The Government of the United States (‘USA’) appealed against an order made at Westminster Magistrates’ Court (‘WMC’) on January 4, 2021, barring their request for the extradition of Julian Assange, the Requested Person (‘RP’). The Wikileaks founder 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.
Grounds of Appeal
On 4 January 2021, District Judge Baraitser (‘DJ Baraitser) found that, given the condition of Mr. Assange’s mental health, his extradition to the USA would have been unjust and oppressive, and therefore pursuant to section 91(2) and 91(3) of the EA 2003, ordered his discharge.
At the High Court, the USA appealed DJ Baraitser’s decision on five grounds:
- The District Judge erred in her application of the law under section 91 of the EA 2003 and, had she applied the test correctly, she would not have ordered Mr. Assange’s discharge;
- Following the District Judge’s determination that the RP be discharged, the USA ought to have been notified to afford them the opportunity to offer assurances;
- Where the District Judge concluded that the expert on behalf of the defence had misled the court, she ought to have ruled his evidence entirely unreliable, or afforded it little weight;
- The District Judge erred in her overall assessment of the evidence going to the risk Mr. Assange would commit suicide;
- The USA had now provided the UK with a package of assurances, responsive to the District Judge findings, namely that:
Assurance 1. the USA would not impose Special Administrative Measures (‘SAMs’) on Mr. Assange pre-trial or post-conviction, subject to the condition that the USA retained the power to impose said measures;
Assurance 2. if convicted, Mr. Assange would be eligible to apply for his sentence to be transferred to Australia, pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons (‘COE’);
Assurance 3. Mr. Assange would receive clinical and psychological treatment as recommended by a qualified treating clinician employed or retained by the prison where he was held in custody;
Assurance 4. Pre-trial, and where convicted, post-sentence, Mr. Assange would not be held at the USA Penitentiary Administrative Maximum Facility (‘ADX’), save that the USA retained the power to do so if he committed any future act that then meant he met the test for such designation.
Ground 2 and 5 – the assurances
On behalf of Mr. Assange, Mark Summers QC argued that the District Judge’s finding that extradition would be oppressive was not specifically related to the prospect that Mr. Assange would be subject to SAMs and/or detention at ADX, and therefore the proposed assurances would not alter her decision. Second, that assurances offered by the USA at a ‘late stage’ in the proceedings were an attempt by the USA to change their case and were too late. Third, that the assurances offered were ‘conditional, qualified and aspirational’, and left open the possibility that Mr. Assange would be subject to SAMs and/or detention at ADX. Fourth, even if the assurances were effective to remove any possibility of Mr. Assange being subject to SAMs and/or detention, there remained a substantial risk that he would be subject to other restrictive forms of detention, exacerbating his condition and leading to his suicide. Lastly, even if the assurances excluded any substantial risk of detention, the assurances themselves were to be doubted.
Giving the judgment, the Lord Chief Justice, Lord Burnett of Maldon (‘the LCJ’) rejected all five submissions. The LCJ held that, regardless of the late stage at which the assurances had been made, the High Court had the power to consider them whenever they were made by a Requesting State, and furthermore, had the District Judge offered the USA the opportunity to consider providing assurances before the discharge of Mr. Assange, the USA would have offered them.
In its individual analysis of US assurances, the LCJ considered the imposition of SAMs and detention at ADX to have been wholly excluded. Therefore, given that only if Mr. Assange committed a future act that met the test would the assurances not apply, the court held there to be no reason why extradition should be refused.
On the second assurance – eligibility for transfer of sentence to Australia – the High Court held that the USA had made its decision explicit, and that the possibility of Australia’s refusal to receive that transfer did not amount to a reason for regarding the assurance as inadequate.
On the third assurance – the provision of adequate clinical treatment – the LCJ held that the USA had suitably qualified medical practitioners available and was therefore capable of meeting concerns about the treatment of Mr. Assange, were he to be extradited.
Assurances in Good Faith
Mr. Assange also contended that the assurances offered by the USA were not in good faith, and cited three key examples, Haroon Aswat, David Mendoza, and Abu Hamza, in support of this submission. However, in dismissing Mr. Assange’s arguments, the judgment noted the ‘long history of cooperation between the UK and US’ and considering the case of Babar Ahmad v USA  EWHC 2927, where the court addressed a similar submission on the risk that the USA would not honour their assurances, highlighted that there was a fundamental assumption that a Requesting State was acting in good faith. On those findings, the High Court found there to be no reason why it should not accept the assurances of USA as meaning what they say.
Would the assurances meet the concerns of the District Judge?
Following its acceptance of US assurances, the High Court considered the primary question to be whether they were sufficient to meet the concerns outlined by the District Judge, namely that Mr. Assange would be subject to SAMs and/or would be detained at ADX, and therefore to extradite him would be oppressive. The LCJ found, with direct reference to paragraph 362 of the Magistrates’ Court’s judgment, that it was, as the USA submitted, the harsh conditions of SAMs and/or detention in ADX that in the District Judge’s assessment gave rise to the risk of suicide, and not as Mr. Assange had sought to argue, the extradition itself. Therefore, given the assurances made by the USA, its appeal was upheld on ground 2 and 5.
Under this heading, the LCJ found that the District Judge had applied the principles for the law relating to ‘oppression’ and suicide risk, under sections 25 and 91 of the EA 2003, and set out in the cases of Turner v United States  EWHC 2426 (Admin) (‘Turner’) and Polish Judicial Authority v Wolkowicz  1 WLR 2402, correctly.
Reflecting on the lower court’s application of the seven key propositions enunciated in Turner [see paragraph 8], which provided a succinct and useful summary of the approach a court should take under section 91 of the 2003 act, the LCJ was not persuaded that the District Judge failed to take into account relevant matters in the case [para 69] or failed to make the necessary overall determination in answering the relevant question.
Ground 3 and 4
Mr. Lewis for the USA submitted that the District Judge erred in admitting or giving any significant weight to the evidence of Professor Kopelman on the basis that he misled the court, which led the court to an ‘incorrect overall assessment of the risk of suicide’. In addressing this point, the LCJ considered the key question that addressed both grounds of appeal to be whether the District Judge was entitled to accept Professor Kopelman’s evidence. Finding that the District Judge was entitled to reach the conclusion she did and noting that whether the mental condition of an RP is such that it would be oppressive to extradite him is a fact-specific decision (See South Africa v Dewani, 2013 1 WLR 82) the High Court considered it key that the District Judge had heard all the evidence, observed Professor Kopelman’s response to cross examination, and had considered the evidence of other experts in her assessment.
Mr. Assange’s legal team submitted that, in accordance with section 106(6)(c) of the EA 2003, the matter should be remitted to the District Court to decide whether Mr. Assange’s Article 3 rights under ECHR would be breached if he were to be extradited, and if his extradition would amount to an abuse of process on account of the USA’s ‘ulterior motives’, which were not addressed at the District Court. Dismissing these arguments, the High Court held that in the circumstances of the case, it was unrealistic to suggest that an assessment of section 91 under the EA 2003, and Assange’s Article 3 rights were separate considerations. Furthermore, even if they were, the District Judge would have been bound to find that the assurances sufficiently answered any concerns about the latter as well as the former. On the matter of abuse of process, the court considered that the District Judge addressed this in her judgment, at paragraph 409, when she rejected this argument.
Mr. Assange is currently remanded in custody.