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The year began with a legal defeat for an attempt to extradite Julian Assange to face espionage charges in the US, but he has remained in Belmarsh prison pending an appeal.
When it takes place at London’s high court on Wednesday and Thursday, at least three developments over recent months could be potential gamechangers in the long-running battle over the WikiLeaks co-founder’s future.
One of them – a near unprecedented package of assurances from the US that Assange would not be held under the strictest maximum-security conditions and could serve jail time in his native Australia – is likely to be the biggest challenge for his legal team, say experts.
The assurances were put forward this year as part of US attempts to overcome the ruling in January by the district court judge Vanessa Baraitser that Assange could not be extradited because of concerns over his mental health and risk of suicide in a US prison.
“What his legal team is likely to do is attempt to undermine and pick holes in those assurances by suggesting that they are not as watertight as they appear,” said Nick Vamos, a partner at Peters & Peters solicitors in London and a former head of extradition at the Crown Prosecution Service (CPS).
Also likely to be pivotal is Assange’s health, itself the focus of much expert evidence during the weeks of extradition hearings presided over last year by Baraitser and which has continued to be a focus of concern for his fiancee, Stella Moris.
“If there is new medical evidence to suggest his condition has worsened, his lawyers could argue that the US assurances, even if taken accepted at face value, don’t meet his needs given that his medical position is different,” said Vamos.
In August Assange’s lawyers lost a court battle to prevent the US government expanding the grounds for its appeal when judges agreed Baraitser had given too much weight to the evidence of Prof Michael Kopelman, a psychiatrist who said he believed Assange would take his own life if extradited. A barrister for the US argued that Kopelman had failed to include in his report the fact that Assange had fathered two children with Moris.
On Thursday, when Assange’s lawyers will follow the presentation of lawyers for the US the day before, they may try to counter questions about Kopelman’s omission of details about Assange’s partner and children by emphasising security concerns. They will also point to claims made last month in an investigation by Yahoo News, based on interviews with former US officials, that plans to kidnap or assassinate Assange were considered.
Another recent development that has been seized upon by supporters of Assange, including the US whistleblower Edward Snowden, has been the apparent recanting of evidence by a witness in the US case, who now says the testimony attributed to him by the FBI was “a mistake”.
Sigurdur Thordarson, who was a teenage worker at WikiLeaks before becoming an FBI informant, broke cover during the summer when an Icelandic news website, Stundin, reported that he had “fabricated” evidence cited by the US.
The 28-year-old – who received a promise of immunity from prosecution in return for co-operating with the FBI – has since told the Guardian that his participation with US authorities was borne “out of fear” because he knew that charges were ready to be filed against him over hacking allegations.
“I was not expecting that the indictment from the US … would make a major mistake like this. If this helps Julian to be freed from prosecution … furthermore the extradition, then I’m very happy that would help,” said Thordarson, who has a series of convictions for sexual and financial crimes in Iceland.
His comments may be cited this week by Assange’s lawyers, though they are much more likely to form a key part of a cross-appeal that has been lodged and which only comes into play if the US is successful this week.
Irrespective of his credibility – and Thordarson accepts that his convictions “can be used against me” – Vamos suggests that the Icelander’s apparent about-turn could have a critical impact on the case, although he regarded it as an unknown quantity.
“Either way, it’s an issue which Assange’s lawyers will say the US must address, because the US cannot simply insist that nothing about the prosecution case has changed,” he added.
The legal war of attrition has taken place against the backdrop of continued support for Assange. On Friday a “tribunal” put US foreign policy on trial in a show of support for Assange by people including Snowden, Jeremy Corbyn, and the former Ecuadorian president Rafael Correa.
Rebecca Vincent, the director of international campaigns at Reporters Without Borders (RSF), told the Guardian that there had been a heightened level of international attention in the case over the past year, but with an underestimation of the gravity of the situation from a press freedom perspective.
“That it has come this far has already had a chilling effect on national security reporting around the world. A tendency remains among some to compartmentalise this, or take a particular position based on personal views of Julian Assange, but if the US is successful in securing his extradition then the precedent it could set for any media organisation cannot be overstated.”
Whatever the outcome of this week’s appeal, legal experts including Vamos doubt Assange will be able to be released on bail until all options up to an appeal to the supreme court are exhausted by the US such is the weight given to his flight risk. This is informed by the 2,487 days spent in the Ecuadorian embassy to avoid extradition to Sweden to face sexual assault allegations that he has always denied.
Such an appeal process could take years, though there is a scenario in which he might be released within weeks. This would be if this week’s appeal proceedings go against the US, and the UK supreme court was swiftly to signal that it would not hear an appeal.