The Home Secretary Priti Patel recently approved Julian Assange's extradition to the US to stand trial over charges of illegally obtaining and publishing highly classified documents. As you can see from today's new, it seems Julian Assange is trying to judicial review the Home Secretary's decision to approve his extradition. Watch this space - I've been following this never-ending Assange saga.
I write this piece for two reasons. Firstly, I want to defend the courts and the British state. The Blair government brought into our domestic law a US—UK treaty of extradition. International law requires that the government not have a choice in the matter. Secondly, because I like writing about these things, I would like to briefly discuss the High Court judgment and the possibility of further appeal.
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Background
Julian Assange has never really seen justice. He has managed to evade justice in Sweden for charges and allegations that would amount to rape under English law. In 2007, the Court of Appeal (BAILII link) held that having sexual intercourse without a condom — when his partner insisted that she would only have sexual intercourse if he had used a condom — amounted to rape under the Sexual Offences Act 2003 by violating the basic definition of consent (under section 74). The Court of Appeal — in relation to the other accuser whom Assange had sexual intercourse with while she was asleep — was also held to be rape as it obviously precluded any consent. When he faced the prospect of being extradited to Sweden he fled to the Ecuadorian embassy — Indeed, Ecuador, that bastion of freedom (classified as "not free" in the Freedom of the Press Report 2016 by Freedom House) — and caused his backers a considerable loss in bail money — £340,000 (The Guardian). He then made a nuisance of himself — through ungracious attitude and bad personal hygiene — at the embassy and outstayed his welcome. Fast-forwarding to the present, he has exhausted all decent avenues and friendships (e.g., Jemima Khan in the New Statesman). I lament the Swedish director of public prosecutions dropping the case. She said "at this point, all possibilities to conduct the investigation are exhausted" noting that "if he, at a later date, makes himself available, I will be able to decide to resume the investigation immediately" (The Guardian). I don't think those rape charges will ever be answered for.
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The government's obligations under the Extradition Act 2003
The UK–US extradition treaty of 2003 was implemented into UK law under the UK Extradition Act 2003. Under this Act, it is fairly straightforward for the United States to request an extradition of someone currently in the UK — including the extradition of British citizens. In United States of America v Assange, High Court and Magistrates' Court cases were based on the Extradition Act 2003.
The legislation has been used many times. For example, against British citizen Gary McKinnon (under hacking charges) whose extradition was averted for clemency reasons. Also, against Navinder Sarao (the 'flash crash trader') for financial market crimes and manipulation. Although, I believe the United States ultimately decided against his extradition.
Under the 2003 Act, the Home Secretary is bound by law to sign an extradition order unless the following grounds for refusal are met:
- Facing the death penalty
- Speciality arrangement in place
- Earlier extradition to United Kingdom from other territory and consent needed for onwards extradition.
- Earlier transfer to United Kingdom by International Criminal Court
Ultimately, the High Court ruled that Assange could be extradited because they accepted assurances from the US government that Assange would not be held in maximum security prisons. Moreover, as per the jurisprudence of the European Convention of Human Rights, following the Soering Case, the UK is prohibited from extraditing a person who may face the death penalty. I have no doubt similar commitments by the US government were given to that effect. Thus, there is no legal reason for the extradition order to be refused.
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The High Court case
In United States of America v Assange [2021] EWHC 3313 (Admin), the appeal by the United States succeeded on the grounds relating to assurances produced by the US government (viz. grounds 2 and 5). The grounds of appeal in the judgment are considered briefly (BAILII link):
Ground 2: Applying the test under section 91, judge ought to have notified the USA of her provisional view to afford it opportunity of offering assurances to the court.
Ground 5: USA provided UK with a package of assurances responsive to the judge's specific findings in this case.
Both of these have been grouped together and concerning the legal effect of "Diplomatic Note no. 74" dated 5 February 2021. It seems it was late in the proceedings before it was admitted and the judge rejected it in the interests of preventing "further delay to proceedings". Lord Burnett - relying on India v Dhir [2020] EWHC 200 (Admin) - held that it was a question of why the assurances were delayed:
It is necessary to examine the reasons why the assurances have been offered at a late stage and to consider the practicability or otherwise of the requesting state having put them forward earlier. It is also necessary to consider whether the requesting state has delayed the offer of assurances for tactical reasons or has acted in bad faith: if it has, that may be a factor which affects the court's decision whether to receive the assurances. If, however, a court were to refuse to entertain an offer of assurances solely on the ground that the assurances had been offered at a late stage, the result might be a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition.
Nevertheless, he concluded vis-a-vis the assurances that:
We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage ... We see no merit in the criticisms made of the individual assurances ... That risk is in our judgment excluded by the assurances which are offered. It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently.
Nothing controversial or surprising here. Lord Burnett's conclusions strikes me as pure common sense.
Ground 1: Judge incorrectly applied the test under section 91
The United States seemed to have argued that:
the judge's approach applied a test which amounted to an obligation on a requesting state to guarantee that a requested person could not commit suicide in any circumstances ... [in] the judge went too far in a predictive assessment of what might happen in the long term.
Lord Burnett weighed the factors that the judge considered and concluded that "we are not persuaded that the judge failed to take such matters into account".
The ground failed but it seemed shaky to start with. Again, common sense.
Ground 3: In issue concerning the principal psychiatric expert (Professor Kopelman) having misled judge on a material issue, but his evidence was nevertheless relied upon (or that little weight should be attached to it). Also, question of his lack of independence. Had judge attributed different weight to evidence, judge would not have applied section 91 differently.
Ground 4: Judge erred in overall assessment of evidence going to the risk of suicide
I found a very interesting article by Gareth Corfield (The Register) which covers this in some depth. It seems Professor Kopelman was ambiguous — which had the effect of misleading the court — which Lord Burnett held should not have been treated so leniently by the judge:
In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange's "solitary confinement" in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship.
With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman's failings could be excused or overlooked merely because his conduct could be viewed as "an understandable human response". Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so.
Once again, there is nothing tendentious here. Common sense prevails.
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Further appeal rejected
It seems appeal from the High Court must go to the Supreme Court as per section 114(4) of the Extradition Act. A decision must be made granting leave to appeal.
I can't seem to find whether it was granted. However, according to Amnesty International (Amnesty International press), the Supreme Court has rejected any further appeal.
Quite bizarrely, in that press release, they said:
Today's decision is a blow to Julian Assange and to justice. The Supreme Court has missed an opportunity to clarify the UK's acceptance of deeply flawed diplomatic assurances against torture. Such assurances are inherently unreliable and leave people at risk of severe abuse upon extradition or other transfer.
I don't think Amnesty International understand that there needs to be a contentious point of law worth appealing to the Supreme Court — not a vague admonition that things 'should change'. From what I've read, the High Court's judgment was mostly common sense and covered very little of contention.
Watch this space.
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