Judge refuses fresh evidence in Assange appeal, but there are at least two Get Out Of Jail cards

On 8 June, high court judge Jonathan Swift announced that WikiLeaks founder Julian Assange’s appeal against extradition to the US has failed. Swift’s rulings are here and here.

The rulings came just days after it was revealed that new evidence had been withheld by police in Spain. That evidence appears to further demonstrate the political nature of the Assange prosecution.

Meanwhile, Swift has given Assange’s lawyers until Tuesday 13 June to submit another appeal. However, he made it clear that any appeal should not include a submission of fresh evidence. Nevertheless, it would be remiss not to explore this new evidence.

The surveillance

Spanish security firm UC Global conducted surveillance on Assange and his visitors inside the Ecuadorian Embassy in London over several years:

A former employee of UC Global testified that David Morales, the firm’s head, made it clear that it was his “American friends” who requested the surveillance. He even arranged for the surveillance to be streamed to the US.

The connection between Morales and US intelligence was first brought to the attention of the London court by Assange’s defence lawyer Gareth Peirce

Assange has accused Morales of violating his privacy

Newly revealed evidence

The new evidence was revealed during the ongoing investigation of Morales in a Madrid court. This evidence consists of files marked on an external hard drive as “CIA,” “Embassy”, and “Videos”.

WikiLeaks journalist Kristinn Hrafnsson published a screenshot of the files:

CIA claims there is no proof security guards in the Ecuadorian embassy spied on Julian #Assange and his guests, for the agency. Yesterday El Pais published this screen shot from the computer of the security guards CEO, now a suspect in Madrid. His folders are clearly marked CIA pic.twitter.com/nCU0ctPjY7

— Kristinn Hrafnsson (@khrafnsson) June 5, 2023

How the new evidence was discovered

Assange’s lawyers were active in exposing the missing UC Global surveillance files.

Spanish news outlet El Pais explained:

The discovery of these new clues about the CIA’s spying on the cyberactivist — who remains imprisoned in a London jail — is no accident. Assange’s lawyers found problems when downloading the records uploaded to the cloud.

They managed to get Judge Santiago Pedraz — who is overseeing the case — to authorize a second copy of the material seized by the agents.

Failure to disclose evidence

Spanish police failed to disclose the new evidence to the Madrid court. Its concealment is of direct relevance to Assange’d extradition proceedings.

Regarding the non-disclosure of evidence, the Crown Prosecution Service (CPS) is quite clear:

A failure by the prosecutor or the police to comply with their respective obligations… may result in a defence application to stay proceedings as an abuse of process, the exclusion of material evidence or a successful appeal.

Two famous cases of non-disclosure in the UK resulted in the quashing of convictions and the accused set free.

One saw the collapse of the Ratcliffe and Drax trials of environmental activists and their convictions quashed. Both trials showed the CPS withheld evidence that undercover officer Mark Kennedy was pivotal to the actions.

In another case, four people known as the ‘Guildford Four’, accused of bombing a pub, had their convictions quashed too. That was after defence lawyers – including Peirce, who represents Assange – revealed that police had withheld evidence of their innocence.

Surveillance breaches confidentiality

CIA spy-craft could be regarded as par for the course.

But that’s not necessarily true in this case. In September 2019 the Canary reported that the surveillance on the Ecuadorian Embassy involved monitoring of meetings between the Wikileaks founder and his lawyers. The lawyers included Melynda Taylor, Jennifer Robinson, and Baltasar Garzón.

Indeed, the Madrid court was told that Morales:

had received explicit requests for information, which stated on several occasions that these requests came from the US, in the form of a list of targets which were communicated via email, telephone and verbally. The security personnel deployed in the embassy were instructed to pay special attention to these targets. Among them, special attention had to be given to Mr. Assange’s lawyers.

Thus the newly revealed evidence could throw more light on these breaches of client-lawyer confidentiality. Such breaches would normally see a case voided.

It’s not over yet

Given Swift’s rulings, any appeal submitted on Tuesday will likely be about points of law.

However, as his wife Stella Assange points out, there’s a possibility that Swift’s rulings could be bypassed:

Statement:

On Tuesday next week my husband Julian Assange will make a renewed application for appeal to the High Court. The matter will then proceed to a public hearing before two new judges at the High Court and we remain optimistic that we will prevail and that Julian will not…

— Stella Assange (@Stella_Assange) June 8, 2023

Assange’s ‘get out of jail’ cards?

There are at least two more Get Out Of Jail options available to Assange’s legal team. For example, an earlier appeal to the European Court of Human Rights (ECHR) is yet to conclude. It’s possible the ECHR could issue an injunction to delay the extradition until it can examine the case further.

Should that option fail, Assange lawyer Jennifer Robinson has argued for a political solution. One suggestion is that the US and Australia agree on a deal that takes into account the time served by Assange in Belmarsh prison.

Matters may be coming to a head.

Featured image via YouTube – Zabby