London Court Rejects Assange’s Extradition – What Happens Now? 

Earlier last week, District Judge Vanessa Baraitser, sitting in the Westminster Magistrates’ Court denied the Government of the U.S.A.’s request to the U.K. to extradite Mr Julian Assange over his espionage convictions in the U.S. on the grounds of deteriorating health.

Who is Julian Assange and what are his Convictions?

Julian Paul Assange is an Australian national, who founded WikiLeaks, a non-profiting international organization that leaked millions of classified government and military information of the United States from anonymous tippers online and through solicitation. On the 21st of December 2017, a federal magistrate judge in the Commonwealth of Virginia found Assange guilty of conspiracy and computer intrusion contrary to Title 18 of the U.S.C sections 371 and s.1030, respectively. Later, in March 2018, a federal grand jury indicted Assange over the two offences and the U.S. requested the U.K. for his arrest. 

On 23rd May 2019, a federal grand jury returned a superseding indictment alleging 18 separate counts of offences vis-à-vis obtaining, receiving and disclosing of “National Defense Information” which were contrary to Title 18 of the U.S.C sections 793(b), (c), (d), (e) and (g). On the same day, an arrest warrant was issued in the U.S. District Court for the Eastern District of Virginia. Subsequently, in June 2019, a U.S. request to extradite based on the superseding indictment was made to the U.K. through diplomatic channels. 

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Later in July 2020, a second superseding indictment was returned by the federal grand jury convicting Assange on all 18 counts alleged in the initial superseding indictment. On 7th September 2020, the initial extradition request was discharged, and extradition proceedings based on the second superseding indictment began. 

What is Assange Guilty of? 

Assange’s guilt is complex. He is charged for technically assisting Ms Chelsea Manning, who was a former intelligence analyst in the U.S. Army, in hacking the Department of Defence (DoD)’s password-protected intelligence server to collect classified military operations. This included the Afghan War Logs and the Iraq War Logs. Assange is alleged to have solicited these confidential materials from Ms Manning between January and May 2010. The U.S. The Army has evidenced that Assange’s disclosure of such sensitive information in the public forum has allowed “enemies of the United States” to take protective measures. It is said that the disclosure led to mass relocation of informants to the United States’ military in Afghanistan and Iraq; in some instances, informants have “disappeared” without a trace. One example was provided by Osama Bin Laden. In May 2011, when the United States Armed Force raided Osama’s compound in Abbottabad, Pakistan, they found significant activity reports and diplomatic cables from WikiLeaks website. Other allegations included Assange contracting professional computer hackers to record parliamentary phone calls and N.A.T.O activity reports. 

Westminster Magistrates’ Court

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Assange’s legal team raised as many as seven defences for the court to deny the extradition request. Firstly, it was argued that the UK-US Extradition Treaty prohibits extradition for a political offence and hence the court did not have the jurisdiction to hear the case. Secondly, allegations against Assange did not meet the “dual criminality” requirements of s.137 of the Extradition Act 2003. Thirdly, the extradition is contended to be unjust and oppressive on grounds of lapse of time and under s.82 of the Extradition Act 2003. Fourthly, the extradition was arguably barred because of extraneous considerations, under s.81(a) and (b) of the Extradition Act 2003. Fifthly, the extradition would amount to a breach of several Article(s) of the European Convention of Human Rights (ECHR), namely, Art 3 (inhuman and degrading treatment), Art 6 (denial of a right to a fair trial), Art 7 (it would involve a novel and unforeseeable extension of the law) and Art 10 (right to freedom of expression); and based on this, under s.87 of the Extradition Act 2003, the extradition should be refused. Sixthly, the extradition ought to be refused because it would be unjust and oppressive because of Mr Assange’s mental condition and high risk of suicide under s.91 of the Extradition Act 2003. Finally, the prosecution argued that the extradition would be to refused for allowing it would amount to an abuse of power; in that, (i) the request misrepresents the facts of [Castillo v Spain (2005) 1 WLR 1043, Spain v Murua (2010) EWHC 2609 (Admin), Zakrzeski v Regional Court in Lodz, Poland (2013) 1 WLR 324]; and (ii) the prosecution is being pursued ulterior motives and not in good faith [R (Bermingham & Others) v Director of the Serious Fraud Office (2007) QB 727 and R (Government of the USA) v Bow Street Magistrates’ Court (2007) 1 WLR 1157 (“Tollman”)].

Regarding the first defence, concerning the UK-US Extradition Treaty, District Judge Venessa Baraitser took notice that Art 4 of the Treaty prohibits extradition when concerned with political offences. However, it was held that the defendant failed to establish that the 2003 UK-US treaty conferred rights on Assange, which were enforceable in this court. Moreover, the nature of an extradition treaty was an agreement between governments and sovereign states on the proviso that it is not governed by the domestic law of either state. Also, when the Extradition Act 2003 was enacted, the Parliament took the view to remove the political offence bar concerning the extradition. Therefore, on this basis, the court could not decide contrary to this view of the UK Parliament. 

Regarding the second defence, concerning s.137 of the Extradition Act 2003, the court held that the statutory requirements for “dual criminality” were met. Although the defence argued that Mr Assange’s conduct was no more than “ordinary and lawful conduct of investigative journal[ism]” as protected under Art 10 of the ECHR, the court held that the offences alleged against Mr Assange, would duly under English law be held as a conspiracy. In relation the fourth and final defence of bars to the extradition and the prosecution being politically motivated to pursue charge as opposed to acting in good faith, respectively, the court held that it was satisfied with the federal prosecutors who brought in the charges. The court took this decision on that view that there was no evidence to indicate that Mr Assange was pressurized for prosecution under the Trump administration and was not sought by federal prosecutors during the Obama administration.

Regarding the third defence, namely, that the extradition would amount to being “unjust” and “oppressive” for a lapse of time, the court held that the delay between the alleged commission of the offences and bring the complaint was justified. This is because the investigation of such kind, with such enormous data involved naturally, means a delay in prosecution to press full charges. As such, it is not “unjust” or “oppressive” as was argued by the defence. 

Concerning the fifth defence, which claimed that extradition would result in a breach of Article(s) to the ECHR, the court held that Art 6 would be breached, whether considered individually or cumulatively. Moreover, Art 6 would not also be breached, because Mr Assange’s rights are protected in America by the US Constitution’s Fifth Amendment. Also, regarding Art 10, the court stated that it was not cognizant of any examples where foreign nationals, who were in US soil were facing trial in the US was not afforded protection by the US Constitution. Hence, overall, the court found that there would be no violation of ECHR Article(s).

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Finally, about the violation of Art 3 of the ECHR and the sixth defence for the extradition to be “unjust” or “oppressive” on that grounds of Mr Assange’s mental health as stipulated by s.91 of the Extradition Act 2003; the court held that Mr Assange, through his medical prognosis, is at risk of committing suicide should he be extradited to the United States. The court held that should Mr Assange commit suicide; it would not be caused by some deliberate act of his own doing but rather from his medical condition. Although the Government of the United States assured the court that they would facilitate the best prison arrangements for Mr Assange; in a way that he is unable to commit suicide, the court was not satisfied with the proposition. In light of Mr Assange’s deteriorating mental health and associated medical conditions, the court held that Mr Assange cannot be extradited to the United States.

Impact of the Westminster Magistrates’ Court ruling 

After the Old Bailey court rejected the United States’ request to extradite Mr Assange, the focus has now shifted to the US where another case awaits the verdict. Mr Assange, who faces 175 years in prison in the United States for breach of federal laws, can technically bring his case before the Supreme Court of the United Kingdom (UKSC) and in the long run, before the European Court of Human Rights (ECtHR). However, this seems unlikely, as legal experts state that a specific legal point has to arise for the UKSC to become involved. It is reported that if the legal rulings keep favouring Mr Assange, it is likely that he would serve a short-term prison sentence before he is freed; although considering the US’ influence across the world, it will appear unlikely that Mr Assange can ever step outside the UK. 

Meanwhile, Mexican President, Andrès Manuel López Obrador has stated in a public forum that he would ask the Foreign Ministry to offer Mr Assange Mexican asylum. Alternatively, there are also growing reports of US President Donald Trump offering Mr Assange pardon should he admit that Russia was not involved in leaking the Democratic party emails. Regardless of one’s view of Mr Assange’s conduct over the years, it seems possible that the UK’s decision might be the beginning of the end. 

A copy of the UK courts’ decision can be found here.


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About the Author

Moshiuzzaman
Moshiuzzaman holds a 2:1 LL.B degree from BPP University (UK). He is currently pursuing the CFA chartership and working as an independent legal researcher at the American Society of International Law (ASIL)

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