District Judge Vanessa Baraitser sitting at the Central Criminal Court on 4 January 2020 has ordered the discharge of Julian Assange in extradition proceedings brought by the United States’ Government on the grounds that his mental condition is such that it would be oppressive to order his extradition. Mr Assange is requested by the US to stand trial on 18 counts relating to the unauthorised attainment and disclosure of national defence information and computer intrusion in connection with the publication by Wikileaks of secret US military information beginning in 2009.
The defence made a number of submissions against Mr Assange’s extradition. Counsel for Mr Assange argued that his extradition should be barred by reason of extraneous considerations, namely that the Trump administration’s decision to prosecute was politically motivated, forming part of the administration’s war on journalists and whistle-blowers and involving unprecedented executive interference in the criminal justice process. These submissions were rejected by the District Judge who found there was no evidence of undue pressure on federal prosecutors nor that they had acted in bad faith.
The defence submission that extradition would result in a breach of Mr Assange’s right to a fair trial under Article 6 of the ECHR was also roundly rejected by the court holding that none of the issued raised by the defence, including, inter alia, prejudice caused by public denunciations of Mr Assange by senior government officials, the US federal system’s use of coercive plea-bargaining powers and the power of US courts to upwardly enhance any sentence imposed on the basis of unproven allegations potentially contravening the specialty principle, either taken alone or collectively would result in contravention of that right.
Though it was accepted that Mr Assange’s Article 10 right to freedom of expression was undoubtedly engaged in the proceedings, the relevant test was whether extradition would result in the flagrant denial or gross violation of Mr Assange’s right under that article. The District Judge found that the First Amendment to the US Constitution provides similar protection and no authority was placed before the court in support of the proposition that Mr Assange would be denied the benefit of such protection.
As to whether it would amount to an abuse of process for the US to seek extradition for a “political offence” as prohibited under the 2003 Treaty agreed between the UK and the US, the court held that the Treaty itself does not create enforceable rights. The political offence protection in the Treaty was not given effect in domestic law and there is no authority which required the court to reinstate such a protection.
Turning to the defence’s successful submission, the District Judge accepted the medical evidence presented by the defence that Mr Assange suffers from a recurrent depressive disorder often accompanied by suicidal ideas, autism spectrum disorder and Asperger’s syndrome. The District Judge considered that there was a real risk that if extradited Mr Assange would be subject to Special Administrative Measures (SAMs) in the US and therefore, taking into account the evidence of the medical expert witnesses and the severely restrictive detention conditions in which he is likely to be held, was satisfied that the risk of Mr Assange committing suicide if extradited was substantial. Pre-trial SAMs can be extremely onerous with detainees held in a state of near total isolation, cut off from other prisoners and limited to one 15 minute phone call per month with family. The District Judge held that if he were to be made subject to the onerous conditions of SAMs, Mr Assange’s mental health would deteriorate to such an extent that he would find a way to commit suicide with the “single minded determination” described by one expert witness, regardless of any preventative measures put in place. Mr Assange’s “determination, planning and intelligence” as well as his autism spectrum disorder and Asperger’s syndrome diagnoses were referenced in support of this conclusion.
Holding that his extradition would be oppressive by reason of his mental condition and ordering his discharge, the District Judge acknowledged the public interest in giving effect to obligations under bilateral extradition treaties and stressed the high threshold to be met in cases of this kind. Counsel for Mr Assange will make an application for bail on Wednesday 6 January 2020 at Westminster Magistrates’ Court.
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