The US won the right to challenge evidence from a medical expert who found that WikiLeaks founder Julian Assange would be at high risk of suicide if extradited to the US to face hacking and espionage charges.
Two high court judges ruled today that the US had an arguable case to challenge expert evidence given by psychiatrist professor Michael Kopleman who found that Assange was likely to take his own life.
The US argued during a half day hearing that Kopleman had misled the court by failing to disclose the relation between Assange and his partner Stella Moris in an initial psychiatric report submitted to the court.
Justice Holroyde said the US had an arguable case that the district judge had taken an incorrect approach in concluding that Kopelman’s failure to disclose the relationship in his initial report was an “understandable human response” to protect the couple’s privacy.
“It is in my view arguable that a more detailed and equivocal consideration should have been given to the reasons why that ‘understandable human response’ resulted in the serving of a report, which contained misleading statements and from which there were significant omissions,” said Holroyde.
The decision widens the scope of the US government’s attempt to appeal a UK court verdict in January which found that it would be oppressive to extradite Assange to the US because of his high risk of suicide.
Holroyde overturned an earlier decision by Justice Jonathon Swift in July who rejected the US’s arguments over Kopelman and narrowed the US appeal to three grounds.
The US appeal will be heard over two days in October.
Assange has been charged in a US indictment with 17 charges under the 1917 Espionage Act, for receiving and publishing classified government documents and one count under the Computer Fraud and Abuse Act.
US argues district judge erred in law
During a half day hearing, Clair Dobbin, representing the US government argued that district judge Vannesa Baraitser erred as a matter of law in finding it would be oppressive for Assange to be extradited to stand trial in the US.
Dobbin said that part of the US appeal would be an argument that Assange did not have a mental illness that came close to meeting the threshold that would prevent his extradition.
There was a lack of formal psychiatric history in Assange’s background and no diagnosis of Asperger’s syndrome until his extradition, she said.
Dobbin claimed that Kopelman, a key medical expert for Asssange, had misled the court by producing an initial report that knowingly failed to disclose Assange’s relationship with his partner Stella Moris, with whom he had two children.
She said that Kopelman was “willing to subjugate his duty to the court to the interests of Mr Assange”.
District Judge, Vanessa Baraitser had found that Kopleman’s decision to leave out details of the relationship – to protect the privacy of the couple – was a natural human response.
But Dobbin said that expert witnesses are not allowed to mislead the court for any reason.
She said that the judge did not deal adequately with evidence from other medical experts and did not appreciate the weight of evidence from other experts that Assange was able to resist the impulse to suicide.
US raises questions over defence expert
Edward Fitzgerald representing Assange said the district judge was fully aware of the criticism against Kopelman’s report but had concluded that Kopelman was an impartial and dispassionate witness and had not given a biased opinion.
“He was very concerned that the disclosure of the name of Julian Assange’s partner would have an effect on the privacy and safety of the family,” he said.
A surveillance organisation had attempted to take DNA from one of Assange’s baby’s nappies and discussed plans to kidnap or poison Assange, he said.
“There is no question of any tactical advantage being gained out of this. This is simply concern for the human predicament,” said Fitzgerald.
The report was preliminary and the full nature of the relationship was disclosed to the judge in March 2020, who had not been misled.
Kopelman wrote a later report that made full reference to the relationship that was submitted well in advance of any evidentiary hearing, “so there was never in fact any prospect of the court being misled”.
“You don’t make one lapse and the evidence is inadmissible or given no weight,” he said.
Fitzgerald said that the district judge scrupulously applied the legal tests required by case law and the extradition act.
There was clear evidence of mental disorder, depression, and Autistic Spectrum Disorder from prosecution and defence experts, he said.
The court heard that the prosecution intended to introduce an article from a psychiatric journal.
The article quotes Kopelman discussing Assange’s solicitor Gareth Peirce, who he said “plays within the system but she does it better than the government lawyers and beats them”.
Assange defence team argued in written submissions that it is entirely clear that article does not have the sinister meaning attributed to it by the US.
“This whole exercise is the result of a miserable and belated trawling of the psychiatric journals to locate some stray comment and then present it out of the context so as to discredit Professor Kopelman,” according to written submissions.
Fitzgerald told that court that if the evidence were allowed he would want to cross examine the author of the article and Kopelman, which would be difficult to shoe into the two days allowed for the appeal.
“Enough is enough,” he said.
US lawyers argue that judge Baraister failed to offer the US government the opportunity to give assurances about Assange’s treatment in the US prison system before ruling that the 50 year old should not be extradited to the US.
The US has subsequently given assurances that Assange would not be subject to Special Administrative Measures (SAMs) – described by defence witnesses as a form of solitary confinement that allows little or no association with other prisoners.
The US has also given an assurance that Assange would not by imprisoned in a supermax prison such as ADX Florence in Colorado, reserved for high security prisoners.
Defence lawyers argue that the assurances are conditional, and may not be applied in practice, and do not address the judge’s concerns that Assange is at high risk of suicide regardless of what preventative measures may be taken in the US.
“If such evidence was to be produced at all, it should have been produced before the District Judge so that its impact o the overall issues could be considered at the hearing itself,” defence lawyers said in written arguments.
The offer of assurances only at a late stage has given prosecutors a “tactical advantage at the expense of fairness” and has ensured Assange’s prolonged detention in Belmarsh prison after the court ordered his discharge in January.
The US Department of Justice has been actively engaged in the current proceedings against Assange for two years without suggesting any assurances.
“This meant that none of the defence witnesses could comment on the assurance now being produced,” said defence lawyers in written submissions.
Referring to Kopelman, Justice Holroyde said it was unusual for an appellant court to consider an expert witness whose written evidence had been called into question.
He said it was arguable that there should be a more detailed analysis of misleading statements and significant omissions in the evidence.
But he said that the issue goes to the weight given to Kopelman’s evidence rather than its admissibility.
The Court of Appeal will hear the case on 27 and 28 October.
US grounds for appeal
- The first is that the Judge made errors of law in her application of the test under section 91 of the 2003 Extradition Act. Had she applied the test correctly she would not have discharged Mr Assange
- The second is that the Judge, having decided that the threshold for discharge under section 91 was met, ought to have notified the requesting state of her provisional view, so as to afford it the opportunity of offering assurances to the Court..
- The third is that the District Judge, having concluded that the principal psychiatric expert called on behalf of the defence (Professor Kopelman) had misled her, on a material issue, ought to have ruled that his evidence was inadmissible. Alternatively, if it could be said that his lack of independence went to weight rather than admissibility, the District ought to have attributed no, or far less, weight to his opinion as to the severity of Mr Assange’s mental condition than she did (a fortiori when two, additional and wholly independent, experts were of a different opinion). Had she not admitted that evidence or attributed appropriate weight to it, the District Judge would not have discharged Mr Assange pursuant to section 91
- The fourth ground is that the District Judge erred in her overall assessment of the evidence going to the risk of suicide.
- The fifth ground is the United States has provided the United Kingdom with a package of assurances which are responsive to the District Judge’s specific findings in this case. In particular, the United States has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The United States has also provided an assurance that the United States will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him.