Thread by @MacWBishop

Good morning. It’s day three of the extradition hearing for Julian Assange at Woolwich Crown Court. We will be getting started shortly and I will again be following the proceedings.

Appearing for the US (prosecutors) are James Lewis and Clair Dobbin.

Appearing for Assange (defense) are Edward Fitzgerald, Mark Summers and Florence Iveson.

District Judge Vanessa Baraitser is magistrate.

My understanding based upon the close of yesterday’s proceedings is that the court will be hearing details about the extradition request as it relates to the UK’s Extradition Act 2003 and the US/UK extradition treaty.

For those interested in familiarising themselves with the 253-page Extradition Act, it’s here: legislation.gov.uk/ukpga/2003/41/…

I haven’t found a good pdf version of the US/UK extradition treaty, but I did find a 488-page review of the UK’s extradition arrangements which discusses it at length. The relevant section on the US/UK treaty starts at page 231.

assets.publishing.service.gov.uk/government/upl…

I’m happy to share that light reading with you as you start your day.

The magistrate has joined us, and we are now waiting for Assange.

Assange has joined us.

The magistrate is now noting that a photo was taken in the courtroom “this week”; she adds that it is a criminal offence to take a photograph in a courtroom, and that if the person is identified they will be arrested and held in contempt of court.

Fitzgerald begins by discussing the fact that 17 of the 18 charges are under the Espionage Act; the 18th is conspiracy to commit computer intrusion.

The magistrate is asking him to summarise his position.

He is now discussing the US/UK extradition treaty, and noting the provision against extradition for “political offences.”

Fitzgerald says the US/UK treaty itself is part of the legality of the extradition request; he is noting that the UK’s Extradition Act 2003 does not contain the same exception for “political offences” as does the treaty. But, he argues, the US/UK treaty’s provision still applies.

Sidenote: for the second day, there is a flamboyantly dressed individual across the courtroom from me observing the proceedings with a monocular. I find the monocular very distracting.

Fitzgerald is trying to establish that Assange’s detention is “unlawful,” under Article 5 of the ECHR.

The magistrate replies that if Fitzgerald is seeking to establish that Assange’s detention is unlawful, Defense must establish that it is unlawful under English law.

Fitzgerald is citing various precedents in an effort to establish the connection between English law and Article 5 of the ECHR, as it relates to whether detention is lawful or unlawful.

Fitzgerald is tying it together now: the bigger point he is trying to establish is that in his view Assange is being extradited for political offences, which he says he has established is illegal under English domestic law, Article 5 of the ECHR and the US/UK extradition treaty.

The magistrate is asking for further precedent and clarification about the legal point Fitzgerald is trying to establish.

Fitzgerald then turns to the prosecution’s submissions of precedents, dismissing it as an effort to assert English domestic law has no bearing on its treaty obligations: “You’ll see the whole sad litany of cases attempting to establish a disregard for international law.”

Fitzgerald is connecting US Constitutional requirement for due process to ECHR & even Magna Carta as establishing provisions against arbitrary detention - which is what Assange’s detention amounts to, Fitzgerald says, as he’s being held for extradition over “political offences.”

Fitzgerald has taken it back to establishing that regardless of whether “extradition for a political offence” is banned under English domestic law (the 2003 Act), the fact that it is established as a fundamental right under Magna Carta, Article 5 of the ECHR, and...

...the 4th Amendement to the US Constitution as recognised via the US/UK Extradition Treaty, the court must recognise that an extradition request must be legal in accordance with these legal obligations.

I’m sorry I wrote that so tortuously. It makes sense in my head.

The point is Fitzgerald is saying that Assange is being held for a political offence, and that this is in breach of these conventions and treaties, and therefore he should not be extradited...

Fitzgerald giving a shout out to @drjuliajansson and her book “Terrorism, Criminal Law and Politics”

amazon.co.uk/Terrorism-Crim…

Magistrate Baraitser seems unimpressed by the lengths to which Fitzgerald has sought to establish that there is a legal requirement “not to extradite for a political offence,” noting that this provision was removed from the UK’s Extradition Act 2003.

The removal of the provision “is not determinative,” Fitzgerald replies.

“But it can’t be ignored,” Baraitser responds.

“I cannot pretend these are easy issues,” Fitzgerald says. “But they are fundamental.”

The magistrate asks Lewis if the prosecution contends the “political offence” argument being made by the Defense. Lewis says that it does.

We will continue hearing about this issue after a short recess.

*contests

The hearing now resumes.

Fitzgerald is addressing whether the espionage-related charges outlined in the US indictment against Assange amount to a “political offence.”

The full US indictment is here: justice.gov/opa/press-rele…

Fitzgerald is working to establish that the 18th charge of the US indictment against Assange, “Conspiracy to Commit Computer Fraud,” amounts to an espionage offence.

This is an important point for the defense, as it tries to establish espionage is a “pure political offence” and not a criminal offence; 17 of the 18 charges in the US indictment are under the Espionage Act; only the 18th charge “Conspiracy to Commit Computer Intrusion” is not.

Shout out to the Hungarian Uprising of 1848 en.m.wikipedia.org/wiki/Hungarian…

Fitzgerald is raising a point about legal protections for those accused of “pure political crimes” dating back to legal issues for participants of this revolution who subsequently fled to England.

At issue is the conceptual difference between offences of a political character versus ordinary criminality, Fitzgerald says. The English legal system has broadly divided these into common crimes, purely political crimes and crimes of a political nature.

Purely political offences are of a non-extraditable nature, Fitzgerald is arguing. Under this line of reasoning it is essential for Fitzgerald to establish that all of the charges against Assange fall under this category of political offences, and not common criminality.

Fitzgerald is now quoting from Fox News calling Assange a “terrorist,” using this to assert that the political nature of the charges against Assange are evident.

*is evident

The UN draft treaty on extradition, the European Convention and the Interpol convention all contain general prohibitions against extradition for political offences, Fitzgerald says, continuing at length the defence argument that consequently Assange should not be extradited.

Fitzgerald posits a theoretical scenario in which an NGO representative working in China were to make public Chinese government figures on the number of people executed there each year, and was then charged with espionage.

He’s using this scenario to demonstrate that an espionage charge can be levelled in an instance of an alleged crime of a “purely political nature.”

This protection against extradition for political offences is of significant and fundamental importance, in order to protect those who disclose information “uncomfortable or inconvenient” for powerful governments, Fitzgerald says.

We will break now for lunch; we will continue hearing more of this reasoning from the defence after the break.

Ok I’ve received the defence submission outlining their arguments today. Document dump follows.

The hearing now resumes, with the defence continuing its arguments as outlined in the summary I just posted.

Lewis for the prosecution is now speaking, saying “there are fundamental errors in the arguments presented by my learned friend [Fitzgerald].”

Assange is not entitled to derive any rights from the US/UK extradition treaty, Lewis argues, as the treaty has not been incorporated into English domestic law.

Abuse of process requires a bad faith action that deprives the accused of their rights to challenge & appeal the extradition, Lewis says, which is simply not the case. Further, the prosecution contests that the indictment against Assange includes charges of a “political offence.”

The defense is asking the court to make a determination as to whether the charges are political offences as might be determined by a US court, Lewis says, which is not the function of an extradition hearing.

Lewis is walking through various citations which support the argument that courts in the UK do not have the authority to apply rights contained in treaties or international law, which are not established in English domestic law.

“Parliament did not see fit to incorporate the ‘political offence’ exception” in the 2003 extradition act, Lewis says. “That is a full-on answer to the argument of ‘abuse’ [of process].”

Sidenote: I’ve never heard anyone use the word “pellucid” in real life before; now I’ve heard it three times in as many days.

“‘The executive is not a source of law in the United Kingdom,’” Lewis reads, therefore any treaty entered into by the crown cannot be regarded as a source of law unless it has been incorporated into domestic law by Parliament.

The magistrate now asks if Assange is happy to continue, noting that he appears tired.

Assange stands and responds, complaining that “the problem is I cannot participate, I cannot privately communicate with my lawyers.”

The magistrate interrupts him and instructs him to speak through his attorney, Gareth Pierce.

Assange continues to object, saying he cannot participate as he cannot communicate privately with his lawyers.

The magistrate informs Assange that the correct procedure is to speak through his lawyers, and that an exception will not be made in his case.

Assange continues to try to speak.

The magistrate calls a five-minute recess.

Gareth Pierce asks the security personnel if she can enter the enclosure where he is being held, she is told no. She tells Assange she will “go down” to communicate with him, and he is taken away.

There is presumably an area outside of the courtroom where Pierce is able to confer with her client.

“I am as much a participant in these proceedings as a spectator at Wimbledon,” Assange told the magistrate at the outset of the exchange. If I heard correctly, he alleged that there were “unnamed embassy staff” in the courtroom listening to his discussions with his lawyers.

Assange is now back in the courtroom.

His defense team remains outside conferring.

One note about the setup of the courtroom to clarify all this:

Assange is seated on a bench in a glass-enclosed area at the back of the courtroom. If he wishes to speak directly to his lawyers, he must do so through gaps in the bullet-proof glass of the enclosure.

Defense is asking whether Assange could be removed from the dock (the glass enclosure), and could sit with his Defense team, saying that they understand the prosecutors do not object to this.

Baraitser says that she suspects the security team will not agree to this.

Baraitser asks Fitzgerald if he really thinks she is able to adjudicate on a matter related to security, or if he wishes to make an application for bail to permit Assange to leave the dock.

Fitzgerald says that the defense team will make an application for bail to allow Assange to sit outside the dock.

Lewis says that the prosecution has no issue with Assange sitting in the well of the court with security officers on either side, but that they will not agree to him being released from custody.

Surrender to the court involves surrender to the dock, Baraitser says, adding that release from the dock requires an application for release from custody and therefore an application for bail.

Lewis, Fitzgerald and Baraitser agree that they will take a night to consider how to proceed with regards to Assange staying in the dock, or sitting beside his defense attorneys in the “well of the court.”

The hearing proceeds with Assange remaining in the dock for the present.

After the brief burst of relative drama regarding Assange’s ability to communicate with his attorneys, we carry on with Lewis belaboring rather dry points of law with regard to the relationship between international treaties and English domestic law.

The defense is trying to get a non-established right in through the back door, by attempting to create that right using the guise of “abuse of process,” Lewis is arguing, saying that if you incorporate a right using an unincorporated treaty, you deny Parliament’s sovereignty.

Clair Dobbin confers with Lewis, who clarifies: It would not be right to say that a right has been abolished by omission: the [2003] Act describes what the court can take into account, eg Is there a bar to extradition or is there not?

Outside of what is described in the 2003 extradition act, “you cannot introduce other matters into the hearing as applicable” for abuse of process, Lewis says.

“Parliament has expressly abrogated the ‘political offence’ exception,” Lewis says. “The Parliamentary intention was to remove it.”

“Madam, that really is determinative of the issue,” Lewis says, adding that extradition hearings have very limited jurisdiction.

We pause once again as the magistrate inquires whether Assange is able to continue.

Gareth Pierce is conferring with Assange.

Pierce and Fitzgerald now conferring; they both go back to the dock to speak to Assange.

“Mr Assange is prepared to soldier on,” Fitzgerald tells the court.

Whether there is a legal difference in interpretation between the phrase “political offence” in the US and UK is now at the center of the discussion.

Baraitser asking Lewis to clarify if his assertion is that the term “political offence” is legally the same in the US and the UK.

We pause the proceedings; Assange (through Gareth Pierce) tells his defense team that he is having difficulties.

The court adjourns.

Assange raises his fist above his head toward his supporters in the public gallery as he exits the dock.

The hearing will continue tomorrow.