• Tuesday, December 14, 2021
Trinity Human Rights Barrister Reviews Julian Assange Extradition Decision

Trinity Civil Liberties and Human Rights barrister, Parissa Najah reviews and comments on the recent High Court ruling that Wikileaks' Julian Assange can be extradited from the UK to the US. The appeal in The Government of the United States of America v Julian Assange [2021] EWHC 3313 (Admin) was brought by the US against a January Court ruling that he could not be extradited due to concerns over his mental health.


Extradition is the process by which one country asks another to hand over a suspect to face trial.

Julian Assange was jailed for 50 weeks in May 2019 for breaching his bail conditions after going into hiding in the Ecuadorian embassy in London. He had been facing extradition to Sweden following allegations of sexual assault which he denied. That case was later dropped. He sought refuge in the embassy for seven years until he was arrested in April 2019.

The US want him to stand trial on charges under the Espionage Act and the Computer Fraud and Abuse Act where he could face a prison sentence of up to 175 years. Julian Assange is the first publisher to face charges under the Espionage Act. The charges are based upon allegations that Assange conspired with a whistle-blower – army intelligence analyst Chelsea Manning – to illegally obtain classified information.

The Law

The Court focussed upon section 91(2) of the Extradition Act 2003, which had formed the basis of the decision by the lower Court. The section provides the Court with the power to discharge an individual or adjourn a hearing where their physical or mental condition is such that ‘it would be unjust or oppressive to extradite him’.

The Appeal

The appeal was brought on 5 grounds:

  1. the Judge erred in her application of section 91;
  2. the Judge should have notified the US of her preliminary view so that assurances could be offered;
  3. the Judge should not have relied upon expert evidence after it emerged that the expert had sought to mislead the Court;
  4. the Judge erred in her assessment of the risk of suicide;
  5. The US has now provided assurances

The High Court Judgment

The Court found that in the circumstances of this case, the “relevant question”, which the Judge answered in the affirmative, was whether Mr Assange’s mental condition was such that it would be oppressive to extradite him [25].

Assange’s legal team sought to rely upon the late delivery of the assurances to argue they should not be admitted as evidence and to undermine the weight they should be afforded.

The Court noted the previous case law confirming assurances are not “evidence” and can be considered ‘whenever they are offered by a receiving state’ [39-42]. It found that:

An offer of assurances in an extradition case is a solemn matter, requiring careful consideration by the requesting state of its willingness to give specific undertakings to another state. It would not be appropriate to require that to be done on a contingent or hypothetical basis; and we doubt the practicability of such an approach.’ [43]

The Court specifically rejected the argument that the US had acted in bad faith or had refrained from offering early assurances for tactical reasons. It highlighted the long history of cooperation in extradition matters and found (against the representations of Assange’s representatives) that the US had previously fulfilled all assurances [51-54].

On this basis the Court turned to assess the content of the four assurances provided by the US in February 2021 [set out at 30]. It concluded that the lower Court’s decision had been based upon findings of a real risk of Mr Assange being subject to SAMs and/or detained at the ADX, risks which were excluded by the assurances [61].

The Court then dealt with grounds 1, 3 and 4 and found the Court had not erred as alleged, though it noted that some of the findings were ‘unusual’.

Finally, the Court turned to additional submissions on behalf of Assange alleging that the case was politically motivated, and alleging a breach of his article 8 rights. The Court found that although the tests under s.91 and article 3 may be different, there would here be the same conclusion regarding the assurances addressing concerns [95]. The Court reiterated that the US acted in good faith and rejected the argument that the lower Court had not dealt with the abuse arguments sufficiently [96-97].


There is division regarding the merit in Assange’s founding of the Wikileaks website. Human Rights groups such as Amnesty International and Reporters Without Borders see his work exposing military abuses as a key part of his journalistic role, recognised in the UK by Article 10 of the ECHR which protects freedom of expression.

However, the US argue that Assange’s sharing of classified information endangered lives.

In contrast to the findings of the High Court, Amnesty International has concluded that the assurances  provided by the US are unreliable. This follows an investigation by Yahoo News revealing that US security services considered kidnapping or killing Julian Assange when he was resident in the Ecuadorian embassy in London. Human Rights groups also raise concerns that if extradited, the conditions of Assange’s detention could amount to torture or other ill-treatment, contrary to article 3 of the ECHR.

Assange’s legal team have indicated their intention to appeal against the decision. The next step would be an application to the Supreme Court but given that the thrust of the argument on behalf of Assange is factual as opposed to being upon a point of law, it may be that the Supreme Court will not accept the case.

Some commentators have suggested that it is more likely that the battle would eventually shift to a cross appeal by Assange’s lawyers, which would take place first at the High Court and focus on questions of free speech and political motivation of the extradition request.

In light of the recent announcement of the move away from the rights enshrined in the Human Rights Act to a new Bill of Rights and the political rhetoric surrounding this, it may be that the broader rights-based argument Assange wishes to encourage is unlikely to be attractive to the Courts.