Today
Wed 3 March 2021

Long-time campaigner for whistleblowers and hacktivists, Naomi Colvin, argues that the case of Julian Assange reveals the outdated and illiberal mess of British secrecy laws

It is nice to be proven right, even when it comes as a surprise. After WikiLeaks co-founder Julian Assange was arrested in April 2019,  I explained in an article for Byline Times that his extradition to the United States was by no means a foregone conclusion. And so it has transpired.

On 4 January, district judge Vanessa Baraitser surprised the world with a ruling that may rescue Assange on exactly the basis I predicted. In fact, the ruling is the latest result of a decades-long campaign against the excesses of the 2003 UK-US Extradition Treaty, which has spanned the cases of Gary McKinnon, Richard O’Dwyer and Lauri Love.

Putting aside Brexit for one moment, this movement against extradition holds some claim to being the most effective extra-parliamentary campaign in recent British history.


The Precedent of Lauri Love

British-Finnish computer scientist Lauri Love won his appeal against extradition to the US on hacking charges in February 2018, partly because his diagnosis of Asperger syndrome was found to heighten the risk that he would take his own life.

The Love case is important because it embedded the post-McKinnon understanding of the injustices of US extradition into law. In fact, the reasoning in USA v Assange follows the logic and language of the Love’s appeal ruling almost exactly. 

One of the grounds on which Love won his appeal was the forum bar. This was the change in the law that was introduced by the UK’s then Home Secretary Theresa May, after she bowed to public pressure and made the political decision that Gary McKinnon – a Scottish systems administrator who was accused in 2002 of the “biggest military computer hack of all time” – would not be extradited to the US. The forum bar allows individuals with ties to the UK to have that factor balanced against arguments in favour of them being sent abroad. 

Shortly after the Love ruling in 2018, the banker Stuart Scott won his appeal against extradition to the US on these grounds and other victories have followed. This is not to say that forum arguments always prevail or that abusive proceedings don’t happen any more, but the Love precedent has led to some rebalancing of the situation for UK residents. 

But Assange’s ruling did not rely on the forum bar but on the other way in which Lauri Love won his appeal: that the inadequacy of US prison conditions for those with mental health issues makes extradition an “oppressive” death sentence.


A Quixotic Victory

Julian Assange’s ruling gives him a strong basis for seeing off an appeal and will likely save his life, but that is not to say that it makes for comforting reading.

The state of Assange’s health should be taken as much as a criticism of the English prison system – such as the use of isolation at HMP Belmarsh, which Assange experienced for six months in late 2019 – as it is of the American. 

Many commentators have focused on the lack of comfort for media freedom advocates in the ruling and it is true that the judge ruled against Assange’s defence in all aspects save for the medical evidence. However, the ruling is a pragmatic one that serves a particular purpose – that of stopping Assange’s extradition to America.

The defence argument in USA v Assange was complicated. Much of it was either politically controversial (that the extradition was initiated and pursued in an illegitimate way for partisan reasons), above the pay grade of a district judge (the 2003 Extradition Act is incompatible with the UK-US treaty), or totally novel in an extradition setting. 

Unlike those kinds of arguments, medical evidence and prison conditions are bread-and-butter stuff for a first instance extradition judge and findings of fact at this level are likely to be respected by an appeal court.

The judge’s take on the medical evidence was therefore always going to be the key part of her ruling. In fact, the US presented it own medical experts in September (something it did not do in the Love case) so it is significant that the judge sided unambiguously with the defence. Providing a strong basis for stopping the extradition happening is almost, by definition, the most important contribution this ruling could have made to press freedom, and it does that. 

The defence arguments on freedom of expression fit into the ‘novel for extradition’ category. Given that the ruling is by a lower court with no precedential value, it is hard to say that it really makes things worse for British journalists. In contrast, what clearly does create difficulties for national security journalists in the US and – via extradition – abroad is the US indictment, which will stay in place regardless of how the extradition case goes. That is why my employers, Blueprint for Free Speech, are currently campaigning for a full pardon.

The Law Commission’s final verdict is that the Official Secrets Act is no longer compatible with human rights standards.

While the ruling does not provide a precedent, the concerns expressed by organisations such as Reporters Without Borders are not groundless because it clearly illustrates the problems with the current English legal framework around investigative journalism. Sections of the ruling betray doubts about the legitimacy of technologically-assisted reporting and the use of large datasets. 

A similar logic – that technology has made everything terribly difficult – was present in the Law Commission’s 2017 consultation report on the Protection of Official Data, its first stab at reviewing the Official Secrets Act. This project was initiated in the wake of official discomfort around the Edward Snowden revelations about mass digital surveillance in the US and Britain, but was quickly disowned. A number of press and civil society organisations made their opposition to ‘UK Espionage Act’ proposals clear at the time.

In a strange coincidence, the final version of that much-delayed report, taking account of the outburst of criticism, was published just as the September hearings in USA v Assange were getting underway. The Law Commission’s final verdict is that the Official Secrets Act is no longer compatible with human rights standards and that journalists and whistleblowers should be able to make a public interest case in their defence.

Julian Assange being extradited to face prosecution in the US on Espionage Act charges is by far the worst consequence for press freedom that could come out of his case – and those who care about these issues should keep a close eye on what happens at the High Court on appeal. But, not only does the first instance ruling provide real hope that a US appeal will be dismissed, it also gives freedom of expression advocates in Britain a road map for what they should be trying to achieve in 2021.


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