Julian Paul Assange v Government of the United States of America & Anor

Under the Extradition Act 2003, extradition proceedings are governed by an exhaustive statutory code. An unincorporated extradition treaty does not create directly enforceable individual rights or confer an additional discretion on the court or Secretary of State.

On extradition appeals, the court reviews whether the earlier decision was wrong. Convention-rights issues are determined by the appellate court itself, but extradition is barred only where removal creates a real risk of a flagrant denial of the relevant right. Article 10 does not confer immunity on journalists or whistle-blowers from the ordinary criminal law.

A credible possibility that a foreign defendant may be denied constitutional protection because of nationality can make prejudice under section 81(b) arguable. Death-penalty and speciality protections must address charges that could be brought on the extradition facts, not merely the charges presently pleaded.

The applicant renewed applications for leave to appeal against the decision to send his extradition case to the Secretary of State and against the Secretary of State’s extradition order. The proposed extradition was sought by the United States on an indictment charging conspiracy, obtaining and disclosing national defence information, and computer intrusion.

The grounds concerned the United States–United Kingdom extradition treaty, political motivation, articles 7, 10, 6, 2 and 3 of the Convention, prejudice by reason of nationality, and inadequate speciality and death-penalty protection. The court also considered applications to adduce fresh evidence.

The central questions were whether any ground was arguable for the purposes of sections 103 or 108 of the Extradition Act 2003, and whether any concerns could be addressed by assurances.

1. Disposition. The court granted permission to amend the grounds and refused permission to adduce fresh evidence. It refused leave on grounds i), ii), iii), vi), vii) and viii). Grounds iv), v) and ix) were arguable, subject to satisfactory assurances, and the renewed application on those grounds was adjourned.
2. Statutory scheme and treaty. The Extradition Act 2003 provides an exhaustive code for the relevant extradition decisions. The unincorporated treaty did not create personal rights enforceable in domestic courts and could not be read into section 81(a). The Secretary of State had no residual power to refuse extradition for alleged treaty non-compliance.
3. Appeal and Convention rights. Sections 104 and 109 require the appellate court to decide whether the earlier decision was wrong. Where Convention rights arise under section 87, the appellate court makes its own assessment. In the extradition context, however, the applicant must show a real risk of a flagrant denial of the relevant Convention right.
4. Political opinion and article 10. Section 81(a) concerns the requesting state’s purpose, not the applicant’s motive. The judge was entitled to find that the request was made to prosecute the alleged offences rather than the applicant’s political opinions. Article 10 required a fact-sensitive balance. It did not provide journalists or whistle-blowers with immunity from ordinary criminal liability. The allegations concerning solicitation, hacking and procurement were ordinary criminal conduct, while the publication counts concerned the disclosure of human-source names and involved substantial countervailing national-security interests.
5. Nationality. The United States prosecutor stated that the prosecution might argue that foreign nationals were not entitled to First Amendment protection, at least concerning national-defence information. If that argument succeeded, the applicant might be prejudiced at trial, and potentially on sentence, by reason of nationality. The issue concerned foreign law and was properly arguable in the absence of expert evidence.
6. Fair trial and fresh evidence. Differences between United States and domestic criminal procedure did not establish unfairness or flagrancy. The evidence did not show that the indictment, jury process, plea bargaining, alleged taint or sentencing arrangements created a real risk of a flagrant denial of article 6. Fresh evidence had to be unavailable at the earlier hearing and capable of producing a different result; that test was not met.
7. Death penalty and speciality. Sections 94 and 95 operated as a potential double protection. The facts alleged could arguably sustain capital charges, and the existing assurance did not expressly prevent imposition of the death penalty. The Secretary of State’s reasoning did not address that possibility. Leave was therefore arguable on ground ix).
8. Assurances and directions. The respondents were permitted to file assurances addressing First Amendment protection, nationality prejudice, and imposition of the death penalty. If no satisfactory assurances were filed, leave would be granted on grounds iv), v) and ix); if assurances were filed, further submissions and a hearing would follow.

• Senior District Judge and Secretary of State: The applicant’s case was sent to the Secretary of State, who ordered extradition on 17 June 2022.
• High Court: Permission and leave were refused on the papers by Swift J on 6 June 2023.
• Divisional Court: The renewed applications were partly refused and partly adjourned by this judgment. Leave on three grounds depended on assurances.