(London, U.K.) British High Court judges granted WikiLeaks publisher Julian Assange leave to appeal his extradition case against the United States on Monday.
It follows a March hearing in which the judges — Dame Victoria Sharp, who is President of the King’s Bench Division, and Justice Jeremy Johnson — reserved the right to make their ruling on whether Assange can appeal pending new assurances from the government of the United States.
Those assurances were provided by the U.S. in April and stipulated, by way of a diplomatic note to the U.K. government, that “if extradited, Assange will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States.”
They also stated that: “A sentence of death will neither be sought nor imposed on Assange,” later adding that: “the United States assures that he will not be tried for a death-eligible offence.”
In opening legal arguments on Monday, Edward Fitzgerald KC, on behalf of Assange, said that with respect to the death-penalty assurances, that his team accepted that “the U.S. has provided an unambiguous promise not to charge any capital offence,” adding that the assurances provided in this respect were “adequate.”
However, with respect to U.S. assurances on whether Assange, as an Australian citizen, would be entitled to First Amendment protections and whether he would be discriminated upon by basis of his nationality, Fitzgerald said “the position is completely different.”
Fitzgerald stressed that the assurances given in this respect did not allay the court’s concerns, pointing to how the statement said Assange can “raise and to seek to rely upon” the First Amendment, but made no mention of whether such arguments would be successful.
Fitzgerald then pointed to cases where U.S. courts ruled that non-U.S. citizens are in fact not entitled to constitutional protections, as well as cases where the executive branch of the U.S. government provided assurances that were not upheld by U.S. courts, making the argument that the judiciary is an independent branch of government that had leeway to come to its own judgements.
In response to Assange’s lawyers, James Lewis KC, on behalf of the U.S., told the court not to be “beguiled by the attractive and simplistic approach” taken by the opposition.
Lewis laid out the history of Section 81(b) of U.K. Extradition Act of 2003 that bars extraditions in cases where the requested individual is being discriminated upon by reason of their race, religion, nationality, gender, sexual orientation or political opinions, arguing this was an anti-discrimination clause in which the requested person was required to show they were being prosecuted or persecuted specifically because of the “imbued characteristic” in order for the extradition to be prevented.
Lewis argued that had Assange been a U.S. citizen, he would still not be able to rely on First Amendment protections because as a matter of law, his publishing of national defence information would still be prosecutable.
“The assurance does what it’s supposed to do,” Lewis said. “It assures that he will not be prejudiced at trial or sentencing in the defences he raises by reason of his nationality.”
After hearing the arguments, the judges were not required to rule on the points of law at this stage — only whether there was enough substance for them to be further debated at an appeal. They found that this was the case.
In delivering a ruling after a short recess, Dame Sharp said: “We have carefully considered the submissions made in writing and orally.
“First, in respect of the appeal on Section 103 of the Extradition Act of 2003, we have decided to give leave appeal on grounds four and five [First Amendment protections and discrimination on basis of nationality] for all the charges in the second superseding indictment.
“Secondly, the renewed application for leave to appeal under Section 108 of the Extradition Act of 2003 [separate appeal against U.K. Secretary of State] is refused.”
The judge gave both sets of lawyers until 2pm on May 24 to make their renewed filings, as well as a draft appeal order to be agreed by both parties. If the lawyers could not agree, they were instructed to set out their differences to the court by the same deadline.
The case continues.
Read the legal submissions: