USA successfully appeals Assange case

13 December 2021 by Sapan Maini-Thompson

In Government of the United States v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.

The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.

The proceedings at Westminster Magistrates Court

In a January 2021 ruling, District Judge Vanessa Baraitser discharged the American extradition request against Julian Assange because there is a substantial risk that he would commit suicide. The Judge concluded that there was a “real risk” that Assange would be subject to restrictive special administrative measures (SAMs), both pre-trial and post-trial. She further found that there was a “real risk” that, if convicted, Assange would be held at the Administrative Maximum Security prison in Florence, Colorado (ADX). Based upon expert psychiatric evidence, the Judge was satisfied that if Assange was subjected to the extreme conditions of SAMs, his mental health would deteriorate to the point where he would commit suicide. The Judge also found that Assange possessed the determination, planning and intellect to circumvent measures designed to prevent him from committing suicide.

Nevertheless, the Judge rejected each of the other grounds on which Assange had resisted extradition. Most prominent among those was the submission that an American criminal prosecution would violate his right to free speech (discussed on this blog here).

US Grounds of Appeal

The US brought five grounds of appeal against the District Judge’s ruling. Three grounds concerned the correctness of the Judge’s decision under s.91 Extradition Act 2003. These were all rejected by the High Court. The two successful grounds focussed instead on American diplomatic assurances.

Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;

Ground 5: the USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

The four assurances, which are quoted in full at para [30], were given to the UK government in February 2021. These were complemented by a further assurance in October 2021 in which the USA claimed that it has always fulfilled the assurances it has provided. It stated further that the USA “is unaware of a single instance in where the United Kingdom communicated a concern about any US assurance going unfulfilled.” [31] Finally, the note affirmed that the USA’s assurances “are binding on any and all current or subsequent individuals to whim authority has been delegated to decide the matters [including federal prosecutors].” [31]

Judgment

Reflecting on the authorities which permit the court to consider assurances at various stages of extradition proceedings, including at appeal, the High Court ruled at para [42] that “if a court were to refuse to entertain an offer of assurances solely on the ground that the assurances had been offered at a late stage, the result might be a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition.” The Court additionally observed that a refusal to accept the assurances on tardiness grounds “would be likely to lead only to delay and duplication of proceedings” because it would be open to the US to make a fresh request for extradition and to put forward from the outset the assurances now offered in this appeal, subject to properly available abuse arguments.

The submission that the US could have offered these assurances at an earlier stage was also deemed inappropriate because it cannot be right to require a requesting state to make assurances on a “contingent or hypothetical basis”, which is of doubtful practicability in any case. [43]

Overall, the Court held the US has made solemn undertakings in good faith which sufficiently meet the concerns which led to the District Judge’s decision [52]. These could be trusted: as was observed by Laws LJ in Babar Ahmad v USA [2006] EWHC 2927 (Admin), in over 150 years during which the UK has maintained extradition relations with the USA, across five substantial treaties, “there is no instance of any assurance given by the United States, as the requesting state in an extradition case, having been dishonoured.” [Judgment para 74]

The High Court was therefore satisfied that following the American diplomatic assurances, the risk of Assange being subject to SAMs and/or detained at the ADX could be excluded. Accordingly, it follows that had those assurances been before the judge, she would have answered the relevant questions differently. This case is therefore to be remitted to the Westminster Magistrates’ Court, with a direction to send the case to the Secretary of State, who will decide whether Assange should be extradited to the USA.

Comment

This straightforward judgment seemingly puts an end to the Assange extradition saga. With all the objections to his extradition having now been rejected by the Magistrates’ Court and High Court, an appeal to the Supreme Court remains Assange’s last hope. It is understood that an application for permission to appeal is to be made.

Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini