Julian Assange will be allowed to appeal against his extradition to the United States.
Two judges responded today to US assurances that Mr Assange will not face the death penalty – and can rely on the First Amendment right to free speech if he faced a trial for spying.
The WikiLeaks founder faces prosecution in the US over an alleged conspiracy to obtain and disclose national defence information after the publication of hundreds of thousands of leaked documents relating to the Afghanistan and Iraq wars.
Edward Fitzgerald KC, representing Assange, criticised the assurances of Joe Biden’s US administration at the hearing. He said: “Based on the principle of the separation of powers, the US court can and will apply US law, whatever the executive may say or do.”
He added most of the promises were “blatantly inadequate” – but they had accepted the promise about the death penalty.
In written submissions, the barrister said while the assurance over the death penalty was “an unambiguous executive promise”, the other assurance does not give “any reliable promise as to future action”.
The barrister added: “What needs to be conclusively removed is the risk that he will be prevented from relying on the first amendment on grounds of nationality.”
But James Lewis KC, representing the US government, insisted the “judicial branch of the United States will take due notice of this solemn assurance given by its government in the course of international relations”.
In written submissions, he said there is “no question” that Assange, if extradited, “will be entitled to the full panoply of due process trial rights, including the right to raise, and seek to rely upon, the first amendment as a defence”.
He later told the court: “The assurance does make it clear that he will not be discriminated against because of his nationality.
“He can and will be able to raise all those arguments and his nationality will not prejudice a fair trial.”
Today’s decision is the latest chapter in 13 years of legal battles and detentions for Australian-born Mr Assange.
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The US authorities want to put Mr Assange on trial over 18 charges, nearly all under the Espionage Act.
They claim his actions with WikiLeaks were reckless, damaged national security, and endangered the lives of agents.
During a two-day hearing in February, lawyers for Mr Assange asked for permission to challenge a judge’s dismissal of the majority of his case to prevent his extradition.
In March, Dame Victoria Sharp and Mr Justice Johnson dismissed most of Mr Assange’s legal arguments – but said unless assurances were given by the US, he would be able to bring an appeal on three grounds.
These assurances are that Assange would be protected by and allowed to rely on the First Amendment – which protects freedom of speech in the US – that he is not “prejudiced at trial” due to his nationality, and that the death penalty is not imposed.
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Supporters of Mr Assange have already been gathering outside the High Court to continue their calls for his release.
Mr Assange is currently being held in London’s high security Belmarsh prison.
