High Court Accepting New Evidence Extremely Rare: CN Legal Analyst

The High Court in London has accepted new evidence in the U.S. appeal of the decision not to extradite Julian Assange, which almost never happens, says CN legal analyst Alexander Mercouris. 

By Joe Lauria
Special to Consortium News

Appeals courts examine how the law was applied to the existing evidence from a lower court and on only the rarest occasions will they consider new evidence.

One instance in which they might is after a murder trial when someone else credibly confesses to the crime, impacting the appeal of a homicide conviction, but even that rarely happens. 

And yet the High Court in London last week decided to accept new evidence from the United States in the extradition case of Julian Assange, the imprisoned WikiLeaks publisher. 

The High Court has allowed only the narrowest avenue of appeal: namely on the question of prison conditions in the United States.  District Judge Vanessa Baraitser denied the U.S. extradition request based on Assange’s mental state and the onerous conditions of solitary confinement in the U.S., which she ruled combined to put Assange at high risk of suicide. 

To win its right to appeal, the U.S. submitted to the High Court that it would not put Assange under Special Administrative Measures (SAMS) — or extreme isolation — and if his conviction survives the appeals process could serve his sentence in a more humane prison in Australia.  Somehow, the High Court granted the U.S. leave to appeal by accepting this new evidence, which the U.S. could have easily been put forward in the five-week extradition hearing.

“The grounds of appeal as reported make no sense to me since they most definitely are new evidence, and are indeed evidence which the U.S. government had every opportunity to present to Baraitser during the hearing,” said Consortium News legal analyst Alexander Mercouris in an interview.  “None of the excuses for not doing so make sense to me.” Also lacking sense is why the High Court would even accept this new evidence, he said.

“Whilst an appeal Court does have discretion to hear new evidence, to my knowledge the circumstances where it would agree to do this is extremely rare,” Mercouris said.

One Case

“I worked in the Royal Courts of Justice for 12 years and I can think of only one case where that happened,” he said. “That was a case when evidence came to light after a trial, that the judge had had an undisclosed relationship with the party in the case to whom he awarded judgment. That was evidence which obviously had bearing on the judge’s decision, and which the judge had himself failed to disclose during the trial, and for that reason the appeal court agreed to consider it.

“In general it would have to be new evidence of that sort of nature for the appeal court to agree to consider it,” Mercouris said. The evidence offered by the U.S. does not rise to that standard, he said.

“I cannot see any such justification for the High Court agreeing to consider this new evidence. On the contrary, this looks to me like exactly the sort of evidence which an appeal should refuse to consider,” he said.

Mercouris said the U.S. was certainly aware that Assange’s lawyers were intending to bring up issues relating to his health and the effect that being in a U.S. prison would have on his health. “It is well known that extradition cases have failed because the High Court was not satisfied about the prison conditions and their potential effect on a suspect’s health in the country which is seeking his extradition,” he said.

“This is an entirely routine issue in extradition cases, and the U.S. authorities should have readied themselves to respond to it in Assange’s case,” Mercouris said. “If they did not do so, then that is their fault, not Baraitser’s fault, and Baraitser cannot therefore be blamed because she made a decision without taking this evidence into account, which the U.S. could have presented to her, but which it failed to do.”

Mercouris added: “It is essential to remember that in an appeal the question is no longer which party in a case is right; it is whether the judge did anything wrong.”

As he pointed out on CN Live! last Friday, the U.S. has in effect now admitted to the inhumane conditions of its prisons and therefore Baraitser was right not to send Assange to one of them. “An appeal is when a judge gets it wrong, not when a judge gets it right,” he said.

So the question remains: why did the High Court accept this new evidence and give the U.S. the right to appeal? Mercouris sets out three possibilities:

(1) The appeal is hopeless and the High Court knows it, but it is nervous of simply refusing an Appellant as powerful permission to appeal, so it has granted permission to appeal to give the US government its day in Court. In that case this is all a formality and the High Court will hear the appeal, probably in November, and then move to dismiss it.

(2) The US government’s appeal is hopeless and the High Court knows it, but it is granting permission to appeal in order to give Assange’s lawyers an opportunity to pursue a cross appeal on the very serious issues that they have said they might decide to bring.

(3) The proceedings are a sham, and a decision has been made to extradite Assange, and to allow the appeal, so permission to appeal was granted on flimsy grounds simply to provide a legal fig leaf for a decision which has already been made.

“I know that there are many people who think (3) but all my experience and training recoils from it, and until I see it happen I won’t believe it,” Mercouris said.

Joe Lauria is editor-in-chief of Consortium News and a former UN correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers. He was an investigative reporter for the Sunday Times of London and began his professional career as a stringer for The New York Times.  He can be reached at [email protected] and followed on Twitter @unjoe