In a significant development that dominated the news this week (that is, until the PM announced a general election…), Julian Assange has been granted permission by the High Court to appeal his extradition to the United States. In one of the most protracted criminal cases in recent history, Monday’s decision marks another chapter in the long running legal battle Mr Assange has been fighting for the last 14 years.

Background

Julian Assange, founder of Wikileaks, has faced legal challenges since 2010, when his organisation begun publishing classified and diplomatic US documents relating to the wars in Afghanistan and Iraq. The US government seeks his extradition on 17 charges of espionage and one charge of computer misuse for allegedly obtaining and disseminating sensitive information illegally.

During a two-day hearing in February 2024, Mr Assange’s legal team requested permission to challenge a judge’s dismissal of most of his case to prevent his extradition.

Extradition Explained

Extradition is the formal process where one country asks another to return a person in order to stand trial or to serve a sentence. Under the Extradition Act 2003, the UK follows a detailed procedure for extradition, comprising of the following steps:

1. Extradition Request: The requesting state submits a request either to the National Crime Agency (“NCA") in relation to requests from Part 1 EU Member States, or the Secretary of State, in the case of Part 2 requests from the rest of the world. The request will have to state whether it is for the purposes of prosecuting the requested person (an accusation case) or for him or her to serve a sentence (a conviction warrant) for an offence within the requesting state. It must be made by an appropriate authority on behalf of that State and contain details of the requested person and the evidence or information that justifies the issue of a warrant for arrest in the UK.
2. Certification: The NCA or the Secretary of State must then confirm that the offence is an extradition offence under the Extradition Act 2003 and ensure it meets the necessary legal standards. If the request is certified, it is forwarded to a court for further consideration. 
3. Arrest Warrant: On receipt of the certified extradition request, the court must be satisfied that it has enough information to justify the issue of an arrest warrant. This includes ensuring that there are reasonable grounds for believing that the conduct described in the request in an extradition offence and that it complies with the requirements of dual criminality. If the warrant is issued, the person is usually arrested and brought before the court as soon as possible after arrest. 
4. Preliminary Hearing – During this hearing, the court will consider whether basic procedural requirements have been met and the court will ask the request person if they consent to extradition. If they do not consent a date is set for the full extradition hearing and the could will decide whether to grant the person bail.
5. Extradition Hearing – A District Judge will firstly consider the validity of the arrest warrant. The court must then consider whether any statutory bars to extradition apply, whether extradition would be contrary to the requested person’s human rights, or whether the requested person should be discharged on any other grounds.
   
   However, it is important to understand that there are basic operative principles which underpin extradition proceedings, these principles are:
   
   i. Presumption of good faith between contracting parties: because extradition is based on the operation of mutual agreements between friendly states the courts will generally assume that the requesting state is acting in good faith, (or at least start on that basis).
   
   ii. Dual Criminality: this test requires the conduct for which extradition is sought to constitute a crime under the law of both the requesting territory and the requested territory at the time when it is committed.
   
6. Appeal – Both the individual and the requesting state have the right to appeal the judge's decision. An appeal must be filed within 7 days (Part 1 requests) or 14 days (Part 2 requests), and if the High Court grants permission, it will hear the appeal and make a ruling.

Mr Assange’s Bid to Appeal 

Two judges in the High Court had deferred a decision from March 2024 on whether Mr Assange could take his case to an appeal hearing. Earlier this week, Dame Victoria Sharp and Mr Justice Johnson ruled that Mr Assange would be able to bring an appeal against his extradition on three grounds:

1. First Amendment - Mr Assange can argue that his actions are protected by the First Amendment of the US Constitution, which guarantees freedom of speech and press. His legal team contend that the publication of classified information is a journalistic activity and punishing him for it would set a dangerous precedent for press freedom.
2. Fair Trial - Mr Assange’s must receive a fair trial in the US due to potential prejudice against him because of his nationality and high-profile status.
3. Death Penalty - Although the charges against Mr Assange do not carry the death penalty, his legal team argued that assurances should be provided to eliminate any possibility of such a punishment.

The legal team of the US Government continue to argue to that Mr Assange’s conduct is not protected under the First Amendment due to the significant risk of harm caused by the leaks. They emphasised that the unauthorised disclosure of classified information jeopardised national security and the safety of individuals.

The Legal Road Ahead

Whilst today’s successful result is a positive step for Mr Assange’s legal team, the road ahead remains uncertain and potentially lengthy. The appeal process will involve further legal scrutiny of both sides’ arguments and the outcome is by no means certain.

A date has not been set for the appeal, but Mr Assange’s legal team have indicated that it could be months before the appeal is heard and that is not the end of the road. If this decision is further appealed, the case could eventually reach the Supreme Court. Each step of the process adds complexity, potentially prolonging the resolution of the case.

Mr Assange has been and continues to be detained at London’s high security Belmarsh Prison alongside some of the country’s most dangerous prisoners. His continued detention has raised concerns among his supporters and human rights organisations, who are now calling for his release on bail.

The outcome of Mr Assange’s appeal will have far-reaching implications not only for his own future but also for the broader issues of press freedom, government transparency, and the treatment of whistleblowers. As the legal battle continues, it remains a focal point of international attention and debate.

This blog was co-authored by Angela Leskaj and Nicole Drew.