The United States must give assurances that Julian Assange will not face the death penalty before judges will consider dismissing the Wikileaks founder’s bid to bring an extradition appeal, the High Court has ruled.
Assange faces prosecution in the US over an alleged conspiracy to obtain and disclose national defence information following the publication of hundreds of thousands of leaked documents relating to the Afghanistan and Iraq wars.
In a January 2021 ruling, then-district judge Vanessa Baraitser said that Assange should not be sent to the US, citing a real and “oppressive” risk of suicide, while ruling against him on all other issues.
Later that year, US authorities won their High Court bid to overturn this block, paving the way towards Assange’s extradition.
During a two-day hearing in February, lawyers for the 52-year-old asked for the go-ahead to challenge the original judge’s dismissal of other parts of his case to prevent his extradition.
In a judgment on Tuesday, Dame Victoria Sharp and Mr Justice Johnson dismissed most of Assange’s legal arguments but said that unless assurances were given by the United States he would be able to bring an appeal on three grounds.
These assurances are that Assange would be protected by and allowed to rely on the First Amendment which protects freedom of speech in the US, that he is not “prejudiced at trial” due to his nationality, and that the death penalty is not imposed.
The judges said the US authorities had three weeks to give those assurances, with a final hearing potentially taking place in late May.
Assange appeal decision ‘astounding’
Speaking after the judgment, the Australian’s wife Stella Assange described the ruling as “astounding”.
She said: “What the courts have done has been to invite a political intervention from the United States… send a letter saying ‘its all okay’. I find this astounding.
“This case is a retribution. It is a signal to all of you that if you expose the interests that are driving war they will come after you, they will put you in prison and will try to kill you.
“The Biden administration should not issue assurances. They should drop this shameful case that should never have been brought.”
She also said: “The British courts should just have thrown out this case because it criminalises journalism.”
Addressing Assange’s argument about freedom of speech, Dame Victoria said: “If he is not permitted to rely on the First Amendment because of his status as a foreign national, he will thereby be prejudiced, potentially very greatly prejudiced, by reason of his nationality.”
She concluded: “It follows that it is arguable that the applicant might be treated differently at trial on the grounds of his nationality.
“Subject to the question of whether this could be addressed by means of an assurance from the respondent, we would grant leave to appeal.”
At the start of Assange’s bid last month, Mark Summers KC argued the US’s prosecution would be retribution for his political opinions, meaning it would be unlawful to extradite him under UK law.
However the two judges rejected this argument.
Dame Victoria said: “The applicant’s case before us amounts simply to a reassertion of his case on this issue, and a disagreement with the (district) judge’s conclusion.
“It does not engage with the judge’s reasoning. Far less does it identify any flaw in her factual conclusions.”
The hearing at the Royal Courts of Justice was attended by dozens of journalists and members of the public, with hundreds observing remotely.
‘Risks to Assange and press freedom remain stark’
On Tuesday, dozens of people stood outside the central London courthouse to await the judgment, holding placards bearing the message “Free Julian Assange” and chanting “There is only one decision, no extradition”.
Michelle Stanistreet, general secretary of the National Union of Journalists, said: “A temporary reprieve is clearly preferable to an extradition that would have taken place in the coming days.
“However, the conditionality around the grounds of appeal, which are contingent on the examination of US government assurances that he will not face the death penalty and has the right to free speech, mean the risks to Assange and press freedom remain stark.
“Assange’s prosecution by the US is for activities that are daily work for investigative journalists – finding sources with evidence of criminality and helping them to get their stories out into the world.
“If Assange is prosecuted, free expression the world over will be damaged.”
She added: “The nuanced nature of this appeal judgment makes an alternative ending to this situation even more pressing.
“In recent months there has been increasing speculation about some kind of plea deal, to bring this saga to a swift and straightforward conclusion. I urge the US to return to these options.
“Media freedom is under threat all over the world, compassion and common sense from the US Department of Justice would do much to restore Washington’s reputation as a bastion of free expression.”
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