The mostly well-off people who offered themselves as sureties for Julian (Wikileaks) Assange to surrender himself for extradition have been ordered to forfeit their money by the Chief Magistrate, exercising his special jurisdiction in matters of extradition.
This will have come as no surprise to anyone who has any experience of bail, securities, and sureties.
I have seen a good few cases such as these, and the first thing to say is that in the usual way in England and Wales cash upfront is not required, as it so often is in the USA. Unconditional bail is normal, unless there are 'substantial' grounds to fear that the defendant will abscond, or do other naughty things, but for the purpose of this post we need to look at the former, something that Americans call 'flight risk'. When a security (cash) or a surety (a promise to pay) is offered the court needs to be satisfied that the person concerned has, or can easily raise, the cash. A surety can be taken at a police station but that is not the practice at my court, where we expect the surety to appear, be sworn, and be examined about his means and his hold over the defendant. This can be a gruelling process, and I can still remember how disturbed I felt to see a respectable man in his late fifties, who had never been in a court in his life, but whose son had done something stupid with drugs. After the lawyers had done their stuff I had to warn this decent fellow that if his son absconded and the surety was not paid, he himself might be committed to prison.
I concluded that day that I would not offer a surety to my granny. On second thoughts, close family probably, everyone else, sorry, no.
If you offer to stand as surety for someone, just make sure that you trust them implicitly. If not, set fire to a pile of banknotes now.
I've just published a post on the same topic. Whilst I am in full agreement that the starting point must be that a surety forfeits his or her money when an accused fails to attend as required, I am of the view that in the highly unusual circumstances of this particular case, the Senior District Judge was wrong to do so.
ReplyDelete"Highly unusual circumstances"? What rubbish.
DeletePour encourager les autres?
ReplyDeleteAll fair comment. Also, the defendant's solicitor (if there is one these days!) has a particular responsibility to ensure that a surety would be able to meet his or her financial obligations before being tendered to the court - R v Birmingham Crown Court ex. p. Rashid Ali [1999] Crim LR 504.
ReplyDeleteReaders might wish to read this:
ReplyDeletehttp://diaryofalegaleagle.blogspot.co.uk/2012/10/sureties-and-trouble-with-decision-in.html
Still funny to see those luvvies getting hit in the pocket though.Might make them think twice before jumping on a band-wagon next time.
ReplyDeleteJaded
I don't think it's going to make a significant dent in Jemima Khans pocket. As James Goldsmiths daughter and also with a couple of magazine editing jobs, I don't think she's short of a bob or two.
DeleteYou'd need a heart of stone not to laugh.
DeleteWell, the learned Chief Mag seems (see: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sureties-julian-assange-08102012.pdf) to have given some pretty hefty discounts in the light of sureties' means and circumstances. As you and ObiterJ remark, the time to consider that was when the sums were tendered.
ReplyDeleteBaldybeak
Well all the sureties seem good for the money and the maximum liability is only £15,000 which most luvvies could find down the back of the sofa. Unless the legal costs of bitching and whining are very small or the opportunities to make justice look stupid are very big I should think they will cough up and look big. Should be well worth the money on the Hampstead and Cotswold dinner circuits.
ReplyDeleteRe Assange, if he is dragged off to a Supermax it will do no good to whine 'the law must be obeyed' or 'just doing my job mate'. Why he was not allowed to slip quietly away I will never know.
Little matter of allegations of sexual offences in Sweden to be dealt with - or do we put him in the same class as J Savile - Well-known wally so hand him impunity?
DeleteThe current "outrage" over Savile is a complete waste of time and money. The BBC and other organisations are going to be wasting millions on self-flagatory exercises.
DeleteWith the lapse of time I don't think we're going to be able to say with any certainty whether Savile was guilty, or whether lots of people have simply jumped on the compo bandwagon.
anonimouse - people have been found guilty in the past based on older evidence, but of course Savile's guilt is academic given that he's pining for the fjords.
DeleteSurely the important question is what allegations or suspicions were raised at the time, and whether they were acted on correctly. That seems entirely feasible to investigate, and may yield valuable lessons on how to prevent such things happening in the future.
I am not sure that I would have given a discount off the amounts pledged. If these amounts are beyond what the sureties can reasonably pay, then they should not have pledged those amounts in the first place. They trusted Mr Assange to surrender himself when he was legally obliged to do so, and he let them down. Why they would consider they had betrayed him if they urged him to comply with his obligation I do not follow.
ReplyDeleteHe and they like to raise extradition to the USA as a genuine fear, and reason to evade extradition to Sweden, disregarding the fact that the UK currently has a treaty with the USA that makes extradition very east, whereas Sweden does not. This then is an obvious obfuscation of his fear of facing trial in Sweden on allegations of sexual offences. The Swedish charges did not receive a mention from Mr Assange when he was interviewed, he would like them forgotten, no doubt.
Are there any charges in Sweden ? If so, then when and where were they placed ?
DeleteNo actual charges have been brought against Assange - he is wanted by Sweden for questioning.
DeleteFor "east" read "easy" and for "charges" read "allegations"
DeleteI'd say for 'east' read 'west', Chris, that being the prevailing direction of the UK-US extradition travesty.
DeleteBaldybeak
Do our arrangements with Sweden forbid rendition elsewhere or don't they? If they do, I simply don't believe that the Swedes will not honour that law. If they don't, h'mmm . . .
ReplyDeleteAs for the sureties, they should have forfeited the lot.
There was a sad case some years ago - I won't mention the name - where a member of the Bar went surety for his brother who was accused of murdering his wife; and the defendant then killed her mother and himself. How that poor bugger of a surety must feel does not bear thinking about. But I remember the court holding that he was not liable for the money and wondering how that could ever have been in question - the position is the same as if the defendant had died of natural causes. Anyone able to explain?
IF Assange sent to Sweden they may not extradite him onwards without UK government agreement.
Delete
ReplyDeleteIn response to Andrew T, I believe that the obligation of a surety is that the defendant answers his bail (not that he commits no further offences). If the putative surety believes bail should not have been granted in the first place, he ought to have thought twice about offering himself as a surety.
The surety's obligation is to secure the person's attendance at court - that's all.
DeleteThat's the point I am making: the surety is not liable if the defendant commits further offences - the chap in my case no doubt believed that his brother was innocent and would answer his bail.
ReplyDeleteMy point is that if the defendant dies - however - that releases the surety from liability, so why was the question ever in issue?
One of the men who committed that horrible caustic-soda murder - using the caustic in the hope of burning away their own DNA, as I recall - must have been on bail, and worse luck to him because he was murdered by someone connected with the victim. At the trial of the others prosecuting counsel referred to him as "Joseph Bloggs who has since died" - nothing more. If he had a surety presumably that surety was also released from liability.
What I am asking is why the surety in the first case I mentioned even had to appear in court to establish that he was not liable.
I can understand why the sureties have been called upon to pay; by seeking asylum Assange has broken the terms of his bail. Reading the interesting post by LegalEagle, however, it would seem that the circumstances here fell into the realm of the extraordinary, making the judgement somewhat at odds with what might be expected in the circumstances.
ReplyDeleteAlso, it's worth remembering that Assange hasn't yet been charged with any offence, and the offence that the Swedish police wish to question him about is a peculiarly Swedish one, namely that he is alleged to have had consensual sexual intercourse without using a condom. There's no question of rape, as has been reported elsewhere, apparently, the other party (or parties) are alleged to have willing participants. There is some hearsay to suggest that the victims had been "influenced" by a third party to press charges, and it doesn't take a lot of imagination to guess who that third party might be working for.
Assange is clearly fearful of the influence of the USA, a country that, like Assange and Wikileaks to some degree, isn't known to play by the rules. Many strongly suspect that the USA will bring pressure to bear in pretty much anyway they can to prevent Assange from continuing his mission.
Frankly I suspect that Assange won't live to a ripe old age and that Wikileaks will be closed down one way or another before too long. People who seriously piss off the USA don't tend to live long and happy lives............
Actually there is a question of rape, as without wanting to question on him on this particular aspect, the Swedes would not be able to extradite him, as I believe there has to be an equivalent offence in both countries carrying a possible prison sentence of over 1(?) year.
DeleteThe fourth alleged offence may indeed be interpreted as rape, although not, perhaps, as the sensational press may define it. The apparent circumstances of this particular complaint is that he was sleeping with the alleged victim (consensually), they were both naked, and he is alleged to have had sex with her whilst she was asleep.
DeleteThe other alleged offences are two counts of failing to use a condom whilst having consensual sex and one of having lain adjacent to an alleged victim whilst making physical signs of arousal apparent to her.
All these offences are alleged to have taken place over a period of six days and there has apparently been no evidence presented to show that he coerced the alleged victims to share his bed or stay with him during this six day period.
All told it sounds more than a little flimsy for a rape charge, based on the limited information that has been released. One needs to know and understand the circumstances which brought Assange and the alleged victims together, perhaps, before drawing firm conclusions as to whether what is alleged to have happened was serious enough to be considered to be rape.
"Also, it's worth remembering that Assange hasn't yet been charged with any offence, and the offence that the Swedish police wish to question him about is a peculiarly Swedish one, namely that he is alleged to have had consensual sexual intercourse without using a condom"
ReplyDeleteIt is at the very least arguable that if sex is consented to on the basis that the male will use a condom and he declines to do so then the sex is no longer consensual. The fact that Assange has not yet been charged has to be set against the fact that the Swedish legal authorities were able to present a prima facie case against him in support of their extradition plea. Questioning of Assange in due course may lead to charges and proceedings or may lead to the case being closed without charges being brought. I can't second guess that, and neither can anyone else. However, he dresses it up, he broke his bail conditions and absconded to avoid being returned to Sweden for questioning. The sureties failed to prevent this, and they cannot complain at having to forfeit their cash, though to be fair to them I haven't so far heard that they are complaining.
If there are no actual charges in Sweden (or anywhere else), then how can a European Arrest Warrant have been issued ? Article 1 of the Council Framework Decison (13 June 2002, 2002/584/JHA) states that the purpose must be for a criminal prosecution or for enforcement of a custodial sentence. Being wanted for questioning merely suggests that a criminal investigation, not a prosecution, is under way.
ReplyDeleteThere is a lot of political stuff behind the scenes going on with this case, and many believe that the use of these particular alleged offences to try and get Assange to Sweden is just the prelude to other things.
DeleteThere are four offences that the Swedish authorities wish to question Assange about. They are alleged to have taken place over a period of six days in August 2010 and were reported to the police two days after the date of the last alleged offence. My understanding is that, based on the outcome of their questioning of Assange, the Swedish Prosecuting Authority may then charge him with all, or some, of the alleged offences.
From what I've read he has not been charged yet and the EAW was issued on the basis of the Swedish authorities having made a case for extraditing him for further questioning that may then lead to him being charged.
Personally I find it curious that the serious allegations against Assange were dropped by the Swedish Prosecuting Authority shortly after they were first reported. This decision was then reversed a couple of weeks later after (allegedly political) intervention by Claes Borgstrom, who had by then been appointed as the legal representative for the two alleged victims.
Personally I've no doubt in my own mind that Assange, and his organisation, have acted in ways that have made him a target for action by the USA and as such he has to expect some form of retaliation, legal or otherwise, from the US. The problem the US authorities have is that, for as long as Assange remains outside their border and isn't convicted of any offence(s), there isn't much they can do.
If the alleged offence(s) he's committed in Sweden go to court and are proved, then at least that will get Assange out of circulation for a time, from the US perspective. If Assange is found guilty of the alleged offence(s) then this would also give the US authorities the ability to restrict his future movements to some degree after his release, either directly or indirectly, due to him being a convicted felon. At the very least this may be enough to restrict Assange's future movements such that he cannot travel to a country, like Sweden, that has laws that allow freedom of expression and protection of journalistic sources, something that would seriously impact on the function of Wikileaks.
Well the purpose is for a criminal prosecution - since the arrest warrant was issued by the Swedish equivalent of a criminal prosecutor. The basic problem appears to be that the Swedish legal system does not quite fit in all the pigeon holes the EAW was promulgated for.
DeleteThe question as to whether the phrase "judicial authority" in the Act and in the Framework Decision had the same (broad) meaning as "autorité judiciaire" such as to include the Swedish warrant issuing authorities was comprehensively resolved (in the affirmative) by the UK Supreme Court on 30 May this year (see http://bailii.org/uk/cases/UKSC/2012/22.html), and it would be wrong to leave any doubt about the intention of either Parliament in adopting the Act or the Council in adopting the Framework Decision that the same authorities as were responsible in each Member State for issuing warrants pre-EAW should remain competent to do so under the national legislation adopted to give effect to that Decision and give it true European Union wide force. To claim that the Swedish system was not explicitly considered at the time of adoption and in any way constitutes a "hole" in the EAW system is a demonstrable nonsense. Swedish was a member state at the time the EAW was adopted and participated fully in the Decision to introduce it, with the full knowledge and understanding of the JHA (justice and home affairs) officials and ministers involved at the time of the specificities of each country's legal procedures, including those of Sweden. This is a perfect example of "subsidiarity", in that the purpose and nature of the EAW were determined in common, but each member state was left to implement it according to national law, provided that compliance with the purpose remained paramount.
ReplyDeleteI really don't believe that the average MP in our Parliament ('in adopting the Act'), and probably not the Government either, considered at the time that Swedish arrest warrants would be implemented upon the whim of an investigating prosecutor, whereas ours require due process and a formal charge first.
ReplyDeleteCorrect - the UK Supreme Court decided that the Swedish prosecutor was a judicial authority for the purposes of the EW system. The contrary is now unarguable in the UK.
ReplyDeleteHaving said this, I believe that the Supreme Court actually got this wrong but my view on that counts for zilch. The Supreme Court ought to have properly heard the final point raised by Assange's counsel - but they gave her 14 days to make a written submission and then dismissed her point without adequate reasons or written judgment and no hearing in open court.
Assange is wanted for allegedly molesting a woman, looks like a crime then. His arguments about the ameriacans wanting him are true but I doubt the Swedish are patsies.
ReplyDeleteJimmy Saville was a pervet and everyone is coming out of the woodwork to denounce him. Unfortunately he's dead so can't speak up for himself.
there may be a little injustice all round.
whether the Supreme Court are right or not is not the question- they have given their decision and right or wrong it should be respected.
What the hell Equador is doing getting involved is beyond me.
Given recent events at the OAS, it would be unsurprising if Ecuador sees this as a way of offending the USA, in the manner typical of naughty banana republic presidents. The US-Ecuadorian relationship is at a bit of an ebb in general, at present.
ReplyDeleteThe Swedes want to question Assange so badly they won't even come to the UK to talk to him - he has offered to talk to Swedish police in the UK. And he is only "wanted" for questioning - which is not really wanted at all. He could go to Sweden and then exercise his right to silence so his extradition is pointless.
ReplyDelete(The Swedish justice system is barely a justice system at all. They use a form of solitary confinement so extreme it amounts to sensory deprivation. The Committee for the Prevention of Torture of the Council of Europe has criticised them several times. Also, the Presumption of Innocence is not absolute in Swedish courts. On those grounds any sensible person would refuse to submit to Swedish "justice".)
And the Americans want Assange so badly they have not even sent over an extradition request. They swoop on British nationals with the greatest of ease but have done nothing in this case. (Almost certainly because they know they couldn't get a conviction in a US court. The First Amendment rules supreme!)
I sometimes wonder if some of the Assange apologists have slipped through from a parallel dimension, so far from reality are their assertions and allegations.
Delete"Nationalist', you may wish to acquaint yourself with the real legal situation:
http://www.newstatesman.com/blogs/david-allen-green/2012/09/assange-and-legal-myths
For the purposes of Extradition, Sweden as far as the UK is concerned a friendly and respectable place therefore if there was a proper request which the SC forund there was and we have got to the end of the process then he should go.
ReplyDeleteUltimately the choice is a simple one; we either follow due process or we revert to lynch law and vigilantism.
ReplyDeleteBut the question is, who's definition of due process ? If I understand all this, we (UK arresting authorities) are now asked to accept that in Sweden a prosecutor is a judicial authority, and a criminal inquiry is actually a criminal prosecution. What's the point of European law if countries like Sweden can interpret it with laxity (if not official vigilantism), and we are supposed to rubber stamp whatever they might want ?
DeleteAnyway, Assange is now due for arrest for jumping bail, and the Ecuadorian Embassy is harbouring a UK fugitive. Perhaps that will change the situation.
Due process in this case seems to have already been subject to at least a hint of political interference. Bear in mind that the alleged offences took place over a 6 day period, were reported to the police by the alleged victims 2 days later, the prosecuting authority then chose not to press charges against Assange, then the Swedish Social Democratic Party gender equality spokesman stepped in and requested that this decision be reviewed. His intervention resulted in the case being re-opened and the current request for Assange to go back to Sweden for further questioning.
DeleteSeems an odd mix of the political system and the judicial system to me, but presumably there isn't the same notional degree of separation between the Swedish judicial system and political system that we might expect.
Interesting to see on the news this evening that the government are looking at opting out of the EAW...........
In this case the four alleged offences that Assange committed, which took place over a period of 6 days in August 2010, were allegedly first reported to the Swedish police 2 days after the last alleged offence took place and the Swedish Prosecuting Authority chose not to proceed.
ReplyDeleteBetween 1 and 2 weeks later, the Swedish Social Democratic Party's spokesperson on gender equality successfully appealed the decision to drop the alleged charges against Assange and has since become the legal representative for the alleged victims.
When you read through the details that have been made public, then it seems clear that the UK justice system has agreed, rightly or wrongly, that the EAW was valid and that Assange should be extradited to Sweden to answer questions. He has then defied this order, in effect, by breaching his bail conditions by seeking asylum.
Given the curious way some aspects of the Swedish justice system operate, and the fact that the offences he's alleged to have committed would not be taken anywhere near as seriously in his native country, Australia, I can understand to some extent why he may feel that he's being used as a political pawn. Whether the politics in question are US interference with Swedish affairs, or, more likely, internal politics in Sweden (the SDP may well be making a point here), we don't know.
This all revolves around conflicts of law. The Supreme Court seem to me to be the best to resolve it rather the bloke in the pub.
ReplyDeleteAnd , at the end of the day extradition finally ends up as agreements between governments so it does get a bit political in the end.
The Swedish have been remarkably reserved in the way they have handled things