for the CPS
- - - - - - - - - - - - - - - - - - - - -
Ruling
RULING NO. 2
13TH FEBRUARY 2018
Introduction
1. On 6th February 2018 I gave a ruling that the arrest warrant issued under section 7 of the Bail Act 1976 (the Act) was valid even though the underlying extradition proceedings had been discharged and no section 6 Bail Act prosecution for breach of bail had been initiated. By agreement it was decided that the public interest arguments would be considered at a later stage.
Issue
2. This
application is made by Mark Summers QC instructed by Birnberg Pierce that I
consider whether it is in the public interest that proceedings against Julian
Assange
should be initiated under section 6 of the Act.
3. He contends that the court should now find that any proceedings for failing to surrender are disproportionate and not in the public interest and that in the circumstances the section 7 Bail Act warrant should be withdrawn.
Hearing on 6th February 2018 - preliminary issues
4. The
first question raised by Mr Summers was whether in principle I could hear
argument in relation to proportionality and public interest in the absence of
Mr Assange.
Mr Watkins for the extradition unit of the Crown Prosecution
Service argued I should not. There were no authorities directly on the point
and nothing in the Criminal Procedure Rules or in Practice Directions which
give guidance either way. I decided I should consider the arguments relied
upon by Mr
Assange
at this stage. I warned Mr Summers that I might decide that
the best time to consider whether or not a section 6 charge should be put to
Mr
Assange
would be when he attended court.
5. Mr Watkins had attended to make observations on behalf of the extradition unit of the Crown Prosecution Service. Mr Summers argued that Mr Watkins role had come to an end and that I should not hear submissions from him as he was not instructed by the criminal unit of the Crown Prosecution Service. I agreed with Mr Summers that the extradition unit of the Crown Prosecution Service had no role to play at this stage of the proceedings although I did ask Mr Watkins to confirm various details relied on by Mr Summers.
Documentation
6. I
was assisted by a second bundle of documents and a further argument both provided
by Mr Summers on behalf of Mr Assange.
Mr Watkins provided me with the Swedish
Public Prosecutors announcement of 19th
May 2017 in which she said she was discontinuing the prosecution against Mr
Assange.
I was also given the Swedish Court of Appeal judgment of September
2016. In the light of Mr Summers reliance on the
observations of the UN Working Group on Arbitrary Detention, I obtained a copy
of that groups opinion and the original court
file which had a record of the submissions and decisions made when Mr
Assange
appeared in court in December 2010.
Email correspondence
7. Between the hearing on 6th February and the date of the reserved ruling there was email correspondence between Mr Watkins, Mr Summers and myself about whether the Crown Prosecution Service was able to say whether they would invite the court to consider section 6 proceedings if the defendant had been arrested and brought to court and the court had decided not to initiate proceedings of its own volition. The answer was yes, depending on the circumstances on the day.
Background
8. The background to this application is set out in the ruling I gave on 6th February 2018.
Submissions - summary
9. Mark
Summers QC contended that that I should consider the public interest now rather
than when Mr Assange
is arrested. In summary he relied on five points:
10. The first was
that Mr Assange
had reasonable grounds for taking the course he did because he
feared being sent to the United States. The second was that the UN Human
Rights Council Working Group on Arbitrary Detention ruled that Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
situation in the Ecuadorian Embassy was disproportionate and unreasonable.
Thirdly, at all stages Mr
Assange
had been willing to be interviewed by the
Swedish prosecutor and if this had happened this would have brought the
proceedings to an end at a very early stage. Fourthly, the last five and a
half years might be thought adequate if not severe punishment for the actions
which he took. Fifthly, I was reminded that the law had changed since Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
request and he would no longer be extradited for an investigation.
11. I am grateful to Mr Summers for the usual clarity of his written and oral submissions.
Decision
12. My approach to
this argument has been to consider the factors for and against pursuing the
section 6 proceedings. It seems to the court that as part of the weighing up
of the proportionality of the proceedings I have to have regard to the
seriousness of the failure to surrender, the level of culpability as I find it
at this stage of the proceedings to be and the harm caused including the impact
on the community. If the court considers the factors against the proceedings
outweigh the factors in favour then one outcome might be the withdrawal of the
section 7 warrant for Mr Assange
style='font-size:12.0pt;
line-height:107%;font-family:"Times New Roman","serif"'>s
arrest. I consider Mr Summers five points below.
The first point
13. Mr Summers
argued that Mr Assange
style='font-size:12.0pt;line-height:107%;
font-family:"Times New Roman","serif"'>s failure to surrender
was justified. He said he was not seeking to downplay the effect on justice
but Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:
"Times New Roman","serif"'>s case was exceptional. At the
time, Chelsea Manning had been arrested and was in solitary confinement and Mr
Assange
feared being rendered to the United States. The United States had
opened an investigation into him and some officials were calling for the death
penalty. This might amount to a reasonable excuse (although he accepted that
that might be for another day). These considerations which were extraordinary
should play into the interests of justice test. Also Ecuador, a friendly
foreign State, had considered Mr
Assange
style='font-size:12.0pt;
line-height:107%;font-family:"Times New Roman","serif"'>s
fears and declared them to be well founded and that the risks to him were and
remain real.
14. I accept that Mr
Assange
had expressed fears of being returned to the United States from a very
early stage in the Swedish extradition proceedings but, absent any evidence
from Mr
Assange
on oath, I do not find that Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
fears were reasonable. I do not accept that Sweden would have rendered Mr
Assange
to the United States. If that had happened there would have been a
diplomatic crisis between the United Kingdom, Sweden and the United States
which would have affected international relationships and extradition
proceedings between the states.
15. Rather than
rendering Mr Assange
to the United States, if the US had initiated a request to
extradite Mr
Assange
from Sweden, Sweden would have contacted this court and
the judiciary here would have had to consider the request. Mr
Assange
would
then have been able to raise any bars to extradition including fair trial and
conditions of detention.
16. The position now
is that the Swedish proceedings are at an end. If Mr Assange
surrenders to the
section 7 warrant, this court would consider whether a prosecution for failing
to surrender should be launched. The Crown Prosecution Service which has a right
to invite the court to consider proceedings could do so. If the United States
initiates extradition proceedings, Mr
Assange
would have the ability to raise
any bars to the extradition and challenge the proceedings just as he did with
the Swedish proceedings.
The second point
17. Mr Summers
pointed out that the United Nations Human Rights Council
Working Group on Arbitrary Detention had ruled in an Opinion in December 2015
that Mr Assange
had in effect been forced to choose between two impossible
situations. The parties making submissions to the Working Group were a source (on behalf of Mr
Assange),
Sweden and the United Kingdom.
18. The source claimed that Mr
Assange
was being subject to arbitrary detention and this arises where
a state forces an individual to choose between confinement and
risking persecution, confinement and the ability to apply for asylum.
19. The Working
Group considered that various articles of the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights had been
breached and that Mr Assange
had not been guaranteed due process or a fair
trial during the period from detention in
isolation in
Wandsworth Prison, the 550 days under
house arrest, and the continuation of the deprivation of liberty in the Embassy.
20. The Groups
conclusion is at paragraph 99 headed Disposition. The deprivation of liberty
during the three periods above is described as arbitrary. The Working Group
asked Sweden and the Government of the United Kingdom to assess Mr Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
situation to ensure his safety and physical
integrity, to facilitate the exercise of his right to freedom of movement in an
expedient manner, and to ensure the full enjoyment of his rights guaranteed by
the international norms of detention.
21. I have read the
Opinion. The group appears to have based its conclusions on some
misunderstandings of what occurred after Mr Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
arrest.
22. In trying to
work out what weight I should give to the views of the Working Group, I have
had to consider the beginning of the extradition process conducted at the City
of Westminster Magistrates Court in relation to Mr Assange.
23. The source told the Working Group
that Mr Assange
was detained for (a.) ten days in isolation in Wandsworth
Prison from 7th December 2010 to 16th December 2010, (b.) for 550
days under house arrest and (c.) thereafter in the Ecuadorian Embassy.
24. In relation to
Wandsworth Prison, paragraph 86 makes the point that there is arbitrariness in
this deprivation of liberty, because the
individual has been left outside the cloak of legal protection, including the
access to legal assistance. The
implication is that Mr Assange
was detained in isolation in Wandsworth Prison
without recourse to a lawyer.
25. In paragraph 89
of the Working Groups opinion it says that
it considers that Mr Assange
has not been guaranteed the international norms of
due process and the guarantees of fair trial during these three different
moments ((a.) (b.) and (c.) above).
26. The Working Group found that this initial deprivation of liberty then continued in the form of house arrest for some 550 days. The Working Group described his living conditions as harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day, and a bar on being outside of his place of residence at night.
27. The Working Group goes on to say that it has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such an extended period of time. It is not clear whether the Working Group understood there to be no judicial management exercised or whether it believed that the judicial management which occurred was not reasonable.
28. These references by the Working Group to the beginning of the extradition proceedings have led this court to check the original court file.
29. The court file
notes that Mr Assange
was arrested on 7th December 2010 and brought
to the court the same day; he was represented by a barrister, John Jones, later
QC, a leading specialist in extradition before his untimely death in 2016. On
7th December 2010 Mr John Jones suggested (on instructions from Mr
Assange
and in his presence) a number of bail conditions including a condition
of residence, a curfew and reporting to a police station (quite apart from the
securities and sureties). On 7th December 2010 bail was refused and
Mr
Assange
was remanded in custody.
30. Mr Assange
appeared one week later on 14th December 2010. This time he was
represented by Geoffrey Robertson QC. This specialist in human rights with a
lifetime of experience in the criminal courts suggested the same bail
conditions as Mr Jones had offered the week before. Mr Robertson put forward
the conditions of residence, curfew and reporting (and various others). The
judge then granted Mr
Assange
bail with those conditions.
31. The district
judges
decision was appealed to the High Court by the Crown Prosecution Service and on
16th December 2010 the High Court added a £200K
security to the conditions but confirmed the other conditions put forward by Mr
Jones and Mr Robertson. Mr Assange
was released from Wandsworth Prison on
conditional bail the same day.
32. It was said by
the source
to the Working Group that Mr Assange
was held in isolation in Wandsworth
Prison. I have not thought it appropriate to contact the prison to find out
whether he was held apart from the rest of the prison population; what I can
say is that the Working Group was quite wrong when it implied that Mr
Assange
had been left outside the cloak of legal protection. Quite the opposite, he
was represented at the first and second hearings, by leading counsel at the
second and the bail package put together by his defence team led to his release
on conditional bail. At no stage do I understand that that bail package was
challenged in court. There were minor variations on certain dates to
accommodate hearings in London and changes to Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
address but no changes to the residence, curfew or reporting.
33. As I hope is
clear from the above, the house arrest and harsh
restrictions referred
to by the Working Group which went on for 550 days were proposed by Mr Assange
himself. Mr
Assange
was staying in a country house, he had to be indoors at
night and had to attend the police station to sign on daily. I do not find
those restrictions harsh and there was certainly no such suggestion during the
currency of the extradition proceedings. The court (rightly as it turned out)
had a fear Mr
Assange
would not surrender himself to the court and to ensure
his attendance the conditions suggested by his lawyers were put in place. If
the court had not been able to grant him conditional bail, he would have been
remanded in custody.
34. There was
judicial management during this period of the proceedings and such management
was reasonable. Mr Assange
could appeal at any point or apply to vary the bail
and it would appear from time to time that it was varied.
35. The Working
Group considered Mr Assange
style='font-size:12.0pt;line-height:
107%;font-family:"Times New Roman","serif"'>s stay in the
Embassy as a prolongation of the already
continued deprivation of liberty that had been conducted in breach of the
principles of reasonableness, necessity and proportionality (paragraph 90). I do
not consider the 550 days on conditional bail to be a period of deprivation of
liberty but a restriction to Mr
Assange
style='font-size:12.0pt;
line-height:107%;font-family:"Times New Roman","serif"'>s
freedom. I consider the same in relation to his decision to live in the
Ecuadorian Embassy.
36. It is true that he has restricted freedom in the Ecuadorian Embassy, but there is a distinction between being held in Wandsworth Prison and living in the Embassy. Firstly, he can leave the embassy whenever he wishes; secondly, he is free to receive, it would seem, an unlimited number of visitors and those visits are not supervised; thirdly, he can choose the food he eats, the time he sleeps and exercises. He can sit on the balcony (I accept probably observed by the police and his supporters) to take the air. He is not locked in at night. Importantly for a man who spends a great deal of time on his computer, he is free to use multi-media, whether his computer or a mobile telephone, in a way that prisoners are not allowed to do. I suspect if one were to ask one of the men incarcerated in Wandsworth Prison whether conditions in the Ecuadorian Embassy were akin to a remand in custody, the prisoner would dispute the Working Groups assertion.
37. My reading of
the Working Groups opinion led me to
look at the dissenting opinion of one of the members of the Working Group.
This member of the group had extensive criminal law experience at all levels of
court. He said of Mr Assange
style='font-size:12.0pt;line-height:
107%;font-family:"Times New Roman","serif"'>s situation that
it was self-confinement and 550 days of restriction of liberty rather than
deprivation of liberty and was not within the mandate of the Group.
38. Finally, the Working Group defines arbitrary; it explains that the detention can be authorised by domestic law and still be arbitrary. The definition includes elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.
39. I do not find
that Mr Assange
style='font-size:12.0pt;line-height:107%;
font-family:"Times New Roman","serif"'>s stay in the Embassy
is inappropriate, unjust, unpredictable, unreasonable, unnecessary or
disproportionate.
40. For reasons which must be clear I give little weight to the views of the Working Group.
The third point
41. Mr
Summers said that ordinarily the effect of absconding is to interfere with the
criminal process. This case was far from that paradigm. Mr Assange
had sought
to engage with the process and asked to be interviewed. There was delay
between 2012 and 2016 in which nothing happened. Delay was a justified concern
of the Working Group. The interview with Mr
Assange
took place and then the
investigation came to a sharp end. This is a significant factor in the
interests of justice assessment of the effects of his non-appearance. Mr
Assange
was not a defendant waiting out the investigative process.
42. Mr Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
offer to make himself available to be interviewed by the Swedish prosecutor
from an early stage is confirmed by his Swedish lawyer, Mr Samuelson (tab 3 of
the latest bundle). The lawyer explained that from the earliest stage the
prosecution were told that Mr
Assange
was willing to engage with the
investigation by being interviewed. As soon as Mr
Assange
was interviewed the
Swedish prosecutor dropped the case. Mr Samuelson spoke about seeing but not
being able to copy certain texts which he said undermined the case against Mr
Assange.
It was Mr Samuelsons view that the
prosecutors refusal to interview him earlier
or give them copies of the texts disadvantaged Mr
Assange.
43. Mr
Summers relied on a chronology at tab 6 and at tabs 4 and 5 copies of emails in
which a Crown Prosecution Service lawyer gives reasoned advice to the Swedish
prosecutor in January 2011 that she should not seek to interview Mr Assange
in
the United Kingdom. Mr Summers also relies on an exchange of emails in October
2013 when the Swedish prosecutor was considering withdrawing the EAW; the Crown
Prosecution Services response was to send
the link to Sweden about developments in the United States and ask whether that
affected their views.
44. At
Mr Summers request
I have not heard from the Crown Prosecution Service and I cannot determine from
the extracts of correspondence whether the lawyer in the extradition unit acted
inappropriately. It is too speculative to wonder what would have happened to
the Swedish case had Mr Assange
been interviewed earlier.
45. Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
failure to return has already led to three of the accusations becoming time
barred in August 2015. The fourth accusation of rape (lesser
degree as it was termed by the
Swedish authorities) would have become time barred in 2020 had the request not
been withdrawn.
46. The
Swedish prosecutor in her statement of 19th May 2017 explains that
in the circumstances executing the decision to extradite Mr Assange
to Sweden
is not expected to be possible in the foreseeable future. She points out too
that the proportionality of the Swedish decision to arrest him has been
repeatedly examined by the Swedish courts.
47. In
2015 the Supreme Court in Sweden considered the public interest in the
investigation as well as the risk that Mr Assange
would evade legal proceedings
against him. In 2015 the court decided that the continued arrest warrant was
proportionate despite the amount of time passed.
48. Ms
Ny explains that on 14th to 15th November 2016 Mr Assange
was interviewed by two Ecuadorian prosecutors. The Swedes received the
translation of the interview in March 2017. Further investigative measures
were taken and it was then not possible to take any steps which would move the
investigation forward. She said on 19th May 2017 that it had become less
proportionate to maintain the arrest of Mr
Assange
in his absence. She ends by
saying that the continuation of the legal proceedings would require Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
personal appearance in court and there was no reason to continue with the
investigation.
49. Mr
Assange
relies upon the offers he made to be interviewed by the Swedish
authorities in the United Kingdom. I note that the Crown Prosecution Service
advised the Swedish authorities that there were downsides to this approach. I
noted from the Swedish Court of Appeal judgment in September 2016 that the
Ecuadorian Embassy had refused to allow an interview between Mr
Assange
and the
prosecutor to take place.
50. A
request for mutual legal assistance was sent by Sweden to the United Kingdom
and Ecuador in Spring 2015. Whilst the United Kingdom accepted the request,
Ecuador did not. The Swedish government then took a separate initiative which
resulted in an agreement on mutual legal assistance in criminal matters between
Sweden and Ecuador in late summer 2015. The agreement came into force in
December 2015, but the request then made by Sweden for legal assistance was
refused by Ecuador on technical grounds. A new request (the third) was sent
and accepted on 16th March 2016. As part of the agreement Mr
Assange
was not to be interviewed by a Swedish prosecutor but by an Ecuadorian
one and then the questions had to be submitted to Mr
Assange
in advance.
51. Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
complaints that the investigation was not being proceeded with in a timely
manner have been considered by the Swedish courts on a number of occasions. Mr
Assange
was able to put his views to those courts and was represented at those
hearings. The appeal courts ruled against him. The investigator has made her
decision.
52. Mr
Summers argues that the failing to surrender has had no effect on the
proceedings and has not brought them to a grinding halt. I do not agree. If
Mr Assange
had gone back to Sweden when he should have done after he had
exhausted the appeal processes in this country, the Swedish prosecutor would
have questioned him, then either prosecuted him five years ago or discontinued
the proceedings. The complainants would have had their complaints resolved one
way or another. Mr
Assange
would have had the accusations resolved one way or
another. The interview on his own terms does not comply with the courts
order that he be extradited to Sweden.
The fourth point
53. Mr
Summers relies on what he says is the punishment that Mr Assange
has
undergone. There is evidence of the medical effect of him spending four and a
half years in a small room. He has respiratory infections. Mr Summers says he
has no sunlight. He cannot leave the flat to have dental treatment or have an
MRI scan on his frozen shoulder. He is a resilient character but is suffering
from significant depression. For the first five years he was avoiding the
extradition process but for the last six months his incarceration is referable
to his fears concerning exposure to the actions of the United States if
detained on this courts arrest warrant. Even
were he to be committed to the Crown Court, Mr Summers argues, the maximum
sentence for failing to surrender would be 12 months imprisonment. He has
served this sentence, forfeited his own money and the money of his sureties.
There is no residual public interest in further punishment for failure to
attend. It is disproportionate. The issue is whether he has been punished enough
for what he has done, whether it can be said that it is proportionate and in
the public interest to initiate the process.
54. I
have read the medical reports. Mr Assange
is fortunately in relatively good
physical health. He has a serious tooth problem and is in need of dental
treatment and needs an MRI scan on a shoulder which has been described as
frozen. I accept he has depression and suffers respiratory infections. Mr
Sommers contends he has been punished enough. I do not accept there is no sunlight;
there are a number of photographs of him on a balcony connected to the premises
he inhabits. Mr
Assange
style='font-size:12.0pt;line-height:107%;
font-family:"Times New Roman","serif"'>s health problems could
be much worse.
The fifth point
55. Finally,
Mr Summers points out that the law has changed since the Supreme Court decision
and Mr Assange
would now not be returned to Sweden because of section 12A of
the Extradition Act 2003. This section does not allow the return of an
individual if there are reasonable grounds to believe that the requesting State
has made no decision to charge or try and the individuals
absence from the requesting State is not the sole reason for that failure.
Having looked at the prosecutors record of her
decision dated 19th May 2017, Mr Summers is arguably wrong. In the
last paragraph of the decision Ms Ny states:
In
view of this, and that to continue with legal proceedings would require JAs
personal appearance in court, there is no longer any reason to continue with
the investigation. On the face of it, the reason for
stopping the investigation is Mr
Assange
style='font-size:12.0pt;
line-height:107%;font-family:"Times New Roman","serif"'>s
absence from the court proceedings in Sweden and on that basis extradition may
not be barred were the Swedish request still in place.
CONCLUSION
56. In
December 2010 for seven days, Mr Assange
was held in Wandsworth Prison whilst
the bail package he suggested was being put in place. Whilst he was held in
prison he had three separate appearances in court, two at the then City of
Westminster Magistrates Court and one at the High Court. He was
then granted bail subject to the conditions he had suggested. He was subject
to a curfew, had to live in a country house and had to attend the local police
station daily. Without the conditional bail given to him he would have been
held in custody and extradited at the end of the appeal process granted to him.
Those restrictions on his freedom were according to law and proportionate.
They cannot be criticised.
57. Mr
Summers says Mr Assange
fears being rendered to the United States by Sweden.
There is no evidence that that was going to happen. He would not have been
rendered by this country to the United States nor by Sweden. On occasions Mr
Assange
says he fears being extradited to the United States. On an extradition
request from the United States in this jurisdiction he would be able to argue
extraneous considerations, fair trial and conditions of detention in the United
States prison system. The courts would consider, with the assistance of Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
lawyers and expert witnesses, whether he should be extradited. There would
then be the appeal process which would consider whether the first court got it
wrong, whatever the decision either way.
58. I
have found above that Mr Assange
style='font-size:12.0pt;
line-height:107%;font-family:"Times New Roman","serif"'>s
failure to surrender has impeded the course of justice and has led finally to
the case being dropped as it cannot be continued unless he returned to Sweden.
I find Mr
Assange
style='font-size:12.0pt;line-height:107%;
font-family:"Times New Roman","serif"'>s failure is a
determined attempt to avoid the order of the court, an order which was
considered by the Supreme Court in this jurisdiction.
59. When
considering the public interest I have regard to the consequences of his
failure to appear, one of which is the drain on resources that policing Mr
Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
choice has caused. I have regard too to the losses incurred by his sureties.
I must look at the impact on public confidence in the criminal justice system
if Mr
Assange
is allowed to avoid a warrant for his arrest by staying out of
reach of the police for years in conditions which are nothing like a prison.
The failure to surrender was deliberate and occurred after the defendant had
been able to challenge the original order all the way to the Supreme Court.
60. The
impression I have, and this may well be dispelled if and when Mr Assange
finally appears in court, is that he is a man who wants to impose his terms on
the course of justice, whether the course of justice is in this jurisdiction or
in Sweden. He appears to consider himself above the normal rules of law and
wants justice only if it goes in his favour. As long as the court process is
going his way, he is willing to be bailed conditionally but as soon as the
Supreme Court rules against him, he no longer wants to participate on the courts
terms but on his terms.
61. I have had to consider whether it is proportionate not to withdraw the warrant for his arrest. On the one hand he is a man who has failed to attend court and has thwarted the course of justice but on the other he has been unable to leave a small flat for a number of years and is suffering physically and mentally as a result.
62. Having
weighed up the factors for and against and considered Mr Summers arguments I find arrest
is a proportionate response even though Mr Assange
has restricted his own
freedom for a number of years. Defendants on bail up and down the country, and
requested persons facing extradition, come to court to face the consequences of
their own choices. He should have the courage to do so too.
63. It
is certainly not against the public interest to proceed. Whether section 6
proceedings are initiated will depend on Mr Assange
style='font-size:12.0pt;line-height:107%;font-family:"Times New Roman","serif"'>s
circumstances (such as health) at the time he is produced to the court. If
section 6 proceedings are launched, Mr
Assange can then plead guilty or put
forward a reasonable cause for his non-attendance and the court will then
adjudicate. If found guilty the court will have the sentencing options available
to it including that of committal to the Crown Court if the court finds its
sentencing options to be too limited.
Senior District Judge (Chief Magistrate) Emma Arbuthnot
13th February 2018