Still only half time in US v Julian Assange

On 17 June, home secretary Priti Patel ordered the extradition of WikiLeaks co-founder Julian Assange to the US, where he is charged with 18 counts connected to hacking and publishing defence and national security material, including Guantanamo Bay detainee assessment briefs, Department of State cables and Iraq rules of engagement files.

However, this is not the end of the road for Assange, who is expected to appeal to the High Court on many, if not all of the grounds on which he lost in the original proceedings and to seek to present new evidence which has since arisen.

At the conclusion of the original extradition hearing, on 4 January 2021, District Judge Baraitser ordered Assange’s discharge because ‘his mental condition… is such that it would be oppressive to extradite him’. She found there was a real risk that Assange would be subject to restrictive special administrative measures (SAMs) in the US and that, if convicted, there was a real risk he would be held at ADX Florence ‘Supermax’ prison. She found that if subjected to these conditions, Assange’s mental health would deteriorate causing him to commit suicide.

DJ Baraitser found against Assange on all other grounds he advanced. These included that: the UK-US Extradition Treaty prohibits extradition for a ‘political offence’; the allegations do not meet dual criminality requirements; extradition would be unjust and oppressive by reason of the lapse of time; extradition is barred by reason of extraneous considerations, namely that the US government wants to prosecute and punish Assange on account of his political opinions; extradition would be in breach of Articles 3, 6, 7 and 10 of the European Convention on Human Rights, in particular that a fair trial was impossible given the US government’s desire for revenge and that treatment already meted out to Chelsea Manning; and extradition would be an abuse of process because the request misrepresents the facts and the prosecution is being pursued for ulterior political motives and not in good faith.

The US government appealed against Assange’s discharge and provided unprecedented assurances that he would not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of the assurances that met the tests for the imposition of SAMs or designation to ADX), and that it consented to Assange being transferred to Australia to serve any custodial sentence imposed on him if he was convicted. These assurances were sufficient for the High Court to reverse the district judge’s ruling, and the court also found that the district judge ought to have notified the US of her provisional view to afford it the opportunity of offering assurances to the magistrates’ court, which might have avoided the need for an appeal.

Following an unsuccessful application by Assange to appeal to the Supreme Court on the issues of the timing and nature of the US assurances, the case was sent back to the magistrates’ court which accordingly sent the case to the home secretary as required. The home secretary’s decision to order extradition was unsurprising given the very limited grounds on which she can discharge an extradition warrant (since the law changed after Gary McKinnon’s case), none of which appear to apply in Assange’s case.

Appeal on question of law or fact

Assange has 14 days from the date of the home secretary’s decision in which to appeal to the High Court. An appeal may be brought on a question of law or fact but can only be brought with the leave of the High Court. The High Court may allow or dismiss the appeal or it may direct the original judge to decide again a question or questions which she decided at the extradition hearing. It may allow an appeal on two bases.

First, an appeal may be allowed if the judge ought to have decided a question before her at the extradition hearing differently and, if she had decided the question in the way she ought to have done, she would have been required to order Assange’s discharge. Second, an appeal may be allowed if an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing, the issue or evidence would have resulted in the judge deciding a question before her at the extradition hearing differently, and if she had decided the question in that way, she would have been required to order Assange’s discharge.

Assange’s legal team are likely to resurrect the arguments made before DJ Baraitser, meaning the High Court may need to grapple with questions relating to the political nature of the alleged offences, the motivation behind the extradition request, whether Assange’s actions strayed beyond those of an ordinary investigative journalist into criminality, and whether extradition would breach his human rights.

Assange is also likely to seek to adduce fresh evidence, including in respect of allegations which surfaced in September 2021 that senior CIA officials discussed kidnapping or assassinating him in 2017. It was reported earlier this month that the CIA’s former director, Mike Pompeo, has been summoned by the Spanish High Court to give evidence in connection with these allegations.

Depending on the High Court’s decision, there may be a further appeal to the Supreme Court if the High Court certifies that there is a point of law of general public importance involved in its decision. There could, conceivably, be an appeal to the European Court of Human Rights once domestic remedies are exhausted, meaning Assange is unlikely to be extradited for many months yet, if at all. Meanwhile, he remains in custody at HMP Belmarsh.

Nick Vamos is a partner and head of business crime and Patrick Ormerod is an associate at Peters & Peters, London