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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) (02 November 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html Cite as: [2011] EWHC 2849 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE OUSELEY
____________________
Julian Assange![]() |
Appellant |
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| -and- |
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| Swedish Prosecution Authority |
Respondent |
____________________
Ms Clare Montgomery QC, Mr A Watkins and Ms H Pye (instructed by CPS) for the Respondent
Hearing date: 12 and 13 July 2011
____________________
Crown Copyright ©
The President of the Queen's Bench Division:
This is the judgment of the court
Introduction
Assange
, a journalist well known through his operation of Wikileaks, visited Sweden to give a lecture. Between 13 August 2010 and 18 August 2010, Mr
Assange
had sexual relations with two women there, AA and SW. On 20 August 2010 SW, accompanied by AA, went to the police. The police treated their visits as the filing of complaints. On 30 August 2010 Mr
Assange
, who had voluntarily remained in Sweden to co-operate with the investigation, was interviewed. Mr
Assange
subsequently left Sweden on or about 27 September 2010 in ignorance of the fact that an arrest warrant had been issued. Attempts had been made by the Swedish prosecutor to interview him.
Assange
was represented and to which we refer in more detail at paragraph 51, a European Arrest Warrant (EAW) was issued on 26 November 2010 by the Swedish Prosecution Authority (the Prosecutor), the Respondent to this appeal. It was signed by Marianne N y, a prosecutor. The warrant stated that:
"This warrant has been issued by a competent authority. I request the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
"1. Unlawful coercion
On 13-14 August 2010, in the home of the injured party [AA] in Stockholm.Assange
, by using violence. forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.
2. Sexual molestation
On 13-14 August 2010, in the home of the injured party [AA] in Stockholm,Assange
deliberately molested the injured party by acting in a manner designed to violate her sexual integrity.
Assange
, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
3. Sexual molestation
On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm,Assange
deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.
4. Rape
On 17 August 2010, in the home of the injured party [SW] in Enkoping,Assange
deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep. was in a helpless state.
It is an aggravating circumstance thatAssange
. who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used. still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity."
No other description of the conduct was given elsewhere in the EAW.
Assange
surrendered himself for arrest. On 7, 8 and 11 February 2011 there was a hearing before the Senior District Judge and Chief Magistrate, Senior District Judge Riddle. Evidence was given by Brita Sundberg-Weitman, a former judge of the Svea Court of Appeal and distinguished jurist, Mr Goran Rudling, an expert in the law relating to sexual offences in Sweden, Mr Sven-Eric Alhern, a retired senior prosecutor, and Mr Bjorn Hurtig, Mr
Assange
's lawyer in Sweden. The evidence is carefully summarised in the judgment of the Senior District Judge.
Assange
's extradition.
Assange
originally appealed on a number of grounds; these were reduced to five in a skeleton argument served on behalf of Mr
Assange
on 29 June 2011. As a result of clarification provided by the Prosecutor, and an amendment to the translation of one of the parts of the EAW, one of those grounds was withdrawn. The four issues that arose on the grounds can be briefly summarised as follows:
i) The EAW had not been issued by a "judicial authority".
ii) Offences 1-3 described in the EAW (set out at paragraph 3 above) did not meet the dual criminality test. None was a fair and accurate description of the conduct alleged. As regards offence 4, the conduct, if fairly and accurately described, would not have amounted to the offence of rape.
iii) The condition in s.2(3) of the 2003 Act had not been satisfied as MrAssange
was not an "accused".
iv) The issue of the EAW and subsequent proceedings were not proportionate.
The first issue was argued as the last issue, but it is convenient to consider the issues in the order we have set them out.
Assange
did not pursue the allegation made before the Senior District Judge that there had been abuse in issuing the EAW for a collateral purpose or that there had otherwise been an abuse of process.
Our general approach
(a) Construction of the 2003 Act
(b) The differences between the 2003 Act and the Framework Decision
(c) The purpose of the Framework Decision
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters. covering both pre-sentence and final decisions, within an area of freedom, security and justice."
"Each national and judicial authority should ipso facto recognise requests for the surrender of a person made by the judicial authority of a Member State with a minimum of formalities." (Paragraph 2 of the Explanatory Memorandum)
(d) The approach required by mutual recognition
"It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category I territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer."
Issue 1: Was the EAW issued by a judicial authority?
(a) The provisions of the Framework Decision and the 2001 Act
"Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender."
Articles 14 and 15 give effect to that recital by specifying the right to a hearing before a judicial authority before the decision to surrender is made.
"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European Arrest warrant by virtue of the law of that state.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute a European Arrest warrant by virtue of the law of that state.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
(s.2(7)-(8) of the 2003 Act). As we have set out at paragraph 4 it did so in this case.
(h) The decision of the Senior District Judge
(c) The contention of Mr
Assange
Assange
that for the purposes of the 2003 Act, a judicial authority must be an independent person or body exercising judicial powers and functions. This construction was supported by the fact that warrants for extradition into the United Kingdom have to be issued by a judge (see s.142) and that there is nothing in the 2003 Act to indicate a contrary intention for the issue of warrants for execution in the UK. On basic principles of UK constitutional law, those who prosecute are not judicial authorities.
Assange
that the courts were bound to apply the provisions of the 2003 Act in the way that a judicial authority would be understood in the UK, particularly in the light of what had been said by Ministers.
(d) The meaning of judicial authority in the jurisprudence of the ECHR
Assange
also relied on the jurisprudence of the ECHR under Article 5.3 which establishes that a prosecutor is not a judge or other officer authorised to exercise judicial power.
"27. In providing that an arrested person shall be brought promptly before a "judge" or "other officer", Article 5 para. 3 leaves the Contracting States a choice between two categories of authorities. It is implicit in such a choice that these categories are not identical. However, the Convention mentions them in the same phrase and presupposes that these authorities fulfil similar functions; it thus clearly recognises the existence of a certain analogy between "judge" and "officer". Besides, were this not so. there would scarcely be any explanation for the inclusion of the adjective "other".
28. "Magistrat" in French and. even more. "officer" in English manifestly have a wider meaning than "juge" and "judge". Again, the exercise of "judicial power" is not necessarily confined to adjudicating on legal disputes. In many Contracting States, officers (magistrats) and even judges exercise such power without adjudicating, for example members of the prosecuting authorities and investigating judges. A literal analysis thus suggests that Article 5 para. 3 includes officials in public prosecutors' departments as well as judges sitting in court (les magistrats du parquet comme ceux du siege)."
"To sum up, the "officer" is not identical with the "judge" but must nevertheless have some of the latter's attributes, that is to say he must satisfy certain conditions each of which constitutes a guarantee for the person arrested. The first of such conditions is independence of the executive and of the parties (see, mutatis mutandis. the above-mentioned Neumeister judgment, p. 44).
This does not mean that the "officer" may not be to some extent subordinate to other judges or officers provided that they themselves enjoy similar independence. In addition, under Article 5 para. 3, there is both a procedural and a substantive requirement. The procedural requirement places the "officer" under the obligation of hearing himself the individual brought before him (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 24, para. 60); the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons (Ireland v. the United Kingdom judgment, p. 76, para. 199)."
As the District Attorney was acting in that case as an investigating authority with power to charge and detain and subsequently to gather the evidence both in favour of the accused and against him. and not as a prosecutor, he was "an officer authorised to exercise judicial power".
(e) The meaning of judicial authority in the 2001 Act and the Framework Decision
Assange
's favour it is permissible to consider the statements in Parliament which we have summarised at paragraph 26, we do not think much assistance is gained from them given the broad category of authorities and the practice under the 1989 Act to which the Ministers referred. That practice is illustrated by R v Bow Street Magistrates Court (ex p Van Del' Hoist) (1986) 83 Cr App R 114, where one of the warrants was signed by the Public Prosecutor to the District Court of Amsterdam. The court held it was valid as all that was required was that it be signed by an officer of the Netherlands. In Re Speigh! (31 July 1996, transcript), the warrant was also signed by the Public Prosecutor of the Amsterdam District Court; no challenge was made to the validity of the warrant.
"The term "judicial authority" corresponds. as in the J957 Convention (cf Explanatory Report, Article I) to the judicial authorities as such and the prosecution services, but not to the authorities of police force. The issuing judicial authority will be the judicial authority which has the authority to issue the European arrest warrant in the procedural system of the Member State."
Article 1 of the 1957 Convention provided for the extradition of all persons "against whom the competent authorities of the requesting Party are proceeding for an offence". The Explanatory Report on that Convention stated in respect of that Article:
"The term competent authorities in the English text corresponds to autorites judiciaries in the French text. These expressions cover the judiciary and the Office of the Public Prosecutor, but exclude the police authorities:'
In any event,
"Further material supplied from the Netherlands gives information about the position of the public prosecutor in his relations with inter alios the police and the Minister of Justice. It is not necessary here to refer t o this in detail. Suffice it to say that it shows that he performs a function as part of the judiciary in that country. He is not part of the executive."
(f) The status of the designation of judicial authority by another Member State
Assange
to raise the issue in the course of this appeal. However for the reasons we have given we are satisfied that the Prosecutor was a judicial authority.
(f) Circumstances giving rise to more intense scrutiny: The effect of the decision of the Svea Court of Appeal
Assange
against an order of the Stockholm District Court made on 18 November 2010 that Mr
Assange
should be arrested in absentia. Mr
Assange
's appeal was advanced on the basis that there was no probable cause for the allegations that the Prosecutor had made against Mr
Assange
. Amongst the contentions made was an allegation of collusion by the complainants and, in relation to the offence of rape (offence 4), that the complainant had done nothing to make Mr
Assange
understand that she did not want to have sex with him. The Svea Court of Appeal was provided with a statement by the Prosecutor which set out details of the offences and of the investigation. It was made clear that the complainants had been questioned a number of times and the inconsistencies in their accounts and the comments made by them in text messages which had been relied on by Mr
Assange
's Swedish lawyer had been put to them. It explained how the complainants had been in touch with each other and had made the complaints.
Assange
was suspected with probable cause of the four offences and that the arrest was justified. Two days later the EAW was issued by the Prosecutor.
Issue 2: Dual Criminality; the fairness and accuracy of the description of the conduct alleged
(a) The contention of Mr
Assange
Assange
that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.
Assange
in respect of offences 1-3 where dual criminality was required was:
i) Offence 1: Although it was accepted that the conduct as described would constitute an offence in England and Wales, a fair and accurate description of the prosecution case would not meet that test.
ii) Offence 2: This did not meet the dual criminality test on the basis either of the description of the offence set out in the EAW or of a fair and accurate description of the offence.
iii) Offence 3: The position was the same as offence 1.
Assange
contended that the court should examine the underlying material from the prosecution file, even though the whole of the file had not been made available to Mr
Assange
's Swedish lawyer as under Swedish law it is only made fully available at a later stage. However what was provided contained the principal statements of the complainants and other material which made it obvious that the conduct of which he was accused was not fairly and accurately described in the EAW. The Prosecutor had told the Swedish Court that the further statements made by the complainants were materially the same. The stance taken by the Prosecutor in not disclosing the remainder of the file was criticised by Mr Emmerson QC who appeared for Mr
Assange
. However, it was consistent with the stance of the Prosecutor that this court should not consider the extraneous material in arriving at its decision on whether Mr
Assange
should be surrendered; it would be made available in accordance with Swedish law at the appropriate time.
Assange
at the close of the hearing before the Senior District Judge to put the translation of the file made available before the court. That was done by annexing it to a witness statement dated 22 February 2011, 2 days before judgment was handed down. All that material was put before us and we were taken through it de bene esse.
(h) Can the court have regard to extraneous material to determine the accuracy of the description of the conduct?
"… it is very important that a state requesting extradition from the U K fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, where as here a question is raised about its accuracy is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged but, it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate.
On the facts of that particular case an examination of the dossier showed that the description of the conduct alleged was not a proper, accurate or fair description.
Assange
that we should apply the principles in that decision to a request for surrender under Part 1 of the 2003 Act. As there was no enquiry into evidential sufficiency and, as it had been consistently held that the issuing state had to prove that the EAW strictly complied with the terms of s.2 (see Cando Armas referred to at paragraph 138 below), it was no less essential to the protection of the rights of the person whose surrender was requested that the description of the conduct be fair and accurate. It was therefore just as important under the 2003 Act that the court should consider the fairness and accuracy of the description of the conduct by reference to extraneous material. Although it was said in Dabas v High Court of' Madrid that extraneous material cannot be used to cure an EAW that was invalid (as we set out at paragraph 138 below), the converse was not true.
"The court's task --jurisdiction, if you like --is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland [counsel for the Spanish judicial authority] to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002."
On the facts of that case, the extraneous material was examined and the court held that the EAW was not a valid EAW as there was not a proper, accurate and fair description of the conduct.
Assange
submitted that we should continue to apply Castillo, and not treat Murua as modifying it for the purposes of the 2003 Act.
Assange
's surrender is such a case.
(d) Offence 1: Dual criminality: consideration of the accuracy and fairness by reference to extraneous material
Assange
, then this ground of objection toMrAssange 's extraditionunderthe EAWwouldfall away inrespect of this offence.
i) The description in the EAW sets out a clear description of the conduct that the Prosecutor alleges against MrAssange
. It is for the Prosecutor not the court to set out what is alleged.
ii) The Svea Court of Appeal has considered the offences and determined that there is cause to proceed.
iii) It cannot be said that what is set out is plainly wrong.
iv) No allegation of bad faith on the part of the Prosecutor was made in this court.
v) The facts set out were sufficient to lead to the inevitable inference of lack of consent to the specific matter alleged against MrAssange
and to the requisite knowledge on his part. In the case of the first offence, Mr
Assange
lay on AA forcibly restricting her movements to which she did not consent. That is what would have to be proved. If he did those acts it would also be the inevitable inference, to the extent relevant, that he knew that she was not consenting.
Assange
, though there was another statement which had been made by AA subsequently but which, as we have said, would only be disclosed to Mr
Assange
at a later stage of the proceedings.
Assange
from 11-14 August 2010 when she was away. She had returned on 13 August 2010 earlier than planned and then met him for the first time. They went out to dinner and returned to her apartment. As they drank tea, he started to fondle her leg which she welcomed. Everything happened fast. Mr
Assange
ripped off her clothes and at the same time broke her necklace. She tried to put her clothes on again, but Mr
Assange
had immediately removed them again. She had thought that she did not really want to continue, but it was too late to tell Mr
Assange
to stop as she had consented so far. Accordingly she let Mr
Assange
take off all her clothes. Thereafter they laid down on the bed naked with AA on her back and Mr
Assange
on top. Mr
Assange
wanted to insert his penis into her vagina, but she did not want him to do that as he was not using a condom. She therefore squeezed her legs together in order to avoid him penetrating her. She tried to reach several times for a condom which Mr
Assange
had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without a condom. Mr
Assange
must have known it was a condom AA was reaching for and he had held her arms to stop her. After a while Mr
Assange
had asked AA what she was doing and why she was squeezing her legs together; AA told him she wanted him to put on a condom before he entered her. Mr
Assange
let go of AA's arms and put on a condom which AA found for him. AA felt a strong sense of unexpressed resistance on Mr
Assange
' s part against using a condom.
Assange
had no reasonable belief that AA was consenting to what had happened.
Assange
subsequently allowed AA to move so she could find a condom for him to use, but at the point in time to which the offence relates, we do not read anything in her statement to indicate consent to his restraining her. Indeed her statement indicates precisely the opposite at the point of time to which it relates. It of course might well be argued that his subsequent decision to let go of her might indicate a lack of coercion or consent to what followed, but at the point of time to which the offence relates, we consider the conduct of which he is charged to have been fairly and accurately described. As we have set out at paragraph 71.v) above, the matters alleged are sufficient, in our view, and to the extent relevant, to impel the inference of knowledge. The context does not change our view.
(e) Offence 2: Dual criminality
(i) The offence as set out in the EAW: consent and the use of a condom under the law of England and Wales
(1) The issue
Assange
knew that AA would only consent to sexual intercourse if he used a condom throughout, but he had concluded sexual intercourse with her without a condom. The point was taken on Mr
Assange
's behalf that consent to sexual intercourse on condition that Mr
Assange
wore a condom remained under the law of England and Wales consent to sexual intercourse, even if he had not used a condom or removed or damaged the condom he had used. No offence was, it was submitted, therefore committed under the law of England and Wales.
(2) The law prior to the Sexual Offences Act 20031
"The person by whom the act was to be performed was part of its essence."
The law thus established was applied in 1994 in R v Linekar [1995] QB 250 in a case where the Court of Appeal quashed a rape conviction of a man who had never intended to pay a prostitute with whom he had had sexual intercourse after she had agreed to sexual intercourse for £25. She had consented to sexual intercourse. It mattered not that the consent had been conditional, as there had been no fraud as to the nature of the act or identity of the person.
(3) The Sexual Offences Act 2003
"F or the purposes of this part, a person consents if he agrees by choice and has the freedom and capacity to make that choice."
In our view it is this section that is the relevant section but, before considering it, it is convenient to set out the argument made by Mr
Assange
in more detail.
(4) The contention of Mr
Assange
Assange
primarily relied on R v B [2006] EWCA Crim 2945 [2007] 1WLR 1567 where the court considered one of the evidential presumptions relevant to consent - s.76:
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that-
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
S.77 defines "the relevant act" for the offence of rape as the defendant intentionally penetrating, with his penis, the vagina of another person and for the offence of sexual assault the intentional touching.
"Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease."
The court went on to hold that the fact that the defendant had not disclosed that he was HIV infected was not in any way relevant to the issue of consent to sexual intercourse under s.74.
Assange
' s behalf that this contention might not be one contemporary society would readily understand or consider justifiable, but Parliament had enacted the law in those terms and the duty of the courts was to apply the law.
(5) Our conclusion
"In our judgment the ambit of section 76 is limited to the "act" to which it is said to apply. In rape cases the "act" is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76 (2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse. Beyond this limited type of case, and assuming that, as here, section 75 has no application, the issue of consent must be addressed in the context of section 74."
Assange
used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
Assange
's conduct in having sexual intercourse with AA without a condom (or in continuing sexual intercourse with AA after removing, damaging or tearing the condom) was deceptive. Assuming it was deceptive, then in our view it was not deceptive as to "the nature or quality of the act". We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy; moreover the editors of Smith & Hogan (12th edition at p.866) comment that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. It seems to us, however, that s.76 should be given a stringent construction, because it provides for a conclusive presumption. The issue of the materiality of the use of a condom can be determined under s.74 rather than under s.76.
Assange
, that if, in accordance with the conclusion we have reached, the deception was not a deception within s.76 (a deception as to the nature or quality of the act or a case of impersonation), then the deception could not be taken into account for the purposes of s.74. It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be. There is nothing in R v B that suggests that. All the court said at paragraph 21 was:
"All we need to say is that, as a matter of law, the fact that the defendant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity in this case."
Assange
to contend that, if he deceived AA as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue of AA's consent to sexual intercourse as a matter of the law of England and Wales or his belief in her consent. On each of those issues, it is clear that it is the prosecution case she did not consent and he had no or no reasonable belief in that consent. Those are issues to which s.74 and not s.76 is relevant; there is nothing in R v B which compels any other conclusion. Furthermore it does not matter whether the sexual contact is described as molestation, assault or, since it involved penile penetration, rape. The dual criminality issue is the absence of consent and the absence of a reasonable belief in consent. Those issues are the same regardless of the description of the conduct.
(ii) Consideration of the accuracy and fairness by reference to extraneous material
Assange
had pulled his penis out of her and started to arrange the condom. Judging by the sound AA thought he was removing the condom. He then penetrated her again and continued sexual intercourse. She felt again with her hand that the edge of the condom was, as previously, around the root of the penis. She therefore let him continue. AA stated that a while later he ejaculated inside her and then pulled out. When he removed the condom from his penis, AA saw it was empty of semen. When she started to move her body she noticed something was seeping out of her vagina and understood it must be his semen. AA told the police she was convinced that Mr
Assange
, when he pulled out of her, broke the condom by the glans and then continued the intercourse until he ejaculated.
Assange
if he used a condom. It is also clear that a case being made by the Prosecutor is that Mr
Assange
, knowing that, nonetheless broke the condom. It was submitted that it should have been made clear that the allegation was founded on her belief he had torn the condom and that the forensic science evidence did not support that belief; it was also submitted that the evidence showed she consented. Whether there is sufficient evidence is a matter with which this court cannot be concerned. Nor was it necessary to set out facts that might disprove her case that she did not consent, such as her invitation to him to remain in the flat. The sole concern of this court is whether, on the basis that the fairness and accuracy of the description can be examined by reference to the materials in the prosecution file, the description of the conduct is fair and accurate. In our view, although the language could have been expressed more precisely, it is clear what is being said, namely that Mr
Assange
had sexual intercourse with her when not using a condom when he knew she would not have sex with him unless he was using a condom which protected her from his ejaculate entering her. It seems to us immaterial to the fairness and accuracy of the description of the offence whether that lack of protection arose out of his failure to wear a condom or his tearing or damaging the condom deliberately.
(e) Offence 3: Dual criminality: consideration of the accuracy and fairness by reference to extraneous material
Assange
had no reasonable belief that AA did consent to the sexual touching could not inevitably be drawn.
Assange
tried to make sexual advances towards her every day thereafter. For example he had touched her breasts. She rejected him on all occasions. He accepted these rejections.
Assange
. When they were in the same bed on 18 August 2010, he suddenly took all his clothes off from the lower part of his body and rubbed that part of his body and his erect penis against AA. She had felt this was very strange behaviour and awkward. After this, she no longer slept in the same bed as Mr
Assange
, but moved to a mattress on the floor.
Assange
was sleeping in the same single bed as AA and that, understandably and without criminal intent, he might have had an erection in those circumstances.
Assange
being in the same bed would be to give rise to an inference of consent to his conduct or the acceptance of the risk of accidental contact with his lower body or his erect penis. However it seems to us clear from the statement of AA that her consent to allow him to share the same bed was not a consent to him removing his clothes from the lower part of his body and deliberately pressing that part and his erect penis against her. True it is that the context is not spelt out, but what is necessary for the prosecution to prove as the ingredients of the offence under the law of England and Wales are spelt out. The context relied on by Mr
Assange
does not show that the allegation is not one of an offence under the law of England and Wales, including the requisite mens rea.
(f) Offence 4: A framework offence: fairness and accuracy of the description of/he conduct
"The following offences,. if they are punishable in the issuing Member State by a custodial sentence or detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European Arrest Warrant."
(i) The meaning of rape
Assange
, then it is necessary to consider what is meant by rape. There is, of course, no standard definition of rape. In M. C. v Bulgaria (2005) 40 EHHR 20, the Strasbourg Court considered a complaint that the law of Bulgaria did not sufficiently protect against rape, as it was only in those cases where the victim actively resisted that a prosecution was brought. The court held that although states had a significant margin of appreciation, a requirement that the victim must physically resist was no longer a requirement of most European countries. After referring to the position in common law states, the court continued:
"159. In most European countries influenced by the continental legal tradition the definition of rape contains references to the use of violence or threats of violence by the perpetrator. It is significant, however, that in case law and legal theory, lack of consent, not force is seen as the constituent element of rape.
161. Regardless of the specific wording chosen by the legislature, in a number of countries the prosecution of non consensual sexual acts in all circumstances is sought in practice by means of interpretation of the relevant statutory terms and through a context sensitive assessment of the evidence."
The court went on to refer to the Recommendation Rec (2002) 5 of the Committee of Ministers of the Council of Europe on the protection of women against violence and the position in international law. It referred to Prosecutor v Kunarac (2002) IT 96-23/1, where the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia approved the definition of rape formulated by the Tribunal after a review of international jurisprudence. The definition given was that rape was constituted by intentional penetration without consent with knowledge that it was without consent (see paragraph 128). The Strasbourg Court concluded that the trend was towards "regarding lack of consent as the essential element of rape." This is confirmed by a more recent study: "Different systems, similar outcomes? Tackling attrition in reported rape cases across Europe" by Lovett and Kelly published by the Child and Women Abuse Studies Unit of London Metropolitan University in 2009. The definitions set out show a wide variation with coercion being required in some states and lack of consent in others.
(ii) The effect of designation by the issuing judicial authority
"If applicable, tick one or more of the following offences punishable in the issuing Member State by a custodial sentence or detention order of a maximum of at least 3 years as defined by the laws of the issuing Member State."
The provisions of the Framework Decision appear to be reflected in s.64(2)(b) of the 2003 Act which provides as one of the conditions for extradition for a Framework Offence:
"A certificate issued by an appropriate authority ... shows that the conduct falls within the European framework list."
Assange
that conduct, even for the Framework Offence of rape, must be conduct reasonably capable of amounting to rape as understood in England and Wales.
(iii) The designation ofthe conduct under the law of England and Wales
Assange
's knowledge and belief. We have considered the general issue of consent at paragraphs 79 to 91. Our view is, as we have set out, that a jury would be entitled to find that consent to sexual intercourse with a condom is not consent to sexual intercourse without a condom which affords protection. As the conduct set out in the EAW alleges that Mr
Assange
knew SW would only have sex if a condom was used, the allegation that he had sexual intercourse with her without a condom would amount to an allegation of rape in England and Wales.
(1) If in proceedings for an offence to which this section applies it is proved
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that-i
...
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(iv) The fairness and accuracy of the description
Assange
when she had seen him in a TV interview. She had attended a lunch with him and others on 14 August 2010. He had flirted with her over lunch and they had gone out together ending up in cinema where they kissed and fondled. She contacted him on 16 August 2010 and invited him to her house. In the bedroom he took her clothes off; they were naked together on the bed and engaged in sexual foreplay on the bed. He rubbed his penis against her. She closed her legs because she did not want to have intercourse with him unless he used a condom. After a period of some hours, he went to sleep. For a long time she had lain awake, but then she also fell asleep. They then had sexual intercourse with him using a condom. They fell asleep and woke and had sex again. They had breakfast. They had sex again with a condom only on the glans of his penis.
Assange
had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom. The description of the conduct makes clear that he consummated sexual intercourse when she was asleep and that she had insisted upon him wearing a condom. "Consummated" refers to having intercourse, not to ejaculation. In our judgement it was not necessary to go further than was set out in the description of the conduct. as it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom. There is nothing in the statement from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.
Assange
assist. In one sent by her she described herself as "half asleep" and she accepted in a further interview that she was not fast asleep. These are matters of evidence which would be highly relevant at trial. But it is not for this court to asses whether the allegations may fail. It was not therefore necessary to set the details of these out. There is, therefore, nothing in the particulars which is neither fair nor accurate.
Assange
' s argument is that the description of the offence by the Prosecutor does not set out the continuum of events and the context, but seeks to isolate one aspect. That continuum and context showed that she agreed to sexual intercourse when she realised what was happening; it cannot therefore be alleged that he did not have a reasonable belief in consent. We accept Ms Montgomery's observations about how far it would be right to see what happened afterwards as consensual rather than reluctant submission. But the fact of protected sexual intercourse on other occasions cannot show that she was, or that Mr
Assange
could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her. Once awake she was deciding whether to let him go on doing what he had started. However it is clear that she is saying that she would rather he had not started at all and had not consented. The prosecution case on rape is or includes the start of sexual intercourse: its references to "consummation" cannot in context be confined to its conclusion or to ejaculation. It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.
(v) Conclusion
Issue 3: Was Mr
Assange
accused of an offence in Sweden?
(a) The provisions of the 2003 Act
"A Part 1 warrant is an arrest warrant ... which contains (a) the statement referred to in subsection (3)"
That sub-section then provides:
"The statement is one that
(a) the person in respect of whom the Part 1 warrant is issued is accused in the Category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."
This reflects in part Article 1.1 of the Framework Decision which specifies that extradition is for the purposes of conducting a criminal prosecution.
(ii) The finding of the Senior District Judge
Assange
was, as the warrant stated, requested for the purpose of being prosecuted for the offences. The Senior District Judge was satisfied, looking at the warrant as a whole, that Mr
Assange
was an accused person. However he went on to make findings on the extrinsic evidence, as we set out at paragraph 148 below.
(iii) The issue: .vas Mr
Assange
"accused"
Assange
that the surrender of Mr
Assange
was sought for the purposes of conducting a criminal prosecution (satisfying 2(3)(b)), as the Senior District Judge had held. That concession was made because it was accepted that the words "for the purposes of being prosecuted" were broad enough to encompass a prosecution that would commence in the future. Under the Framework Decision which used that term the concepts of pre-charge investigation and post charge prosecution had been elided. An EAW could therefore be issued under the Framework Decision prior to the point at which a criminal prosecution had commenced.
Assange
was accused of the commission of an offence in Sweden; that was because he had not been accused of an offence, as criminal proceedings had not been commenced. The Senior District Judge was wrong so to have found. He should also have considered the evidence extraneous to the EAW. The 2003 Act had specifically included s.2(3)(a) so that an EAW could not be used for the purposes of conducting an investigation; it could only be used where a person had been charged. If an EAW was issued prior to the point at which a criminal prosecution had commenced and the person charged, it was not a valid EAW.
(iv) The meaning of "accused"
Assange
particularly relied must be seen in context.
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that "accused" in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition ... It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment. Moreover, it is important to note that in England a prosecution may also be commenced if a custody officer decides that there is sufficient evidence to charge an arrested person and then proceeds to charge him... Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an "accused" person. And that is so even if the police continue to investigate afterwards."
He continued at page 327:
"It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an "accused" person. All one can say with confidence is that a purposive interpretation of "accused" ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an "accused" person is satisfied. That such a broad approach to the interpretation of section 1 of the Act of 1989 is permissible is reinforced by the provisions of section 20. This provision deals with the reverse position of an extradition of a person "accused" in the United Kingdom and contemplates that "proceedings" against him may not be commenced ("begun") for six months after his return. This provides contextual support for a correspondingly broad approach to "accused" in section 1. For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is "accused" within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case." (The passage in italics is the passage particularly relied upon by MrAssange
.)
"If [a person] is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as an "accused" even if there is no statement using that word. The subject of such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning."
The court should, in our view, be very careful in the context of the 2003 Act and the Framework Decision about giving to the word "accused" some technical procedural meaning which would amount to a hurdle which other Member States cannot match in their own procedures.
(v) The terms of the EAW
Assange
be surrendered for the purposes of conducting a criminal prosecution. It was in the standard form of the EAW in the annex to the Framework Decision. The Prosecutor had not adapted the wording to the case by deleting the reference to executing a custodial sentence, but this is not relevant. Although the EAW makes clear that the surrender is requested for the purpose of conducting a criminal prosecution, set out the offences and does refer to the warrant being based on the decision of the Svea Court of Appeal, there is nothing in the EAW that formally states he is accused of an offence in Sweden.
"A warrant which does not contain the statements referred to in [s.2(2)] cannot be eked out by extraneous information. The requirements of s.2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
It follows that the Prosecutor must not have had its attention drawn to the further observations of Lord Hope in Cando Armas at paragraph 48:
"The fact that Part 1 of the 2003 Act does not match the requirements of the Framework Directive is confusing to the unwary, and it appears likely that it will be a source of continuing difficulty. Steps should be taken to remind the authorities in the category 1 territories that the statements referred to in section 2(2) of the Act are a necessary part of the procedure that has been laid down in Part 1 of the Act."
"The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial." (paragraph 50)
In our view, the terms of the EAW read as a whole made clear that not only was the EAW issued for the purpose of Mr
Assange
being prosecuted for the offence, but that he was required for the purposes of being tried after being identified as the perpetrator of specific criminal offences. He was therefore accused of the offences specified in the EAW. Nothing in the EAW suggested he was wanted for questioning as a suspect.
(vi) The circumstances in which the extraneous evidence was adduced
Assange
were advanced, as we have mentioned, on the basis of extraneous evidence to which we must now refer.
Assange
contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose of questioning Mr
Assange
rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated 11 February 2011 on behalf of the Prosecutor:
"6. A domestic warrant for [JulianAssange
's] arrest was upheld [on] 24 November 2010 by the Court of Appeal, Sweden. An arrest warrant was issued on the basis that Julian
Assange
is accused with probable cause of the offences outlined on the EAW.
7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. JulianAssange
's case is currently at the stage of "preliminary investigation". It will only be concluded when Julian
Assange
is surrendered to Sweden and has been interrogated.
8. The purpose of a preliminary investigation is to investigate the crime. provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse JulianAssange
of the offences.
9. It is submitted on JulianAssange
's behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in
Assange
's case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate
Assange
, in person, regarding the evidence in respect of the serious allegations made against him.
10. Once the interrogation is complete. it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen thatAssange
is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries."
(vii) The contention of Mr
Assange
on the extraneous evidence
Assange
's contention was that he had not been accused of an offence in Sweden. For that to happen a decision to prosecute had to be made and none had been. Criminal proceedings had not commenced. Lord Steyn, in Ismail in the passage at page 327 (which we have highlighted in italics at paragraph 133 above), had approved the approach of the Divisional Court in asking in that case whether the authorities had taken a step which could fairly be described as the commencement of proceedings. Reliance was placed on the following by Mr
Assange
:
i) The Senior District Judge, who had heard evidence of Swedish law, had found on the evidence before him that the proceedings were at the preliminary investigation stage; that the preliminary investigation did not come to an end until the evidence was served on MrAssange
or his lawyer and there had been an interrogation of him with the opportunity for further enquiries. Thereafter there would be a decision to charge; if charged, it was likely that the trial would take place shortly thereafter.
ii) There were numerous statements by Ms Ny that the proceedings were still at the investigative stage. She had said on 19 November 2010; "We have come to a point in the investigation where we cannot go further without speaking to JulianAssange
." She had written to the Australian Ambassador in December 2010 making it clear that she was engaged in an "on going investigation". In a conversation with the Ambassador on 16 December 2010, she had confirmed that no decision had been made to prosecute Mr
Assange
. It was only when such a decision was made that Mr
Assange
would be granted access to all the documents in the case.
iii) In the Prosecutor's submission to the Svea Court of Appeal when it was considering the appeal of MrAssange
against the decision to issue a warrant for his arrest (to which we have referred at paragraph 51 above), the Prosecutor had stated that the reason for the arrest of Mr
Assange
was "in order to enable implementation of the preliminary investigation and possible prosecution". In rejecting the appeal the Court had stated in its reasons that Mr
Assange
was "suspected with probable cause of' the four offences to which we referred at paragraph 3.
iv) The translation of the EAW was wrong; the word translated as "criminal prosecution" was in Swedish "for lagforing". This was a general term relating to the entire process; it meant "legal proceedings". There were more precise words that should have been used such as åtala or åklaga which meant prosecute or indict.
(viii) Can extraneous evidence be examined!
Assange
.
Assange
was accused (contrary to the view we have expressed at paragraph 140) and that Mr
Assange
was entitled to rely on the extraneous evidence in relation to the question as to whether he was accused. We would simply emphasise our view that, although we have made the second assumption, cases where evidence extraneous to the EAW is admitted should be very few and far between.
(ix) Conclusion on the extraneous evidence
Assange
was suspected as opposed to accused; and the fact that under Swedish law a person had to be interrogated before a decision to charge was made was not determinative. Clear and specific allegations had been made against Mr
Assange
. Although he could not say when or what step had been taken which could fairly be described as the commencement of the prosecution, the boundary between suspicion and investigation and prosecution had been crossed. Looking at the matter in the round, Mr
Assange
passed the threshold of being wanted for prosecution.
Assange
means that he is not "accused of the offence". The questioning is not for the mere investigation of a suspect, but to ensure that there is no proper basis for the accusation not to proceed swiftly to trial, where the focus is likely to be on what is admitted. denied or put on a different light in the answers to the questions.
Assange
is on the facts before this court "accused" of the four offences. There is a precise description in the EAW of what he is said to have done. The extraneous evidence shows that there has been a detailed investigation. The evidence of the complainants AA and SW is clear as to what he is said to have done as we have set out. On the basis of an intense focus on the facts he is plainly accused. That is. as Lord Steyn said, decisive.
Assange
was accused, it was the submission of Mr
Assange
that the court should ask the question asked by the Divisional Court in Ismail, namely whether a step had been taken which could fairly be described as the commencement of the prosecution. It is, in our view, clear that whilst Lord Steyn approved that approach, it was not the only approach to the question of whether he was an accused. The issue was to be addressed broadly on the facts. But, even if the court was constrained to determine whether someone was an accused by solely considering the question of whether the prosecution had commenced, we would not find it difficult to hold that looking at what has taken place in Sweden that the prosecution had commenced. Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr
Assange
had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr
Assange
.
Assange
fails on the facts on this issue.
Issue 4: Proportionality
Assange
submitted that even if under the EAW he was technically a person accused of offences, it was disproportionate to seek his surrender under the EAW. That was because, as he had to be questioned before a decision was made on prosecution, he had offered to be questioned over a video link. It would therefore have been proportionate to question him in that way and to have reached a decision on whether to charge him before issuing the EAW.
Assange
proportionality was also a requirement of the law on the following basis. The Framework Decision as an EU instrument is subject to the principle of proportionality; reliance was placed on the effect of the Charter of Fundamental Rights, R(NS) v SSHD [2010] EWCA Civ 990 and the decision of the Higher Regional Court in Stuttgart in General Public Prosecution Service v C (25 February 2010), as reported at [2010] Crim LR 474 by Professors Vogel and Spencer. We will assume that Mr
Assange
's argument that an EAW can only be used where proportionate, complex as it is, is well founded without lengthening the judgment still further to express a view on it.
Assange
failed before the Court of Appeal of Svea. In those circumstances, taking into account the respect this court should accord the decision of the Court of Appeal of Svea in relation to proceedings governed by Swedish procedural law, we do not consider the decision to issue the EAW could be said to be disproportionate.
Assange
's surrender, given all the other matters raised by Mr
Assange
in the course of the proceedings before the Senior District Judge. The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr
Assange
is an accused and is required for the purposes of prosecution. Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr
Assange would have proved practicable or would not have been the subject of lengthy dispute.
Conclusion