The Government of the United States of America v Julian Paul Assange
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWHC 3313 (Admin) |
| Docket Number | Case No: CO/150/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3313 (Admin)
The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
Lord Justice Holroyde
Case No: CO/150/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Lewis QC, Clair Dobbin QC and Joel Smith (instructed by The Crown Prosecution Service) for the Appellant
Edward Fitzgerald QC, Mark Summers QC and Florence Iveson (instructed by Birnberg Peirce) for the Respondent
Hearing dates: 27 and 28 October 2021
Approved Judgment
This is the judgment of the court to which we have both contributed.
Following an extradition hearing that lasted many weeks before District Judge Baraitser (“the judge”), on 4 January 2021 she discharged Julian Assange whose extradition is sought by the United States of America (“USA”). She was satisfied that “his mental condition … is such that it would be oppressive to extradite him”. That is the test laid down by section 91 of the Extradition Act 2003 (“section 91”; “the 2003 Act”) which, if satisfied, bars extradition.
The background to the request for Mr Assange's extradition is well-known. He is a founder of the Wikileaks website. He has been indicted in the USA on 18 counts connected with obtaining and disclosing defence and national security material through the website, primarily in 2009 and 2010 but also to some extent since. Those charges relate to alleged actions on the part of Mr Assange which have been summarised by the USA as follows:
“His complicity in illegal acts to obtain or receive voluminous databases of classified information;
His agreement and attempt to obtain classified information through computer hacking; and
His publishing certain classified documents that contained the unredacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies, including local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes.”
On 20 July 2020 the USA requested Mr Assange's extradition to stand trial on those charges. The request was certified by the Secretary of State as valid on 29 July 2020.
The US proceedings followed an earlier request in December 2010 by Sweden for extradition for alleged sex crimes. An extradition order was made but was challenged by Mr Assange. On 30 May 2012 the Supreme Court finally rejected his appeal against the extradition order: see [2012] UKSC 22; [2012] 2 AC 471. In the meantime, Mr Assange had failed to surrender to the court as required by the grant of bail. Following the decision of the Supreme Court he entered the Ecuadorian Embassy in June 2012 and remained there until 11 April 2019. He was then arrested and later convicted of an offence under the Bail Act 1976. He was sentenced to 50 weeks' imprisonment. Three of the offences for which he was wanted in Sweden became time barred in August 2015 and on 19 May 2017 the Swedish prosecutor announced that she was discontinuing the prosecution for the fourth.
Since he left the Ecuadorian Embassy Mr Assange has been in custody either in connection with the Bail Act offence or pending resolution of the extradition request of the USA of 6 June 2019.
The judgment below
The judge set out the many issues which had been raised before her in a detailed judgment. One of those issues was that extradition was challenged pursuant to section 91 on the ground that it would be oppressive.
Section 91 provides:
“ 91 Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must –
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”
In this context, the word “oppressive” relates to hardship to the requested person resulting from his physical or mental condition in the context of facing criminal proceedings and their consequences in another country: Kakis v. Cyprus [1978] 1 WLR 779 at p782 per Lord Diplock. It has not been suggested that Mr Assange's extradition would be unjust.
The judge addressed the evidence of the conditions in which Mr Assange would be likely to be held, as these were relevant to the risk of suicide. It was common ground between the parties that pre-trial Mr Assange would be likely to be held at “ADC”, an adult detention centre in Alexandria, Virginia. The judge noted that there were seven categories of detention at the ADC: the general population; administrative segregation (“ADSEG”); disciplinary segregation and pre-hearing segregation; medical segregation; protective custody; and the critical care mental health unit. Having considered the evidence on both sides, the judge concluded that there was a real risk that Mr Assange would be subject to restrictive special administrative measures (SAMs), both pre-trial and post-trial. She further found there was a real risk that, if convicted, Mr Assange would be held at the Administrative Maximum Security prison, Florence (“the ADX”). The discussion about “real risk” derives from the test applied in cases where the issue is whether conditions of detention would fail to meet the standards required by article 3 of the European Convention on Human Rights (“the Convention”). She considered the evidence about conditions there for an inmate subject to post-trial SAMs, and noted that in Babar Ahmad v United Kingdom (2013) 56 EHRR 1 the Strasbourg Court, having taken into account the mental health of the applicants in that case, held at p76 –
“that there would be no violation of art.3 of the Convention as a result of conditions at ADX Florence and the imposition of special administrative measures post-trial if [the applicants] were extradited to the United States.”
In relation to the section 91 issue, the judge summarised the medical evidence which had been adduced by the parties and set out her findings. She found Professor Kopelman, an Emeritus Professor of Neuropsychiatry, honorary consultant neuropsychiatrist and chartered psychologist instructed on behalf of Mr Assange, to be an impartial and dispassionate witness. She accepted his opinion that Mr Assange suffers from a recurrent depressive disorder which was severe in December 2019 and sometimes accompanied by psychotic features (hallucinations), often with ruminative suicidal ideas. She referred to his opinion that –
“… if housed in conditions of segregation and solitary confinement, Mr Assange's mental health would deteriorate substantially resulting in persistently severe clinical depression and the severe exacerbation of his anxiety disorder, PTSD and suicidal ideas.”
Professor Kopelman's evidence has been subjected to substantial criticism to which we shall return.
The judge also accepted the opinion of Dr Deeley, a consultant psychiatrist instructed on behalf of Mr Assange, that he suffers from autism spectrum disorder, albeit that he is a “high functioning autistic case”, and Asperger's syndrome disorder. In a report dated 14 August 2020 Dr Deeley expressed his opinion that there was a substantial risk of suicide if Mr Assange were extradited to the USA and came under the control of the US authorities:
“… in my opinion his depression and anxiety symptoms would worsen. Relevant factors would be removal from his family and support network; perceived humiliation and persecution; and the intrinsic stresses of a trial process when detained under conditions of close supervision and isolation with no perceived prospect of acquittal or appeal. In my opinion his Asperger Syndrome diagnosis would render him less able to manage these conditions. The cognitive rigidity and intense focus associated with Asperger Syndrome would conduce to greater rumination about his predicament, increasing anxiety and worsening low mood and cognitive symptoms of depression. In these circumstances his risk of attempted suicide would be high.”
The judge preferred the expert opinions of Professor Kopelman and Dr Deeley to those of Dr Blackwood, a consultant forensic psychiatrist instructed on behalf of the USA who did not accept the diagnosis of severe depressive episode with psychotic features from 2019, and did not agree that Mr Assange met the diagnostic threshold for an autism spectrum disorder. She noted that Dr Blackwood only had limited contact with Mr Assange within a period of a week, whereas Professor Kopelman had carefully gathered information through a series of interviews with those who knew Mr Assange well, including his current partner and so was likely to have “a fuller picture of his pre-morbid personality”.
The judge then considered the criteria set out in the decision of this court in Turner v United States [2012] EWHC 2426 (Admin) (“ Turner”). She was satisfied that the risk that Mr Assange will commit suicide is a substantial one. Her reasons for being so satisfied were –
i) that was the view of both Professor Kopelman and Dr Deeley;
ii) that if detained subject to the restrictions of pre-trial SAMs, Mr Assange would be held in conditions of significant isolation, which would be maintained if SAMs continued post-trial at the ADX, which all the expert psychiatric witnesses agreed would have a deleterious impact on Mr Assange's mental health;
iii) that Dr Blackwood had not addressed the possible conditions of detention;
iv) that Mr Assange currently had the benefit of protective factors, such as contact with his family: the fact he...
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