Thread by @MacWBishop

Good morning everyone, today is the fourth day of the extradition hearing for Julian Assange. I am again at the Woolwich Crown Court to cover the proceedings as they unfold.

The defense yesterday submitted an application for Assange to be allowed to sit with his legal team in the main courtroom (the “well of the court”) rather than in an enclosure at the rear of the courtroom (the dock).

We are waiting to see if that application has been successful.

Representing the US (prosecution) are James Lewis and Clair Dobbin.

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

The magistrate is District Judge Vanessa Baraitser.

Sidenote: It’s snowing here in London; the kind of heavy wet snow that turns immediately to sludge as it hits the ground.

This has not deterred the pro-WikiLeaks protesters from gathering outside the court building, and their chanting can be heard inside the courtroom.

Assange has entered the dock via a tunnel from Belmarsh Prison, adjacent to the crown court building.

He is, as he has been every day thus far, flanked by two security guards.

Defense team asks for a moment while they speak to Mr Assange about whether or not he would like to use headphones to listen to the proceedings.

It is unclear at this point what has become of the application for Assange to sit outside of the dock with his defense team.

Right now the defense and prosecution are testing their microphones to see if Assange can hear them.

It’s a brief moment of levity in the proceedings.

The hearing resumes.

Lewis, for the prosecution, returns to his arguments from yesterday that there can be no “abuse of process” because there is contained in English domestic law no exceptions to extradition for “political offences.”

In support of his argument, Lewis is quoting at length from Lord Mustill, a liberal law lord who is perhaps most famous for his dissent in a case criminalizing sadomasochism.

So there’s that.

Lewis now hands the judge a copy of a “statutory instrument based upon EU law.”

“It’s quite complicated, I’m afraid,” Lewis adds. He begins reading from the document. The point of all this again is to establish that the “political offence” exception has no bearing here.

In the Extradition Act 2003, Parliament intentionally removed the political offence exception to extradition, Lewis says, adding this was because of the “outmoded and outdated” political offence exception that developed as a legal response to the European revolutions of 1848.

Sidenote: I’ve always thought the 1848 European Revolutions & their subsequent cultural impact on Europe & the Americas make a fascinating topic for study.

A number of Union officers in the US Civil War were “48ers,” guided by their political beliefs to fight against slavery.

Assange is not wearing the headphones. He is frequently sitting with his eyes closed, as Lewis reads from case law at length.

Lewis returns to the idea that the allegations contained in the US indictment are that Assange leaked unredacted documents containing sensitive names of sources, thereby putting those sources at risk. He argues that this is inherently not a political act, but a criminal one.

Defense will respond to this line of reasoning established by the prosecution over the past two days after a short recess, it appears.

The hearing now resumes, with Fitzgerald (defense) outlining his argument that the US/UK extradition treaty does not rely on the Extradition Act 2003 to establish the “political offence” exception.

We return to the point about whether the incorporation of the US/UK extradition treaty into English domestic law is a matter of importance or not.

Fitzgerald argues: as the US/UK treaty is the basis for the extradition request, it remains significant for analyzing that request.

Article 5 of the European Convention on Human Rights is incorporated into Extradition Act 2003, Fitzgerald argues.

For those unfamiliar, Article 5 ECHR establishes that a person cannot be deprived of liberty without due process of law. US equivalents in 5th & 14th Amendments.

One of the cases that Fitzgerald keeps referring to is USA v Tollman, in which the US sought extradition of a US citizen on tax evasion charges. It is one of the rare cases in which extradition was denied on grounds of “abuse of process.”

Here: martinandassociates.ca/wp-content/upl…

The idea that the court cannot interpret legal provisions of a treaty is belied by centuries of courts doing exactly that, Fitzgerald says.

He’s attacking prosecution’s argument that an extradition hearing must confine itself to only what is incorporated in English domestic law.

The defense is giving a lot of play to Dr Julia Jansson’s book “Terrorism, Criminal Law and Politics,” as it contains a number of specific passages about WikiLeaks.

We return to Fitzgerald asserting the 18 charges contained in the US superseding indictment against Assange are of a “purely political” nature.

This is part of debate between defense and prosecution as to whether the offence is intended to “induce a change in government policy.”

Fitzgerald brings up the Iraq rules of engagement documents and “collateral murder” apache attack video leaked by WikiLeaks, saying: What other point could there be than to show that the conduct of the war was in contravention of established rules of war and human rights?

These actions were inherently intended to alter US government policy, Fitzgerald argues, closing the loop on his line of reasoning that Assange is being charged with a “political offence.”

Baraitser is asking the defense & prosecution if they agree that witnesses expected to testify about alleged surveillance of Assange in the Ecuadorean Embassy can be kept anonymous (a requirement due to an ongoing legal proceeding in Spain).

We will now break for lunch and return to this issue afterwards.

Julian Assange’s extradition hearing now resumes after a lengthy lunch break.

Summers, for the defense, is telling Baraitser that the headphones provided by the court are not particularly helpful for Assange.

Summers: “We have now been in this court for four days, and Mr Assange has dealt with the proceedings stoically.”

Summers adds there are practical issues with conducting a defense of Assange, including the fact that the dock is at the back of the courtroom.

Baraitser is suggesting that there are practical methods for passing notes to Assange which can be arranged.

Summers adds that the presence of microphones in the courtroom and the presence of US government personnel makes it difficult for the defense to consult with the client.

Summers responds that moving forward it will be essential to communicate regularly and freely with Assange.

Baraitser says she is happy to give as many breaks as needed so that the defense can confer with their client privately outside the courtroom.

“If a three-week hearing needs to become a six-week hearing, so be it,” Baraitser says.

Summers continues to argue that this would be impractical for conducting a thorough defense, noting that it would be hard to stop proceedings every two or three minutes...

...for the defense team to meet with Assange to take instructions in a location outside of the courtroom.

Summers is arguing that keeping his client in a glass enclosure prevents a fair hearing from being conducted. He is citing instances in which other courts have ruled this to be the case.

The right for the accused to confer with their lawyer without fear of being overheard by a third party is an essential part of a fair trial, Summers said.

Baraitser says it’s a bit of an exaggeration for Summers to say that the proceedings would have to be halted every 2-3 mins.

Summers is not backing down.

“In short,” he says, “the European Court regarded [a similar setup] as completely incompatible with the right to a fair hearing.”

“We remind you, madam, of Mr Assange’s particular vulnerability,” he adds.

The solution we invite you to undertake, Summers says, is to permit Assange to sit with his attorneys.

This is the practice around the world, he adds.

Surrendering to the dock is a separate process from surrendering to the Crown Court, Summers says. Someone can be in custody of the court without being in custody of the dock.

“The authorities on this are legion,” Summers says.

For vulnerable clients there is no requirement to enter the dock, Summers continues. The issue is whether defendants are being properly supervised.

Summers says that Baraitser has jurisdiction on this matter, and the magistrate agrees that she does.

What we are asking for in this case, Summers says, is regarded as not unusual by the UK’s criminal justice system.

Summers says that it is unnecessary for the defense to make an application for bail as per the defense’s understanding of the concept of custody.

Summers says that the prosecution does not contest this issue.

“What we are seeking is not exceptional treatment,” Summers says.

Assange interrupts.

Baraitser asks him to speak through his lawyers.

“That’s exactly the problem,” Assange says.

Summers notes the impracticalities of knowing when his client has an issue with the proceedings without discreet access to his client.

Lewis for the prosecution says that they are completely neutral on this issue.

Baraitser tells Assange: This court has an overriding responsibility to ensure the conduct of a fair trial.

It is quite apparent over the past four days that you have had no difficulty in communicating with your legal team, Baraitser says.

Baraitser adds that she has been willing to repeat or stop the proceeds whenever Assange has raised his hand to indicate he was having trouble hearing.

This court routinely conducts proceedings with defendants in the secure dock, Baraitser says.

There are measures which can be taken to ensure Assange has sufficient private access to his attorneys outside the courtroom, Baraitser says.

Regarding Assange’s various psychiatric vulnerabilities, Baraitser says she has received no specific information about conditions...

...which might affect his ability to participate in the proceedings.

The application to leave the dock is denied, Baraitser concludes.

Fitzgerald, for the defense, returns to the discussion about how anonymous witnesses will appear during the evidentiary phase of the extradition hearing.

A brief recess while defense discusses how they intend to proceed.

The hearing resumes.

Fitzgerald and Baraitser are working out whether Assange can appear at a related portion of the hearing in Westminster via video link; this is a logistical discussion more than a legal one.

One thing that may be of interest to some: Baraitser said it was at defense’s request that this portion of the hearing be held at Woolwich Crown Court beside Belmarsh, instead of Westminster, in order to simplify travel arrangements for Assange.

I say it is of interest as some have asserted that the hearing being held in Woolwich Crown Court was evidence of bias against Assange.

I’ll follow up with the defense team when possible to see if I understood this correctly.

We are in another short recess.

Hearing resumes, and concludes. The evidentiary portion will continue on May 18.

Every 28 days Assange must appear before the court as a procedural matter, Baraitser says. So there will be an appearance on April 25.

That’s all for now, thanks to everyone for following along.

Kristinn Hrafnsson speaking now outside the court, saying it is a great disappoint Assange was not allowed outside the dock.

Hrafnsson says that Assange was unable to communicate discreetly with his defense team because of the presence of American officials and security staff in the dock.

“This is not a fair trial,” Hrafnsson says. “I am absolutely outraged.”

We are talking about a publisher and a journalist put into a glass cage, Hrafnsson says, questioning the impartiality of Baraitser.

Assange’s father repeats that the prosecution’s case is built on “lies, lies and more lies.”

He asserts the proceedings are a continuance of the “psychological torture” of Assange.

Jennifer Robinson, one of Assange’s attorneys, says the US has misrepresented facts in the case against him.

She adds that the case is “setting a terrible precedent for press freedoms.”