The United States of America v Roger Alan Giese
| Jurisdiction | England & Wales |
| Judge | Sir Richard Aikens |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWHC 3658 (Admin) |
| Docket Number | Case No: CO/1976/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2015 |
[2015] EWHC 3658 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Sir Richard Aikens
Case No: CO/1976/2015
Ms Louisa Collins (instructed by CPS) for the Appellant
Mr Ben Lloyd (instructed by Bindmans) for the Respondent
Hearing date: 09/11/2015
This is the judgment of the court.
The background
The Government of the United States of America ("the Government") has sought the extradition of Mr Alan Giese ("Mr Giese"), a citizen of the United States, to stand trial in the state of California on 19 charges of sexual assault allegedly committed against an adolescent boy during the period May 1998 to May 2002 when the boy was under the age of 14. The extradition request was refused by District Judge (Magistrates' Court) Margot Coleman ("the DJ") and the Government appealed to this court. The sole ground on which the extradition was resisted before this court was whether there was a "real risk" that if Mr Giese were to be extradited and were to be convicted of one or more of the charges alleged he would be made subject to an order for "civil commitment" at the end of whatever sentence he had to serve. In our judgment which was handed down on 7 October 2015, 1 we explained the system of "civil commitment" and the evidence that was before the DJ on how it was operated in the state of California. We concluded that there was a "real risk" that Mr Giese would be made subject to such an order and that, as a consequence, there was 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"). We therefore agreed with the DJ that Mr Giese must not be extradited and that he was entitled to be discharged pursuant to section 87(1) and (2) of the Extradition Act 2003 ("the EA").
At the conclusion of the judgment of the court, however, we said this:
"69. In these circumstances, if things remain as they are, the appeal would have to be dismissed. However, the extradition of Mr Giese is not sought in order that he should be made the subject of a civil commitment order. It is sought so that he should stand trial in respect of 19 serious charges of sexual offences against a person who was, at the time, a 13 year old boy. A civil commitment order is only a real risk if Mr Giese is convicted of at least one such offence. Given our conclusions above, it seems to us that, as in the case of Sullivan, 2 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 of the offences charged, there will be no attempt to make him the subject of a civil commitment order. We therefore propose, subject to any further arguments from counsel, that the Government should be given 14 days from the date that this judgment is handed down, to state, in open court, whether such an assurance will be given.
70. We will hear argument on what order should be made when this judgment is handed down if such an assurance is to be given in due time. If it is not, then this appeal must be dismissed."
The order of the court dated 7 October 2015 stipulated that the Government would confirm, by no later than 4pm on 21 October 2015, whether it intended to provide an assurance that Mr Giese would not be made the subject of an order for civil
commitment if he were to be convicted of one or more "qualifying offences" at his trial upon extradition. Subsequently, the Government did submit a letter dated 27 October 2015 3 ("the assurance letter") from Ms Mary D Rodriguez, the Acting Director of the US Department of Justice, Criminal Division, Office of International Affairs. The letter was addressed to Ms Anne-Marie Kundert, the Head of the Extradition Unit of the Crown Prosecution Service ("CPS"), which is handling the extradition proceedings on behalf of the Government. The terms of the assurance letter are reproduced in the Appendix to this judgment. The assurance letter was produced to the court as an exhibit to a short witness statement of Ms Kundert dated 28 October 2015.Mr Giese objected to this assurance letter on two principal grounds. On 9 November 2015 we held a hearing at which we heard oral argument from Mr Ben Lloyd on behalf of Mr Giese and Ms Louisa Collins on behalf of the Government. At the end of the hearing we announced that we were not satisfied that the assurance letter was sufficient, so that the appeal of the Government would be dismissed. We said we would give our reasons in writing at a later date.
These are our reasons for refusing to accept the assurance letter and so dismissing the appeal.
The grounds on which the assurance letter was resisted by Mr Giese
Mr Ben Lloyd submitted that there were two reasons why the assurance letter should not be accepted by the court as a ground for allowing the appeal of the Government. First, he submitted, the assurance letter could only be a basis for allowing the appeal if it fulfilled the conditions set out in section 106(5) of the EA, viz that the issue of an assurance was something that was not raised at the extradition hearing or it constituted evidence that was not available at the extradition hearing. Mr Lloyd submitted that neither of those conditions was satisfied in this case. Therefore, in accordance with section 106(3) of the EA, the assurance could not be the basis for allowing the appeal. He submitted that because the court had concluded that the DJ was otherwise correct to decide the "relevant question" (ie. whether the risk of being subjected to "civil commitment" constituted a "real risk" of a "flagrant breach" of Mr Giese's Article 5 rights) as she did, therefore the appeal should be finally dismissed. Secondly, Mr Lloyd argued that the terms of the assurance letter were unsatisfactory and inadequate to safeguard Mr Giese's Article 5 rights. Thus, even if the court could consider the assurance letter in principle, it should reject it and dismiss the appeal.
On behalf of the Government, Ms Collins resisted both arguments.
The first objection: the assurance letter does not fulfil the conditions set out in section 106(5) of the EA
Section 105 of the EA permits the category 2 territory requesting extradition to appeal the decision of the DJ to order the requested person's discharge. An appeal to the
High Court may be brought on a question of fact or law, but only with the leave of the High Court. 4Section 106 of the EA provides as follows:(1) On an appeal under section 105 the High Court may-
(a) allow the appeal;
(b) direct the judge to decide the relevant question again;
(c) dismiss the appeal.
(2) A question is the relevant question if the judge's decision on it resulted in the order of the person's discharge.
(3) The court may allow the appeal only if the conditions in subsection (4) or the conditions in subsection (5) are satisfied.
(4) The conditions are that-
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge;
(5) The conditions are that-
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding the relevant question differently;
(c) if he had decided the question in that way, he would not have been required to order the person's discharge.
(6) If the court allows the appeal it must —
(a) quash the order discharging the person;
(b) remit the case to the judge;
(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.
(7) If the court makes a direction under subsection (1)(b) and the judge decides the relevant question differently he must proceed as he would have been required to do if he had decided that question differently at the extradition hearing.
(8) If the court makes a direction under subsection (1)(n) and the judge does not decide the relevant question differently the appeal must be taken to have been dismissed by the decision if the High Court.
(9) If the court —
(a) allows the appeal, or
(b) makes a direction under subsection (1)(b),
It must remand the person in custody or on bail.
(10) If the court remands the person in custody it may later grant bail.
Mr Lloyd submitted that, given the mandatory nature of the wording in section 106(3) of the EA, this court could only allow an appeal from the decision of the DJ to discharge Mr Giese if the conditions in section 106(4) or (5) were fulfilled. He submitted, and we would accept, that the conditions referred to in section 106(4) are not relevant. This is because the question of whether the DJ should accept an assurance of the Government (or any other relevant body) that Mr Giese would not be the subject of civil commitment proceedings was not before the DJ. We accept that
the issue of a possible assurance was ventilated at the extradition hearing, although the precise details of what was said and when are unclear. However, it is accepted that, as the DJ recorded at the end of her ruling, "no assurance from the USA has been sought or offered".Therefore, Mr Lloyd submitted, the Government could only succeed on appeal using the proposed assurance letter if it could come within the terms of section 106(5)(a). Although...
To continue reading
Request your trial
-
Guy Jane v Prosecutor General's Office, Lithuania
...in which the court can be satisfied that no risk of impermissible treatment will arise. In United States of America v Giese (No.2) [2015] EWHC 3658 (Admin); [2016] 4 WLR 10 there was consideration of the powers of the Divisional Court to allow an appeal on the basis of a new assurance. It w......
-
Public Prosecutor's Office, Court of Appeal of Thessaloniki, Hellenic Republic v Florjan Hysa
...on a relevant matter. Rather, it is a statement about the intentions of the requesting state as to its future conduct: see USA v Giese [2016] 4 WLR 10 at paragraph [14]. For the purposes of section 106(5), an offer of an assurance at the appeal stage is an “issue”: see India v Chawla [201......
-
Paul Cretu v Iasi Tribunal, Romania
...the view that it could not therefore be treated as if it were evidence in the present case (see United States of America v Giese [2015] EWHC 3658 (Admin) [2016] 4 WLR 10 per Sir Richard Aikens at [14] and Government of India v Chawla [2018] EWHC 1050 (Admin) per Dingemans J at [31]). That......
-
Jalena Palioniene v Prosecutor General's Office, Lithuania
...provided by the requesting state, and does not deal with evidence about actual conditions. In United States of America v Giese [2015] EWHC 3658 (Admin); [2016] 4 WLR 10 there was consideration of the powers of the Divisional Court to allow an appeal on the basis of a new assurance. It was ......