The Mutual Legal Assistance (MLA) Letter of Request (LOR), Disclosure and Abuse of Process in the Julian Assange Case: The Factors Requiring the Prosecution to Deny an Interview in London

In the case against Julian Assange, the use of the European Arrest Warrant (EAW) has caused huge controversy. In the UK only a judicial authority (a Judge) can issue a warrant under the Extradition Act 2003, with good reason; a prosecutor is liable to be highly partisan and likely to lose objectivity.

The disconnect between the EAW issued by Marianne Ny (Head of the Public Prosecutor’s Office, Development Unit in Gothenburg, Sweden) against Julian Assange and the allegations made by the complainants defies logic and illustrates the danger of foreign prosecutors being considered lawful judicial authorities by UK courts.

13-14 August 2010 Unlawful coercion Sexual molestation Anna Ardin, “[Assange asked Anna what she was doing], (Anna) [told him that she wanted him to wear a condom], [at that, Assange released Anna’s arms and put on a condom]. [Assange deliberately broke the condom]. [Ardin did not look closely at the condom in order to see if it was broken]. (Ardin submits as evidence a condom, which is found to contain absolutely no DNA from either herself or Julian Assange).

18 August 2010 Sexual molestation Anna Ardin, “he (sic) rubbed his lower body and erect penis against Anna. Anna (sic) moved down to a mattress on the floor and slept there instead of on the bed with Assange.”

17 August 2010 Rape Sofia Wilén, “After several acts of copulation she was half sleep.” Katarina Svensson, “Sofia also said that, when she was half asleep.”

Sexual and gender issues have recently become powerful political currencies in Sweden and this capital is used by those seeking elected office or positions connected to politics. Marianne Ny is a long-time campaigner for further reforming Sweden’s sexual offences legislation. Complainant Anna Ardin was a Swedish Social Democratic Party candidate in the Stockholm City Council elections with Irmeli Wreath (the police officer who interviewed complainant Sofia Wilén with Ardin) at the time of the alleged offences, and their legal representative Claes Borgström served as the SDP’s Equality Ombudsman between 2000 and 2007. Bias through political motive cannot be discounted in this case and again illustrates the danger of a UK court, recognizing a foreign prosecutor as a lawful judicial authority.

The use of a EAW is controversial for another reason: at the City of Westminster Magistrates’ Court in ‘The judicial authority in Sweden -v- Julian Paul Assange’, Judge Howard Riddle stated that Mutual Legal Assistance “was a more proportionate response than issuing an EAW” for the purpose of questioning a witness.

The question becomes why is a EAW being employed in the first place? It has clearly ‘sexed up’ the factual substance of the allegations. Julian Assange’s London lawyer, Mark Stephens, stated that “the arrest warrant was sent back by Scotland Yard (London police) because it did not comply with the law (UK) and was defective.” This explains why an interpol red notice issued for Julian Assange in November 2010, was for a time, without a warrent to back it. A credible source has stated that Myrianne Ny had failed to fill out the answers in the pre-printed form correctly and/or fully. Was the EAW then embellished and resubmitted because its initial interpretation of the allegations had failed to describe anything that Scotland Yard recognized as a crime? But why take this route anyway, when the far simpler path of Mutual Legal Assistance could have been used to question Assange?

Is the use of a EAW to shield a far greater controversy?

Judge Howard Riddle also stated “through Mr Hurtig, Mr Assange offered to be interviewed in Sweden after 9th/10th October, rejected as “too far away”, and later in a variety of ways from outside Sweden. All those offers were rejected by Ms Ny, who made it clear that the interview should take place in Sweden. A number of reasons have been speculated as to why she took that view. I am not in a position to say what the reason was.”

While Riddle is “not in a position to say,” we are in that position.

Marianne Ny at first denied that using the standard framework of Mutual Legal Assistance was legal, “Swedish law prohibits formal legal interviews over a telephone or video link. The Swedish embassy in London is not Swedish territory in the sense that we can hold interrogations there without formal approval of British authorities.” Time magazine by Eben Harrell 03.12.2010

Eventually, under the weight of legal comment, she was forced to admit that MLA is the standard method used in obtaining evidence and information in international inquiries  that it is perfectly legal and employed by Sweden whenever cases cross national boundaries. The Swedish government is, after all, a signatory to the European Union Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. The Swedish Government website dealing with this matter states: “Swedish prosecutor or court can then request legal assistance regarding a hearing by telephone if an agreement has been concluded regarding such legal assistance under an international agreement with the other country or if that country otherwise provides such assistance.”

It is worth noting another example of duplicity by Ny in the Time magazine interview: “a case in the southern Swedish city of Helsingborg where a suspect was heard via telephone was heavily criticized by the Ombudsmen for Justice as not being in accordance with existing law.” However, she does not mention and no one has been criticized regarding the fact that one of the accusers of Julian Assange, Anna Ardin, was permitted to give evidence via telephone and that this is just as much standard practice in Sweden as it is everywhere else. Or that under Sweden’s Code of Judicial Procedure “the investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience.”

In a witness statement submitted by fax to the extradition proceedings City of Westminster Magistrates’ Court (Ny refused to come in person to the court to be questioned about her evidence), apparently unaware of the contradiction and the nonsensical nature of her position, Ny stated: “It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that it is necessary to interrogate Assange in person regarding the evidence in respect of the serious allegations made against him.” It seems, for some reason, that questioning Julian Assange via even video link is not ‘personal’ enough. Perhaps, considering such an unusual stance, the prosecutor ought to come here in person – like she couldn’t be bothered to do when asked to be cross-examined on the evidence she submitted to a UK court.

When Martha Kearney interviewed Karin Rosander, Director of Communications for the Swedish Prosecution Authority, on The World at One, BBC Radio 4, she seemed as perplexed as Judge Riddle:

KR: The prosecutor has stated that, according to circumstances in the investigation, her opinion is that it’s necessary that he is present in Sweden, and she hasn’t stated exactly what circumstances, but that’s her statement.

MK: But isn’t it the case that Swedish prosecutors have gone abroad to question defendants in serious cases at other times?

KR: Yes, that’s true, it has happened. And it’s for the individual – it’s for the prosecutor – to decide which measures to take. So it’s… it’s all about what the prosecutor decides to do.

MK: But what you’re saying is there are circumstances in this case that make it very different. It’s hard to understand what they might be!

KR: Yeah. And the prosecutor hasn’t stated exactly what kind of circumstance – what circumstances – but that’s her… her decision.

MK: So how is the deadlock going to be resolved then?

KR: Uhhh… I have no idea really.

When faced with someone holding an untenable position, there is usually a logic to why this person is choosing to cling to such ground. While many have remained mystified by this decision, is there a simple straightforward explanation?

That the use of the Mutual Legal Assistance Framework brings a danger – the only avenue to avoid this danger is to bypass it, and move to EAW and extradition.

The critical danger is that the defense could possibly, through disclosure, gain possession of a document that would be admissible as evidence in any future extradition hearing.

According to UK Home Office Guidelines this has to appear on a MLA LOR:

1. A description of the offences charged or under investigation and sentence or penalty.

2. Copy of legislation that criminalizes the conduct in requesting country, information on offence, penalty and rights afforded to the accused.

3. A summary of the facts giving rise to the request and connection this case has to the UK.

According to the UK Crown Prosecution Services’ Disclosure Manual Chapter 35: Legal Guidance:

35.29. In view of the nature of their contents, a letter of request (LOR) will not usually satisfy the disclosure test. However, if the principle of specialty under section 9(2) of the CICA that limits the use to which material obtained can be put, is not respected and/or there is a material departure from the requirements of sections 7 and 8 of the CICA, the defense legitimately may be able to raise an abuse argument or seek to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984, then the prosecutor should carefully consider disclosure.

Section 7 CICA Requests for assistance in obtaining evidence abroad.

(1)If it appears to a judicial authority in the United Kingdom on an application made by a person mentioned in subsection (3).

(a)That an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed.

(The Request must establish reasonable grounds for believing that the offence in question has been committed – as opposed to a fishing expedition – this would be done within the body of the request which should set out the factual background of the information possessed by the foreign authority which led to the belief).

The LOR in this case might very well meet the disclosure test and therefore could be turned over to the defense  In that, a UK judicial authority would have to review the evidence in relation to the charges, to the UK standards seen above, to ascertain ‘reasonable grounds’ and decide if the disclosure test has been met. This would destroy the case against Julian Assange.

1. If the request was denied, for all intents and purposes the case would collapse.

Denial of such a request seems very likely, if Marianne Ny’s first attempt at a EAW was dismissed by Scotland Yard, one could imagine the UK Central Authority (UKCA) doing the same. UKCA is required to compare the charges to the evidence summary. Here, Marianne Ny would have to ‘sex up’ the evidence, a rather different prospect to the manipulation of a EAW, where the ‘interpretive nature’ of the charges temporarily provides cover.

2. If it was released to the defense, it could be admissible in open court.

If submitted in evidence, at extradition proceedings by the defense to show abuse of process, it could be employed by the defense to circumvent the inability of the court to directly look at the evidence. This possible exploitable loophole would not only cause the case to collapse, it would have serious repercussions for Marianne Ny in Sweden.

Recently Anne Ramberg, Secretary General of the Swedish Bar Association, has seen to it that politician-lawyer Claes Borgström stand trial in the Disciplinary Committee regarding misconduct in the infamous Thomas Quick case, Sweden’s greatest miscarriage of Justice. Claes Borgström is the legal representative of choice for the complainants, who telephoned him and asked him to intervene when the case was dropped by chief prosecutor Eva Finné who stated “there is no suspicion of any crime whatsoever.”

Even at this stage, a MLA LOR request document taken to the ECHR would, without any question, show a breach of the duty of candor re UK CPS Disclosure Manual and would cause “proceedings stayed on grounds of abuse of process.” 35.54

As time rolls on, as the stakes increase, as the siege of the Ecuadorian Embassy makes headlines across the Globe, Marianne Ny and everyone involved in this affair must realize that they can only delay an inevitable outcome and the certain consequences of their actions.

The abuses of process and mishandlings in this case are huge, spanning from the initial police procedures, to scandalous leaks to tabloid newspapers, to outright bias against the accused by not affording him Swedish procedures stated in the Prosecutors Manual. From the opening minutes of the case to the current stand-off, questions of conduct have been raised and ignored. They are raised again.

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