Wednesday, 15 December 2010

Pilger on Assange: a legal commentary

I thought it would be helpful to provide a commentary on today’s New Statesman article by John Pilger on Julian Assange.

“Guardians of women’s rights” in the British liberal press have rushed to condemn the WikiLeaks founder.

In fact, they have not. Feminist and non-feminist writers have instead condemned the downplaying and denials of the sex crime allegations by supporters of Assange.

In fact, at every turn in his dealings with our justice system, his basic human rights have been breached.

Julian Assange has now had two bail hearings in open court, at both of which he was represented by leading solicitors and barristers of his choice. At the second bail hearing he was granted – not denied - bail, although with conditions. This decision to give bail is now being appealed and so there will be a further hearing tomorrow.

It seems the lesson must be learned all over again as a group of media feminists joins the assault on Julian Assange and WikiLeaks, or the "Wikiblokesphere", as Libby Brooks abuses it in the Guardian. From the Times to the New Statesman, apparent feminist credence is given to the chaotic, incompetent and contradictory accusations against Assange in Sweden.

Mark Stephens, the lawyer for Julian Assange, has complained his client still does not know the evidence on which the prosecution is relying. It is thereby inexplicable how Mr Pilger is any position to regard the accusations as “chaotic, incompetent and contradictory”

On 9 December, the Guardian published a long, supine interview by Amelia Gentleman with Claes Borgström, the "highly respected Swedish lawyer". In fact, Borgström is foremost a politician, a powerful member of the Social Democratic Party. He intervened in the Assange case only when the senior prosecutor in Stockholm dismissed the "rape" allegation as based on "no evidence".

This is simply an ad hominem attack on Mr Borgström and carries no weight.

In Gentleman's Guardian article, an anonymous source whispers to us that Assange's "behaviour towards women . . . was going to get him into trouble". This smear was taken up by Brooks in the paper that same day. Ken Loach and I and others on "the left" are "shoulder to shoulder" with the misogynists and "conspiracy theorists".

This sequence of contentions is at best unpersuasive. For example, Brooks did not take up this smear. Of course, the reference to “misogynists” (plural) can only be taken to mean the supporters of Mr Assange.

The Australian barrister James Catlin, who acted for Assange in October, says that both women in the case told prosecutors that they consented to have sex with Assange.

If this is indeed the case, then this is for the defence to rely on in the event any charges are brought. However, quoting a defence lawyer is of course not determinative of any allegation.

Following the "crime", one of the women threw a party in honour of Assange.

Placing the word crime in inverted commas is to pre-judge the case, but even Julian Assange and his lawyer say they do not know the prosecution evidence. Mr Pilger is thereby not in a position to dismiss the alleged offence so casually. If such a party took place, and what it proves, then that is for the criminal trial and not an extradition hearing

When Borgström was asked why he was representing the women, as both denied rape, he said: "Yes, but they are not lawyers."

There is no direct evidence available to Mr Pilger as to whether the complainants have or have not denied rape. If the evidence of the complainants does not support any offence for which he is charged, then this would a matter for the criminal trial.

Catlin describes the Swedish justice system as "a laughing stock". For three months, Assange and his lawyers have pleaded with the Swedish authorities to let them see the prosecution case.

It would appear that they should perhaps have asked Mr Pilger.

This was denied until 18 November, when the first official document arrived - in the Swedish language, contrary to European law.

Yes, Mr Assange is fully entitled to have the case against him set out in a language he understands. However, as already mentioned, Julian Assange still does not have access to the evidence on which the prosecutor is relying.

Assange still has not been charged with anything.

No, as this is an arrest warrant.

He has never been a “fugitive”. He sought and got permission to leave Sweden, and the British police have known his whereabouts since his arrival in this country. This did not stop a London magistrate on 7 December ignoring seven sureties and sending him to solitary confinement in Wandsworth Prison.

The test for bail is not sureties alone. And it is understood that Mr Assange himself asked to be placed in solitary confinement.

At every turn, Assange's basic human rights have been breached.

As noted above, there will be a third hearing in respect of bail tomorrow, in open court, where Mr Assange will have full legal representation.

The cowardly Australian government, which is legally obliged to support its citizen, has made a veiled threat to take away his passport.

In fact, the Australian High Commission in London is providing assistance to Mr Assange.

In her public remarks, the prime minister, Julia Gillard, has shamefully torn up the presumption of innocence that underpins Australian law. The Australian minister for foreign affairs ought to have called in both the Swedish and the US ambassadors to warn them against any abuse of human rights against Assange, such as the crime of incitement to murder.

The ease with which Mr Pilger makes these serious accusations of criminal activity against others contrasts with the ease with which accusations of criminal activity are dismissed when they happen to be against Mr Assange.

In contrast, vast numbers of decent people all over the world have rallied to Assange's support: people who are neither misogynists nor "internet attack dogs", to quote Libby Brooks, and who support a very different set of values from those espoused by Charles Reich. They include many distinguished feminists, such as Naomi Klein, who wrote: "Rape is being used in the Assange prosecution in the same way that women's freedom was used to invade Afghanistan. Wake up!"

As with Mr Pilger, one presumes that Ms Klein has had no access to any evidence against Mr Assange.

To hell with journalistic inquiry. Ignorance and prejudice rule.


[*] Correction made, as pointed out that Borgström not prosecutor in UK sense in comments below.


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


Tim said...

A statistical take on the same case

Oliver said...

Overall a good post. But is there not a difference between "accusations" and "evidence"?

That is, can there not be chaotic and contradictory accusations, even when no-one knows the evidence the prosecutors have?

Steve said...

The wisest thing to do with John Pilger is usually to admire the energy, the rhetorical fireworks, the effortless way that he introduces irrelevances to support his case and the sheer majesty of sweeping generalisations. There is also the mis-attribution of motives to individuals.

Then go off and read about it and make up you mind based on some cooler and more considered judgements.

That's not to say that Assange hasn't been treated rather poorly when it comes to the issue of bail, but he faces serious allegations and it has to go through due process. Of course some grand political stitch-up by the Swedish, UK, US & Australian governments can't be totally ruled out, but we'll need rather more than we've seen to believe that. One thing is for sure - if diplomatic lines have been buzzing with such a conspiracy, you can bet it's not going to be recorded in a form which can be easily leaked.

richard said...

i'm assuming that italicized quotes were from original article. however, your responses don't really shed a lot of light on the issue. best would be if sweden would go to u.k. and question assange (as they state they only want to interview him), and in the meantime let him out on bail (can you imagine the current situation if it was some non-famous person?). this would remove the rumors that sweden is acting on behalf of u.s.

and tho' i am not in any way an expert on eu law, it seems sweden is supposed to file formal charges before issuing the arrest warrant.

also, you, too, seem to rely on unsubstantiated quotes from the press (i.e. "... And it is understood that Mr Assange himself asked to be placed in solitary confinement. ...") when you disparage others (like assange's lawyers) for doing the same (calling swedish charges & evidence "... chaotic, incompetent and contradictory ...").

in the end, the bigger issue for both assange, wikileaks, and the world at large, is about more truth and transparency, and less secrets. sweden does not appear to be on the side of transparency here.

by Kimbo! said...

What, in heaven's name, is a "supine interview"? Who's being accused of lying down with whom, here?

NotForNotAgainst said...

I think your response is fair and is substantiated largely by legal points. A similar rebuttal of the feminists positions is also possible as they have also relied largely on hearsay.

The legal point that is unclear to me is this and I know these are two very different cases but I dont understand why there is such a difference in procedure:

In case of Shrien Dewani who is accused of arranging murder of his wife, prosecutors have had to go through the trouble of presenting a lot of evidence at the bail hearing (which was granted) but in case of Assange the Swedish prosecutors have not been required to provided a shred of evidence.

Is this because Assange has a EU Warrant?

Would this be similar if Assange was some Joe Bloggs?

If the latter is true then it is probably best to be a facilitator of truth OR a perpetrator of 'sex by surprise' in Sweden. Never both.

DocRichard said...

In short, it is all sub-judice, so we all must know nothing until the Law has run its majestic course.

(Eppur si muove).

Obstinately, some of us will continue to believe that if we substituted, say, Cheney for Assange, and Nigeria for Sweden, the Law would take an entirely different, although no less majestic, course.

Anonymous said...

I was about to write - 'Jack of Kent you should have been a lawyer' and then I read, on your blog, that that is exactly what you are. This kind of tortuous nit-picking gives your profession a bad name.
At least there are some lawyers who are prepared to stand up for what they believe is right, rather than extract fees through endless quibbling.


Steve said...


It is indeed because this is a European Arrest Warrant that the Swedish authorities do not have to show any evidence that a crime has been committed. The grounds under which an extradition under the EAW can be refused are rather limited.

The EAW is essentially founded under a condition that there is mutual trust between countries over the fairness of their respective judicial systems. All the signatories to the EAW treaty are also subject to judgements of the European Court of Human Rights. It's best to view it as an operational process with a few safe-guards than a judicial step.

Note that it is not a requirement of the EAW that the crime of which somebody is accused in the requesting country is necessarily a crime in the once they are being extradited from. (Which some people have a problem with but a principle which, with some restrictions on things such as "thought crime" or extraterritoriality issues, I don't).

skdadl said...

When you call Borgstrom a prosecutor, you make it clear that you do not understand the Swedish system in such cases, which differs from those of the UK, Canada, the U.S., and Australia.

The prosecutor in the case is Marianne Ny. In Sweden, however, complainants in such cases are also allowed separate representation, paid for by the state, and that is Borgstrom's role.

A good deal of your "fisking" is just sarcasm, as when you make a running joke of what Pilger knows of the conflicting and contradictory accusations -- ie, the gossip that the complainants, the police, and the prosecutors have been able to leak and talk about publicly in Sweden (and now in the Guardian) ever since August, while Assange and his attorneys have been silenced since there are no charges and they don't know much about the accusations beyond gossip.

Steve said...


The allegations against Assange are not sub-judice for three reasons. First, and extradition hearing is not the same as being charged with an offence. Secondly, no charges have been raised as such and, thirdly, a case in Sweden would not be sub-judice in the UK. I think it's just about possible that a contempt of court finding could be made about some types of comments related to the actual EAW case, but I think that would have to be pretty extreme.

Of course the position in Sweden may be different, but in principle people in the UK can speculate all they like subject, of course, to the laws of defamation. It is possible that some people have already issues some defamatory comments about the motives and actions of people involved with this case. Certainly some must have been sailing close to the wind.

Jack of Kent said...


Thank you. My description of Borgstrom was not clear and so I have deleted that sentence.


Wiccad said...

John Pilger has totally lost the plot on this issue. Bianca Jagger sounded more reasonable than he did. That letter that people signed demanding the charges be dropped was terrible and I can't respect anyone who signed it.

Lester said...

Mark Stephens, the lawyer for Julian Assange, has complained his client still does not know the evidence on which the prosecution is relying. It is thereby inexplicable how Mr Pilger is any position to regard the accusations as “chaotic, incompetent and contradictory”

Pilger explicitly states that he's talking about the accusations as discussed in the news sources he mentions. Seeing as how those accusations have ranged somewhere between 'he didn't wear a condom' to 'he pinned her arms back and held her down' (both from the Guardian) I would say that the only word that could possibly describe them is "contradictory"

catdownunder said...

The Australian Prime Minister has a degree in law and has worked in the legal profession. I heard her interviewed on Australian television news services and she stated quite clearly that Assange had broken the law. Her remarks have since been modified but the Australian government now has people working on finding out how he has broken the law. The Attorney-General has said "this could take twelve months or more".
I cannot comment. These are merely facts gleaned from hearing both of them speak at interview.

Kimpatsu said...

Surely if no charges have been filed, no arrest warrant should have been issued? Or can people now be held indefinitely without charge in increasingly theocratic and police state Europe?

Wigarse said...

Hmmm. It's nice to have as many alternative view points as possible, but this blog post in some places contradicts your last one.

For example, you said in you interview with Assange's lawyer that

"He is being kept in isolation, even though he is a model prisoner."

And here you say

"And it is understood that Mr Assange himself asked to be placed in solitary confinement."

So what are we to think? Yesterday I was angered by the unfair treatment implied by your words and today you say that apparently it was his choice and there has not been any unfair treatment.

G Thompson said...

Anonymous 15DEC2010,17:53 (Jerome) says "This kind of tortuous nit-picking gives your profession a bad name"

Tortuous nitpicking? Not being a practising lawyer myself (I hold an LLB and am a Digital Forensics consultant though) I would of thought that this picking apart of the biased nature of Mr Pilgers post and presenting the actual FACTS as known was a service to the legal profession that by its very nature is supposed to be unbiased and fair to whatever side they are representing.

Which from reading David's blog(s) through the year(s) he has always tried to achieve. (well unless they are chiropractors.. *runs*)

Though being myself an Australian I have to disagree on two points.

The situation of the Australian Government threatening to remove Mr Assange's passport is quite accurate and has had a profound affect on how ordinary Australians are responding to the situation.

Especially (and this is second point) when our Prime Minister Julian Gillard whom is also a solicitor had the audacity to state that Mr Assange had committed an "illegal" act, when she could not then nor now produce any Australian law that Mr Assange or indeed Wikileaks has breached and there has been some suggestions that she herself is in breach of law for stating that outside of parliamentary privilege.

Also there is a huge cry for a criminal investigation into the statements by some well known people internationally that have called for violence and death towards Mr Assange and others to be undertaken by our federal police on not "incitement" but instead "Conspiring to commit murder" [eg in NSW CRIMES ACT 1900 - SECT 26]

Mount Surprised said...

"Mark Stephens, the lawyer for Julian Assange, has complained his client still does not know the evidence on which the prosecution is relying. It is thereby inexplicable how Mr Pilger is any position to regard the accusations as “chaotic, incompetent and contradictory""

Because they are 'accusations' the content of which we are all (unfortunately) aware of, furthermore you aver there have been no 'charges' or 'evidence'. What's inexplicable?

Pilger is a polemicist; not a lawyer. Please rethink this piece.

Oliver Townshend said...

Our (Australian) Attorney General (Robert McClelland) did talk about taking away Assange's passport, but then revealed he couldn't. It was very odd.

Peter in Dundee said...

Jack I note that you fail to address the issue of whether or not Mr Assange should have been remanded in custody in the first place when considering whether his rights have been traduced. It is all very well to say 'he has had access to open court hearings' but in doing so you ignore the salient fact that when not in court he is in gaol.

When the arrest warrant is irregular (no charges have been brought as is supposed to be required) and credible reports including from today's judge who released him that any likely charges would not result in a prison sentence then is incarceration looks both suspicious and a breach of his rights.

Recourse to the sort of arguments that go 'it is normal to deny bail to people who are not residents etc, etc.' wilfully ignore the irregular aspects above.

Thus all your arguments in this area are tendentious because they ignore the rights and wrongs of remanding him in custody in the first place.

This is important since if the legal system is going to behave in capricious ways like this as a matter of course then innocent people wrongly charged are going to have their lives ruined for no good reason as they lose jobs and accommodation through being banged up on remand.

Would you be so sanguine if it was you banged up on a spurious European Arrest Warrant after a weekend break abroad? I very much doubt it.

Nick Gordon said...

Unfortunately, Jack, you've got yourself involved in a religious dispute. No amount of reason will shake the faith of your opponents because they just *know* they're right, and they're prepared to burn anyone who disagrees at the stake to prove it.

John Gray said...

I am afraid that Pilger nowadays appears to be a nothing more than a common bigot

Lloyd Jenkins said...

Because they are 'accusations' the content of which we are all (unfortunately) aware of, furthermore you aver there have been no 'charges' or 'evidence'. What's inexplicable?
I can see two definitions of 'accusations' that might be relevant here. Firstly, the ones made by the victims/prosecution; secondly the reports of those in the papers. The first won't be fully known until/unless Assange is charged. If Pilger was complaining about the second he should have made it more clear: the rest of the post was about Assange's treatment at the hands of the government(s) not the press.

Darren said...

This is a strange tack to take, David: a sentence by sentence assassination. And I'm not convinced that you haven't been a little guilty here of some of the failings you take Pilger to task for.

It seems a bit tricksy to say, for example: 'Placing the word crime in inverted commas is to pre-judge the case.' Wouldn't it also be pre-judging the case not to do so, given that he has been convicted of no crime?

There is no doubt that this is both a confusing case and an emotive one, with misinformation and gossip rife on both sides. Laypeople such as myself could really benefit from a disinterested and informed analysis. I really hope you can find the time to provide that.

Lifewish said...

Does anyone know of a summary of how this European arrest warrant stuff is supposed to work, and how it normally operates? I personally can't judge whether Mr Assange's case has been affected by politics, because I have no baseline to compare it with.

Steve Jones said...


"It seems a bit tricksy to say, for example: 'Placing the word crime in inverted commas is to pre-judge the case.' Wouldn't it also be pre-judging the case not to do so, given that he has been convicted of no crime?"

Sorry, but this just will not do. David uses the correct form in calling these "crime allegations". John Pilger's use of quotes round the word crime (and without the use of the word alleged or similar qualifier) is a rhetorical conceit. It's designed to denigrate the allegations before they have come to trial. John Pilger is an experienced journalist, well versed in polemical techniques. This is a classic ruse (which a skilled orator can also use through appropriate intonation).

(Of course I used quotes too, but unlike Pilger, for the purpose their name implies).