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IN THE SOUTHWARK CROWN COURT

BETWEEN:

REGINA

v

JULIAN PAUL ASSANGE

NOTE OF MITIGATION

Defendant

For hearing on 1 May 2019 before HHJ Taylor

Chronology

1. On 24 February 2011 the defendant’s extradition to Sweden was ordered by the (then) Senior District Judge Riddle.

2. On 2 November 2011, an appeal to the High Court against that order was dismissed (the High Court holding (a) that Mr Assange was ‘accused’ in Sweden despite not having been charged there and (b) that the Swedish prosecutor was a ‘judicial authority’ for the purposes of the EAW scheme).

3. On 30 May 2012, an appeal to the Supreme Court on the latter issue was dismissed.

4. On 14 June 2012, an application to re-open the Supreme Court appeal was dismissed and time for surrender (pursuant to s.36 of the 2003 Act) was ordered to commence on 29 June 2012.

5. Save for a period of initial detention in custody, the defendant had been on bail throughout with conditions, inter alia, requiring him to (a) reside at a nominated address, (b) to report daily to a police station, (c) wear an electronic tag, and (d) to surrender to the custody of the police as and when required to do so in order to affect surrender [tab 5].

6. On 19 June 2012, the defendant entered the Ecuadorian embassy. The reason for so doing related to his publically expressed fear that he would surrendered to the USA by Sweden, and be subjected to treatment there, including persecution and indefinite solitary confinement, relating to his involvement in WikiLeaks’ publication of sensitive US military and diplomatic materials (such as the UN Special Rapporteur on Torture had concluded happened to Chelsea Manning).

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7.

On 28 June 2012, in accordance with R (Hart) v Bow Street Magistrates’ Court [2002] 1 WLR 1242, the police served upon the defendant a notice to surrender (to Belgravia police station on 29 June 2012) [tab 6]. The defendant failed to surrender as required.

8. On 29 June 2012, DJ Purdy issued a warrant for the defendant’s arrest under s.7 of the Bail Act 1976 [tab 7]. 1

9. On 16 August 2012, the defendant’s humanitarian diplomatic asylum status was declared by Ecuador, based upon its assessment of a well-founded risk of him being refouled by Sweden to the USA and there being subjected to persecution, inhuman treatment and physical harm.

10. On 8 October 2012, the (then) Senior District Judge ordered the forfeiture of sureties in this matter totalling £93,500 (pursuant to s.120 of the Magistrates’ Court Act 1980), and £200,000 security [tab 8]. The Senior District Judge noted that the possibility that Mr Assange’s asylum situation might afford him a substantive defence (reasonable excuse) to a Bail Act charge ‘cannot be excluded’ (p5).

11. In the same vein, on 4 December 2015, the UN Working Group on Arbitrary Detention (‘UNWAG’) ruled (opinion 54/2015) that the defendant was being involuntarily deprived of his liberty in the embassy (being forced to choose between remaining in the embassy and exposed to the situation from which he had been granted asylum is not free choice) [tab 12].

12. On 26 May 2017, the EAW was withdrawn (under s.41 of the 2003 Act) following discontinuance of the underlying Swedish investigation and the underlying arrest warrant in Sweden.

13. On 6 February 2018, following submissions, the Senior District Judge ruled that the s.7 Bail Act warrant remained valid and enforceable notwithstanding the discontinuance of the predicate extradition proceedings.

14. On 16 February 2018, the Senior District Judge further ruled that it remained in the public interest for the court to initiate breach proceedings under s.6 of the Bail Act, in the event that the defendant left the embassy. 2

15. On 11 April 2019 Ecuador revoked the defendant’s asylum and invited UK police into the embassy to arrest him.

16. On the same date, the defendant was brought before DJ Snow. The Court initiated s.6 proceedings against the defendant (in accordance with the 16 February 2018 ruling referred to above). The defendant pleaded not guilty but was convicted, and committed to this Court for sentence.

1. Re-issued on 15 July 2014 owing, it is believed, to a technical fault in the first warrant.

2. Where bail is granted by a court, as here, and such proceedings are appropriate, they are initiated by the court: Criminal Practice Direction 2015, §14C.4.

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17. He has not appealed that conviction and now stands to be sentenced.

Sentencing powers

18. The Court’s sentencing powers below were limited to 3 months’ imprisonment and/or a fine (ibid).

19. The maximum sentence in the Crown Court is 12 months’ imprisonment and/or a fine (s.6(7) Bail Act).

Mitigation

20. First, the background to, and the defendant’s reasons for, failing to surrender (even if they do not constitute a defence to the charge) constitute a serious explanation for his conduct:

a. As will be known, Wikileaks published, in November 2010, together with others a significant number of redacted U.S. State department diplomatic ‘cablesallegedly provided by US Army Private Chelsea Manning (then known as Bradley).

b. On 27 May 2010, Manning was arrested in respect of her alleged provision of those documents to WikiLeaks.

c. In July 2010, Manning was charged with offences, including aiding the enemy, a capital offence which carried the death sentence.

d. Manning was then held at the Marine Corps Brig, Quantico in Virginia, from July 2010 to April 2011 under Prevention of Injurystatus, which entailed de facto solitary confinement and other restrictions (including sleep deprivation and being forced to sleep naked) that caused domestic and international concern. 3

e. After his arrest in the UK in December 2010, Mr Assange consistently and publically expressed his fear of onward refoulement once in Sweden to the USA (and of being subjected to similar treatment to that which Manning had received):

‘…Mr Assange’s strongly held fears of being removed to the United States. That fear was held, and publicly expressed, right from the very beginning. Indeed, in the early days there was a widely expressed view that extradition to Sweden was a masquerade for the real intention of the Swedish authorities to forward Mr Assange to the United States and even Guantánamo Bay. The theory was expressed in a number of ways, including openly in court, but there can have been no doubt that this was a fear operating on the mind of the defendant in the extradition proceedings…’ (Senior District Judge Riddle, judgment, 8 October 2012, [tab 8] p.12).

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f.

US officials had publically called for the death penalty in respect of Mr Assange. 4

g. It was publically known from 2010 that US prosecuting authorities had opened an investigation into Mr Assange and it was feared that he might be the subject of a sealed US indictment. 5

h. It was also reported publically in 2010 that ‘informal discussions have already taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody’. 6

i. In February 2012, the UN Special Rapporteur on Torture confirmed that Manning was subjected to inhuman and degrading treatment (report, 29 February 2012). 7

j. On 14 June 2012, when the order for his extradition to Sweden became final, his surrender to Sweden was now inevitable.

k. Sweden had, at the material time, a well-documented history of direct refoulement of persons to states in which they were at significant risk of ill-treatment, including torture and death. 8

4. For example, Mick Huckabee, Republican candidate for the 2010 Presidential election had called for those responsible for the leaking of the US Embassy cables to be executed (‘US embassy cables culprit should be executed, says Mike Huckabee: Republican presidential hopeful wants the person responsible for the WikiLeaks cables to face capital punishment for treason’, The Guardian, 1 December 2010) (https://www.theguardian.com/world/2010/dec/01/us-embassy-cables-executed-mike-huckabee). Pentagon officials had called for the death penalty ‘Leading US political figures have called for the death penalty to be imposed on the person who leaked sensitive documents to whistle-blower website WikiLeaks as anger intensified against those responsible for the international relations crisis’, The Telegraph, 10 January 2011) (https://www.telegraph.co.uk/news/worldnews/wikileaks/8172916/WikiLeaks-guilty-parties-should- face-death-penalty.html). Sarah Palin, former Republican Vice-Presidential candidate, had said that Mr. Assange ‘should be hunted down just like al-Qaeda and Taliban leaders’, The Telegraph, 30 November 2010 (https://www.telegraph.co.uk/news/worldnews/wikileaks/8171269/Sarah-Palin-hunt-WikiLeaks-

5. It was later widely reported that the US interest in him was real and that criminal proceedings were in train in the USA in respect of Mr Assange: a Grand Jury had been empaneled in Virginia and the US Attorney General has said publically that Mr Assange’s arrest was a priority’. In 2017, then FBI director James Comey told Congress that the only reason Mr Assange ‘hasn't been apprehended is because he's inside the Ecuadorean embassy in London’. (Washington Post, 3 May 2017)

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8. Sweden had been the subject of a number of judgments related to this practice: see e.g. A.S. v Sweden, Communication No. 149/1999, U.N. Doc. A/56/44 at 173 (2001); Karoui v Sweden, Communication No. 185/2001, U.N. Doc. A/57/44 at 198 (2002); C.T. & K.M. v Sweden, Communication No. 279/2005, U.N. Doc. CAT/C/37/D/279/2005 (2007); Bader v Sweden (2008) 46 EHRR 13; RC v Sweden (2010) App.

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l. Regarding the USA in particular, Sweden also had, at the material time, a long and unfortunate history of illicit co-operation with the USA in the mistreatment of detainees and their rendition. The Court is respectfully invited to read, for example, the UN’s Committee Against Torture’s disturbing judgment in Agiza v Sweden (2005) Communication No. 233/2003) (particularly §§10.2, 11.4, 12.28- 30, 13.4-5) and the UN’s Human Rights Committee’s judgment in Alzery v Sweden (2006) Communication No. 1416/2005) (particularly §§3.10-11 & 11.6- 7). In short, Sweden had passively allowed US military personnel to mistreat detainees on Swedish soil (including stripping, blindfolding, hooding, manacling, forcible sedation by forced anal suppository, handcuffing into specially designed stress position harnesses etc.) and in delivering them to torture in third states. The judgments talk about ‘total surrender of power’ by Sweden to the US authorities.

m. There existed no legal remedy available to him in the UK to protect against being refouled by Sweden to the USA. 9

n. On 19 June 2012, Mr Assange accordingly sought refuge in the Ecuadorian Embassy and applied for asylum on grounds of fear of being refouled by Sweden to the USA, and being subjected to ill-treatment there, including persecution, indefinite solitary confinement, and the death penalty. 10

o. On 16 August 2012, after careful investigation, Mr Assange’s humanitarian diplomatic asylum status was recognised (declared) by Ecuador, based upon its assessment of a well-founded risk of him being refouled by Sweden to the USA and there being subjected to persecution, inhuman treatment and physical harm.

21. In that regard, the Court is invited to also note that, on 4 December 2015, the United Nations Working Group on Arbitrary Detention (‘UNWAG’) ruled (opinion 54/2015) 11 that being forced to choose between remaining in the Embassy and being exposed to the situation from which he has been granted asylum; was not a free choice [tab 12]. 12

22. On 8 October 2012, the (then) Senior District Judge noted that (although not broadly relevant to the liability of the sureties) the possibility that Mr Assange’s asylum situation might afford him a substantive defence in law (reasonable excuse) to a Bail Act charge cannot be excluded’ [tab 8, p5].

41827/07, March 9; Njamba & Balikosa v Sweden, Merits, UN Doc CAT/C/44/D/322/2007 (UNCAT 2010); N v Sweden (2010) App. 23505/09, July 20; Aytulun & Güclü v Sweden, Merits, Communication No 373/2009, UN Doc CAT/C/45/D/373/2009 (UNCAT 2010). See also Agiza and Alzery referred to below.

9. Khemiri & others v The Court of Milan Italy [2008] EWHC 1988 (Admin).

10. In February 2013, Manning pleaded guilty to 10 of the charges she faced. Between June-July 2013, Manning was tried in respect of the remaining charges, of which she was convicted of 21, but acquitted of aiding the enemy (and hence avoided the death penalty). In August 2013, Manning was sentenced to 35 years' imprisonment.

12. The ECHR likewise recognises that someone’s freedom of choice in such a situation becomes ‘theoretical’ See eg. Amuur v France (1996) 22 EHRR 533, §48.

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23. DJ Snow ruled otherwise, and the defence have not challenged that legal ruling, but the mitigating force of the context of the defendant’s actions remains very relevant.

24. Secondly, Mr Assange wishes to provide to the court a personal expression of regret, to be provided in writing to the Court at the hearing.

25. Thirdly, as a result of his actions, Mr Assange has suffered very significant consequences for himself, punitive, significant and enduring in their nature:

a. He has spent almost seven years in confined conditions, without access to adequate medical care, space and natural light, in which circumstances his physical and psychological health have significantly deteriorated. In the time since being notified of the listing of this matter, it has not been possible to provide updated medical evidence. We attach for the Court’s information earlier medical evidence from psychologist Dr Michael Korzinski (considered by the UNWAG and updated in 2017) outlining the psychological consequences [tab 16] and from Dr Tim Ladbrooke outlining the physical consequences [tab 17]. We trust that the court will accept from his lawyers that, since his admission to HMP Belmarsh, the defendant is currently the subject of a battery of tests and medical intervention.

b. In particular, the circumstances of the past last two years he spent inside the embassy since May 2017, after the Swedish and extradition proceedings had concluded (and which period is solely referable to his fears concerning exposure to the USA), have been experienced by him as severe.

c. He has also forfeited significant security.

26. Fourthly, in most situations in which a defendant fails to surrender, his actions have (and are intended to have) a paralytic effect on the predicate criminal process. This case is different. In short, he at all times remained (as he had been until then) willing and available to be interviewed to progress the Swedish investigation. As soon as he entered the embassy, he immediately notified the Swedish authorities of this.

27. In greater detail (and for the sole purpose of setting out the relevant history):

a. The preliminary investigation in Sweden concerned events that occurred in August 2010. The Chief Prosecutor of Stockholm determined that there was no evidence to support an allegation of rape. A public prosecutor in a different city (Goteborg) later reactivated the matter for investigation.

b. Mr Assange voluntarily remained in Sweden to cooperate with the preliminary investigation and, on 30 August 2010, attended for police interview, answering all questions asked of him.

c. On 15 September 2010, the prosecutor informed Mr Assange’s counsel in writing that he was free to leave Sweden, which he did.

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d. On 27 September 2010, the prosecutor issued an arrest warrant.

e. In the weeks that followed, Mr Assange offered to return to Sweden for interview, which offer was rejected by the prosecutor. On 12 November 2010, he offered to be interviewed by telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Swedish embassy, all of which are permissible in Sweden, all of which were declined by the prosecutor.

f. Notwithstanding that Mr Assange had not been charged with any criminal offence, on 2 December 2010, an EAW was issued by the prosecutor (rather than by a court). On 7 December 2010, the defendant voluntarily surrendered himself for arrest by appointment in the UK. 13

g. Those UK proceedings then concerned, inter alia, whether Mr Assange was accused’ in circumstances where Sweden could proceed (but was not proceeding) to interview him to progress its ongoing investigation. Sweden’s position maintained before the extradition court was that 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.

h. What has since emerged (as a result of Freedom of Information requests made by the press) is that the Swedish prosecutor was desirous of interviewing Mr Assange by telephone or in London, but was advised not to do so by the CPS during the currency of the extradition proceedings. The purpose of the following it not to criticise the CPS, but to set out the relevant history:

i. In December 2010/January 2011, the CPS advised the Swedish prosecutor not to question Mr Assange over the telephone nor to question him in London (Maurizi v CPS and the Information Commissioner, First Tier Tribunal, General Regulatory Chamber, Appeal No: EA/2017/0041, [tab 15] §40). 14

ii. On 25 January 2011: the CPS repeated their advice to the Swedish prosecutor not to question Mr Assange: ‘My earlier advice remains, that in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK. Such an interview would need to be pursuant to a letter of request…Even if the defendant was to consent to such an interview [by appointment] on a mutually agreed basis, the defence would without any doubt seek to turn the event to its advantage. It would inevitably allege it was conclusive proof that the Swedish authorities had no case whatsoever against him and hence the interview was in the hope that he would make a full and frank confession. He would of course have no obligation [under English law] to answer any

13. See, generally, the Agreed Statement of Facts and Issues before the Supreme Court in 2012 [tab 4] for the relevant factual history to that point.

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questions put to him. Any attempt to interview him under strict Swedish law would invariably be fraught with problems. General experience has also shown that attempts by foreign authorities to interview a defendant in the UK, frequently leads to the defence retort that that some inducements or threats were made by the interviewers…Thus I suggest you interview him only on his surrender to Sweden and in accordance with Swedish law[tab 9].

i. After Mr Assange entered the embassy on 19 June 2012, he made clear that he remained willing to be interviewed to progress the Swedish investigation [tab 18]. The position, however, remained static.

j. In October 2013, Sweden advised the CPS that it proposed to withdraw the EAW. The CPS persuaded it not to:

i. 18 October 2013: Swedish prosecutor to the CPS: There is a demand in Swedish law for coercive measures to be proportionate. The time passing the costs and how severe the crime is to be taken into account together with the intrusion or detriment to the suspect. Against this background we have found us to be obliged to consider to lift the detention order (court order) and to withdraw the European arrest warrant. If so this should be done in a couple of weeks. This would affect not only us but you too in a significant way[tab 9].

ii. 18 October 2013: The CPS to Swedish prosecutor: ‘I'd like to consider all angles[tab 9].

iii. 21 October 2013: Swedish prosecutor to the CPS I am sorry that this came as a (bad) surprise. It is certainly OK for you to take your time to think this over. Since middle of September I and [redacted] have been discussing the situation and I wasn't sure of it being possible to share our thoughts without you being obliged to notify the defence[tab 9].

iv. 29 November 2013, The CPS to Swedish prosecutor: ‘I must apologise for the time taken to let you have my thoughts. I attach an article from yesterday's [London] Times. I have absolutely no idea what may have prompted the article or what discussions or negotiations may have been going on. I most certainly have not been involved in them. I am not sure to what extent you are aware of this apparent [US] development or if it affects your general views[tab 9]. The two paragraphs that follow have been redacted by the CPS, but appear to be referencing an article about US prosecution prospects.

k. Throughout all this, Mr Assange, through his Swedish lawyers, was proactive in attempting to progress the Swedish investigation, including to facilitate the interview of him [tab 18]. Indeed he brought successive proceedings before the Swedish court to request the Swedish prosecutor to do so. Eventually, the Swedish court ruled that the failure to interview Mr Assange was disproportionate

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(Swedish Court of Appeal ruling dated November 2014 [tab 10], p9), and the prosecutor therefore then did proceed to interview, which finally occurred two years later in the Embassy in November 2016 [tab 13].

l. In conjunction with Mr Assange’s attempts to engage with the investigation, his Swedish lawyers inspected the telephone records of the complainants (see, eg. Swedish Court of Appeal ruling dated 20 November 2014 [tab 10], p3-4). That inspection revealed text messages between the two complainants in which they said, inter alia, that there had been no rape, that it was the ‘police who made up the charges’, and which made reference to selling their stories for money to a tabloid newspaper. One Swedish police statement referred to one of the complainants feeling ‘railroaded by the police and others[tab 18]. 15 When interviewed in 2016, Mr Assange drew attention to these [tab 13].

m. After further investigation, the Swedish investigation was discontinued in May 2017 [tab 14].

28. It is thus clear that it was not Mr Assange’s absence from Sweden that had prevented the underlying Swedish investigation from continuing between 2012 and 2017. He continued to engage and cooperate with it.

Conclusion

29. In all the circumstances, the defendant respectfully invites the Court to reflect the above matters in the sentence it now passes.

Tuesday, April 30, 2019

15. Statement of Peter Samuelson (6 February 2018).

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