A Win for One? The impact of USA v Assange on UK extradition processes
District Judge Vanessa Baraitser’s ruling of 4 January 2021 in USA v Julian Assange has, for now at least, blocked the United States Government’s request for the extradition of Julian Assange on espionage and computer hacking conspiracy charges. Extradition was denied on the sole basis that it would be oppressive because of the threat to Assange’s mental health, to the point that he may commit suicide, if detained in a strict custodial setting in the US. This is a highly fact-specific finding which, while seemingly reflecting the English courts’ ongoing concern with the treatment of those with mental health conditions in US “supermax” prisons, may ultimately have limited broader significance for extradition cases in the UK and US.
The Court’s findings otherwise favoured extradition, holding that the criminal charges against Assange were not improperly motivated by US political considerations and that Assange’s activities went outside the scope of responsible investigative journalism practices, which would be more likely to be protected by rights to freedom of expression. Assange was refused bail on flight risk grounds and remains detained in Belmarsh prison awaiting the outcome of an appeal by the US.
The US has requested the extradition of Assange, who has been held in the UK’s Belmarsh prison since his arrest in April 2019, on 17 charges under the US Espionage Act 1917 and one charge under the US Computer Fraud and Abuse Act 1986. The charges carry a combined potential sentence of 175 years imprisonment and relate to WikiLeaks’ publication in 2010 of classified documents concerning US military conduct in Iraq and Afghanistan, obtained by Chelsea Manning.
The Westminster Magistrates Court’s ruling follows multiple rounds of extradition hearings conducted throughout 2019 and 2020, including four weeks of evidentiary hearings held in September 2020, in which the Court heard witness evidence from medical experts, journalists and those familiar with the US' prison system.
The Court ordered Assange’s discharge on the grounds that extradition to the US would be oppressive under section 91(3) of the UK’s Extradition Act 2003 (the “Extradition Act”), given his mental condition. Judge Baraitser considered that the stricter custodial arrangements Assange would face in the US - he would probably be held in a “supermax” federal prison given his status as a national security risk - would be likely to lead to a further deterioration in Assange's mental health, possibly causing him to commit suicide.
When considering the other conditions necessary for extradition, however, the Court found that the procedural requirements for extradition had been met, other statutory bars to extradition did not apply and extradition was compatible with Assange’s human rights.
The Court found that the charges faced by Assange were “extradition offences”, constituting an offence in the UK punishable by at least 12 months’ imprisonment if committed here. Emphasis was placed on the links between the charges brought against Assange and the clear criminality of Ms Manning's actions in obtaining and disclosing materials harmful to US interests in light of the broad, equivalent UK Official Secrets Act prohibitions on such disclosure.
The Court referred to Assange's "broad conspiracy with Ms Manning […] to commit computer intrusion" and his aiding and abetting of Ms Manning in obtaining, and then disclosing, these documents to him. In this regard the Court found that Assange was not merely encouraging or engaging a whistle-blower under orthodox journalistic principles but rather was actively encouraging and facilitating hacking activities, the clearest example of which was assisting Ms Manning to break encryption of a US government document.
Statutory bars to extradition
Arguments that (i) extradition was improperly motivated by political considerations in the US and therefore barred, or (ii) that extradition was barred by the passage of time, under sections 81 and 84 respectively of the Extradition Act, were rejected. Judge Baraitser found in relation to (i) that federal prosecutors had been acting in good faith in bringing charges against Assange and there was insufficient evidence of political pressure having influenced the timing of the charges. As to (ii), the Court held that the investigation period had been lengthened while Assange remained out of reach of investigating authorities while in the Ecuadorian embassy and that the defence had not established injustice or prejudice from the delay.
The Court considered that extradition was compatible with Assange’s rights to a fair hearing (Article 6 of the European Convention on Human Rights (“ECHR”)) and the prohibition against punishment without law (Article 7 ECHR), on the basis that certain procedural guarantees and protections in the US Constitution would operate to protect these rights.
Rejecting Assange’s claim that extradition was incompatible with the right to freedom of expression (Article 10 ECHR), the Court emphasised the elements of Assange's conduct which moved outside the principles of responsible journalism - in particular, publishing unredacted source information and indiscriminately "dumping" documents. In this respect, Judge Baraitser suggested “free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed”. Whilst Assange’s Article 10 rights were engaged, they had been justifiably limited in the interests of national security under Article 10(2) ECHR.
Findings as to Assange’s mental health
The Court suggested that Mr Assange’s mental health issues created a "single minded determination" which would render ordinary suicide prevention measures ineffective in the US.
This is clearly a fact-specific finding which may have limited broader significance for extradition cases in the UK and US. This approach does, however, align with the High Court’s reasoning in Love v USA (2018) EWHC 172. Lauri Love was charged with hacking the Federal Reserve, US army, Department of Defence, NASA and the FBI. However, the High Court found that his extradition to the US would be oppressive due to the increased risk of suicide in a US custodial setting. Similarly, the then-Home Secretary, Theresa May, blocked the extradition of Gary McKinnon to the US in 2012 on charges related to the hacking of US military and NASA computers (although this was on the basis of incompatibility with McKinnon's human rights, rather than that extradition would be oppressive).
The decision may therefore reflect English courts’ continued, broader concern with how the US would treat suspects with documented psychological health issues, including thoughts of self-harm. So long as a disparity remains between detention conditions in the US and UK, this trend could be seen more frequently in extradition cases in the future.
Scope of the UK Official Secrets Act
While it is worth noting the Court's examination of relevant provisions of the UK Official Secrets Act in determining whether Assange’s conduct would constitute an offence punishable in the UK, it is important to contextualise such comments. The provisions were considered as part of an assessment of the dual criminality of Mr Assange's behaviour, i.e. as a preliminary consideration in an extradition hearing rather than as part of a judgment delivered following a criminal trial. Whether provisions of the UK Official Secrets Act are similarly engaged in future extradition cases will turn on the relevant foreign criminal laws in issue and the individual's specific conduct.
The US Government has lodged an application for permission to appeal to the High Court. If the High Court hears and grants the appeal, the case will be returned to the District Judge for a fresh decision to be made. Assange is expected to remain detained in Belmarsh prison until the appeal is heard.