The Victorians wouldn’t have stood for it


Bernard Porter 11 February 2011

In the 19th century it was virtually impossible to extradite anyone from Britain. In the first place there had to be a bilateral extradition treaty with the country concerned. These were very few and far between. All of them specified very precisely what a person could be extradited for. It had to be a serious crime, recognised as such in Britain too; there had to be a formal charge; a prima facie case needed to be established that a prosecution would probably succeed; no one could be extradited for one offence only to be tried for another; and the crime could not be ‘political’. ‘Political’ at that time embraced politically motivated crimes, including those that might have been extraditable if they weren’t committed for political reasons, such as murder, and what today we would call ‘terrorism’.

Lastly, British magistrates were unwilling to extradite to countries whose judicial procedures were felt to fall short of their own. The lack of a jury system was a common complaint. This of course made foreign governments cross, when for example Britain routinely refused to return dangerous political refugees to them; and British governments uncomfortable, especially when, at one point in the 1850s, the ‘refugee question’ looked as though it might spark an Anglo-French war. ‘Ordinary’ Britons, however, were inordinately proud of this; which is why their governments were never able to ‘truckle’, as the expression went, to foreign demands in this field.

Perhaps it’s because I know too much history, but I was totally unprepared for the possibility that Sweden’s current extradition request for Julian Assange might succeed. In the 19th century it would have been thrown out of court. I knew things had changed; but I was under the impression that most of the old safeguards were still in place. Apparently not. At least three of the old requirements for a successful extradition blatantly do not apply in this case, but they don’t need to, thanks to the European Arrest Warrant.

This was introduced (by David Blunkett – who else?) in 2003 to make the extradition of suspected terrorists easier, but – as is so often the case with counter-terrorist measures – is now being exploited to trawl for other fish: 700 people, apparently, were extradited from Britain to elsewhere in Europe in 2009. A foreign prosecutor only has to ask for a suspect to be sent over, and it’s done. There doesn’t even have to be a charge. All the defence can do is try to show that the formal procedures were not followed correctly; which seems to be the main line of argument in Assange’s case. They can also try to argue that the extradition request was unnecessary (given that Assange could have been interrogated in England), unreasonable, politically motivated or malicious (on the part of the ‘radical feminist’ Swedish prosecutor, Marianne Ny); but there’s no guarantee that these objections will work, even if true.

If Ny is successful in getting Assange over, I wouldn’t like to prejudge how he will do in a Swedish court, but I can understand why he might be nervous, even if he is innocent. The Swedish definition of ‘rape’ is wider than in the UK, where some form or degree of coercion is required. Much of the press comment on the case in Sweden, including by leading politicians, has not been friendly. Several people have said that the root of the problem is that in Britain we don’t take rape seriously. The prime minister, Fredrik Reinfeldt, is one of them – which looks a bit like political interference. And then there are the facts that Sweden doesn’t have a jury system and holds rape trials in secret. Swedish friends of mine fail to see a problem here. But it worries me, brought up to believe in the importance of being judged by one’s peers. It’s a cultural thing. And it certainly would have put a stop to an extradition like this in Victorian times.

For what it’s worth, I don’t believe in any of the conspiracy theories surrounding this case: that it was ‘got up’, for example, by the CIA. I also think it’s highly unlikely that Swedish public opinion would permit Assange’s extradition to the United States, which is apparently another of his fears: given some credence, perhaps, by one of the cables released by WikiLeaks, which revealed that the present ‘moderate’ Swedish government was far more in cahoots with the US than it dared to let on. And no one can yet say whether he is innocent or guilty of the charges he may face in Sweden, either in British or in Swedish terms. What I do know, however, is that his extradition from Britain, in these circumstances, could not have happened 100, 200 or even 10 years ago, when Britain considered itself to be more liberal, and was certainly more sovereign.

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