Above Photo: Edward Fitzgerald QC, the lead barrister representing Julian Assange, entering the Old Bailey in London on September 7, 2020.
London, U.K. – Following a June 17 decision from British Secretary of State Priti Patel approving the order to extradite Julian Assange to the United States, lawyers for the imprisoned WikiLeaks publisher have since submitted filings indicating they intend to fight the decision on 16 legal grounds.
As first revealed by The Wall Street Journal, lawyers for Assange submitted two separate appeal applications: one against Patel’s decision, the second against a January 2021 ruling from the lower courts that originally barred the extradition on mental health considerations, but agreed with prosecutors on behalf of the U.S. on every other point of law.
Following that ruling, the U.S. sent a series of diplomatic assurances in which they said Assange would not be held in the restrictive conditions that were found to cause an intolerable risk of suicide if he were to be extradited and successfully argued these assurances were sufficient to overturn the decision at the British High Court. Once the UK Supreme Court declined to hear an appeal on the matter of diplomatic assurances, the lower court was directed to overturn its decision and send the matter to Patel.
Documents since received from the British courts, published in full below, indicate how Assange’s lawyers plan on overturning Patel’s decision, as well as the points in the 2021 ruling that went against the publisher.
Filed on June 23 of this year, lawyers for Assange submitted four grounds of appeal against Patel’s decision. Namely, they argue Patel erred in deciding that extradition was not prohibited by Article 4 of the U.K.-U.S. Extradition Treaty – the clause that prevents extradition for political offences.
The lawyers also argued Patel erred in her application of “specialty arrangements” with the United States – essentially further agreements under the Extradition Treaty – on three occasions. Namely, that Assange ought to be protected from charges that carry the death penalty, for conduct outside the extradition request and from criminal contempt proceedings.
On June 30, Assange’s lawyers filed a further 12 grounds of appeal. These were, as described above, on the January 2021 ruling made by then-District Judge Vanessa Baraitser at the Central Criminal Court.
First, the lawyers argued the extradition request submitted by the U.S. was an “abuse of process” given that Assange was charged with 16 counts of violating the Espionage Act and that espionage was typically considered a political offence, barred in the aforementioned Extradition Treaty upon which the U.S. request is made. Hence, Assange’s lawyers said Baraitser was wrong in not making this finding, which, if made, would be a breach under Article 5 of the European Convention on Human Rights (ECHR).
The lawyers also argued Baraitser was wrong in her application of four other articles from the convention. Namely, Article 3 (on inhuman and degrading treatment), Article 6 (denial of a right to a fair trial), Article 7 (a novel and unforeseeable extension of the law) and Article 10 (the right to freedom of expression).
They further argued that extradition should have been prevented under the provisions within the U.K. Extradition Act of 2003 with respect to ‘extraneous considerations.’ Other objections from the legislation included arguments that the extradition should have been prevented because it was “unjust and oppressive by nature of lapse of time,” as defined in section 82 of the act, and that it did not meet the ‘dual criminality’ requirements under section 137.
It was also asserted that extradition should have been prevented by reason of ‘forum’ – a bar that came into force in 2013 in light of the perceived imbalance in the U.K.’s extradition arrangements with the U.S. following the high-profile cases of Gary McKinnon and the NatWest Three. It stipulates a number of factors that must be considered before extradition is granted, in more detail here, if some of the alleged criminality took place in the U.K.
The defence further asserted that the prosecution on behalf of the U.S. misrepresented the facts of the case – likely in relation to evidence provided by computer scientist Christian Grothoff (witness statement 1; witness statement 2) that demonstrated WikiLeaks had in fact not been first in making the trove of U.S. Diplomatic Cables available on the internet. It is also likely to draw on revelations from Icelandic publication Stundin that a key witness for the allegations contained in Assange’s indictment fabricated evidence.
Penultimately, citing two pieces of case law, lawyers for Assange said Baraitser erred in not finding that the case was not being pursued for ulterior political motives and in good faith.
Finally, they argued the new conduct contained in Assange’s second superseding indictment – released on June 24, 2020; months into the extradition proceedings and six weeks before the evidentiary portion of the hearings commenced – ought to not have been permitted for reasons of procedural fairness.
Although the documents do not specify the exact manner in which lawyers believe Patel and Baraitser erred on the above points, they indicate a long and complicated appeal, submissions for which are likely to exceed several hundred pages. As such, Assange’s lawyers have also applied to the courts for an extension of time in submitting their ‘Perfected Grounds for Appeal’ – the documents in which lawyers must specify the precise legal arguments they intend to make.
An original deadline for submissions had been July 14, but a spokesman for the Crown Prosecution Service confirmed that an extension has been granted and lawyers will now have until August 28 to submit their filings.
Once this is done, it does not automatically entitle the defence to raise all the above points at appeal. Judges from the High Court must “certify” that each objection has sufficient legal merit before it can proceed.
The case continues.