JUDICIARY OF ENGLAND AND WALES District Judge (Magistrates’ Court) Vanessa Baraitser In the Westminster Magistrates’ Court Between: THE GOVERNMENT OF THE UNITED STATES OF AMERICA Requesting State -v- JULIAN PAUL ASSANGE Requested Person INDEX Page A. Introduction 2 a. The Request 2 b. Procedural History (US) 3 c. Procedural History (UK) 4 B. The Conduct 5 a. Second Superseding Indictment 5 b. Alleged Conduct 9 c. The Evidence 15 C. Issues Raised 15 D. The US-UK Treaty 16 E. Initial Stages of the Extradition Hearing 25 a. Section 78(2) 25 b. Section 78(4) 26 I. Section 78(4)(a) 26 II. Section 78(4)(b) 26 i. Section 137(3)(a): The Conduct 27 ii. Section 137(3)(b): Dual Criminality 27 1 The first strand (count 2) 33 The second strand (counts 3-14,1,18) and Article 10 34 The third strand (counts 15-17, 1) and Article 10 43 The right to truth/ Necessity 50 iii. Section 137(3)(c): maximum sentence requirement 53 F. Bars to Extradition 53 a. Section 81 (Extraneous Considerations) 53 I. Section 81(a) 55 II. Section 81(b) 69 b. Section 82 (Passage of Time) 71 G. Human Rights 76 a. Article 6 84 b. Article 7 82 c. Article 10 88 H. Health – Section 91 92 a. Prison Conditions 93 I. Pre-Trial 93 II. Post-Trial 98 b. Psychiatric Evidence 101 I. The defence medical evidence 101 II. The US medical evidence 105 III. Findings on the medical evidence 108 c. The Turner Criteria 111 I. A substantial risk 112 II. The capacity to resist the impulse to suicide 114 III. The risk he will succeed whatever steps are taken 115 I. Abuse of Process 120 a. Zagrewski Abuse 121 b. The new allegations (excising the Request) 132 J. Orders 134 A. INTRODUCTION The Request 2 1. This is a request made by the Government of the United States of America (“the US”) for the extradition of Julian Paul Assange. The US is represented by James Lewis QC, Claire Dobbin and Joel Smith. Mr. Assange is represented by Edward Fitzgerald QC, Mark Summers QC, Ben Cooper QC and Florence Iveson. 2. The United States of America (“the USA”) is a Category 2 territory for the purposes of the Extradition Act 2003 (“the EA 2003”). The request is therefore governed by the provisions of Part 2 of the EA 2003, the Extradition Act 2003 (Commencement and Savings) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. 3. On 29 July 2020 the Secretary of State issued a certificate under s.70(8) of the EA 2003 certifying that the request for extradition is valid and that it has been made in the approved way. Procedural History (US) 4. On 21 December 2017, a federal magistrate judge, in the Commonwealth of Virginia, issued a criminal complaint against Mr. Assange, charging him with conspiracy contrary to Title 18 of the US Code (the “U.S.C.”), section 371. The offence alleged to be the object of the conspiracy was computer intrusion (Title 18 U.S.C. Section 1030). 5. On 6 March 2018, a federal grand jury returned an indictment against Mr. Assange charging him with conspiracy (contrary to Title 18, U.S.C. section 371) to commit unlawful computer intrusion (contrary to section 1030(a)(1) and (2)). The US submitted via diplomatic channels a provisional arrest request in relation to this charge. 6. On 23 May 2019, a federal grand jury returned a superseding indictment containing 18 counts alleging further offences related to the obtaining, receiving and disclosure of “National Defense Information” (contrary to the provisions of Title 18, U.S.C. sections 793(g), 793(b), 793 (c), 793 (d) and 793 (e)). On the same date, a warrant was issued by the US District Court for the Eastern District of Virginia, for the arrest of Mr. Assange for the offences specified in the superseding warrant. On 6 June 2019 the US submitted via diplomatic channels a request for Mr. Assange’s extradition based on the charges in 3 the superseding indictment. The was supported by an affidavit of Kellen Dwyer dated 4 June 2019. 7. On 24 June 2020 a federal grand jury in Alexandria, Virginia returned a second superseding indictment charging Mr. Assange with 18 counts summarised below. On 20 July 2020 a request for extradition based upon the second superseding indictment was issued. It is supported by five declarations of Gordon Kromberg dated 17 January 2020 (“Kromberg first declaration”), 19 February 2020 (“supplemental Kromberg declaration”), 12 March 2020 (“second supplemental Kromberg declaration”), and 24 March 2020 (“third supplemental Kromberg declaration”) and 17 July 2020 (“fourth supplemental Kromberg declaration”). On 7 September 2020 the initial extradition request was discharged and the extradition proceedings were opened. Procedural History (UK) Chronology 8. The history of these extradition proceedings is as follows: a. On 2 December 2010, a European Arrest Warrant (“an EAW”) was issued by a Swedish judicial authority, in respect of Mr. Assange, for offences of unlawful coercion, rape and molestation; b. On 7 December 2010, Mr. Assange was arrested in this jurisdiction pursuant to the EAW; c. On 14 December 2010, he was granted conditional bail; d. On 24 February 2011, following contested proceedings, extradition to Sweden was ordered. He was released on bail with a duty to surrender to this court on 29 June 2012. He failed to return to court and a warrant was issued by Westminster Magistrates’ Court for his arrest; e. On 30 May 2012, the Supreme Court rejected his appeal against the extradition order; f. On 14 June 2012, his application for leave to reopen the appeal was refused; g. On 19 June 2012, he entered the Embassy of Ecuador in London, where he remained for the next seven years; h. On 12 August 2015, three of the allegations in Sweden became time barred, the allegation of rape remained outstanding; i. On 19 May 2017, the Swedish prosecutor announced that she was discontinuing the prosecution against Mr. Assange; 4 j. On 21 December 2017, Mr. Assange was granted diplomatic status by the Ecuadorian government; k. On 22 December 2017, a diplomatic note from the US requested Mr. Assange’s provisional arrest pursuant to a criminal complaint; l. On 22 December 2017, Westminster Magistrates’ Court issued a warrant for Mr. Assange’s arrest. m. On 6 March 2018, a federal grand jury in the US returned an indictment against Mr. Assange, charging him with conspiracy to commit unlawful computer intrusion; n. On 11 April 2019, Mr. Assange was arrested at the Ecuadorian embassy and brought before Westminster Magistrates’ Court where he was convicted of an offence under s.6(1) of the Bail Act 1976 and committed to the Crown Court for sentence; o. On 1 May 2019, Mr. Assange was sentenced at the Crown Court at Southwark, to imprisonment for 50 weeks; p. On 23 May 2019, a superseding indictment was returned in the US; q. On 24 June 2020, a second superseding indictment was returned charging Mr. Assange with the 18 counts summarised below; r. On 29 July 2020, the Secretary of State issued a certificate certifying that the request was valid; s. On 7 September 2020, Mr. Assange was arrested on the new request and brought before the court. 9. The evidential hearing took place in February and September 2020, with the first part heard between 24 February and 28 February 2020 at the Woolwich Crown Court and the second part between 7 September 2020 and 1 October 2020 at the Central Criminal Court. Closing submissions were received in writing, by the defence on 6 November and 1 December 2020 (in reply) and by the US on 20 November 2020. Judgment was reserved to 4 January 2021. 10. On 11 April 2019 Mr. Assange was remanded into custody and he has remained in custody throughout these proceedings. B. CONDUCT Second Superseding Indictment 5 11. The second superseding indictment contains the following 18 counts: a. Count 1: Conspiracy to Obtain, Receive, and Disclose National Defense Information, contrary to Title 18, U.S.C. section 793(g), punishable by a maximum penalty of ten years’ imprisonment. It is alleged that, between 2009 and 2015, outside any particular state or district of the US, Mr. Assange conspired with others known and unknown to commit the following offences: (i) first, to obtain documents relating to national defence including Guantánamo Bay detainee assessment briefs (“the detainee assessment briefs”), US Department of State cables (“the diplomatic cables”), and Iraq rules of engagement files; (ii) to receive and obtain documents relating to the national defence, including the detainee assessment briefs, the diplomatic cables and the Iraq rules of engagement files; (iii) to “communicate” the detainee assessment briefs, the diplomatic cables and the Iraq rules of engagement files to the extent that they contained the names of individuals in Afghanistan, Iraq and elsewhere in the world who risked their safety and freedom by providing information to the US and its allies, from those with lawful possession to those not entitled to receive them; (iv) with Bradley Manning (now known as Chelsea Manning and hereafter referred to as ‘Ms. Manning’), to “communicate” the detainee assessment briefs, the diplomatic cables, and Iraq rules of engagement files, and for Mr. Assange to “communicate” to “certain individuals” and the public (unspecified) documents containing the names of individuals in Afghanistan, Iraq and elsewhere in the world who risked their safety and freedom by providing information to the US and its allies, from those in unauthorised possession of these documents to those not entitled to receive them.