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.”
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.
Read more about Julian Assange’s extradition case
- 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 Guantamo Bay and civilian casualties in Iraq and Afghanistan.