Swedish prosecutors have today decided that they will reopen the rape allegation against Julian Assange.
They had previously decided to halt the one remaining investigation of the Wikileaks founder – primarily because of his unavailability. At the time, the prosecutors said that the decision could be revisited in the event that Assange became available.
The decision to continue should mean that the European Arrest Warrant be revived and that the surrender of Assange to the Swedish prosecutors for interrogation is required. As Assange is currently serving a sentence for his criminal conviction in respect of breach of bail, such surrender would normally be expected to take place at the end of his sentence.
There are, however, complicating factors. Not least that Assange faces an extradition request from the United States in respect of alleged breaches of the American criminal law in respect of conspiring to access national security information from a computer. The two conspiracy allegations in the criminal complaint raise serious issues, including whether Assange as a publisher should face criminal proceedings in respect of information that many would say there was a public interest in placing into the public domain.
The UK now faces a choice between serving the US extradition and the Swedish surrender request. One does not automatically have priority over the other. On the face of it, the decision should be first made by a judge, though it can be ultimately referred to the Home Secretary. In any case, it will be a decision which will be criticised either way.
The Home Secretary wrote the following in response to a letter from Stella Creasy MP and other MPs:
At present, Mr Assange has been provisionally arrested pending receipt of a full extradition request from the US. Should the UK receive a European Arrest Warrant (EAW) for Mr Assange, the courts will proceed to consider the EAW until such time as the full certified US request is received by the Judge. Should a decision on the EAW be made before the receipt of the US request, the Judge will take the final decision and I will not be involved.
Where two extradition requests are received regarding the same person, I will then be required to determine precedence on the basis of a range of criteria set out in the Extradition Act 2003. The Act sets out a number of factors which I must consider when making that decision including, but not limited to, the relative seriousness of the offences and the dates when the EAW and the request were issued and received respectively. Where the requests received are from an EAW territory as well as a non-EAW territory, the relevant law is set out in section 179 of the Act. In light of my role in such a situation it would be inappropriate for me to comment on any Swedish investigation or on the possibility of an EAW being issued.
[…]
I note the views of yourself and your co-signatories, but all I can say at this stage is that any decisions which fall to me on the case will be taken fully in accordance with UK law.
In my view, there are compelling reasons why the Swedish request should have priority. The limitation period on the rape allegation expires in 2020. If the US is given priority and the Swedish request delayed, then justice will be denied. The Swedish allegation also does not have any freedom of expression element to it. Even from the perspective of Assange, it would be the case that any onward extradition to the USA from Sweden would provide him with additional legal protections. Sweden, like the UK, is party to the European Convention on Human Rights, and so it would not be lawful for him to be extradited to America if there is any risk of torture or the death penalty.
And then there is Brexit. If the UK leaves the EU without a deal then the legal validity of the European Arrest Warrant is extinguished. Although it would be open for Sweden to commence formal extradition requirements, these could be subject to delay and frustration.
Assange is currently serving a 50-week prison sentence. The UK now has to make a decision as to what happens to him when that sentence ends.
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