[News:] Assange High Court appeal – U.S. granted appeal on all grounds, overturning earlier ruling

(London, U.K.) The government of the United States has been granted permission to appeal the decision refusing Julian Assange’s extradition on all of its five submitted grounds, overturning an earlier ruling which had limited it to three.

On July 7, Justice Jonathan Swift ruled that the prosecution on behalf of the U.S. could challenge District Judge Vanessa Baraitser’s decision not to extradite Assange on the basis it would be “unjust or oppressive by reason of a person’s health” — namely that his recurrent depressive disorder, accompanied by psychotic features, in addition to his diagnosis of Asperger’s spectrum disorder is sufficient to create a substantial risk of suicide if extradited.

Justice Swift ruled that the prosecution was able to challenge whether Baraitser correctly applied the test under Section 91 of the U.K.’s Extradition Act of 2003 to make such a determination, and that given she had made such a determination, whether she should have notified the government of the United States so assurances regarding potential prison conditions could have been given.

The Justice, however, refused the prosecution from making arguments that defence witness professor Michael Kopelman — the principal psychiatric expert tasked with evaluating Assange — actively misled the court and, as such, from arguing that his evidence should be ruled inadmissible or at least given far less weight. He also prevented arguments as to whether Baraitser erred in her overall assessment of the risk of suicide.

In Wednesday’s hearing (August 11) — before Lord Justice Timothy Holroyde and Justice Dame Judith Farbey in court room four of the Royal Courts of Justice — those two rulings were overturned.

It followed arguments from Clair Dobbin QC, on behalf of the U.S., that professor Kopelman, in writing a report that obfuscated that Assange had two young children with his partner Stella Moris while in the Ecuadorean embassy in London, subjugated his duty to the court as an expert witness to provide accurate and complete information by seeking to protect Assange’s family.

That decision, as outlined by Edward Fitzgerald QC on behalf of Assange, came after Moris had strong reservations against unmasking her identity as Assange’s partner and mother to his two young children, particularly as it had already been known that the U.S. was engaged in an elaborate effort to spy on Assange that included stealing babies’ nappies from the Ecuadorean embassy in order to ascertain whether the children belonged to him. This is in addition to considerations made by the U.S. to kidnap or poison the WikiLeaks publisher.

Fitzgerald explained that once Moris’s reservations were made known to Kopelman, he became concerned about the privacy and safety of Assange’s family. As such, he consulted with Assange’s instructing solicitor, Gareth Peirce, who advised not to disclose the information, pending further legal advice.

Fitzgerald added that it was “laughable” that the defence gained any tactical advantage from this omission, especially as Kopelman later made a further report which identified Assange’s family and the steps that had previously been taken to conceal their identity, and was supported by a statement from Peirce to the same effect — all of which was accepted by District Judge Baraitser months before any evidence was heard. Subsequently, when Kopelman took the stand, the prosecution further chose to not cross-examine him on these points.

“The District Judge [Baraitser] is fully aware of the criticism, and indeed endorses it, that there was a misleading statement, but has heard a statement which was not challenged by the prosecution and, in the light of that explanation, and in the light of the overall evidence — the two reports and the oral evidence heard — she concluded that he had not failed in his duty to the court,” Fitzgerald said.

He pointed to Baraitser’s ruling from January, in which she stated: “In my judgment, professor Kopelman’s decision to conceal [Assange and Moris’s] relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Morris’s predicament.”

It went on to add: “In short, I found Professor Kopelman’s opinion to be impartial and dispassionate; I was given no reason to doubt his motives or the reliability of his evidence.”

In making their ruling, it is important to note that Lord Justice Holroyde and Justice Farbey did not need to establish whether Baraitser had in fact erred in this ruling, and whether this was relevant on the overall assessment of the risk of suicide, but whether this would be “arguable” before High Court judges at a later date.

Lord Justice Holroyde said: “In considering ground three, I bear very much in mind that the District Judge saw and heard from all the expert witnesses and made her assessment of professor Kopelman with that advantage, which an appellate court cannot share.

“I accept that, in general, this court rightly takes a cautious approach when considering the findings of fact. There may consider challenges to findings of fact, including assessments made by the judge below.

“It is however, very unusual for an appellate court to have to consider the position of an expert witness whose written evidence have been found to be misleading, but whose opinion has nonetheless been accepted by the court below.

“The general approach does not operate as a complete bar for this court to find that the judge below was wrong in her assessment of the evidence. I have come to the conclusion that it is here at least arguable that the present case is one in which such a power may operate.”

He said a more critical consideration of professor Kopelman’s evidence should have been given, adding that: “For those reasons, I respectfully disagree with Mr Justice Swift. I would grant the appeal on ground three. It will be for the court in the appeal hearing to determine the admissibility of the initial evidence on which the appellant seeks to revive.”

He also added that given this judgement on ground three, and that permission to appeal on ground one has already been given, if the prosecution is successful in overturning these points on appeal, it is arguable that the fourth ground should be taken into consideration, namely that District Judge Baraitser erred in her overall assessment of the risk of suicide.

The substantive appeal will now take place on October 27 and 28, again at the Royal Courts of Justice, and will take Assange’s imprisonment to a minimum of two and a half years in spite of an order for discharge.

The case continues.