On 24 January 2022, the High Court certified that there was a point of law of general public importance involved in its decision on 10 December 2021 that Julian Assange should be extradited to the US. It will now be for the Supreme Court to decide whether to grant permission to Mr. Assange for the appeal to be heard. Mr. Assange is wanted in the US on 17 counts of espionage and one charge of computer misuse relating to his alleged role in the unauthorised attainment and disclosure of national defence information and computer intrusion, beginning in 2009.
In January 2021, Westminster Magistrates’ Court discharged the US extradition request on the basis that the conditions in which Mr. Assange was likely to be detained in US Federal custody gave rise to an unacceptable risk that he would commit suicide. The US Government appealed that decision to the High Court together with a package of assurances that Mr. Assange would not be kept in solitary confinement or a maximum-security prison, and would be eligible to serve his sentence in Australia, his home country. The High Court accepted those assurances and allowed the US Government’s appeal (covered by Peters and Peters here). Mr. Assange promptly appealed that decision to the Supreme Court.
In a brief judgment, Lord Burnett, the Lord Chief Justice, sitting with Lord Justice Holroyde who heard the appeal, certified the following question: “in what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.” He also refused leave for Mr. Assange to appeal to the Supreme Court, as is conventional, leaving the decision to the Supreme Court itself whether it chooses to hear the appeal.
In the High Court appeal, the court had rejected the defence argument that the US Government should not be able to rely on assurances on appeal which it had not put forward in the Magistrates’ Court, relying on a number of authorities, in particular India v Dhir  EWHC 200 (Admin), in which the court had said that “(t)he court may consider undertakings or assurances at various stages of the proceedings, including on appeal, and the court may consider a later assurance even if an earlier undertaking was held to be defective”. However, in certifying a point of law of general public importance, the High Court has held that the scope and application of this rule may require clarification by the Supreme Court.
Under the Extradition Act 2003, Mr. Assange’s legal team now have 14 days to file their appeal. If leave is refused, Mr. Assange’s appeal is over, but he can still launch a fresh appeal on the grounds on which he lost in the Magistrates’ Court (as explained here).
Even if leave is granted, it may still be many weeks until the case is heard. At the appeal, the Supreme Court may agree that the High Court applied the correct test or may clarify the test in a way which makes no difference to the outcome. In the meantime, Mr. Assange remains in custody.
Categories: Australia, United Kingdom, United States