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A British judge has given people accused by the US a “trump card” to avoid extradition by finding in favour of WikiLeaks founder Julian Assange, a court heard on 27 October.
District Judge Vanessa Baraitser ruled in January 2021 that it would be “oppressive” to send Assange for trial in the US, where he would be at high risk of suicide.
But James Lewis QC, representing the US, told a hearing at the Royal Courts of Justice that the judge had applied the wrong legal tests.
The court was initially told that Assange was too unwell to attend today’s hearing, but he joined the court by video link from Belmarsh prison in South East London some 40 minutes later.
Dressed in a white shirt, dark tie, and a black face covering, Assange spent much of the hearing sat at one end of the video room, with only his reflection visible to the prison camera.
Prosecutors told the hearing at the Royal Courts of Justice that the US government had now given now diplomatic assurances to Assange over his treatment that marked “sea change” in the case if he were extradited.
Speaking on the first day of a two-day hearing, Lewis told the court claims by Assange’s defence team that the US would violate its assurances over Assange’s treatment in the US had “no basis in fact”.
Expert witnesses had previously testified that Assange was likely to be placed under special administrative measures (SAMs) – described by witnesses as a form of solitary confinement – and held in a Supermax prison under administrative segregation with limited contact with other prisoners.
Lewis quoted evidence from US prosecutor Gordon Kromberg that prisoners placed under administrative segregation were able to speak to each other through walls and doors, and were able to associate with other prisoners.
Placement in administrative segregation has no impact on the ability of prisoners to meet their lawyers, he said.
“That alone destroys the argument about solitary confinement because he can meet at any time with his lawyers,” Lewis told the court.
Judge made errors
The district judge had wrongly interpreted Section 91 of the Extradition Act 2003 by considering the impact of extradition of Assange on his future mental health.
The correct test was whether Assange’s current mental state in the UK before extradition meant he was at risk of suicide.
“One has to be careful of not going into a crystal ball approach in deciding what may or may not happen,” Lewis told the court.
The district judge acknowledged that the US took measures to prevent suicide, but she based her decision not to extradite him on the grounds that Assange had the intellect to circumvent suicide prevention measures.
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 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 assurance that it will consent to Assange being transferred to Australia to serve any custodial sentence imposed on him.
“No one who has ever been extradited from the UK to the US has ever committed suicide,” said Lewis, adding that the judge’s decision not to extradite Assange because of his capability of circumventing suicide measures becomes a “trump card”.
“The approach taken by the district judge is to erect a barrier to extradition that just can’t be met by our extradition partners,” he said.
It could never be said in UK proceedings that someone who “committed crimes of the magnitude of Assange” could not be put on trial, Lewis told the court.
Medical evidence should be dismissed
Appearing before the Lord Chief Justice, Lord Burnett of Maldon and Lord Justice Holroyde, Lewis also argued that evidence given by Assange’s principle psychiatric expert should either be found inadmissible or given little weight.
The US argued that expert witness and psychiatrist Michael Kopelman had seriously misled the court by failing to disclose Assange’s relationship with his fiancée Stella Moris in his initial report.
Moris gave “important evidence” in Kopelman’s report, but nowhere does the reader understand that she was in a relationship with Assange and the mother of his children, Lewis told the court.
Kopelman had signed a statement of truth saying that he had endeavoured to include anything in his report which might be adverse to his opinion.
That statement was “untrue”, said Lewis. “The prosecution had no idea that Ms Moris was his partner and the mother of his children until Mr Assange made a bail application and elected to deploy information about his children,” he added.
Lewis took the court through Kopelman’s oral evidence, citing examples where Assange was recorded as having interaction with fellow cell mates, exercising and watching television.
The prosecutor argued that Kopelman had left out examples recorded by prison staff that contradicted his findings that Assange had severe depression and psychotic episodes.
District judge Vanessa Baraitser had chosen to prefer Kopelman’s evidence to the evidence of other expert witnesses “without giving cogent reasons why”, said Lewis.
Speaking for Assange, Edward Fitzgerald QC said that the district judge had given a careful judgment and had set out clearly why she preferred the evidence of Kopelman to other medical experts who gave evidence.
The judge found that Kopelman had failed to disclose details on Assange’s relationship, but that nevertheless he gave impartial evidence to the court.
The judge also found that Kopelman’s actions were an “understandable human response” to being asked to keep the relationship between Assange and Moris confidential. “By September, this was a matter of history,” Fitzgerald said.
He added that the prosecution had “made a whole load of unjustifiable suggestions” that Kopelman had left out items from his report.
But the judge found that Kopelman’s review of the medial records was more compressive and fair than medical experts appearing for the prosecution. “One should respect her findings,” he said, adding that he prosecutions objections are really an attempt to re-litigate the case to achieve a different outcome.
Assange has been on suicide protection from the start of his time in prison, there have been numerous occasions where he discussed self-harm, and he called the prison Samaritans on numerous occasions.
Fitzgerald said that he accepted there were some entries in the prison notes suggesting Assange was in good spirits, but the overall impression is of a “depressed and despairing man”.
The judge has given a “whole series of reasons” why she thought the evidence of Kopelman and another defence medical expert were right.
US Assurances are not fresh evidence
Lewis, representing the US, told the court that the judge should have notified the US of her provisional view that Assange would likely be held in SAMs in the US.
He said that the prosecution’s position was there was no real risk of SAMs, but that the judge rejected the argument. “It was the finding against us that precipitated the requirement to give assurances [about Assange’s treatment in the US],” he added.
Fitzgerald said that the assurances have come very late in the day and there is no reason why they should be admitted as evidence.
The case continues.
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.