VAN DIEMENS LAND TO BELMARSH IN 200 YEARS

By Helen Mercer

“Give me the freedom to think, to speak and to argue freely, according to conscience above all other liberties” – George Loveless, the leader of the Tolpuddle Martyrs, 1834. (1)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” First Amendment to the US Constitution, passed 1791.

Every July the village of Tolpuddle on Dorset hosts a memorial gathering for its ‘martyrs’ – six farm labourers sentenced to transportation to Australia for organising to protect their wages. The event of 200 years ago has for long been notorious for the abuse of legal process, vindictive sentencing, arbitrary treatment and openly repressive attitudes used to stop activities which threatened private interests. The case of Julian Assange today, on very different charges but with similar experiences of the law, shows that nothing has changed, in fact matters have deteriorated. In 1834 the question of trade union rights raised by Tolpuddle was seen as a touchstone of British liberties: today the questions of public right to information and the freedom to publish should be seen similarly, but protest has been muted. 

This article explores a few of the parallels between the case of British citizens transported to Australia in 1834 and that of an Australian citizen imprisoned in Britain facing transportation to the US in 2020.

BACKGROUND – THE FRIENDLY SOCIETY OF AGRICULTURAL LABOURERS

The Tolpuddle Martyrs were six Dorset farm workers who, between 1831 and 1833 and with about 40 other labourers in the village of Tolpuddle, formed a ‘Friendly Society’ – a forerunner of a trade union.

Land enclosures from the mid 18th century had turned poor farmers into landless labourers dependent on wages from local landowners for employment. The 1830s was a period of harsh conditions in the English countryside with near-starvation wages. The average wage of the time for an agricultural labourer was 9/- a week but in Tolpuddle wages had been cut in 1833 to 7/- and the society was formed when the local landowner was talking of reducing their wages still further to 6/-. Other injustices in the English countryside at the time included the tied cottage system whereby employers owned the houses in which labourers lived and if their employment ended the families would be turned out of their cottages.

One response across the English countryside had been the ‘Captain Swing’ riots which had smashed threshing machines and burnt hayricks – for which many labourers were transported to Australia. The solution sought by the men of Tolpuddle was to form a ‘Friendly Society’ and petition the local landowners for a raise in wages. The main spokesman for the group, George Loveless, was a lay Methodist preacher and many of the men were Methodists.

The response of the local landowner – Joseph Frampton – was to arrest the six men seen as ringleaders. They were charged with swearing an illegal oath. After a two day trial the jury found the six men guilty and they were sentenced to transportation for seven years to Van Diemens Land, the penal colony in Australia. Friendly Societies and trade unions across England saw the event as a threat to all attempts to improve the conditions of working people and swiftly mounted a huge public campaign.  The government backtracked, the six were pardoned and had all returned to England by 1837. From there five emigrated to Canada. One died in Tolpuddle and is buried in the churchyard.

BACKGROUND – JULIAN ASSANGE

Julian Assange is the founder of Wikileaks which, since 2006, has provided the platform for the publication of over 10 million authentic documents, especially large data sets of censored and restricted materials. According to the Defend.Wikileaks.org website these documents are received anonymously: “….Julian created the first anonymous secure online submission system for documents from journalistic sources. For years it was the only such system of its kind, but such a dropbox is now a staple of many major news and human rights organisations, with versions such as SecureDrop.”

Assange is currently held in Belmarsh prison awaiting further hearings to determine the validity of an extradition request by the USA. The initial unsealed indictment against Assange (August 2018, unsealed on 11^th April 2019) contained one charge under Conspiracy to Commit Computer Intrusion, carrying a penalty of five years in prison and relating purely to documents provided by Chelsea Manning to Wikileaks of databases which: “contained approximately 90,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables.” Wikileaks began to publish these documents in April, July and October 2010. The documents and videos provide evidence of US war crimes in Iraq and Afghanistan, including torture and abuse of Iraqi prisoners, and of the true extent of civilian deaths in Iraq (Iraq and Afghanistan War Logs). The very first release, not mentioned in the current US indictment, was of the infamous ‘collateral murder’ video showing random killing of innocent civilians and of people who tried to rescue them.

In November 2010 Wikileaks began to publish a series of US diplomatic cables revealing for instance spying on heads of state and the UN, the involvement of various governments, including European ones in rendition and US government interventions in support of US companies such as Monsanto and Lockheed Martin. Both releases were widely publicised across all media outlets and have since been used to support many human rights cases across the globe. Wikileaks, Assange and other of its journalists have received numerous awards for journalism  and Wikileaks has been nominated for the Nobel Peace Prize seven times.

The response from US politicians was not to investigate war crimes but to denounce Wikileaks and Assange as ‘terrorists’.  Several politicians and journalists, including reportedly Hillary Clinton, called for his assassination. In December 2010 the US government opened a grand jury investigation into WikiLeaks – the start of the process of deciding whether to prosecute the website and Julian Assange for espionage. In January 2011 a leaked email revealed that the US had prepared a sealed indictment against Assange. At this time also several major financial institutions refused to process donations to Wikileaks cutting of about 95% of its revenue.

In August 2010, while visiting Sweden, Assange became the subject of sexual assault allegations. On investigation  the most serious allegation was immediately found to be baseless and in September 2010 Assage was told he was free to leave Sweden. However, the case was re-opened by another prosecutor and on 20 November 2010, the Swedish police issued an international arrest warrant via Interpol for Assange and he was arrested in London and released on bail.(2)

After several unsuccessful appeals against his extradition, on 19^th June 2012 Assange sought asylum in the Ecuadorean Embassy breaking the terms of his bail conditions 2 endnote. His reasons for doing so “related to his publicly expressed fear that he would be surrendered to the USA by Sweden, and be subjected to treatment there, including persecution and indefinite solitary confinement, relating to his involvement in WikiLeaks’ publication of sensitive US military and diplomatic materials”. The Ecuadorean government of the time considered that there was strong evidence that Assange faced possible “retaliation by the country or countries that produced the information” (that Wikileaks had published), that such retaliation “may endanger [his] safety, integrity, and even his life“, and that if he were extradited to the US he could face cruel and degrading treatment. Assange remained in the Embassy until April 2019 during which time his health seriously deteriorated.

Following a change of government in Ecuador in 2017, surveillance of Assange in the Embassy became highly intrusive and his conditions more restrictive. On 20^th February 2019 the new President, Lenin Moreno signed a loan agreement with the IMF of $4.2bn requiring US approval. On 11th April 2019 the Ecuadorean government revoked Assange’s asylum, and UK police entered the Embassy and arrested Assange. He offered an apology for breach of bail conditions but was found guilty and received a sentence of 50 weeks imprisonment. He was sent to Belmarsh maximum security prison, one reserved for proven terrorists and violent criminals. Assange’s fears of onward extradition to the US were quickly proved entirely justified. On the same day as his arrest the Grand Jury unsealed the indictment against him, on 23^rd May a superseding indictment was made and on 4^th July they issued a formal request to Britain for his extradition.

The US indictment against Assange now includes 17 additional charges under the Espionage Act but relates purely to publishing the same documents referred to in the initial indictment and described above. Together the 18 charges could lead to 175 years in a US prison. If extradited he would be tried by the so-called ‘Espionage Court’ in the Eastern District of Virginia, the region in which the Pentagon, the CIA and the Defense Department are based and where the juries consequently reflect the local population. The trial would be held in secret under the Classified Information Protection Act (CIPA) and would be tried by Judge Leonie Brinkerman who was previously a national security prosecutor. No defendant has ever won a national security case at that court.

Assange continues to be held in Belmarsh prison, southeast London long after his sentence for breach of bail has been served, at the behest of the US government. The first phase of his extradition hearing was on February 2020, and the second phase is set for September 2020.

HISTORICAL PARALLELS

1. The law as an instrument of repression

Both the Tolpuddle Martyrs and Assange were trapped in legal processes, chosen for their ability to stop what are seen as ‘subversive’ activities. The Dorsetshire labourers’ true ‘crime’ was to challenge the right of employers to cut wages at will. The true crime of Assange is publication of material which, among other things, reveals lies, torture and human rights abuse by the US. Both cases follow a similar pattern: citizens do something to carve out a liberty of value to ordinary people; the establishment is outraged and uses the law to pursue them in a way that is disproportionate as well as inhumane. The law is used as a form of Shock and Awe to deter others and to deny the liberty claimed.

1. Choice of legal instruments

It has been argued in the case of the Tolpuddle Martyrs that suppression of a nascent trade union was achieved not by the abuse of law but by its use.(3) This first section illustrates how it was the choice of legal instruments that was crucial, and the effect of these was amplified by the extreme and irregular methods of applying the chosen laws.

TOLPPUDDLE

In 1834 there was no law against forming a trade union. Combinations had long been unlawful and the Combination Acts of 1799 and 1800 had allowed for swifter action against them. However, these were repealed in 1824, although in 1825, following an upsurge in trade unionism, an amendment limited its impact and from 1830 employers in industrial areas were forcing workers to sign ‘The Document’ – a declaration that they would not “interfere with the free exercise of individual labour”.

On finding out about the Friendly Society formed in Tolpuddle, the local landowner, Joseph Frampton, communicated with Lord Melbourne, the Home Secretary, who was himself related to the MP for Dorset. Melbourne believed that trade unions were ‘‘inconsistent, impossible and contrary to the law of nature” and advised Frampton to use the 1797 Unlawful Oaths Act, a law directed against mutinies in the navy and intended to combat seditious conspiracies in the armed forces. Thus a law intended for entirely different purposes was used to criminalise an essential part of trade union organisation at the time.

The 40 men had, in common with many Friendly and other Societies of the time, sworn an oath not to betray their comrades when forming their Society, a common practice among Friendly Societies of the period. At the time most labourers were illiterate, so swearing an oath was the alternative to signing a declaration or a contract. Administering secret oaths was also common practice……..among the upper classes. As one supporter of the agitation to pardon the six men stated: “that if being members of a secret society and administering secret oaths was a crime, the reactionary Duke of Cumberland as head of the Orange Lodges was equally deserving of transportation.” In fact the labourers could have been prosecuted before a magistratefor oath-taking (as were similar societies at the time), but that would only have carried a sentence of three months: the uses of an Act directed against sedition and treasonous activity was a felony carrying the punishment of transportation.

Even so, it is not clear that the conviction was ‘safe’ even using the vaguely worded 1797 Act. Shortly after the trial the Home Office sought legal opinion on whether the oath administered by the labourers was illegal, and the law officers determined that a Friendly Society oath was not illegal if it was not binding members to commit unlawful acts or to conceal them: that is that it would be necessary to prove “that the meeting at which the oath was administered was unlawful independently of the oath”.(4)

 ASSANGE

The choice of legal instruments to pursue Assange has occurred in four main ways.

European Arrest Warrant         

Assange spent seven years in the Ecuadorean Embassy because of the decision by Swedish authorities to issue a European Arrest Warrant (EAW) to extradite Assange in order to question him about two women’s concerns about possible sexual misconduct on the part of Assange, details of which were leaked to the Swedish press by the police. (The case has been opened and closed three times since 2010 and was dropped completely in November 2019. However, the bail order issued to arrest Assange in order to extradite him to Sweden remained in place.) The more appropriate mechanism for questioning him would have been a ‘Mutual Legal Assistance’ procedure used to ensure co-operation between States to obtain evidence and material. (5) Assange always made clear his complete willingness to co-operate in enquiries, while under house arrest and while in the Ecuadorean Embassy. He expressed willingness to travel to Sweden for questioning on the condition that the Swedish government give an assurance that he would not be refouled to the US, something they absolutely refused to do. Had the MLA procedure been used there would have been no need to extradite Assange to Sweden, and therefore no need for Assange to claim asylum in the Ecuadorean Embassy, no need to break bail to avoid extradition. As Nina Cross puts it: “..the initial EAW should never have been issued, which means Assange would not have been forced to claim asylum with Ecuador in order to avoid being extradited to the US, nor would he be detained in Belmarsh now.”

The legal instrument, the EAW, was also issued incorrectly – by the Swedish public prosecutor – not a ‘judicial authority’ as required by relevant legislation. Assange’s lawyers challenged the EAW on this point and the issue went to the UK Supreme Court which dismissed Assange’s appeal, although two of the judges dissented, one stating that: “The executing judicial authority undoubtedly has to be a court”. Subsequently, and in response to the Assange case and others, the UK changed domestic law so that an EAW would not be accepted if it had been issued solely for the purpose of questioning a suspect,and where no charges had actually been laid. If that changed law had obtained in 2010 Assange’s extradition would not have been permitted by the UK. (6)

1917 Espionage Act

The indictment against Assange lists 18 charges, 17 of which are brought under the 1917 Espionage Act. This is the first use of that Act against a publisher of classified documents. The Obama administration filed prosecutions against for instance Chelsea Manning and Edward Snowden but did not charge the media outlets who published the information. “The notion of charging someone not for actually stealing and leaking government secrets but for receiving and publishing them has never been tested in court, because until now the government has never brought such charges.”

The use of the Act in that way is prima facie unconstitutional under the 1^st amendment to the US Constitution, as many newspapers and lawyers have pointed out. Another case against Wikileaks was brought by the Democratic National Committee (DNC) for publishing DNC emails relating to the Democratic primaries of 2015-16. A group of lawyers presented a motion in support of Wikileaks submission to resist and, citing a host of cases and precedents, argued that:

“An act of publication that would otherwise be protected by the First Amendment does not lose that protection simply because a source acquired the published information unlawfully,”and that: “The press relies on this protection to inform the public about matters of public concern.”

The Judge in the case determined on 31^st July 2020 that Wikileaks is “protected by the First Amendment because the organization did not steal the documents and only disseminated material that was in the public interest”. (7)

Grand Jury system in the US

In order to support the charge of espionage, the US used its Grand Jury system to obtain evidence that Assange conspired with Chelsea Manning to crack a password that “would have” allowed her to cover her tracks more effectively.

Chelsea Manning, the US army intelligence analyst in Iraq who deposited the documents with Wikileaks was imprisoned for 35 years on espionage charges but released after seven years in May 2017. In March 2019 she was arrested again for refusing to testify before a Grand Jury as part of its investigation into Wikileaks and Assange, and was held in solitary confinement until March 2020 when she was released following a suicide attempt. Her accumulated fines of $250,000 continue to be enforced. This is an abuse of the Grand Jury system which has been developing over many years, as Manning stated “I am certainly not alone in thinking that the grand jury process, which at one time acted as an independent body of citizens along the lines of a civilian police review board, slowly transitioned into the unbridled arm of the police and prosecution in ways that run contrary to the grand jury’s originally intended purposes.”

US/UK Extradition Treaty

In almost farcical scenes during the first phase of the extradition hearings in Belmarsh, counsel for the US proposed that, while extradition was being sought under the UK/US extradition Treaty of 2007, the clause in that Treaty barring extradition for political offences did not apply. The argument was the UK Extradition Act of 2003 did not include such a bar and it could not therefore be inserted into a Treaty as it had not specifically been voted on by Parliament. As the QC for the Defence argued in response:“On the face of it, it is a very bizarre argument that a treaty which gives rise to the extradition, on which the extradition is founded, can be disregarded in its provisions. It is on the face of it absurd.”

The 2003 Act was an Enabling Act, providing the general terms under which extradition treaties could be made: the US/UK Extradition treaty was laid before Parliament (as are most treaties were under the informal ‘Ponsonby rule’) but at that time, before a change in the law in 2010, Parliament had no power to override the executive and could only express disapproval or exert political pressure to change the terms of the treaty. When in 2010 a Home Affairs Select Committee reviewed the workings of the 2007 Treaty its report revealed serious cross Party misgivings about its unbalanced nature but at no point did the Committee raise any criticism of the clause which bars extradition for political offences.

Arbitrary decisions

The choice of existing laws as instruments of repression has been amplified by the abuse of legal process which has dogged Assange’s case. Issuing an EAW had the effect of prompting Assange to seek refuge in the Embassy and, because of Sweden’s slow pursuit of the case and refusal until 2015 to interview Assange in the Embassy put Assange into a ‘state of indefinite procrastination’. In 2013, we now know from emails released to investigative journalist Stefania Maurizi under Sweden’s FOIA laws that Swedish prosecutors wished to close the case against Assange but were dissuaded by the UK Crown Prosecution Service, one lawyer telling the Swedes ‘don’t you dare get cold feet’. (8)

In December 2015, the UN Working Group on Arbitrary Detention (UNWGAD), having reviewed his case, determined that he had been held in a state of arbitrary detention since his arrest in London in December 2010. This was due to a“lack of diligence by the Swedish Prosecutor in its investigations, which resulted in the lengthy detention of Mr. Assange”.The UN Working Group therefore stated that,“in violation of articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR), Mr. Assange has not been guaranteed the international norms of due process and the guarantees to a fair trial”. (9)

The UNWGAD report was immediately dismissed by British politicians and the media who seized on the opinion of the one dissenting member to rubbish it – a slap in the face for international law. The majority opinion was however endorsed by Professor Mads Andenas who had chaired the early stages of the UNWGAD inquiry into Assange and is now a visiting fellow at the University of Oxford. Like others he was appalled at the official British reaction to the report: “Rulings by the UNWGAD are not always followed by states, but rarely do they result in such personal attacks as made by UK politicians after the Assange opinion.”

In November 2016 Swedish prosecutors finally interviewed Assange in the Embassy and in May 2017 they closed the investigation entirely and rescinded their Swedish arrest warrant and consequently the European Arrest Warrant dropped away too. Accordingly, in February 2018 Assange’s lawyers appealed for the Bail warrant to be dropped. In a further arbitrary decision, the senior district judge (Lady Arbuthnot, see below) ruled that the Bail Act warrant remained valid and, in a second hearing, that it was in the public interest to initiate breach proceedings should Assange leave the Embassy. As a result of these judicial decisions Assange spent seven years in the Ecuadorean Embassy, unable to access proper medical attention and surrounded by surveillance cameras and police ready to arrest him if he set foot outside. In May 2019, a month after his arrest by undercover officers of the Metropolitan police and carried out of the Ecuadorian Embassy, the Swedish case was re-opened under a new prosecutor. Her application to Swedish courts for an arrest warrant was rejected. She carried on her preliminary investigation and closed it in November 2019 without ever having questioned him.

1. Approaches of Judges and juries

TOLPUDDLE

Due legal process was weighted against the six Dorsetshire labourers because the judge and juries were composed of men who interests and attitudes made conviction almost automatic.

Two juries would be involved in trials in Britain at the time – the grand jury and the petty jury, the latter making the final decision as to guilt.The role of the Grand Jury was to review the cases coming before the court and to decide on whether there was a “probable cause” or “prima facie” evidence that a crime had been committed after which an indictment was drawn up and presented to the court. (This is also roughly the perceived role of the Grand Jury system in the US.) The Grand Jury, however, would also sit in court: in Dorchester, where the men were tried, the Grand Jury sat on a balcony elevated above and visible to the Petty Jury.

The Grand Jury’s foreman in the case of the Tolpuddle Martyrs was William Ponsonby MP, brother-in-law to Lord Melbourne. Members of the jury included James Frampton (who had arrested the six men), his son Henry, his step-brother Charles Wollaston and several of the magistrates who had signed the arrest warrant. The Grand Jury duly agreed the basis for the charge against the trade unionists.

The Petty Jury was made up of twelve local farmers who had no reason to favour the union. The bias becomes clear in the case of one tradesman who was disqualified from the jury because he had heard George Loveless preach in the Methodist Chapel.

The trial was presided over by Judge Baron Williams who took the view that: “The object of all legal punishment is not altogether with the view of operating on the offenders themselves, it is also for the sake of offering an example and a warning”. He also told the jury that, if they found the six men innocent, they would “forfeit the good opinion of the Grand Jury”.

ASSANGE

Assange’s case has been heard in Britain only by a magistrate or district judge, no juries have been involved: Assange’s fate has lain entirely in the hands of a few well-connected individuals. In most cases, these judges have used their position to attack Assange’s character, on the basis of what could only be unfounded media reports.

The decisions of Lady Arbuthnot of Edrom who ruled in February 2018 that Assange’s Bail Order remained in place extended Assange’s detention in the Ecuadorean Embassy. Her arguments for her decisions were illogical and had no valid supporting evidence. For instance, Lady Arbuthnot asserted that it was purely “speculative” to claim that Assange had a realistic fear of refoulement to the US, even though a previous magistrate in 2012 had accepted that “there can have been no doubt that this was a fear operating on the mind of the defendant in the extradition proceedings”. However, Arbuthnot herself was happy to speculate, without any evidence that, should such refoulement occur “there would have been a diplomatic crisis between the United Kingdom, Sweden and the United States”. This is a ridiculous claim, whereas Assange’s lawyers had at least ‘reasonable grounds’ for explaining Assange’s breach of bail.

The interconnections among the establishment evident in Assange’s case parallel those operating at Tolpuddle. Lady Arbuthnot’s husband is Lord James Arbuthnot of Edrom, a Tory peer with extensive Parliamentary experience especially in the fields of defence and national security. He was Chairman of the Defence Select Committee from 2005 to 2014 and is also listed as a former director of Security Intelligence Consultancy SC Strategy Ltd. The other two listed directors are former Head of MI6, Sir John Scarlett and Lord Carlisle. Scarlett was implicated in torture and extraordinary rendition. Her son, Alexander Arbuthnot, is Vice President of Vitruvian Partners, which leads a consortium of investors in Darktrace, “a cyber-security company which is also staffed by officials recruited directly from the US National Security Agency (NSA) and the CIA.”. He advises Vitruvian on cyber-security. Another member of Vitruvian is on the board of Darktrace. Darktrace was established deliberately to counter cyber threat to data emanating with an organisation, that is from whistleblowes. Arbuthnot has also worked for Symantec which in 2010 produced a report entitled: “Avoiding a repeat of WikiLeaks: What can be done to prevent malicious insiders?”

Indeed, to paraphrase the Tolpuddle judge, it could be said of her that had she supported Assange’s claims she would have risked “forfeiting the good opinion” of the security services, many of whom may have their own reasons for seeing Assange permanently incarcerated. Although Arbuthnot has never recused herself from the case, she no longer presides in Court but she does supervise her replacement, Vanessa Baraitser, whose open bias has extended Assange’s incarceration, has made it impossible for him to participate in his defence, has failed to ensure he has access to his lawyers and to legal documents.

The nature of Baraitser’s attitude and decision has been well described by the former UK diplomat Craig Murray. In October 2019 for instance Assange appeared at a case management hearing but found difficulty giving his name and date of birth and was clearly in very poor health. The defence argued that they needed more time to prepare as they had only been allowed to hand Assange papers about the case a week previously, and he had only just had access to his computer records.  This was dismissed by Baraitser and discussion moved to the dates for submission of evidence. At this point, the UK attorney discussed with representatives of the US embassy at court the appropriate dates which were then rubber-stamped by the Judge. Craig Murray, who was present in court, takes up the story:

“The US government was dictating its instructions to Lewis, who was relaying those instructions to Baraitser, who was ruling them as her legal decision. The charade might as well have been cut and the US government simply sat on the bench to control the whole process. Nobody could sit there and believe they were in any part of a genuine legal process or that Baraitser was giving a moment’s consideration to the arguments of the defence. Her facial expressions on the few occasions she looked at the defence ranged from contempt through boredom to sarcasm. When she looked at Lewis she was attentive, open and warm.” 

The attitudes of judges closely mirror the interests of the British state in stopping Wikileaks. The British state is complicit not only in the abuses exposed in the 2010 releases but also in the US prosecution of Assange. In March 2019 the Metropolitan Police admitted that it had shared information about Wikileaks journalists with US prosecutors since 2013. Sajiv Javid, as Home Secretary controversially signed the extradition request in June 2019, controversial because he has the power to block extradition if a person faces the death penalty. Javid has been party to discussions in the US about Assange through the annual American Enterprise Institute  meetings, a neo-conservative organisation with links to the intelligence ‘community’. The comments of other speakers who shared the panel at which Javid spoke in 2018  indicate that Javid was mixing with people who certainly want the death penalty. “ Why wasn’t Assange garrotted in his hotel room years ago?“ asked one speaker.

2. Excessive and inappropriate sentencing

TOLPUDDLE

The Tolpuddle Martyrs were sentenced to seven years transportation to Australia, and to conditions of near-slavery in the harsh penal colonies there. The sentence was seen at the time as excessive.

ASSANGE

The 50 week sentence meted out to Assange for breach of bail conditions was extreme. Key to the argument of Judge Deborah Taylor who passed the sentence was the view, frequently expressed elsewhere also, that Assange had a “free choice”, that is he had no need to fear arrest and refoulement to the US, no need to fear an unfair trial in the US should he leave the Embassy, and he “chose” to be confined in the Embassy, or he “chose” deliberately to skip bail.

Assange’s lawyers pleaded at the mitigation hearing on 1st May 2019 that:

“Sweden had, at the material time, a well-documented history of direct refoulement of persons to states in which they were at significant risk of ill-treatment, including torture and death.” They pleaded that it was known in December 2010 that “Regarding the USA in particular, Sweden also had, at the material time, a long and unfortunate history of illicit co-operation with the USA in the mistreatment of detainees and their rendition.”, that“There existed no legal remedy available to him in the UK to protect against being refouled by Sweden to the USA.” And that “in February 2012, the UN Special Rapporteur on Torture confirmed that Manning was subjected to inhuman and degrading treatment”.

Three weeks after Assange’s arrest and sentence the US did indeed issue their extradition warrant. A series of British judges therefore made quite unwarranted and incorrect assertions: the known facts support the view that Assange faced extradition to the US and subsequent punishment.

No mitigation was allowed for the state of Assange’s health. He had already spent seven years without sunlight or space for proper exercise in the Embassy, he had been denied access to needed medical care by the British authorities and had been subjected since 2017 within the Embassy to increasingly intrusive levels of surveillance and limits on his communications and visits (see also below for more detail).

3. Extra-judicial punishment

TOLPUDDLE

In addition to the general harshness of transportation itself, in which men were closely packed and shackled, the six men were vulnerable to further mistreatment in Australia as their record as trade unionists exposed them to additional punishments. One Martyr reported having being told by an officer: “I understand it was your intention to have murdered, burnt, and destroyed everything before you, and you are sent over here to be severely punished, and no mercy shall be shown you.”

Punishment was also meted out to the Martyrs’ families. The six wives were left with a total of 16 children to support without the family breadwinners.  The families were reported to be living “almost entirely on tea and potatoes”. They were not allowed to visit their men in prison, and they were refused parish relief. A local magistrate told them: “You shall suffer want, you shall have no mercy”. The families were kept under close watch, for instance when a Union delegate brought financial help to them in April 1834 the fact was reported to the authorities. Even when their men were pardoned, they were not told for some time due to government inefficiency (or callousness?) (10).

Even once back in England and living in Essex, in houses leased for them by the campaign, they continued to find their characters maligned. The six men organised a Chartist association in the village of Greensted, to the anger of the local squires and churchmen. The vicar of Greensted  preached against their chartist activities and alerted the Home Office: “George Loveless, instead of quietly fulfilling the duties of his station ….. is still dabbling in the dirty waters of radicalism and publishing pamphlets to keep up the old game.”

Continuing pressure from landowners forced five of them to seek new lives and they settled as farmers in Canada.

ASSANGE

Assange’s physical and mental health suffered while arbitrarily imprisoned, first effectively in the Embassy  and now in Belmarsh. Three doctors visited Assange in the Embassy in January 2018:

“MrAssange is surrounded by credible personal threats from various governments and individuals. He is also unable to avail himself of his right to access medical institutions due to the threat of imminent arrest should he step outside the embassy, even for a medical emergency. It is unconscionable that MrAssange is in the position of having to decide between avoiding arrest and potentially suffering the health consequences, including death, if a life-threatening crisis such as a heart attack were to occur. Further, our assessment reveals that he has had no access to sunlight, appropriate ventilation or outside space for over five and a half years. This has taken a considerable toll.”

The UN Rapporteur on Torture commented after visiting Assange in Belmarsh:“The evidence is overwhelming and clear, Mr. Assange has been deliberately exposed, for a period of several years, to progressively severe forms of cruel, inhuman or degrading treatment or punishment, the cumulative effects of which can only be described as psychological torture.

I condemn, in the strongest terms, the deliberate, concerted and sustained nature of the abuse inflicted on Mr. Assange and seriously deplore the consistent failure of all involved governments to take measures for the protection of his most fundamental human rights and dignity. By displaying an attitude of complacency at best, and of complicity at worst, these governments have created an atmosphere of impunity encouraging Mr. Assange’s uninhibited vilification and abuse.

In 20 years of work with victims of war, violence and political persecution I have never seen a group of democratic States ganging up to deliberately isolate, demonise and abuse a single individual for such a long time and with so little regard for human dignity and the rule of law. The collective persecution of Julian Assange must end here and now!”

A part of the torture Assange experiences daily is that if he is taken to the US the sort of prison that awaits him will be under Special Administrative Measures: If Julian is extradited to the US, a darkness awaits him. He’ll be subjected to a prison regime called special administrative measures… He will be placed in a cage in the bowels of a supermax prison, a hellhole. He will be cut off from all contact with the rest of humanity.

Currently in Belmarsh, Assange has very limited access to his lawyers, few visitors are allowed and he has not had the chance properly to review the case laid against him by the US or prepare his defence. John Pilgertweeted a few months ago: “I saw him in Belmarsh prison and his health has deteriorated. Treated worse than a murderer, he is isolated, medicated and denied the tools to fight the bogus charges of a US extradition. I now fear for him. Do not forget him.” Nils Melzer recently commented on the impact of Assange’s experience: “We can be reasonably sure that the attitude of UK judges, the difficulties of preparing his defence will be a potent factor exacerbating his trauma in Belmarsh.”

Pleas to release Assange on medical grounds, given his already compromised physical and psychological condition and therefore his vulnerability to Covid-19, have fallen on the cloth ears of Judge Baraitser. Assange has been unable to attend his most recent hearings by video link because he is in poor health as a result of a long-standing lung condition. The uncertainty now surrounding the date and place of the second phase of the hearing are further punishment.

Punishment has also been meted out to Assange’s family, especially his partner and mother of his children, Stella Morris. Judge Baraitser refused to grant her anonymity following a witness statement she made on Assange’s behalf, forcing Stella Morris to break silence and potentially expose herself and her children to gutter press harassment.

There has been extra-judicial punishment on a grand and vindictive scale.

4. Unfair trial

TOLPUDDLE

On the 22 February 1834, that is many months after the alleged oath-taking,  a caution notice was published in Tolpuddle. This said that labourers had been deceived into joining ‘illegal societies and unions’ and made to swear secretly administered ‘unlawful oaths’. Any man found to be a member of such a union would be sentenced to transportation. The caution was signed by nine local magistrates and by four C of E clergymen. Two days later the six leading members were arrested and taken to Dorchester Gaol.

The testimony of witnesses was suspect. One of the chief witnesses who testified was John Lock, was the son of James Frampton’s head gardener at Moreton Hall and one of Frampton’s informers. The Radical MP Thomas Walkley alleged in Parliament that the witnesses had been placed in gaol before the trial to ensure they appeared and gave the ‘required evidence’. Walkley also maintained that the men of the Petty Jury had been deliberately selected as those mostly likely to return a guilty verdict, which they duly did after little deliberation.

At the trial, although the unlawfulness of the oath was the key charge, no wording of the oath was ever produced and the court relied on garbled accounts by the ‘witnesses’. Moreover, no attempt was made at the trial to prove that the meeting itself was unlawful: had the men had proper legal representation the conclusion which the lawyers at the Home Office eventually reached might have been argued in court. The times were such that the men represented themselves through the spokesman, George Loveless. (11)

ASSANGE

The foregoing already illustrates the unfairness which has dogged the extradition hearings and the run-up to them. It appears that the prison authorities at Belmarsh have been exceptionally obstructive in giving his lawyers the access to him they need to prepare his case and Judge Baraitser has refused to intervene with the prison authorities. The repressive treatment of Assange was not lifted during the first phase of the extradition hearings in February when Assange was handcuffed eleven times, stripped naked twice and had his case files confiscated after the first day of his extradition hearing. Baraitser has refused him bail during the Covid 19 period, in spite of the fact that he  has an underlying chronic lung condition and has no record of violent behaviour.

Assange has been supported by a formidable legal team in the UK, the US and Spain, which is certainly an advantage not enjoyed 200 years ago. However the CIA has been at work to undermine and circumvent even that small advantage that Assange has against the might of the US. We now know, as a result of a trial now proceeding in Spain, that a Spanish security company provided the CIA with audio and video of Assange’s privileged conversations with  lawyers in the Ecuadorean Embassy. Thus, by illegal means,  the US has known and tracked the defence case. As Joseph Farrell of Wikileaks comments:“You had a security company working for the Ecuadorian Embassy that was recording all of his meetings, including his meetings with his doctors and his lawyers, including strategic legal discussions, so that completely destroys any element of client/attorney privilege.”

5. The role of the church / media

TOLPUDDLE

If you follow the trail round the village of Tolpuddle, available every year at the festival, the excellent guide will point out the boundary wall between the C of E church in the village and the manor house, with a gateway for easy access between the two.

The physical proximity underscores the close class interests of gentry and church at the time. The church was a respectable profession for younger sons of the gentry to enter. Well to do gentry had the right to appoint a man as a rector, vicar or curate and the best hope of being appointed was to be related to or in other ways connected to the patron. The fact that the income of the clergy derived from their ‘living’ – the sum which the labourers in the local area could provide in tithes further cemented common class interests.

Members of the local clergy were directly involved in aiding and abetting the landowners’ attack on labourers’ conditions and on nascent trade union. The vicar of Tolpuddle Rev Thomas Warren in 1832  participated in a meeting between labourers and local landowners which agreed to a weekly wage of 10 shillings a week, and, on Loveless’ invitation, Warren acted as a witness to the agreement. When the landowners went back on their promise shortly afterwards, Warren denied that any such agreement had taken place. Four Church of England clergymen signed the caution warning workers against joining a union.

Before during and after the trial Warren and other churchmen made various attacks on the labourers, some of which was probably inspired by the fact that the leaders were also active Methodists who had established a chapel in Tolpuddle in 1818. Following the publication of George Loveless’ memoir – The Victims of Whiggery’ and his visit to the village of Haselbury to talk to villagers there, an incandescent vicar of Haselbury wrote to the heads of the Wesleyan and Methodist missions condemning Loveless as ‘strife-maker’ a ‘bad and wicked man’. Observing the role of the clergy in actively assisting in their repression merely for asking for sufficient wages to live on, it is hardly surprising that on the day the six men were sentenced to transportation the windows of the vicarage in Tolpuddle were smashed.

The questions which George Loveless later raised in his ‘letter’ to the Vicar Haselbury in 1838 are very similar to those which might be put to the proprietors of mainstream newspapers and social media sites which have the current role of keeping the population quiescent:

“Have not the clergy during late cruel and disastrous wars, which have caused so much poverty, misery and vice, advocated the principle and been the abettors of impressing the poor for the army and navy,taking them from a lawful calling and making murderers of them….How often has it been observed that the clergy are every foremost in opposing any popular measure that is likely to be carried for the good of the people…How many of the bishops voted against the passing of that most cruel, unchristian and inhuman law ‘The Poor Law Amendment Bill’ or any other act of coercion by which the working classes may be awed into silence, however numerous their grievances….What chance, sir, has a labouring man of obtaining justice if the clergyman of the parish (more especially if it be in an agricultural district) is ill-disposed towards him?”

ASSANGE

Our modern-day pillars of the Establishment – the mainstream press have spared no pains to vilify Assange.

The attacks could be typified by a comment by the BBC, essentially justifying the situation facing Assange by November 2019: “To his supporters, Julian Assange is a valiant campaigner for truth. To his critics, he is a publicity seeker who has endangered lives by putting a mass of sensitive information into the public domain”.  The charge that Assange is a ‘publicity seeker’ and ‘narcissist’ is common, deceitfully conflating publicity for a cause or for information of vital public interest, with self-publicising. To the extent that journalists publicise their work or the information they have uncovered, they are self-publicists – it is the nature of the work. In order to bring the diplomatic cables to public attention, Assange linked with 90 media organisations. Yes, Assange sought publicity, not for himself but for information of vital public interests.

Nor was it Assange who endangered lives, but the very journalists and newspapers who now malign him. When the publications in 2010, specifically the Iraq war logs and ‘Cablegate’, occurred, many newspapers and other media outlets used the material. In fact, it made the names of several reporters. Two of these were David Leigh and Luke Harding who were contacts of Assange in his search for media partners and who published Wikileaks: Inside Julian Assange’s War on Secrecy”  the rights for which were sold to Hollywood and made into a film ‘The Fifth Estate’. It was through the publication of this book that Wikileaks’ strategy to release the diplomatic cables in a controlled way which would ensure that redactions protected named individuals was interrupted and individuals’ security put at risk. As Assange has commented:

“In writing about his work with me on the WikiLeaks material, David Leigh chose—over my explicit warnings—to print a confidential encryption password as a chapter heading, undoing eight months of our work (and of over a hundred other media organizations) and resulting in the dumping of hundreds of thousands of State Department cables onto the Internet without the selective redactions that had been carefully prepared for them.”

The media was a willing tool of propagation of the unproven sexual misconduct allegations against Assange, repeatedly calling them ‘charges’ when no charges have ever been brought. Media across the world was the willing tool of the Swedish police who released information about the allegations to the press, thereby transgressing every rule on confidentiality.

Multiple press outlets have reported the current extradition indictment as charges relating to hacking or leaking documents, when neither is true. In one Guardian article the paper states: “By charging Assange with hacking rather than for publishing classified information, US prosecutors avoided having to directly challenge the press freedoms guaranteed under the first amendment of the US constitution.” Seventeen of the eighteen charges relate to publishing material and just one charge in the indictment includes the word ‘hacking’. No-one hacked US government computers to get the information: the documents were freely available to Chelsea Manning in her line of work as an army intelligence analyst. Assange did seek to help her retain her anonymity, the job of any honourable journalist receiving classified documents. All the other charges are in various ways effectively criminalising the journalist’s act of receiving and publishing classified documents. The Guardian did not point out these simple facts.

Assange has been tried, judged and sentenced by the media and by successive judges, and hence in the court of popular opinion. Assange lives in the Alice in Wonderland world of Lewis Carroll:

‘”I’ll be judge. I’ll be jury”

Cried cunning Old Fury

“I’ll try the whole cause and condemn you to death”’.

6. Implications

TOLPUDDLE

Fortunately for the six men, not only did the Dorchester court have a press gallery but George Loveless was an articulate, self-educated man, well-versed in the Bible and religious argument. He gave an impassioned defence which was reported across the country. The nascent trade union movement in Britain immediately saw the implications for their own ability to organize against injustice. The harshness of the men’s treatment, the abuse of the law and the insouciance of the landowners added to the public anger. (See below)

ASSANGE

Although ostensibly for an entirely different cause, Assange’s case has implications of the most serious kind. Most immediately the outcome will affect whistleblowers and journalists.

Assange is the first journalist to be charged under the US 1917 Espionage Act. The 18 charges consist of one alleging conspiracy to commit computer intrusion, nine alleging conspiracy to receive national defense information, and eight related to publishing national defense documents. As Assange’s lawyer states, the activity described there is: “activity that journalists engage in all the time and any prosecution and extradition of Mr Assange for having done so or alleged to have done so will place a massive chill on investigative journalism the world over.”

In the US, leading newspapers such as the ‘New York Times’ and the ‘Washing Post’ are waking up to the dangers for such charges violate the first amendment of the US constitution.

The New York Times stated on 23^rd May 2019: “The new charges focus on receiving and publishing classified material from a government source. That is something journalists do all the time. They did it with the Pentagon Papers and in countless other cases where the public benefited from learning what was going on behind closed doors, even though the sources may have acted illegally. This is what the First Amendment is designed to protect: the ability of publishers to provide the public with the truth.”

“Though he is not a conventional journalist, much of what Mr. Assange does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations like The Times do: seek and publish information that officials want to be secret, including classified national security matters, and take steps to protect the confidentiality of sources.”

New York Times further noted that Obama, under whom a Grand Jury investigation into Wikileaks was first opened, also considered charges against Wikileaks“but rejected that step out of fears that it would chill investigative journalism and could be struck down as unconstitutional.”

Finally, the US pursuit of Assange outside its own borders, threatens journalists the world over. At the hearing in February 2020 the US prosecution argued that that foreign nationals had no protection under the First Amendment. The US-UK extradition treaty is especially controversial because it removed the requirement for the US to provide ‘prima facie’ evidence of an offence having been committed, requiring only ‘reasonable suspicion’ of the alleged acts; meanwhile the UK must prove ‘probably cause’ to get an extradition. Moreover, while the US has the right to request extradition for offences under US law even though the alleged offence may have been committed by a person living and working in the UK, the UK does not have that reciprocal right. The case of Assange has shown up the imbalance in the US-UK treaty as well as the overweening reach of US claims to extra-territoriality.

Many types of concerned citizens will find their access to information severely restricted. The peace and anti-war movements should be especially concerned. Documents released have included evidence of war crimes, arms sales and the abuse of human rights by the US in Iraq, Afghanistan and Guantanamo and have been cited in thousands of news articles and human rights cases.

In pursuing Assange, the US intends that it shall be able to wage war wherever and however it please, with no one to expose their crimes.

Environmentalists, health campaigners and organizations like Global Justice Now were able to see the highly secretive drafts of the Transatlantic Trade and Investment Treaty (TTIP) and the Trans-Pacific Partnership Treaty free trade deals. Wikileaks also published files on Syrian political elites, on Russian ‘spy files’, on the British far right, on CIA hacking tools, on Amazon and on corporate environmental pollution.

The implications of the Assange case are great, yet the overall public response to it has been muted: and at this point the parallels between Assange and the Tolpuddle Martyrs breaks down, at least for the moment.

7. The popular campaign for release

TOLPUDDLE

The response of the nascent trade union movement in Britain to the Tolpuddle judgment was swift. On 24th March 1834, a week or so after the men were sentenced, the Grand National Consolidated Trades Union called a meeting which was attended by over 10,000 people. On 21st April 1834 up to 100,000 people marched to Parliament and presented a petition to Parliament. William Cobbett, Joseph Hume, Thomas Wakeley and other MPs “kept the question constantly before Parliament”. Petitions came from all over the country with over 800,000 signatures. By June 1835, just ten months after the Martyrs’ arrival in penal colonies, conditional pardons had been granted but were refused by the Tolpuddle men who refused to accept the compromise. There were then more petitions to Parliament, possibly up to 800,000 signatories in all. On 14th March 1836 all the men received a full and free pardon.

ASSANGE

It is clear that there is huge support for Assange internationally and across professions and classes. Leading figures in human rights organisations, lawyers,doctors, academia, the arts, journalism, have all raised their concerns. However, the case currently hinges on the legal process in Britain and it is on British soil that the voices have to be heard. It is here that we see the full effect of the concerted media campaign to lie, smear and demonize Assange. (12)

In the corrupt, unreformed Parliament of the 1830s, elected on a franchise limited to male property holders, MPs nevertheless “kept the question constantly before Parliament”. In 2019 such a persistence by MPs has not happened. Diane Abbott and Jeremy Corbyn have made statement in the Commons opposing Julian Assange’s  extradition to the USA  in the Commons on 11 April but the response of the Labour Party, trade unions and the peace movements have been slow, hesitant and fearful. This is due in part to the possible complicity by the new Labour leader, Keir Starmer when he was Director of Public Prosecutions, in deliberately making it impossible for Assange to leave the Ecuadorean Embassy. The trickle of Labour Party and trade union branch resolutions in support of Assange needs to become torrent.

We can speculate as to why the response in the UK has been so feeble, and much blame must be lain at the doors of the media, whose demonization of Assange and false reporting of the Swedish allegation and the nature of the extradition charges has made left liberals fearful of being associated with him. That fear has no doubt extended to the leadership of the Labour Party and the trade unions. Some on the ‘Left’ assert that Wikileaks publication of the DNC emails showing how the leadership of the US Democratic Party had discussed ways of derailing Bernie Sanders nomination campaign and advancing that of Hillary Clinton. There is no evidence that the leak helped the Trump campaign, but the notion is used by some to sit back and allow an innocent man to be sent to his death.

It is necessary now for all those to stand up who want to stop the drumbeats to war, who want to bring war criminals to justice, to know the truth about the how and why wars are being waged, the way our lives are becoming open books to state surveillance techniques, the way diplomats think and speak about rearranging the world and the way monopoly corporations flout environmental codes and rules. People need to ask themselves a very serious question: do I really wish to see an organization like Wikileaks hobbled, its editors destroyed, and international journalists the world over silenced when they speak out against the misdeeds and crimes of governments?

The support for the Tolpuddle Martyrs nearly 200 hundred years ago shows us what can and must be done:

“The Martyrs of Tolpuddle speak across the years of the price by which alone justice can be set up on the earth. They accomplished little or nothing in their day, but they take an honourable place in the long story of man’s struggle against the fear and greed of those who entrench themselves behind the privileges that property and class bestow upon the favoured minority” (13)

Helen Mercer is a retired University Lecturer and researcher.

 

 

Endnotes

1. ‘The victims of Whiggery: being a statement of the persecutions experienced by the Dorchester Labourers in 1834’. Available on line or through book stores
2. While visiting Sweden in August 2010 Assange was the subject of sexual assault allegations from two women.^[9]He was questioned, the case was initially closed by the Chief Prosecutor of Stockholm. In September Assange was told he could leave the country. In November 2010, however, the case was reopened by a special prosecutor. Assange denied the allegations and said he was happy to face questions in Britain. On 20 November 2010, the Swedish police issued an international arrest warrant via Interpol for Assange. On 8 December 2010, Assange gave himself up to British police and attended his first extradition hearing where he was remanded in custody pending another hearing. On 16 December 2010, at the second hearing, he was granted bail by the High Court and released after his supporters paid £240,000 in cash and sureties. A further hearing on 24 February 2011 ruled that Assange should be extradited to Sweden. This decision was upheld by the High Court on 2 November and by the Supreme Court on 30 May the next year. Accordingly a date was set for his surrender to the British police for extradition to Sweden – 29^th June 2012
3. Herbert Vere Evatt and Geoffrey Robertson ( 2009) The Tolpuddle Martyrs: Injustice Within the Law, Sydney University Press
4. H. Oliver“Tolpuddle Martyrs and Trade Union Oaths” Labour History 10, May 1966, pp 5-12.
5. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/415038/MLA_Guidelines_2015.pdf. For a full account of why this route was not taken by the Swedish authorities see: https://www.indymedia.org.uk/en/2012/11/503439.html

6. http://www.ohchr.org/Documents/Issues/Detention/A.HRC.WGAD.2015.docx. Since then the “European Investigative order” has been created for cases that are in preliminary investigation without a decision to charge. This allows a prosecutor to request to question a suspect under the EU Mutual Legal Assistance framework. An EAW will only be issued after a suspect is charged.
7. https://www.washingtonexaminer.com/news/judge-dismisses-dnc-hacking-lawsuit-against-trump-campaign-wikileaks-and-russia. The full opinion can be found here:https://www.documentcloud.org/documents/6225696-DNC-Trump-7-30-19.html
8. https://defend.wikileaks.org/wikileaks/; https://www.theguardian.com/media/2018/feb/11/sweden-tried-to-drop-assange-extradition-in-2013-cps-emails-show
9. http://www.ohchr.org/Documents/Issues/Detention/A.HRC.WGAD.2015.docx. After Assange’s forced ejection from the Ecuadorean Embassy, the Swedish prosecutor re-opened the case against him and requested extradition to Sweden. This time she did place the request before a judge (as should have happened before) and the judge rejected it.
10. Tolpuddle Methodist Chapel, display
11. H. Oliver“Tolpuddle Martyrs and Trade Union Oaths” Labour History 10, May 1966, pp 5-12.
12. See rebuttals of smears concerning his behaviour in the Embassy by former Ecuadorean Consul:https://theduran.com/40-rebuttals-to-cnns-bias-on-assange/
13. Herbert Vere Evatt, The Tolpuddle Martyrs: Injustice within the law, with an introduction by Geoffrey Robertson, Sydney University Press, Sydney, 2009