Eyewitness account from the Royal Crown Court
WL CentralRoyal Courts of Justice, 17 July 2011 (Excerpts), witness account by emirjame
Strategies by Montgomery
The exotic argument: because the language or the country are foreign and different from England, that doesn’t mean that they are not right. They should be entitled to do their thing. She then tries to discourage the court from trying to understand what is going on.
The simplicity argument: don’t make it too complicated / go too deep into details - that is not our task here!
The expert argument: quote an expert (and several times she quotes the witnesses for the defense from Assange’s trial at Belmarsh): "Mr. Hurtig has told us that Swedish rape-law is based on consent". The game of quoting witnesses from your adversary is played by both the prosecution and the defense: Quoting their adversaries unexpectedly on controversial points, they are able to give these points more validity than they maybe should have.
The authority argument: "The district judge has said..."
Reply judge to the last one: "It doesn’t matter, we have to decide"
I am sure that a lot of these strategies can be very successful, but in this court the judges are often too strict to buy into them.
Strategy by Emmerson
Emmerson starts a very good attack on the strategy so far adopted by the Swedish team: Only part of the investigation file has so far been brought before the UK courts. He says: "As the prosecution did not choose to bring the rest of the file before the judges, the conclusion must be that the rest of the file is unhelpful!" He makes very clear that at the moment Montgomery has the whole investigation file at her disposal and can pick and choose whatever she wants to use to try to win the case for Sweden. The Assange team do not have such an option and can also not see if meanings have altered (and object) when things are presented out of context.
The judges now also get interested in this point and ask at what point in time Mr. Assange and his team will have the complete file at their disposal. The answer is: Only after he has been charged, three weeks into the case.
Proportionality
Montgomery: I don’t understand why they make a point on proportionality.
Judge: You don’t? Or you don’t want to? Why go through all of this if he was prepared to offer himself for an interview? If you know enough to indict before the interrogation - then why wait for the interrogation before the indictment? If you don’t - then how can you seriously declare that you are going to indict? Why are we precluded from acting with sense in this European Union? If he could be interviewed by video?
Montgomery: The Supreme Court of Sweden asked Mr. Assange to be present in person.
Judge: Why? Cooperation is a two way street.
Montgomery argues that the Swedes want to prosecute anyway and then need to extradite anyway. If they extradite in the stage before the interview it will allow them to do their interview face-to-face.
Has Assange been properly charged/ accused?
The above is the first sign of a complex controversy that is at the heart of this process: The Swedish prosecution claim that they cannot charge Mr. Assange without having had their interview. They first want to complete their investigation and then decide if they have a case and can charge. Despite this they claim that they are certain that they will prosecute! And want to act accordingly! This will clearly make the whole interview pointless. But it is British law that you can never prosecute without laying charges. They even have to charge you before they interview you. The judge asks if they want to prosecute Assange without having charged him at all! Montgomery confirms that this is indeed the case!
I see judge Ouseley go into deep thought at this stage of the process; he shows that by lifting his wig and moving it in the direction of his forehead. Then he keeps hold of it and slowly slides it backwards over his hair.
No trias politica
Montgomery now seems to argue that many European countries don’t have a clear trias politica: a divide between the legislative, the juridical and the executive power. "They interlock in a much broader context." Being Dutch, I first object to being contrasted as ’Europeans’ with ’The English’. I also object against the notion that there are no clear divisions between the separate powers in eg. my country. "If Mrs. Ny is an appropriate requesting authority she is also an appropriate executing authority."
What is clear to me, watching all this, is that it is a failure that there is no true authority on Swedish law present. People will start asking Claire Montgomery questions that she may not have anticipated ("how does Swedish law operate") and then all parties seem to kind of agree that the reconstruction they make together must be more or less the correct one. For certain answers she refers back to witnesses for Assange in the process at the district court. She quotes eg. Mr. Hurtig. I would want a stronger source to "know" how Swedish law is supposed to operate than testimony from just one lawyer that was focusing on a different point while he made a remark. I find it disappointing that all this type of testimony is accepted as a proper representation of the truth. I have also to say that, despite all the testimony, I still simply cannot believe that the Swedish prosecution cannot prosecute without an interview.
An EAW is invalid if you want to use it for investigation instead of prosecution
This part of the case is argued for Assange by Mark Summers. The House of Lords has ruled in a case called "Ismail": It is common ground that mere suspicion that an individual has committed offenses is insufficient to place him in the category of ’accused’ persons [...]. Something more is required ... the competent authorities in the foreign jurisdiction have taken a step which can fairly be described as the commencement of a prosecution. Central question: has the decision been made to prosecute and does there exist any evidence (paperwork) to support that?? The judge even wonders if the EAW in itself could count as such paperwork, but then (lucky enough) denies it!
A yellow note is passed from Kristinn Hrafnsson to the barrister (maybe it came from Assange or Gareth): the website of the Swedish Prosecution Authority still states at this very moment that the case is under investigation. That would, by definition, make the EAW invalid!!!!
The note makes me wonder for a while how much precious time the Assange team have been forced to take time away from their own work to study the ins and outs of this complicated court case. Obvious answer: way too much!!
The defense points out that, by doing the interview with Assange, Sweden could at any time they wanted have moved the case forward from investigation to prosecution. Also: if they were prosecuting they could and should have arrested Assange in Sweden! They also point out that if they would do the interview now - that would not undo the invalidity of the arrest warrant.
Montgomery argues that it is clear that the ’juridical process’ has definitely commenced.
Ouseley answers: the juridical process is a very long process - all you have done is choose a phrase that actually doesn’t help. If we are somewhere in a time continuum, we have to decide - on a fact basis - when an investigation turns into a prosecution.
Montgomery: If a wife is killed and the husband flees the country with the blood still on his hands you will want him arrested and brought back. It is obvious that the prosecution will start before the investigation. The answer to that is that it is clear that a crime has been committed.
Thomson: Some juridical authority will have charged him!
Read the original article in full on WL Central
