Advocate Niall McCluskey unpicks the legal minefield of the events surrounding Julian Assange over the weekend. 

On a simple view of Juliane Assange's case he should go to Sweden and answer the allegations against him. That is because there is a UK Supreme Court decision affirming the lower courts decision to extradite him to Sweden. However Assange's concern is that once he goes to Sweden the knock on effect once Swedish proceedings are concluded is that he will be extradited to America. He fears he may face the death penalty.

The Supreme Court case focused on a certified question of law as Assange had challenged the validity of the European Arrest Warrant on the ground ( amongst others ) that it had been issued by a public prosecutor who was not a “ judicial authority “ as required by the Extradition Act 2003.

Assange had had his appeal rejected by the Divisional Court on wider grounds none of which included reference to his concerns regarding extradition to the US. No doubt this was because without a request being made by the US government this remains a speculative matter. In addition even if such a request were made to the UK government they would require to hand Assange over to the Swedish authorities on a first come first served basis. Equally a UK court could never refuse a request to extradite to Sweden on the basis that the US may make an extradition request to Sweden. The UK court would quite properly say that that is an issue for the Swedish Courts.

Assange has indicated that he may go to Sweden if he receives an undertaking that he won't thereafter be extradited. The difficulty is that Sweden has not received an extradition request and nor could it have since Assange is in Ecuador's Embassy in the UK. On a practical level Sweden could not give an undertaking on a request not yet received. Legally there are problems too. In Sweden section 15 of their Extradition For Criminal Offences Act states that “ Before the government makes a decision , the Prosecutor General shall deliver a statement of opinion on the matter. In addition , if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. The request shall , however, be rejected immediately if there is a manifest reason why it should not be granted. “ Therefore it appears that if the extradition is contested as it would be in Assange's case then it is a matter for the court not the government to decide if he is extradited.

In these circumstances it would appear to be legally impossible for Sweden to give the undertaking sought by Assange. In any event in Sweden Assange could argue before the court that there is a manifest reason why the Extradition request should not be granted.

I also have doubts about Assange's concerns regarding the death penalty. There are a number of extradition cases where the US has undertaken not to move for the death penalty in the event that the person sought is convicted. Equally Sweden is a signatory to the European Convention on Human Rights therefore they could not extradite to the US if there was a prospect of Assange being executed.

I am not without sympathy to the situation Assange finds himself in. However in my view the proper course for him is to go to Sweden and answer the allegations there. Thereafter if the US requests his extradition he can put up a legal fight in the Swedish courts. Sweden after all has a perfectly respectable legal system and a good record when it comes to human rights.

Niall McCluskey is an advocate in practice with the Connarty Stable.

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