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Julian Assange’s extradition trial: Could assurances help tighten the noose around Nirav Modi?

LONDON CALLING: WikiLeaks founder Julian Assange’s extradition trial just took a complete turn. On Friday, the United States won the appeal in the High Court in London, forcing Westminster Magistrates’ Court to re-evaluate its decision that went in Assange’s favour. Can India pull a similar victory in Nirav Modi’s case? Ruhi Khan argues that as extradition never happens in isolation, this judgment in the beleaguered scribe’s case has set a difficult precedent for the imprisoned diamantaire.


By Ruhi Khan, 11 Dec 2021


As the crowd gathers outside the Royal Courts of Justice in the heart of London, chants of ‘Free Assange’ and ‘Save Press Freedom’ reverberate in the biting wintry breeze. Julian Assange, the founder of WikiLeaks and a journalist icon for many, is facing an extradition trial brought forth by the United States of America for 18 counts of criminal charges relating to WikiLeaks’ release of a cache of confidential US military documents and diplomatic cables, primarily in 2009-10, which America claims had put lives at risks.

Australian-born Assange was not in the courtroom, but rather in a dingy room behind bars in a supermax prison miles away in south-east London, waiting to hear the judgment on a small screen where sitting before him on the video link is none other than the head of the judiciary in England and Wales, Lord Chief Justice Lord Burnett of Maldon, along with Lord Justice Holroyde.

The 50-year-old journalist, who spent most of the last decade in self-exile, had tasted victory just a year ago in January 2021 when district judge Vanessa Baraitser at the Westminster Magistrates’ Court had ruled against an extradition request made by the United States in July 2020.

Assange had managed to escape extradition on only one ground. Baraitser had ruled that if held in a high-security American prison, Assange, would face a high risk of suicide as he “has the intellect and determination to circumvent suicide prevention measures” and so his extradition would be “oppressive by reason of mental health”.

The U-turn in the high court

The US then appealed at the Royal Courts of Justice against the trial court’s decision arguing that it had misjudged the evidence of suicide risks in Assange’s case. In written submissions made before the High Court, James Lewis QC, representing the US, emphasised that Assange has not made “the sort of serious attempt on his life or have the history of serious self-harm seen in other cases” and has “never previously suffered from the sort of mental health condition that deprived him of the ability to make rational choices.”

Lewis had stressed that the suicide rate in US prisons is “substantially lower” than in British jails and provided four assurances from the US to convince the high court that the district judge’s decision must be overturned. The two-judge bench was satisfied with the sovereign assurances on the conditions of Assange’s detention: not being subjected to special administrative measures; not holding him in a so-called “ADX” maximum-security prison in Colorado and consenting to transfer him to Australia to serve his sentence, if convicted.

The US won the appeal in the high court against the decision of the lower court to bar his extradition. This has now put Assange one step closer to being extradited to the US.

Edward Fitzgerald QC, representing Assange, did not find the assurances convincing enough to mitigate the risks of “conditions of administrative isolation”. In his written statement before the court, Fitzgerald had mentioned that Assange was a victim of “extreme measures of surveillance” during his refuge in the Ecuadorian Embassy and “recent disclosures about CIA plans from the same period in time to seriously harm Julian Assange”.

Assange’s fiancée Stella Moris was present outside the court and expressed her anguish to journalists and supporters. “How can it be fair, how can it be right, how can it be possible, to extradite Julian to the very country which plotted to kill him?” Moris accused the UK of imprisoning journalists “on behalf of a foreign power”.

While Assange won the case in the trial court on human rights grounds; on the day that is observed as the Human Rights Day, he was unable to convince the high court to not overturn that decision.

‘Uncomfortable truths’

Earlier Assange had faced an extradition request by Sweden to stand trial in sex offences.  The case had gone all the way to the Supreme Court and on 30 May 2012, the apex court finally rejected his appeal against the extradition order. This is when he took refuge in the Ecuadorian embassy in June 2012. Over the years, three of the offences for which he was wanted in Sweden became time-barred in August 2015 and on 19 May 2017 the Swedish prosecutor announced that she was discontinuing the prosecution for the fourth.

Assange, who after his arrest from the Ecuadorian embassy in April 2019, has been lodged in HMS Belmarsh, a high-security men’s prison, allegedly suffers from depression and was once found with a razor blade in an attempt to commit suicide. His brother Gabriel Shipton says he’s only held in prison because the US has opposed his bail. “It’s eleven years since Julian was arrested in England, the Biden administration needs to let it go,” he says.

From US politicians like Sarah Palin and Tulsi Gabbard to world leaders like Argentina’s President Alberto Fernandez, from actor Pamela Anderson to singer MIA, from designer Vivienne Westwood to journalists like John Pilger, from whistle-blower Edward Snowdon to intellectuals like Noam Chomsky and from his family to hundreds of concerned citizens, Assange has never been short of supporters.

Christophe Deloire, secretary-general of Reporters Without Borders, was at the high court, calling the ruling “historic for all the wrong reasons” as Assange was “targeted for his contribution to journalism”. Veteran journalist John Pilger said, “Mark this day as fascism casts off its disguises” and WikiLeaks editor-in-chief Kristinn Hrafnsson promised that the fight will not end here even though “a UK court throws investigative journalism into darkness”.

Even British parliamentarians raised concerns. Former leader of Labour party, Jeremy Corbyn said Assange should not be extradited for “revealing uncomfortable truths” while former Brexit minister in the Tory cabinet, David Davis, said that this verdict exposed how “unjust, unfair and asymmetric” UK extradition arrangements are with the US.

Spotlight on cases from India

Extradition cases from India have occupied a rather interesting position in the UK courts due to their complexity and detailed arguments. Assange’s defence team included Edward Fitzgerald (Nirav Modi’s barrister) and Mark Summers (who represented India in the Vijay Mallya extradition case. Assange’s trial saw several references made to extradition requests from India.

Sanjeev Chawla, the bookie who is accused of fixing India- South Africa cricket matches in 2000 along with the late South African skipper Hansie Cronje and others, saw a similar trajectory in his extradition trial. Like Assange, Chawla had won the case in the district court on the grounds that his human rights will be breached in the prison in India. India appealed to the high court against the decision, produced sovereign assurances and won.

The case went back to the Westminster Magistrate’s Court, the decision was overturned and Chawla was extradited to India. He was then lodged in Tihar jail and is now out on bail.

The London-based husband-wife duo Arti Dhir and Kaval Raijada, who adopted an orphan in India only to have him allegedly murdered later for Rs 1 crore insurance pay-out, found the district judge give a decision in their favour when a law in the state of Gujarat did not allow parole for a double murder and was found to be oppressive to their human rights.

India appealed against this decision in the high court and the court gave India permission to submit timely assurances by competent authorities that could satisfy the district judge’s concerns (much like in Assange’s case). But unlike the US, India failed to do so and the couple won their freedom.

Raymond Varley (aka Martin Ashley), the paedophile accused of crimes against children in the infamous Gurukul orphanage in Goa along with its proprietor Freddie Peats in the 1990s, had his extradition trial discarded due to mental health concerns. Varley had produced a witness statement by a medical expert as evidence that he suffers from dementia and this affects his mental capacity to effectively participate in the trial in India.

Since this report went unchallenged by India, Varley was let off. In Assange’s case, the prosecution challenged the testimony of the expert witness Professor Michael Kopelman, head of neuropsychiatry at King’s College London, and made every attempt to discredit it.

Nirav Modi case: In Assange’s shadow

The greatest repercussion of Assange’s high court judgment could be on the trial of Nirav Modi, India’s diamantaire accused of multi-crore banking fraud. Modi has been in prison since his arrest in March 2019 and a judgment by the Westminster Magistrates’ court ordered his extradition to India on 25 February 2021. Modi then appealed to the high court to overturn this judgment and the court has agreed to hear why his extradition would be oppressive on mental health grounds – under Article 3 of the European Convention of Human Rights and Section 91 of the Extradition Act 2003. His hearing is scheduled for December 14.

Like Assange, Modi’s best defence has been to highlight how much he has mentally suffered in the British prison and the fear of a worse fate in Indian jails. Modi, like Assange, has been termed ‘a suicide risk’ by his defence to evoke human rights provisions to safeguard him against extradition to India. Modi will appeal on mental health grounds under Section 91 of the Extradition Act 2003, which is the provision that secured Assange his freedom in the district court.

This high court judgment in Assange’s case draws attention to an important though controversial instrument – sovereign assurances – regularly used in extradition cases now. Countries can use written assurances to mitigate the concerns that arise in court whether on prison conditions or judicial provisions. Increasingly, such assurances seem to find resonance with the judiciary if they come from democratic nations that have good diplomatic relations with the UK, and includes the US and India.

Assurances on prison conditions were accepted in the extradition proceedings of Sanjeev Chawla, Vijay Mallya and these cases went in India’s favour. Assurances were not accepted in Dhir-Raijada’s case as they were not from the correct authority and were not delivered on time, and India lost. Assurances could not override concerns of safety in the case of fugitive Ivor Fletcher, accused in a drug case in Himachal Pradesh, who argued that he was suicide-prone.

However, experts argue that assurances are just good on paper and should be accepted with caution. Assange’s counsel Mark Summers argued in court that even with assurances there remains a substantial risk that Assange could be subjected to other restrictive forms of detention and a long period of trial, which will isolate him further and could “exacerbate his mental condition and lead to suicide”.

Summers also invited the court to “doubt the trustworthiness of the assurances in the exceptional circumstances of this case” as in other cases US has acted in breach of assurances given to the UK. None of these arguments could convince the high court. Similar arguments made in extradition cases of Indian fugitives also did not seem to cut any ice.

Calling Assange’s verdict today a “travesty of justice Nils Muižnieks, Amnesty International’s Europe Director said: “By allowing this appeal, the High Court has chosen to accept the deeply flawed diplomatic assurances given by the US that Assange would not be held in solitary confinement in a maximum-security prison. The fact that the US has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on.”

Yet these assurances stand as a barrier between Julian Assange and freedom. Could India capitalise on this provision in the UK judiciary to seal the fate of Nirav Modi?

 

Ruhi Khan is a journalist based in London and author of Escaped: True stories of Indian fugitives in London. She tweets @khanruhi. Picture Credits to Ruhi Khan.