Tobias Bowen v Secretary of State for Home Department (1st Respondent) The Government of the United States of America (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 17 June 2016 |
| Neutral Citation | [2016] EWHC 1400 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5597/2015 |
| Date | 17 June 2016 |
[2016] EWHC 1400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
and
Mr Justice Mitting
Case No: CO/5597/2015
Mr Hugh Southey QC and Mr Malcolm Hawkes (instructed by McMillan Williams Solicitors) for the Appellant
Mr Mark Summers QC and Ms Rachel Barnes (instructed by Government Legal Department) for the 1 st Respondent
Mr Toby Cadman (instructed by Extradition Unit, CPS) for the 2 nd Respondent
Hearing dates: 27 and 28 April 2016
Approved Judgment
This is the Judgment of the Court to which both members have contributed.
Introduction
The Appellant faces 7 charges of sexual offences on an indictment filed on 14 September 2010 before a Grand Jury of the County Court of Onondaga, New York. He was arrested and interviewed by police in the United States on 19 March 2010, at a time when he was living in New York State. He was granted bail, subject to a bond of $10,000, and was released from custody on 23 March 2010. He failed to appear for a hearing on 20 September 2010 and a bench warrant was issued for his arrest. It appears that he left the United States for Liberia. He now lives in this country.
A request for his extradition was issued on behalf of the 2nd Respondent ('the US Government') on 17 April 2014. The USA is a Category 2 territory for the purposes of the Extradition Act 2003 ('the 2003 Act'), and Part 2 of the 2003 Act applies to the extradition proceedings.
On 17 April 2014 the Home Office issued a certificate pursuant to section 70 of the 2003 Act; on 18 April an arrest warrant was issued by Westminster Magistrates' Court and he was arrested on the following day.
Among other arguments raised before the Magistrate, District Judge Rose, the Appellant submitted that, if he were convicted, it was likely that a sentence of imprisonment would be passed and New York State law provided for 'civil commitment' of sexual offenders following completion of their sentences if they were dangerous and suffering from a mental abnormality which predisposed them to repeat sexual offending. The application was heard on 17 and 18 December 2014, and District Judge Rose gave her written decision on 19 January 2015. She rejected some of the Appellant's challenges to extradition, decided that the issue of specialty was a matter for the 1st Respondent ('the Secretary of State'); but concluded that there was a real risk that the Appellant would be made the subject of a civil commitment order and that his detention might be ordered even if he were not of 'unsound mind'. This, she determined, would constitute a flagrant denial of his rights under article 5 ECHR. Accordingly, she ordered his discharge under s.87(2) of the Extradition Act 2003.
The US Government appealed this decision under section 105 of the 2003 Act and, on 30 June 2015, this Court differently constituted (Burnett LJ and Thirlwall J) allowed the appeal. The Court identified two questions which fell to be decided. The first was whether there was a real risk that the Appellant would be detained following the completion of any sentence if convicted of any sexual offences? The second was whether that detention would amount to a flagrant denial or nullification of the rights guaranteed by article 5? The Court found that a civil commitment order would not be inconsistent with the Appellant's article 5 rights and that there was, in any event, no real risk of civil commitment, see [44] of the judgment in Government of the United States of America v. Bowen [2015] EWHC 1873 (Admin) (' Bowen (No.1)').
Following the handing down of the judgment in Bowen No.1, the Appellant sought to reopen the appeal under what was then Criminal Procedure Rule 17.27. On 11 September 2015 the same constitution of the Divisional Court refused permission to reopen the appeal, see Government of the United States of America v. Bowen, with the same neutral citation number (' Bowen (No.2)'). At [4] the Court said this:
… the submission advanced, which runs to 105 paragraphs, refers to materials not relied upon by [Mr Bowen] in resisting the appeal, including evidence which was available to him but which he did not seek to adduce. It repeats arguments advanced in the appeal, some in an augmented form. We say nothing about whether the new evidence could properly have been admitted on the Fenyvesi principles: [2009] EWHC 231 (Admin). We have considered the materials but are unpersuaded that even were they before us the result would have been different. We do not accept that there is any demonstrated injustice. That said, Rule 17.27 is not designed to enable an unsuccessful party in extradition proceedings immediately to regroup after losing the appeal and to return with further developed submissions.
The reference to 'evidence which was available to him but which he did not seek to adduce' was a reference to, among other matters, the evidence of Dr Joseph Plaud, to which we will come later.
On 16 September 2015, the Divisional Court remitted the case to the District Judge under s.106 of the 2003 Act, and the Appellant's case was then sent to the Secretary of State for a decision (under s.87(3)) whether or not to extradite him.
By s.93 of the 2003 Act, the Secretary of State is bound to decide whether extradition is prohibited by particular sections of the 2003 Act. These prohibitions include specialty protection, see s.93(2)(b) and s.95 which, stated shortly, is a principle that an extradited person shall not be tried or punished for any offence other than the offence or offences for which he had been extradited.
On 13 October, the Appellant lodged written representations addressed to the Secretary of State. These representations covered both specialty (which was a matter to be considered by the Secretary of State) and article 5 (which was not). The paragraphs dealing with article 5, sought to rely on the evidence of Mr. Brenner (which had already been rejected by the Divisional Court in Bowen (No.1)), referred (in §16) to the evidence of Dr Plaud (although the report itself was not provided); and repeated submissions which had already been rejected by the Divisional Court.
By a letter dated 4 November 2015, the Appellant's solicitors were notified that the Secretary of State had considered the submissions in relation to specialty and had concluded that the extradition was not prohibited by s.95 of the 2003 Act. The letter referred to the UK-USA Extradition Treaty and to authorities in which the Court found that there was nothing to indicate that the specialty doctrine was not applied in the USA or that the arrangements with the USA required by s.95 were not in place. In these circumstances the Secretary of State ordered the appellant's extradition.
So far as the present hearing is concerned, there is no issue that the Appellant is entitled to challenge the specialty decision under the provisions of s.108 of the 2003 Act, permission to do so having been granted by Ouseley J on 13 January 2016. However, there is a closely contested issue as to whether the Appellant is entitled to raise a challenge in relation to article 5. Ouseley J refused permission on the basis that the issue had been previously determined by the Divisional Court on two occasions, Bowen (No.1) and Bowen (No.2), and a third attempt to litigate the same point amounted to an abuse. The application for permission to appeal on this ground is renewed; and it will be necessary to consider later in this judgment whether there is a further, procedural bar to an appeal on article 5 grounds.
New evidence
As is clear from the above, there have been problems with deployment of the Appellant's evidence. The District Judge had received evidence about the operation of civil commitment orders in the United States; and, as noted above, this included evidence from, Mr Brenner, an American lawyer with experience in the operation of civil commitment orders. It also included statistical material from each side in relation to the operation of such orders.
When the US Government appealed the District Judge's decision, it indicated an intention to rely on evidence in the form of a letter from Mary D. Rodriguez of the US Department of Justice, dated 27 March 2014, in answer to the evidence of Mr Brenner. In the event the Divisional Court in Bowen (No.1) refused to admit the evidence of Ms Rodriguez and did not take into account the evidence of Dr Plaud in response (see [11]). The Court also decided that the evidence of Mr Brenner was an insufficient basis for the District Judge's conclusions, doubting that he was qualified to give expert evidence on the law and practice of civil commitment in New York State (see [39]).
As already noted, the Divisional Court in Bowen (No.2)did consider Dr Plaud's evidence and concluded that it made no difference to its conclusion. In our view it would require exceptional circumstances before one constitution of the Divisional Court would accept an invitation to disregard the conclusions of another constitution in relation to the same evidence.
Mr Southey QC submitted that Dr Plaud's evidence was available to the Secretary of State and she was bound to take it into account. We reject that submission. First, the report itself was not included in the material sent to the Secretary of State; and in the present circumstances we do not consider that it is arguable that the Secretary of State fell into legal error by not considering a report that the Appellant's advisors had decided not to include with the representations. Secondly, the primary relevance of the evidence was in...
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