Assange: the defence arguments

Legal team claim the US extradition request is "political"

An organisation called Bridges for Media Freedom has circulated the skeleton arguments that Julian Assange’s legal team are using in the extradition hearing that started today.

Part one of the document is here and part two is here.

The defence team, headed by Edward Fitzgerald QC, argue that the extradition proceedings amounts to an abuse of process in three separate but overlapping categories:

  1. The request seeks extradition for what is a classic “political offence”. Extradition for a political offence is expressly prohibited by Article 4(1) of the Anglo-US Extradition Treaty. Therefore, it constitutes an abuse of this Court’s process to require this Court to extradite on the basis of the Anglo-US Treaty in breach of the Treaty’s express provisions.

  2. The prosecution is being pursued for ulterior political motives and not in good faith. That engages the jurisdiction recognised in the successive cases of R (Bermingham and 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”).

  3. The request fundamentally misrepresents the facts in order to bring this case within the bounds of an extradition crime; both by misrepresenting that Julian Assange materially assisted Chelsea Manning in accessing national security information; and then by misrepresenting that there was a reckless disclosure of the names of particular individuals [as alleged in counts 15, 16, 17]. That point engages the jurisdiction recognised in the successive cases of Castillo v Spain [2005] 1 WLR 1043, Spain v Murua [2010] EWHC 2609 (Admin), and Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324.

They also argue that extradition should be refused on the following grounds:

  1. Extradition is barred under s81(a) of the Extradition Act 2003 by reason of the political motivation of the request, which is directed at Mr Assange because of the political opinions he holds and that have guided his actions. Moreover we submit that extradition is barred under s81(b) because it exposes Mr Assange to the real risk of discrimination on grounds of “political opinions” and his foreign nationality at every stage of the criminal justice process in the US. 

  2. It would be unjust and oppressive to extradite Mr Assange by reason of the lapse of time since the alleged offences, and the effect that extradition would now have on his family and young children.

  3. Extradition is barred under s87 of the Extradition Act because it would expose Mr Assange to a complete denial of his right to a fair trial under Article 6 of the human rights convention.

  4. It would further expose him to a flagrant denial of his rights under Article 10 of the convention to freedom of expression, to receive and impart information and to protect his own journalistic sources. It would further expose him to a violation of Article 7 of the convention because it would involve a novel and unforeseeable extension of the law.

  5. Extradition is barred because it would expose Mr Assange to inhuman and degrading treatment contrary to Article 3 of the human rights convention. That is because of the risk of a wholly disproportionate sentence, amounting in effect to a life sentence; and because of the virtual certainty that he will be exposed to inhuman and degrading treatment in prison in the United States because of the inevitable impact of those conditions on someone with his mental vulnerabilities.

  6. Extradition should be refused under s91 of the Extradition Act because it would be unjust and oppressive to extradite Mr Assange by reason of his mental condition and the high risk of suicide if he is extradited. 

The following submissions are particularly relevant to today’s hearing. (I have marked the most interesting in bold):

On 24 June 2020 the US issued a press release signalling that the indictment has been superseded, again. This third iteration of the indictment adds a series of additional factual allegations, unrelated to the Manning allegations, concerning allegations of general encouragement/solicitations to persons to steal (hack) inter alia US classified information. See primarily new §§4-6 and 35-92. The defence (not the prosecution) immediately brought this development to the attention of the Court. 

On 2 July 2020, the US served the new indictment on the defence (but not the Court) and indicated that it was considering how to proceed.

On 12 August 2020, the US issued a fresh extradition request (dated 17 July 2020) founded upon the new indictment. The US proposes to invite this Court, on 7 September 2020, to order Mr Assange’s discharge in respect of the existing proceedings whereupon the US will re-arrest him on the fresh request. 

Despite requests, the US have offered no explanation for the absence of these allegations from the first (or even second) indictment, where the allegations date from 2009 and could have been (and were being – see below) prosecuted at any time in the last decade, including prior to emergence of the Swedish proceedings. Neither has there even been explanation for why, in the context of these proceedings extant since April 2019, these materials arrive a year and half after their commencement, 6 months after opening submissions, and days prior to the (third listing) of the evidential hearing.

Updated with corrections at 1520 on 7 September.