JA Mitigation

IN THE SOUTHWARK CROWN COURT BETWEEN: REGINA v

JULIAN PAUL ASSANGE Defendant  _____________________  _________________________________ _______________________ ______________________ ____________ _  NOTE OF MITIGATI MITIGATION ON  _______________________  __________________________________ ______________________ _____________________ __________ For hearing on 1 May Ma y 2019 before HHJ Taylor

Chronology 1.

On 24 February 2011 the de fendant’s extradition 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 dismiss ed (the High Court holding (a) that Mr Assange was ‘ accused’  in   in Sweden despite not having  been charged charged there and (b) (b) that the Swedish prosecutor was was a ‘ judicial  judicial authority’  authority’  for  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, address, (b) to report daily to a police station, (c) wear an electronic tag, and (d) to surrender 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 def endant entered ent ered the Ecuadorian Ecua dorian embassy. The reason for so doing related to his publically expressed fear that he would surrendered to the USA by Sweden, 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). 1

7.

On 28 June 2012, in accordance with R with R (Hart) v Bow Street Magistrates’ Court  [2002]  [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 defendant failed to surrender as required.

8.

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

9.

On 16 August 2012, the defendant’s humanitarian humanit arian diplomatic dipl omatic asylum status was declared declared  by Ecuador, Ecuador, based upon its assessment of a well-founded well-founded risk of him being refouled  by  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 Assange’ s asylum situation sit uation might afford him a substantive defence (reasonable excuse) to a Bail Act charge ‘cannot ‘cannot be excluded’  (p5).  (p5).

11.

In the same vein, on 4 December 2015, the UN Working Group on Arbitrary Detention (‘UNWAG’) ruled (‘UNWAG’) ruled (opinion ( opinion 54/2015) 54 /2015) that the defendant was being involuntarily deprived of his liberty in the embassy (being forced to choose between remaining in t he 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 discont inuance of the underlying under lying Swedish investigation inves tigation 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 Bail Act, in the 2 event that the defendant left the embassy.

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 referr ed to above). The defendant def endant pleaded ple aded not guilty guilt y but but was convicted, and committed to this Court for sentence.

1. 2.

Re-issued on 15 July 2014 owing, it is believed, to a technical fault in the first warrant. 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. 2

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, First, the background back ground to, and the t he defendant’s defenda nt’s reasons re asons for, failing to surrender (even if they do not constitute a defence to the charge) constitute constit ute a serious explanation explanation for his conduct: conduct: a. As will be known, Wikileaks published, in November 2010, together with others a significant number of redacted U.S. U.S. State department diplomatic ‘cables ‘ cables’’ allegedly 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’ enemy’, a capital offence which carried the death sentence. d. Manning was then th en held at the Marine Corps Cor ps Brig, Quantico in Virginia, from July 2010 to April 2011 under ‘Prevention of Injury’ Injury’  status, which entailed de  solit ary confinement and other restrictions restr ictions (including sleep deprivation deprivation and  facto solitary  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 onward refoulement  once  once in Sweden to the USA (and of being subjected to similar treatment t reatment to that which Manning Manning had had received): 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 t here 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 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 …’ (Senior District Dis trict Judge J udge Riddle, judgment, 8 October 2012,  proceedings  proceedings…’ (Senior [tab 8] p.12).

3.

See, e.g. https://www https://www.theguardian.com/w .theguardian.com/world/2011/mar/15/bradley-manning orld/2011/mar/15/bradley-manning-military-doctors-treatm -military-doctors-treatment ent (Guardian, 15 March 2011); https://www https://www.theguardian.com .theguardian.com/world/2011/apr/10/bradley-mannin /world/2011/apr/10/bradley-manning-legalg-legalscholars-letter (Guardian, scholars-letter  (Guardian, 10 April 2011). 3

f.

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

g. It was publically publi cally known from fr om 2010 that US prosecuting authorities had opened an investigation into Mr Assange and it was feared that he might be the subject of a 5 sealed US indictment. 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 6 WikiLeaks founder Julian Assange being delivered into American custody ’. i.

In February 2012, the UN U N Special Rapporteur on Torture confirmed that Manning 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, had , at the material ma terial time, a well-documented history of direct refoulement  of persons to states in which they were at significant risk of ill-treatment, 8 including torture and death. 4.

5.

6. 7. 8.

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 emba ssy cables culprit should should be executed, says Mike Huckabee: Republican presidential hopeful wants the person responsible for the WikiLeaks cables to face capital punishment for treason’ , 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 figures have called for the death penalty to be imposed on the person who leaked sensitive documents to whistle-blower website WikiLeaks WikiLeaks as anger intensified against those responsible for the international relations crisis’ , crisis’ , The Telegraph, 10 January 2011) (https://www.telegraph.co.uk/news/worldnews/wikileaks/8172916/WikiLeaks-guilty-parties-shouldface-death-penalty.html)). Sarah Palin, former Republican Vice-Presidential candidate, had said that Mr. face-death-penalty.html Assange ‘should be hunted down just like al-Qaeda and Taliban leaders ’, The Telegraph, 30 November 2010 (https://www https://www.telegraph.co.uk/new .telegraph.co.uk/news/worldnews/w s/worldnews/wikileaks/8171269/Sarah-Palin-hunt-WikiL ikileaks/8171269/Sarah-Palin-hunt-WikiLeakseaksfounder-like-al-Qaeda-and-Taliban-leaders.html)). founder-like-al-Qaeda-and-Taliban-leaders.html 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 was a ‘ priority’   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 inside the embassy in London’ . (Washington Post, 3 May 2017)  Ecuadorean (https://www https://www.washingtonpost.com .washingtonpost.com/news/post-politics/w /news/post-politics/wp/2017/05/03/read-the-full-testimony p/2017/05/03/read-the-full-testimony-of-fbi-of-fbidirector-james-comey-in-whichdirector-james-comey -in-which-he-discusses-clinton-e he-discusses-clinton-email-investigation mail-investigation)). CIA director Mike Pompeo stated Mr Assange has ‘ no first amendment rights ’ (The Intercept, 14 April 2017) (https://theintercept.com/2017/04/14/trumps-cia-director-pompeo-targeting-wikileaks-explicitly-threatensspeech-and-press-freedoms)). The then US Attorney General Jeff Sessions said publicly in 2017 that Mr speech-and-press-freedoms Assange’s arrest is a ‘ priority’   for the Trump administration (Guardian, 21 April 2017) (https://www.theguardian.com/media/2017/apr/21/arresting-julian-assange-is-a-priority-says-us-attorneygeneral-jeff-sessions)). general-jeff-sessions https://www.independent.co.uk/ne https://www .independent.co.uk/news/uk/crime ws/uk/crime/assange-could-face-espiona /assange-could-face-espionage-trial-in-us-2154107.html ge-trial-in-us-2154107.html (Independent, 8 December 2010). https://www.theguardian.com/world/2012/mar/12/bradley-m https://www .theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhu anning-cruel-inhuman-treatment-u man-treatment-un n (Guardian, 12 March 2012) Sweden had been the subject of a number of judgments related to this practice: see e.g.  A.S. v Sweden, Sweden , Communication Communication No. 149/1999, U.N. Doc. A/56/44 at 173 (20 01); Karoui 01);  Karoui v Sweden, Sweden, Communication No. 185/2001, U.N. Doc. A/57/44 at 198 (2002); C.T. & K.M. v Sweden, Sweden , Communication No. 279/2005, U.N. Sweden  (2008) 46 EHRR 13;  RC v Sweden (2010) Sweden  (2010) App. Doc. CAT/C/37/D/279/2005 (2007);  Bader v Sweden (2008) 4

l.

Regarding the USA in particular, Sweden also had, at the material time, a long and unfortunate unfort unate history his tory of illicit illi cit 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 UN’s Committee Against Torture’s disturbing judgment in in Agiza  Agiza v Sweden (2005) Sweden  (2005) Communication Communi cation No. 233/2003) 233/ 2003) (particularly (part icularly §§10.2, 11.4, 12.2830, 13.4-5) and the UN’s Human Rights Committee’s judgment in  Alzery v Sweden (2006) Sweden  (2006) Communication No. 1416/2005) (particularly §§3.10-11 & 11.611.67). In short, Sweden had passively allowed US military personnel to mistreat detainees detain ees on Swedish Swedis h soil (including (inc luding stripping, blindfolding, blindfolding, hooding, hooding, manacling, forcible sedation by forced anal suppository, handcuffing into specially designed stress position harnesses etc.) and in delivering them to torture in third third states. The The  judgments talk about about ‘total surrender of power’  by  by Sweden to the US authorities.

m. There existed no legal remedy available to him in the UK to protect against being  by Sweden to the USA. 9 refouled  by 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  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 humanitarian diplomatic asylum status was recognised (declared) by Ecuador, based upon its assessment of a well-founded risk of him being refouled  by  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 (‘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 the possibility that Mr Assange’s asylum Assange’s asylum situation might afford him a substantive defence in law (reasonable excuse) to a Bail Act charge ‘cannot be excluded’  [tab  [tab 8, p5].

9. 10.

11. 12.

Sweden , Merits, UN Doc CAT/C/44/D/322/2007 (UNCAT 41827/07, March 9;  Njamba & Balikosa v Sweden, Sweden (2010) App. 23505/09, July 20; Aytulun Sweden, Merits, Communication 2010); N 2010); N v Sweden (2010) 20; Aytulun & Güclü v Sweden, Communication  Agiza and Alzery  Alzery referred  No 373/20 09, UN Doc CAT/C/45/D/373/2009 (UNCAT 2010). See also  Agiza and  referred to  below.  Khemiri & others v The Court Court of Milan Italy [2008] Italy [2008] EWHC 1988 (Admin). 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). penalty). In August 2013, Manning was sentenced sentenced to 35 years' imprisonment. http://www.ohchr.org/Docum http://ww w.ohchr.org/Documents/Issues/Detention/A.H ents/Issues/Detention/A.HRC.WGAD.2015.docx RC.WGAD.2015.docx The ECHR likewise recognises that someone’s freedom of choice in such a situation becomes ‘theoretical’ ‘theoretical’ See eg. Amuur eg. Amuur v France (1996) France (1996) 22 EHRR 533, §48. 5

23.

DJ Snow ruled otherwise, and the defence have not challenged that le gal 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 significant consequen consequences ces 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 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. evidence. We attach for the Court’s information earlier medical evidence from psychologist Dr Michael Korzinski (considered by the UNWAG and updated in i n 2017) outlining the psychological 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 investi gation. 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 invest igation and, a nd, on 30 August 2010, attended for police interview, answering all questions asked of him. c. On 15 September 2010, the prosecutor infor med med Mr Assange’s counsel in writing that he was free to leave Sweden, which he did. 6

d. On 27 September 2010, the prosecutor issued an arrest warrant. e. In the weeks that t hat followed, foll owed, Mr Assange Ass ange 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 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, 2010, the defendant voluntarily voluntarily surrendered himself  13 for arrest by appointment in the UK. 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 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 allegations made against 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 Decembe r 2010/January 2010/J anuary 2011, the CPS advised the Swedish prosecutor not to question Mr Assange over the telephone nor to question him in CPS and and the Information Commissioner , First Tier London ( Maurizi v CPS 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  the defendant was to consent to such an interview [by appointment] on a mutually agreed basis, the defence would woul d without any doubt seek se ek 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 fran k confession. He would of course have no obligation [under English law] to answer any 13. 14.

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. http://download.repubblica.it/pdf/2017/esteri/decisione-maurizi.pdf .. http://download.repubblica.it/pdf/2017/esteri/decisione-maurizi.pdf  7

questions put to him. Any attempt to interview him under strict Swedish law would invariably be fraught with wit h problems. General experience 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 inducemen ts or threats were made by the interviewers…Thus I suggest  you interview him only on his surrender to Sweden and in accordance accordance with Swedish law’ [tab 9].

i.

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

 j.

In October 2013, 2013 , Sweden advised advi sed the CPS C PS 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 coerci ve measures to be proportionate. proportiona te. The time passing the costs and how severe the crime is to be taken into account together with the intrusion i ntrusion or detriment det riment to the t he suspect. Against this background background we have found us to be obliged to consider to lift the t he detention order (court (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 consider all angles’ [tab 9]. iii. 21 October 2013: Swedish prosecutor to the CPS ‘ I  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 i t being possible to share our 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  yesterday's [London] Times. I have absolutely no idea what may have  prompted the article or what discussions or negotiations may have have been 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 [ta b 18]. Indeed he broug brought ht successive proceedings before the Swedish court to request the Swedish prosecutor to do so. Eventually, the Swedish court c ourt ruled rul ed that the t he failure to interview Mr Assange was disproportionate 8

(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 [ta b 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 mes sages between the two complainants in which they said, inter alia, that there had been no rape, that it was the ‘ police who made up made  reference to selling their stories for money to a the charges’, and which made reference tabloid newspaper. One Swedish police statement referred to one of the 15 complainants feeling ‘ railroaded by the police and others ’  [tab 18].   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 Swe dish investigat inve stigation ion from continuing between 2012 and 2017. He continued 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 Mark Summers QC Matrix

15.

Statement of Peter Samuelson (6 February 2018). 9