Assange’s bid for privacy is a dangerous precedent
Unless the media forces courts to justify keeping material from the media, the danger is that it becomes the default.
by Tim Dawson, NEC member
Unusual accord in the well of court closed the third September week of Julian Assange's extradition hearings. The prosecution and defence teams at the Old Bailey's Court 10 united to plead to safeguard the privacy of the Wikileaks founder.
The hearings, which will decide whether Assange is sent to the United States to face charges under the Espionage Act, commenced in February. Since the start of September, after a six-month interregnum, the court has been hearing from expert witnesses.
Most of these have been called by Assange's defence team. All have prepared lengthy written submissions to the court. Each expert's personal appearance (mostly by video link) is to allow for cross examination where their assertions are contested.
As each witness commences giving evidence, the court issues their written statements to media. These are vital to understand how the case will be decided. Most are broader in scope than the verbal testimony and some of the evidence is highly technical.
Last week was mostly occupied with medical evidence. This could be Assange's best hope of avoiding extradition. In 2018 the Court of Appeal ruled that computer hacker Lauri Love should not be extradited to the United States to face charges because doing so would be: "oppressive by reason of his physical and mental condition". The judges added: "We accept that the evidence shows that the fact of extradition would bring on severe depression and that Mr Love would probably be determined to commit suicide, here or in America."
With this in mind, team Assange called the doctors. Four psychiatrists and one physician gave lengthy assessments of Assange's physical and mental health, drawing on minutely recorded events while he was in 'healthcare' at Belmarsh, as well as his personal and family history. At times it made deeply uncomfortable listening.
It is uncontested that Assange has suffered from bouts of depression since childhood, exhibits autism spectrum disorder traits, and at times ruminates obsessively about suicide. Some assessments were a good deal more worrying. Assange attempted suicide once long before Wikileaks and has attempted to gather the means to take his own life since he was detained n Belmarsh.
As we heard the details of this, those of us reporting in court exchanged concerned glances. And when proceedings paused, we had a quick confirmatory chat to remind ourselves of the many well-established guidelines for reporting suicide. Where it is relevant, suicide attempts can be reported, but details about methods of self-harm should be excluded.
Several reporters requested copies of the statements by medical experts from the Clerk of Court. They would not be made public, came the prompt response. Just as quickly, Henry Vaughan from PA Media (the Press Association, as was) put in an application for the release of these documents (see below).
A couple of days later, Judge Baraitser invited verbal statements. Edward Fitzgerald QC, Assange's senior barrister told the court that release of the statements would be a needless intrusion into his client's privacy. Emily Pennink, another PA court reporter, made a very creditable appeal, telling the judge that: we all worked to strict editorial codes; that we believed that if the statement were important to the court the media needed to properly understand their contents to explain the case; and that keeping them secret is inconsistent with open justice. She stressed that our intention was never to compound the stress and anxiety on Assange through our application, but to be in the best possible to explain how the case was being conducted.
The judge then asked if there were specific elements of the statements that the media felt they needed to see? She allowed a couple of hours for those of us reporters present to assemble a further written statement.
The challenge was obvious. How could we journalists pinpoint the important elements of documents none had seen? We put our heads together and came up with a list of questions based on components of the verbal evidence suggestive of further important details in the written evidence. Our attempt is also below.
The relevant case law covering instances of this kind requires a judgement on the nature of the documents in question. Justice should be public, both to promote public understanding of the workings of the law, and to allow scrutiny of the work of the courts. This is known as the 'public justice principle'.
The presumption is that material laid before the courts is public, but there is no public right to such material. Where parties resist publication of statements before the court, those applying for access must show that disclosure will advance the open justice principle.
Judge Baraitser's ruling, when it came was no surprise. "The Press Association has not established good reason why the disclosure of the reports will advance the purposes of open justice. If I am wrong about this then the countervailing factors, in this case Mr Assange's private life, in my view prevents disclosure."
That skirmish is over.
There is, however, a broader issue that requires enduring vigilance. In the not-so-distant past all statements made to a court were read out. This allowed them to be reported, save where restrictions are imposed. The advent of lengthy written statements, publication of which is resisted, creates fresh scope for justice in the shadows.
It is also questionable whether inviting requests for release of specific elements of statement to which the applicant has no access is consistent with natural justice? A better solution would be to allow a representative journalist to see all papers in a supervised environment within the court. Such review could form the basis of a meaningful application for disclosure.
At very least reporters who witness material being withheld from the media should gird themselves to make similar applications. Secrecy is habit forming. Unless the media forces courts to justify keeping material from the media, the danger is that it becomes the default. It might not be the radical approach to transparency that Assange himself pioneered, but it is no less vital.
Tim Dawson is observing the hearing on behalf of the NUJ and the IFJ.
The original submission
The original submission in the name of Henry Vaughan, formerly on behalf of the Press Association, but with the support of all the journalists covering the case from the court.
The Press Association ("PA") seeks non-party access under this Court's inherent jurisdiction to the reports of Professor Michael Kopelman placed before District Judge Vanessa Baraitser for the hearing on 22 September 2019.
These proceedings – concerning the extradition of Julian Assange to the US – are of the highest public interest and this is key evidence in the case.
The witness repeatedly referred to paragraphs of his reports while giving evidence and counsel both for Mr Assange and the US Government also repeatedly took Professor Kopelman to sections of his reports. It is impossible to understand the evidence without having access to the reports.
All other witness statements in the case have been provided to the media and, while of a sensitive nature, PA sees no reason why this evidence should be withheld from the public.
Sensitive evidence in all manner of cases is heard in courts across the country every day and responsible media organisations are quite able to use their own editorial judgment to decide what is appropriate for publication.
PA respectfully submits that the principle of open justice requires that the reports should be provided to PA and other media organisations to assist in the fair, accurate and contemporaneous reporting of these proceedings.
Open justice and non-party access to court documents
"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law": R (C) v Secretary of State for Justice  UKSC 2 at .
The principle is "inextricably linked to the freedom of the media to report on court proceedings": A v British Broadcasting Corporation (Scotland)  UKSC 25 at .
This is because the press attend the courts as "the eyes and ears of the public to whom they report": McCartan Turkington Breen v Times Newspapers  2 AC 277, 290.
Reporters "scrutinise the judicial process … acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished": R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65 at .
In R (Guardian News and Media) v City of Westminster Magistrates' Court  EWCA Civ 420 Toulson LJ – with whom Lord Neuberger MR and Hooper LJ agreed – held at  that the "default position" should be to allow access to all documents placed before a judge and referred to in proceedings – "and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong."
In Cape Intermediate Holdings v Dring  UKSC 38, Baroness Hale PSC held at :
"The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. …"
Baroness Hale added at  that "the practicalities and the proportionality of granting the request" for non-party access are also relevant.
PA submits that this Court must carry out "a fact-specific balancing exercise", applying the test set out in Guardian News and Media at , Kennedy v Charity Commission  UKSC 20 at  and A v BBC at :
"Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others."
The Documents are sought for a "proper journalistic purpose", namely the contemporaneous reporting of legal proceedings, which "promotes public confidence in the administration of justice and the rule of law": R v Sarker  EWCA Crim 1341 at (iii).
In those circumstances, PA respectfully invites the Court to order non-party access to the Documents.
Second submission providing details of material that may be of use to the media, made by Emily Pennink of the Press Association, with the support of all the journalists covering the case from the court.
Re The United States of America v Julian Assange
Dear Judge Vanessa Baraitser,
Thank you for considering submissions on behalf of PA Media for disclosure of medical reports relied upon in the case of Julian Assange.
Before ruling on the matter, you invited members of the media to gather together some examples in support of our submissions.
Having consulted with my colleagues in the overflow courtroom and online, here are a number of aspects to the evidence they found hard or impossible to understand, incomplete, and requiring further explanation in order to fairly report on.
- The entire evidence of Dr Kathryn Humphreys was barely audible and read so fast it could not be understood.
- Evidence of Dr Kopelman and Dr Blackwood relating to paracetamol tablets and razor blades; their dispute over records of medical information at Belmarsh; hospitalisation in Belmarsh and reasons for it.
- During Dr Deeley's testimony there were references to ''2b and 3a'' which were the main traits used in the diagnosis of Asperger's syndrome. Parts were summarised but not all.
- Dr Deeley talked about examples from Dr Dreyfus. It was never explained what these examples of behaviour Dr Dreyfus provided were yet great emphasis was put on her interpretation of Mr Assange's behaviour as being Asperger's traits.
- In Dr Kopelman's report, Edward Fitzgerald QC read out bits of it in which he mentioned Assange had 'feelings of guilt' but it was never elaborated on.
On a general point, journalists following proceedings on the live link have struggled to hear the evidence in court and find the written reports an invaluable aide.
The ruling of Judge Venessa Baraitser delivered on 28 September 2020
- This is an application by the Press Association for disclosure of each of the medical reports identified during the submissions last Friday and received by the court during the course of the extradition hearing. The application was made initially in writing and then by way of oral submissions by Miss Pennink before the court. The defence and the Crown Prosecution Service acting on behalf of the US government jointly oppose this application.
- Last year, the Supreme Court considered how to approach an application by a third party for the disclosure of documents and laid down some important principles. During was a case in which it was alleged that the respondent company, Cape Intermediate Holdings Limited had been negligent in the production of asbestos insulation boards which had led to its former employees becoming ill. A forum which supported people who suffered from asbestos-related diseases and which was not involved in the case, applied for access to documents which it believed would contain valuable information about the dangers of asbestos and the research which the industry had carried out.
- Lady Justice Hale gave the judgment of the court. In summary, she confirmed that the principle of open justice applies to all courts exercising judicial power, and that the court has an inherent jurisdiction to determine what the principle of open justice requires in terms of access by the public to documents received by the court. The question is how the jurisdiction should be exercised in a particular case. She confirmed that the purposes behind the open justice principle were two-fold; the first to enable public scrutiny of the way in which courts decide cases, the second to enable the public to understand how the justice system works and why decisions are taken.
- She acknowledged that the Guardian news and media case had decided that the default position is that the public should be allowed access to documents placed before the court and referred to during the hearing. However, she stated that although the court has the power to allow access, the applicant has no right to be granted it save to the extent that the rules grant such a right and that it was for the person seeking access to explain why granting access would advance the open justice principle.
- She considered that non-parties should not seek access unless they can show a good reason why this will advance the open justice principle. If they were able to show a good reason then the court must carry out a fact specific balancing exercise. On the one hand it should consider the purpose of open justice and the potential value of the information in advancing that purpose, on the other hand, any risk of harm which its disclosure may cause to amongst other factors the legitimate interests of others including the protection of privacy interests more generally.
- In this case, the Press Association state that they see no reason why these statements should be withheld from the public. They submit that sensitive evidence in all manner of cases is heard in courts across the country every day and responsible media organisations are quite able to use their own editorial judgment to decide what is appropriate for publication. More specifically, in relation to Professor Kopelman, they state that he repeatedly referred to paragraphs of his report whilst giving evidence which made it impossible to understand the evidence.
- More specifically still, in relation to Professor Kopelman and Dr Blackwood, the Press Association identify the following incidents which the reports would have assisted them to understand; the recent incident involving (…detail omitted…) last year in Mr Assange's cell, the discussion of the content of his medical records from Belmarsh, and his hospitalisation as they put it in Belmarsh by which I assume they mean his transfer to the medical wing and reasons for this.
- In relation to Dr Deeley they stated their concern that references were made to 2b and 3a used in the diagnosis of Asperger's Syndrome and they were not told of examples of these traits given to Dr Deeley by Dr Dreyfus. And more generally they submitted that journalists were following proceedings through a live link and have struggled to hear the evidence in court and that the written reports would be an invaluable aid to them.
- First, dealing with this last point, audibility issues relating to the live link do not have a bearing on the issue of disclosure of documents. Any issues with technology which interferes with open justice is clearly important but must be raised as a separate issue. I was not aware there were difficulties in hearing these proceedings and if there is a problem it really must be brought to my attention so that I can deal with it. There is a dedicated technician here at court and a team that supports the CVP platform but unless the problem is made known to me I cannot address it. Any difficulties experienced in hearing the proceedings must be raised separately and are not a reason to provide the reports.
- I have already indicated regarding Dr Humphreys, her edited statement was read out in open court on 23 September. The defence have already voluntarily disclosed this edited statement and put it into the public domain. There is no risk of harm in a copy of the edited statement being provided to the press and this will be disclosed.
- Dealing with the specific concerns raised by the evidence of Professor Kopelman regarding the (…detail omitted…) incident, this took place after the preparation of all reports and is not included to my knowledge in any of them. Regarding the (…detail omitted…) incident, this was referred to extensively in evidence. Professor Kopelman confirmed that Mr Assange said that he had been charged by prison staff under the internal prison rules with possession of a (…detail omitted…). This was not disputed by the government. Later, the defence produced a notice of report or "nicking sheet" confirming that Mr Assange had been charged with possession of this item but that this charge was later dismissed. That in my view is a full picture of this incident and the report adds nothing further.
- In relation to the medical records, these are detailed entries about Mr Assange's day-to-day medical care made by various medical and nursing practitioners. They contain private interactions between Mr Assange and the medical team treating him and include personal disclosures. Both the defence and the government relied on many of these entries to advance their respective cases and in this way a significant part of the notes were made public. I have no reason to consider that a full set of the notes needs to be disclosed to understand the decisions that I will in due course make.
- The issue of Mr Assange's hospitalisation is simply a misunderstanding of the evidence given by Professor Kopelman. He clearly stated in open court that from 18 July 2019 for a period of about six months, Mr Assange was placed in an isolated cell or single cell in healthcare by which he clearly meant the healthcare unit within the prison. Professor Kopelman stated his opinion in open court that whilst on this unit, Mr Assange suffered from a severe depressive episode with somatic symptoms. He stated that after Mr Assange left the unit and was returned to the general wing his diagnosis changed. When he saw Mr Assange in February and March 2020 he found him to be moderately depressed. All of this was stated openly in court.
- Regarding the circumstances in which Mr Assange was transferred into healthcare, this again was dealt with in detail in open court. In his cross-examination of Dr Blackwood, Mr Fitzgerald took him to the ACCT review of 18 May 2019 and read out the entry in full which discusses the reasons for his transfer. This is already therefore in the public domain.
- Regarding a reference to feelings of guilt raised by Press Association said to have been made by Professor Kopelman in evidence, I could find no reference to this but in any event this comment alone does not require the document to be disclosed.
- In relation to Dr Deeley, the traits 2b and 3a are simply the publicly available diagnostic criteria for autism spectrum disorder set out in the ICD10, the tenth edition of the International Classification of Diseases.
- In relation to the examples provided by Dr Dreyfus to Dr Deeley, Dr Deeley gave examples of this reported behaviour in his evidence. He provided examples of Mr Assange's difficulty in modulating his behaviour according to social contexts and his idiosyncrasies of verbal communication. In my view this was sufficient to give the press and the public an understanding of the behaviour that supported Dr Deeley's diagnosis.
- I appreciate of course that the press cannot have provided every example of incidents they felt needed further explanation but the sample they did provide gives an indication of how much of the experts' reports were referred to in oral evidence. Nor is this surprising, given the importance to each side, of eliciting or challenging the basis for the findings and opinions of the experts so that they could make good their points.
- I note that all other documents in this case including all written submissions and all other witness statements have been disclosed to the press without resistance and it is only the medical evidence that both parties seek to withhold. I note too in this instance the defence and the Crown Prosecution Service are united in their opposition to disclosure. As far as the CPS is concerned they have supported the defence in opposing the application with no obvious advantage to their client, the US government.
- Taking all of this into account in my view, the Press Association have not established good reason why the disclosure of the reports will advance the purposes of open justice. If I am wrong about this then the countervailing factors, in this case Mr Assange's private life, in my view prevents disclosure. Each report reveals Mr Assange's account of himself and his private suffering to the assessing doctor. Each report also reveals wide-ranging and personal background information about Mr Assange from his infancy to the present time. They contain references to his family, his friendships, and to his children.
- In this case, even if the Press Association have shown good cause for the disclosure advancing the purposes of open justice, it would in my view be a disproportionate interference with Mr Assange's privacy to do so. And therefore, save for the statement of Dr Humphreys as previously indicated, this application is refused.