Geoffrey Robertson QC, an adviser to the legal team for Julian Assange, discusses his legal battle against extradition to Sweden. Britain’s Supreme court is expected to rule on the case any time.

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Damien Carrick: Today the legal perils of ‘sexting’. Children are being placed on the New South Wales child sex offenders register because they have engaged in ‘sexting’ with others their own age. Is this consequence appropriate? That’s later in the show.

First to another form of online behaviour that can lead to serious legal outcomes: leaking documents. Right now WikiLeaks founder Julian Assange is anxiously awaiting a decision of the British Supreme Court. It’s his last hope of avoiding extradition to Sweden, where he is wanted for questioning over allegations of sexual assault. Assange fears that once in Sweden he could be re-extradited to the USA, where he’d face espionage charges.

Geoffrey Robertson QC is Julian Assange’s legal adviser. He says the British Supreme Court has just gone into a four-week recess, so a decision is not expected until mid-May. Geoffrey Robertson says the appeal case centres on the European arrest warrant system and how it sits with the common law system which operates in the UK.

Geoffrey Robertson: Essentially the question is this: the warrant against him was issued by a judicial authority under the European Convention for these warrants, it had to be issued by a judicial authority. In this case, it was issued by the Swedish prosecutor. Now, the Swedish prosecutor may be regarded, and they are, as judicial authorities in some European countries, but not under the common law. I began the argument against this warrant by saying that to claim that a prosecutor is a judicial authority is a contradiction in terms, because in our jurisprudence prosecutors aren’t judges, they can’t on any view be called judicial authorities, they are parti pris and rightly so. They’re out to get the defendant, they’re not making an independent and impartial decision. So that is the issue, and you’d think that it would be a slam dunk as the Americans say, and it would be if this were being decided under British law, but of course the Supreme Court has to apply European law, and Europeans are full of…European countries, many of them have what they term ‘investigative judges’, or ‘investigative magistrates’. They blur the distinction in many cases.

Damien Carrick: Now, if the court rules in favour of Sweden, has Assange exhausted his legal avenues? At that point will he be sent off to Sweden?

Geoffrey Robertson: Yes, in all probability. There may be further issues, but then he has to face a difficult period in which under Swedish law, there is no bail, so he’ll be put in prison pending trial, which is pretty preposterous that there’s no bail, but a number of these seemingly advanced European countries simply do not have a system of money bail for foreigners, and Sweden has been criticised on that score. Then he’ll go to a secret trial. You can understand, he’s charged with an offence which they call ‘minor rape’. Now, that’s a contradiction in terms again for us, because all rape is heinous, but they have charged him with this curious minor rape offence, which they…and they have trials in secret in order to encourage prosecution witnesses, and that is of course a breach of our open justice principle, and they don’t have a jury, they’ve got a judge sitting with two retired politicians…the political parties that nominate the characters who sit with judges, two in each trial. So it’s a very unfamiliar and very unsatisfactory system, but of course the Swedes have a very merciful sentencing system, so if you like no one cares so much about the improprieties in procedure, because at the end of the day no one in Sweden goes to prison for very long.

Damien Carrick: One clarification: of course, Geoffrey Robertson, Julian Assange hasn’t yet been formerly charged yet, has he?

Geoffrey Robertson: No, this is one striking feature of the European arrest warrant system. Of course, it’s aimed to make extradition of alleged criminals as easy between states of Europe as it is between New South Wales and Victoria, but in this case the Swedes claim that they merely want him to interrogate him, although I think they’re pretty determined to charge him. So he hasn’t actually been charged, but it’s a draconian step, but you’ve got to remember that when these charges were first brought before the very experienced Stockholm prosecutor she threw them out, she said, ‘This doesn’t amount to rape’, and she wouldn’t have a bar of it. So then this faction, it’s a political faction led by a political lawyer-politician went secretly to a gender prosecutor, a prosecutor with a gender agenda, and persuaded her that it could arguably amount to rape, and she was the one who issued the arrest warrant.

Damien Carrick: Of course, as well as facing the Swedish justice system, the danger is that once in Sweden he may face the possibility of being extradited onwards to the USA.

Geoffrey Robertson: I have to say, that’s the $64 question. The Americans want him, they’ve got a grand jury out to try to prosecute him under the Espionage Act, and, gosh, he could go to prison. Each charge is ten years. He could find himself facing many years of imprisonment in America if they got hold of him, and I think in Britain, we could probably prevent that, because…the idea that we do have principles of free speech, and I think a robust judicial system that the Americans would have to have a great deal of difficulty convincing that they could prosecute someone for actions taken entirely outside the jurisdiction, in relation to which they won’t prosecute their own newspapers like The New York Times.

I think they’d have great difficulty in Britain, but Sweden is a small country, it’s got a quite unjustified liberal reputation. In fact, it’s got a government that has been complicit with the CIA and has been held by courts to be complicit with the CIA in rendition requests. It’s a government that’s been advised by Karl Rove at the moment, who was George Bush’s famous or infamous adviser, and it has a socialised legal system, which I have to say prevents the development of a really aggressive or independent stance against government decisions. So for all these reasons and more, he’s rather more vulnerable, once he gets to Sweden, to American extradition requests than he would be if he stayed in Britain. Of course, his ultimate wish is to return to Australia. He’s prepared to…He is an Australian, he indeed wants to stand for the senate here and he’s prepared to take his chances with independent Australian judges.

Damien Carrick: And very, very briefly, what do we know about the situation of Bradley Manning, the US soldier who is alleged to have provided WikiLeaks with the alleged cables? What’s his situation?

Geoffrey Robertson: Well, he’s been committed for trial. It will be not, not trial as we understand it with a jury, but it will be trial before a military court, which is in itself unsatisfactory, because it’s really soldiers trying soldiers, and again, the question of independence arises because the judge advocate and the office of jurors are all employed by the defence department and by the government that is, in a sense, making the allegations against him. But what is interesting is that Mr Manning even though at one point he was charged with offences that carry the death penalty, has resolutely refused to implicate Julian Assange or to suggest that he’s been in any way groomed or induced or corrupted by Assange. I think the, obviously the plea bargaining American…American criminal lawyers don’t do criminal law, they do plea bargaining, because 98 per cent of cases in America are settled by plea bargains rather than trials, and I think Bradley Manning was offered a number of plea bargains if he would implicate Mr Assange, which he has resolutely refused to do, so his trial will come up later this year. There is a grand jury sitting in Virginia. A defence contracted grand jury is a medieval procedure that the Americans for reasons that are pretty obvious have continued. It’s been abolished of course in Australia and Britain, but they get 20 people off the streets and they bring them before the prosecutor. There’s no judge in the room, it’s just the prosecutor who persuades the jury usually without any difficulty to indict whoever the prosecutor has in their sights. So there is a saying among American lawyers that the grand jury would indict a ham sandwich, so it’s not really a protection, and the grand jury’s still sitting. It’s been sitting for 15 months on Assange, and it really is another problem for him, and you’ve got to remember that for 450 days he’s been under a form of house arrest. He’s got this grand jury hanging over him, he’s got the prosecution system, which is very alien to our standards of fairness, in Sweden it’s like yapping at his heels. I think it would be a great relief to him to come home to Australia.

Damien Carrick: Geoffrey Robertson QC, the legal adviser to Julian Assange. You’re listening to the Law Report broadcast each week on Radio National, Radio Australia and ABC News Radio. Our website is at Damien Carrick with you.

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