District Judge Howard Riddle set bail yesterday for this year’s most notorious Aussie, Julian Assange. And yet Assange sits in custody. It’s not as if Judge Riddle gave him a free ride, the bail amount and conditions being rather stringent.
Mr Assange was granted bail on condition he provides a security of £200,000 to the court, with a further £40,000 guaranteed in two sureties of £20,000 each.
Mr Assange must also surrender his passport, obey a curfew at an address in Suffolk, wear an electronic tag and report to a local police station every evening.
Short of keeping his grandmother in shackles, this seemed calculated to assure his return to court, plus some. Not wanting to be unduly naive, given who this is about, at least Judge Riddle found a way to release Assange despite the overwhelming scrutiny of the world and the less-than-secret reason for it.
And yet Assange sits in custody.
But he will remain in prison pending an appeal against the bail decision lodged by Swedish prosecutors.
Curiously, the Swedes had a voice in a British courtroom.
Lawyer Gemma Lindfield, representing the Swedish authorities, argued on Tuesday that the court had “already found that Mr Assange is a flight risk” and “nothing has changed since last week to allay the court’s fears in this regard”.
But District Judge Howard Riddle disagreed, saying that questions about Mr Assange’s place of residence and the circumstances of his arrival in the UK had both now been cleared up.
Not being a barrister, and in fact lacking even such basic accoutrements as a horsehair whig. this procedure strikes me as bizarre and inexplicable. One might assume that there would be person speaking for the Crown as to whether Julian Assange should be allowed to walk free on British soil during the pendency of his extradition proceedings, playing the role of prosecutor. From my mindset, that would be the person to speak out, whether for or against, bail for Assange.
Apparently, there’s a Swedish exception, with Gemma Lindfield filling the post on behalf of a foreign nation’s mouthpiece. Perhaps some Brit lawyer can explain why they let a lawyer representing a different sovereign play second prosecutor.
That the Swedes might take issue with the decision of Judge Riddle to set bail isn’t controversial. When they picked back up the dropped charges against Assange, it became clear that certain Swedish powers were determined to make sure that Julian Assange was nailed to the wall. That much is clear, as the charges belying his custody just can’t explain the Swedish action or reaction.
What doesn’t make a great deal of sense is that an appeal by the Swedes of Judge Riddle’s bail decision (assuming they have any right to appeal a decision in a British court at all) keeps Assange behind bars. That’s the whole point of bail, to not hold a person in custody. Does the mere incantation of the words, “I appeal,” suffice to stop the process dead in its tracks and keep a human being in jail until such time as an appellate court decides?
Well, apparently so.
The idea of maintaining the status quo ante isn’t novel, but we aren’t talking about a stay of judgment here. This is the freedom of a human being at risk, and every week, day, second, imprisoned is one that he’ll never get back. It’s not as if the prosecution can take an elevator ride to the higher court and obtain an immediate hearing. Assange is sitting in a cell despite the fact that the last decision is one that granted him bail. And he waits while the lawyer for a foreign power disputes the conclusion of a British judge.
Perhaps this process seems perfectly normal to lawyers across the pond. I realize that others take a different view of freedom and due process, and it may well be that a few more days, weeks, months in a jail cell awaiting a determination despite the fixing of rather onerous bail conditions for release remain in place.
But to these old, Yankee eyes, this strikes me as an inexplicable process that demeans both the decision of the British judge as well as the value of a person’s liberty. If the Brits want to let the Swedes intervene in their court system, that’s their business as much as it seems absurd to me. The Swedes will get their chance to do damage to Assange when and if extradition is granted.
In the meantime, let Assange meet the bail conditions set and breathe free air. Until he has to report every evening to the bobbies, of course, since an ankle bracelet obviously isn’t good enough to let them know where he is.
Update: Julian Assange’s bail has been upheld, and assuming its posted, he’ll be off to the country for the holidays. (I’m awaiting an invite to join him in a toddy, by the way).
On the downside, the time between the grant of bail, not to mention his initial bail application when bail should have been granted, and the rejection of the Crown Prosecution Service’s appeal is lost forever. I can’t help but wonder whether this makes Sen. Joe Lieberman happy or sad.
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I’m only a few hundred miles away, albeit in a republic with a written Constitution, rather a few thousand, but I share your puzzlement. And his mail is being censored – a man against whom there are, apparently, still no formal charges, never mind a conviction. Not alone that, but he is not permitted newspapers of his choice !
The Swedes, we are told, seek his return on a European Arrest Warrant, an EU fast-track extradition procedure rushed through after – you guessed – “911”.
Well, 9/11 changed everything, you know.
It’s a bit unusual, yes, and the system definitely has elements that are controversial here, but it doesn’t strike me as all that weird, no – no weirder than many other aspects of our system that mystify you, or of yours that mystify us. So I’m that “Brit lawyer” you mention, I guess!
The idea of the European Arrest Warrant is to abolish old-style extradition within the EU. If you like that model, and think there should be no handover without a prima facie case being established first in the country the suspect happens to be in, then the EAW is all wrong in principle.
If on the other hand you think EU states should treat each other less like foreign countries, more like states in the same country, then you might think the old extradition model was wrong. I don’t know how inter-state extradition works in the US – is it as demanding as extradition outside the US? If not, well, the EAW is an attempt to move the EU towards a model like that.
In any case, don’t forget that international extradition isn’t much more demanding than EAW extraditions now. If the US were trying to extradite Assange from the UK, he’d be subject to more or less the same rules. There might well have to be a grand jury indictment or something, but it’s your system that would require that, not ours. I know you’re not defending that.
As for the Swedes being represented in court, well, the Crown Prosecution Service is instructing Gemma Lindfield, and in fact according to a Swedish prosecution spokeswoman the decision to appeal against bail was taken by the CPS alone. I’m trying to get to the bottom of that. The EAW system gives the CPS the role of representing the requesting state prosecutor, which is why she’s described as speaking for them.
Of course you make a good point about his being held in custody pending the bail appeal. That’s a requirement of legislation (section 1 of the Bail (Amendment) Act 1993), so blame our politicians in Parliament. In defence of the rule (I’m not happy with it either, just making sure it’s understood in context) the appeal does at least have to take place tomorrow. I don’t think there’s provision for any further prosecution appeal, though I think if he loses tomorrow Julian Assange will be able to to apply for bail again to the district judge, who I think can grant bail at any time.
I expect he’ll succeed tomorrow, though. As you say, the package of conditions is very tough indeed, though if I were defending him I’d be prepared to offer even more – a “doorstepping” condition for instance, under which he’d be obliged to open the door to show his face to police whenever they wanted to check he was at home – if I needed to.
Going on a bit – sorry.
Thanks for the explanation, Carl. It would appear that I’ve misapprehended the reporting which suggested that Gemma Lindfield is acting as a separate entity in the well on behalf of the Swedish government. I’m not clear if she is from the CPS or an additional voice, still, or whether reference to Swedish involvement is completely misplaced.
If it’s the CPS that’s pursuing the appeal, and holding Assange in the interim, and the Swedes had neither say nor interest in the appeal, then we’ve got a different situation. Why, given the bail conditions (and I too would have agreed to these onerous conditions and more under the circumstances to get him out), is the CPS taking such a hard line stance on bail? Is this punitive, political or do they have any legitimate concern about his absconding?
Update: From Carl Gardner’s blog, it was the CPS that made the decision to appeal bail, and that’s their normal position in extradition cases.
Thanks for linking to my update. Sorry not to come back before now.
Yes, the reporting has kept saying she represents the Swedes, and there’s a lot of confusion here. But it’s pretty simple in fact: the
CPS are obliged to execute the warrant (i.e. to try to have Assange surrendered to Sweden) and so are acting as “agents” for Sweden in a sense. But they take all the decisions here in England. Actually though the only real decision is whether to oppose bail, if you think about it, and whether to appeal a grant of bail. They couldn’t refuse to execute the European arrest warrant without breaking EU (and therefore English) law.
I don’t know why they took quite such a hard line – except they must be seriously paranoid about the risk he’ll abscond. To be fair, both the magistrate and a High Court judge have taken a pretty hard line themselves by setting such tough bail conditions. And remember there was some confusion about they would even appeal. I’m speculating, I know, but I immediately wondered at the time if there was a difference of view between counsel (Gemma Lindfield) and her CPS instructing lawyers. That sort of situation can be tricky professionally, but I think because it’s not an actual trial Gemma Lindfield would be bound to act on CPS instructions.
I’m not sure I agree with you about the first hearing, by the way. Remember, he wouldn’t even give an address at first at that hearing,
and it now turns out the district judge was concerned that it wasn’t clear how he actually got into the UK (that’s been cleared up now
apparently). The only condition his team seemed to offer was the sureties – I think they made a much stronger application this week.
I’m not surprised by the result either time. I suppose you could say the district judge could have imposed tough conditions first time
anyway – true enough. But I wonder what you’d think of the strength of the application first time, compared to this week.
Punitive? Political? Maybe I’m a naive innocent, but I really don’t think so. If the CPS ever was subject to political pressure from a
centre-right government, it’s difficult to imagine it is under Keir Starmer. If there is any ulterior motive I suspect it’s a desire to make sure the CPS doesn’t look idiotic to the world and incompetent to its EU counterparts, which it would if Assange disappeared while subject to an EAW here.
The whole thing stinks. As the appeal judge, Ousely J., reminded us, the notion of flight-risk was ridiculous, against the background of Assange’s full cooperation in Sweden and the UK. (No, Ouseley J. did not *say* it was ridiculous, but he said enough to suggest that he probably knows who the Beatles were, if you get my drift).
However, the charges – if that is how they must be characterised – are serious, and it is relatively normal to impose stricter standards in cases where sex crimes are alleged.
I still don’t understand the interference with mail and restriction of free access to the media of his choice while detained.
Nor do I understand the cruel and unusual punishment of foisting “The Daily Express” upon him.
Before I “leave yiz in peace” (as they say in a place far away known as Dublin) I offer you something I prepared earlier [Edit. Note: Link deleted as against the rules. Sorry Fergus, but (as we say in New York), dems the breaks.]
Briefly, an Irish resident, a Mr Bailey, is currently fighting a French originated European Arrest Warrant to face a charge of murdering a French citizen in Ireland. The Irish DPP has concluded that there is insufficient evidence, but who cares about him ?
The challenge to the extradition is being heard as I write.
By the way, Bailey got bail fairly easily. Bearing *that* surname, he had to, didn’t he ? 🙂
Wilkileaks is a loose cannon that could end in a lot of different directions, such as closing the Internet. The best and safest place for Julian Assange is in a British jail on a supposedly unrelated sex charge.