Nearly a year after the start of the extradition trial in the UK, the Assange case is back in court for appeals. On Wednesday, August 11, Exberliner and dozens of other media representatives remotely attended the High Court preliminary hearing, presided over by Lord Justice Timothy Victor Holyrode and Mrs. Justice Judith Farbey (though she wasn’t seen or heard). Dobbin represented the U.S. prosecution team, and barrister Fitzgerald the defence.
On January 4, District Judge Vanessa Baraitser had ruled against the United States on the narrow basis that there would be “a real risk that he will be kept in the near isolated conditions imposed by the harshest SAMs regime, both pre-trial and post-trial,” “that Mr. Assange’s risk of committing suicide, if an extradition order were to be made, to be substantial,” “such that it would be oppressive to extradite him to the United States of America.”
In April, the defence filed a notice of objection to the US prosecution’s application for appeal, but also presented their grounds for cross-appeal in the event that appeal was granted. In July, the US government was granted permission to appeal the ruling, but the court “rejected two of the five grounds of appeal put forward by the US. It did not accept an appeal on the grounds that the District Judge should have rejected evidence from a defence psychiatric expert, Professor Michael Kopelman, head of neuropsychiatry at King’s College London,” or “claims that the judge erred in her overall assessment of the evidence that Assange was at risk of suicide.” The US is now seeking to remove those limitations.
This preliminary hearing, which lasted between 10:30 and 14:40 GMT, consisted primarily of the U.S. prosecution contesting the weight and admissibility of Kopelman’s medical testimony (see last year’s coverage of Week 3 for background). The thrust of their argument was that Kopelman misled the court by initially concealing the relationship and identity of Assange’s fiancée, Stella Moris, and their two young sons. Their existence, Dobbin said, was relevant to a proper assessment of the risk of suicide for Mr. Assange, and therefore the decision to block extradition on the basis of “substantial” risk was flawed.
Fitzgerald countered that by the time of the extradition proceedings, Moris had already publicly revealed herself to the broader public. “It was a decision to defer [the disclosure], not conceal.” While Judge Baraitser did conclude that Kopelman’s omission in his first report represented a “lapse” in fulfilling his duty to the court, she saw his decision as “an understandable human response to Ms. Morris’ predicament,” and “did not find Professor Kopelman’s summary of the medical notes to be misleading.” Since Baraitser was aware of the circumstances of the disclosure full in advance of the conclusion of the proceedings, she was not in fact “misled,” and therefore it did not render his entire testimony inadmissible or of no weight.
“After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue.”
Fitzgerald noted that Kopelman was more comprehensive in his notes about the risk of suicide, including times when he did not believe Assange was suicidal. While at one point Assange felt that his “obligation” to his children prevented him from attempting suicide, and feared a reality where they would grow up without him, he no longer felt this would stop him, especially if he lost the extradition case.
Fitzgerald further responded that the contributing factors to the risk of suicide – his mental health conditions, prison solitary confinement in the United States – were acknowledged as valid by their other medical witnesses and the prosecution’s as well, and that these factors remained at play.
Following a one-hour break, Lord Justice Holyrode spent about 30 minutes summarising previous proceedings and the arguments from both sides. While it seemed to us that he would agree with the defence, he ultimately concluded that the US government should be allowed to challenge the original judgement on psychiatric evidence. Further hearings were tentatively scheduled for October 27th and 28th of this year.
However, the day was not over. After most attendants had left the courtroom, and Assange had disappeared from the video service room at Belmarsh (presumably to be returned to his cell), Fitzgerald requested that the court call the prison and have Assange brought back in, to allow them to speak over the videolink. A highly unusual circumstance: an attorney-client conversation, usually presumed to be private and protected, being broadcast to dozens of individuals still connected to the court online!
After warning Assange that it was possible “people may be listening in,” Fitzgerald assured him that “it’s not the end of the line at all,” and that they planned to come back to fight on this issue “with more vigour” on the grounds of “basic human rights things.” Assange, whom we have only heard from through rare and unauthorised ‘outbursts’ in court, expressed that he didn’t understand how the prosecution’s argument on Kopelman was accepted, citing “a legal obligation to protect” patient privacy and by extension vulnerable family members from harm.