Extradition Part 2 - Bail

INTERLUDE-BAIL APPLICATION 14/12/2010

The principles of bail in both English and Australian law are close. Without looking at bail legislation in the UK (no time sorry) these are most of the factors in NSW Australia that a court will consider in a bail application, with comments as to how they apply, or not,

Firstly there are the presumptions for bail, which have a set of legislated determinants which I won't go into but are an indicator of how a court will ordinarily look on a bail application from the outset. Defence makes submissions on presumptions, prosecutor might have a different view but most often agree on presumption.

OFFENCE: Circumstances of the offence, Strength of prosecution case, Likely penalty on conviction.

Only the strength of the prosecution case is really relevant here and while this is a factor for bail it is not a factor ordinarily for the extradition proper. (Will post on that later, an EU human rights "backdoor" might allow some of it through, per the UK Extradition Act.)

I expect Geoffrey Robertson will be firing on all cylinders like a Rolls Royce Merlin engine with a Messerschmidt 109 behind him, in his predictable submissions of a weak prosecution case.

PROTECTION OF THE COMMUNITY/LIKLIHOOD OF FURTHER OFFENCES:
Prior record same type of offences, prior frequency of offences of all types.

Not relevant here, prior record as far as we know of one conviction of hacking--this is part of the public record.

LIKELIHOOD OF ANSWERING BAIL.
Past failures to appear (FTA), any breaches of bail, bonds, custodial parole.

Definitely no problems here from the record, but with the seriousness of the yet to be formal charges from Sweden, a clean record-no FTAs and no breaches, do not necessarily allow for bail to be granted on charges of serious crime. That Pinochet got bail to a private UK hospital in his extradition matter is an indicator, for example, that Julian Assange should get it given that crimes against humanity is more serious than what has been alleged in Sweden.

BACKGROUND AND COMMUNITY TIES.
This is a difficult area for Julian Assange for obvious reasons, a significant reason why bail was refused the last time. The prosecutor will undoubtedly argue he is a flight risk. His defence will likely argue that with a radio tag plus surrendering his passport plus his face is so well know: it is near impossible for him to escape the UK.

SURETY.
Better if it's from the bail applicant and secondly from family. Expect that a lot of surety will be offered, more than the last time.

Counsel may submit that notwithstanding relatively weak community ties, he has developed some and he still needs to be at liberty to instruct his lawyers on his case, and to carry on his work.

Every lawyer in the world experiences the difficulty of clients in custody for getting instructions especially at short notice. Book in advance, send a fax go through bureaucratic nightmares to phone a client or visit him/her in custody. Sometimes after a long drive, on arrival one is met with, "Nah, lockdown til tomorrow, why didn't you call an hour ago".

UPDATE 1:
CONDITIONS;
For example report to police x times per week, be of good behaviour, reside at ( bail address very important) etc

Conclusion: I think there is a 70% chance of bail when weighing up all the factors. If refused bail and the process drags on, another reason for more bail applications.

As it happens:
10.22pm Aust EST from the Guardian: "Total fiasco at court today for assange #wikileaks hearing. No recording allowed or space for world's press.less than a minute ago via twidroid"
http://www.guardian.co.uk/news/blog/2010/dec/14/wikileaks-julian-assange...

Disappointing, to say the least.

UPDATE 2: 2010-12-13: Julian Assange to appear in court to appeal for release

As the world waits with baited breath of news if Julian Assange will be granted bail some surprising supporters have chosen to make a stand. Michael Moore announced on his website that he has offered $20,000 in surety as part of Assange's bail.

Additionally, a somewhat cryptic tweet from Glenn Greenwald states “A major story brewing is the cruel, inhumane treatment - torture - to which Bradley Manning is being subjected:

As this story plays out, more updates will be posted.

UPDATE 3
Bail granted but appealed by Sweden's Ms Lindfield to the High Court, appeal within 48 hours. Report to police every day, GPS tag plus curfew.

Copyright 2010
The original works above are copyright. Apart from any use including fair use, under the Copyright Act Australia 1968 (Commonwealth), and apart from full attribution to Wikileaks Central with web link: no part may be produced by any process, nor may any other exclusive right be exercised without the express permission of the copyright holder Peter H Kemp.