January 24, 2022

British High Court Opens Door For Assange To Appeal To Supreme Court

Photo by Mohamed Elmaazi, NUJ member

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WikiLeaks founder Julian Assange prevailed in his effort to obtain certification from the British High Court of Justice, which would allow him to appeal their prior decision to the Supreme Court.

Under the law, the court must determine that the request for an appeal involves a “point of law” that is of “public importance.”

Journalist Mohamed Elmaazi, who was in the courtroom to cover the very brief proceedings, reported that the High Court certified the following point of law: “in what circumstances can an appellate court receive [diplomatic] assurances which were not before the court of first instance in extradition proceedings.”

Although the High Court maintained it had settled the question, they acknowledged the Supreme Court had not previously considered the question.

The High Court refused to grant Assange leave to appeal to the Supreme Court but left it up to the Supreme Court to decide whether to hear an appeal, a fairly standard outcome.

“What happened in court today is precisely what we wanted to happen,” declared Stella Moris, who is Assange’s partner. “The High Court certified that we had raised a point of law of general public importance, and that the Supreme Court has good grounds to hear this appeal. The situation now is that the Supreme Court has to decide whether to hear the appeal. But make no mistake, we won today in court.”

Reporters Without Borders international campaigns director Rebecca Vincent reacted, “We welcome the High Court’s decision to allow Julian Assange the right to appeal his extradition case to the Supreme Court. This case will have enormous implications for journalism and press freedom around the world and could be hugely precedent-setting. It deserves consideration by the highest court in the land."

"We very much hope that the Supreme Court will indeed accept the case for review," Vincent stated.

Assange is detained at Her Majesty’s Prison Belmarsh in London, a high-security prison where he has been held since he was expelled from the Ecuador Embassy on April 11, 2019. He faces 18 charges—17 of which are charges under the Espionage Act.

The Espionage Act is a law in the United States passed in 1917 that the Justice Department has increasingly wielded against media sources who share “classified” documents or talk about sensitive information with journalists.

On December 10, 2021, the High Court, the same court which was asked to certify points of law for an appeal, granted the U.S. government’s appeal and overturned a district court decision that previously blocked Assange’s extradition.

The High Court was “satisfied” with “diplomatic assurances” offered by the U.S. government related to how Assange would be treated in jail or prison, and they stated, “There is no basis for assuming that the U.S.A. has not given the assurances in good faith.”

In the request to appeal to the Supreme Court, Assange’s legal team asked the High Court to certify that the court’s approach to the “diplomatic assurances,” especially as it related to the potential jail and prison conditions, was a matter worthy of review.

Assange’s attorneys further maintained that Supreme Court review was necessary on the issue of whether the court erred in accepting “diplomatic assurances” that would be “inhuman for someone suffering from his mental disorder.”

But the High Court declined to certify those as “points of law” that were of “public importance.”

Massimo Moratti, the European deputy research director for Amnesty International, criticized the court for "dodging its responsibility to ensure that matters of public importance are fully examined by the judiciary."

"The courts must ensure that people are not at risk of torture or other ill-treatment. This was at the heart of the two other issues the High Court has now effectively vetoed."

Moratti argued, "The Supreme Court should have had the opportunity to deliberate and rule on all of the points of law raised by Assange at this crucially important point, but the High Court has limited its scope to do so. If the question of torture and other ill-treatment is not of general public importance, what is?"

The U.S. government offered "diplomatic assurances" after they lost their case when District Judge Vanessa Baraitser ruled on January 4, 2021, that extradition would be oppressive for mental health reasons.

According to the "diplomatic assurances" put forward, the U.S. government would not impose special administrative measures (SAMs) on Assange before trial or after he was convicted. Yet that assurance contains a major loophole.

If Assange commits a “future act” that meets “the test” for SAMs, the U.S. may designate him for such restrictive confinement conditions. They did not specify what type of acts might justify revoking this assurance.

The U.S. government pledged that Assange would not be designated for ADX Florence, a supermax prison in Colorado. Similarly, they indicated if Assange commits a “future act” that meets the "test for such designation” he could still be confined in a maximum security prison.

Prosecutors pledged to allow Assange to apply for a prisoner transfer to Australia to serve his U.S. sentence under the Council of Europe Convention on the Transfer of Sentenced Persons, but that does not necessarily mean they would grant an application for transfer. They merely informed the court that they would allow an application, which is a meaningless gesture.

If Assange was extradited and held in a U.S. jail or prison, the U.S. pledged to ensure he receives “clinical and psychological treatment” as recommended by a “qualified treating clinician employed or retained” by the facility where he is held. However, the assurance ignored the reality that if a facility lacks resources or the psychologist or staff does not conclude that Assange needs a higher level of care, he may not receive treatment.

On the “point of law,” which the High Court certified, Assange’s attorneys stated, “The introduction of fresh ‘evidence’ in support of an appeal against an adverse ruling, in order to repair holes identified in that ruling, is generally prohibited.” They noted prior cases.

“Quite apart from everything else, profound issues of natural justice arise where assurances are introduced by the requesting state for the first time at the High Court stage,” the attorneys added.

Assange's attorneys further suggested the Supreme Court may want to consider the “legality of a requirement on judges to call for assurances rather than proceeding to order discharge,” which is how Baraitser ruled.

In December, the High Court concluded Baraitser “ought to have notified” the U.S. government that she was going to “discharge” the case against Assange so that prosecutors could offer “assurances” before her decision.

Declassified U.K. reported days before the High Court ruled in favor of the U.S. government that Lord Chief Justice Ian Burnett had a conflict of interest. Sir Alan Duncan, the former foreign minister who was a key official in the United Kingdom’s campaign to force Assange out of the Ecuador embassy, has been close friends with the court's chief justice for over 40 years.

“Let’s not forget that every time we win, as long as this case isn’t dropped, as long as Julian isn’t freed, Julian continues to suffer,” Moris reminded the public after the ruling. “For almost three years, he’s been in Belmarsh prison, and he is suffering profoundly, day after day, week after week, year after year. Julian has to be freed, and we hope that this will soon end.”

“We are far from achieving justice in this case because Julian has been incarcerated for so long, and he should not have spent a single day in prison. If there had been justice, the officials who plotted, who conspired to murder Julian, would be in the courtroom right now.”

“If there were justice, the crimes that Julian exposed, war crimes, the killing of innocent civilians, would not be impugned. Our fight goes on, and we will fight this until Julian is free,” Moris concluded.

The High Court’s certification guaranteed the extradition request would not be sent to the British Home Office for Home Secretary Priti Patel to authorize Assange’s transfer to the United States. Yet it was another judicial decision that prolonged a process, which will continue to exact a great mental and physical toll on Assange so long as President Joe Biden’s Justice Department keeps pursuing a case widely recognized as a threat to global press freedom.