The High Court in London has allowed Julian Assange leave to appeal its own ruling to the U.K. Supreme Court. The High Court ruled in December that Assange can be extradited to the U.S., overturning the district court’s decision.
The High Court at the Royal Courts of Justice in London. (David Castor/Wikimedia Commons)
By Joe Lauria
Special to Consortium News
The High Court of England and Wales on Monday in essence allowed Julian Assange, the imprisoned WikiLeaks publisher, the right to appeal at the U.K. Supreme Court last month’s High Court judgement permitting Assange’s extradition to the United States.
The High Court technically refused to allow an appeal to the Supreme Court, but left it up to that court to determine for itself whether it will grant permission to consider one legal issue.
“We certify a single point of law … in what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings,” the High Court said in an appearance that lasted less than a minute. That refers to whether the United States was legally permitted to provide assurances to the High Court after it had failed to do so during the district court’s hearing of Assange’s extradition case in September 2020.
On Dec. 10, the High Court ruled that Assange’s extradition could go ahead, vacating the district court’s decision that Assange was too suicidal and U.S. prisons too harsh to send him there. District Judge Vanessa Baraitser ruled in January 2021 that under section 91 of the U.S.-U.K. extradition treaty it would be oppressive to do so.
The High Court did not disagree with the substance of that ruling. However it accepted U.S. “assurances” that it would not put Assange under the harshest incarceration regime, namely Special Administrative Measures (SAMS), and that he would receive adequate physical and mental health care. On the basis of those assurances alone the High Court overturned Baraitser’s ruling, clearing the way for extradition.
Assange’s lawyers argued before the High Court in December that the court should not have accepted the assurances because they were made after the district judge had ruled not to extradite.
But the High Court in December rejected the defense’s argument. “The court rejected various criticism argued on Mr. Assange’s behalf …that the assurances …were not sufficient,” said Lord Justice Timothy Holroyde.
Siding with the United States, which argued that the assurances could come at any point in the legal process, he read:
“For the reasons given in the judgment which is today handed down, the court allowed the appeal on the grounds that .. a. the DJ [District Judge], having decided that the threshold for discharge under section 91 of the Extradition Act 2003 was met, ought to have notified the USA of her provisional view, to afford it the opportunity to offer assurances to the court; and b. the USA has now provided the United Kingdom with a package of assurances which respond to the DJ’s specific findings.”
“In our view, a court hearing an extradition case, whether at first instance or on appeal, has the power to receive and consider assurances whenever they are offered by a requesting state,” the High Court judgment said.
It said further:
“An offer of assurances in an extradition case is a solemn matter, requiring careful consideration by the requesting state of its willingness to give specific undertakings to another state. It would not be appropriate to require that to be done on a contingent or hypothetical basis; and we doubt the practicability of such an approach. We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage.”
The High Court also tried to justify why the U.S. waited until after the extradition hearing in September 2020 to make its assurances. “We observe that the decision that all closing submissions should be made in writing, in a case in which the arguments had ranged far and wide over many days of hearing, may well have contributed to the difficulty faced by the USA in offering suitable assurances any earlier than it did,” the court said.
Had the defense known about the assurances during the extradition hearing in district court it could have argued with evidence from previous cases about their unreliability. But they were never given that chance.
It will now be up to the Supreme Court, if it accepts the appeal, to decide whether the U.S. could have legally made its assurances after Baraitser had decided in Assange’s favor. Assange has 14 days to apply to the Supreme Court to hear his case.
Even if the High Court had completely denied Assange’s right to appeal to the Supreme Court, he would still have been free to apply to the highest court directly for the right to appeal. The court’s website says: “An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to The Supreme Court. An application is made by filing an application for permission to appeal.”
If the Supreme Court takes the case its decision could set a precedent on the matter of whether government assurances must be filed with the court of first instance before its judgement is made. The Supreme Court would not be deciding on whether the U.S. assurances are believable but at what point in the legal process they should have been made.
The court would essentially be deciding whether a state can shift the goalposts after it had lost a case.
Assange is wanted in the United States on one charge of conspiracy to commit computer intrusion and 17 counts of violating the Espionage Act for possessing and publishing defense information that revealed prima facie evidence of U.S. war crimes and corruption.
Speaking outside the Royal Courts of Justice after the High Court’s decision on Monday, Stella Moris, Assange’s fiancee and lawyer, said, “What happened in court today is precisely what we wanted to happen. The High Court certified that we had raised a point of law of general public importance and that the Supreme Court has good grounds to hear this appeal. … Make no mistake, we won today in court.”
Julian Assange fiancee Stella Moris speaking outside court after todays victory: "Today we won – but Julian continues to suffer – Julian must be freed" @SkyNews #FreeAssangeNOW @stellamoris1 pic.twitter.com/mfUekaCZ6C
— WikiLeaks (@wikileaks) January 24, 2022
BREAKING: At 10.45 am WikiLeaks publisher Julian Assange won his application to appeal to the UK Supreme Court. You can help fund his supreme Court appeal here: https://t.co/m1bX8STSr8 #FreeAssangeNOW
— WikiLeaks (@wikileaks) January 24, 2022
Joe Lauria is editor-in-chief of Consortium News and a former U.N. 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 work as a 19-year old stringer for The New York Times. He can be reached at [email protected] and followed on Twitter @unjoe
Please, read this
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More especially pages 33 to 41.
You will have an idea of the next steps. If Assange doesn’t succeed before the SC, then the cross appeal ( on the grounds rejected by Barrister) will be introduced.
Joe, I must thank you for your unfailingly informative comments on all of the hearings in court but I too would like to hear your opinion on Larry McGovern’s question in his last but one paragraph of his communication. As we all know, the very basis of the British judicial system has been grossly abused namely: 1) his private conversations with his lawyers while confined in the embassy were secretly recorded and passed on to the British government ,2) One of the USA’s key witnesses lied and has been proven to be a criminal, 3) JA should have been treated as ‘innocent until proven guilty’ during the hearings (I refer to a similar case some 35 years ago when Lorrain Osman was held in Brixton prison for 6 years on a extradition application by the Hong Kong Government) and was afforded all of the rights of an ‘innocent person’, 4) That the US government clearly wished him dead and attempted to have him seized and murdered and 5) While being a journalist and not a spy but merely having confidential papers in his possession is not a criminal offence in British law. These contraventions of the British legal system seem to me to be prima fascia reasons for an appeal and for the whole application to be thrown out. What do you think?
David,
I responded to Larry’s comment, which you can find here below his comment. Larry is a lawyer. Surely he would agree that it is better to win on a technicality than to lose on substance, even if you are right on the substance.
Thank you Joe for your wise reply to my comment below. And yes, I surely do agree. Getting Julian Assange free from this torture is the goal, and we shouldn’t care the way we get there.
And you are right, Joe, to point out that the “technical” legal point – whether the the USA submission was too late, rather than the Court saying the USA cannot be trusted – is likely a more winning way to get there.
I guess my point is directed more to the anomaly that should the court decide against Assange and for the USA, this case will have gone all the way to the highest court without Assange having been able to present an appeal on the more substantive trial issues that David Russell succinctly specifies in his comment. Being able only then, after all prior decisions have gone against him, to pursue his own appeal on those issues would only drag this atrocious ordeal into its FOURTH YEAR, while Assange’s health continues to deteriorate in hellish Belmarsh.
The British Supreme Court justices have pretty much shown that they don’t give a damn about Julian Assange. But, if we who do care
about his freedom shout loudly enough around the world, perhaps the Brit Supreme Court will be shamed into freeing him. Come on
world — shout louder for Assange to be freed.
Do you really want the decisions of judges, who are at least in theory supposed to be impartial, to be influenced by groups of activists loudly shouting outside courtrooms? That could go very badly wrong. If laws are wrong or governments act badly, as in this case, we need to persuade them to change those laws.
“Biden Tells Supreme Court That Publicly Documented Torture Is a State Secret”
I think I get it now the real charges are revealing “Publicly Documented Torture”
If a defense has no possibility of success maybe we need to update our nomenclature possibly sticks and stones, or liar, liar pants on fire.
What silence on the part of the American corporate state
media on this possibility of authentic journalism escaping
fascism’s clutches. But no surprise, propaganda has always favored the
lie.
Justice and Law have nothing to do with this prosecution to me that is crystal clear as the president of the US said torture is a state secret.
A not very well kept secret.
“Special Administrative Measures” are a euphemism akin to “Enhanced Interrogation”. Both are forms of torture. We have seen the Evil Empire and it is the United States. As an American citizen, I consider this to be an outrage.
Wonderful news!!!! Hopefully, the UK Supreme Court will turn out not to be as corrupt as the lower courts, and will render a just decision. (Have to get my Irish Grandmother in Heaven to help, though might be difficult for her to pray for anything out of a court in England! :-) ) However, I am concerned about the narrow, technical point of law certified to the S Ct. More on that below.
Additionally – maybe I’m missing something, but isn’t there a HUGE hole in the British appeal process? Here’s the way it seems to be playing out.
+ JA wins in the first trial court, on one issue, and loses on other very substantial issues.
+ USA appeals on the issue they lost. It appears that while the USA can appeal, JA cannot at the same time appeal on the other issues he lost, as he would in the American judicial system.
+ The 2 judge appellate court decides the USA’s appeal by reversing the lower court’s decision, and says JA can be extradited. Again, no mention of JA being able to appeal on the issues he lost.
+ The same 2 judges who decided against JA, now makes a decision on whether JA can appeal to the Supreme Court. (Tell me that’s not very weird!) It decides he can, but on the very narrow issue of whether of not the “late in the game” submission of the USA assuring that JA will be so wonderfully treated back here, should have been considered by the trial court. I say technical, because it is not the merits of whether the USA can be trusted, but only on whether the USA’s lateness foreclosed the USA’s from even being considered.
+ Am I wrong, or during this entire appellate process, JA has not been able to appeal the clearly erroneous decision on the merits in the trial court. If I am right, then what recourse does JA have if the Supreme Court decides against him?!!
As Yul Brynner in “The King and I” said, “iis a puzzlement!” It would be great if Alexander Mercouris could shed some light on this.
Larry,
It is not bad news for Assange when when you say, “it is not the merits of whether the USA can be trusted, but only on whether the USA’s lateness foreclosed the USA’s from even being considered.” That it is a narrow issue and not on the merits of whether the US can be trusted is very good news for Assange. Politically, it would seem impossible for the Supreme Court to question the reliability of the assurances of the United States. It is good the SC does not have to consider that question but rather the legality of when the assurances were filed by the U.S. The SC could find that the U.S. should have submitted the assurances during the extradition hearing and not afterward as it did. In that case the SC could throw out the US assurances, not because they are untrustworthy, but because they were not legally filed and Assange could then be freed by the Supreme Court and there is nowhere else the U.S. could then appeal. Of course the Supreme Court, if it takes the case, could rule that the U.S. did submit the assurances legally and then it’s over for Assange in the UK. An appeal to the European Court of Human Rights could be next. But at least Assange has a chance now in the UK, which he wouldn’t have if the SC was deciding on the US trustworthiness. As for the cross appeal, after the Supreme Court decision, Assange’s lawyers can apply for it to be reviewed by the High Court. It would be very important to do this but would not impact his freedom if the Supreme Court decides the U.S. acted legally with its assurances, which is the matter the High Court ruled on to overturn the lower court’s decision to free him.
Joe