The High Court in London has granted Julian Assange leave to appeal the UK Home Secretary’s order that he be extradited to the United States on charges of computer misuse, and multiple charges under its Espionage Act. Assange has been handed a reprieve in his fight against extradition to the US after two judges ruled the WikiLeaks founder could take his case to an appeal hearing – but only if the Biden administration is unable to provide the court with suitable assurances.
The president of the king’s bench division, Victoria Sharp, and Mr Justice Johnson said Assange had real prospects of success on three of the nine grounds argued, but adjourned the leave to appeal application to give the US government three weeks to allay their concerns on the relevant matters.
If Assange had been denied permission to appeal he could have been extradited within days to face espionage charges. While the judges’ decision means he avoids that fate it leaves him facing a further wait, with his future still unresolved.
In a written judgment handed down on Tuesday, Sharp said the concerns that could be likely to succeed at appeal but which “may be capable of being addressed by assurances” were “that the applicant [Assange] is permitted to rely on the first amendment, that the applicant is not prejudiced at trial, including sentence, by reason of his nationality, that he is afforded the same first amendment protections as a United States citizen, and that the death penalty is not imposed”.
At a two-day hearing last month, which Assange was too unwell to attend, his lawyers argued that he faced a “flagrant denial of justice” if prosecuted in the US on charges relating to the publication of thousands of classified and diplomatic documents they said had exposed torture, rendition, extrajudicial killings and war crimes.
His wife, Stella Assange, expressed dismay at the judges’ decision. “What the courts have done has been to invite a political intervention from the United States … send a letter saying ‘its all OK’,” she said. “I find this astounding.
“This case is a retribution. It is a signal to all of you that if you expose the interests that are driving war they will come after you, they will put you in prison and will try to kill you.
“The Biden administration should not issue assurances. They should drop this shameful case that should never have been brought.”
The court rejected the following grounds of appeal:
- that extradition would be incompatible with the US–UK extradition treaty (this essentially addresses the claim that charges are for political offences)
- that extradition is barred because it involves prosecution for a political opinion
- that extradition is incompatible with Article 6 (right to a fair trial) or Article 7 (ban on retroactive criminal law) of the European Convention on Human Rights (ECHR)
- that extradition is incompatible with Article 2 (right to life) or Article 3 (prohibition on torture or inhuman or degrading treatment) of the ECHR.
The grounds provisionally accepted by the court are:
- that extradition is incompatible with Article 10 (freedom of expression) of the ECHR
- that the UK Extradition Act prohibits extradition in cases where the accused might be prejudiced on grounds of nationality
- that there is inadequate protection of the principle of speciality (that a person can only be charged with offences listed in the extradition request) and against the death penalty.
The grounds of appeal are in some ways surprising, given the District Court judgement of 2021 decided that extradition should not be allowed on the basis that it would be oppressive.
In the leave to appeal hearing, it seems the court was persuaded by arguments that Assange is being charged for actions that are normal journalistic activities. The European Court of Human Rights has never found that extradition would violate freedom of expression, so this case could be a major development in the law under the ECHR.
The issue of prejudice on the grounds of nationality appears to relate to claims that Assange, as a non-national of the US, would not be able to rely on First Amendment protections of freedom of expression.
Sharp stated in Tuesday’s 66-page judgment that the UK home secretary’s lawyer had accepted that there was nothing in place to prevent Assange being charged in the US with an offence that carried the death penalty and it then being imposed.
She cited as evidence of such a risk “the calls for the imposition of the death penalty by leading politicians and other public figures; the fact that the [UK-US extradition] treaty does not preclude extradition for death penalty charges, and the fact that the existing assurance does not explicitly cover the death penalty”.
On free speech protections under the first amendment in the US, Sharp said: “He [Assange] contends that if he is given first amendment rights, the prosecution will be stopped. The first amendment is therefore of central importance to his defence to the extradition charge. Further, if he is convicted, he may wish to invoke the first amendment on the question of sentence. If he is not permitted to rely on the first amendment because of his status as a foreign national, he will thereby be prejudiced – potentially very greatly prejudiced – by reason of his nationality.”
The court has asked for new assurances because the grounds of appeal are outside the assurances the US government gave in 2021, which responded to the District Court judgement.
The US has been given until April 16 to file assurances. If it does not do so, leave to appeal will be granted. If it does, they will be considered at another hearing provisionally listed for May 20.
Nick Vamos, a partner at Peters & Peters solicitors in London and a former head of extradition at the Crown Prosecution Service (CPS), said they were “pretty straightforward assurances for the US to provide”.
Amnesty International and the National Union of Journalists urged the US to drop the extradition case. The UN special rapporteur on torture, Dr Alice Edwards, also said she still had concerns about Assange’s “precarious mental health”.
“It is regrettable that the court did not comprehensively address the possibility of a disproportionate penalty for Mr Assange in the US, of up to 175 years and likely no less than 30 years,” she said. “Or the potential that he would likely be held in ongoing solitary confinement. Either of these could amount to inhuman treatment.”
Today’s judgement opens the door to a full appeal. Dates for hearing will be set, but the appeal will probably be heard later this year. If the appeal succeeds, the extradition process would be over. At that point, Assange would be released from Belmarsh prison and probably deported to Australia.
If the appeal fails, he could seek leave to appeal to the UK Supreme Court. If leave is denied or a further appeal fails, he would at that stage have exhausted all possible remedies in the UK.
https://twitter.com/JudiciaryUK/status/1772572351432896945
US Marshals will likely seek to remove Assange to the United States as soon as possible after he exhausts his UK recourses. To prevent that, his legal team will make an application to the European Court of Human Rights. Assange’s lawyers applied to the European Court of Human Rights in 2022, but the application was declared inadmissible without published reasons on December 13 2022, probably because he had not yet exhausted potential remedies in the UK.
Once Assange has exhausted his last possible recourse before the British courts, an application to the European Court of Human Rights would probably be declared admissible. The application will be accompanied by a request for urgent interim measures to obtain an order prohibiting the UK from extraditing Assange until the European Court has decided on his case.
Interim measures are usually only granted in cases involving the right to life or the prohibition on torture or inhuman or degrading treatment. The District Court judgement in 2021 found he should not be extradited because it would be oppressive. The facts underlying that finding, that the likely prison conditions in the US increased the risk that Assange could attempt suicide, could support a claim under the European Convention on Human Rights that extradition would violate his right to be free from inhuman or degrading treatment or punishment.
The United Nations Special Rapporteur on Torture, Alice Edwards, said before the February hearing that the conditions Assange would face could amount to torture or other forms of ill-treatment or punishment.
Last week, reports surfaced that the US government was considering offering a plea bargain to Assange, allowing him to admit to a misdemeanor, which would enable him to be released from prison based on the time he has already served in Belmarsh.
However, Assange’s American lawyers stated at that time that they had not been contacted by the US government, and no one associated with Assange has made further comment.
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