Julian Assange has won the right to a fresh appeal in his long-running battle against extradition to the US to face espionage charges.
The 52-year-old Wikileaks founder is wanted for trial over the publication in 2010 and 2011 of confidential documents and cables relating to the Afghanistan and Iraq wars.
The US government had offered assurances to the UK about Assange’s treatment if extradited, promising not to seek the death penalty and making statements about freedom of speech and his nationality.
But judges ruled on Monday that Assange can mount a fresh appeal against the extradition, after his lawyers argued the US assurances were “patently inadequate”.
Dame Victoria Sharp, sitting in the High Court with Mr Justice Johnson, said: “We have decided to give leave to appeal.”
The appeal is believed to be Assange’s final chance to avoid extradition, at the end of a saga which has rumbled on for more than a decade.
Assange’s extradition from the UK to Sweden was ordered in 2012, when he was wanted for questioning about sexual assault allegations. But he entered the Ecuadorian embassy to avoid the transfer, arguing he believed he would face onward transfer to the US.
He has been held in HMP Belmarsh since being ejected from the embassy in 2019.
The US has brought charges of espionage and hacking against Assange, alleging he endangered sources with the publication of unredacted documents and military cables.
His supporters say Assange is being persecuted for his work as a journalist and publisher, and the Wikileaks revelations exposed evidence of war crimes and torture.
At Monday’s hearing, Assange says the US government has failed to guarantee his right to freedom of expression under the First Amendment.
UK judges had said they would not hear another appeal from Assange if the US puts up assurances that he would not be prejudiced at trial because of his foreign nationality, that he would not face the death penalty, and that he could rely on the First Amendment right protecting freedom of speech.
On Monday, lawyers for Assange told the High Court in London that the death penalty had been sufficiently ruled out.
But they argued other assurances offered by the US are “patently inadequate”, and asked for a further appeal in Assange’s case to take place.
The death penalty assurance reads: "The United States is able to provide such assurance as Assange is not charged with a death-penalty eligible offence, and the United States assures that he will not be tried for a death-eligible offence."
“We accept the US has provided unambiguous promises not to charge any capital offence”, said Edward Fitzgerald KC, leading Assange’s legal team.
But he said the assurance on freedom of speech would not necessarily protect his rights in a US trial, and was “not an assurance at all”.
“It assures only that Mr Assange ‘may seek to’ raise the First Amendment”, he argued.
“Absent an assurance as to how the prosecutor will act in response, the ability to raise and rely on the First Amendment means nothing.”
He argued that the US should have assured Assange would be “permitted to rely on” the First Amendment, but had only promised he would not be prejudiced based on his nationality in arguments he “may seek to raise”.
There is no assurance that the prosecutor would not challenge his right to rely on the First Amendment, or that a court may rule it out of its own volition.
“Specific promises from prosecutors are pretty common – we will not object to bail, we will not seek the death penalty – no such specific assurance has been given here”, added Mr Fitzgerald.
In written submissions, James Lewis KC, representing the US government, said Assange’s conduct was “simply unprotected” by the First Amendment.
“The position of the US prosecutor is that no-one, neither US citizens nor foreign citizens, are entitled to rely on the First Amendment in relation to publication of illegally obtained national defence information giving the names of innocent sources to their grave and imminent risk of harm”, he said.
“This principal applies equally to US citizens and non-US citizens irrespective of their nationality, or place of birth, and irrespective of where the conduct took place, though it isultimately a question of law for the US courts. The conduct in question is simply unprotected by the First Amendment.
“There can be no ‘serious possibility’ of prejudice on the basis of nationality when the issue of nationality, or even citizenship, is not dispositive and may, in fact, never factor into a UScourt’s legal analysis.”
Assange was offered the chance to attend court for today’s hearing, but was absent “on health grounds”, judges were told.
Assange supporters gathered outside the Royal Courts of Justice in London ahead of the hearing, with many holding banners and signs.
Members of his family, including wife Stella Assange and his father, are at the hearing.
Directions for the appeal hearing are due to be set by the end of the week.
