Julian Paul Assange v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P. |
| Judgment Date | 26 March 2024 |
| Neutral Citation | [2024] EWHC 700 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2022-LON-001745 and 1746 |
PRESIDENT OF THE KING'S BENCH DIVISION
and
Mr Justice Johnson
Case No: AC-2022-LON-001745 and 1746
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald KC, Mark Summers KC and Florence Iveson (instructed by Birnberg Peirce) for the Applicant
Clair Dobbin KC and Joel Smith (instructed by Crown Prosecution Service) for the First Respondent
Ben Watson KC (instructed by the Government Legal Department) for the Second Respondent
Hearing dates: 20 and 21 February 2024
Approved Judgment
This judgment was handed down by release to The National Archives on 26 March 2024 at 10.30am.
This is the judgment of the court.
Introduction
The applicant is Julian Assange. The Government of the United States of America (who we will refer to as the respondent), seeks his extradition to the United States on the ground that he unlawfully solicited an intelligence analyst in the United States army, Chelsea Manning, and others, to disclose to him vast amounts of United States intelligence, and that he then unlawfully published the names of human intelligence sources, placing at grave and imminent risk the lives of many innocent individuals. The respondent's request is based on an indictment (the second superseding indictment) issued by a federal grand jury in 2020, charging the applicant with 18 offences.
Leave to appeal having been refused on the papers by Swift J in June 2023, the applicant renews his application for leave to appeal: first under section 103 of the Extradition Act 2003 (the 2003 Act) against the decision of Senior District Judge Goldspring to send his case to the Secretary of State (but in substance the appeal is against an earlier decision of District Judge Baraitser (the judge)); and secondly, under section 108 of the 2003 Act against the extradition order made by the Secretary of State.
The hearing before us attracted an exceptional level of national and international interest. It was held in public, and arrangements were made to provide links to the hundreds of those within the jurisdiction who had asked for them, so they could view and listen to the hearings as they took place. The applicant, who is currently in custody in HMP Belmarsh, asked us for permission to attend the hearing. We granted permission, but we were told by his representatives that unfortunately he has a persistent cough which would have made attendance at the hearing difficult, whether in person or by video link, which was the other option made available to him.
We were provided with an enormous amount of material prior to the hearing (in excess of 8,000 pages) and some further material after the hearing had ended. The documents provided after the hearing included, at our request, the written closing submissions of the respondent and applicant before the judge which enabled us to see how the case had been put to her.
We are grateful to the legal teams for the work that went into the preparation of the renewed application and to counsel for the submissions made during the course of the hearing.
In his reasons for refusing leave, Swift J had commented adversely on the prolixity and unfocussed nature of the applicant's perfected grounds of appeal. He therefore directed that in the event of a renewal, the applicant's grounds of renewal should not exceed 20 pages. The applicant was subsequently granted permission to file a 10-page Renewal Skeleton. The application however remains extremely wide ranging and raises a large number of discrete issues, hence the length of this judgment. The Renewal Skeleton as served has focussed on three issues only which the applicant wishes to further develop. These arise under the first two grounds identified at para 9 below. It includes some new grounds of appeal on which we heard oral argument from both sides, without objection by the respondent. Shortly after the hearing, the applicant applied to amend his grounds of appeal, as we had invited him to do during the course of the hearing. We grant that application and address the issues raised in the order in which they were advanced in oral argument.
In bare outline, the issues raised before us are as follows.
First, the applicant submits pursuant to section 103 of the 2003 Act that the decision to send the case to the Secretary of State was wrong (and arguably wrong for the purposes of this leave application) for the following reasons:
i) The UK-US Extradition treaty (the Treaty) prohibits extradition for a political offence (and the offences with which the applicant is charged fall within that category).
ii) The extradition request was made for the purpose of prosecuting the applicant on account of his political opinions (contrary to section 81(a) of the 2003 Act).
iii) Extradition is incompatible with article 7 of the European Convention on Human Rights (the Convention) (which provides there should be no punishment without law).
iv) Extradition is incompatible with article 10 of the Convention (freedom of expression).
v) If extradited, the applicant might be prejudiced at his trial by reason of his nationality (contrary to section 81(b) of the 2003 Act).
vi) Extradition is incompatible with article 6 of the Convention (right to a fair trial).
vii) Extradition is incompatible with articles 2 and 3 of the Convention (right to life, and prohibition of inhuman and degrading treatment).
Secondly, the applicant submits that the Secretary of State's decision to extradite him was wrong (and arguably wrong for the purposes of this application) because (continuing the numbering sequentially):
viii) Extradition is barred by the Treaty; and
ix) Extradition is barred by inadequate specialty/death penalty protection.
For the reasons set out below, we have concluded that:
i) The applicant has established an arguable case that the decision to send the case to the Secretary of State was wrong because:
a) if extradited, the applicant might be prejudiced at his trial by reason of his nationality (contrary to section 81(b) of the 2003 Act), and
b) as a consequence of a), but only as a consequence of a), extradition is incompatible with article 10 of the Convention.
ii) The applicant has established an arguable case that the Secretary of State's decision was wrong because extradition is barred by inadequate specialty/death penalty protection.
iii) The applicant has not established an arguable case in respect of the remaining grounds of appeal.
Accordingly, subject to the question of whether the concerns we identify in this judgment can be addressed by way of assurances from the respondents, we will grant the applicant leave to appeal under both section 103 of the 2003 Act (in respect of grounds iv) and v)) and section 108 of the 2003 Act (in respect of ground ix).
For the reasons explained below, before making a final decision on the application for leave to appeal, we will give the respondent an opportunity to give assurances. If assurances are not given then we will grant leave to appeal without a further hearing. If assurances are given then we will give the parties an opportunity to make further submissions before we make a final decision on the application for leave to appeal.
Extradition generally
Extradition is as form of international cooperation in criminal matters, based on comity intended to promote justice. It takes place when a person (the Requested Person) who is accused or convicted of a criminal offence is returned to the state seeking the Requested Person's extradition (the Issuing or Requesting State) to be tried, sentenced or to serve a term of imprisonment. Extradition proceedings are not concerned with establishing innocence or guilt. That is a matter for trial in the Requesting State.
The underlying rationale of extradition needs to be understood; it was accurately encapsulated by the House of Lords Select Committee on Extradition Law (2 nd Report of Session 2014–5, published in March 2015) which was appointed to consider and report on the law and practice relating to extradition, in particular, the 2003 Act. In short, because of its cooperative and bilateral nature, it is inherent in extradition proceedings that each country accepts to a certain degree the criminal justice systems of other countries. Each country has different views of different crimes and how they should be punished. However, this acceptance is not absolute. For example, extradition from the United Kingdom must be compliant with the Convention. Extradition is also a two-way process; to refuse extradition to a country may lead to that country not honouring an extradition request from the United Kingdom. Maintaining good extradition relationships and the honouring of international obligations in this regard ensures that countries do not become safe havens from justice.
Since 1870, extradition from the United Kingdom has been regulated by primary legislation passed by Parliament.
The legislation which now mandates the circumstances in which extradition must or must not be ordered is the 2003 Act1. The 2003 Act has been subject to significant
legislative amendment and parliamentary scrutiny by Select Committees of both Houses since its enactment 2If a bar to extradition prescribed by the 2003 Act applies, such as that extradition would be contrary to Convention rights under the Human Rights Act 19983, then extradition must be refused. If none of the bars set out in the 2003 Act apply, then extradition must be ordered. Neither the court, nor the Secretary of State, has any discretion. The court does not have a general discretion to decide whether...
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