The Government of the United States of America v Giese [2015] EWHC 2733 (Admin)

On 7 October 2015, the High Court held that the District Judge had been correct to refuse to order the extradition of Roger Giese, a former voice coach, from the United Kingdom, to the United States, where he has been charged with sexually abusing an adolescent boy.

The Court held that civil commitment procedures (a type of indeterminate confinement for serious sex offenders), in California, would constitute a ‘flagrant breach’ of Mr Giese’s rights under Article 5 of the European Convention on Human Rights (ECHR). The judgment is here.

Background

In 2004, the State of California charged Mr Giese with a number of sexual offences, allegedly committed against a boy, who was under the age of 14 at the time, between 1998 and 2002. Mr Giese appeared before a court and was arraigned and bailed. A further pre-trial hearing was fixed for 12 March 2007, which Mr Giese failed to attend, and a warrant was issued for his arrest.

Mr Giese subsequently left California and returned to the UK, where he remained undetected by US authorities for many years. On 12 February 2014, the US government issued a request that Mr Giese be arrested and extradited to stand trial in California. On 8 May 2014, the extradition request was certified by the Home Secretary, and Mr Giese was arrested on 4 June 2014.

Decision of District Judge Coleman, 21 April 2015

It was argued before District Judge Coleman, sitting at Westminster Magistrates’ Court that, in accordance with section 87 of the Extradition Act 2003, Mr Giese’s extradition would be incompatible with his rights under the European Convention on Human Rights (ECHR), and that he should be discharged, on two grounds:

1. Prison conditions would violate his rights under Article 3 ECHR.
2. There would be a ‘real risk’ that Mr Giese would be subject to civil commitment in California and that his rights under Article 5(1) ECHR would therefore be violated.

District Judge Coleman found that extradition was compatible with Article 3 ECHR but incompatible with Article 5(1) ECHR. Of note, with respect to Article 5 ECHR, District Judge Coleman held that, in the event that the requirements in California for civil commitment require that the individual be of ‘unsound mind’, within the meaning of Article 5(1)(e) of the ECHR (which states that no one shall be deprived of his liberty, except in certain cases, and in accordance with a procedure prescribed by law, and includes the lawful detention of persons of an “unsound mind”), then any detention under such an order would not amount to a breach of Article 5 ECHR.

However, District Judge Coleman held that the number of people who may potentially fall within the category of ‘unsound mind’, and therefore be subject to civil commitment would be large, and therefore, Mr Giese’s detention amounted to a ‘flagrant’ breach of Article 5 ECHR.

In the absence of assurances by US authorities that a civil commitment order would not be sought, Mr Giese was discharged from extradition proceedings.

Administrative Court, 7 October 2015

The US government appealed against District Judge Coleman’s decision.

Two questions were raised on appeal, before Lord Justice Aikens and Mr Justice Holyrode, sitting at the Administrative Court:

1. Whether, first, there is a ‘real risk’ of Mr Giese being subject to civil commitment in California.
2. If so, whether there was a ‘real risk’ that such an order would be a ‘flagrant breach’ of Mr Giese’s rights under Article 5(1) ECHR, applying R (Ullah).

Held:

1. The decision of District Judge Coleman, that there is a ‘real risk’ that Mr Giese would be made subject to an order for civil commitment, should stand. The District Judge considered the relevant factors in determining the case against Mr Giese. Regard was given to factors beyond just the seriousness of the charge, including, inter alia, the age of the victim and the degree of grooming allegedly involved. The District Judge considered the fact that Mr Giese had no previous convictions. Further, the District Judge was entitled to reach the conclusion she did with respect to the evidence of three experts.
2. The findings of fact of District Judge Coleman must be accorded very high respect, as should her evaluation of the expert evidence. Her decision can only be successfully challenged if it is ‘wrong’. Celinski applied. With this in mind, the District Judge’s finding that the civil commitment procedure in California is not compatible with the concept of a ‘person of unsound mind’, under Article 5(1)(e) ECHR, was not wrong. Evidence presented by two expert witnesses showed that the test applied in California (‘diagnosed mental disorder’) is interpreted widely by medical evaluators. Conversely, Article 5(1)(e) ECHR must be given a narrow interpretation: Winterwerp applied. Accordingly, the basis of a civil commitment order would be incompatible with the exception to the general rule of Article 5(1) ECHR, through the concept of ‘lawful persons of unsound mind’, under Article 5 (1)(e) ECHR. Moreover, four factors make the denial a ‘flagrant’ one: (1) the lengthy nature of the civil commitment process; (2) the basis on which Mr Giese would be held in detention is the fact he has some kind of ‘antisocial behaviour disorder’; this cannot be said to warrant a ‘draconian’ civil commitment order; (3) the process of removing such a civil commitment order is time-consuming and arduous. Bowen distinguished.

The US government was initially provided with 14 days in which to offer a satisfactory assurance that, should Mr Giese be found guilty, that there will be no attempt to make him the subject of a civil commitment order. On 21 October 2015, the High Court granted an extension to 30 October 2015, for assurances to be provided. A report is here.

Appeal dismissed.

Assurances

For Part 2 territories, under the EA 2003, which includes the United States, the requesting territory may give diplomatic assurances to try and establish that there is no risk of a violation of a right under the ECHR. Indeed, the Administrative Court in Giese held that it would hear further argument on what order should be made if the US provides assurances within time.

In Othman, the European Court of Human Rights (ECtHR) gave guidance on the factors relevant to assessing the quality and weight to be given to assurances (the so-called ‘Othman Criteria’), noting that only in rare cases would the general situation in a country mean that no weight at all could be given to such assurances. The House of Lords Select Committee 2^nd Report, ‘Extradition: UK law and practice’ (‘the Second Report’), sets out the Othman criteria at pages 26-27, and is available here.

The Second Report was particularly critical of the arrangements in place for monitoring assurances, finding them to be “flawed”, adding that “there can be no confidence that assurances are not being breached, or that they can offer an effective remedy in the event of a breach.” (see para 89). According to the Second Report, the Home Office and FCO are in the process of reviewing the procedures in place for monitoring assurances, which was welcomed by the House of Lords Select Committee.