US granted leave to appeal against Assange discharge

 

On 7 July 2021, the UK High Court granted an application for permission to appeal by the Crown Prosecution Service (“CPS”), on behalf of the US Authorities, against a decision to bar Julian Assange’s extradition.  No date has yet been set for the appeal hearing.

The permission decision had been considerably delayed, with the CPS lodging their application back in January shortly after District Judge Vanessa Baraitser issued her judgment.

The basis of the lower court’s decision was that, pursuant to section 91 of the Extradition Act 2003, it would be unjust or oppressive to extradite Mr Assange given the substantial risk of his suicide in US prison. The expert evidence presented to the court was that Mr Assange suffered from a recurrent depressive disorder, often accompanied by suicidal ideations, autism spectrum disorder and Asperger syndrome.  Although the US authorities had provided some assurances regarding conditions of detention, the District Judge found that they were insufficient to address the suicide risk.

The US authorities have now made a series of further assurances seeking to address those concerns. First, were Mr Assange to be extradited, he would not be subject to Special Administrative Measures (‘SAMS’). Second, if Mr Assange were extradited, he would not be held in ADX, a so-called ‘Supermax’ prison, and third, that if convicted and sentenced, Mr Assange would have the option to serve his sentence in Australia.

The CPS, on behalf of the US authorities, originally advanced five grounds of appeal.  Two of those grounds – relating to the District Judge’s assessment of the expert evidence of Mr Assange’s mental health – were refused.  The remaining three grouds are:

1. That the judge made errors of law in the application of the test under section 91;
2. That the judge failed to notify the Requesting State of the court’s provisional view, so as to provide an opportunity for it to offer assurances; and
3. The provision by the US authorities of a new package of assurances which are responsive to the District Judge’s specific findings in this case.

Potential arguments

The arguments in the upcoming appeal are likely to focus on the quality and nature of the assurances now advanced.  The US authorities have previously resisted being tied to bespoke detention regimes to secure extradition, even in terrorism cases, relying instead on the UK court applying a presumption that the US penal system will protect and treat all prisoners fairly. The apparent willingness of the US authorities to go further than they have done in previous cases may signify the importance placed on Mr Assange’s extradition, or simply be the US bowing pragmatically to the inevitability that bespoke assurances are now an indispensable part of many extradition proceedings.

One line of defence argument is likely to be that the assurances are qualified. The guarantees are offered with the caveat 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.”  It is unclear what circumstances meet these tests. SAMS can include housing an inmate ‘in administrative detention […] and limiting’ their correspondence, visiting, interviews with representatives of the news media and use of their telephone’ – a prospect which was relevant to the lower court’s decision under section 91.

Although, unlike some jurisdictions, the US authorities do not have a track record of breaching diplomatic assurances (not least because they rarely provide them), the defence may also argue that the heightened political nature of Mr Assange’s extradition renders their assurances more susceptible to political influence or manipulation. For example, the US authorities may insist that the promise that he could serve any sentence in Australia will only apply once all appeal proceedings had been concluded, which could take several years.

Reasons for the delay

Considering that the CPS application was lodged in January, the seven-month wait for a decision was particularly striking. In allowing the second ground of appeal, above, it is clear that the High Court was unimpressed with the District Judge’s decision to discharge Mr Assange, rather than indicating a provisional view and giving US authorities an opportunity to offer improved assurances.  That may explain why the High Court allowed the US authorities an extraordinary amount of time before those assurances were forthcoming. Why that time was needed may be explained by the change in US administration from Trump to Biden, leading to a change in decision-makers and, possibly, an increased willingness to provide assurances.

Overall, the case will likely raise significant issues regarding the proper application of section 91, and the approach of the courts in regard to conditional assurances made by foreign jurisdictions, particularly the USA, for the welfare of individuals in detention. As at the date of writing, it is unclear whether Mr Assange’s legal team has cross-appealed on any of the points decided against him by the District Judge relating to freedom of speech, journalistic protections and political motivation.