England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2012

Lord Justice Moses :

1. The Government of the United States seeks the extradition of this appellant to prosecute him for sexual offences alleged to have been committed against three children between July 1993 and February 1994. On 14 December 2010 Senior District Judge Riddle sent the appellant's case to the Secretary of State for her decision as to whether extradition should be ordered. Following representations from the appellant, the Secretary of State rejected those representations by letter dated 10 February 2011, and ordered the appellant's extradition to the United States.
2. The appellant now appeals against the judge's order under s.103 of the Extradition Act 2003 and against the Secretary of State's order pursuant to s.108 of the 2003 Act. The appellant contends that if extradited, there is a real risk that the appellant will be detained under a process known as "civil commitment". He says that his civil commitment would amount to a flagrant denial of his rights enshrined in Art. 5 of the European Convention on Human Rights. Although the United States Government disputed that were the appellant subject to an order for civil commitment his rights under Art. 5 would be infringed, the focus of the argument was directed at the risk of an order for civil commitment.
3. The appellant also contended that the process of civil commitment would amount to a flagrant breach of his Art. 6 rights and, finally, that the Secretary of State's order for extradition breaches her obligations under s.95 of the 2003 Act (Speciality) because the risk of civil commitment carries with it a risk that the appellant will be dealt with for offences other than those for which he is to be extradited.
4. This appeal does not concern the particular offences in respect of which extradition is sought. It suffices to recall that by two complaints in Dakota County, Minnesota, it is alleged that the appellant indecently assaulted two girls under the age of 13 in the autumn of 1993. The third allegation is contained in a complaint in Hennepin County, Minnesota, alleging that the appellant raped a girl aged 14 on 31 January 1994. Senior District Judge Riddle found that the appellant had fled the United States at about the time of the alleged rape and after being interviewed about the indecent assault. He was not arrested until 28 June 2010. As Judge Riddle found, there can be no question but that Mr Sullivan ought to be extradited to face prosecution for those crimes. The only issue is whether his extradition is incompatible with his Convention rights or breaches the rule against Speciality. As will be seen, it would be most unfortunate from the point of view of the victims and of justice should the appellant be able to escape trial because of the risk he runs of being the subject of an order for civil commitment.
5. Civil commitment is unknown to European law, but is a process available in 20 states in the United States. Minnesota's law is said to be more draconian than many others. Under Minnesota law, as described by Professor Janus, who has considerable experience of representing those subjected to petitions for civil commitment in Minnesota, a "sex offender" may be committed indefinitely if under criteria specified in the Sexually Dangerous Persons Act 1994 he is found by a judge to be "irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons". The evidence at the date of the hearing suggested that no sex offender committed to indeterminate detention since the programme began in its current form in 1988 has been released. The Court was referred to three cases where there is a likelihood of release but when I questioned counsel for the United States he was unable to report that any one of those three had been released at the time of this hearing.
6. Most of the evidence relating to the nature of civil commitment in Minnesota was not disputed. The relevant statutory provisions contained in the Sexually Dangerous Persons Act 1994 broadened the scope of civil commitment from the more restricted provisions of the Psychopathic Personality Act which dated back to 1939. It provides for indeterminate confinement of "a sexually dangerous person". In the Sexually Dangerous Persons Act 1994:

"(a) a sexually dangerous person means a person who:-

(1) has engaged in a course of harmful sexual conduct as defined in sub-division 7(a) (such conduct means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another);

(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and

(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in sub-division 7(a).

(b) For the purposes of this provision it is not necessary to prove that the person has an inability to control the person's sexual impulses." (Minn. Stat. & 253B.02.sub-div18c)

7. Professor Janus's report explains and expands upon a report prepared by the Office of the Legislative Auditor (OLA) for the State of Minnesota "a Valuation Report: Civil Commitment of Sex Offenders" published in March 2011 and applies the Minnesota Department of Corrections "Sex Offender Screening Tool" (MnSOST-R).
8. The OLA reports that the standard for commitment is relatively low, and many sexual offenders qualify for commitment. It is not necessary to establish that a person has an inability to control his sexual impulses. It is sufficient to prove that he cannot "adequately control his sexual impulses" (in re Linehan (Linehan II 594N.W2d 867 at 876)). Unconvicted criminal misconduct may be taken into account. A course of harmful sexual conduct may be established on as few as two prior incidents. It is important to record that Minnesota law does not require that a person be mentally ill or mentally incompetent to be committed as a sex offender. Although a trial court must find that future sexual crime is highly likely, Professor Janus says that Minnesota courts have approved commitment despite evidence showing only moderate risk of future sexual misconduct.
9. It is not necessary that a patient be "treatable" to be committed and the OLA reports difficulties in relation to the availability of treatment for those who have been civilly committed.
10. The procedure for commitment is mainly applied to those serving prison sentences for sexual crimes. The Department of Corrections reviews inmates as they approach release. If the Department decides to refer an individual for commitment, his file is sent to the relevant prosecutor's office, an elected county attorney, who determines whether the case is appropriate for civil commitment or not. Civil commitment proceedings start when a prosecutor files a petition to a district court. The court appoints a mental health expert as examiner.
11. The examiner interviews the respondent, reviews records and issues a report as to whether the statutory elements for commitment are satisfied. The matter then proceeds to trial at which the burden of persuasion is on the state on all issues save as to harm. If the court finds that the statutory criteria are satisfied the respondent is committed to the Minnesota Sex Offender Programme which assesses the respondent and writes a report to the court within 60 days. Within 90 days of commitment a second hearing is held at which the court decides whether the respondent continues to satisfy the statutory criteria. If in that brief period the respondent has not changed then the court will order the individual to be committed for an indefinite period. There is a right of appeal at which deference is given to factual findings made by the trial court. Once committed, it is for an individual to petition for release; the state does not have periodically to prove that he should remain confined. The individual must establish eligibility for release. As I have recorded, of the 600 committed since 1988, the evidence suggests that not one has been released, even on a conditional, supervised basis.
12. The underlying scheme of the procedure and law is not in dispute. But there is a dispute between Professor Janus and Judith L Cole, Assistant Prosecuting Attorney for Hennepin County, as to the risk of an order for civil commitment, if the appellant is extradited.
13. Articulating how risk is to be measured is notoriously difficult. Plainly, if the risk of infringing the requested person's convention rights is fanciful there can be no question of refusing extradition. At the other end of the spectrum will be cases where an infringement is a "near certainty". That was the test suggested in relation to Art. 2 by the Commission in Dehwari v The Netherlands 29 E.H.R.R. CD 74 (paragraph 61). But between those two extremes there exists the difficulty of identifying the extent of the risk which an applicant must establish before he can resist extradition.
14. In R (Ullah) v Special Adjudicator [2004] 2 AC 323 [2004] UKHL 26 Lord Bingham said:-

"While the Strasbourg jurisprudence does not preclude reliance on Articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to Art. 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subject to torture or to inhuman or degrading treatment or punishment: Soering paragraph 91…Where reliance is placed on Article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering paragraph 113…Successful reliance on Article 5 would have to meet no less exacting a test. The lack of success of applicants relying on Articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes."

This passage is authority for the proposition that what must be established is a real risk of infringement. The use of the adjective "flagrant" does not assist as to the extent of the risk which must be established. Rather, it refers to the extent of the denial or violation: only a flagrant denial of rights enshrined in Art. 5 or Art. 6 will be sufficient. In Soering v United Kingdom [1989] 11 EHRR 439 the European Court of Human Rights suggested, as Lord Bingham recorded, that it must be shown that a person suffered or risks suffering a flagrant denial of a fair trial [113]. In an earlier paragraph in relation to Art. 5 the court said:-

"Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote attract the obligations of a contracting state under the relevant Convention guarantee." [85] (my emphasis)

This was the passage cited by Lord Steyn when he enunciated the proposition that articles other than Art. 3 may be engaged in cases of extradition [37].

15. At paragraph 86 the court in Soering stated that the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot absolve "the contracting parties from responsibility under Art. 3 for all and any foreseeable consequences of extradition suffered outside of their jurisdiction". [87] (my emphasis)
16. I must apply the test proposed by the European Court of Human Rights, by Lord Bingham and Lord Steyn, namely, that this applicant must show strong grounds for the conclusion that if returned, he would face a real risk of a flagrant denial of Art. 5 or Art. 6.
17. Mr Sullivan is, as I have recalled, alleged to have committed three incidents of prior harmful sexual misconduct in Minnesota. Further, once he had fled the United States he was convicted of two indecent assaults on two 12 year-old girls in Ireland in 1997. That will be evidence admissible in relation to consideration of civil commitment. The OLA report discloses that 45% of the men currently incarcerated under the Minnesota Civil Commitment Programme have two or fewer felony convictions prior to their commitment (OLA Report 1.2).
18. Under that programme, there is no requirement that the offences took place recently (Professor Janus 19) nor, indeed, that the misconduct resulted in conviction, provided that the sexual misconduct is substantiated by credible evidence (Professor Janus, paragraph 18).
19. Nor is there any requirement that the person committed suffers from a medically-diagnosed mental illness or disorder. The Sexually Dangerous Persons Act merely requires dysfunction. All that is required is that the person manifests a "sexual…disorder or dysfunction" (see the definition of sexually dangerous person to which I have referred, above (Professor Janus at paragraph 23)). The assessment of risk of future sexually harmful behaviour is made by the Department of Corrections, the petitioning County Attorney and the committing court, using an actuarial instrument known as MnSOST-R. Professor Janus has applied that instrument and suggests that, on the current known information about the appellant, he would be placed on the high level of risk for future sexual offending [7]. He says he would score at least ten (paragraph 26) and asserts that those with scores of eight or higher are assigned the highest risk level [60] unless there are mitigating circumstances. He predicts that if prosecutors petition for his commitment the historical probability that Mr Sullivan would be committed is better than 80% (paragraph 61).
20. These predictions are disputed by Judith L Cole, the Assistant Hennepin County Attorney. In her affidavit she accuses Professor Janus of lack of objectivity and speculation. Her stance is that at this stage the United States cannot say whether a petition for civil commitment will be filed (see paragraph 5). The timing for determination does not occur until 12 months before a person convicted completes his prison sentence. No accurate score can be predicted until a person has actually served a prison sentence "because a significant part of the scoring involves institutional/dynamic variables that include disciplinary history, chemical dependency treatment, and sex offender treatment while incarcerated" (paragraph 6). This is not of particular comfort in light of the fact that there have been difficulties in providing treatment, as recorded by the Office of the Legislative Auditor, and the fact that although Judith Cole noted in November 2011 that of the three individuals on the verge of release, none had in fact been released by the time of this hearing.
21. The Department of Justice supports Miss Cole's evidence, noting that during the four year period 2006-2009, only about 13% of all sex offenders released from prison in Minnesota were referred by the Department of Corrections to county attorneys for possible civil commitment. Further, as the Office of the Legislative Auditor noted, only about three per cent of registered sex offenders in Minnesota are civilly committed. In light of the expected sentence in the region of 86 months' imprisonment, the Government of the United States, therefore, contends that there is no basis for concluding that Mr Sullivan faces a real risk of civil commitment and that it is not realistically possible at the moment to predict whether he is at risk or not.
22. There is, in my view, a major difficulty in the evidence advanced by the Government of the United States. It is a difficulty which arises out of a significant change in the evidence proffered on its behalf. By letter dated 20 November 2010 Judith Cole told Senior District Judge Riddle that:-

"Even if Sullivan is convicted of the charges in Dakota and Hennepin counties, he does not meet the criteria for civil commitment for a sexually dangerous person under [the statute]"

At the end of the letter she wrote that:-

"Based on current available information, there is no real basis to believe that Sullivan will meet the criteria for a high-risk category under [the statute]."

23. It was on the basis of this evidence that the judge, quoting those passages, concluded that:-

"There is no evidence available to me that this defendant meets the stated criteria of a sexual psychopathic personality or a sexually dangerous person. It appears that a very long time has elapsed since he was last accused of any sexual offence. There is no evidence to suggest that he has an utter lack of power to control his sexual impulses. There is no evidence to suggest that he has a sexual, personality or mental disorder. For these reasons, I conclude that there is no evidence from which I can find that Mr Sullivan faces the possibility of civil commitment. If I thought otherwise, I would consider whether to obtain an undertaking from the American authorities."

24. The references to sexual psychopathic personality and utter lack of power to control are references to the predecessor to the Sexually Dangerous Persons Act, the Sexual Psychopathic Personality Act which did, as interpreted by the courts, require there to be proved an utter lack of power to control. The Sexually Dangerous Persons Act, as I have recorded, changed that requirement so that it is not necessary to prove an inability to control. Nor is it necessary to prove anything more than dysfunction.
25. Senior District Judge Riddle lacked the benefit of any report from Professor Janus. But it is a matter of considerable concern that the emphasis in the letter dated 20 November 2010 subsequently shifted. The position now adopted by the Assistant County Attorney is that it is too early to say. She now says the United States cannot state, whether a petition for civil commitment will be filed…(affidavit paragraph 5). It is accepted by the second respondent, the Secretary of State for the Home Department, that "the Assistant County Attorney appeared to resile from her earlier statement…" (see the application for an adjournment (xi)).
26. I regard this change of position as being of some significance. It is true the earlier letter was qualified by reference to information currently available but not so as to alert the reader, or the judge, to the position now adopted. It undermines the cogency of the Assistant County Attorney's evidence. If the true position was that it was too early to say and no prediction could be made, the Senior District Judge should and would never have been led into concluding that Sullivan did not meet the criteria. The true position, according to the Government of the United States, is that it was premature to say whether he did or not.
27. Further, the essential and justifiable purpose of these proceedings is to ensure that the appellant faces the trial he ought to face in respect of the serious allegations made against him. It is plainly in the interests of justice that he should face such a trial. Extradition is not being sought for the purposes of civil commitment. The Senior District Judge was likely to have sought an undertaking had the evidence not compelled his conclusion that Mr Sullivan did not meet the criteria for civil commitment. If the risk of civil commitment is as low as the United States asserts, that is because the risk to the citizens of Minnesota is low. It is, therefore, surprising that no undertaking has been given.
28. In my view, the apparent change of emphasis of the Government of the United States of America undermines its resistance to the clear and cogent evidence given by Professor Janus, amply supported by the material on which he relies. In those circumstances, I conclude that there is a real risk that if returned Mr Sullivan will be the subject of an order of civil commitment. Accordingly, it remains to consider whether such an order would constitute a flagrant denial of his rights enshrined in Art. 5 or Art. 6.

Article 5

29. The relevant provisions of Art. 5.1 are:-

"No one should be deprived of his liberty save in the following cases, and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

…

(c) the lawful arrest or detention of a person…when it is reasonably considered necessary to prevent his committing an offence…

…

(e) the lawful detention of persons of unsound mind."

30. Although in written submissions the Government of the United States argued that the appellant's detention fell within 5.1(a), that submission was rightly not pursued by Mr Watkins although it was not abandoned. There is no question of the sentencing court, should Mr Sullivan be convicted, of playing any part in the making of a civil commitment order. Indeed, the United States Government's whole argument as to risk was to distinguish between events on conviction and material or evidence which might emerge during the end of the period during which the appellant is in prison.
31. The argument centred on whether the order for civil commitment fell within Art. 5.1(e), namely, whether an order for civil commitment was the lawful detention of persons of unsound mind. The primary authority as to the meaning of persons of unsound mind is Winterwerp v Netherlands [1979-1980] 2 EHRR 387. The court noted that no definitive interpretation could be given to the words "persons of unsound mind" but:-

"It is a term whose meaning is continually evolving as research and psychiatry progresses, and continuing flexibility and treatment is developing and society's attitude to mental illness changes…[38].

The individual concerned should not be deprived of his liberty unless he has been reliably shown to be of unsound mind. The very nature of what has to be established before the competent national authority – that is a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder." [39]

32. It is of note that in M v Germany [2010] 51 EHRR 41 the recidivist had been diagnosed as suffering from a pathological brain disorder and found by the sentencing court to be suffering from a serious mental disorder but by 1986 his condition was not pathological and he did not need to be treated medically. Although he was regarded as continuing to be of danger, Frankfurt-am-Main Court of Appeal had held in 2001 that he no longer suffered from a serious mental disorder. Thus a clear distinction had to be drawn between dangerousness and unsound mind. Only in the case of a serious mental disorder would detention under sub-paragraph (e) of Art.5.1 be justified. The court, when considering preventative detention in Germany, seemed to draw a distinction between persons of unsound mind and those who "acted with full criminal responsibility when committing their offences" (paragraph 70). It drew attention to the fact that the applicant was no longer suffering from a serious mental disorder and that therefore his detention could not be justified under Art. 5.1(e) (paragraph 103).
33. In the instant appeal the evidence does not come close to establishing that orders for civil commitment are only made in respect of those suffering from an unsound mind within the meaning of Art. 5.1(e), let alone a serious mental disorder. I have already identified the Minnesota statutory authority for an order of civil commitment which merely requires that the person:-

"(2) has manifested a sexual, personality, or other mental disorder or dysfunction; (Minnesota Statute paragraph 253B.02 sub-div.18c)"

The risk I have found that Mr Sullivan will be detained under an order of civil commitment exists only if he manifests a sexual dysfunction. Since it is not necessary to prove that that amounts to an inability to control his sexual impulses, it is plain that the criteria fall far short of the necessity of proving he is of unsound mind. In those circumstances, it is clear to me that were an order of civil commitment to be made, it would be a flagrant denial of this appellant's rights under Art. 5.1 because it fell outwith the provisions of Art. 5.1(e).

34. In the light of that conclusion it is unnecessary to detail the further grounds advanced in respect of Art. 6 and Speciality. In Othman v UK [2012] ECHR 56 (17 January 2012) the Court recorded the principles in relation to whether extradition would expose an appellant to a flagrant denial of justice in breach of Art. 6 (see paragraphs 258-259). The Court recorded that a flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures. Such a denial only exists where the breach of the principles of fair trial guaranteed by Art. 6 is so fundamental as to amount to a nullification of the very essence of the right (260). In the light of the focus of the argument upon risk and Art. 5, I heard no full argument as to Art. 6, and in those circumstances think it unwise to reach a concluded view. I am inclined, but only inclined, to think that Mr Sullivan would have found it difficult to establish a risk of a flagrant denial of justice in violation of Art. 6.
35. Again, I have no need in the light of my view, to consider further the arguments in relation to Speciality which concern only the Secretary of State. I should merely record that the controversy focussed on whether the proceedings amounted to a civil rather than a criminal procedure. Speciality provisions contained in s.95 of the 2003 Act only protect an extradited individual from "detention, trial and/or punishment for criminal offences". It may be difficult to establish that an order for civil commitment amounted to detention, trial or punishment for criminal offences (see OB v Director of the SFO [2012] EWCA Crim 67 paragraphs 17 and 51). In that case the Court of Appeal concluded that Art. 18, containing the Rule of Speciality in the UK/US Extradition Treaty, had no application other than in relation to criminal offences. It seems likely, but again I reach no concluded view, since I heard no full argument on the point, that an order for civil commitment, just like an order in respect of civil contempt which might mean committal to prison, did not amount to trial or punishment for a criminal offence.
36. I emphasise again that my judgment rests solely on my conclusion that there is a real risk that if extradited the appellant might be subject to an order for civil commitment within Minnesota and that that amounts to a risk that he would suffer a flagrant denial of his rights enshrined in Art. 5.1. Because the United States may now wish to give an assurance, and because if I allow the appeal that may be of no avail (s.104(1)(a) and (5)), I should hear further argument as to disposal of the appeal on handing down this judgment. I would make no order on the appeal under s.108.

Mr Justice Eady:

37. I agree. The crux of the matter is the assessment of risk to be made on the evidence available to this court. Instead of becoming clearer with the passage of time, the position is now more uncertain than was the case before the District Judge. I too would conclude the material before us reveals that there is a more than fanciful risk that the appellant would become subject to the civil commitment process in the State of Minnesota and, accordingly, that he would suffer a flagrant denial of his rights under Art 5.1. That assessment of risk is borne out by the absence of any undertaking up to this point.