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UK High Court Certifies Assange Appeal Application

Assange supporters outside Royal Courts of Justice. Photo: Mohamed Elmaazi

On Monday, January 24th at 10:45am London time / 11:45am Berlin time, U.K. High Court judge Lord Ian Burnett of Maldon issued a pronouncement on whether WikiLeaks’ founder Julian Assange could appeal their decision on U.S. extradition to the Supreme Court.

Unlike past court hearings, remote video-link access for media and other civil society representatives was not shared until minutes before the proceedings; most attendees joined halfway through Burnett’s reading or missed it entirely. Given prior issues with court access, including poor audio and video quality throughout the trial, it is clear that transparency is not a high priority.

The defence’s application with “points of law of general public importance” included:

  1. Is the provision of assurances governed by the principles in Hungary v Fenyvesi [2009] 4 All ER 324?
  2. Is it permissible to approach oppression under section 91 of the 2003 Act on the basis that it may be imposed if brought about by the defendant’s own alleged conduct?
  3. Is it permissible to approach article 3 ECHR on the basis that inhuman or degrading treatment may be imposed if brought about by the defendant’s own alleged conduct?

The High Court “granted” their application only regarding the first point: ‘In what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.’ Essentially, they agree that the diplomatic assurances provided by the U.S. government — including that Assange would not be subjected to Special Administrative Measures (SAMs) and could “serve any sentence he received in Australia” — were not introduced early enough in the trial to be properly considered. While they “refused” him leave to appeal to the Supreme Court, “whether or not the issue needs ventilation in that court is a matter appropriately for its decision.” (It should be noted that the pronouncement document is incorrectly dated “24 January 2021” rather than 24 January 2022.)

The defence must make an application to the Supreme Court for leave to appeal on the certified point within two weeks. In an explanatory note from soliciter Birnberg Peirce, the certified point is explained further:

“The identification by the High Court of the question above for the potential consideration of the Supreme Court, involves concepts of procedural fairness and natural justice… What has underpinned a departure from those principles in practice is the categorisation of an assurance as an ‘issue’ as opposed to ‘evidence’ and the developing practice, potentially now consolidated in the decision in this case, whereby an assurance can be freely introduced by the requesting state and considered separately and later… This issue has become of considerable importance in the predictability and progression of extradition cases.”

The American non-profit Committee to Protect Journalists (CPJ) said that they have “cautiously welcomed” the decision. Amnesty International’s Deputy Research Director for Europe Massimo Moratti also noted that they are “concerned the High Court has dodged its responsibility to ensure that matters of public importance are fully examined by the judiciary.” PEN Deutschland published a letter from vice president Ralf Nestmeyer, sent to German foreign minister Annalena Baerbock, urging that her support for Assange “sollten … auch Taten folgen [should be followed by action].” Sevim Dağdelen and Amira Mohamed Ali from Die Linke are advocating for his immediate release. The French anti-corruption organisation Anticor, which recently awarded Assange for his journalistic work, called on French citizens to support him as an embodiment of “la cause de la justice, de la liberté et de la vérité [the cause for justice, freedom and truth].” Stella Moris, fiancée of Assange, made a statement outside the court following the pronouncement:

But let’s not forget that every time we win, as long as this case isn’t dropped, as long as Julian isn’t freed, Julian continues to suffer. For almost three years he has been in Belmarsh prison and he is suffering profoundly, day after day, week after week, year after year. Julian has to be freed and we hope that this will soon end.