USA v Julian Assange [2021] EWHC 3313 (Admin)
High Court, Queen’s Bench Division (Administrative Court), 10 December 2021. Also reported at [2022] 4 WLR 11.
The High Court allowed the United States’ appeal after accepting diplomatic assurances about Julian Assange’s treatment if extradited. Those assurances addressed the prison conditions on which the district judge had based her finding that extradition would be oppressive. The judgment concerned the extradition process, not whether Assange was guilty of the alleged offences.
Background to the appeal
The United States sought Assange’s extradition to stand trial on 18 counts concerning the obtaining and disclosure of defence and national security material, principally in 2009 and 2010. The allegations included obtaining classified information through computer hacking and publishing documents containing unredacted names of people who had supplied information to the United States and its allies. These were allegations to be tried, not findings of guilt by the English court.
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On 4 January 2021, District Judge Baraitser discharged Assange under section 91 of the Extradition Act 2003. That provision requires discharge or an adjournment where a person’s physical or mental condition would make extradition unjust or oppressive. Her decision rested on oppression arising from his mental condition and suicide risk.
The judge accepted psychiatric evidence of depression and autism spectrum disorder. She found a real risk that Assange would be subjected to special administrative measures (SAMs), involving severe restrictions and isolation, and, if convicted, detained at the Administrative Maximum Security prison in Florence, Colorado (ADX). In those conditions, she considered that his mental health would deteriorate and that preventive measures would not adequately address the suicide risk. The United States appealed under section 105.
Why the new assurances mattered
The decisive appeal grounds concerned assurances offered after the discharge order. In diplomatic notes, the United States undertook that:
- Assange would not be subjected to SAMs, before trial or after conviction, unless a future act committed after the assurance met the relevant test.
- He would not be detained at ADX before trial or, if convicted, afterwards, subject to a similar qualification concerning future conduct.
- While in custody, he would receive clinical and psychological treatment recommended by a qualified treating clinician at the prison.
- If convicted, sentenced and through any appeals, he could apply for transfer to Australia, and the United States would consent. Australia’s consent would still be required.
Assange argued that the assurances came too late, were qualified, left other restrictive detention regimes available, and could not safely be relied upon. The High Court rejected those arguments. The notes contained undertakings from one government to another, binding present and future officials responsible for the matters covered. The court found no basis for concluding that the United States had offered them in bad faith or would disregard them.
The qualifications concerning future conduct did not invalidate the assurances. The court distinguished the existing risk of the identified detention conditions from a risk arising because Assange subsequently acted in a way that justified them. Similarly, a promise of American consent to a transfer was not a guarantee that Australia would accept him.
Could assurances be considered on appeal?
The court distinguished an assurance about a state’s future conduct from evidence seeking to prove a past fact. An assurance offered on appeal could constitute a new issue within section 106(5), enabling the court to consider whether it would have changed the district judge’s decision.
Timing still mattered: the court should examine why assurances were offered late, whether they could practicably have been offered earlier, and any tactical delay or bad faith. Here, it found neither tactical delay nor bad faith. A requesting state was not required to anticipate every possible adverse finding by offering contingent assurances before the hearing. The district judge should have given the United States an opportunity to address her concerns before ordering discharge.
The High Court concluded that her assessment had depended specifically on the risk of SAMs and ADX detention. With that risk addressed, she would have answered the section 91 question differently. It was therefore unnecessary to remit the oppression question for a fresh assessment.
What the court left intact
The United States did not succeed on every ground. The High Court rejected its argument that the district judge had applied the wrong legal approach to section 91. She had directed herself correctly and made the required overall assessment. The law did not require the requesting state to guarantee that suicide would be impossible in all circumstances.
The court also rejected the challenges to her assessment of the psychiatric evidence. It strongly criticised Professor Kopelman for misleading omissions in his reports and failures to fulfil his duties as an expert. Nevertheless, the question on appeal was whether the district judge had been entitled to accept his evidence. Having heard and assessed the witnesses, and recognising the misleading passages, she was entitled to do so. Other psychiatric evidence also supported her findings.
Decision and significance
The High Court allowed grounds 2 and 5, concerning the assurances, and rejected grounds 1, 3 and 4. It quashed the discharge order and remitted the case to Westminster Magistrates’ Court with a direction to send it to the Secretary of State. Assange was remanded in custody. The court also rejected submissions that unresolved article 3 or abuse-of-process issues required further determination by the district judge.
The important distinction is between overturning a judge’s assessment of the evidence originally before her and changing the outcome because effective assurances address the conditions underlying that assessment. This decision did the latter. It was not a final determination of every objection Assange might raise to extradition.
Related decision: Assange v Swedish Prosecution Authority [2012] UKSC 22 concerns the separate Swedish extradition proceedings.
Source: Full High Court judgment, especially paragraphs 22–30, 39–61, 63–93 and 94–99.
