Decisive in the case were US promises on detention conditions, medical treatment, and the transfer of any prison sentence to his native Australia if he is convicted.
It is now the turn of Assange’s lawyers to appeal. They will likely seek permission to do so in two ways. One route will be to the Supreme Court, challenging the decision last week that the US assurances were sufficient given Assange’s risk of suicide.
A second avenue will challenge the points Assange lost at his initial hearing in January. His lawyers will seek to again argue that he cannot receive a fair trial in the US and that his rights to freedom of expression and family life will be violated upon extradition. Further, his lawyers will likely argue that the motivation behind Assange’s extradition is a desire to punish him for his political opinions.
Leave to appeal, or permission, must be given by the appellate court for these cases to proceed. That is not certain, although the public importance of the issues and possibility that his arguments might succeed are in his favour.
One thing that is clear is that even if Assange is allowed to appeal on two fronts the most important question, the elephant in the room, will not be addressed by a UK court. That is, simply, does Assange merit punishment for exposing US state secrets, demonstrating its egregious and likely unlawful actions under international law?
Assange’s original hearing and the High Court appeal did not consider that question. Nor will any further appeals, be they heard by the Supreme Court or indeed the European Court of Human Rights.
It may seem bewildering that consideration of whether Assange deserves possible punishment has not and will not be addressed by UK courts. Seemingly in lieu of whether or not Assange did something wrong have been arcane debates about psychiatric evidence. Some may well think the law and legal profession are doing a good job perpetuating the view the law is an ass.
That is harsh. But there is no doubt that extradition law is deficient in an important sense by failing to permit such arguments. Up to 2004, UK extradition law did contain a so-called political offence exception. This allowed persons sought through extradition to argue that the crime they were accused of was a political character. If accepted by the court, their extradition was barred.
As result of the rise of modern terrorism, the exception was removed from UK law. It was also limited or removed in many other places, including the EU. The law went too far.
Assange’s lawyers are deploying the arguments that they are permitted to make under the law. This is clearly what they should do. US lawyers, on the other hand, are rightfully disputing those arguments.
What is missing is a provision in the Extradition Act 2003 that allows a court to consider more directly whether Assange’s actions merit punishment. As the law stands, this most basic question is simply not addressed.
Dr Paul Arnell, Law School, Robert Gordon University