Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
On Appeal Contracts Expression
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London’s Westminster Magistrates’ Court ruled that Julian Assange’s extradition to the United States (US) was oppressive for health reasons, but approved the extradition based on allegations that Mr. Assange had disclosed classified information. The founder of WikiLeaks had been remanded into custody in the United Kingdom (UK). The US had submitted an extradition request to the UK for Mr Assange, citing a superseding indictment that charged him with eighteen counts of obtaining, receiving, and disclosing classified information. The defense made numerous arguments against the extradition request under the Extradition Act (EA) 2003, including that the allegations in the request were not unlawful under English law and that the extradition breached Article 10 of the European Convention on Human Rights (ECHR). District Judge Vanessa Baraitser rejected these particular defenses. The Court outlined that, under English law, Mr Assange was complicit in unlawfully taking information and his disclosure of the information fell outside the sphere of responsible journalism. Likewise, the extradition did not constitute a flagrant denial of Mr Assange’s rights and was compliant with Article 10. The Court ultimately ruled against the extradition due to Mr Assange’s health and high risk of committing suicide in US custody.
The Government of the US made a request for the extradition of Julian Paul Assange, the founder of WikiLeaks. The request was governed by Part 2 of the EA 2003, as well as the EA 2003 (Commencement and Savings) Order 2003 and the EA 2003 (Designation of Part 2 Territories) Order 2003.
In 2017 and 2018, a federal magistrate judge and federal grand jury issued and returned a criminal complaint and indictment respectively against Mr Assange. They alleged that he breached Title 18 of the US Code for his efforts to unlawfully commit computer intrusion. In May 2019, a federal grand jury in Alexandria, Virginia returned a superseding indictment charging Mr Assange with eighteen counts. The extradition request was submitted to the British government in June 2019.
In June 2020, a federal grand jury returned a second superseding indictment charging Mr Assange with eighteen counts. Specifically, it was alleged that Mr Assange conspired with Chelsea Manning, an intelligence analyst in the US Army, and other unnamed persons to obtain classified information. Further offences related to the obtaining, receiving, and disclosing of such information that constituted “National Defense Information” under Title 18 of the US Code. Generally, the information concerned actions of the US military and intelligence agencies regarding the wars in Afghanistan and Iraq, as well as treatment of detainees at Guantanamo Bay. In July 2020, a request for extradition based upon the superseding indictment was issued.
From 2012 to 2019, Mr Assange had entered and remained in the Ecuadorian Embassy in London following proceedings to extradite him to Sweden for offences of unlawful coercion, rape and molestation. Those allegations became time barred and the Swedish prosecutor decided to discontinue Mr Assange’s prosecution.
Mr. Assange was remanded into custody in April 2019 following his seven year stay in the Ecuadorian Embassy. He was in custody throughout the proceedings.
District Judge Vanessa Baraitser of the Westminster Magistrates’ Court sought to determine if the various defense arguments against extradition to the US succeeded. These defense arguments were characterized as “numerous, complex and, in some instances, novel” [para. 32].
The US-UK Treaty
The defendant claimed that because the UK-US Extradition Treaty 2003 prohibited extradition for political offences, the Court lacked jurisdiction to hear the case. Therefore, breaching the 2003 Treaty would have constituted a violation of the rule of law and have contravened Article 5 of the ECHR.
The US countered that it was constitutionally incorrect to rely on the 2003 Treaty because treaties had to be incorporated into UK law via statute to be applicable. The only available regime was the EA 2003 which “abolished the protection for political offences” [para. 38].
The Court found that the 2003 Treaty did not confer on the defendant rights which were enforceable before the Court. Indeed, treaties could only confer rights on individuals when incorporated into domestic law. The nature of an extradition treaty was that it was an agreement between governments and simply reflected a relationship concerning extradition – it was not governed by the domestic law of either state.
The Court was satisfied that any apparent breach of the 2003 Treaty did not render the defendant’s detention arbitrary and inconsistent with Article 5 of the ECHR. The 2003 Treaty did not create enforceable rights and any breach of it was not a “sound basis” [para. 61] for determining that the defendant’s detention was unlawful. Altogether, there was no need for the Court to decide whether the allegations in the US request amounted to “political offences”.
Initial Stages of the Extradition Hearing
The defendant argued that the allegations did not meet the “dual criminality” requirements of section 137 of the EA 2003 because the defendant’s conduct would not constitute any offence under English law. Specifically, the defense contended that the defendant had merely engaged in the ordinary and lawful conduct of investigative journalism that was protected by Article 10 of the ECHR. If he was criminally liable, his conduct must have amounted to a criminal act separate from the actions of a whistle-blower.
The US alleged that the defendant’s conduct were offences under English law, particularly the Official Secrets Act (OSA) 1911, the OSA 1920, the OSA 1989, the Criminal Law Act 1977, the Computer Misuse Act 1990. The US outlined that the OSA 1989 applied even to publishers who were not the original leakers of information. Likewise, there was compliance with Article 10 of the ECHR because persons were only criminalized if they disclosed damaging information while knowing or having reason to believe it would have been damaging. Overall, the defendant disclosed materials that no responsible journalist would have disclosed.
The Court approached the issue by separating the defendant’s alleged conduct into separate strands. The first strand focused on the efforts to commit computer intrusion along with Ms Manning and other unnamed persons. The second strand focused on the unlawful acquisition and publicization of materials along with Ms Manning. The third strand focused on the publication of the documents that contained sensitive details.
Regarding the first strand, the Court found that the conduct amounted to offences under English law, namely the Criminal Law Act 1977 and the Computer Misuse Act 1990.
Regarding the second strand, the Court found that Ms Manning’s conduct amounted to offences under the OSA 1911 and OSA 1989 and the defendant’s alleged conduct in assisting these offences amounted to a conspiracy to commit the same offences. While the Court acknowledged that there was no offence without the defendant committing a criminal activity separate from whistleblowing, it found that the defendant’s activities transcended the encouragement of whistleblowing. The offences pertained to the defendant’s knowing and intentional receipt of information and his complicity in obtaining and disclosing such information. Similarly, the information’s damaging effect on the security and intelligence services’ work could be inferred.
Referencing Regina v Shayler  UKHL 11, the Court noted that the House of Lords considered the ECHR in the context of the OSA 1989 and found that the relevant provisions were compatible with Article 10 of the ECHR. In particular, Lord Bingham had considered that the restrictions imposed by the OSA 1989 provisions were legitimate objectives and fell under the Article 10(2) qualification. Additionally, he confirmed that neither a public interest defense nor a national interest defense was available.
The Court noted Brambilla and others v. Italy ECtHR  22567/09, where three journalists were convicted of offences for intercepting communications and collecting information to report. The ECtHR articulated that journalists could not simply claim exclusive immunity from ordinary criminal law because their actions were protected under Article 10. The scope of journalists’ responsibilities hinged on the “technical means” they used.
In this case, the defendant was complicit in unlawfully taking information. The relevant provision of the OSA 1989 aimed at deterring people from disclosing secrets and its aim would have been undermined if the disclosures of someone like Ms Manning were treated differently to those by a co-conspirator. It would leave open an avenue to disclosure which Parliament did not allow via the OSA 1989. The consideration would have differed if the defendant had not assisted Ms Manning to take the information and only received it.
Regarding the third strand, the Court found the conduct was an offence under the OSA 1989. The OSA 1989 imposed criminal liability on third parties who were in possession of information prejudicial to the work of security and intelligence services that was disclosed to them by Crown servants without lawful authority and in the circumstances delineated by the statute.
The defense argued that there was Article 10 protection, and that the disclosures’ harm was minimal compared to that of non-disclosure which affected “millions” [para. 122]. The US countered that Article 10 only protected responsible journalists and that the defendant disclosed the information in an “unconsidered and indiscriminate manner” [para. 123] with the knowledge of its harm.
The Court noted that the defendant’s Article 10 rights were engaged, but they were not absolute. Interference was justified if prescribed by law, pursued a legitimate aim, was necessary in a democratic society, and proportionate to the aim pursued. The interference in this case was a provision of the OSA 1989 which aimed at preserving national security. The question was thus whether the interference was necessary in a democratic society.
The standard for prohibition of disclosure in the OSA 1989 was that the person disclosing information did so without lawful authority; he/she was aware of the information falling under the statute; the information was likely to prejudice the security and intelligence services’ work; and he/she knew or had reasonable cause to know that the disclosure was prejudicial. Referencing Stoll v. Switzerland ECtHR  69698/01 and Gîrleanu v. Romania ECtHR  50376/09, the Court noted that the ECtHR had recognized circumstances where the release of information could be restricted under Article 10. The Court highlighted the “inevitable tension” [para. 128] between openness and the necessity to keep certain intelligence information secret. Regarding proportionality, Parliament had sought a balance by creating a different standard for persons who were not Crown servants.
In this case, the defendant had chosen to disclose information dealing with the identities of persons who were informants and who were placed in harm’s way by the disclosure. The Court deemed the equivalence between the defendant’s conduct and responsible journalism to be misguided. It noted that the modern digital age allowed vast quantities of information to be dumped online instantaneously and universally. Such conduct was not constrained by ethical journalism and sound judgment, making it difficult to ascertain how responsible journalism could be applied. The Court illustrated this point by noting that newspapers who had worked with the defendant had condemned his decision to disclose the information, claiming that the defendant’s data dump was not reflective of their “careful editorial decisions” [para. 132].
Thus, the Court found that free speech was not a cover, even in cases of serious public concern. It did not provide individuals with the right to “decide the fate of others, on the basis of their partially informed assessment of the risks” [para. 135]. The Court determined that the provisions of the OSA 1989 were necessary in a democratic society in the interests of national security, to the extent that they were used against the disclosure by informants.
Lastly, the Court rejected the defense’s submission that there was a principle of a “right to truth” that rendered the defendant’s conduct lawful under English law. The defense also submitted that the exposure of information related to war crimes was necessary to preventing dangers and injury to life, and a finding of dual criminality would mean this was incorrect. The Court outlined that dual criminality was only determined by examining the documents for an extradition request. The defense’s submission was based on evidence outside the request and could not be used. It had to be dealt with at trial, not extradition proceedings.
The defendant could not claim to be preventing harm if he simultaneously stated that he was unaware of the information’s content until it was in his possession. Additionally, the defendant could not identify any dangerous public incident which his disclosure helped to avoid. The defendant’s wish to expose criminal conduct was not a defense and nor was it a “public interest” defense under the OSA 1989, as determined by Shayler.
Bars to Extradition
The defendant claimed that the extradition was barred by reason of extraneous considerations, according to section 81(a) and (b) of the EA 2003. Specifically, US officials and politicians had applied pressure to “escalate the charges” [para. 153] as part of a “war on journalists” [para. 153]. The extradition request was politically motivated. The US refuted any political motivations and noted that the alleged offences were narrowly crafted with an objective basis.
The Court was satisfied that the charges against the defendant were brought in good faith and were not the result of pressure or any political hostility. Any inimical views cited were immaterial and did not translate into a broader posture or a basis for the charges themselves. Furthermore, there was no evidence to suggest that the defendant would not be given a fair trial or suffer punitive treatment in a prejudiced manner. Instead, proper US procedures would prevail, and officials would operate above any political animus or direction.
The defendant also claimed that the extradition would be unjust and oppressive by reason of the lapse of time, according to section 82 of the EA 2003. The Court noted prior case law that outlined a person could not rely on this bar to extradition if they were responsible for the time delay, particularly by avoiding arrest. In this case, the Court observed that the defendant had remained in the Ecuadorian embassy during most of the investigative period, deliberately out of authorities’ reach. The submission was rejected.
The defendant argued that extradition breached the European Convention of Human Rights – particularly Article 3, 6, 7, 10 – and should be refused pursuant to section 87 of the EA 2003.
Regarding Article 10, the defense had to establish that the extradition would produce a “flagrant denial or gross violation” of the defendant’s rights, as to “completely den[y] or nullif[y]” [para. 269] them in the US.
The defense argued that the prosecution would be prevented by a US court pursuant to the First Amendment, showcasing that Article 10 was engaged. It also reiterated that the ordinary journalism was being criminalized – the US Constitution curtailed only limited forms of speech and there was no criminality in other similar circumstances. The defense added that safeguards in the OSA 1989, which enabled compliance with Article 10, were unavailable in the US.
The US countered that the First Amendment did not protect journalists who violated criminal law and that the defendant was not analogous to a journalist based on his activities – hence why he was distinctively being charged. Regarding the parallel process of the OSA 1989, the disclosure of informants would still not have been allowed to take place under that regime. Nonetheless, the US maintained avenues for military members to engage in whistleblowing.
The Court emphasized that the First Amendment protected speech similarly to Article 10 and would fairly apply to the defendant, arguing that no authority suggested the contrary. It also reemphasized that the defendant’s conduct was capable of breaching criminal laws in England and could not be exempted by Article 10. On that basis, prosecution in the US on the same grounds would not constitute a nullification of the defendant’s Article 10 rights.
Generally, the issues raised by the defense could be raised at a pre-trial stage or at a substantive trial. The Court believed that a US court would carefully consider the defendant’s First Amendment rights as they related to their equivalent legislation. Regarding comparable protections in the OSA 1989, US statutes did contain equivalent safeguards for whistleblowers which were contained in statutory provisions that were publicly available. The defense thus had the opportunity to review and comment on such material despite not doing so. Still, the disclosure by the defendant was so extensive that it was “unrealistic” [para. 267] to think that any authorization for it would have been provided or sanctioned by a court.
The defense failed to establish that extradition would constitute a flagrant denial of rights. Similarly, the Court rejected submissions that the US criminal justice system would fail in ensuring the defendant’s rights under Article 6 and 7 of the ECHR. It was unnecessary to consider Article 3 and the issue of health was dealt with pursuant to section 91 of the EA 2003.
The defendant claimed that extradition should be refused because it would be unjust and oppressive by reason of his mental condition and the high risk of suicide pursuant to section 91 of the EA 2003.
The Court heard from expert witness testimony on the defendant’s condition, the condition of US detention, and the issue of prison suicide. The Court accepted that the defendant suffered from a recurrent depressive disorder that was accompanied by psychotic features and suicidal thoughts. In addition, it accepted that the defendant suffered from autism spectrum disorder and Asperger’s syndrome disorder. The combination of these disorders equipped the defendant with the “determination, planning and intelligence” [para. 360] to commit suicide and heightened the risk of its realization. The Court found the risk “substantial” [para. 337].
The Court also noted that there was a real risk that the defendant would be subject to maximum solitary confinement when awaiting trial or as an inmate. The conditions and settings of his detention would restrict his physical contact and social interaction. It was agreed that the new conditions would have a “deleterious impact” [para. 340] on the defendant’s mental health and exacerbate his suicide risk. The Court was satisfied that the procedures in the US were not sufficient to prevent the defendant from finding a way to commit suicide with the “single minded determination of his autism spectrum disorder” [para. 362]. The extradition was found to be oppressive.
Abuse of Process
The defendant contended that extradition would be an abuse of process because the plaintiff’s request misrepresented the facts.
The Court determined that the standard for this defense was a situation in which an extradition request would lead to an extradition on facts known to be “clearly wrong”. This standard was not met in this case. Instead, the defense only provided alternative explanations for the allegations with substantive defenses and disputed evidence. The Court found that the defendant would not be prejudiced and would be able to argue his case at trial in the US.
In accordance with section 91(3) of the EA 2003, the Court ordered the discharge of the defendant.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression because the Court favored the prohibition of disclosure under the OSA 1989, noting that its standard was compliant with Article 10 of the ECHR. Such an interference with Article 10 rights was deemed to be necessary in a democratic society in the interests of national security, to the extent that it was used against the disclosure of informants. Specifically, the Court emphasized that data dumping was not equivalent to responsible journalistic practice. Free speech was not an absolute cover and did not provide individuals with the right to “decide the fate of others, on the basis of their partially informed assessment of the risks” [para. 135].
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Referenced by the Court to articulate that journalists can not simply claim exclusive immunity from ordinary criminal law because their actions are protected under Article 10. The scope of journalists’ responsibilities hinge on the “technical means” they use.
Referenced by the Court to note that the ECtHR had recognized circumstances where the release of information could be restricted under Article 10.
Referenced by the Court to note that the ECtHR had recognized circumstances where the release of information could be restricted under Article 10.
Referenced by the US and the Court as the primary law under which the defendant’s conduct constituted offences in England.
Referenced by the Court to note that the House of Lords considered the ECHR in the context of the OSA 1989 and found that the relevant provisions were compatible with Article 10 of the ECHR.
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