Screen shot from Michael Moore's "Fahrenheit 9/11" and fair use as it is included
WikiLeaks founder Julian Assange was astounded by Britain’s High Court after it reversed a prior decision and permitted the United States government’s appeal on grounds related to his health.
Lord Justice Timothy Holroyde accepted the U.S. could challenge the weight that was given to Professor Michael Kopelman’s evidence because he “misled” the district court and did not disclose the fact that he knew Assange was in a relationship with Stella Moris and fathered two children in the Ecuador embassy.
He also allowed the U.S. to argue the district judge had erred when considering the evidence that went to Assange’s risk of suicide.
The High Court of Justice already granted an appeal on grounds related to how Assange would be treated in a U.S. jail or prison and whether Judge Vanessa Baraitser should have sought "assurances" from the U.S. to alleviate human rights concerns.
Speaking via video link from Belmarsh prison after the hearing, Assange told Edward Fitzgerald QC, one of his defense attorneys, an “expert witness has a legal obligation to protect people from harm.”
Kopelman, a neuropsychiatrist who treated him from May to December 2019, was looking out for "my children," Assange added.
Assange referred to the guns that were found in UC Global director David Morales’ home when a search was conducted by police. The brand and serial numbers were erased on both weapons. (UC Global is the private security company that spied on the Ecuador embassy, tried to obtain a diaper from one of Assange’s children for DNA testing, and discussed potentially kidnapping or poisoning him.)
Fitzgerald agreed that human rights need to be considered, but now the legal team must turn to the “assurances” the U.S. is offering to persuade the court Assange will not be cruelly or inhumanely treated.
He further noted that the decision by the High Court was part of a preliminary hearing. It was not the appeal. The court simply ruled that the grounds were “arguable,” and it’s “not the end of the line,” Fitzgerald pointed out. They would discuss the implications of what unfolded later when they could do so privately.
It was an extraordinarily rare moment, where press on the video link were given a glimpse of how this case that has unfolded over the past two years is wearing on Assange.
The Constant Threats And Intimidation
“The judges today said that the court will allow the factual evidence to be argued at the final hearing on the 27th and 28th of October. They'll allow the factual evidence to be argued,” Moris declared. “What has not been discussed today is why I fear for my safety and the safety of our children and Julian's life.”
Moris highlighted the “constant threats and intimidation” that they have endured for the past few years. Threats have been issued against her, against their children, against Assange’s eldest son, Daniel, and against Assange's life.
Of course, Moris added, there are “threats of a 175-year prison sentence and the actual ongoing imprisonment of a journalist for doing his job. These are sustained threats to his life for the past 10 years. These are not just items of law. This is our lives. We have the right to exist. We have a right to live and we have a right for this nightmare to come to an end once and for all.”
Clair Dobbin QC, who is with the Crown Prosecution Service representing the U.S. government, relied on a declaration to the district court that Kopelman signed, where he agreed to be an impartial expert witness. It informed him of his obligation to the court and instructed him not to withhold information that could adversely impact the evidence he provided.
“If an expert has misled the court, he has failed in his duty,” Dobbin stated. She maintained Baraitser did not “appreciate the significance of the fact that Kopelman was willing to mislead” the court.
In response, Fitzgerald contended the district judge was fully aware of the prosecution’s criticism and she concluded that Kopelman misled the court. However, in light of all the evidence, which included two psychiatric reports and in-person testimony in court, Baraitser decided Kopelman did not fail in his duty to the court.
Kopelman consulted with the defense on whether it would be appropriate in his first report to disclose the name of Assange’s partner and reveal she was the mother of the two children. The decision to disclose the details was deferred until further legal advice could be obtained, according to Fitzgerald.
There was no “tactical advantage being gained,” Fitzgerald said. It was simply a matter of concern for the “human predicament.” For example, there were “very real fears and concerns” around UC Global and their surveillance against Assange and his family.
“Where is the point of law? Where is the arguable point of principle? Where indeed is the basis for the reviewing court to say this is wrong?” Fitzgerald rhetorically asked.
“I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Moris’s relationship with Mr. Assange,” Baraitser ruled. “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.”
Baraitser additionally detailed, “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.”
In other words, Baraitser was not misled by the omissions. She assessed his medical evidence while considering the fact that Assange had a new family that he started while in the Ecuador embassy.
The Judge Should Be The Primary Decision Maker
The High Court judges also concluded that a separate ground of appeal, previously rejected by the court, can now be argued by the U.S. government in the appeal hearing scheduled for October 27 and 28.
As to the risk of suicide, the U.S. government asserted Baraitser misinterpreted medical evidence or gave insufficient weight to evidence presented by forensic psychiatrists Professor Seena Fazel and Dr. Nigel Blackwood. They told the court too much weight was given to Kopelman and Dr. Quinton Deeley's evidence.
Deeley is a consultant psychiatrist specializing in autism and various mental health conditions. He concluded that Assange is on the “high functioning end” of the autism spectrum.
The prosecution’s written appeal argued that the evidence given last year by Deeley showed that any suicide risk would be the result of a rational and voluntary choice. If this is the case, then the relevant legal test prohibiting his extradition could not be satisfied.
But this interpretation of Deeley’s evidence was contradicted by the actual testimony he gave in September 2020 at the extradition hearing. Deeley made clear that Assange's autism combined with the conditions under which he would be held in the U.S. would result in a high risk of suicide—a point raised by Fitzgerald during today’s hearing.
Assange’s legal team emphasized that Baraitser weighed the testimony and evidence of all of the experts and was ultimately entitled, as the decision maker, to determine whom she found most convincing.
“[The prosecution’s] attack [on Baraitser’s decision to prefer the defense's medical evidence] totally fails to recognize the entitlement of the primary decision maker to reach her own decision on the weight to be attached to the expert evidence of the defense on the one hand and the prosecution experts on the other," Assange’s lawyers argued in their written submissions.
The High Court determined, since they allowed the prosecution to challenge how Baraitser weighed the evidence from Kopelman, it was only logical to permit this ground to be argued as well. (Though Holroyde, who was one of two judges at the hearing, appeared to doubt whether these arguments added much to the prosecution’s case.)
Fazel, one of the prosecution's preferred doctors, argued in 2020 that suicide risks are "dynamic." They can change as circumstances change, and it is "very, very difficult to anticipate" with any certainty what one’s suicide risk would be over the course of many months.
He did not concur with Deeley’s autism diagnosis but did recognize that, unlike Deeley, he did not specialize in the field. Fazel also noted, as an expert in suicides in prisons, that the U.S. has a lower suicide rate than that of the U.K.
Fitzgerald pointed out that the latter issue was raised during the extradition hearings when Fazel accepted that U.S. incarceration rates are six to seven times higher than that of the U.K., and therefore, the suicide rates “are not comparable."
Previously, the High Court had no response to the request from Assange's legal team for a cross-appeal. They would like to challenge the legal arguments Baraitser accepted, which pose a threat to press freedom.
Holroyde indicated the High Court would wait until after resolving the appeal from the U.S. before proceeding with any arguments from the cross-appeal.