The claim
“On September 1, 2010 the case was unexpectedly re-opened by the (Swedish) Director of Prosecutions who sought to have Assange extradited – not to face charges – but for further questioning. This was eventually granted by the British court, which surely must be unprecedented that someone could be extradited simply for questioning, rather than to face prosecution!”
MP George Galloway on Julian Assange, 21 August 2012
The background
Undermining the British government’s position in the diplomatic stand-off over Julian Assange, the MP George Galloway implied our courts have done something “unprecedented” in order to comply with the Swedish authorities.
Setting aside the diplomatic impasse which now finds Mr Assange holed up at the Equadorian embassy, is this a first for Britain? Are we really extraditing someone simply for questioning?
FactCheck calls in the lawyers.
The analysis
The problem is that most Britons would interpret questioning as police questioning. But this isn’t what Mr Assange is facing in Sweden. As barrister Anya Palmer told us, Sweden has a different system to us and in their system the formal charge comes “at a very late stage”. Granted, Mr Assange has yet to be charged – but he stands accused of four offences including rape.
The argument that Mr Assange has yet to be formally charged and is wanted “only for questioning” fell at the first hurdle in the British court system: the Magistrates Court.
During Round Two, in the High Court, it was conceded that he was wanted not for questioning but for the purpose of prosecution.
Ms Palmer said: “It is not true that Assange is only wanted for questioning. The next step in the Swedish proceedings is to conduct a second interview with him before making a decision whether to formally charge him. The prosecutor is presently disposed to charge him, unless any new evidence emerges that might change her mind”.
What’s more, if he was only wanted for questioning, he could not legally face extradition.
The Home Office told FactCheck: “A European Arrest Warrant cannot be issued for the purposes of questioning. Extradition is ordered to either face prosecution/trial or to serve a sentence already imposed.”
So there’s nothing unprecedented or political about the way in which the British courts have moved.
Niall McCluskey, an extradition and criminal lawyer, told FactCheck: “George Galloway has come unstuck. Britain has acted on a purely legal basis. There’s nothing in Assange’s case that outweighs the norms of standard extradition cases.”
In fact, Mr McCluskey told us that “the only politics is from Assange himself”.
“He is suggesting that America has got it in for him. There has been no request from America (for his extradition).”
At this stage, the UK’s first obligation is to Sweden – as the Swedes want him extradited. As for the US, as Mr McCluskey explained, Mr Assange could only be extradited for a mainstream criminal charge that is recognised by the country he was being plucked from.
It is not clear what charge Mr Assange could be extradited for. Mr McCluskey said the US could face “big problems” in charging Mr Assange – as it is not a criminal offence for Wikileaks to receive information.
However, Mr McCluskey added: “That’s not to say his suspicions (over US treatment) might not prove him right. Manning was treated shamefully.”
US Army intelligence analyst Bradley Manning faced multiple criminal charges – including aiding the enemy – for leaking classified US documents to Wikileaks. Human Rights groups have told Channel 4 News the treatment of Mr Manning has been “inhumane”.
The verdict
Wading into the furore surrounding Mr Assange has so far cost George Galloway his column in the respected political magazine Holyrood. His comments on the rape charges Mr Assange faces in Sweden left the editor “frankly gobsmacked”.
It seems he’s off the mark on the legalities too. It wouldn’t be possible for the British to extradite Mr Assange if he was only wanted for questioning – a European Arrest Warrant can only be issued for those that face prosecution, trial or to serve a sentence already imposed.
Mr Galloway implied that Britain and Sweden were treating Mr Assange unfairly by refusing to guarantee he would not be extradited to the US. While many might sympathise with Mr Assange’s fears over possible US treatment, at this stage the US has said nothing and it is unclear on what charges it could extradite him for.
Ultimately, as Mr McClusky told us: “Galloway bypasses the basic fact that he faces sexual allegations in Sweden. It doesn’t matter if he is Public Hero Number One, he should be going to Sweden.”
By Emma Thelwell
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