![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> United States of America v Assange [2021] EWHC 2528 (Admin) (11 August 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/2528.html Cite as: [2021] EWHC 2528 (Admin) |
[New search] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
MRS JUSTICE FARBEY
____________________
THE GOVERNMENT OF THE UNITED STATES OF AMERICA |
Appellant |
|
- and - |
||
JULIAN PAUL ASSANGE |
Respondent |
____________________
MR E. FITZGERALD QC and MS F. IVESON (instructed by Birnberg Peirce & Partners) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
LORD JUSTICE HOLROYDE:
Ground 1: The DJ made errors of law in her application of the test under s.91 of the 2003 Act. Had she applied the test correctly she would not have discharged the respondent.
Ground 2: Having decided that the threshold for discharge under s.91 was met, the DJ ought to have notified the appellant of her provisional view so as to afford the appellant the opportunity of offering assurances to the court.
Ground 5: The United States have provided the United Kingdom with a package of assurances which are responsive to the DJ's specific findings, including in particular an assurance relating to the conditions under which the respondent will be detained if extradited, and an assurance that the United States will consent to the respondent being transferred to Australia to serve there any custodial sentence imposed upon him.
Ground 3: Having concluded that Professor Kopelman had misled her, the DJ ought to have ruled that his evidence was inadmissible. Alternatively, if it could be said that his lack of independence went to weight rather than admissibility, the DJ ought to have attributed no, or far less, weight than she did to his opinions as to the severity of the respondent's mental condition (a fortiori when two additional and wholly independent experts were of a different opinion). Had she not admitted that evidence, or had she attributed appropriate weight to it, the DJ would not have discharged the respondent pursuant to s.91.
Ground 4: The DJ erred in her overall assessment of the evidence going to the risk of suicide.
At p.8 of his report, having referred to the respondent's former partner, he said the respondent had subsequently commenced a close relationship with another woman, which was of continuing huge importance and support to him. He said that this woman "has two children". He said nothing more about her identity.
At p.16 he referred to the respondent's mood in August 2019, and said that "an obligation to his children" was one of only two things which the respondent said had stopped him from committing suicide. By October 2019, Professor Kopelman reported, the respondent "no longer thought that feelings for his children would prevent him from committing suicide."
At p.22 Professor Kopelman referred to his meeting with Ms Moris, whom he said had been employed by the respondent in February 2011. He recorded that Ms Moris had twice met the respondent's adult son. He made no reference to her current relationship with the respondent, or her children by him. He recorded her belief that the respondent would commit suicide if he were to lose the case.
"Well, maybe I did not perform my duty to the court there, but I was trying to be diplomatic and respect her privacy."
He was asked whether the fact that Ms Moris, who was also the respondent's partner, was relevant to her independence, and the weight of what she said. Professor Kopelman conceded that that might be the case, and that she would naturally wish to say things helpful to Mr Assange. Professor Kopelman also accepted that the court should be aware of that when assessing the veracity of Ms Moris' account to Professor Kopelman.
however, in para. 330, to say this:
"In my judgment Professor Kopelman's decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms Moris's predicament. He explained that her relationship with Mr Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue."
"(i) I understand that my duty is to help the court to achieve the overriding objective by giving independent assistance by way of objective, unbiased opinion on matters within my expertise, both in preparing reports and giving oral evidence. I understand that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied with and will continue to comply with that duty.
. . .
(vii) I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.
(viii) I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.
(ix) I have not, without forming an independent view, included or excluded anything which has been suggested to me by others including my instructing lawyers.
. . .
(xi) I understand that:
a. my report will form the evidence to be given under oath or
affirmation; . . ."
Professor Kopelman should have been aware that rule 19.9 of the Criminal Procedure Rules permits an application to be made to the court if a party has grounds to exclude information from an expert report. No such application was made. By choosing instead to omit stating what he knew of the respondent's recent and current relationship with Ms Moris and their children, when expressing his opinion on matters such as the effects of "solitary confinement" in the Embassy and the risk of suicide, it is in my view arguable that Professor Kopelman did not act in accordance with his declaration, and that the DJ erred in not taking that into account in her assessment of his reliability.
MRS JUSTICE FARBEY: