A British judge has given people accused by the US a “trump card” to avoid extradition by finding in favour of WikiLeaks founder Julian Assange, a court heard on 27 October.
District Judge Vanessa Baraitser ruled in January 2021 that it would be “oppressive” to send Assange for trial in the US, where he would be at high risk of suicide.
But James Lewis QC, representing the US, told a hearing at the Royal Courts of Justice that the judge had applied the wrong legal tests.
The court was initially told that Assange was too unwell to attend today’s hearing, but he joined the court by video link from Belmarsh prison in South East London some 40 minutes later.
Dressed in a white shirt, dark tie, and a black face covering, Assange spent much of the hearing sat at one end of the video room, with only his reflection visible to the prison camera.
Prosecutors told the hearing at the Royal Courts of Justice that the US government had now given now diplomatic assurances to Assange over his treatment that marked “sea change” in the case if he were extradited.
Speaking on the first day of a two-day hearing, Lewis told the court claims by Assange’s defence team that the US would violate its assurances over Assange’s treatment in the US had “no basis in fact”.
Expert witnesses had previously testified that Assange was likely to be placed under special administrative measures (SAMs) – described by witnesses as a form of solitary confinement – and held in a Supermax prison under administrative segregation with limited contact with other prisoners.
Lewis quoted evidence from US prosecutor Gordon Kromberg that prisoners placed under administrative segregation were able to speak to each other through walls and doors, and were able to associate with other prisoners.
Placement in administrative segregation has no impact on the ability of prisoners to meet their lawyers, he said.
“That alone destroys the argument about solitary confinement because he can meet at any time with his lawyers,” Lewis told the court.
Judge made errors
The district judge had wrongly interpreted Section 91 of the Extradition Act 2003 by considering the impact of extradition of Assange on his future mental health.
The correct test was whether Assange’s current mental state in the UK before extradition meant he was at risk of suicide.
“One has to be careful of not going into a crystal ball approach in deciding what may or may not happen,” Lewis told the court.
The district judge acknowledged that the US took measures to prevent suicide, but she based her decision not to extradite him on the grounds that Assange had the intellect to circumvent suicide prevention measures.
“No one who has ever been extradited from the UK to the US has ever committed suicide,” said Lewis, adding that the judge’s decision not to extradite Assange because of his capability of circumventing suicide measures becomes a “trump card”.
“The approach taken by the district judge is to erect a barrier to extradition that just can’t be met by our extradition partners,” he said.
It could never be said in UK proceedings that someone who “committed crimes of the magnitude of Assange” could not be put on trial, Lewis told the court.
Medical evidence should be dismissed
Appearing before the Lord Chief Justice, Lord Burnett of Maldon and Lord Justice Holroyde, Lewis also argued that evidence given by Assange’s principle psychiatric expert should either be found inadmissible or given little weight.
The US argued that expert witness and psychiatrist Michael Kopelman had seriously misled the court by failing to disclose Assange’s relationship with his fiancée Stella Moris in his initial report.
Moris gave “important evidence” in Kopelman’s report, but nowhere does the reader understand that she was in a relationship with Assange and the mother of his children, Lewis told the court.
Kopelman had signed a statement of truth saying that he had endeavoured to include anything in his report which might be adverse to his opinion.
That statement was “untrue”, said Lewis. “The prosecution had no idea that Ms Moris was his partner and the mother of his children until Mr Assange made a bail application and elected to deploy information about his children,” he added.
Lewis took the court through Kopelman’s oral evidence, citing examples where Assange was recorded as having interaction with fellow cell mates, exercising and watching television.
The prosecutor argued that Kopelman had left out examples recorded by prison staff that contradicted his findings that Assange had severe depression and psychotic episodes.
District judge Vanessa Baraitser had chosen to prefer Kopelman’s evidence to the evidence of other expert witnesses “without giving cogent reasons why”, said Lewis.
Speaking for Assange, Edward Fitzgerald QC said that the district judge had given a careful judgment and had set out clearly why she preferred the evidence of Kopelman to other medical experts who gave evidence.
The judge found that Kopelman had failed to disclose details on Assange’s relationship, but that nevertheless he gave impartial evidence to the court.
The judge also found that Kopelman’s actions were an “understandable human response” to being asked to keep the relationship between Assange and Moris confidential. “By September, this was a matter of history,” Fitzgerald said.
He added that the prosecution had “made a whole load of unjustifiable suggestions” that Kopelman had left out items from his report.
But the judge found that Kopelman’s review of the medial records was more compressive and fair than medical experts appearing for the prosecution. “One should respect her findings,” he said, adding that he prosecutions objections are really an attempt to re-litigate the case to achieve a different outcome.
Assange has been on suicide protection from the start of his time in prison, there have been numerous occasions where he discussed self-harm, and he called the prison Samaritans on numerous occasions.
Fitzgerald said that he accepted there were some entries in the prison notes suggesting Assange was in good spirits, but the overall impression is of a “depressed and despairing man”.
The judge has given a “whole series of reasons” why she thought the evidence of Kopelman and another defence medical expert were right.
US Assurances are not fresh evidence
Lewis, representing the US, told the court that the judge should have notified the US of her provisional view that Assange would likely be held in SAMs in the US.
He said that the prosecution’s position was there was no real risk of SAMs, but that the judge rejected the argument. “It was the finding against us that precipitated the requirement to give assurances [about Assange’s treatment in the US],” he added.
Fitzgerald said that the assurances have come very late in the day and there is no reason why they should be admitted as evidence.
The case continues.