THE GOVERNMENT OF THE UNITED STATES OF AMERICA v JULIAN PAUL ASSANGE

A diplomatic assurance first offered on an extradition appeal is an issue, rather than evidence, for the purposes of section 106 of the Extradition Act 2003. A court may receive such an assurance at any stage. It should consider delay, tactical conduct and good faith, but lateness alone does not justify refusing it.

Solemn assurances given by a requesting government bind the officials responsible for the requested person’s case. Where reliable assurances remove the specific detention conditions which founded a section 91 finding that extradition would create an unmanageable suicide risk, the appeal court may conclude that the relevant question should have been decided differently, quash the discharge and remit the case for the statutory next step.

The United States appealed under section 105 of the Extradition Act 2003 against District Judge Baraitser’s order of 4 January 2021 discharging Julian Assange from a request for extradition to face 18 charges concerning the obtaining and publication of classified material.

The District Judge rejected the other bars relied on by the defence but held that extradition would be oppressive under section 91 because Mr Assange’s mental condition, combined with a real risk of detention under special administrative measures or at ADX Florence, created a substantial risk that he would commit suicide.

The appeal challenged that conclusion and the treatment of psychiatric evidence. The United States also offered post-hearing diplomatic assurances that Mr Assange would not be subjected to special administrative measures or detained at ADX, save for future qualifying conduct, and would receive appropriate clinical and psychological treatment. The central issue was whether those assurances could be received and altered the section 91 assessment.

1. Appeal allowed on grounds 2 and 5. A diplomatic note is a statement of the requesting state’s intended future conduct, not evidence within section 106(5)(a) of the Extradition Act 2003. Its offer on appeal is nevertheless an issue for section 106(5). The court could therefore receive and assess the assurances.

2. A court may consider assurances at first instance or on appeal. It should examine why they were offered late, whether they could practicably have been offered earlier, and whether delay was tactical or in bad faith. But a refusal based solely on lateness could defeat the public interest in extradition and create needless duplication. The District Judge should, after the decisive concerns had crystallised, have allowed the United States to consider giving assurances.

3. The assurances were solemn governmental undertakings binding on present and future officials and prosecutors with delegated authority. They excluded detention under special administrative measures and at ADX Florence, subject only to Mr Assange’s future conduct meeting the stated conditions. They also provided for appropriate clinical and psychological treatment and United States consent to a transfer application to Australia after conviction. There was no evidential basis to doubt the United States’ good faith or the reliability of those assurances.

4. The District Judge’s section 91 conclusion was founded specifically on the real risk of the most restrictive conditions under special administrative measures and/or at ADX Florence. It was not founded on extradition in itself or on less restrictive forms of detention. Since the assurances removed that risk, the District Judge would have answered the relevant question differently. The statutory conditions for allowing the appeal were met.

5. The court nevertheless rejected grounds 1, 3 and 4. The District Judge had correctly applied the suicide-risk principles in Turner v United States [2012] EWHC 2426 (Admin). Professor Kopelman’s reports had misleadingly obscured material facts and his declaration of completeness was untrue. That conduct breached an expert’s duty. However, admissibility had not been challenged below, the question was one of weight, and it remained open to the District Judge to accept his evidence in light of the whole body of evidence, including Dr Deeley’s evidence.

6. No separate Article 3 issue required remittal because the assurances answered the conditions concern. The District Judge had also determined and rejected the abuse arguments. The order discharging Mr Assange was quashed. The case was remitted to Westminster Magistrates’ Court with a direction to send it to the Secretary of State, and Mr Assange was remanded in custody.

• High Court (Administrative Court) — the United States’ appeal was allowed. The order discharging Mr Assange was quashed and the case was remitted to Westminster Magistrates’ Court with a direction to send it to the Secretary of State: [2021] EWHC 3313 (Admin).
• Westminster Magistrates’ Court — on 4 January 2021 District Judge Baraitser discharged Mr Assange under section 91 of the Extradition Act 2003, finding extradition oppressive by reason of his mental condition. She rejected the other grounds resisting extradition.