R v Assange

Facts

Sweden issued a European arrest warrant seeking Assange for questioning and prosecution in respect of allegations by two women. The allegations included sexual acts carried out by force against one complainant and, in the case of both, sexual conduct in which it was alleged that consent was absent or limited, including a claim that one complainant was asleep when intercourse began and a claim that agreement was given on the basis that a condom be used and that this was not respected.

History

The City of Westminster Magistrates Court ordered Assange's extradition under the Extradition Act 2003. He appealed to the Divisional Court of the Queen's Bench Division.

Issue

Whether the warrant was valid and the offences alleged corresponded to offences in English law, so that extradition was lawful, and in particular whether the conduct described would amount to rape or sexual offences under the Sexual Offences Act 2003 despite the complainants' apparent initial willingness.

Held

The appeal was dismissed. The warrant was valid, and on a fair reading the conduct alleged in it would, if proved, amount to offences in English law, including conduct in which consent to the sexual act was lacking.

Ratio

• For the dual criminality requirement the court asks whether the conduct alleged in the warrant, fairly read, would constitute an offence in English law, and the conduct alleged included sexual intercourse without consent.
• Consent to a sexual act may be limited by conditions: where a complainant agrees to intercourse only on the basis that a condom is used, and the defendant deliberately proceeds without one, the act is not within the consent given.

Key reasoning

• The court examined the particulars in the warrant as the statement of what was alleged, and did not assess the truth of the allegations, which is a matter for the trial in the requesting state.
• Applying the definition of consent in the Sexual Offences Act 2003, the court held that agreement to intercourse is a choice which can be tied to conditions; if the condition is not met there is no consent to the act that in fact occurs, and a person who is asleep cannot consent.

Where it fits in the module

Assange appears in the sexual offences topic because it addresses what counts as consent under section 74 of the Sexual Offences Act 2003, and in particular whether a complainant who agrees to intercourse on terms has consented to intercourse on different terms. It supplies a link to later decisions on deception and conditional consent. It also shows how the concept of consent is used in a different legal setting, extradition, where the court tests only whether the allegations amount to an offence in England.

Criticisms

• The remarks on conditional consent were made in an extradition setting where the facts were untested, and some argue that they were not necessary to the decision on dual criminality.
• Treating consent to condom use as a condition of the act itself may extend rape to cases of deception that the 2003 Act arguably left to lesser offences or to the evidential presumptions about deception.
• The approach of reading the warrant fairly in favour of the requesting state tends to assume the allegations at their highest, leaving the defendant little room to contest the nature of the conduct before extradition.