Roger Alan Giese v The Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon |
| Judgment Date | 14 June 2018 |
| Neutral Citation | [2018] EWHC 1480 (Admin) |
| Docket Number | Case No: CO/3911/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2018 |
[2018] EWHC 1480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM WESTMINSTER MAGISTRATES COURT
District Judge Margot Coleman
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON The Lord Burnett of Maldon
and
THE HON Mr Justice Dingemans
Case No: CO/3911/2017
Alex Bailin QC and Aaron Watkins (instructed by Bindmans LLP) for the Appellant
Toby Cadman (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 3 May 2018
Lord Burnett of Maldon CJ:
Introduction
This is the judgment of the court to which we have both contributed.
The appellant is wanted to stand trial in California for sexual offences. On 14 August 2017, pursuant to the Extradition Act 2003 [“the 2003 Act”], District Judge Margot Coleman sent his case to the Secretary of State for her decision whether he should be extradited. The respondent, the Government of the United States of America [“the Government”], resist the appeal. The appellant appeals with leave on three grounds:
i) The extradition proceedings are an abuse of process following the failure of earlier extradition proceedings;
ii) Given the nature of the alleged offending, were the appellant convicted there is a risk that he would be subject to “civil commitment” at the end of his sentence, which would give rise to a flagrant denial of his rights guaranteed by article 5(1) of the European Convention on Human Rights (“the Convention”). Assurances given by the Government that he will not be subject to that process are inadequate;
iii) There are substantial grounds for believing that, if convicted, he would be subjected to violence at the hands of other prisoners in the Californian penal estate, from which the authorities would be unable adequately to protect him. In the result his extradition would violate article 3 of the Convention.
The judge found against the appellant on all three points. For reasons which we elaborate below, we conclude that her decision to do so in each respect is unassailable and we dismiss the appeal.
The alleged conduct and proceedings in the USA
In September 2002 a complaint was made that the appellant, then a singing instructor for a choir, had carried out sexual assaults on a chorister on numerous occasions when the complainant was aged between 13 and 17 years. A search warrant was executed and relevant items and photographs of the complainant were recovered. The appellant was arrested, interviewed and then released on bail.
On 20 September 2002 a “felony complaint” was filed in Orange County Superior Court in California. There were initially six counts of sexual assault. Further counts were added on 17 March 2003 and on 2 March 2004. In the end the appellant was due to stand trial on nineteen counts of sexual assault.
The appellant was arraigned on 2 March 2004 and granted bail. After various adjournments, his trial was fixed for 12 March 2007. He did not appear for trial. A warrant for his arrest was issued.
In December 2011 anonymous information suggested to the American authorities that the appellant might be in the United Kingdom. That was indeed to where he fled after he became a fugitive from justice. A request for extradition was made, following which he was arrested on 4 June 2014.
Procedural history
The appellant contested this first set of extradition proceedings on the basis that if he was convicted and served a sentence of imprisonment, there was a real risk that he would be subjected to civil commitment. This is a form of indeterminate preventative detention imposed in civil proceedings in many American states on persons convicted of certain sexual offences and who are deemed to be mentally ill and dangerous. It was contended that the civil commitment in Orange County would amount to a flagrant breach of the rights protected by article 5(1) of the Convention with the result that his extradition was barred by section 87 of the 2003 Act.
There was a hearing before the judge on 9 and 10 March 2015. Judgment followed on 21 April 2015 upholding the article 5 argument. The judge noted that no assurance had been provided that the procedure would not be applied to the appellant, and ordered his discharge.
The Government appealed, contending that there was no real risk that the appellant would be subject to a civil commitment order, and that, even if he were subject to such a risk, an order for civil commitment would not infringe his rights under article 5 of the Convention. The appeal was dismissed by the Divisional Court on 7 October 2015, [2015] EWHC 2733 (Admin), which has been referred to as Giese (No.1). In paragraphs 68 to 70 of the judgment Aikens LJ, giving the judgment of the Court, upheld the findings of the judge and recorded that “if things remain as they are, the appeal would have to be dismissed”. He noted that the Government sought Mr Giese's extradition not to impose a civil commitment order, but to try him for serious sexual offences. Therefore “the Government should be given a further opportunity to decide whether or not it will offer a satisfactory assurance that, should Mr Giese be found guilty of any offences charged, there will be no attempt to make him the subject of a civil commitment order”. The Government were given 14 days to state whether such an assurance would be given.
An extension of time for providing the assurance was obtained, and by letter dated 27 October 2015 the acting Director of the United States Department of Justice recorded that
“the Orange County District Attorney's Office … has confirmed that it will not seek to subject Mr Giese to a civil commitment order … The Orange County District Attorney's Office has concluded, based upon a review of the facts of the case and its experience with the above-described legal procedure, that there is little or no likelihood that Mr Giese would be referred for commitment by the State of California.”
The Court indicated that it was minded to accept the assurance unless there was an objection; but an objection was made. The appellant contended that the assurance was not a sufficient safeguard with the result that there was a further hearing before the Divisional Court. In a judgment dated 21 December 2015, [2015] EWHC 3658 (Admin), [2016] 4 WLR 10, which has been referred to as Giese (No.2), the court held that the assurance was not a sufficient safeguard. The Government's appeal was dismissed.
The Government sought to reopen the appeal pursuant to Criminal Procedure Rule 50.27, which allows such a course in very limited circumstances when the interests of justice require. The Government argued that when the court first received the assurance it had indicated to the parties that it was minded to accept it, with the consequence that in the proceedings which followed the Government had not had an opportunity to meet any residual concerns about the substance of the assurance. The Government also sought a certificate that the cases raised a point of general public importance and permission to appeal to the Supreme Court. The Divisional Court, in a judgment dated 26 February 2016, [2016] EWHC 365 (Admin), which has been referred to as Giese (No.3), refused permission to reopen the appeal and refused to certify a point of general public importance. In dismissing the application under rule 50.27 the court observed in paragraph 18 that,
“the reality of this application, contrary to the submissions of the Government, is that it is an attempt to “have a second go”, so as to be able to put forward a revised form of assurance … That is not a proper use of rule 50.27”.
The further assurances
The Government secured two further letters of assurance. The first from the Orange County District Attorney was dated 24 August 2016. The second from the Director of the US Department of Justice was dated 13 September 2016. In his letter the Orange County District Attorney assured
“the United States Department of Justice and the United Kingdom that, should Roger Giese be convicted of any offences charged … we will not seek civil commitment … This assurance is binding on any and all present or subsequent individuals holding the position of District Attorney, or any other relevant office holder who has the power to decide upon the commencement of civil proceedings in the Orange County District Attorney's Office …”.
In the letter from the Department of Justice it was said,
“First, we take note and accept the decision of the High Court. Second … the Orange County District Attorney's Office has confirmed and continues to confirm that it will not seek to subject Mr Giese to a civil commitment order … if he is convicted … the Orange County District Attorney's office re-affirms that this undertaking is binding on any subsequent District Attorney and any official with the power to consider implementing the civil commitment procedure,”
and the assurance from the District Attorney was enclosed.
The second request to extradite and proceedings before the judge
The Government made a fresh request to extradite the appellant on 11 October 2016. That request was certified by the Secretary of State on 8 December 2016. On 11 January 2017 the appellant voluntarily surrendered to Westminster Magistrates' Court and was granted conditional bail on the same day. The issues identified were those set out in paragraph 2 above.
The judge heard and dismissed the argument on abuse of process on 5 May 2017. The remaining challenges were heard on 31 July 2017. In a written judgment dated 14 August 2017 the judge set out her reasons for sending the case to the Secretary of State.
The judgment below
In a careful and comprehensive...
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