Oh, I was more expecting something like:
According to
Brottsbalken, chapter 6, 1st paragraph, the definition of...
You know - a legal argument where you show that the actions alleged does not constitute a crime, and therefor the prosecutor is wrong. This is about the law.
Brilliant legal analysis. If all you have is a hammer, every problem looks like a nail. Have you ever read a judgement that was not a miscarriage of justice? If so, what factor did you use to come to that conclusion?
Yes, the judgments that weren't miscarriages don't read like sophistic bilge, i.e. facts not leading to conclusions, distortions of facts, egregious leaps of logic, missing exculpatory information etc.
However further reading on the
judgement (of July 12-13) revealed in part why it read like that:
High Court Judgement 6/11 Para 10 said:
Although the 2003 Act does not mention the Framework Decision, it is now well established that Part 1 of the 2003 Act must be read in the context of the Framework Decision and that the national courts of the Member States should construe national laws so far as possible to attain the results sought to be achieved by the Framework Decision: see Criminal Proceedings against Pupino (Case Cl05/03
[2006] QB 83 at paragraphs 43 and 47 and Dabas v High Court of Justice in Madrid
[2007] UKHL 6,
[2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15-22 (Lord Hope), paragraph 76 (Lord Brown); a helpful review is made by Professor John Spencer in (2009) 30 Statute Law Review 184.
In other words: twist your own laws to accommodate the requesting nation, you just don't have to break them. That makes sense of a lot I was wondering about.
This part I pretty much knew, as per the case of the Italian convicted
in absentia on double hearsay evidence that I posted:
High Court Judgement 6/11 Para 14-15 said:
The purpose of the Framework Decision, as set out in the recitals to the Framework Decision and the EU Commission's Explanatory Memorandum (2001/0215 dated 25 September 2001) was to replace the European Extradition Convention of 1957 and other Conventions by a new regime. The new regime was to be a regime for surrender between judicial authorities founded on the basis of the common area for justice and the principle of mutual recognition of judicial decisions and judgments as "the cornerstone of judicial co-operation in both civil and criminal matters". Recital (5) stated:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters. covering both pre-sentence and final decisions, within an area of freedom, security and justice."
It was intended to make a break with the previous regime which had been intergovernmental and replace it with a regime where:
"Each national and judicial authority should ipso facto recognise requests for the surrender of a person made by the judicial authority of a Member State with a minimum of formalities." (Paragraph 2 of the Explanatory Memorandum)
In other words cough him up, this is a surrender agreement, not really extradition anymore. It might even be surprising it took as long as it did.
This explains a lot, they originally only made their decision on the basis of the EAW:
High Court Judgement 6/11 Para 61 said:
The Senior District Judge did not consider it necessary to examine the statements from the complainants which were the only material put before him in the course of the hearing. He looked only at what was set out in the EAW. He concluded that dual criminality was established for offences 1-3 and that what was described in relation to offence 4 was rape.
This High Court also chose to make their judgement solely on the basis of the EAW:
High Court Judgement 6/11 Para 68-71 said:
Although, it is always open to a Divisional Court of two or three judges not to follow the decision of a single judge, we entirely agree with the conclusion reached by Sir Anthony May. The decision in Castillo to admit extraneous material was made under the 1957 Convention under which the ultimate decision on extradition was for the Executive, not the judiciary. As is clear from the objectives of the Framework Decision (to which we have referred at paragraph 14 and following), that regime has been replaced by a regime of surrender between judicial authorities based on mutual recognition.
That necessitates a different approach for the reasons we have given; the statement as to the admission of extraneous material set out in Castillo does not apply to surrender under the provisions of the 2003 Act. Ordinarily, therefore, the judge in the executing state should scrutinise the terms of the EAW and make the decision to order surrender on the basis of what is contained in the EAW and not have regard to material extraneous to the EAW. That course gives effect to the underlying purpose of the regime and the principles of mutual recognition to which we have referred.
It is always possible, as Murua demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision. Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles. In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW. Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part of the court or prosecutor in the issuing state. It is necessary to consider whether the request for Mr Assange's surrender is such a case.
(d) Offence 1: Dual criminality: consideration of the accuracy and fairness by reference to extraneous material
It is conceded the conduct described in relation to offence I in the EAW discloses dual criminality, and that therefore, if a UK court does not take account of the material in the prosecution file provided to Mr Assange, then this ground of objection to MrAssange 's extradition under the EAW would fall away in respect of this offence.
In our view, it is not apposite to take into account the material in the prosecution file:
[/CENTER]i) The description in the EAW sets out a clear description of the conduct that the Prosecutor alleges against Mr Assange. It is for the Prosecutor not the court to set out what is alleged.
ii) The Svea Court of Appeal has considered the offences and determined that there is cause to proceed.
iii) It cannot be said that what is set out is plainly wrong.
iv) No allegation of bad faith on the part of the Prosecutor was made in this court.
v) The facts set out were sufficient to lead to the inevitable inference of lack of consent to the specific matter alleged against Mr Assange and to the requisite knowledge on his part. In the case of the first offence, Mr Assange lay on AA forcibly restricting her movements to which she did not consent.
That is what would have to be proved. If he did those acts it would also be the inevitable inference, to the extent relevant, that he knew that she was not consenting.[/CENTER]
However, now it gets
interesting!
High Court Judgement 6/11 Para 72 said:
Nonetheless, as the material was put before us de bene esse, we will express our view on what difference it would have made if we had taken it into account in determining whether the description of the conduct was fair and accurate.
So they apparently chose not to take this information into account, but for some reason decided to add their entirely meaningless and non binding opinion on it anyway. It was this part that I originally concentrated on, not being much interested in the boring ass stuff above, nor whether the prosecutor is a legal authority. It's this part that left me gobsmacked initially, reminding me of reading Massei, and now I know why:
that's what it is! Not only is it legally irrelevant, they're only looking at whether it's
possible the offence might be prosecutable, that's why they gloss over or fail to mention exculpatory indications! They're just looking for
anything that
might suggest the EAW was accurate, and that a jury
might possibly find worthy of a conviction, to wit:
High Court Judgement 6/11 Para 76 said:
[It seems to us that the conduct described as offence 1 fairly and properly describes the conduct as set out in AA's statement in relation to what is complained of restricting her movement by violence. We accept that Mr Assange subsequently allowed AA to move so she could find a condom for him to use, but at the point in time to which the offence relates, we do not read anything in her statement to indicate consent to his restraining her. Indeed her statement indicates precisely the opposite at the point of time to which it relates. It of course might well be argued that his subsequent decision to let go of her might indicate a lack of coercion or consent to what followed, but at the point of time to which the offence relates, we consider the conduct of which he is charged to have been fairly and accurately described. As we have set out at paragraph 71.v) above, the matters alleged are sufficient, in our view, and to the extent relevant, to impel the inference of knowledge. The context does not change our view.
So in other words they know it's going to be argued that him letting her go (and them continuing consensual sex) destroys the charge, but that part in the EAW was actually in there!
High Court Judgement 6/11 Para 86 said:
In our view, therefore, s.76 has no application. The question of consent in the present case is to be determined by reference to s.74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
In other words, in keeping with the spirit of surrender they allow that a jury might buy the argument that he destroyed the condom and thus he raped her. That's why it reads like pure lunacy after they go through the one about the failure to disclose HIV and the prostitute not being paid: a jury
might find that story plausible, and it's not their place to deny them the opportunity, what with being in the surrender business and all. More about what they're
notactually interested in regarding that charge:
High Court Judgement 6/11 Para 95 said:
It is in our view clear from her statement that AA only wished to have sexual intercourse with Mr Assange if he used a condom. It is also clear that a case being made by the Prosecutor is that Mr Assange, knowing that, nonetheless broke the condom. It was submitted that it should have been made clear that the allegation was founded on her belief he had torn the condom and that the forensic science evidence did not support that belief; it was also submitted that the evidence showed she consented. Whether there is sufficient evidence is a matter with which this court cannot be concerned. Nor was it necessary to set out facts that might disprove her case that she did not consent, such as her invitation to him to remain in the flat.
The sole concern of this court is whether, on the basis that the fairness and accuracy of the description can be examined by reference to the materials in the prosecution file, the description of the conduct is fair and accurate. In our view, although the language could have been expressed more precisely, it is clear what is being said, namely that Mr Assange had sexual intercourse with her when not using a condom when he knew she would not have sex with him unless he was using a condom which protected her from his ejaculate entering her. It seems to us immaterial to the fairness and accuracy of the description of the offence whether that lack of protection arose out of his failure to wear a condom or his tearing or damaging the condom deliberately.
So in other words all exculpatory indications and evidence are irrelevant, and in the spirit of surrender they'll give her a break on the wording.
High Court Judgement 6/11 Para 124-126 said:
We do not consider that the offence was not fairly and accurately described. It is quite clear that the gravamen of the offence described is that Mr Assange had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom. The description of the conduct makes clear that he consummated sexual intercourse when she was asleep and that she had insisted upon him wearing a condom. "Consummated" refers to having intercourse, not to ejaculation. In our judgement it was not necessary to go further than was set out in the description of the conduct as it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom. There is nothing in the statement from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.
Nor do the inconsistencies in her account and text messages relied upon by Mr Assange assist. In one sent by her she described herself as "half asleep" and she accepted in a further interview that she was not fast asleep. These are matters of evidence which would be highly relevant at trial. But it is not for this court to asses whether the allegations may fail. It was not therefore necessary to set the details of these out. There is, therefore, nothing in the particulars which is neither fair nor accurate.
The gravamen of Mr Assange' s argument is that the description of the offence by the Prosecutor does not set out the continuum of events and the context, but seeks to isolate one aspect. That continuum and context showed that she agreed to sexual intercourse when she realised what was happening; it cannot therefore be alleged that he did not have a reasonable belief in consent. We accept Ms Montgomery's observations about how far it would be right to see what happened afterwards as consensual rather than reluctant submission. But the fact of protected sexual intercourse on other occasions cannot show that she was, or that Mr Assange could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her. Once awake she was deciding whether to let him go on doing what he had started. However it is clear that she is saying that she would rather he had not started at all and had not consented. The prosecution case on rape is or includes the start of sexual intercourse: its references to "consummation" cannot in context be confined to its conclusion or to ejaculation. It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.
So all they're doing here is twisting themselves into contortions to allow for the possibility that a jury could hold the prosecution had a case as this doesn't prove him completely innocent, and everything in the EAW is actually in the statements, outside one little
faux pas they're gonna be reasonable about.
No wonder it read like Massei, skipping blissfully past all the exculpatory information or coming up with lame reasons to still consider the charges valid, and as a matter of fact all they were
really doing is making sure everything in the EAW was in the additional information and there was nothing in there that completely exonerated him, keeping in mind their mission was to surrender him to Swedish authorities. And of course, none of this was legally binding in the slightest so they could say whatever they wanted anyway.
There are several English lawyers and legal commentators that have analysed the English court decisions. For example
http://www.headoflegal.com/,
http://www.guardian.co.uk/profile/joshua-rozenberg,
http://jackofkent.com/blog/. Have you found support for your position there, or maybe you can show us how your legal analysis differ from theirs?
I've read through some of that, I was unable to find much outside excerpts and mentioning in passing from Jack of Kent regarding the High Court Ruling, which initially intrigued me. I found nothing from Rosenberg on it, as I understand it was released around November of '11? Perhaps I missed it but going there and scanning forward several months, and then back to July when the proceedings took place I found nothing about it. Ditto with the other link. I could personally care less (at this point) regarding a lot of the issues such as whether the EAW was issued properly or extradition which has consumed a lot of interest in this case.
Yes? You do know that EAW means European Arrest Warrant? At this stage it's all about an arrest. Charging may come later. The actual court case follows that. Then we will see if the evidence holds up.
Yeah, I'm starting to get a feel for what that means. It's a bit premature to be calling him a 'rapist,' and I've a question for you, I came across a couple things days back regarding the actual nature of the charges, but cannot find them now. Is there possible a translation problem with 'rape?' In other words he's actually charged with a lesser crime (for the most serious charge) and it just doesn't come across accurately when translated to English? This is 'lesser rape' or somesuch?
I don't know, what are you looking for? It's obviously a case that attracts a lot of media attention, as well as a case that probably will involve complex decisions on the law, so it would make sense to have a lawyer that is knowledgeable and experienced in the relevant area of law, as well as experienced in interacting with the media.
Please!
What? If you have some kind of smoking gun please show it.
Just curious about this Krans.
Do your research. MK was the on-duty prosecutor. EF took over when this moved into the regular day-job prosecutors.
I take it the day prosecutors have more authority which is why she was able to quash it?
Of course there is a difference, if you don't even know the basics of the Swedish legal system and the prosecution authority you can start for example
on this link.
Thank you for the link.
Are you making up things as you go?
Jus' messin' wit ya!
Then do take a look
at this post and maybe read up on what has actually happened in this case so far.
Thanks again.
