By Joe Lauria / Consortium News
The High Court of England and Wales on Monday in essence allowed Julian Assange, the imprisoned WikiLeaks publisher, the right to appeal at the U.K. Supreme Court last month’s High Court judgement permitting Assange’s extradition to the United States.
The High Court technically refused to allow an appeal to the Supreme Court, but left it up to that court to determine for itself whether it will grant permission to consider one legal issue.
“We certify a single point of law … 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,” the High Court said in an appearance that lasted less than a minute. That refers to whether the United States was legally permitted to provide assurances to the High Court after it had failed to do so during the district court’s hearing of Assange’s extradition case in September 2020.
On Dec. 10, the High Court ruled that Assange’s extradition could go ahead, vacating the district court’s decision that Assange was too suicidal and U.S. prisons to harsh to send him there. District Judge Vanessa Baraitser ruled in January 2021 that under article 95 of the U.S.-U.K. extradition treaty it would be oppressive to do so.
The High Court did not disagree with the substance of that ruling. However it accepted U.S. “assurances” that it would not put Assange under the harshest incarceration regime, namely Special Administrative Measures (SAMS) and that he would receive adequate physical and mental health care. On the basis of those assurances alone the High Court overturned Baraitser’s ruling, clearing the way for extradition.
But Assange’s lawyers argued before the High Court that it should not have accepted the assurances because they were made after the district judge had ruled not to extradite.
However, the High Court in December rejected the defense’s argument. “The court rejected various criticism argued on Mr. Assange’s behalf …that the assurances …were not sufficient,” said Lord Justice Timothy Holroyde.
Siding with the United States, he read:
“For the reasons given in the judgment which is today handed down, the court allowed the appeal on the grounds that .. a. the DJ [District Judge], having decided that the threshold for discharge under section 91 of the Extradition Act 2003 was met, ought to have notified the USA of her provisional view, to afford it the opportunity to offer assurances to the court; and b. the USA has now provided the United Kingdom with a package of assurances which respond to the DJ’s specific findings.”
“In our view, a court hearing an extradition case, whether at first instance or on appeal, has the power to receive and consider assurances whenever they are offered by a requesting state,” the High Court judgment said.
It said further:
“An offer of assurances in an extradition case is a solemn matter, requiring careful consideration by the requesting state of its willingness to give specific undertakings to another state. It would not be appropriate to require that to be done on a contingent or hypothetical basis; and we doubt the practicability of such an approach. We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage.”
The High Court also tried to justify why the U.S. waited until after the extradition hearing in September 2020 to make its assurances. “We observe that the decision that all closing submissions should be made in writing, in a case in which the arguments had ranged far and wide over many days of hearing, may well have contributed to the difficulty faced by the USA in offering suitable assurances any earlier than it did,” the court said.
It will now be up to the Supreme Court, if it accepts the appeal, to decide whether the U.S. could have legally made its assurances after Baraitser had decided in Assange’s favor. Assange has 14 days to apply to the Supreme Court to hear his case.
Even if the High Court had completely denied Assange’s right to appeal to the Supreme Court Assange, he would still have been free to apply to the highest court directly for the right to appeal. The court’s website says: “An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to The Supreme Court. An application is made by filing an application for permission to appeal.”
If the Supreme Court takes the case its decision could set a precedent on the matter of whether government assurances must be filed with the court of first instance before its judgement.