The Government of the Russian Federation v Tyurin
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lord Justice Moses |
| Judgment Date | 06 March 2013 |
| Neutral Citation | [2013] EWHC 1048 (Admin) |
| Docket Number | CO/6471/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2013 |
[2013] EWHC 1048 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mr Justice Kenneth Parker
CO/6471/2012
Mr J Hines (instructed by Hodge Jones & Allen) appeared on behalf of the Claimant
Miss H Hinton (instructed by CPS) appeared on behalf of the Defendant
The appellant, a United Kingdom citizen aged 46, appeals under s.103 of the Extradition Act 2003 against the decision of District Judge Zani made on 27 April 2012 to send his case to the Secretary of State to determine whether he should be extradited to the United States of America. The United States made two requests to face indictments alleging conduct which in England would be equivalent to an offence contrary to s.12 of the Sexual Offences Act 2003 in that he had groomed a minor for sex and transferred obscene matter to a minor.
The appellant raised a single challenge before the District Judge, namely extradition would breach his rights under Article 8 of the European Convention of Human Rights because he is the main carer for his elderly mother. There is no s.108 appeal against the decision made on 12 June 2012 of the Secretary of State to extradite the appellant.
The background is as follows. The extradition proceedings started promptly following a complaint made to the Englewood Police Department in the northern suburb of Dayton Ohio by a teacher at the school of a girl known only as "Minor A" in October 2011. "Minor A" was then 14 years of age and she confided in her teacher about her relationship with the appellant. That relationship began in 2009 when "Minor A" was 12 years of age.
It is alleged that the appellant made contact with "Minor A" through the internet for the purposes of sexual grooming. He initially claimed to be 17 years of age and used an alias. The appellant visited "Minor A" in the summer of 2011 between 20 June and 9 July in her hometown of Dayton, Ohio. During that time it is alleged that he engaged in pre-planned sexual activity with the complainant on numerous occasions. He performed oral sex upon her and she on him. Further, the appellant had penetrative sex with "Minor A" on several occasions, both at his hotel on eight occasions and once at her parents' address when her mother was out.
On 11 November 2011 and 1 December 2011, Special Agent Mark Salloum filed a criminal complaint against the appellant before the United States Magistrates Judge. On 1 December a warrant was issued by the Judge for the appellant's arrest. On 6 December 2011 the Secretary of State issued a certificate under s.70 of the Extradition Act 2003 upon receipt of a valid extradition request from the respondent for the appellant's extradition; that was the first request. District Judge Evans issued a domestic warrant on 23 December 2011 for the appellant's arrest. The appellant was then arrested on 12 January 2012.
The appellant was produced before District Judge Purdey at Westminster Magistrates' Court on 13 January 2012 for his initial hearing. During the hearing the appellant indicated that he did not consent to his extradition and wished to challenge it. Consequently, the District Judge opened the extradition hearing and adjourned proceedings to give him time to prepare his case.
At a review hearing on 29 February 2012, before Senior District Judge Riddle, the court and the requested person were informed that the Government had preferred a superseding indictment alleging an additional offence of transferring obscene material to a minor (that is Count 3 in the indictment) and a criminal forfeiture allegation. "Minor A" identified seven images of the appellant's exposed penis from a large number of images that the appellant had sent to the complainant through his Yahoo e-mail account between September 2010 and April 2011. On 15 February 2012 the United States District Court for the Southern State of Ohio issued a warrant for the requested person's arrest in respect of this superseding indictment. That request was also certified by the Secretary of State.
On 21 March 2012 the appellant was arrested on the second request. In respect of the second request, the extradition hearing was formally opened and adjourned to 11 April to be heard at the same time as the first request. The extradition hearing took place on 11 April 2012. Judgment was reserved on 27 April 2012 and then the case was sent to the Secretary of State as explained.
The appellant filed an appeal against the District Judge's decision and submitted grounds of appeal on 20 June 2012. Those grounds are now superseded by amended grounds of appeal settled in October 2012. The respondent, in the skeleton argument on behalf of the respondent, does not take issue as such with the application to rely upon these new grounds.
By his new grounds of appeal the appellant alleges that extradition would violate his rights under Article 5 ECHR because it would expose him to the real risk that he would be subject, if extradited to the United States, to a regime known as civil commitment, a regime that he contends is not compatible with his rights under Article 5.
It is necessary to explain that a Federal Statute, 18 United States Code section 4248 enacted in 2006, authorises the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. Specifically, the federal statute in question allows a District Court to order the civil commitment of an individual who is currently in the custody of the Federal Bureau of Prisons if that individual: firstly, has previously engaged or attempted to engage in sexually violent conduct or child molestation; secondly, currently suffers from a serious mental illness, abnormality or disorder, and; thirdly as a result of that mental illness, abnormality or disorder is sexually dangerous to others in that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. In order to detain such a person, the Government, acting through the Department of Justice, must certify to a Federal District Judge that the prisoner meets the conditions just described, that is, that he has engaged in sexually violent activity or child molestation in the past and that he suffers from a mental illness that makes him correspondingly dangerous to others.
When such a certification is filed the statute automatically stays the individual's release from prison, thereby giving the Government an opportunity to prove its claims at a hearing through psychiatric or other evidence. The statute provides that the prisoner should be represented by counsel and should have an opportunity at the hearing to testify, to present evidence, to subpoena a witness on his behalf and to confront and cross-examine the Government's witnesses. If the Government proves its claims by clear and convincing evidence, the court will order the prisoner's continued commitment in the custody of the Attorney General, who must make all reasonable efforts to cause the state where that person was tried or the state where he is domiciled to assume responsibility for...
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