The Government of the United States of America v Roger Alan Giese
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 07 October 2015 |
| Neutral Citation | [2015] EWHC 2733 (Admin) |
| Docket Number | Case No: CO/1976/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 October 2015 |
[2015] EWHC 2733 (Admin)
Lord Justice Aikens
Mr Justice Holroyde
Case No: CO/1976/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Toby Cadman (instructed by CPS Extradition Unit) for the Appellant
Mr Aaron Watkins (instructed by Bindmans) for the Respondent
Hearing dates: 1 st July, 2015
This is the judgment of the court and is the work of both of us.
The Question on this appeal
This is an appeal pursuant to section 105 of the Extradition Act 2003 ("the EA") by the Government of the United States of America ("the Government") against the order of District Judge (Magistrates' Courts) Margot Coleman ("the DJ") on 21 April 2015 refusing a request for the extradition of the Respondent Mr Alan Giese ("Mr Giese").
California is one of twenty States in the USA which have a system of "civil commitment". This is a form of indeterminate confinement in a secure facility which may be imposed in civil proceedings against a person who has been convicted of, and who has served his sentence for, certain types of sexual offence and who is deemed to be mentally ill and dangerous. The details of the system, and the criteria used to determine whether an order should be imposed, vary as between the different States which operate it. In the context of extradition requests, the courts in this country have previously had to consider the civil commitment systems in Minnesota (see Sullivan v Government of USA [2012] EWHC 1680 (Admin)) and New York State (see Government of USA v Bowen [2015] EWHC 1873 (Admin)).
The questions on this appeal are whether there is a "real risk" that Mr Giese would be made subject to an order for civil commitment under the system which operates in California and, if so, whether there is a "real risk" that such an order would be a "flagrant breach" of his rights under Article 5(1) of the European Convention on Human Rights ("ECHR"). If so, as the DJ concluded, Mr Giese must not be extradited and is entitled to be discharged pursuant to section 87(1) and (2) of the EA.
The Facts and the proceedings before the DJ
In 2004, in the State of California, Mr Giese was charged with a number of serious sexual offences allegedly committed against an adolescent boy during the period May 1998 to May 2002 when the boy was under the age of 14. He appeared before a court and was arraigned and bailed. After further pre-trial hearings his trial was fixed for 12 March 2007. On that date Mr Giese failed to answer to his bail, and a warrant for his arrest was issued. He left the USA and came to the United Kingdom. He remained undetected by the US authorities for several years. On 12 February 2014 the Government issued a request that Mr Giese, who was believed to be living at an address in Hampshire, be arrested and extradited to stand his trial in California. That request was certified by the Secretary of State for the Home Department ("SSHD") on 8 May 2014, pursuant to section 70 of the EA. Mr Giese was arrested on 4 June 2014.
The extradition hearing took place before the DJ on 9 and 10 March 2015. As noted above, the DJ gave her judgment on 21 April 2015.
The USA has been designated a Category 2 territory for the purposes of the EA. Therefore Part 2 of the EA applies to these proceedings. Mr Giese has accepted that he was properly identified in the warrant and that the offences with which he stands charged are extradition offences. The DJ found that there were no statutory bars to extradition other than the Article 5 issue.
Before the DJ, Mr Giese argued, pursuant to section 87 of the EA, that extradition would be incompatible with his Convention rights for two reasons:
i) first, because the prison conditions in which he would be held in California would violate his Convention rights under Article 3. The DJ decided this issue in favour of the Government and Mr Giese no longer seeks to advance this argument;
ii) secondly, because there was a real risk that he would be subject to civil commitment in California and that his Convention rights under Article 5(1) would thereby be violated. The DJ decided this issue in favour of Mr Giese.
The references above to a "real risk" reflects the law as stated in R (Ullah) v Special Adjudicator [2004] 2 AC 323, Sullivan v Government of USA and, most recently, Government of USA v Bowen. In Ullah, it was held that the applicant must show strong grounds for the conclusion that he risked suffering a "flagrant denial" of his Article 5 rights. 1 In Sullivan, which as we have said was specifically concerned with civil commitment in the State of Minnesota, Moses LJ said 2 that "what must be established is a real risk of infringement". Moses LJ also pointed out that the use of the adjective "flagrant" in this context does not assist as to the extent of the risk which must be established; "flagrant" qualifies the extent of the denial or violation. 3 In the same case Eady J said 4 that the appellant must show a "more than fanciful risk" that he would suffer a flagrant denial of his Article 5 rights. In Bowen, Burnett LJ, giving the judgment of the court, said 5 that
"In a case where a person is to be removed from the United Kingdom, the question in domestic proceedings is whether there is a real risk, demonstrated by evidence, that the right to liberty would be completely denied or nullified in the receiving country. In particular that engages the question whether what he risks amounts to arbitrary arrest or detention and whether detention would be subject to effective judicial control".
The issue concerning "civil commitment" before the DJ and the grounds of appeal raise two questions:
i) Is there was a real risk of Mr Giese being subject to civil commitment?
ii) If so, would extradition lead to a "real risk" of a violation of Mr Giese's rights under Article 5(1) of the ECHR such as to constitute a bar to Mr Giese's extradition pursuant to section 87(2) of the EA. Before the DJ it seems that the Government argued that the detention of Mr Giese under a civil commitment order came within the exceptions set out in Article 5(1)(a), (c) or (e) of the ECHR. The DJ concentrated on (e), viz that Mr Giese's detention would be lawful because he would have been held to be a person of "unsound mind". That was the basis of the Government's case on Article 5 before us.
A summary of the California law and procedure relating to "civil commitment".
Civil commitment orders were introduced into California law by the California Sexually Violent Predator Act of 1996. The law is now codified in the California Welfare and Institutions Code (WIC) §6600 to 6609.3. We have set out the relevant parts of the WIC in the Appendix to this judgment.
For present purposes, the essential elements of the system can be summarised as follows: (1) if the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") determines that an individual who is serving a determinate prison sentence for one or more specified sexual offences "may be" a "sexually violent predator" ("SVP"), the Secretary shall, at least six months prior to the individual's scheduled date for release, refer the person for evaluation in accordance with the Code. 6 (2) An SVP is defined by the Code as a person "who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior". 7 (3) The offences that are "sexually violent offences" for the purposes of the civil commitment procedure are defined in WIC §6600(b) and a "conviction" for a "sexually violent offence" includes a conviction that has resulted in a determinate prison sentence for one or more of the defined offences. 8 (4) Conviction of one or more "sexually violent offences" shall "constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for that determination". 9 (5) Definitions of "diagnosed mental disorder", "danger to the health and safety of others" and "predatory" are set out in WIC §6600(c), (d) and (e). (6) If the Secretary of the Department of Corrections and Rehabilitations refers an individual under WIC §6601(b), he is then subject to an initial screening. If, as a result of this screening, it is determined that he is
"likely" to be an SVP, he is referred to the Department of State Hospitals ("DSH") for a full evaluation of whether he meets the criteria set out in WIC §6600. We describe the evidence before the DJ on how this has worked in practice in more detail below. (7) If the evaluators agree that the person meets the three criteria for an SVP, the case is referred to the District Attorney, who decides whether or not to pursue the matter. If he does, the case goes before a judge alone to determine whether there is "probable cause" to proceed further. 10 (8) If the judge does so determine, then there is a trial, before a judge and usually a jury, to determine "whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility". 11 (9) If the individual is determined ("beyond a reasonable doubt") to be an...To continue reading
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