December 13, 2021
In United States Government v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the decision of the Westminster Magistrates’ Court, thus authorizing the extradition of the founder of WikiLeaks to the United States where he faces criminal charges relating to the unlawful procurement and publication of classified defense and national security material.
The High Court ruled that the diplomatic assurances given by the US government regarding Assange’s potential conditions of detention were sufficient to overturn the original basis on which his extradition was initially overturned, namely that his mental state was such that he it would be “oppressive” to extradite him, in accordance with section 91 of the Extradition Act 2003.
The proceedings in Westminster Magistrates Court
In a January 2021 ruling, District Judge Vanessa Baraitser dismissed the US extradition request against Julian Assange because there is a significant risk that he will commit suicide. The judge concluded that there was a “real risk” that Assange would be subject to Special Restrictive Administrative Measures (SAMs), both before and after the trial. She further found that there was a “real risk” that, if convicted, Assange would be held at the Florence, Colorado Maximum Security Administrative Prison (ADX). Based on expert psychiatric evidence, the judge was convinced that if Assange were subjected to the extreme conditions of SAM, his mental health would deteriorate to the point of committing suicide. The judge also found that Assange possessed the determination, planning and intelligence to circumvent measures designed to prevent him from taking his own life.
Nonetheless, the judge rejected each of Assange’s other grounds for opposing the extradition. Most prominent among these was the submission that a US criminal prosecution would violate its right to free speech (discussed on this blog here).
United States Grounds of Appeal
The United States has filed five grounds of appeal against the district judge’s decision. Three grounds concerned the correctness of the judge’s decision under section 91 of the Extradition Act 2003. They were all rejected by the High Court. The two reasons retained rather focused on American diplomatic assurances.
Ground 2: After deciding that the Section 91 release threshold was met, the judge should have notified the United States of his provisional view to give him the opportunity to offer assurances to the court;
Reason 5: The United States has now provided the United Kingdom with a package of assurances that respond to the judge’s specific findings in this case. In particular, the United States assured that Mr. Assange would not be subjected to SAMs or jailed at ADX (unless he did something subsequent to the offer of these insurances meeting the criteria of imposition of SAM or of designation to ADX). The United States has also assured that it will consent to Mr. Assange’s transfer to Australia to serve any custodial sentence imposed on him if found guilty.
The four assurances, which are cited in full in para. [30], were given to the UK government in February 2021. These were supplemented by new insurance in October 2021 in which the US claimed it had always fulfilled the assurances it provided. He added that the United States “Is not aware of a single instance where the UK has raised concerns over broken US insurance.” [31] Finally, the note asserted that the insurance companies of the United States “Are binding on all current or subsequent individuals to whom authority has been delegated to decide matters [including federal prosecutors]. “ [31]
Judgement
Reflecting on the authorities that allow the court to review assurances at various stages of the extradition process, including on appeal, the High Court ruled at para. [42] this “if a court refused to accept an offer of insurance on the sole ground that the insurance had been offered at a late stage, the result could be a godsend to a suspected or convicted criminal, which would be against the best interests public extradition.“The Court further observed that a refusal to accept insurance on account of delay “Would probably only lead to delays and duplication of procedures” because it would be open to the United States to make a new request for extradition and to present at the outset the assurances now offered in this appeal, subject to duly available arguments of abuse.
The argument that the United States could have offered such assurances at an earlier stage was also considered inappropriate because it may not be fair to require a requesting state to provide assurances on a “Conditional or hypothetical basis”, which is of questionable practicability in all cases. [43]
Overall, the Court found that the United States had made solemn undertakings in good faith that sufficiently addressed the concerns that led to the district judge’s decision. [52]. They could be trusted: as Laws LJ observed in Babar Ahmad vs. United States [2006] EWHC 2927 (Admin), in more than 150 years during which the United Kingdom has maintained extradition relations with the United States, through five major treaties, “There is no example of an assurance given by the United States, as a requesting state in an extradition case, that has been dishonored.” [Judgment para 74]
The High Court was therefore convinced that following American diplomatic assurances, the risk of Assange being subjected to SAMs and / or detained at ADX could be ruled out. Therefore, it follows that if those assurances had been given to the judge, she would have answered the relevant questions differently. This case must therefore be remitted to the Westminster Magistrates’ Court, with orders to refer the case to the Secretary of State, who will decide whether Assange should be extradited to the United States.
Comment
This simple judgment apparently ends Assange’s extradition saga. With all objections to his extradition having now been dismissed by the Magistrates’ Court and High Court, an appeal to the Supreme Court remains Assange’s last hope.
Sapan Maini-Thompson is training to become a lawyer specializing in criminal, public and human rights law. He tweets @SapanMaini
