The United States of America v Roger Alan Giese
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] EWHC 365 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 February 2016 |
| Docket Number | Case No: CO/1976/2015 |
[2016] EWHC 365 (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
Mr Toby Cadman (instructed by CPS) for the Appellant
Mr Aaron Watkins (instructed by Bindmans) for the Respondent
Hearing dates: 21 st December 2015
The Government of the United States of America has appealed against the refusal by a District Judge of the Government's request for extradition of the Respondent Mr Giese. On 7 th October 2015 the court handed down a judgment upholding the decision of the District Judge that extradition of Mr Giese would be inconsistent with his Convention rights. On 21 st December 2015 the court handed down a further judgment dismissing the appeal. The Government has subsequently made written applications to re-open the appeal pursuant to rule 50.27 Criminal Procedure Rules 2015 (formerly rule 17.27 of the previous Rules), or alternatively for permission to appeal to the Supreme Court pursuant to rule 50.25. We have received helpful written submissions from Mr Cadman on behalf of the Government and Mr Watkins on behalf of Mr Giese. Both counsel have been heavily involved in this appeal, and are very familiar with the facts and the issues. It is unnecessary for the court to hear oral submissions, and the court is able to determine these applications on the basis of the written submissions. This is the judgment of the court.
So far as is material for present purposes, rule 50.25 is in the following terms:
" 50.25 Application for permission to appeal to the Supreme Court
(1) This rule applies where a party to an appeal to the High Court wants to appeal to the Supreme Court.
(2) Such a party must—
(a) apply orally to the High Court for permission to appeal immediately after the court's decision; or
(b) apply in writing and serve the application on the High Court officer and every other party not more than 14 days after that decision.
(3) Such a party must—
(a) identify the point of law of general public importance that the appellant wants the High Court to certify is involved in the decision;
(b) serve on the High Court officer a written statement of that point of law; and
(c) give reasons why—
(i) that point of law ought to be considered by the Supreme Court, and
(ii) the High Court ought to give permission to appeal."
Rule 50.27 is in the following terms:
" 50.27—Reopening the determination of an appeal
(1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(2) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the High Court officer and every other party.
(3) The application must—
(a) specify the decision which the applicant wants the court to reopen; and
(b) give reasons why—
(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy.
(4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations."
Mr Cadman invites the court first to consider the application to reopen the appeal. Mr Watkins submits that until the application for permission to appeal has been determined, it is impossible for the Government to satisfy the requirement in rule 50.27(3)(b)(iii) that there is no alternative effective remedy. We see the force of that submission, and we agree with the observation of Burnett LJ at paragraph 8 of his judgment in USA v Bowen [2015] EWHC 1873 (Admin) that it is "very difficult to envisage" that an application to re-open an appeal could be made whilst there is an outstanding application for certification. For that reason, the application for certification falls to be considered first.
It is however necessary to begin by summarising the chronology which is relevant to our consideration of both applications:
i) On 7 th October 2015 the court handed down its judgment upholding the decision of the District Judge that extradition of Mr Giese would be inconsistent with his Convention rights and that he must therefore be discharged. It should be noted that the draft judgment had been provided to counsel in advance of this date. It was headed, in the usual way, with a statement that it was "confidential to the parties and their legal representatives".
ii) The court did not however dismiss the appeal on 7 th October 2015: rather, it allowed the Government a further opportunity to decide whether or not it would offer a satisfactory assurance that, should Mr Giese be found guilty of any of the offences charged, there would be no attempt to make him the subject of a civil commitment order. It is important to note that the judgment concluded with these words:
"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 given in due time. If it is not, then this appeal must be dismissed."
iii) At the time when the judgment was handed down, no submission was made on behalf of the Government objecting to that proposal or raising any practical difficulty. An order was accordingly made directing the Government to confirm in open court as soon as practicable, but in any event no later than 4.00pm on 21 st October 2015, whether such an assurance would be forthcoming.
iv) By letter dated 16 th October 2015 the Government asked for an oral hearing in order to seek an extension of time. Mr Giese's representatives promptly indicated that any such application would be opposed. A short hearing took place on 21 st October 2015, at which the court was told that the Government was actively considering offering an assurance. It was submitted on behalf of the Government that more time was needed because there was practical difficulty in taking instructions at the necessary high level.
v) An extension of time was granted until 6 th November 2015. Within that time limit, on the morning of 28 th October 2015, the Government offered an assurance.
vi) The court did not at the time see, but has very recently been shown, correspondence between the parties on the 28 th, and early on the 29 th, October 2015, in which Mr Giese's representatives immediately contended that the offered assurance was inadequate.
vii) At 2012 on 29 th October 2015 Holroyde J's clerk sent on his behalf an e mail to the parties in the following terms:
"The court has received and read the witness statement of Anne-Marie Kundert dated 28.10.15 and the letter from Mary D. Rodriguez, of the US...
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Roger Alan Giese v The Government of the United States of America
...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......
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Cirena Makowska v Regional Court, Torun, Poland
...is in truth “a fact specific decision relating to the circumstances of [the present] case”: United States of America v Giese [2016] EWHC 365 (admin) at paragraphs 10 and 11. I was not surprised to find the cases reflecting these points. It would be very odd if the Court were, in effect, ob......
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Cirena Makowska v Regional Court, Torun, Poland
...is in truth “a fact specific decision relating to the circumstances of [the present] case”: United States of America v Giese [2016] EWHC 365 (admin) at paragraphs 10 and 11. I was not surprised to find the cases reflecting these points. It would be very odd if the Court were, in effect, ob......
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Cirena Makowska v Regional Court, Torun, Poland
...is in truth “a fact specific decision relating to the circumstances of [the present] case”: United States of America v Giese [2016] EWHC 365 (admin) at paragraphs 10 and 11. I was not surprised to find the cases reflecting these points. It would be very odd if the Court were, in effect, ob......