Between the 27-28 of October 2021, the High Court heard the US government’s appeal against District Judge Vanessa Baraitser’s ruling, issued in January 2021, barring the extradition of Wikileaks founder Julian Assange. Mr. Assange is indicted in the US on 17 counts of espionage and one charge of computer misuse, relating to his alleged role in the unauthorized attainment and disclosure of national defense information and computer intrusion, beginning in 2009.
The appeal focused on DJ Baraitser’s ruling that Assange’s risk of suicide if detained in US federal prison was so high that it would be oppressive to extradite him. In response, the US government had provided specific assurance about how and where Mr. Assange would be imprisoned. In August 2021, the US was also given permission by the High Court to expand the scope of their appeal on two additional grounds, relating to the judge’s assessment of the defence’s expert evidence of Mr. Assange’s mental health and risk of suicide.
On the first day of the proceedings, James Lewis QC on behalf of the US government, addressed whether Mr. Assange’s mental health put him at high risk of suicide, his personal capacity to resist that impulse, and how prospective treatment might affect that risk level.
As part of his submissions, Mr. Lewis QC set out for the court the new “package of assurances” which were not originally put before DJ Baraitser, concerning the nature of the detention regime to which Mr. Assange would be subject. The package included:
- Exemption from Special Administrative Measures (‘SAMs’)
- Not being imprisoned in in a maximum-security prison in Florence, Colorado, known as ‘ADX’; and
- If convicted, being able to serve any custodial sentence in Australia;
Mr. Lewis QC also rejected the contention advanced by Mr. Assange’s team that if extradited to the US, he would face solitary confinement in pre-trial detention.
On the afternoon of the second day of the appeal, Mark Summers QC, for Mr. Assange, argued that the prosecution’s assurances regarding prison conditions in pre- and post-trial detention were unreliable. He submitted that, despite the assurances made, the US still reserved the right, under certain conditions, to impose SAMs, which include administrative detention, and limitations on correspondence, visiting, interviews with representatives, and use of the telephone.
Mr. Summers QC also argued that whilst the US maintained that Assange would not be subject to SAMs or imprisonment in ADX, this did not mean that he would not face other forms of isolation which carried a high risk of suicide.
The District Judge’s assessment of Mr Assange’s Mental Health
In the second half of Mr. Lewis QC’s submissions on behalf of the US, he argued that DJ Baraitser’s findings about Mr. Assange’s mental health were flawed because they were based on:
- A fundamental misapplication of the test laid down in Turner v USA  EWHC 2426 (Admin) and Wolkowicz v Poland  1 WLR 2402 as to the risk of suicide due to mental disorder, and;
- A failure by the judge to make an overall assessment required by Section 91 of the Extradition Act 2003, which bars extradition if it is unjust or oppressive to extradite an individual by reason of their mental health.
Turner establishes that the overall question of whether extradition will be oppressive necessarily depends, first, on whether there is a ‘sufficiently great risk that an individual will succeed in in committing suicide whatever steps are taken’ to make extradition oppressive; and, second, whether there are ‘appropriate arrangements in place in the prison system to which extradition is sought so that those authorities can cope properly with the persons’ mental condition and the risk of suicide’.
In addressing these arguments, Edward Fitzgerald QC for Mr. Assange argued that the criticisms by the US government were misconceived, and that DJ Baraitser correctly applied Turner, and she had properly addressed in turn the questions of:
- Whether there was a substantial or high risk of suicide;
- Mr. Assange’s capacity to resist the impulse to suicide; and
- The risk that Mr. Assange would succeed in committing suicide whatever steps were taken to mitigate that risk.
Mr. Lewis QC also spent a considerable portion of his submissions arguing that the opinion of Dr. Nigel Blackwood, expert for the US government, who did not consider Mr. Assange to reach the ‘substantial risk’ threshold in regard to suicide, should be preferred to that of the defence expert Dr. Kopelman, who maintained that Assange was at high risk. Mr. Lewis QC went as far as to suggest that Dr. Kopelman deceived DJ Baraitser when he omitted from his evidence that Mr. Assange was in a stable, long-term relationship with Stella Morris with whom he had fathered two young children. This latter point was addressed by Mr. Assange’s team, who argued that the court was made aware of this fact before in September 2020.
Judgment has been reserved and, at the time of writing no timeline has been given for a decision.