On 25 June 2024 Julian Assange left Belmarsh Prison and began the journey back to his native Australia. A deal between the US and Assange was reached whereby he pled guilty to one count of conspiring to obtain and disclose classified US national defence information under Title 18 of the US Code in return for the other charges against him being dropped. Further, Assange was credited for the five years he served in prison whilst fighting extradition such that he would face no further punishment.
The deal has been reported to be a win for Assange and his supporters. Assange’s wife and mother of two of his children, Stella Assange, has said she was ‘elated’. The US Department of Justice has also, in a sense, secured a victory with Assange’s guilty plea. The UK’s the Crown Prosecution Service has said “The intended outcome of the plea agreement will be to accomplish the primary objective of achieving justice”.
There are other perspectives on the outcome of Assange’s case, however, including those which are arguably more important and long term. These concern the prosecution of crimes against women, the freedom of expression, national security crimes, and the rule of law.
Assange’s UK Legal Proceedings
The plea deal has seemingly ended a legal saga lasting around fourteen years. It began with allegations of rape and sexual assault in Sweden in 2010, and that country’s attempt to extradite him from the UK. Upon losing his fight against extradition in the UK Supreme Court in 2012 Assange was granted protection in the Ecuadorean embassy in London. Through that he frustrated the extradition process, as under international law UK authorities were unable to enter the embassy and arrest him.
Sweden dropped its attempt to prosecute Assange in 2017 on account of the passage of time. Its attempt to extradite him came to an end. Of some note is that on the news of his plea deal, certain Swedish human rights groups expressed regret that Assange was not questioned about the sex crime allegations.
After nine years in the embassy, Ecuador seemingly lost patience with Assange. In April 2019 the Metropolitan Police were allowed to enter and detain him. He was sentenced to 50 weeks in Belmarsh Prison for breaching the bail conditions set as part of the Swedish extradition process.
In 2018 and again in 2019 US grand juries indicted Assange on a total of 18 felony charges relating to illegally obtaining, receiving and disclosing classified information and computer hacking. His extradition to the US was requested in July 2020. What followed were a series of judicial decisions arising from his opposition to that extradition under the applicable law, the Extradition Act 2003.
At first instance Assange was successful resisting his extradition. District Judge Baraitser found at Westminster Magistrates’ Court that his extradition was barred on account of his mental health. The United States successfully appealed, however, following assurances regarding the treatment Assange would receive upon his extradition.
In March 2024 Assange’s application for leave to appeal the issues that were decided against him at first instance was granted on three grounds. This was granted on a conditional basis. If the US gave assurances to the High Court satisfying its concerns on those issues, then leave to appeal would be refused. A hearing in May this year decided that those assurances were not satisfactory. Accordingly, Assange was granted permission to appeal on grounds including his right to freedom of expression. The case was listed for hearing on 9-10 July. As a result of the plea deal, that appeal hearing will not go ahead.
A Messy and Unsatisfactory Dénouement
For objective observers, of whatever political persuasion, the dénouement of Assange’s case is messy and unsatisfactory. This is because it is, in a sense, the final affirmation of the fact that serious sex-related allegations were not considered in court. Important legal issues not being addressed and damage to the rule of law were also the consequences of the plea deal. Those legal issues were the relationship between extradition and freedom of expression and national security crimes.
The Prosecution of Crimes Against Women
One must not lose sight of the fact that the criminal charges against Assange laid in Sweden of rape and sexual assault have never been heard. The passage of time, largely caused through his self-imposed residence in the Ecuadorean embassy, was the reason. Sweden, as a member of the Council of Europe and the European Union, adheres to important human rights and criminal justice standards. It is unsatisfactory and regrettable that Assange’s alleged victims were denied the opportunity to have their day in court.
The Freedom of Expression
The freedom of expression is a human right under a number of laws and instruments, including the Human Rights Act 1998, the European Convention on Human Rights 1950 (ECHR) and First Amendment to the US Constitution. In Assange’s proceedings one of the questions which was due to be considered by the High Court in the July appeal was whether his extradition would be compatible with his right to freedom of expression under article 10 of the ECHR. With the plea deal, this will not now happen. The precise nature and effect of the relationship between freedom of expression and extradition will remain unclear.
This is not to suggest that Assange’s argument on that basis would have been successful. Whilst his ability to receive and impart information was undoubtedly affected by the crimes in the US Code with which he was charged, the right to freedom of expression is a qualified right. This means that it can be lawfully interfered with by a public authority in certain circumstances. These include, for example, the interests of national security, territorial integrity and public safety, where such restrictions are in law and proportionate.
Certain other human rights, such as the right to be free from torture and the right to respect for private and family life, have been considered in an extradition context on a number of occasions by UK courts and the European Court of Human Rights. A judgment on the right to freedom of expression in such a high-profile case as Assange’s would have been very welcome.
National Security Crimes
Two facets of national security-related crimes are of particular relevance in Assange’s case. The first, related to the freedom of expression, concerns whether, or to what extent, crimes designed to protect national security can in effect limit the freedom of expression, both generally and in the extradition context. The limits in a general context were considered in the case of former MI5 officer David Shayler, who was convicted under the Official Secrets Act 1989.
The second aspect is the non-applicability of the political offence exception to extradition in UK law. This acts to protect persons sought by way of extradition for crimes of a political character. The exception was removed from UK law by the Extradition Act 2003, but finds a place in the UK-US Extradition Treaty 2003. While it is very unlikely that further Assange-related litigation would find in his favour on account of the exception, further proceedings may have strengthened the case for the reinstatement of a form of the exception into UK law.
The Rule of Law
Extradition practice, in the UK and across the EU, has been increasingly legalised in recent times. This occurred as the political and diplomatic origins of the process were increasingly accepted as ill-suited to modern times, and the separation of state functions in particular. Under the Extradition Act 2003, for example, the role of the Secretary of State in the process has been significantly curtailed. In the UK, the process is almost wholly governed by law as applied by the judiciary. It is generally apolitical.
The plea deal between the US Department of Justice and Assange has summarily brought the UK legal proceedings to an end. Decisions were taken by both parties that the most expedient course of action was to agree the deal, and thereby end the involvement of UK courts in the matter. Whilst it is, of course, the prerogative of US authorities to oversee criminal prosecutions and to seek, or stop-seeking, the extradition of accused persons outside US territory, those decisions have a decisive influence on the operation of extradition in the UK and can be seen as damaging to the rule of law.
A Damp Squib Culmination
In a sense, the Assange saga has a parallel in the proceedings against former Chilean dictator Augusto Pinochet. It may be recalled that Spain sought his extradition from the UK during a point when he was in the country receiving medical treatment. A series of judicial decisions followed Spain’s request, including three separate cases in the House of Lords. Ultimately, whilst losing his legal arguments against extradition in the courts, then Home Secretary Jack Straw exercised the political discretion existing at that point and blocked his extradition. Assange’s case is similar to Pinochet’s in that important legal issues have been left unanswered.
Assange’s case demonstrates that there is no escaping the influence of politics upon extradition. Assange argued that his US prosecution arose from political hostility caused by the publication of classified material evidencing egregious breaches of human rights and humanitarian law by the US military. Well over a decade later, the case has now ended by way of a political calculation by the US Department of Justice to secure a conviction through a plea deal and bring the matter to an end. From the point of view of legal clarity and certainty, and the rule of law, this is to be regretted.
