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| Crown Court - Woolwich |
On 11 April 2019, Mr Julian Assange (founder of Wikileaks) was arrested for failure to surrender to bail - previous post 15 April 2019. The arrest took place at the Ecuadorean Embassy where Assange had been for 7 years. The arrest was for failure to surrender to bail contrary to the Bail Act 1976 s6(1).
Shortly after the Bail Act arrest he was also arrested
under Section 73 of the Extradition Act 2003 in respect of the request by the USA for his extradition.
On 1 May 2019 he was sentenced to 50 weeks imprisonment in respect of the failure to surrender to bail - Sentencing remarks.
Since his arrest in April 2019, Assange has been held at HM Prison Belmarsh, London.
On 14 June 2019 a date was set for the extradition hearing to be held before Westminster Magistrates' Court being the court before which extradition requests are first heard in England. In October 2019, a request by Assange's counsel for a delay was rejected.
The extradition hearing commenced on 24 February 2020 before District Judge (Magistrates' Courts) Vanessa Baraitser. The case is being heard by Westminster Magistrates' Court but the venue for the hearing was Woolwich Crown Court. (This Crown Court venue was designed as a high security courtroom and is often used for terrorism trials).
On 27 February, the case was adjourned to a 3 week hearing commencing 18 May 2020.
A timeline about the Assange extradition case is at BBC 19 November 2019.
The extradition request:
The United States Department of Justice has published information setting out the basis for their extradition request - 23 May 2019 Eighteen count superseding indictment
Treatment of Mr Assange:
The eyes of the free world are watching how the UK handles this case and, so far, unsatisfactory features have appeared.
Concerns about Assange's health are also noted by The Guardian 25 November 2019 - which reported that more than 60 doctors had written an open letter saying they fear Julian Assange’s health is so bad that Assange could die inside a top-security British jail.
There is also the report that Assange was held "in solitary" for lengthy periods - 7 News Australia - 7 January 2020. "Julian Assange has been moved out of solitary confinement in a British prison after a series of petitions by his legal team and fellow inmates, his organisation says. The Australian has been held almost incommunicado with severe restrictions on his access to visitors in Belmarsh prison near London since April as he awaits his US extradition trial set to start on February 24. Wikileaks ambassador Joseph Farrell says the 48-year-old was moved out of solitary in the medical wing into a different wing with 40 other inmates ... "
The Council of Europe's Parliamentary Assembly has stated that Julian Assange’s detention “sets a dangerous precedent for journalists”- see Debate 28 January 2020 and The Guardian 28 January.
At the extradition hearing it was stated that Assange had been handcuffed 11 times and stripped naked - The Guardian 25 February 2020 which also reported that he had his case files confiscated after the first day of his extradition hearing. Assange's lawyers complained to Judge Baraitser of interference in his ability to take part. This representation was supported by legal counsel for the US government, who said it was essential the WikiLeaks founder be given a fair hearing. The judge responded by saying that she did not have the legal power to comment or rule on Assange’s conditions but encouraged the defence team to formally raise the matter with the prison.
Another report was that Assange's cell had been searched on the eve of the extradition hearing - The Guardian 23 February. Julian Assange’s father has claimed his son was “harassed” by a prison cell search the day before his extradition hearing was planned to begin.
A further complaint is that Assange has had inadequate access to lawyers. This complaint arose in December 2019 when Assange appeared before the court by video link - The Guardian 13 December.
Representations were made at the extradition hearing that Assange be allowed to sit with his lawyers instead of being in the glass bullet-proof dock - The Guardian 26 February. Edward Fitzgerald QC, counsel for Assange, submitted that Assange was "a gentle man of an intellectual nature and there is no reason why he should not be able to sit with us and be able to communicate with us during the hearing.” James Lewis QC, for the US authorities, said he would have no problem, for example, with Assange being allowed to sit in the well of the court handcuffed to a security official. More information on this request is reported at World Socialist Website 28 February 2020 where it is noted that the submissions failed and the dock will continue to be used which will inevitably make it harder for Assange to participate fully in the hearing - e.g. by passing notes in a confidential way to his lawyers and to give instruction during the course of the proceedings.
Then there are allegations that Assange was spied on whilst he was at the Ecuadorian embassy in London. He was listened to and had his computer data scraped and that this information was sold to US intelligence agencies - The Guardian 16 December 2019.
Amnesty has urged the UK to ensure that Assange receives a fair hearing - Amnesty 27 February 2020. Amnesty expressed concern that Assange had been subjected to strip searches and led around in handcuffs and called upon the prison service to ensure that such measures are strictly necessary and
proportionate. They also raised concerns that Assange tried to address
the court saying that he could not hear the proceedings, was not able
effectively to communicate with or give his lawyers instructions, and
that he could not focus or concentrate in the secure dock due to the
medications he is taking. Amnesty expressed concern that if adequate measures are not in place for the
May hearings to ensure his effective participation then the fairness of the proceeding will be at risk.
Applicable law:
The applicable legislation is Part 2 of the Extradition Act 2003. The USA is a Category 2 country.
The Extradition Act 2003 as originally enacted was reviewed by former Lord Justice of Appeal Sir Scott Baker who reported in October 2011. (Government response). Law and Lawyers 2011.
The Act was also considered by a House of Lords Select Committee which reported in 2015 - Extradition: UK law and practice
Section 79 of the Extradition Act sets out bars to extradition. The bars are amplified in sections 80 to 83E.
Previous legislation - e.g. Extradition Act 1989 - prevented extradition if the alleged offence was "political" but this no longer appears in legislation as a bar to extradition. Interestingly, the 1989 Act prevented extradition if "the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; ..." Similar wording was retained in the Extradition Act 2003 section 80.
The 2003 legislation therefore does not contain the "political offence" bar but retains a bar where the purpose of the extradition is to punish political opinion.
Political offences:
There was argument at the extradition hearing that the offences alleged against Mr Assange were "political."
Case law arose under the previous legislation in which the courts considered the meaning of political offence. Perhaps the most notable modern case was Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] AC 931, [1973] UKHL 8
The House, agreeing with earlier authority, stated that - " ... the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international aspect"
The concept of political offence was discussed in Scott Baker's review - see para 3.29.
The problem with this argument is that the Extradition Act 2003 does not contain an extradition bar for political offences.
However, the legislation is at odds with the UK-USA Extradition Treaty itself which states in Article 4 -
The exchange at the extradition hearing between Edward Fitzgerald QC and Judge Baraitser is reported at World Socialist Website 28 February 2020 -
" - arguments continued over the definition of political offences and the bar on extradition for political offences stipulated in the Anglo-US Extradition Treaty.
The defence has argued that espionage is widely regarded as a “pure political offence”, automatically barring any extradition on these charges.
Prosecuting barrister James Lewis QC claimed in response that “there is no bright line test” for what constitutes a “pure” political offence under English law. In deciding whether an offence is political, he said, “One always has to look at the purpose of the crime.”
The test that must be applied is whether the conduct had “the object of overthrowing or changing the government or inducing it to change its policy.” According to the prosecution, what Assange is accused of “does not come within a million miles of that definition.”
Lewis claimed the question of whether the conduct alleged in the indictment of Assange constitutes a political offence is irrelevant. Restating the prosecution’s opening argument, he said that since the Extradition Act (2003) had removed the political offences exception contained in the superseded 1989 Extradition Act and the 1870 Extradition Act before it, Assange cannot claim its protection.
Directly addressing the absurdity of this legal position, defence lawyer Edward Fitzgerald QC said, “Just stepping back for a moment, we’re in a pretty strange Alice in Wonderland world… it’s a very bizarre argument…that a treaty which controls and gives rise to the request has got nothing to do with the lawfulness of the request or its pursuit.”
Contrary to the prosecution’s claims that the 2003 Act is the final word on the matter, Fitzgerald demonstrated how it had repeatedly “been shown to be far from comprehensive… parliament can never envisage all the circumstances that will arise.”
“There is a remedy” available through the rulings of the courts, said Fitzgerald, “it doesn’t come from the words of the Act… it’s read in as a principle of public international law.”
Speaking on the definition of a political offence, Fitzgerald drove home the fact that, even on the prosecution’s own terms, the allegations against Assange are expressly political.
Baraitser challenged Fitzgerald, asking why Assange’s alleged actions were seeking to induce a change in government policy and were not instead about exposing government information.
Fitzgerald answered, “The two are intimately connected… The Rules of Engagement were published to show that war crimes were being committed that breached their own Rules of Engagement.” This was, he said, “the very definition of seeking to induce a government to change its policy… What other purpose could there be?” Fitzgerald noted, “WikiLeaks didn’t just seek to induce a change, it did affect a change. It was one of the key reasons why policy was changed and why there was a withdrawal [from Iraq].”
The hearing is now adjourned and will resume on May 18. A brief administrative hearing will take place at Westminster Magistrates’ Court on 25th March, 10am, and a case management hearing has been scheduled at Woolwich Crown Court on 7th April, 10am.
Criticism of the judge:
Some commentators are particularly critical of Judge Baraitser. For example, the human rights activist and former British Ambassador to Uzbekistan Craig Murray attended the hearing and then blogged - " ... in the courtroom itself, Julian Assange is confined at the back of the court behind a bulletproof glass screen. He made the point several times during proceedings that this makes it very difficult for him to see and hear the proceedings. The magistrate, Vanessa Baraitser, chose to interpret this with studied dishonesty as a problem caused by the very faint noise of demonstrators outside, as opposed to a problem caused by Assange being locked away from the court in a massive bulletproof glass box." See Craig Murray - 25 February 2020 - Your man in the public gallery - Assange Hearing Day 1.
We need to recall the famous words of Lord Atkin - "Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful comments of the ordinary man" - and commentators are entitled to express their opinion. After all, this is one of the reasons behind the open justice principle.
In this post I am not joining in with those criticisms but, as the various reports show, there is widespread concern about the treatment of Mr Assange, the extradition hearing, and the relevant legislation.
The Guardian 27 February - Julian Assange's lawyers: US files were leaked for politcal ends.
1 March 2020
Updates 25 and 26 March 2020
Craig Murray - Assange Bail Hearing 25 March 2020
The Guardian 25 March - Assange refused bail
Applicable law:
The applicable legislation is Part 2 of the Extradition Act 2003. The USA is a Category 2 country.
The Extradition Act 2003 as originally enacted was reviewed by former Lord Justice of Appeal Sir Scott Baker who reported in October 2011. (Government response). Law and Lawyers 2011.
The Act was also considered by a House of Lords Select Committee which reported in 2015 - Extradition: UK law and practice
Section 79 of the Extradition Act sets out bars to extradition. The bars are amplified in sections 80 to 83E.
Previous legislation - e.g. Extradition Act 1989 - prevented extradition if the alleged offence was "political" but this no longer appears in legislation as a bar to extradition. Interestingly, the 1989 Act prevented extradition if "the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; ..." Similar wording was retained in the Extradition Act 2003 section 80.
The 2003 legislation therefore does not contain the "political offence" bar but retains a bar where the purpose of the extradition is to punish political opinion.
Political offences:
There was argument at the extradition hearing that the offences alleged against Mr Assange were "political."
Case law arose under the previous legislation in which the courts considered the meaning of political offence. Perhaps the most notable modern case was Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] AC 931, [1973] UKHL 8
The House, agreeing with earlier authority, stated that - " ... the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international aspect"
The concept of political offence was discussed in Scott Baker's review - see para 3.29.
The problem with this argument is that the Extradition Act 2003 does not contain an extradition bar for political offences.
However, the legislation is at odds with the UK-USA Extradition Treaty itself which states in Article 4 -
The exchange at the extradition hearing between Edward Fitzgerald QC and Judge Baraitser is reported at World Socialist Website 28 February 2020 -
" - arguments continued over the definition of political offences and the bar on extradition for political offences stipulated in the Anglo-US Extradition Treaty.
The defence has argued that espionage is widely regarded as a “pure political offence”, automatically barring any extradition on these charges.
Prosecuting barrister James Lewis QC claimed in response that “there is no bright line test” for what constitutes a “pure” political offence under English law. In deciding whether an offence is political, he said, “One always has to look at the purpose of the crime.”
The test that must be applied is whether the conduct had “the object of overthrowing or changing the government or inducing it to change its policy.” According to the prosecution, what Assange is accused of “does not come within a million miles of that definition.”
Lewis claimed the question of whether the conduct alleged in the indictment of Assange constitutes a political offence is irrelevant. Restating the prosecution’s opening argument, he said that since the Extradition Act (2003) had removed the political offences exception contained in the superseded 1989 Extradition Act and the 1870 Extradition Act before it, Assange cannot claim its protection.
Directly addressing the absurdity of this legal position, defence lawyer Edward Fitzgerald QC said, “Just stepping back for a moment, we’re in a pretty strange Alice in Wonderland world… it’s a very bizarre argument…that a treaty which controls and gives rise to the request has got nothing to do with the lawfulness of the request or its pursuit.”
Contrary to the prosecution’s claims that the 2003 Act is the final word on the matter, Fitzgerald demonstrated how it had repeatedly “been shown to be far from comprehensive… parliament can never envisage all the circumstances that will arise.”
“There is a remedy” available through the rulings of the courts, said Fitzgerald, “it doesn’t come from the words of the Act… it’s read in as a principle of public international law.”
Speaking on the definition of a political offence, Fitzgerald drove home the fact that, even on the prosecution’s own terms, the allegations against Assange are expressly political.
Baraitser challenged Fitzgerald, asking why Assange’s alleged actions were seeking to induce a change in government policy and were not instead about exposing government information.
Fitzgerald answered, “The two are intimately connected… The Rules of Engagement were published to show that war crimes were being committed that breached their own Rules of Engagement.” This was, he said, “the very definition of seeking to induce a government to change its policy… What other purpose could there be?” Fitzgerald noted, “WikiLeaks didn’t just seek to induce a change, it did affect a change. It was one of the key reasons why policy was changed and why there was a withdrawal [from Iraq].”
The hearing is now adjourned and will resume on May 18. A brief administrative hearing will take place at Westminster Magistrates’ Court on 25th March, 10am, and a case management hearing has been scheduled at Woolwich Crown Court on 7th April, 10am.
Criticism of the judge:
Some commentators are particularly critical of Judge Baraitser. For example, the human rights activist and former British Ambassador to Uzbekistan Craig Murray attended the hearing and then blogged - " ... in the courtroom itself, Julian Assange is confined at the back of the court behind a bulletproof glass screen. He made the point several times during proceedings that this makes it very difficult for him to see and hear the proceedings. The magistrate, Vanessa Baraitser, chose to interpret this with studied dishonesty as a problem caused by the very faint noise of demonstrators outside, as opposed to a problem caused by Assange being locked away from the court in a massive bulletproof glass box." See Craig Murray - 25 February 2020 - Your man in the public gallery - Assange Hearing Day 1.
We need to recall the famous words of Lord Atkin - "Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful comments of the ordinary man" - and commentators are entitled to express their opinion. After all, this is one of the reasons behind the open justice principle.
In this post I am not joining in with those criticisms but, as the various reports show, there is widespread concern about the treatment of Mr Assange, the extradition hearing, and the relevant legislation.
The Guardian 27 February - Julian Assange's lawyers: US files were leaked for politcal ends.
1 March 2020
Updates 25 and 26 March 2020
Craig Murray - Assange Bail Hearing 25 March 2020
The Guardian 25 March - Assange refused bail
Update 8 September
Update 4 January 2021:
Westminster Magistrates' Court - the extradition request by the USA was refused - see the court's judgment
Assange was subsequently refused bail. An appeal by the USA was reported to be likely. The Guardian 6 January 2021 and was later confirmed - The Guardian 12 February 2021.
Update - December 2021:
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