Julian Assange: what next?

Whatever the outcome today, this is not the end of the road

On 4 January last year, District Judge Baraitser dismissed a request by the United States for the extradition of the Wikileaks founder Julian Assange. Sitting at Westminster Magistrates’ Court, the district judge said she was satisfied that Assange’s mental condition was such that it would be “oppressive to extradite him”. Under section 91 of the Extradition Act 2003, that was a bar to extradition. Assange was discharged — but remained in custody pending an appeal by the United States under section 105 of the Extradition Act.

On 10 December, the lord chief justice Lord Burnett of Maldon and Lord Justice Holroyd, sitting at the High Court in London, allowed the US appeal. They were persuaded that assurances provided by the US government meant there was no longer a real risk that Assange would be held at the administrative maximum security prison near Florence, Colorado, known as ADX. Nor would he be subject to “special administrative measures” designed to prevent the disclosure of classified information.

Westminster Magistrates’ Court

The two senior judges quashed the order discharging Assange. They remitted the case to Westminster Magistrates’ Court and directed the district judge to send it to the home secretary — just as would have happened if she had not found Assange’s extradition oppressive.

Assange sought to overturn last month’s High Court decision. An appeal in these circumstances goes straight to the UK Supreme Court. However, section 114 of the Extradition Act says the party wishing to appeal must first obtain “leave” (permission) — either from the High Court or from the Supreme Court itself.

Assange had 14 days to seek leave and lodged his application on 23 December. The application was considered by Burnett and Holroyde without an oral hearing. This morning, they will announce their decision on leave to appeal.

Section 114(4) of the Extradition Act says:

Leave to appeal under this section must not be granted unless—

(a) the High Court has certified that there is a point of law of general public importance involved in the decision, and

(b) it appears to the court granting leave that the point is one which ought to be considered by the Supreme Court.

That means you have two chances to argue that your case should be considered by the Supreme Court. If, as often happens, the High Court refuses leave, you can still ask the Supreme Court.

But, as with criminal appeals generally, you have only once chance to argue that your case raises a point of law of general public importance — one that may affect other cases in future. That means the High Court can veto an appeal: unless it is willing to certify a point of law, your appeal will not be heard by the the Supreme Court.

So there are three possible outcomes today:

1. High Court certifies a point of law and grants leave: appeal will be heard by Supreme Court.

2. High Court certifies a point of law but refuses leave: appeal may be heard by Supreme Court.

3. High Court refuses to certify a point: appeal will not be heard by the Supreme Court.

What if the High Court chooses option 3? Would that be the end of the road for Assange?

No. Although he persuaded Baraitser that it would be oppressive to extradite him, she rejected other arguments put by his lawyers. If Assange is unsuccessful today, he may be able to appeal, under section 103 of the Extradition Act, on the grounds dismissed by the district judge:

• The US-UK extradition treaty forbids extradition for political offences with the consequence that the court lacked jurisdiction to hear the case;

• The allegations against Assange did not meet the dual criminality test found in section 137 of the Extradition Act;

• Extradition would be unjust or oppressive under section 82 of the Extradition Act because of the passage of time;

• Extradition is barred because it is being sough for the extraneous considerations mentioned in section 81 of the Extradition Act. These include the suspect’s political opinions;

• Extradition is barred by section 87 of the Extradition Act because it would breach the human rights convention by violating article 6 (the right to a fair trial); article 7 (by exposing Assange to a novel and unforeseeable extension of US law); and article 10 (freedom of expression). The judge concluded that she did not need to decide an argument that extradition would expose Assange to inhuman or degrading treatment or punishment contrary to article 3 of the convention, given her conclusion on oppressiveness;

• The extradition request is an abuse of process because it proceeds on a misrepresentation of the facts and because the prosecution is being pursued for an ulterior political motive and is not brought in good faith.

Has Assange left it too late to reopen these arguments? I think not. It seems to have been accepted by all concerned that Assange could not “cross-appeal” while the High Court was considering the US appeal.

An appeal to the High Court may be on a question of law or of fact. But under an amendment to section 103(4) of the Extradition Act made in 2015, leave to appeal is required first. That provides a filter: unmeritorious cases may be dismissed without a full hearing.

In any case, Assange’s appeal would not be heard by the High Court until the home secretary had decided to extradite him. If extradition was refused, there would be no need for an appeal.

Julian Assange has been contributing page after page to extradition law textbooks for more than 11 years now. I suspect there are still a few more chapters left to be written.

Update: the High Court chose option 2 above. Burnett and Holroyde certified “a single point of law, namely in what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings”.