Nicky Paul Mitchell v Government of the United States of America and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol,Lord Justice Gross |
| Judgment Date | 25 October 2016 |
| Neutral Citation | [2016] EWHC 2649 (Admin) |
| Date | 25 October 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2295/2016 |
[2016] EWHC 2649 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/2295/2016
Malcolm Hawkes (instructed by Hodge Jones and Allen LLP) for the Appellant
Toby Cadman (instructed by CPS Special Crime Division) for the 1 st Respondent
Rachel Barnes (instructed by Government Legal Department) for the 2 nd Respondent
Hearing dates: 12 th October 2016
Approved Judgment
This is an appeal by Mr Mitchell against two decisions. He challenges first the decision of District Judge Shenagh Bayne in the Westminster Magistrates Court on 25 th February 2016 to send to the Secretary of State for the Home Department ('SSHD') the request by the US Government that he should be extradited to face prosecution on one count of distributing child pornography. Secondly, he appeals against the SSHD's decision that he should be so extradited.
Central to both his challenges is his concern that, if extradited, convicted and sentenced to prison, he would not be released at the end of his sentence. Instead, he says, he may be subject to 'civil commitment' as a dangerous sex offender under a federal statute, the Adam Walsh Child Protection and Safety Act ('the Adam Walsh Act') which is codified at Title 18, United States Code s.4248. He argues that civil commitment would be arbitrary detention and a flagrant denial of his rights under Article 5 of the European Convention on Human Rights ('ECHR'). Additionally, his extradition would be a breach of his rights under Article 8 of the ECHR. Accordingly, the District Judge ought to have refused to send the request for his extradition to the SSHD in accordance with the Extradition Act 2003 (' EA 2003') s.87 and instead ordered his discharge. Furthermore, the prospect of civil commitment means that he would not have the specialty protection which EA 2003 s.95 requires. In consequence the SSHD was bound not to order his extradition.
The USA proceedings
The allegation against the Appellant goes back to a time in 2013 when he worked as a nanny or au pair for a family in Decatur, Georgia, USA. He was looking after three boys aged 10 – 12. An undercover FBI officer in Pennsylvania used a peer to peer network called Gigatribe and observed that a user with the name 'Mitch287' had 897 files in a password protected folder. Thumbnail images suggested they were, or included, child pornography. The agent contacted Mitch287 who provided the password and the undercover officer was able to download and inspect the files. They contained images of pre-adolescent and adolescent boys exposing their genitals or engaging in sexual acts.
Title 18, United States Code, s.2252(a)(2) prohibits the inter-state distribution of child pornography. The maximum sentence is 20 years imprisonment.
On 25 th March 2014 a federal grand jury sitting in Atlanta, Georgia returned an indictment with one count which charged the Appellant with an offence under this provision. It was filed with the US District Court for the Northern District of Georgia and, on the same day, a warrant was issued for the arrest of the Appellant.
An affidavit testifying to these matters was sworn by Ms Jamie Mickelson, an Assistant US Attorney on 23 rd September 2014.
The extradition proceedings
The US Department of Justice requested the Appellant's extradition on 6 th October 2014. On 20 th April 2015 the SSHD certified that the request had been made in the approved way. The USA is a territory for the purposes of Part 2 of the EA 2003. The Appellant was arrested and brought before the Westminster Magistrates' Court.
Many of the matters which the District Judge had to consider were not disputed and I can pass over these. However, the Appellant did argue that his extradition would be incompatible with his rights under the ECHR and was therefore barred by EA 2003 s.87. He claimed:
i) The sentence which he was likely to receive would be of disproportionate length and would be contrary to his rights under Article 3 of the ECHR. The District Judge rejected this challenge. Her finding in this regard has not been appealed. I need say no more about it.
ii) As I have already mentioned, he claimed that, if he was extradited and convicted, towards the conclusion of any sentence imposed by the criminal court, he was at risk of being subjected to civil commitment and this would be contrary to his rights under Article 5 of the ECHR.
iii) He argued that there was a risk that he would be prosecuted under the criminal law of the state of Georgia as well as by the federal authorities who were seeking his extradition. He argued that this risk of dual prosecution made his extradition disproportionate and contrary to his rights under Article 8 of the ECHR.
The District Judge had from the Appellant a report dated 10 th August 2015 by Dr Melissa Hamilton who is a qualified lawyer and an academic in Texas and a supplemental report by Dr Hamilton of 9 th December 2015. Ms Mary Rodriguez of the US Department of Justice provided a letter dated 19 th October 2015, and Ms Mickelson made a declaration dated 21 st October 2015 in response to Dr Hamilton's first report and a second declaration dated 13 th January 2016 in response to Dr Hamilton's supplemental report. Dr Hamilton gave oral evidence. Ms Mickelson did not.
In her decision the District Judge made the following material findings:
i) Dr Hamilton's experience in practice was limited to 1 year as a law clerk to a federal appellate judge. She was an academic with experience in researching federal sentencing, laws and policies regarding (among other things) child pornography. She based her evidence on the gathering of data and analysis of case outcomes, rather than the day to day experience of judicial process. She had strong views about the punishment of sex offenders and thought that lengthy incarceration was inappropriate. She had little practical experience of the federal legal system or the legal system in the state of Georgia.
ii) Ms Mickelson had been employed by the US Department of Justice since 2010 and specifically in the Northern District of Georgia since 2013. She had 6 years experience of prosecuting offenders in West Virginia and Georgia and had day to day experience of decision making in the judicial process. The District Judge recognised that there had been no opportunity to cross examine Ms Mickelson.
iii) The evidence of both Dr Hamilton and Ms Mickelson was admissible under EA 2003 s.202 but the weight to be given to their evidence was for the District Judge to decide.
iv) The experts agreed that the Appellant would face a minimum sentence of 5 years and a maximum of 20 years. It was uncertain what precise sentence he would receive between these figures, although it was likely to be just above 9 years.
v) Such a sentence would be considerably greater than would be imposed for a comparable offence in the UK, but it would not infringe the Appellant's rights under Article 3.
vi) The civil commitment procedure in the US provides for indeterminate detention which could not be justified under Article 5(1)(a) or Article 5(1)(e) of the ECHR. The District Judge referred to the case of Sullivan v USA [2012] EWHC 1680 (Admin).
vii) However, extradition would only be a breach of the Appellant's rights under Article 5 if there was a real risk that he would be subject to civil commitment.
viii) In this case there was no real risk that the Appellant would be civilly committed. That was because:
a) The Appellant was of previous good character. The present charge did not involve contact molestation with any child.
b) The Appellant was a British Citizen. The letter from Ms Rodriguez of 19 th October 2015 amounted to an assurance that he would be subject to deportation at the conclusion of his sentence. That letter was an indication of the course of proceedings which would follow at the end of his sentence. It had been given after consultation with the appropriate bodies that would have a say in what happened to the Appellant at that stage. He would then have no lawful status in the USA. He would be subject to removal and would not be entitled to a removal hearing before an Immigration Judge. In any case, that course would make practical and economic sense. The purpose of civil commitment was to protect the public in the US. The deportation of the Appellant would do that as effectively. There would be no likely obstacles to his deportation. The position was closely analogous to that in Castle v USA [2013] EWHC 1048 (Admin) where also the Court had found that there was not a real risk that a British Citizen would be subject to civil commitment rather than deportation at the conclusion of his sentence.
c) Sullivan had concerned extradition to Minnesota which had its own (state) regime of civil commitment. Georgia did not. It was, of course, always possible that the state of Georgia might also in future enact its own civil commitment regime, but that possibility was speculative and no more than a fanciful risk.
d) It was true that the federal offence relied on an inter-state element in the distribution of child pornography. In theory that might expose the Appellant to a risk of civil commitment in another state apart from Georgia. However, there was no evidence that any other state was interested in taking such action. The risk of it happening was no more than fanciful.
ix) There was no real risk that...
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