Wednesday 1stMay 2019
Southwark Crown Court, London, before Judge Deborah Taylor, c. 10.40-11.40 am.
This morning I witnessed – from Courtroom 15, with a video link to Courtroom 1 – the hearing in person of Julian Assange on the charge of skipping bail in 2012.
Scheduled to begin at 10.30, the hearing began at around 10.40, and lasted for approximately one hour.
The prosecution counsel spoke first, for only a few minutes.
The barrister observed that the maximum possible sentence under Section 6 of the Bail Act was one year.
He said that it was clear that this was an A1 case, and that the sentencing should accord with this.
Then the defence counsel spoke for much of the rest of the hearing.
I attempted to make as full a transcript as possible, omitting some addresses to the judge (as ‘my lady’), and some references to sections and paragraphs of the bundle.
The transcript is not exact, but it is close, and it does not, as far as I am aware, differ from what was said on any material point. I would welcome correction, to my email address, on any errors.
First the Judge informed the defence counsel that she had read everything provided by the defence.
Then she said that this was not an appeal against conviction on the basis of reasonable proof. She asked the defence counsel to bear this in mind in relation to the materials provided.
DEFENCE COUNSEL MARK SUMMERS:
We submit that the reason for failure to surrender is just short of reasonable excuse.
It is for that reason that I am going to delve into those materials in a little detail.
There are four things in mitigation that I wish to say.
Three concern culpability, and one concerns harm.
1. The background for this breach of bail is the act of seeking and claiming asylum, itself a lawful act. These are unusual circumstances – different to those with which this court is usually confronted. The starting point should be the District Judge Riddell’s [sp.?] submission. The senior District Judge in the best position to know tells us that Mr Assange had strongly-held fears of being removed to the US. That fear was held and publicly expressed right from the beginning. The fear was onward removal from Sweden to America and even Guantanamo Bay. In due course we might look at the submissions. There can be no doubt that this was a fear operating on the defendent in these proceedings.
Wikileaks published sensitive cables. Many around the world regard that work as important. That is the beginning.
The reaction to that [on the part of the US] was to arrest Chelsea Manning.
To charge her with offences that carried the death penalty.
She was held in military detention under conditions of sleep deprivation, kept naked, and forced to parade as such in front of military personnel. Predictably, this outraged the international community. You should have received this morning a short clip of the footnotes, rather than having to find them for yourself on the internet.
The first two are contemporary reports of international concern, including as expressed by Amnesty International.
So, far as Mr Assange was concerned, he was in and during 2010 acutely aware that the US authorities were interested in him, to put it as diplomatically as I can.
You have at tab 13, my lady, in a great many paragraphs, 32-67, a summary of the nature of the US interest in him, as at 2010, before he was arrested in this jurisdiction.
It includes his knowledge that there was an investigation.
He knew what was going on with Private Manning.
There were articles talking about a man-hunt in respect of him [Assange].
A White House press secretary said that he posed a very real and potential threat to the US. Most alarmingly of all, in paragraphs 52-55 are suggestions from inside the US administration that he could be kidnapped wherever he was, with or without the approval of the country in which he was residing, and brought forcibly to the US.
That is no more and no less than a threat of rendition. The threats continued. There was talk of dirty tricks. All this was before he was arrested in this jurisdiction for the purposes of extradition to Sweden. He was for that reason, during his stay in Sweden, staying in safe houses. As of December 2010, politicians in the US had called for him to be executed. There were calls for him to be assassinated. There were calls, as we’ve seen, for him to be kidnapped.
My lady, District Judge Riddell’s assessment – and he was best placed to know – is that Mr Assange, by the time he was arrested in this jurisdiction, was living under an overwhelming fear of being rendered to the US. The fear of rendition was the very subject of Wikileaks’ revelations. And now it was directed at him. As these threats rained down on him from America, they overshadowed everything as far as he was concerned, and dominated his conduct of the extradition proceedings. They were gripping him throughout.
My lady, it got worse. He was arrested in this jurisdiction on 7th December 2010. We can go to the press reports, but we have seen probably enough of them. The prospect of being surrendered to Sweden did nothing to ease his fears.
The reasons for that were manifold. But I can, I think, reduce them into three.
Firstly, Sweden, at that time, had a well-documented and unfortunate history of deliverance of people to states in which they were at significant risk of ill-treatment and death. My lady, we have a rich array of international tribunals condemning Sweden for this practice. The international courts found that Sweden was well aware of those risks.
Immediately after his arrest, it was published that Sweden had begun informal talks with the US for him to be delivered to the US. The clip of footnote materials that you have at page 28 include a report published in The Independent, amongst other places – the day after his voluntary surrender in this country to the extradition process – that ‘informal talks have already begun’ regarding extradition to the US.
My lady will I hope appreciate the abject fear that that kind of information instilled in Mr Assange, when read against the threats that he had been subjected to in America in the preceeding months.
But it gets worse. He knew, as did the international community, that Sweden’s relationship with America involved rendition. You have in the materials two findings, including one by the UN Committee against Torture, under its convention against torture, from as recently as 2006 [plus another].
JUDGE:
Are you suggesting there is any evidence that Assange read these?
COUNSEL:
We could begin with the document Assange’s legal team produced in 2011. There are submissions, six weeks after his arrest, concerning risks of exposure to Guantanamo Bay. He was not able to pursue these arguments as a matter of law, because, as the CPS stated, these were matters for Sweden, not the UK courts. It is certain that he and his lawyers were very much alive to the risk of rendition to the US.
JUDGE:
What do you say about the fact that the UK would have had to comply with any refoulement to the US from Sweden?
COUNSEL:
Indeed, onward extradition is a lawful process. A Swedish extradition Judge would have to consider risks of ill-treatment, etc. But what we are talking about is the risk of refoulement, outside of the legal process.
Just to remind you, there were two cases involved the surrender of people by Sweden to Egypt – a state well known to practice torture – with the active assistance of America. They are not isolated cases, as the judgments make clear, and America’s involvement can be made clear at para 10.2 of the [Aguisa – sp.?] judgement, in which the circumstances of their expulsion are set out.
[The details of the people involved in one such case:] They were handcuffed at Stockholm airport. A private plane of the US landed. They were stripped – their clothes were cut off them. Suppositories were placed in their penises. They were dressed in nappies. They were chained to specially-designed stress harnesses for the duration of their transit.
All of that was rightly and repeatedly condemned by the UN Human Rights Tribunal as against the prohibition against torture and ill treatment. The judgments talk about the total surrender of power by Sweden to the US in those cases.
So the contexts of Assange’s fears were Sweden’s record, and existing talks, and that kind of thing, so far as rendition was concerned. It matters little, ultimately, whether his fears of rendition to America were reasonable or unreasonable, but we submit that they were reasonable fears.
For example, you will note that his nine sureties agreed, and I refer you to Riddell’s judgment, pages 6 and 7.
We are jumping forward in the chronology a little, but you might wish to note that when he entered the embassy, all of his sureties declined to urge him to abandon its sanctuary, because that would be seen as us acting against a man who had understandable fears of his treatment in the USA; it would be seen as mercenary and contemptible.
The then Senior District Judge termed this position as admirable.
Later in 2012, the UN Special Rapporteur on Torture said that Manning had been subjected to inhuman and degrading treatment.
That was what was occupying Mr Assange during the duration of the extradition proceedings.
In his mind and the minds of others, the potential of rendition in the kinds of ways we’ve seen to America, was now inevitable.
We have seen the CPS assert, correctly as we’ve seen, that he had no legal remedy in this jurisdiction against that possibility.
And so he took the decision, on 19th June 2012, to take refuge in the Ecuadorian Embassy, to avoid the risk of being refouled to America.
In assessing whether his fears were genuinely held, in addition to the materials we have already looked at, that decision involved the forfeiture of a very large sum of money. He evidently deemed the situation of sufficient gravity to justify that.
We know that after careful consideration, his asylum status was ultimately confirmed by Ecuador.
We also know that the UN Working Group on Arbitrary Detention in 2015 concluded that the failure to recognise that asylum, by the UK and by Sweden, was wrongful, and the result of that was that his stay in the Embassy was, in the opinion of the UN, not his free choice.
He was faced with an impossible choice, and he reacted accordingly.
I said at the outset this is a Cat C culpability case. The District Judge with the responsibility for the conduct of all at this at the time agreed with all of this, with which he was intimately familiar, and said that this might afford him [Assange] a substantive defence in law, of reasonable excuse.
My lady, the court below ruled otherwise and we do not seek to go behind that.
But all the contexts have significant mitigating cause.
My lady, for those reasons we invite you to conclude that placing this in the A Cat of culpability would be fundamentally wrong.
2. The second issue which bears heavily on culpability is: Mr Assange wishes to express his personal regret for the decisions he made. I would hand out a letter, that he has penned this morning, but there were no photocopying facilities downstairs. A copy will be provided later.
TEXT OF ASSANGE’S LETTER, WRITTEN THIS MORNING, 1STMAY 2019
[for the full text I am indebted to The Guardian; I checked its transcription against my notes, and found the former to be slightly fuller than the latter; I therefore reproduce that version here]
‘I apologise unreservedly to those who consider I have disrespected them by the way I have pursued my case. This is not what I wanted or intended.
I found myself struggling with terrifying circumstances for which neither I nor those from whom I sought advice could work out any remedy.
I did what I thought at the time was the best and perhaps the only thing that could be done – which I hoped might lead to a legal resolution being reached between Ecuador and Sweden that would protect me from the worst of my fears.
The difficulties then compounded, and had an impact on many others.
I regret the course that this took; the difficulties were instead compounded and impacted upon very many others.
Whilst the difficulties I now face may have become even greater, nevertheless it is right for me to say this now.’
3. Thirdly, as a result of those actions, and the limited choices he had available to protect himself from that real risk, he has suffered significant consequences.
He has, for almost seven years, been confined in conditions that may or may not be equatable to those of prison.
He was confined to a small room or rooms which aren’t designed for human habitation – they were offices – with no courtyard, no garden, constantly being monitored, no privacy, no medical care, a lack of sensory stimulation, all potentially indefinite in nature, stretching away into the future.
He has been a resilient man, but that has taken its toll.
You have before you a letter from Dr. Kausinsky [sp.?]. He speaks in 2017 about Mr Assange becoming introverted, sad, degraded, insecure. The result of it all is the onset of moderately severe depression.
Doctor Kauzinsky also talks about the physical effects of the time that Mr Assange has spent in that embassy. Painful frozen shoulder. Chronically-painful broken tooth. All without access to medical care. [Another doctor is mentioned] Respiratory infections. And chronic root canal infections.
All of that to guard himself, as he saw it, against the risk of being rendered to US and the death penalty that was being threatened against him.
He asks you to give especial regard to the last two years that he spent in that embassy.
By that time the [Swedish] case had been withdrawn.
The only thing that prevented him from emerging from the embassy was this arrest warrant, and its potential to expose him again to American hands.
The fact that he chose still to stay in that room, in the circumstances of pain and depression, shows how great his fears of what awaited him in the US were. Rather than face up to 12 months in a UK prison he chose to stay for an indefinite time in the embassy.
4. Fourth, the issue of harm.
I say this conscious that it is said that Assange caused the Swedish case to terminate. The reality is more nuanced than that.
Once he had entered into the embassy he remained as he had been throughout, willing and available to progress the Swedish investigation.
His Swedish lawyer confirms that throughout this time he remained available and willing to progress the investigation. He was not trying to wait-out the investigative process.
The beginning of the chronology, and up until the supreme court’s position, sets out Mr Assange’s concerted efforts, from the moment he was arrested in 2010, through 2011 and 2012, to be interviewed by the Swedish prosecutors.
At the beginning, he remained in Sweden to attend police interview, and answered all the questions asked of him.
After he was informed that he was free to leave, he did so, but offered to return.
This offer was rejected by the prosecutor.
He then offered a whole raft of methods – such as video link [and other methods] – by which the investigation could be furthered, all of which were declined by the prosecutors.
What has emerged now, and I raise this by means of relevant background, that the materials that have emerged, at tab 9, that that position – those refulals – were on the advice of the CPS.
He entered the embassy, as I’ve said, and indicated his continued willingness to be interviewed to progress the investigation.
The impasse, however, continued, despite the fact that he, through his Swedish lawyers, was active in Sweden to try to bring about his interview.
The result of which was eventually, in November 2014, that the Swedish Court of Appeal ruled that the impasse was disproportionate, and that the prosecutor’s position was wrong.
That was an assessment that the UN concurred with. The Working Group’s decision is exceptionally critical of the prosecutor’s refusal to take reasonable steps to progress the investigation.
My lady, the UN says this: ‘unlike other suspects in general, whose whereabouts are unknown, and whose spirit of cooperation is nonexistent, Mr Assange has continued to indicate his willingness to cooperate in the investigation. It is the failure to act on this that is the subject of condemnation in this judgment.’
In November 2016 he was interviewed in the Ecuadorian Embassy.
His statement speaks eloquently about his sheer frustration about not having been able to engage previously.
It was after that that the investigation was discontinued.
I invite your particular attention to the statement of Mr Assange, in which he drew attention publicly to various text messages, of a kind the discovery of which has provoked a reassessment of the rules of disclosure in sex cases within this jurisdiction.
Our point, ultimately, my lady, is this: that had the prosecutor acted with the expedition which the Swedish Court and UN Tribunal found to be lacking, and the CPS discouraged, the interview would have been held, and the investigation concluded, that much sooner.
So I return to the notion with which I began, on harm.
The idea that he single-handedly chose to cause the investigation to terminate is much more nuanced than that.
I ask you to hesitate long before ascribing that a Category 1 harm case.
My lady, those are our submissions in mitigation.
JUDGE:
Please stand, Julian Assange.
[I have taken the following text from https://www.judiciary.uk/wp-content/uploads/2019/05/sentencing-remarks-assange-010519.pdf – which is a fuller transcript than my own. The last sentence, however, is taken from my own notes, since this was not included in that transcript]
Julian Assange, on 11 April 2019 you were convicted at Westminster Magistrates Court of an offence under s.6(1) of the Bail Act 1976, and committed to this court for sentence.
On 24 February 2011 the Westminster Magistrates Court ordered your extradition to Sweden to face allegations of sexual offending, including an allegation of rape. You were granted bail on conditions throughout your appeals against this order, which culminated on 14 June 2012 in the rejection of your application to re-open the Supreme Court dismissal of your appeal. On 19 June 2012 you entered the Ecuadorean Embassy. On 28th June 2012 a notice requiring your surrender to Belgravia Police Station on 29 June 2012 was served on you in the Ecuadorian embassy. You did not surrender and a warrant for your arrest was issued by Westminster Magistrates Court on 29 June 2012.
On 16 August 2012, Ecuador granted you diplomatic asylum status. You remained in the Embassy until 11 April 2019 when that status was revoked. Police entered at the invitation of the Government of Ecuador, and arrested you. You were brought before Westminster Magistrates Court. Bail Act proceedings were initiated and you were convicted of the s.6(1) offence. You have not appealed that conviction. The background to this offence is now put forward as mitigation, rather than as any reasonable excuse for your failure to surrender.
I have considered, and had regard to the Sentencing Council Guidelines for failing to surrender to bail, the seriousness of the failure to surrender, the level of culpability and the harm caused. This was in terms of culpability a deliberate attempt to evade or delay justice. In terms of harm, there are several features of this case which put this in the A1 category, but in addition, are exceptional in seriousness, and therefore in my judgment put this offence outside the Guideline range for even the highest category offences. The Magistrates Court has committed the matter to this court having considered that its powers of sentence were insufficient.
Firstly, by entering the Embassy, you deliberately put yourself out of reach, whilst remaining in the UK. You remained there for nearly 7 years, exploiting your privileged position to flout the law and advertise internationally your disdain for the law of this country. Your actions undoubtedly affected the progress of the Swedish proceedings. Even though you did co-operate initially, it was not for you to decide the nature or extent of your co-operation with the investigations. They could not be effectively progressed, and were discontinued, not least because you remained in the Embassy.
Secondly, your continued residence in the Embassy has necessitated a concentration of resources, and expenditure of £16 million of taxpayers’ money in ensuring that when you did leave, you were brought to justice. It is essential to the rule of law that nobody is above or beyond the reach of the law. Orders of the Court are to be obeyed
Thirdly, you have not surrendered willingly. Had the Government of Ecuador not permitted entry to the Embassy, you would not have voluntarily come before the court.
I have taken into account all that has been said on your behalf in mitigation, including the background history of this case which has been set out in some detail. These are matters which have previously been argued before the Chief Magistrate in relation to the instigation of s.6 proceedings and dismissed in her Ruling of 13 February 2018 on your application to withdraw the warrant, and again before the District Judge in the contested hearing on 11 April 2019 in which you did not give evidence, and they were rejected as affording any defence. They include the history of the Swedish investigation and proceedings, with the discontinuance of the proceedings in 2017, and your expressed fear of being extradited to Sweden but then rendered to the USA. As far as the UN Working Group on Arbitrary Detention opinion is concerned, this is not binding on this court, and, as is apparent from the ruling of the Chief Magistrate, with some personal knowledge of the matters relied upon, it was underpinned by misconceptions of fact and law.
It is no longer argued that these factors amount to good reason for your failure to surrender. In my judgment they afford limited mitigation in relation to this offence. The argument that as a result this is a category C case is wholly unrealistic given the circumstances.
Whilst you may have had fears as to what may happen to you, nonetheless you had a choice, and the course of action you chose was to commit this offence in the manner and with the features I have already outlined. In addition, I reject the suggestion that your voluntary residence in the Embassy should reduce any sentence. You were not living under prison conditions, and you could have left at any time to face due process with the rights and protections which the legal system in this country provides.
Similarly I reject also the suggestion that forfeiture of money by you or others who provided security for your attendance when you failed to attend court should reduce the sentence of the court. The money was security attached to an obligation to ensure your attendance, not a down payment to offset or reduce any sentence you may receive for not complying.
I have taken into account the medical evidence of Dr Korzinski and Dr Ladbrooke as to the mental and physical effects of being in the Embassy for a prolonged period.
It is difficult to envisage a more serious example of this offence. The maximum sentence for this offence is 12 months. You do not have the benefit of a plea of guilty. You have made a written apology today, the first recognition that you regret you actions.
In my judgment, the seriousness of your offence, having taken into account the mitigation merits a sentence near the maximum.
The sentence is imprisonment for 50 weeks.
Any time spent on remand in respect of this offence from the time of your arrest on 11 April 2019 will count against your sentence.
In respect of this offence you would fall to be released after serving half of the sentence, subject to being returned to custody if you commit any further offences during the remainder of your licence period. That of course is subject to the conditions and outcome of any other proceedings against you.
[from my own transcript:]
Finally, it is right [to say] that you weren’t facing charges, but allegations, of sexual offending.
