The extent of undisclosed conflicts of interest involving the Chief Judge overseeing the case of WikiLeaks' founder Julian Assange were revealed in a detailed analysis by British historian Mark Curtis and investigative journalist Matt Kennard, published on 14 November 2019.

In 2018, former British diplomat and whistleblower Craig Murray revealed that the husband of Senior District Judge Lady Emma Arbuthnot, the Chief Magistrate of England and Wales, ran a security firm with the former head of the Secret Intelligence Services (SIS, aka MI6). Judge Arbuthnot made rulings which directly, and negatively, impacted the case of WikiLeaks' publisher Julian Assange; a case she continues to oversee as Chief Magistrate.

Mark Curtis and Matt Kennard's new report, published on 14 November in the DAILY MAVERICK, significantly builds upon Murray's article, revealing an expansive web of national security state connections, all of which Judge Arbuthort failed to disclose as potential conflicts of interest while she dealt with Assange's case.

Lord James Arbuthnot and the National Security State

As an MP James Arbuthnot, Judge Emma Arbuthnot's husband, who later joined the House of Lords, was a member of the Intelligence and Security Committee, the Defence Committee, the National Security Strategy Joint Committee, and the Armed Forces Bill Committee. He is also, "currently an officer of the all party parliamentary group on cybersecurity which is administered by the Information Security Group (ISG) at Royal Holloway, University of London". The authors point out that the ISG manages a project, "partly-funded" by the Government Communications Headquarters (GCHQ) surveillance and spy agency.

Arbuthnot's husband is also the chair of the advisory board of drone manufacturer Thales.

Curtis and Kennard write:

"Thales also has major contracts with the MOD including a £700m drone project and a £600m deal to maintain the Royal Navy’s warships. One of Thales’ lucrative business lines is 'cybersecurity' and its website disparagingly refers to WikiLeaks and Assange personally as being able to 'steal' information".

Judge Emma Arbuthnot and Her Husband Received Gifts from Bechtel and the Turkish State

The report reveals that according to the parliamentary Register of Member's Financial Interests, "when Lady Arbuthnot was in her former position as a district judge in Westminster, she personally benefited from funding together with her husband from two sources which were exposed by WikiLeaks", Bechtel and the Turkish state.

In 2014, the Turkish state paid for flights and expenses amounting to £2,426 for Judge Arbuthnot and her husband to visit Istanbul, “to promote and further bilateral relations between Britain and Turkey at a high level”. That same year, the military and infrastructure firm Bechtel Management Company Ltd provided Judge Arbuthnot and her husband with £1,250 worth of tickets for the Chelsea Flower Show. The report notes that Bechtel, an organisation which supplies the UK government with hundreds of millions of pounds sterling worth of military equipment, was revealed by WikiLeaks to "have pressured the [Egyptian] Ministry of Electricity and Power to award [Bechtel] a tender for technical consultancy and design of Egypt’s first nuclear plant".

Judge Arbuthnot Ruled Against Assange, While Her Husband Lord Arbuthnot was in Turkey with Members of UK National Security State

Judge Arbuthnot became involved in Assange's case around September 2017, according to the report, and her involvement continued to February 2018 when she decided to uphold the arrest warrant issued against Julian Assange for "skipping bail". At the same time as Arbuthnot was ruling on Assange's case in February 2018, her husband was part of a paid delegation to Turkey. This was at a time when the consequences of WikiLeaks revelations regarding members of the Turkish state were still reverberating inside Turkey. In December 2016, WikiLeaks published "Berat's Box", an "authoritative", searchable archive revealing the personal details of Turkish officials.

Significantly, her husband Lord James Arbuthnot:

"was part of a four-member delegation, the others being Baroness Neville-Jones, a former chair of the British joint intelligence committee, which co-ordinates GCHQ, MI5 and MI6; Lord Polak, the president of Conservative Friends of Israel; and Lord Trimble".

Some of the people they met on the trip include Turkey's foreign minister and energy minister, whose personal emails were published in WikiLeaks' “Berat’s Box” release.

The consequences of this release were quite serious. The Turkish state banned access to WikiLeaks inside Turkey and prosecuted and imprisoned journalists who reported on the story, according to the report.

Thus, at the same time Lady Arbuthnot was presiding over Assange’s legal case, her husband was holding talks with senior officials in Turkey exposed by WikiLeaks, some of whom have an interest in punishing Assange and the WikiLeaks organisation. These consequences, "were ongoing at the time of the Lords’ meetings in Turkey". Furthermore, the organisation that paid for the visit by Lord Arbuthnot and the other three, was the Bosphorus Centre for Global Affairs. An organisation which “Berat’s Box” revealed, "acted as a government front to suppress reporting critical of the government. The centre has also been exposed as running a number of pro-government troll accounts", according to the report.

Conflict of Interest Guidelines for Judges

Yet there is no record of Judge Arbuthnot ever declaring any conflicts of interest in Assange's case, despite the connections she and her husband had to people and organisations that have a) openly opposed WikiLeaks and/or b) have been the subject of exposés by WikiLeaks.

According to[pdf, p6-7] the The Guide to Judicial Conduct, which was in effect from March 2013, until it was superceded by an updated version in March 2019:

"Because the judge’s primary task and responsibility is to discharge the duties of office, it follows that a judge should, so far as is reasonable, avoid extra-judicial activities that are likely to cause the judge to have to refrain from sitting on a case because of a reasonable apprehension of bias or because of a conflict of interest that would arise from the activity".

Curtis and Kennard also point to[pdf, p3] of the judicial guidance for magistrates from the Lord Chancellor and the Lord Chief Justice:

“Members of the public must be confident that magistrates are impartial and independent. If you know that your impartiality or independence is compromised in a particular case you must withdraw at once… Nor should you hear any case which you already know something about or which touches upon an activity in which you are involved”.

It is worth noting that in 1999, the UK House of Lord's (now known as the Supreme Court) reversed a decision to approve the extradition of former Chilean President Augusto Pinochet to Spain, where where he faced charges of crimes against humanity, because one of the judges had connections to Amnesty International (which had long criticised the human rights record of Pinochet).

Judge Arbuthnot's Dismissal of Assange's Appeal

In December 2015, the United Nations Working Group on Arbitrary Detention concluded that Julian Assange, "was being arbitrarily deprived of his freedom and demanded that he be released". A decision which the UN affirmed in December 2018. The body determined that Assange should be permitted to leave the Ecuadorian Embassy in London and travel to Ecuador where he was granted asylum.

In February 2018, while Assange was still in the Ecuadorian Embassy Judge Arbuthnot considered and dismissed an appeal lodged by his lawyers asking the court to quash his arrest warrant. His lawyers argued that[pdf, p2]:

"the court should now find that any proceedings for failing to surrender are disproportionate and not in the public interest and that in the circumstances the... warrant should be withdrawn".

Among the key arguments put in favour of Assange's appeal to dismiss the warrant were:

Assange had reasonable grounds for taking the course he did because he feared being sent to the United States (where it was believed legal proceedings would be brought against him for his role in revealing state secretes and alleged war crimes by US and allied forces). The UN Working Group on Arbitrary Detention ruled that Assange’s situation in the Ecuadorian Embassy was disproportionate, unreasonable, and arbitrary. At all stages Mr Assange had been willing to be interviewed by the Swedish prosecutor and if this had happened this would have brought the proceedings to an end at a very early stage. The last five and a half years detained in the embassy were an "adequate if not severe punishment" for his decision to seek asylum.

But Judge Arbuthnot dismissed the findings of the United Nations Working Group on Arbitrary Detention. She downplayed[pdf, p8 -9] the importance of his deteriorating mental health and lack of access to sunlight saying, "there are a number of photographs of him on a balcony connected to the premises he inhabits" and that, "Assange’s health problems could be much worse". This view would ultimately be contradicted in May 2019 by the UN torture expert. Following a visit to Belmarsh Prison where Assange has been held since he was convicted of skipping bail, the UN expert concluded that:

“The evidence is overwhelming and clear... Mr Assange has been deliberately exposed, for a period of several years, to progressively severe forms of cruel, inhuman or degrading treatment or punishment, the cumulative effects of which can only be described as psychological torture".

In her decision quashing Assange's appeal Judge Arbuthnot also said[pdf, p7] she could not, “determine from the extracts of correspondence whether the lawyer in the extradition unit acted inappropriately”, even though the emails clearly showed UK prosecutors pressuring the Swedish prosecutors not to drop the extradition case.

Curtish and Kennard point out that while Judge Arbuthnot, "has recently appointed a district judge to rule on Assange’s extradition case", as Chief Magistrate she, "remains the supervising legal figure in the process".

Failing to Disclose a Conflict of Interest

As the report's authors point out, there is no evidence to suggest that the Turkish state, or the UK or US intelligence or military organisations directly pressured Judge Arbuthnot. However, that is not the test as to whether certain relationships must be disclosed. A reading of the guidance already quoted reveals that conflicts of interest do not require evidence of a quid pro quo in order to be disclosed.

Interestingly, Curtis and Kennard also point out that in two separate cases in 2017 involving conflicts of interests Lady Arbuthnot only stepped down after conflicts of interest were revealed by the press. One of which involved a case where she had already made a favourable ruling on behalf of UBER, The Observer revealed business links between her husband and the taxi company.

The extent of Lord Arbuthnot's connections to security state-linked organisations and institutions exposed by WikiLeaks is legion. It is unclear therefore why, despite these connections, along with the gifts that Judge Arbuthnot and her husband received from Becthel and the Turkish state, were never disclosed while the Judge was overseeing the case of Julian Assange. Especially given the clear conflicts between the activities of WikiLeaks and Julian Assange on the one hand, and the US, UK and Turkish national security states on the other.