WikiLeaks founder Julian Assange granted appeal

The High Court has granted WikiLeaks founder Julian Assange leave to appeal against extradition to the US to face charges under US espionage and computer crime laws.

The court granted the 52-year-old leave to appeal after defence lawyers questioned US assurances that Assange would not face discrimination in a US trial because of his nationality.

The 52-year-old is charged with 17 counts under the US Espionage Act 1917 and one count under the US Computer Fraud and Abuse Act over WikiLeaks’ 2010 publication of documents leaked by US Army whistleblower Chelsea Manning.

The hearing was attended by large numbers of Assange supporters who amassed outside London’s High Court with banners.

The decision came after the High Court sought diplomatic assurances from the US government in March 2024 that Assange would not face the death penalty if extradited and would be allowed to use the US First Amendment, which guarantees free speech, in his defence.

Edward Fitzgerald KC, representing Assange, told the court that he accepted that the US government had provided “an unambiguous promise” not to charge Assange with a capital offence, meaning that Assange was not at risk from the death penalty.

But he told the court that the US government had failed to give proper assurances that Assange would be able to rely on the US First Amendment, which gives rights to freedom of expression, as part of his defence.

Assange, who is an Australian citizen, would be discriminated against in the US because of his nationality and would not be allowed to rely on the First Amendment, the court heard.

“We say it’s a blatantly inadequate assurance,” he said. “It would cause the applicant prejudice on the basis of his nationality.”

The court heard that US prosecutor Gordon Kromberg had only given an assurance that Assange would be able “to seek to raise” the First Amendment at a trial in the US.

Kromberg or the prosecution had given no specific assurance that Assange would be allowed to rely on the US constitution in his defence in practice, the court heard.

Kromberg had created the concern by stating that a court in the US could find that a non-US citizen would not be able to argue the First Amendment in national security cases.

Defence expert professor Paul Grimm, a former US district judge with a military law background, had given “unimpeachable evidence” in a witness statement that the US government’s diplomatic assurance could not bind a US court.

Fitzgerald said prosecutors normally give assurance or undertakings, but that Kromberg’s silence – over Assange’s rights under the US constitution – was “deafening”.

He quoted examples of cases where the US government had given undertakings that prosecutors would not seek a life sentence but the court had reversed the undertaking.

In written submissions, Assange’s legal team argued that the US assurance that Assange would be able to raise the First Amendment if he was tried in the US was not an assurance at all.

“What needs to be conclusively removed is the risk that he will be prevented from relying on the First Amendment on grounds of nationality,” they argued, adding that without any assurance of how a prosecutor would respond to arguments made in a US court, “the ability to raise and rely on the First Amendment means nothing”.

They said there were “multi-fold” problems with the assurance, which did not rule out the US court barring Assange from relying on the First Amendment on the grounds that he is not a US citizen.

The assurance “does not bind the prosecution” to any position and a US court could over-turn any undertaking, the court heard.

“We say this assurance ... cannot reassure the court there is no risk. The real risk remains,” said Fitzgerald.