Understanding the Arbitrary Nature of the British Judiciary’s Treatment of Assange

On the, 17th July 2020, Nina Cross sent this as yet unpublished article to the editors of this site.

There seem to be two notable tendencies of the British extradition courts. One is their protective nature towards oligarchs seeking asylum from Russia; the other is the extent they go to enable the extradition of Julian Assange. The first involves applying human rights and rights of asylum in the courts; the second involves removing human rights and rights of asylum from the courts.  By comparing them we can see the arbitrary nature of the British judiciary’s treatment of Assange.

epa08243440 Supporters of Wikileaks founder Julian Assange protest in front of the Woolwich Crown Court in London, Britain, 24 February 2020. Assange is facing possible extradition to the US on 18 charges, where he could be sentenced with up to 175 years in prison if found guilty. EPA/NEIL HALL

We might remember British courts refused to extradite individuals to Russia for financial crimes connected to Yukos oil while the company was in the hands of oligarchs Mikhail Khodorkovsky and Platon Lebedev, champions of “market capitalism in Russia”. British courts claimed the allegations of financial crimes against individuals who were connected to Khodorkovsky and seeking asylum in the UK were politically motivated.  In contrast, we are told by the extradition court that Julian Assange, fighting extradition for charges of espionage, having exposed war crimes, is facing “serious allegations in the US.”   Yet if the average person were asked to choose, which of the following two charges do you think they would describe as politically motivated?

  1. Massive financial crimes including defrauding the state
  2. Espionage for publishing sources exposing government corruption and war crimes

It is notable that the British extradition courts hurried to refuse extradition requests relating to the first, but appear to be facilitating the second.  Is the interpretation of a politically motivated extradition request that arbitrary in British courts?

Alexander Temerko 

In 2005 Judge Timothy Workman refused to extraditefrom the UK several individuals wanted by the Russian authorities.  One of those was  Alexander Temerko, senior vice-president at Yukos, who was facing allegations of Conspiracy to Defraud and of Conspiracy to Pervert the Course of Justice. Judge Workman claimed the case against Temerko was politically motivated by extension of the fact he believed the case against Khodorkovsky, eventually convicted by the Russian authorities in 2005 for tax evasion crimes (and again in 2010 for embezzlement and money laundering) was politically motivated. 

As a result, Temerko remained in the UK, and with the growth of his business in the UK became increasingly influential, and known for his connections to the Tory party to which he has made significant donations.   However, when Khodorkovsky took his case to the European Court of Human Rights, its ruling in 2011 did  not support the view it was politically motivated and in a second ruling in 2013 following his second trial and conviction, the ECHR claimed the case had ‘a healthy core‘.  Judge Workman may have had his reasons to refuse extradition, but by claiming the charges were politically motivated he allowed scope for interpretation the charges were trumped up, an interpretation clearly rejected by the ECHR.

On the publication of the ECHR ruling in 2011 the British media reported the findings but with no analysis of the convictions for financial crimes, while Khodorkovsky’s representative  was given a national platform.  The case of Khodorkovsky was presented to the West as a human rights case and he was effectively portrayed as a martyr.   Khodorkovsky would appear to be the righttype of Russian for the British political class, and his associates were the right type of asylum seekers for the extradition courts.

Public mobbing by public officials

Had the Russian Minister for Foreign Affairs, Sergey Lavrov, called Temerko a miserable little worm, we can imagine how this would have been presented at the extradition court of Judge Workman.  Yet the British Former Foreign Office Minister, Alan Duncan, made such a comment about Assange in the House of Commons.  Did we think then that Assange might be treated fairly?  Duncan’s collaboration with the Moreno government of Ecuador resulted in Assange being dragged out of the Ecuadorian embassy on 11th April last year, an act that violated international law

Immediately following Assange’s arrest, British Foreign Secretary, Jeremy Hunt, made the following statement in what appeared to be an announcement presented in interview format, and broadcasted by the leading state broadcaster, the BBC, Jeremy Hunt: 

“No one is above the law. Julian Assange is no hero. He has hidden from the truthfor years and years and it is right that his future should be decided in the British judicial system. What has happened today is the result of years of careful diplomacy by the foreign office and I commend particularly our ambassador in Ecuador, and Alan Duncan and his team here in London for their work but also the very courageous decision by President Moreno in Ecuador to resolve the situation that has been going on for nearly seven years I mean it’s not so much Julian Assange being held hostage in the Ecuadorian Embassy, it’s actually Julian Assange holding the Ecuadorian embassy hostage in a situation that was absolutely intolerable for them so this will now be decided properly, independently by the British legal system respected throughout the world for its independent and integrity and that is the right outcome.”

BBC Political News: 

And What was the process that led to this between Ecuador and the UK?

Jeremy Hunt: 

Well we have been talking to them for a very very long time about how to resolve the situation. We are a law abiding country we always uphold the law so we have to follow all the international rules in a situation like this but there was a change of leadership by Ecuador, President Moreno took a courageous decision which has meant that we have been able to resolve the situation today.

This in effect announcement by Hunt appears to have been broadcasted in less than 90 minutes after Assange’s arrest, according to the times indicated, and before he even appeared in court. Hunt’s comments, how they were presented and when, demonstrate how he used his powerful position to shape the public’s view of Assange, an example of what Nils Melzer, UN rapporteur on Torture, has described as ‘public mobbing’. Hunt used a strategy of figurative language and insinuation to create suspicion around Assange. What ‘truth’ had Assange ‘hidden from’? Everyone knew he claimed asylum in the Ecuadorian embassy in 2012, thereby jumping a police bail, which in 2019 was not attached to any investigation or existing or previous charges. In its 2015 decision of arbitrary detention, the United Nations Working Group on Arbitrary Detention (UNWGAD) recognised Assange skipping police bail was a result of his seeking political asylum at the embassy. What truthwas Hunt therefore referring to? What ‘this’ would be ‘decided properly’? As there were no charges or even allegations made against Assange when Hunt made this speech, what was this mysterious vague badness hanging over Assange, evoked by Hunt, that the public should be so wary of and see as a reason to anticipate punishment, but that could not be clearly articulated?

Another term used by Hunt that day was ‘holding the Ecuadorian embassy hostage’. The power of such words should not be underestimated when used by political leaders. In fact, it has been described as a ‘rhetorical weapon’ used most enthusiastically by Barack Obama: 

Never again will the American taxpayer be heldhostage by a bank that is too big to fail.” (January 21, 2010, Remarks on Financial Regulatory Reform)

Obama, a lawyer, used the term 70 times, demonstrating how highly he rated its political value, as has been pointed out:

President Obama and his speechwriters undoubtedly feel there is significant political value in playing the hostage card with respect to a whole host of domestic policy issues.

So why is it such a handy little weapon? We do not expect to hear the term ‘hostage’ from a leader without serious implications. When used to describe real cases we associate it with murder, death and danger. When used figuratively, it implies victimhood by one party subdued by another more powerful. Hunt wanted the public to believe Ecuador was being terrorised by Assange, and to support Moreno’s decision to expel him from the embassy. This was a flagrant violation of international laws, including non-refoulement, which means asylum cannot be removed, once granted, if the case for political persecution still exists. In Assange’s case it clearly still existed. Hunt’s comments were designed to legitimise Moreno’s actions. We now know that it was in fact Assange who was the victim inside the Ecuadorian embassy since Moreno came to power. He was denied visitors, a phone and internet access and then allowed limited access following intervention by UN officials. It has also come to light that he and his visitors were subjected to illegal and intrusive surveillance that was designed to benefit those engineering his extradition. In reality, Assange had been there entirely legitimately in accordance with international asylum law since the previous President, Rafael Correa, supported his application. Later that day, when Assange was indicted on a politically-motivated agenda by the US; it had nothing to do with the Ecuadorian embassy, which brought no charges against him, despite Hunt’s story to the public. The purpose of Hunt’s broadcast was clear: to discredit Assange, promote propaganda about his behaviour inside the embassy, airbrush his reason for being in the embassy and airbrush its legality.  

When was the last time a foreign secretary held a press interview about someone who breached a police bail several years previously? Is it a proportionate action by a government official towards someone with no criminal record, and not charged with any crime? We can imagine that Hunt’s remarks on the day of Assange’s arrest might have been written by a lawyer. They insinuate but do not name, they infer but do not clarify, and they were powerfully persuasive. And whom were they designed to persuade? The public or the courts? 

We might also read Hunt’s comments as an admission that his government had been able to arrest Assange because Moreno had broken ‘international rules,’ if not an actual admission that the UK government had stopped respecting them:

“…we have to follow all the international rules in a situation like this butthere was a change of leadership by Ecuador, President Moreno took a courageous decision which has meant that we have been able to resolve the situation today…”

What does this actually mean? That the British government chose not to invade the Ecuadorian embassy to capture Assange while the Correa government was in power? The reality behind this rhetoric was that by removing Assange’s asylum status in this politically motivated way, the Moreno government violated “international rules.” British politicians conspired to use this to send their authorities into Ecuadorian jurisdiction, the Ecuadorian embassy, to snatch Assange, denying him due legal process. 

The silence by the British media, and judiciary, following comments made about Assange by British leaders can be contrasted to the storm of hysterics over several comments made by Russian President Putin following Khodorkovsky’s first conviction in 2005, prior to his second. These include the following:

 “… As for Khodorkovsky, I have expressed my opinion on this on many occasions. But if you want me to repeat myself again now, I will. It is my conviction that “a thief should be in jail” [a quotation from a famous Soviet film starring Vladimir Vysotsky]. Khodorkovsky has been convicted, by court, for embezzlement, pretty major embezzlement. We’re talking about tax evasion and fraud involving billions of roubles. Then, very importantly, there was also the matter of his personal tax evasion.

Outrage poured from Western media outlets.  The Guardian called it a flagrant abuse of process’.   However, the ECHR ruled that Putin’s comments did not violate the convention protecting presumption of innocence because he had set his comments in the context of Khodorkovsky’s conviction.  The ruling makes the point also that Putin’s comment was spontaneous, made during a question-and-answer session with the general public. In contrast, Hunt’s comments about Assange were prepared and the interview appears to have been staged to take place directly after Assange’s arrest. It reached a mass audience through BBC Political News, a significant platform for British government announcements. 


(this link shows Assange dragged out of embassy at 10.44

this link shows Hunt making a statement about Assange’s arrest at 12.04

The charges against Assange brought by the US the same day of his arrest revealed the politically-motivated reason why the British authorities trapped him inside the Ecuadorian embassy for seven years.  It was never about sexual allegations:Swedish prosecutors were the last to know about his arrest despite all the years the Swedish authorities hung arrest warrants over him for allegations they failed to investigate and that contributed to the 2015 UNWGAD opinion of arbitrary detention.  On 11th April, Hunt publicly smeared and vilified Assange in an attempt to cover this politically-motivated abuse of process even before Assange stepped foot inside court. Even for this he had been given no time to prepare.

Enabling impunity 

Threats against Assange’s life have been made by powerful politicians (as seen here, here and here), some presented in court by his lawyers to explain why he sought asylum.  But the British courts’ routine dismissal of the death threats and instigations of violence by US public officials directed at Assange should be contrasted with the way the same extradition courts have rallied behind oligarchs fleeing Russia and claiming fear of persecution. Why are threats of violence and murder against Assange given a pass by British courts?

The denial of human rights in the case of Assange was seen in Judge Taylor’s sentencing statement to Assange’s notes of mitigation submitted on 2nd May last year, dismissing the UN ruling of arbitrary detention.  Her only reference to asylum was in the context of it being ‘revoked’ by the Moreno government of Ecuador, which, as has been made clear, was in fact a violation of international law of asylum.  And as Assange’s fears of extradition are unfolding in full view of the world, British judges have sent a journalist, who has held  authority to account for war crimes and corruption, to rot indefinitely in a category A prison.  From there he is fighting extradition to the US where the threats to his life have originated.  This is a stark contrast to the way British courts have listened with grave concerns to Russian oligarchs fleeing to Britain claiming asylum.

And it is not just Assange’s human rights they betray: the courts also ignore evidence of abuses of process in his case.  Assange’s case can be compared to the case of Lofti Raissi whom Judge Workman refused to extradite to the US in 2002.  Raissi was held in Belmarsh prison for a period of 5 months on ‘holding charges’ as the US tried to build a murder case against him, claiming he was linked to the 9/11 terrorist attack, the basis for a US extradition request.  However, it transpired that all Raissi had done was fail to disclose a knee injury, and a previous conviction for theft, leading to allegations he had misled the authorities in order to obtain a pilot’s licence.  The CPS “…repeatedly made statements for which they knew the evidence was either non-existent or erroneous”:

In 2008 the Court of Appeal, in a case brought by Raissi following refusal by British authorities to compensate the abuse he suffered, had this to say about the extradition case:

“Viewed objectively, it appears to us to be likely that the extradition proceedings were used for an ulterior purpose, namely to secure the appellant’s detention in custody in order to allow time for the US authorities to provide evidence of a terrorist offence.” 

“… it seems to us that the extradition proceedings themselves were a device to secure the appellant’s presence in the US for the purpose of investigating 9/11 rather than for the purpose of putting him on trial for non-disclosure offences.” 

Both the extradition and appeal courts recognised abuse of process by the CPS in the case of Raissi. Yet where Assange is concerned, the courts again turn a blind eye to serious questions about the handling of his case. They have ignored existing evidence that the CPS attempted to engineer Assange’s extradition to Sweden by pressuring the Swedish Prosecuting Authorities not to carry out a standard, preliminary interview with him in the UK. The courts have allowed what appear to be irregularities to go unchecked, enabling impunity.

Julian in the glass cage, distanced from his defence team

As Assange fights for his life in continued arbitrary detention in overcrowded and understaffed category A Belmarsh prison, and vulnerable amid the Covid-19 pandemic, we see the arbitrary application of law by the British authorities. Each day Assange remains in Belmarsh, they align further with the political aspirations of Washington, enabling its impunity and the destruction of law.