Extradition is a complex area of law. We have previously commented on developments in the case of Julian Assange (see here and here), partly due to its high importance and public interest, but also because the technicalities of extradition are so unique.

On 15 March 2022, the Supreme Court refused permission for Mr Assange to appeal on a point of law of general public importance. It was held that his application to review the High Court’s decision to accept assurances from the US government regarding the prison conditions in which he would be detained did not raise an arguable point of law. Our view was that he had relatively good prospects of being granted permission to argue this point, but the Supreme Court thought otherwise.

Once the Supreme Court had made their decision, Mr Assange’s case was remitted to the Magistrates’ Court, as it is this court that has to formally send the case to the Secretary of State to decide on extradition. The Supreme Court does not have the power to do so. Therefore, when Mr Assange’s case was before Westminster Magistrates’ Court on 20 April 2022, the court had no option but to send his case to the Home Secretary. It is only the Home Secretary who can decide on extradition in a category two (generally non-European) case.

The Home Secretary used to have wider discretion on any extradition case and could refuse extradition on human rights grounds. This power was removed from the Home Secretary shortly after the Gary McKinnon case in October 2012. Mr McKinnon was an extremely vulnerable man and it was feared he may commit suicide if extradited to the US for computer hacking charges. The then Home Secretary therefore withdrew the extradition order against Mr McKinnon. Shortly afterwards, she amended the Extradition Act 2003 to remove the power of the Home Secretary to consider late representations on human rights grounds. This power was transferred to the High Court.

All human rights considerations are now therefore decided on by the courts.

Section 93 of the Extradition Act allows the Home Secretary very limited discretion to refuse extradition once the case has been sent to her, this includes:

1. The death penalty (s94): Extradition cannot be ordered if a person is at risk of being sentenced to death. It does not apply if a written assurance is provided by the requesting state that the death penalty will not be imposed. The US government has provided such an assurance.
    
2. A breach of specialty (s95): Extradition must not be ordered if there are no specialty arrangements with the requesting territory. Specialty is a rule of extradition law which is intended to ensure that the requested person is not prosecuted for offences for which they were not extradited. The UK has specialty arrangements with the US.
    
3. Earlier extradition to the UK from another territory (s96): Extradition cannot be ordered if another territory extradited the individual to the UK and has not given consent for that individual to be extradited to another territory. This is not relevant in Mr Assange’s case.

The Home Secretary has two months to make her decision. Mr Assange’s lawyers informed the court that the Home Secretary would be receiving ‘serious submissions’ on US sentencing law and practices.

Given the limitations of the Home Secretary’s powers to refuse extradition, Mr Assange may also wish to appeal the judgment of Westminster Magistrates’ Court in January 2021 on matters where he was unsuccessful (as he succeeded in that court on the basis of his mental health but this was overturned on appeal by the High Court). He is therefore able to apply to the High Court for permission to appeal on the remaining grounds he originally argued, such as that he will not receive a fair trial in the US; that he is being extradited for political reasons; and that extradition is an abuse of process. These proceedings are unlikely to be resolved by the end of the year.

Although Mr Assange’s options have narrowed, there is still room left for him to contest extradition and his fight is not yet over.