High Court allows Assange appeal, pending US assurances

Julian Assange will be able to launch a further appeal against extradition to the United States unless the latter provides assurances that the WikiLeaks Publisher will not face the death penalty or be discriminated based on his nationality, the High Court in London has decided.

The decision, written by Dame Victoria Sharp, allows the WikiLeaks founder to appeal on three points, pending the provision of diplomatic assurances. The first and the second one are intertwined, being related to the First Amendment and to possible discrimination linked to Assange’s nationality. In other words, Assange can challenge the extradition order because he might not be able to plead the First Amendment due to the fact that he is not an American citizen.

The remaining point on which appeal is allowed concerns the death penalty, since the judges found there are lack of safeguards preventing a capital charge from being laid against Assange in the United States.

The devil is in the detail in this ruling, which gave an initial sense of hope for Assange supporters in that there are still options for appeal in the UK – which would have ended if none of the grounds of appeal were accepted. However, the points recognised as arguable in today’s ruling, related to ground 4, 5 and 9 of the defence skeleton arguments, will fall if diplomatic notes are provided by the US Government, which the judges regard as fully answering them. A hearing on the sufficiency of any new diplomatic assurances provided by the United States has been scheduled for 20 May.

All the other grounds on which the legal team requested permission to appeal were dismissed, including one arguing that Assange is prosecuted for political opinions and should be protected by the extradition bar included in Section 81 (a) of the Extradition Act 2003.

The High Court also found that Assange’s legal team could not rely on Article 7 of the European Convention of Human Rights, according to which no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Assange lawyers Edward Fitzgerald and Mark Summers, during the 20 and 21 February hearing, argued that Assange is protected by such article given the fact that prosecution of a publisher under the Espionage Act is a complete unprecedented move that Assange himself could not forecast when he released secret documents in the public interest. The judges decided that it would not be possible to introduce the new evidence this argument relies on into proceedings at this point.

Regarding Article 10, the court ruled this was arguable “only as a consequence of” US prosecution statements that indicated that Assange would not be entitled to First Amendment protection. A more comprehensive take on the freedom of expression point was argued by Julian Assange’s legal team during the hearing.

In particular, the defence had pointed out that WikiLeaks source Chelsea Manning would likely be recognised as a whistleblower by the European Court of Human Rights in Strasbourg if her case was discussed today, notwithstanding that her disclosures included the release of sensitive official information. A balance would have to be struck between the risks brought by the publication and the fundamental interest of the public in learning about state criminality. These arguments may yet be brought to the European Court of Human Rights in Strasbourg.

In an accompanying order, the High Court has ruled that, if diplomatic assurances are not filed by the US by 16 April – and judged sufficient at a hearing on 20 May - a new appeal will be granted on the three aforementioned grounds 4, 5 and 9.