WikiLeaks founder Julian Assange has been told he can petition the Supreme Court to hear an appeal against his extradition to the US to face charges under the US Espionage Act.
The Lord Chief Justice of England and Wales, Ian Duncan Burnett, and Lord Justice Holroyd said today that Assange’s case raises a point of law of general public importance.
At a short hearing, the judges refused Assange’s application for leave to appeal to the Supreme Court, but left the way open for him to petition the Supreme Court directly.
Speaking after the hearing, Stella Moris, Assange’s fiancée and mother of his two young children, described the decision as a “win” for the 50-year-old, who has been held at Belmarsh high security prison since April 2019.
“The High Court certified that we had raised a point of law of general public importance and that the Supreme Court has good grounds to hear this appeal,” she said. “The situation now is that the Supreme Court has to decide whether it will hear the appeal, but make no mistake, we won today in court.”
Espionage Act
Assange faces 17 charges under the US Espionage Act and one charge under the Computer Fraud and Abuse Act, after publishing US military documents leaked by former US Army intelligence analyst Chelsea Manning.
The charges carry a maximum sentence of 175 years, although lawyers representing the US have argued that any prison sentence is likely to be materially shorter.
The High Court ruled last month that the WikiLeaks founder could be extradited to the US to face charges against him, overturning an earlier decision by Westminster Magistrates’ Court that it would be “oppressive” to extradite Assange, who was at high risk of suicide.
The judges agreed with the US government that new diplomatic assurances from the US that Assange would not be held in Special Administrative Measures (SAMs) or held at the ADX Florence maximum security prison in Colorado meant he could now be sent for trial in the US.
Point of law
Edward Fitzgerald QC, who represents Assange, argued in written submissions that legal precedents “generally prohibit” the introduction of “fresh evidence” – in this case, US diplomatic assurances over Assange’s treatment in the US – to support an appeal against an adverse ruling.
He argued that the Supreme Court ought to have the opportunity to consider whether the approach of the court taken in Assange’s case to the US government’s assurances was correct in principle, compatible with the Extradition Act 2003, and correctly balances the public interests at play.
The judges agreed and certified a question, “in what circumstances can an appellate court receive assurances from a requesting state which were not before the court of the first instance in extradition proceedings?”, as a point of law of general public interest.
“It does not appear that the Supreme Court has considered this question,” the judges wrote in a written pronouncement. “Assurances are at the heart of many extradition proceedings.
“We would respectfully invite the Registrar of the Supreme Court to take steps to extradite consideration of any application for leave to appeal that follows.”
Judges reject two appeal grounds
The High Court judges rejected two other points of law that centred on the ability of the US authorities to revoke its assurances if they concluded that Assange’s actions after extradition justified detention in the ADX prison or SAMs.
Fitzgerald argued in written submissions that the Extradition Act 2003 should prevent a requesting state imposing oppressive treatment on an individual, whether or not the requesting state justifies its actions because of the behaviour of the person extradited.
“Mr Assange’s activities cannot justify, as a matter of law, him being subject to inhuman or degrading treatment,” Fitzgerald argued. He said this would breach Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman or degrading treatment.
The judges rejected that this argument amounted to a question of law of general public importance.
The judges also rejected an argument that the Supreme Court should have the opportunity to consider whether “such a significant departure” from established principles in the ECHR can ever be justified and whether it was justified in this case.
Case raises press freedom issues
Speaking after the hearing, Moris said Assange was being punished for exposing war crimes by the US, including the killing of innocent civilians.
“For almost three years, he has been in Belmarsh prison and he is suffering profoundly, day after day, week after week, year after year,” she said.
Rebecca Vincent, director of international campaigns at Reporters Without Borders, said in a statement that the case would set important precedents for press freedom.
“This case will have enormous implications for journalism and press freedom around the world, and could be hugely precedent-setting,” she said. “It deserves consideration by the highest court in the land. We very much hope that the Supreme Court will indeed accept the case for review.”
The case is far from over. If the Supreme Court refused to hear his appeal, Assange is expected to file a “cross appeal” on defence grounds rejected by District Judge Vanessa Baraister in the original hearing.
These could include arguments that the US-UK extradition treaty prohibits extradition for political offences, that extradition would breach Assange’s right to a fair trial, and that the case against him represents an abuse of process.
