The High Court allowed the U.S. appeal to reverse an order not to extradite Julian Assange and to send the case back to magistrate’s court.
By Joe Lauria
Special to Consortium News
The High Court in London on Friday ruled in the U.S. appeal against a lower court decision not to extradite imprisoned WikiLeaks publisher Julian Assange by sending the case back to Magistrate’s Court with instructions to send the case to the secretary of state to decide on Assange’s extradition.
The matter is now in the hands of the home secretary, Pritti Patel, unless Assange’s lawyers appeal the decision to the U.K. Supreme Court, which they have said they will do. If extradited, Assange faces up to 175 years in prison on charges under the Espionage Act and one count of conspiracy to commit computer intrusion. Assange is the first journalist to be charged with espionage by the U.S. for obtaining and publishing state secrets.
Lord Justice Timothy Holroyde, who read the High Court’s summary decision in court in nine minutes, said the order by a lower court to discharge Assange was overturned and that he was to remain on remand in prison. Holroyde said that the High Court had accepted the U.S. assurances that Assange would not be kept in harsh prison conditions in the U.S. He called them “solemn undertakings from one government to another.”
The High Court was satisfied, Holroyde said, that Assange would not be held under Special Administrative Measures or sent to ADX Florence maximum security prison in Colorado, that Assange would receive adequate medical treatment while incarcerated and that he could serve his post-trial and post-appeal sentence in his native Australia.
“The court rejected various criticism argued on Mr. Assange’s behalf …that the assurances …were not sufficient,” Holroyde said.
“For the reasons given in the judgment which is today handed down, the court allowed the appeal on the grounds that .. a. the DJ [District Judge], having decided that the threshold for discharge under section 91 of the Extradition Act 2003 was met, ought to have notified the USA of her provisional view, to afford it the opportunity to offer assurances to the court; and b. the USA has now provided the United Kingdom with a package of assurances which respond to the DJ’s specific findings.”
Holroyde read only the summary judgment in court. He said nothing about the district judge’s finding of oppression to discharge Assange, pointing out only that the High Court was satisfied with the U.S. assurances. Details of the mental health issues are in the full 27-page judgement that can be read here. It is discussed later in this report.
Holroyde pointed out that the district judge, Vanessa Baraitser, “decided all but one of the issues in favour of the USA. She decided that Mr Assange’s mental condition was such that it would be oppressive to extradite him because of the harsh conditions in which he was likely to be detained.”
Holroyde said: “Mr Assange has indicated that he challenges the DJ’s decisions on the issues which were decided against him, and will seek to raise those issues at a later stage.” This is in reference to a possible cross appeal that Assange’s lawyers could lodge at the Supreme Court, depending on whether the Supreme Court accepts his appeal.
U.S. Grounds for Appeal
The High Court rejected three of the five U.S. grounds for appeal:
“The USA appeals against the order discharging Mr Assange on five grounds:
- i) Ground 1: The judge made errors of law in her application of the test under section 91. Had she applied the test correctly she would not have discharged Mr Assange; [The High Court rejected this ground.]
- ii) 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;
iii) Ground 3: Having concluded that the principal psychiatric expert called on behalf of the defence (Professor Kopelman) had misled her on a material issue, the judge ought to have ruled that his evidence was incapable of being relied upon (or that little weight should be attached to it) or that his lack of independence rendered his evidence inadmissible. The district judge failed to interrogate or adequately assess the reasons for Professor Kopelman misleading her (seemingly concluding that it was sufficient that he had misled her for ‘human’ reasons) or to assess adequately how his willingness to mislead her impacted upon the overall reliability of his evidence. Had she not admitted that evidence or attributed appropriate weight to it, the judge would not have discharged Mr Assange pursuant to section 91; [The High Court rejected this ground.]
- iv) Ground 4: The judge erred in her overall assessment of the evidence going to the risk of suicide, in particular in her predictive assessment of a future, long term risk which was based upon several contingencies which might or might not eventuate;[This ground was rejected by the High Court.]
- v) 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 High Court judgment says:
“The USA contends that had the judge approached the evidence surrounding the issue of oppression correctly (grounds 1 to 4) she would have decided the question differently and sent the case to the Secretary of State. In consequence the appeal should be allowed. In the alternative the question should be remitted for redetermination.”
In other words, the High Court could have sent the case back to Magistrate’s Court to be re-litigated. Instead it decided to send the case back to the lower court with the instructions to reverse its ruling and send the matter to the secretary of state to decide on extradition.
The High Court laid out specifically why it allowed the U.S. appeal and rejected Assange’s argument. It came down to the fact that the court accepted the U.S. assurances even though they came after Baraitser’s ruling not to extradite. The High Court explicitly believed in the sincerity of those assurances.
The judgment said: “There is no reason why this court should not accept the assurances as meaning what they say. There is no basis for assuming that the USA has not given the assurances in good faith.”
It said further:
“There were no assurances before the judge (ground 5). They are now offered in response to the finding on oppression. The contention of the USA is that the assurances raise a new issue for the purposes of section 105 of the 2003 [Extradition] Act and that had the assurances been available to the judge she would have decided the oppression question differently.”
“It is submitted that on this basis alone, the appeal should be allowed.” [Emphasis added.]
The High Court rejected arguments by Assange’s lawyers that the U.S. assurances could not be trusted, by ruling:
“General statements of opinion calling into question the good faith of the USA from those who establish no relevant expertise to give such an opinion are of no more value than a journalistic opinion culled from an internet search. We have nonetheless considered all the material de bene esse.”
The court rejected the Assange argument that the assurances should not be admitted because they came after Baraitser had ruled. “In our view, a court hearing an extradition case, whether at first instance or on appeal, has the power to receive and consider assurances whenever they are offered by a requesting state,” the High Court judgment said.
It said further:
“An offer of assurances in an extradition case is a solemn matter, requiring careful consideration by the requesting state of its willingness to give specific undertakings to another state. It would not be appropriate to require that to be done on a contingent or hypothetical basis; and we doubt the practicability of such an approach. We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage.”
The High Court also tried to justify why the U.S. waited until after the extradition hearing in September 2020 to make its assurances. “We observe that the decision that all closing submissions should be made in writing, in a case in which the arguments had ranged far and wide over many days of hearing, may well have contributed to the difficulty faced by the USA in offering suitable assurances any earlier than it did,” the court said.
The U.S. assurances appear to contain an error. It promises Assange will not be held pre-trial at ADX Florence prison, when Assange would be held before trial at the Alexandria Detention Center.
Mental Health Issue
The High Court rejected ground 3 of the U.S. appeal that the testimony of defense witness Prof. Michael Kopelman should not be given any weight because in his first report to the lower court he concealed the relationship Assange had with Stella Moris, and their two children. Baraitser had ruled that while he mislead the court it was humanly understandable given the risks to Moris and the children.
Those risks came from C.I.A. contractor UC Global, which was spying on his Assange and all of his visitors at the Ecuador embassy in London, including Moris, and Assange’s lawyers and doctors. The High Court made no mention of this, but concluded:
“It is submitted that the judge – who had of course seen and heard all the evidence, and was well aware of the criticisms made in the cross-examination of Professor Kopelman — accepted that he had made two misleading statements in his first report but concluded nonetheless that his expert opinion was impartial and reliable. She was entitled to come to that conclusion and there is no basis on which this court can go behind it.”
The High Court however severely criticized Kopelman for violating his oath to the court to tell the truth. “With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman’s failings could be excused or overlooked merely because his conduct could be viewed as ‘an understandable human response’”.
Assured By the Assurances
Despite this ruling, the High Court made clear that it based its entire decision to quash Assange’s discharge on accepting the U.S. assurances. It accepted the U.S. contention that
“the risk that Mr Assange would be made subject to SAMs and/or would be detained at the ADX was ‘front and centre’ of the opinions of both [defense witnesses] Professor [Michael] Kopelman and Dr [Quinton] Deeley, and was the basis of the judge’s decision that extradition would be oppressive. Once that risk is removed by the assurances, the judge would have reached a different decision.”
The court added:
“Given the emphasis which the judge placed on the ‘harshest SAMs regime’, and given that the evidence of Professor Kopelman and Dr Deeley of the risk of suicide was premised on Mr Assange being held under harsh conditions of isolation, we are unable to accept the submission that the judge’s conclusion would have been the same if she had not found a real risk of detention in those conditions.”
In other words, the High Court accepted that it would be Assange’s prison conditions that were the key factor to his risk of suicide, and that once the U.S. assurance removed that factor, Assange should be extradited.
Neither the words “C.I.A.” nor “Central Intelligence Agency” appear anywhere in the High Court decision, even though Moris’ safety was at risk because of the C.I.A. and more significantly, because the C.I.A. had seriously considered kidnapping or killing Assange while he was in the embassy.
This plot was submitted as evidence in Assange’s September 2020 extradition hearing and in much greater detail at the High Court hearing at the end of October, when Assange lawyer Mark Summers QC referred to the Yahoo! News report about the C.I.A. plot.
He argued that Assange could not be extradited to a state whose intelligence services had discussed a plot to kill him. At his conclusion, Summers recommended that the two high court judges read the Yahoo! report. If they did, they clearly ignored it.
In fact, it rejected a new submission by Assange that the U.S. had committed “an abuse of the process because the USA was prompted by ulterior motives.” The High Court said: “The DJ [Baraitser] was satisfied that the federal prosecutors who brought the charges against Mr Assange acted in good faith.”
There was no immediate reaction from the U.S. government to the High Court decision.
WikiLeaks Editor-in-Chief Kristinn Hrafnsson said: “Julian’s life is once more under grave threat, and so is the right of journalists to publish material that governments and corporations find inconvenient.”
Moris, Assange’s fiancee, issued a statement after the ruling:
Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers. He was an investigative reporter for the Sunday Times of London and began his professional work as a 19-year old stringer for The New York Times. He can be reached at [email protected] and followed on Twitter @unjo