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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> United States of America v Assange [2021] EWHC 3313 (Admin) (10 December 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/3313.html Cite as: [2021] EWHC 3313 (Admin), [2022] 4 WLR 11, [2022] HRLR 3, [2021] WLR(D) 624, [2022] ACD 25 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
LORD JUSTICE HOLROYDE
____________________
THE GOVERNMENT OF THE UNITED STATES OF AMERICA |
Appellant |
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- and - |
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JULIAN PAUL ASSANGE |
Respondent |
____________________
Edward Fitzgerald QC, Mark Summers QC and Florence Iveson (instructed by Birnberg Peirce) for the Respondent
Hearing dates: 27 and 28 October 2021
____________________
Crown Copyright ©
LORD BURNETT OF MALDON CJ:
"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."
The judgment below
"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."
"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."
" 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."
" 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."
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 had not attempted suicide whilst held at HMP Belmarsh could therefore not be taken as evidence that the risk of suicide was low or was capable of being adequately managed;
v) that whilst she accepted the evidence of Professor Fazel (a Professor of Forensic Psychiatry and honorary consultant forensic psychiatrist, instructed by the USA) about the difficulties of evaluating a suicide risk, she accepted Professor Kopelman's evidence that "statistics and epidemiology take you only so far";
vi) that she had formed the view, from the evidence as a whole, that Mr Assange was "a depressed and sometimes despairing man, who is genuinely fearful about his future".
"362. I accept that oppression as a bar to extradition requires a high threshold. I also accept that there is a strong public interest in giving effect to treaty obligations and that this is an important factor to have in mind. However, I am satisfied that, in these harsh conditions, Mr Assange's mental health would deteriorate causing him to commit suicide with the 'single minded determination' of his autism spectrum disorder.[1]
363. I find that the mental condition of Mr Assange is such that it would be oppressive to extradite him to the United States of America."
i) The US-UK Extradition Treaty forbids extradition for political offences with the consequence that the court lacked jurisdiction to hear the case;
ii) The allegations against Mr Assange did not meet the dual criminality test found in section 137 of the 2003 Act;
iii) Extradition would be unjust or oppressive by reason of the passage of time pursuant to section 82 of the 2003 Act;
iv) Extradition is barred by reason of extraneous considerations by virtue of section 81(a) and (b) of the 2003 Act;
v) Extradition is barred by section 87 of the 2003 Act because it would breach the Convention by violating article 6 (denial of a fair trial), article 7 (expose Mr Assange to a novel and unforeseeable extension of US law) and article 10 (right to freedom of expression). The judge concluded that she did not need to decide an argument that extradition would expose him to treatment contrary to article 3 of the Convention given her conclusion on section 91;
vi) The extradition request is an abuse of process because it proceeds on a misrepresentation of the facts and because the prosecution is being pursued for an ulterior political motive and is not brought in good faith.
The grounds of appeal
i) Ground 1: The judge made errors of law in her application of the test under section 91. Had she applied the test correctly she would not have discharged Mr Assange;
ii) Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;
iii) Ground 3: Having concluded that the principal psychiatric expert called on behalf of the defence (Professor Kopelman) had misled her on a material issue, the judge ought to have ruled that his evidence was incapable of being relied upon (or that little weight should be attached to it) or that his lack of independence rendered his evidence inadmissible. The district judge failed to interrogate or adequately assess the reasons for Professor Kopelman misleading her (seemingly concluding that it was sufficient that he had misled her for 'human' reasons) or to assess adequately how his willingness to mislead her impacted upon the overall reliability of his evidence. Had she not admitted that evidence or attributed appropriate weight to it, the judge would not have discharged Mr Assange pursuant to section 91;
iv) Ground 4: The judge erred in her overall assessment of the evidence going to the risk of suicide, in particular in her predictive assessment of a future, long term risk which was based upon several contingencies which might or might not eventuate;
v) Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge's specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.
"(1) On an appeal under section 105 the High Court may
(a) allow the appeal;
(b) direct the judge to decide the relevant question again;
(c) dismiss the appeal.
(2) A question is the relevant question if the judge's decision on it resulted in the order for the person's discharge.
(3) The court may allow the appeal only if the conditions in subsection (4) or the conditions in subsection (5) are satisfied.
(4) The conditions are that
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.
(5) The conditions are that
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding the relevant question differently;
(c) if he had decided the question in that way, he would not have been required to order the person's discharge.
(6) If the court allows the appeal it must
(a) quash the order discharging the person;
(b) remit the case to the judge;
(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.
(7) If the court makes a direction under subsection (1)(b) and the judge decides the relevant question differently he must proceed as he would have been required to do if he had decided that question differently at the extradition hearing.
(8) If the court makes a direction under subsection (1)(b) and the judge does not decide the relevant question differently the appeal must be taken to have been dismissed by a decision of the High Court.
(9) If the court
(a) allows the appeal, or
(b) makes a direction under subsection (1)(b),
it must remand the person in custody or on bail.
(10) If the court remands the person in custody it may later grant bail."
The appeal
Grounds 2 and 5
"1. The United States will not impose Special Administrative Measures (SAMs) on Mr Assange, pretrial or post-conviction. This undertaking is subject to the condition that the United States retains the power to impose SAMs on Mr Assange in the event that, after entry of this assurance, he was to commit any future act that met the test for the imposition of a SAM pursuant to 28 C.F.R. §501.2 or §501.3.
2. Pursuant to the terms of the Council of Europe Convention on the Transfer of Sentenced Persons (COE Convention), to which both the United States and Australia are parties, if Mr Assange is convicted in the United States he will be eligible, following conviction, sentencing and the conclusion of any appeals, to apply for a prisoner transfer to Australia to serve his U.S. sentence. Should Mr Assange submit such a transfer application, the United States hereby agrees to consent to the transfer. Transfer will then follow, at such time as Australia provides its consent to transfer under the COE Convention.
3. The United States undertakes that in the event of extradition, and Mr Assange being held at any time in custody, it will ensure that Mr Assange will receive any such clinical and psychological treatment as is recommended by a qualified treating clinician employed or retained by the prison where he is held in custody.
4. The United States undertakes that, pretrial, Mr Assange will not be held at the United States Penitentiary Administrative Maximum Facility (ADX) in Florence, Colorado. If he is convicted and sentenced to a term of imprisonment, Mr Assange will not be held at the ADX save that the United States retains the power to designate Mr Assange to ADX in the event that, after entry of this assurance, he was to commit any future act that then meant he met the test for such designation.
These assurances are binding on any and all present or subsequent individuals to whom authority has been delegated to decide the matters."
"The United States has provided assurances to the United Kingdom in connection with extradition requests countless times in the past. In all of these situations, the United States has fulfilled the assurances it provided. Further, the United States is unaware of a single instance where the United Kingdom communicated a concern about any U.S. assurance going unfulfilled. In the event the United Kingdom had concerns regarding fulfilment of an assurance, or were to believe an assurance had not been fulfilled, it could communicate its concerns, or a protest, directly to the United States. The United States values its extradition relationship with the United Kingdom and would take any concern raised very seriously.
As regards the assurances provided in the case of Haroon Aswat, which the United States understands has been raised in the Assange proceedings, the United States was requested to provide assurances to the United Kingdom regarding, among other things, the manner by which Mr Aswat's mental health needs would be initially evaluated upon his extradition to the United States and his detention pending that evaluation. There were no specific assurances regarding his confinement or the manner or form of medical or mental health treatment in the event it was determined that he could be transferred to another facility without compromising his health and safety. The United States wishes to emphasize that the United Kingdom has not raised with the United States any concerns regarding the assurances provided in the Aswat case. Further, neither Mr Aswat nor a representative of Mr Aswat has advised the United States that any assurance provided to the United Kingdom has not been fulfilled.
Finally, the United States notes that its assurances are binding on any and all current or subsequent individuals to whom authority has been delegated to decide the matters. This includes the federal prosecutors on this case as well as any relevant current or future officials with authority over the matters set forth in the assurances."
"36. The court may consider undertakings or assurances at various stages of the proceedings, including on appeal, and the court may consider a later assurance even if an earlier undertaking was held to be defective: see Dzgoev v Russia [2017] EWHC 735 at paragraph 68 and 87 and Giese v USA (no 4).
39. Where a real risk of inhuman and degrading treatment is established, it is not appropriate to discharge the requested person but to enable the requesting state 'to satisfy the court that the risk can be discounted' by providing assurances, see Georgiev v Bulgaria [2018] EWHC 359 (Admin) at paragraph 8(ix). If such an assurance cannot be provided within a reasonable time it may then be necessary to order the discharge of the requested person, see India v Chawla at paragraph 47."
47. The assurances offered in Diplomatic Note no. 74 are expressly stated, at the outset, to be offered by "the Government of the United States of America [to] the Government of the United Kingdom of Great Britain and Northern Ireland". Thereafter, the proposed assurances are in the form of undertakings offered by "the United States". It is not possible to interpret that phrase, as Mr Assange seeks to do, as referring only to an unspecified sub-set of state or federal officials or prosecutors. That is clear from the concluding words of Diplomatic Note no. 74 ("These assurances are binding on any and all present or subsequent individuals to whom authority has been delegated to decide the matters") and Diplomatic Note no. 169 ("Finally, the United States notes that its assurances are binding on any and all current or subsequent individuals to whom authority has been delegated to decide the matters. This includes the federal prosecutors on this case as well as any relevant current or future officials with authority over the matters set forth in the assurances"). It is accordingly clear that Diplomatic Note no. 74 contains solemn undertakings, offered by one government to another, which will bind all officials and prosecutors who will deal with the relevant aspects of Mr Assange's case now and in the future.
" is a state with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting state in an extradition case, having been dishonoured."
Ground 1
"(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a 'substantial risk that [the appellant] will commit suicide'. The question is whether, on the evidence, the risk of the appellant succeeding in committing suicide, whatever steps are taken, is sufficiently great to result in a finding of oppression: see Jansons v Latvia [2009] EWHC 1845 at [24] and [29]. (4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition: Rot v District Court of Lubin, Poland [2010] EWHC 1820 at [13] per Mitting J. (5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid. (6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide: ibid at [26]."
"I am quite satisfied that Florida has the proper facilities to cope both with Ms Turner's mental illness and, so far as anyone can, the risk of her attempting to commit suicide if extradited." [our emphasis]
"10. The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As [counsel] correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages: (1) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz v Poland [2011] EWHC 659 (Admin) at [45], a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Qazi (Saraj) [2011] Cr App R (S) 32. (2) Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency ("SOCA") with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin's case [2012] 1 WLR 270, para 52 steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention. (3) Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see Krolik v Regional Court in Czestochowa, Poland (Practice Note) [2013] 1 WLR 490, paras 3-7 and the authorities referred to and Rot's case [2010] EWHC 1820 (Admin) at [10]-[11]. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption. It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective. "
Grounds 3 and 4
"His current relationship was established while he was in the Ecuadorian embassy: he has had two children within this relationship."
We note that Mr Assange provided that information at a time when he was preparing to make a bail application, which was lodged on 20 March 2020 and which relied on his family relationship with Ms Moris.
"A: Well, maybe I did not perform my duty to the court there but I was trying to be diplomatic and respect her privacy.
Q: All right. And is not the fact that she is also his partner relevant to her independence and the weight of what she says?
A: Um, that might be the case, yes. It depends what she is saying that that might contribute to.
Q: Because she is naturally going to want to say helpful things to Mr Assange, is she not?
A: Yes.
Q: And the court should be aware of that when assessing the veracity of her account to you. Do you agree?
A: Yes, but we do know, the court did know from that report, and they now know anyhow because it is in the second report, that she was his partner, and they did know from that report that she had worked closely with him.
Q: All right.
A: So, she would have some loyalty from that fact alone."
"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' 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."
"(vii) I have exercised reasonable skill and care 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.
(x) I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification."
Additional submissions:
"I reject the defence submissions concerning staying extradition as an abuse of the process of this court."
Conclusion:
Note 1 The judge was here quoting from Professor Kopelmans evidence. Dr Deeley had used similar phraseology. [Back] Note 2 See paragraph [24] above. [Back]