The judges failed to note that the supposed legal "test" for the US to impose special prison conditions does not require proof of any "act" by the prisoner.
https://twitter.com/mattberkley/status/1455459242094247941
Confidence in this aspect of the judgment is not helped by the judges writing,
"unless he *commits* any future act".
"unless he *commits* any future act".
If the judges had correctly taken into account the actual "test" in the regulation, it is hard to see why they would use a word associated with "committing" crimes
- ie a relatively serious "act" -
rather than comparing the "assurance" to the precise wording of the regulation.
- ie a relatively serious "act" -
rather than comparing the "assurance" to the precise wording of the regulation.
It seems to me that the judges had a duty to clarify what the legal position would be in the US, in view of the substantial differences in wording between the "assurance" and the regulation - in other words, what the "assurance" actually means.
https://twitter.com/mattberkley/status/1455462749023182848
Did the judges mean that if Mr Assange has not "committed" any relevant "act" since February 2021, but the CIA says his communications must be severely restricted for national security, the US will risk national security by honouring the judges' interpretation of the "assurance"?
The judges' interpretation of the "assurance" in paragraph 48 seems to underlie, and perhaps undermine, their citation of India v Dhir [2020] EWHC 200 (Admin) in paragraph 40, about whether the district judge should have sought "assurances".
https://twitter.com/mattberkley/status/1455118447440969731
This specific problem of lack of clarity in the "assurance" might be particularly acute if Mr Assange's only route to challenge would rely on the UK government - a junior partner in military and intelligence matters - choosing to object to US interpretations of the "assurance".
Also, the judges seem to err in paragraph 50.
The US "assurance" did not refer to
"appropriate"
clinical and psychological treatment, but:
"any"
"such...treatment...recommended by a qualified treating clinician...".
web.archive.org/web/2021102812…
The US "assurance" did not refer to
"appropriate"
clinical and psychological treatment, but:
"any"
"such...treatment...recommended by a qualified treating clinician...".
web.archive.org/web/2021102812…
So that US "assurance" means basically,
"Mr Assange will get the treatment recommended"
and not what the judges claim it means, that he will be given "appropriate" clinical and psychological treatment.
"Mr Assange will get the treatment recommended"
and not what the judges claim it means, that he will be given "appropriate" clinical and psychological treatment.
The judges'
a) failure to clarify what the SAMs/ADX "assurances" mean,
and
b) invention of a health "assurance" which the US did not make,
are in the context of their writing in paragraphs 53-56 that the requested person needs to "consider with care the precise terms".
a) failure to clarify what the SAMs/ADX "assurances" mean,
and
b) invention of a health "assurance" which the US did not make,
are in the context of their writing in paragraphs 53-56 that the requested person needs to "consider with care the precise terms".
Paragraphs 53-56 seem to make it crystal clear that the judges' assessment of each "assurance" should be based on "the strict letter of an assurance".
Here is the US "assurance" on health treatment for Mr Assange.
Here is what Lord Burnett and Lord Holroyde claim the US has "undertaken".
A US promise to ensure
*that any recommendations (if they are made) by clinical staff are carried out*
is not an assurance that treatment, or the recommendations needed for it, or the assessments needed for those, will be "appropriate", or even exist at all.
*that any recommendations (if they are made) by clinical staff are carried out*
is not an assurance that treatment, or the recommendations needed for it, or the assessments needed for those, will be "appropriate", or even exist at all.
Even if the judges' description had related to a US "assurance" which actually exists, there would have been legitimate and pertinent questions which the judges in fact failed to address:
"What does "appropriate" mean?"
"Appropriate for who, or for what?"
"What does "appropriate" mean?"
"Appropriate for who, or for what?"
Would
"appropriate treatment"
mean
"giving priority to the government's interests",
or
"assuming a pre-existing low budget",
or what?
"appropriate treatment"
mean
"giving priority to the government's interests",
or
"assuming a pre-existing low budget",
or what?
Two more reasons why the judges' misdescription of the health treatment "assurance" is important:
Inappropriate medical or psychological treatment can harm.
A patient may receive "recommended treatment" inappropriately because they have not given adequately informed consent.
Inappropriate medical or psychological treatment can harm.
A patient may receive "recommended treatment" inappropriately because they have not given adequately informed consent.
(The "assurance" does not say that the treatment has to be "recommended" to the patient, or to anyone in particular.)
Let's look again at the judges' paragraph 48 on prison conditions and location, bearing in mind that in 53-56 they write about careful consideration, precision, the idea that the US sticks to the letter of assurances, and what assurances mean.
In what ways are the judges making a true statement here?
"It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid."
"It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid."
How was it difficult for the judges to see that the US did not specify what a relevant "act" is, so that there is no reassurance that Mr Assange would have to do anything unlawful or potentially harmful in order to be put under harsh conditions?
The defence had made it perfectly clear that according to the "assurance", any act or word could render Mr Assange "liable" to such conditions.
So why is it "difficult to see" that he might fear being put in those conditions as a result of something very minor?
So why is it "difficult to see" that he might fear being put in those conditions as a result of something very minor?
It is not clear that the judges adequately took into account the main purpose of this part of the exercise, which is concerned with the risk of suicide.
There is another problem in paragraph 48: the judges write,
"It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act...".
But as the defence said, under the "assurance", he could already have performed the relevant "act".
"It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act...".
But as the defence said, under the "assurance", he could already have performed the relevant "act".
That is because the "assurance" refers to acts after the entry of the "assurances", meaning early 2021.
And in any case the judges, as explained above, failed to show any sign of considering the US legal status of the "assurance" about an "act", or how it would work, given that the relevant US regulations do not need any "acts" for the person to be put in the harsh conditions.
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