Shawn Eugene Sullivan v The Government of the United States of America (1st Defendant) The Secretary of State for the Home Department (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Eady |
| Judgment Date | 20 June 2012 |
| Neutral Citation | [2012] EWHC 1680 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1672/2011,Case No: CO/1672/2011 |
| Date | 20 June 2012 |
[2012] EWHC 1680 (Admin)
Lord Justice Moses
Mr Justice Eady
Case No: CO/1672/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Brandon (instructed by Sonn McMillan Walker Ltd) for the Applicant
Mr Aaron Watkins (instructed by the Crown Prosecution Service) for the 1 st Respondent and Mr B Watson (instructed by the Treasury Solicitor) for the 2 nd Respondent
Hearing dates: 24 th April, 2012
The Government of the United States seeks the extradition of this appellant to prosecute him for sexual offences alleged to have been committed against three children between July 1993 and February 1994. On 14 December 2010 Senior District Judge Riddle sent the appellant's case to the Secretary of State for her decision as to whether extradition should be ordered. Following representations from the appellant, the Secretary of State rejected those representations by letter dated 10 February 2011, and ordered the appellant's extradition to the United States.
The appellant now appeals against the judge's order under s.103 of the Extradition Act 2003 and against the Secretary of State's order pursuant to s.108 of the 2003 Act. The appellant contends that if extradited, there is a real risk that the appellant will be detained under a process known as "civil commitment". He says that his civil commitment would amount to a flagrant denial of his rights enshrined in Art. 5 of the European Convention on Human Rights. Although the United States Government disputed that were the appellant subject to an order for civil commitment his rights under Art. 5 would be infringed, the focus of the argument was directed at the risk of an order for civil commitment.
The appellant also contended that the process of civil commitment would amount to a flagrant breach of his Art. 6 rights and, finally, that the Secretary of State's order for extradition breaches her obligations under s.95 of the 2003 Act (Speciality) because the risk of civil commitment carries with it a risk that the appellant will be dealt with for offences other than those for which he is to be extradited.
This appeal does not concern the particular offences in respect of which extradition is sought. It suffices to recall that by two complaints in Dakota County, Minnesota, it is alleged that the appellant indecently assaulted two girls under the age of 13 in the autumn of 1993. The third allegation is contained in a complaint in Hennepin County, Minnesota, alleging that the appellant raped a girl aged 14 on 31 January 1994. Senior District Judge Riddle found that the appellant had fled the United States at about the time of the alleged rape and after being interviewed about the indecent assault. He was not arrested until 28 June 2010. As Judge Riddle found, there can be no question but that Mr Sullivan ought to be extradited to face prosecution for those crimes. The only issue is whether his extradition is incompatible with his Convention rights or breaches the rule against Speciality. As will be seen, it would be most unfortunate from the point of view of the victims and of justice should the appellant be able to escape trial because of the risk he runs of being the subject of an order for civil commitment.
Civil commitment is unknown to European law, but is a process available in 20 states in the United States. Minnesota's law is said to be more draconian than many others. Under Minnesota law, as described by Professor Janus, who has considerable experience of representing those subjected to petitions for civil commitment in Minnesota, a "sex offender" may be committed indefinitely if under criteria specified in the Sexually Dangerous Persons Act 1994 he is found by a judge to be "irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons". The evidence at the date of the hearing suggested that no sex offender committed to indeterminate detention since the programme began in its current form in 1988 has been released. The Court was referred to three cases where there is a likelihood of release but when I questioned counsel for the United States he was unable to report that any one of those three had been released at the time of this hearing.
Most of the evidence relating to the nature of civil commitment in Minnesota was not disputed. The relevant statutory provisions contained in the Sexually Dangerous Persons Act 1994 broadened the scope of civil commitment from the more restricted provisions of the Psychopathic Personality Act which dated back to 1939. It provides for indeterminate confinement of "a sexually dangerous person". In the Sexually Dangerous Persons Act 1994:
"(a) a sexually dangerous person means a person who:—
(1) has engaged in a course of harmful sexual conduct as defined in sub-division 7(a) (such conduct means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another);
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in sub-division 7(a).
(b) For the purposes of this provision it is not necessary to prove that the person has an inability to control the person's sexual impulses." (Minn. Stat. & 253B.02.sub-div18c)
Professor Janus's report explains and expands upon a report prepared by the Office of the Legislative Auditor (OLA) for the State of Minnesota "a Valuation Report: Civil Commitment of Sex Offenders" published in March 2011 and applies the Minnesota Department of Corrections "Sex Offender Screening Tool" (MnSOST-R).
The OLA reports that the standard for commitment is relatively low, and many sexual offenders qualify for commitment. It is not necessary to establish that a person has an inability to control his sexual impulses. It is sufficient to prove that he cannot "adequately control his sexual impulses" (in re Linehan (Linehan II 594N.W2d 867 at 876)). Unconvicted criminal misconduct may be taken into account. A course of harmful sexual conduct may be established on as few as two prior incidents. It is important to record that Minnesota law does not require that a person be mentally ill or mentally incompetent to be committed as a sex offender. Although a trial court must find that future sexual crime is highly likely, Professor Janus says that Minnesota courts have approved commitment despite evidence showing only moderate risk of future sexual misconduct.
It is not necessary that a patient be "treatable" to be committed and the OLA reports difficulties in relation to the availability of treatment for those who have been civilly committed.
The procedure for commitment is mainly applied to those serving prison sentences for sexual crimes. The Department of Corrections reviews inmates as they approach release. If the Department decides to refer an individual for commitment, his file is sent to the relevant prosecutor's office, an elected county attorney, who determines whether the case is appropriate for civil commitment or not. Civil commitment proceedings start when a prosecutor files a petition to a district court. The court appoints a mental health expert as examiner.
The examiner interviews the respondent, reviews records and issues a report as to whether the statutory elements for commitment are satisfied. The matter then proceeds to trial at which the burden of persuasion is on the state on all issues save as to harm. If the court finds that the statutory criteria are satisfied the respondent is committed to the Minnesota Sex Offender Programme which assesses the respondent and writes a report to the court within 60 days. Within 90 days of commitment a second hearing is held at which the court decides whether the respondent continues to satisfy the statutory criteria. If in that brief period the respondent has not changed then the court will order the individual to be committed for an indefinite period. There is a right of appeal at which deference is given to factual findings made by the trial court. Once committed, it is for an individual to petition for release; the state does not have periodically to prove that he should remain confined. The individual must establish eligibility for release. As I have recorded, of the 600 committed since 1988, the evidence suggests that not one has been released, even on a conditional, supervised basis.
The underlying scheme of the procedure and law is not in dispute. But there is a dispute between Professor Janus and Judith L Cole, Assistant Prosecuting Attorney for Hennepin County, as to the risk of an order for civil commitment, if the appellant is extradited.
Articulating how risk is to be measured is notoriously difficult. Plainly, if the risk of infringing the requested person's convention rights is fanciful there can be no question of refusing extradition. At the other end of the spectrum will be cases where an infringement is a "near certainty". That was the test suggested in relation to Art. 2 by the Commission in Dehwari v The Netherlands 29 E.H.R.R. CD 74 (paragraph 61). But between those two extremes there exists the difficulty of identifying the extent of the risk which an applicant must establish before he can resist extradition.
In R (Ullah) v Special Adjudicator [2004] 2 AC 323 [2004] UKHL 26 Lord Bingham said:—
"While the Strasbourg jurisprudence does...
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