Thread by @Consortiumnews

Our live updates from the #Assange courtroom at the Royal Courts of Justice, Day 2 afternoon session, will be on this thread.

Court in session. Now we can hear the prosecution but not the judges.

Prosecution is refuting Ground 4 and Ground 6 of the defence's appeal. Focusing on the Fair Trial issue.

There is an argument of Speciality or nothing. The claim is the applicant is at risk of being punished for conduct he has not been charged with. That is Specialty and it is being forced into Art. 6

Pros. Specialty was fairly argued in the extradition Hearing & it is doomed by the case of Welsh(?).

The UK does not accept the American view. we must assume Specialty is not breach in the appellant's case, and that he would therefore have a fair trial.

Pros. The law states that everyone is entitled to a fair trial and this incudes the applicant. We get nowhere the flagrancy threshold with this complaint about the risk of sentencing enhancement.

Pros. The court should ignore the Specialty issue. No risk that Assange could incur, as defence suggested, additional charges (such as "aiding and abetting treason").

Pros: Disproportionate sentencing (175 years) It is not up to the UK to impose UK sentencing polity on a foreign state. Mr [Thomas] Durkin estimated that a team of 30-40 years was more likely. Kromberg said it could be be up to 63 months, but since what #Assange had done was extremely serious it could be more.

Pros. Looked at through a US and UK lens, #Assange's offence is grave & unprecedented. It was a sweep of offending that this country has ever had to grapple with. It would attract significant sentencing in both jurisdictions and has nothing to do with journalism.

Pros. It is not surprising that #Assange's offending would attract a significant amount of sentencing.

Judges ask for Manning's sentencing remarks.

Pros. Regarding the Home Secretary's role, there is no arguable point of law. Her role is certification and decision on the basis of S.93-102.

The SoS must perform her duties without question, unless there are prohibitive conditions.

Pros. The date of the extradition treaty (2007) is irrelevant. Conditions were signed in 2003 & by the time it was ratified it was clear how UK domestic law would interact with it. There is no jus cogens point to be made about the political exception provision.

Pros. It was other legislation that prevented the extradition of Gary McKinnon. There is no free-ranging discretion of a Home Secretary on which to refuse an extradition.

Pros. There was no question that parliament didn't know what it was doing when it with drew the political exception provision from the 2003 Act.

Judge So you mean the treaty states that if the US requests extradition from the US political exception can be applied, but not in the other direction

Pros. Yes

Pros. Chelsea Manning was charged with aiding the enemy. #Assange has not. Her sentence was commuted. There is no reason to think that Assange would be subjected to the death penalty, such as to engage Art. 3.

Pros. One assurance is that #Assange can be sent to Australia to serve his sentence. That would be incompatible with a death sentence.

Judge: Is it possible nevertheless that a charge of "aiding and abetting treason" could be laid?

Pros. I can't see that happening

Edward Fitzgerald from the defence interjects on the subject of arbitrariness:

"We rely [they say] on the treaty to lock this person up but we're going to ignore the most basic protections of the treaty."

The prosecution assumes the political offence removal was from the act deliberate. This can't be assumed.

We submit that the Act is simply silent, and it is extraordinary assumption to say everything that was in the act before is purposefully dis-applied.

The basis on which the US has made a request is the extradition treaty. The treaty is inescapable, as Art. 5 which is incorporated into the Act.

The prosecution asserts that political exception is out of date, but it is being incorporated to this very day into this country's treaties with other state.

EF: Article 31 of the treaty said it was an abuse to not give effect to a protection in an incorporated treaty that was not mentioned in the act.

EF: UK has certainly decided to abide by the extradition treaty so we can ignore its protections under At, 5 and must prevent an abuse of process. Conduct that is a product of a political opinion is protected under 81A of our act.

EF: Mr Pompeo certainly said Mr #Assange would not be protected by the First Amendment because he was was foreign.

As for Specialty, it is an age-old concept. Fair trial is a modern concept. There is a specific risk in #Assange case [Vault 7] why he could be punished for acts he was not charged or convicted of. Expert witness Thomas Durkin identified this risk in the light of evidence submitted by [anonymous] Witness 2 regarding extra-judicial activity by CIA in relation to Assange. When it comes to a question of right to life the court must exercise caution.

MS for the defence.

May I go back to the assertion by the defence that the subject of @WikiLeaks revelations is exposure of state crimes? All refugee law examines nexus between such acts and prosecution. Such acts are protected un S81. We heard no response from the prosecution on that core issue. What happened here was retaliation from the very top level - after the ICC took interest. They assert Mr Trump praised Mr Assange - while were ignorant at the time that he was plotting to kill him.

MS: The prosecution asserts that due process has been followed - it doesn't't seem like it to us. There was a plan to rendition which due to its illegality (he had not been charged with anything) which was replaced with a legal process.

Article 7: there was no suggestion in 2010 that Mr Assange would be liable. There was no suggestion, even if some illegal activity was engaged in, that resulting journalism would be illegal.

DJ didn't consider any of this. She decided to let the 5th Amendment resolve the problem of un-foreseeability.

MS: We are only look in at the manning allegations because only the hacking allegation should involve a sentence, not the journalism. But if convicted, we would immediate raise Article 8 in relation to time served.

It is not right to of the US to add other allegations to prop up those charges.

MS: And it is not right to suggest, as the prosecution does, that there is not a public interest balance to perform with a disclosure, and one must not incriminate the press because a source acted illegally.

MS: The prosecution ignores the fact that names were revealed because a @Wikileaks media partner published a key to the un-redacted material, and despite Mr #Assange's efforts in contacting the State Department to seek their help in preventing this - and that he was ignored.

MS There is no absolute law that classified material should not be published and that the act must be published.

The Strasbourg court in its balancing act would at most acknowledge a risk for people engaging in the reported crimes, or possibly uninvolved civilians - but the facts of the US's investigation [supervised by General Robert Carr] that no one was harmed. There is no doubt however that unimaginable crime was revealed.

MS. Regarding death penalty, my learned colleague has acknowledged that it could be engaged with a new charge [such as aiding and abetting treason]. An assurance in the last appeal, prosecution asserts, precludes the death penalty. That is not the case. There is no such assurance against the death penalty.

We have submitted that the wording of assurances must be considered carefully. One can't be transferred alive [to Australia] if one is dead.

Appeal ends

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