The US won the right to challenge evidence from a medical expert who found that WikiLeaks founder Julian Assange would be at high risk of suicide if extradited to the US to face hacking and espionage charges.
Two high court judges ruled today that the US had an arguable case to challenge expert evidence given by psychiatrist professor Michael Kopelman who found that Assange was likely to take his own life.
The US argued during a half-day hearing that Kopelman had misled the court by failing to disclose the relationship between Assange and his partner Stella Morris in an initial psychiatric report submitted to the court.
Justice Holroyde said the US had an arguable case that the district judge had taken an incorrect approach in concluding that Kopelman’s failure to disclose the relationship in his initial report was an “understandable human response” to protect the couple’s privacy.
“It is, in my view, arguable that a more detailed and equivocal consideration should have been given to the reasons why that ‘understandable human response’ resulted in the serving of a report which contained misleading statements and from which there were significant omissions,” said Holroyde.
The decision widens the scope of the US government’s attempt to appeal a UK court verdict in January which found that it would be oppressive to extradite Assange to the US because of his high risk of suicide.
Holroyde overturned an earlier decision by Justice Jonathon Swift in July, who rejected the US’s arguments over Kopelman and narrowed the US appeal to three grounds.
The US appeal will be heard over two days in October.
Assange has been charged in a US indictment with 17 charges under the 1917 Espionage Act for receiving and publishing classified government documents and one count under the Computer Fraud and Abuse Act.
US argues district judge erred in law
During the half-day hearing, Clair Dobbin, representing the US government argued that district judge Vanessa Baraitser erred as a matter of law in finding it would be oppressive for Assange to be extradited to stand trial in the US.
Dobbin said that part of the US appeal would be an argument that Assange did not have a mental illness that came close to meeting the threshold that would prevent his extradition.
There was a lack of formal psychiatric history in Assange’s background and no diagnosis of Asperger’s syndrome until his extradition, she said.
Dobbin claimed that Kopelman, a key medical expert for Assange, had misled the court by producing an initial report that knowingly failed to disclose Assange’s relationship with his partner Stella Morris, with whom he has two children.
She said Kopelman was “willing to subjugate his duty to the court to the interests of Mr Assange”.
District judge Baraitser had found that Kopelman’s decision to leave out details of the relationship – to protect the privacy of the couple – was a natural human response.
But Dobbin said expert witnesses were not allowed to mislead the court for any reason.
She said the judge did not deal adequately with evidence from other medical experts and did not appreciate the weight of evidence from other experts that Assange was able to resist the impulse to suicide.
US raises questions over defence expert
Edward Fitzgerald representing Assange said the district judge was fully aware of the criticism against Kopelman’s report but had concluded that Kopelman was an impartial and dispassionate witness and had not given a biased opinion.
“He was very concerned that the disclosure of the name of Julian Assange’s partner would have an effect on the privacy and safety of the family,” he said.
US grounds for appeal
- The judge made errors of law in her application of the test under section 91 of the 2003 Extradition Act. Had she applied the test correctly, she would not have discharged Assange
- The judge, having decided that the threshold for discharge under section 91 was met, ought to have notified the requesting state of her provisional view, so as to afford it the opportunity of offering assurances to the court.
- The judge, having concluded that the principal psychiatric expert called on behalf of the defence (professor Kopelman) had misled her, on a material issue, ought to have ruled that his evidence was inadmissible. Alternatively, if it could be said that his lack of independence went to weight rather than admissibility, the district judge ought to have attributed no, or far less, weight to his opinion as to the severity of Assange’s mental condition than she did (a fortiori when two, additional and wholly independent, experts were of a different opinion). Had she not admitted that evidence or attributed appropriate weight to it, the judge would not have discharged Assange pursuant to section 91.
- The judge erred in her overall assessment of the evidence going to the risk of suicide.
- The US has provided the UK with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Assange will not be subject to special administrative measures (SAMs) or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The US has also provided an assurance that it will consent to Assange being transferred to Australia to serve any custodial sentence imposed on him.
A surveillance organisation had attempted to take DNA from one of Assange’s baby’s nappies and discussed plans to kidnap or poison Assange, he said.
“There is no question of any tactical advantage being gained out of this. This is simply concern for the human predicament,” said Fitzgerald.
The report was preliminary and the full nature of the relationship was disclosed to the judge in March 2020, who had not been misled.
Kopelman wrote a later report that made full reference to the relationship that was submitted well in advance of any evidentiary hearing, “so there was never in fact any prospect of the court being misled”.
“You don’t make one lapse and the evidence is inadmissible or given no weight,” he said.
Fitzgerald said the district judge scrupulously applied the legal tests required by case law and the extradition act.
There was clear evidence of mental disorder, depression and autistic spectrum disorder from prosecution and defence experts, he said.
Bringing evidence from a psychiatric journal
The court heard that the prosecution intended to introduce an article from a psychiatric journal.
The article quotes Kopelman discussing Assange’s solicitor Gareth Peirce, who he said “plays within the system but she does it better than the government lawyers and beats them”.
Assange’s defence team argued in written submissions that it was entirely clear that the article does not have the sinister meaning attributed to it by the US.
“This whole exercise is the result of a miserable and belated trawling of the psychiatric journals to locate some stray comment and then present it out of the context so as to discredit professor Kopelman,” according to written submissions.
Fitzgerald told the court that if the evidence were allowed he would want to cross-examine the author of the article and Kopelman, which would be difficult to shoe into the two days allowed for the appeal.
“Enough is enough,” he said.
Assurances about Assange’s imprisonment in US
US lawyers argue that judge Baraitser failed to offer the US government the opportunity to give assurances about Assange’s treatment in the US prison system before ruling that the 50-year-old should not be extradited to the US.
The US has subsequently given assurances that Assange would not be subject to special administrative measures (SAMs) – described by defence witnesses as a form of solitary confinement that allows little or no association with other prisoners.
The US has also given an assurance that Assange would not be imprisoned in a supermax prison, such as ADX Florence in Colorado, reserved for high security prisoners.
Defence lawyers argue that the assurances are conditional, and may not be applied in practice, and do not address the judge's concerns that Assange is at high risk of suicide regardless of what preventative measures may be taken in the US.
“If such evidence was to be produced at all, it should have been produced before the district judge so that its impact on the overall issues could be considered at the hearing itself,” defence lawyers said in written arguments.
The offer of assurances only at a late stage has given prosecutors a “tactical advantage at the expense of fairness” and has ensured Assange’s prolonged detention in Belmarsh prison after the court ordered his discharge in January.
The US Department of Justice has been actively engaged in the current proceedings against Assange for two years without suggesting any assurances.
“This meant that none of the defence witnesses could comment on the assurance now being produced,” said defence lawyers in written submissions.
Referring to Kopelman, Justice Holroyde said it was unusual for an appellant court to consider an expert witness whose written evidence had been called into question.
He said it was arguable that there should be a more detailed analysis of misleading statements and significant omissions in the evidence.
But he said that the issue goes to the weight given to Kopelman’s evidence rather than its admissibility.
The Court of Appeal will hear the case on 27 and 28 October.
Read more about Julian Assange’s extradition hearing
- Lawyers for Julian Assange say the US has introduced an 11th hour indictment against the WikiLeaks founder that provides additional grounds for his extradition.
- On the second day of his extradition hearing at the Old Bailey, judge informs the WikiLeaks founder he could be removed and potentially banned from court for interrupting witnesses.
- US journalism historian and investigative journalist Mark Feldstein tells a UK court that use of the Espionage Act against Assange will have wide implications for the press.
- Trevor Timm, co-founder of the Freedom of the Press Foundation, tells a court that if the US prosecutes Julian Assange, every reporter who receives a secret document will be criminalised.
- WikiLeaks founder Julian Assange will be held under special administrative measures if extradited to the US, said Eric Lewis, a US legal expert, effectively placing him in solitary confinement.
- MEPs and NGOs say they have been denied access to observe extradition proceedings against WikiLeaks founder in Central Criminal Court.
- WikiLeaks founder Julian Assange held back 15,000 documents from publication at the request of the US government, a court heard today.
- Daniel Ellsberg, who leaked highly classified documents that changed the course of the Vietnam War in the 1970s, says WikiLeaks exposed a serious pattern of US war crimes.
- WikiLeaks and its media partners used software developed by an independent non-government organisation (NGO) to redact information that could identify individuals from 400,000 classified documents on the Iraq war, a court heard today.
- New Zealand investigative journalist and author Nicky Hager said that WikiLeaks’ publication of a video showing a US helicopter firing on civilians, along with the publication of secret war logs, ‘electrified’ the world to civilian deaths.
- WikiLeaks founder Julian Assange was offered a “win-win” deal that would allow him “to get on with his life” and benefit US president Donald Trump.
- Khalid El-Masri said that disclosures by WikiLeaks showed that the US had intervened in a German judicial investigation into his torture and kidnapping by the CIA.
- Trump supporter Cassandra Fairbanks was given advanced details of US plans to oust Wikileaks founder Julian Assange from the Ecuadorian Embassy and to arrest him for over documents leaked by former soldier Chelsea Manning.
- WikiLeaks published unredacted cables after password was disclosed in book by Guardian journalist David Leigh.
- Julian Assange is on the autistic spectrum and has a history of depression that would put him at risk of suicide if he is extradited to a US prison.
- Nigel Blackwood, NHS consultant psychiatrist, told the Old Bailey court that although WikiLeaks founder Julian Assange had ‘moderate depression’ and autistic traits it was ‘not unjust’ extradite him.
- Forensic expert questions US claims that Julian Assange conspired to crack military password.
- WikiLeaks founder would be held in a cell the size of a parking space for 22 or 23 hours a day without contact with other inmates before trial.
- WikiLeaks founder Julian Assange would be held alongside convicted terrorist Abu Hamza in a supermax federal prison in Colorado, isolated from other prisoners, if he is extradited to the US, Old Bailey told.
- Two former employees of UC Global, which provides security services to the Ecuadorian Embassy in London, claim the company shared surveillance footage with the US of the WikiLeaks founder meeting with lawyers and other visitors.
- WikiLeaks disclosures led to ‘revelations of extraordinary journalistic importance’ about detention in Guantanamo Bay and civilian casualties in Iraq and Afghanistan.