USA v Assange: Advantage USA?
By Ravi Nayyar
Introduction
The bid of the United States of America to extradite Julian Assange from the United Kingdom ‘on charges of conspiracy to obtain, receive, and disclose national defence information, conspiracy to commit computer intrusion, and unauthorised obtaining and disclosure of national defence information’ has certainly captured the world’s attention.
The extradition proceedings, governed by the Extradition Act 2003 (UK) (‘the Act’), represent a highly charged legal saga, even though Baraitser DJ, deciding the matter at first instance in January 2021, discharged Assange under section 91 of the Act. On one hand, the proceedings have been lambasted as an attack on free speech and a free press; contrary to what Baraitser DJ held — at paragraphs [99], [102], [131], [277] of Her Honour’s judgement — at first instance when rejecting those very arguments advanced on Assange’s behalf. On the other hand, Assange’s critics (with whom Her Honour agreed) have held firm that what he is alleged to have done was contrary to the relevant provisions of the criminal law.
The proceedings were seen in a new light after a Yahoo! News article, based on interviews with 30 former US Government (‘USG’) officials and not proven in court, did the rounds in late September. The article alleged that, in 2017, the Central Intelligence Agency and the higher levels of the USG were plotting to kidnap or kill Assange while he was in London. The plot is alleged to have not been approved and experts considered that it would have contravened US law if carried out. I looked at the implications of the alleged plot for Assange’s extradition proceedings in a recent Twitter thread.
The thing is, folks, I read that article and composed that thread before reading the judgement from the High Court, comprising Holroyde LJ and Farbey J (who agreed with Holroyde LJ in all respects), from August 2021 (‘the August Judgement’). The August Judgement considered the USA’s application for leave to appeal Assange’s discharge in the High Court on two grounds additional to the three on which it already received leave to appeal (more on that coming up).
And with the advantage of having read the August Judgement, I consider that the USA may have an advantage going into the actual appeal hearing.
What’s the August Judgement about?
The USA launched its appeal under section 105 of the Act (Figure 1), given that Baraitser DJ discharged Assange under section 91 of the Act (Figure 2).
The USA applied for leave to appeal on five grounds, with the quoted text extracted from paragraphs [4]-[5] of the August Judgement: (emphasis added)
Ground 1: The DJ [Baraitser DJ] made errors of law in her application of the test under s.91 of the 2003 Act. Had she applied the test correctly she would not have discharged the respondent.
Ground 2: Having decided that the threshold for discharge under s.91 was met, the DJ ought to have notified the appellant of her provisional view so as to afford the appellant the opportunity of offering assurances to the court.
Ground 3: Having concluded that Professor Kopelman had misled her, the DJ ought to have ruled that his evidence was inadmissible. Alternatively, if it could be said that his lack of independence went to weight rather than admissibility, the DJ ought to have attributed no, or far less, weight than she did to his opinions as to the severity of the respondent’s mental condition (a fortiori when two additional and wholly independent experts were of a different opinion). Had she not admitted that evidence, or had she attributed appropriate weight to it, the DJ would not have discharged the respondent pursuant to s.91.
Ground 4: The DJ erred in her overall assessment of the evidence going to the risk of suicide.
Ground 5: The United States have provided the United Kingdom with a package of assurances which are responsive to the DJ’s specific findings, including in particular an assurance relating to the conditions under which the respondent will be detained if extradited, and an assurance that the United States will consent to the respondent being transferred to Australia to serve there any custodial sentence imposed upon him.
In July, Swift J of the High Court considered the USA’s leave application on the papers, that is, based on written submissions by the parties only and without a hearing.
His Honour granted leave for the USA to appeal on Grounds 1, 2 and 5.
The USA, however, wanted leave to appeal on each of the five grounds. So it renewed its application for leave to appeal in relation to Grounds 3 and 4.
This is the crux of the August Judgement: ‘whether the appellant [the USA] should also be permitted to argue either or both of grounds 3 and 4 at that [High Court appeal] hearing’.
The August Judgement is only considering the USA’s leave application. Whatever grounds of appeal are green-lit, they have to be fully argued in the actual appeal hearing.
Hence, the test applied by Holroyde LJ, with whom Farbey J agreed, in relation to Grounds 3 and 4 is ‘whether either or both of those grounds are reasonably arguable’ per The Criminal Procedure Rules 2020 (UK) r 50.17(4)(b) (Figure 3).
Let’s now look at the court’s treatment of the two grounds of appeal.
Ground 3: Professor Kopelman’s Expert Evidence
To recap, Ground 3 concerned the admissibility of Professor Kopelman’s expert evidence or otherwise the weight which Baraitser DJ should have given, if any, to it when deciding on Assange’s mental state. The USA contended that Assange would not have been discharged if Baraitser DJ had not admitted, or had given the correct weight to, that evidence.
So what was Professor Kopelman’s expert evidence?
Let’s break it down as follows:
- a report dated 17 December 2019 (‘the 2019 Report’); and
- a report dated 13 August 2020 (‘the 2020 Report’).
2019 Report
Professor Kopelman’s report, provided a (at paragraph [10] of the August Judgement, emphasis added):
detailed account of the respondent’s personal and family history, including references to the respondent’s three children by previous relationships. He gave a detailed account of the conditions under which the respondent had lived at the Ecuadorian Embassy.
At paragraph [10], for instance, the report mentioned that Assange told Professor Kopelman that ‘after March 2018 he was “effectively in solitary confinement for 60 hours a week” in the Embassy’.
At paragraph [10], that report did not identify:
- Ms Stella Moris as Assange’s current partner;
- the ages of the two children she has with Assange; and
- the fact that those children were conceived in the Ecuadorian Embassy.
2020 Report
This report referred to Assange receiving visits from his partner and their two children, and to Moris’ public disclosure that she was Assange’s partner.
Crucially, the report did not, however, disclose that Professor Kopelman knew the following when he wrote the 2019 report:
- that Moris was Assange’s partner; and
- the identity of Assange and Moris’s two children, when he wrote his first report.
Ruling of Baraitser DJ
Despite finding (at paragraph [330] of Her Honour’s judgement, emphasis added) that ‘Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court’, Baraitser DJ accepted his evidence, considering his decision to be ‘an understandable human response to Ms Moris’s predicament’, borne from a desire to protect Moris’s privacy.
Baraitser DJ rejected the USA’s submissions that Professor Kopelman was not impartial and preferred his evidence (along with that of Dr Deeley, another witness called on Assange’s behalf) over that of the USA’s expert witness.
Ruling of the High Court
At paragraph [24] of the August Judgement, Holroyde LJ states the generally ‘cautious approach’ of the court ‘ when considering challenges to findings of fact, including factual assessments, made by the judge below’.
His Honour also points (at paragraph [24], emphasis added) to the rarity of an appellate court having to ‘consider the position of an expert witness whose written evidence has been found to be misleading in material respects, but whose opinion has nonetheless been accepted by the court below’.
Nonetheless, in signalling His Honour’s judgement, Holroyde LJ highlights (at paragraph [24], emphasis added) that the above ‘general approach does not operate as a complete bar to this court finding that the judge below was wrong in her assessment of the evidence’.
And that it is ‘at least arguable’ that the present case invites such a finding.
Why?
2 reasons.
The first one stems from Professor Kopelman’s status as an expert witness who is subject to the duties of expert witnesses.
Those duties are captured by a declaration which he attached to the 2019 Report, per the applicable version of The Criminal Procedure Rules 2020 (UK) r 19.4(j) at the time (Figure 4 is the version as at writing this article).
Paragraph [25] of the August Judgement extracts part of this declaration (Figure 5).
Note the references in the declaration to (per Figure 5):
- the expert helping the court ‘achieve the overriding objective’ via ‘independent assistance’;
- the expert being ‘complete’ in composing their report; and
- the expert not having ‘excluded anything’ suggested by others.
The ‘overriding objective’ referred to by paragraph (i) in Figure 5 is defined by The Criminal Procedure Rules 2020 (UK) r 1.1 (Figure 6).
As the name of the rule suggests, it goes to the very heart of the UK criminal justice system or indeed that of any society built on the rule of law.
At paragraph [25] of the August Judgement, Holroyde LJ hones in on how Professor Kopelman ‘should have been aware’ of how Assange could apply to the court under (the relevant version of the) The Criminal Justice Rules 2020 (UK) r 19.9 to exclude information from the expert evidence. Instead, Professor Kopelman ‘omit[ted]’ his knowledge of the Assange-Moris relationship and their children ‘when expressing his opinion on matters such as the effects of "solitary confinement" in the Embassy and the risk of suicide’ (at paragraph [25], emphasis added).
Hence, Professor Kopelman was held to have breached his declaration as an expert witness. Baraitser DJ was held to have ‘erred in not taking that into account in her assessment of his reliability’ (at paragraph [25]).
The second reason why Baraitser DJ was held to have erred in assessing Professor Kopelman’s evidence was Her Honour’s conclusion that said omission could be justified as ‘an understandable human response to Ms Moris’ predicament’ (at paragraph [330] of Her Honour’s judgement).
Holroyde LJ rebuffed this view in stressing the ‘importance to the administration of justice of a court being able to rely upon the impartiality of an expert witness’ (at paragraph [26] of the August Judgement). There ought to have been ‘more detailed and critical consideration’ as to why Professor Kopelman presented a report ‘which contained misleading statements and from which there were significant omissions’ (at paragraph [26], emphasis added).
Hence, Holroyde LJ (at paragraph [27]), with whom Farbey J agreed, granted leave to the USA to appeal on Ground 3, that too, to argue both the issue of the weight which ought to have been given to Professor Kopelman’s evidence and its admissibility (though His Honour personally viewed the former as being engaged more than the latter here).
This is a crucial preliminary win for the USA because Baraitser DJ relied on Professor Kopelman’s evidence, along with that of Dr Deeley, to find that Assange’s psychiatric condition and his subsequent suicide risk were such that he should be discharged under section 91 of the Act (at paragraphs [355]-[358], [362]-[363] of Her Honour’s judgement).
Professor Kopelman’s expert evidence was arguably a big part of why Assange won at first instance.
Ground 4: Suicide Risk Assessment
To recap, the USA contended that it should be granted leave to appeal on the basis that Baraitser DJ ‘erred in her overall assessment of the evidence going to the risk of suicide’ (at paragraph [5] of the August Judgement).
Holroyde LJ, with whom Farbey J agreed, granted leave to the USA to appeal on Ground 4.
This was because of His Honour’s views that:
- Ground 4 ‘has to be seen in the context of Swift J’s grant of leave to appeal on ground 1 [incorrect application of section 91 of the Act]' (at paragraph [28] of the August Judgement); and
- Ground 3 ought to be allowed as a ground of appeal.
Namely, if the USA’s appeal is allowed on the basis of Grounds 3 and/or 4, it should naturally be allowed to argue its case regarding Baraitser DJ’s ‘overall assessment of the expert evidence’ (at paragraph [28], even though His Honour questioned what unique value Ground 4 adds).
Again, this is key because Baraitser DJ’s assessment of the expert evidence on Assange’s suicide risk was, essentially, why Her Honour held that extradition would be ‘oppressive’ within the meaning of section 91 of the Act (at paragraphs [355]-[362] of Her Honour’s judgement).
Where to from Here?
The USA can appeal Baraitser DJ’s decision on all of Grounds 1–5.
As a general matter, note that the USA’s appeal is separate from an appeal which Assange could make under section 103 of the Act — should his case be sent to the Secretary of State for the Home Department under section 92 of the Act — pending the outcome of the USA’s appeal.
As above, the psychiatric expert evidence for Assange was the nub of why section 91 of the Act was held to be engaged at first instance as a bar to Assange’s extradition. If the USA can actually challenge the very admissibility of Professor Kopelman’s expert evidence, or otherwise the weight which it was accorded at first instance, that would arguably represent a serious blow to Assange’s case.
This undermines my own earlier suggestion that Assange could have used the alleged USG plot to kidnap or kill him to ‘reinforce’ the gravity of the psychiatric evidence which got him the win at first instance. Because what can the defence reinforce if it is no longer there or afforded less weight, if any?
His extradition was barred on health grounds, not human rights grounds (at paragraphs [242], [266], [277], [363] of Baraitser DJ’s judgement; though Assange’s European Convention of Human Rights art 3 ‘inhuman and degrading treatment’ argument was not considered at first instance because Baraitser DJ decided the case on mental health grounds under section 91 anyway, at paragraph [364] of Her Honour’s judgement).
If the health grounds are hit for six by the USA, then that’s the game for the USA, at least in the context of its appeal under section 105 of the Act, surely?
Of course, Assange could adduce new expert evidence, perhaps a psychiatric evaluation of his mental state after learning of the alleged aforementioned plot. But then again, of what potency would it be if the USA can successfully argue, both through Ground 3 and its own expert evidence, that Assange does not pose the level of suicide risk which Baraitser DJ’s assessment of the expert evidence suggested at first instance?
And note that that would be in addition to the USA being allowed to appeal on Ground 5.
That it has made assurances to the UK that are tailored to Baraitser DJ’s findings, the very findings that informed Assange’s discharge in the first place.
Among those assurances are two pertinent ones flagged by Ground 5 (at paragraph [4] of the August Judgement, emphasis added):
- ‘an assurance relating to the conditions under which the respondent [Assange] will be detained if extradited’; and
- ‘an assurance that the United States will consent to the respondent being transferred to Australia to serve there any custodial sentence imposed upon him’.
These two are crucial for the USA’s case, given that Baraitser DJ grounded her assessment of the expert evidence on Assange’s suicide risk in how his mental state would be affected by the imposition of Special Administrative Measures in USA prison facilities that would house him before and after his trial if he were extradited (at paragraphs [295], [355]-[358] of Her Honour’s judgement).
The USA’s assurance that Assange could serve any jail term in Australia seems an especially smart one to make in light of Her Honour’s concern about Assange’s likely experience in the US penal system. As a general note, this assurance particularly underscores how much the USA seeks Assange’s extradition to face trial under American law in an American court, even if that means he would not serve a jail sentence in the USA.
These assurances remind me of what I raised in my piece on the first instance decision:
Could they [the USA] win an appeal by making a few adjustments to the promised manner of Assange’s prison conditions, should he be extradited, so as to remove the issue under subsection 91(2) of the Extradition Act 2003 (UK)?
I will not take credit, of course, for the strategy of the USA.
Either way, watch this space, come 27 October 2021, the first of estimated two days of the hearing of the USA’s appeal (at paragraph [32] of the August Judgement).
Conclusion
As a law graduand when I wrote this article, I would prefer that how the law applies to Assange’s alleged conduct be given due attention and analysed in due detail by qualified legal journalists for the world press. I composed this article in that spirit.
I frown at broad ‘hot takes’ peppering newspaper columns that lack a nuanced exploration of the legal equities, to put it diplomatically. As a student of the law, I am tired of hearing again and again the very human rights arguments that were rejected at first instance (see above).
But hey, that’s me.
Bringing it all together, do I reckon the USA has a chance on appeal?
Yes.
Do I reckon the USA’s lawyers will view the August Judgement as an august judgement indeed while they plan for the appeal hearing?
Absolutely.
