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
		07/10/2015

Lord Justice Aikens:

1. This is the judgment of the court and is the work of both of us.

The Question on this appeal

2. This is an appeal pursuant to section 105 of the Extradition Act 2003 ("the EA") by the Government of the United States of America ("the Government") against the order of District Judge (Magistrates' Courts) Margot Coleman ("the DJ") on 21 April 2015 refusing a request for the extradition of the Respondent Mr Alan Giese ("Mr Giese").
3. California is one of twenty States in the USA which have a system of "civil commitment". This is a form of indeterminate confinement in a secure facility which may be imposed in civil proceedings against a person who has been convicted of, and who has served his sentence for, certain types of sexual offence and who is deemed to be mentally ill and dangerous. The details of the system, and the criteria used to determine whether an order should be imposed, vary as between the different States which operate it. In the context of extradition requests, the courts in this country have previously had to consider the civil commitment systems in Minnesota (see Sullivan v Government of USA [2012] EWHC 1680 (Admin)) and New York State (see Government of USA v Bowen [2015] EWHC 1873 (Admin)).
4. The questions on this appeal are whether there is a "real risk" that Mr Giese would be made subject to an order for civil commitment under the system which operates in California and, if so, whether there is 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"). If so, as the DJ concluded, Mr Giese must not be extradited and is entitled to be discharged pursuant to section 87(1) and (2) of the EA.

The Facts and the proceedings before the DJ

5. In 2004, in the State of California, Mr Giese was charged with a number of serious sexual offences allegedly committed against an adolescent boy during the period May 1998 to May 2002 when the boy was under the age of 14. He appeared before a court and was arraigned and bailed. After further pre-trial hearings his trial was fixed for 12 March 2007. On that date Mr Giese failed to answer to his bail, and a warrant for his arrest was issued. He left the USA and came to the United Kingdom. He remained undetected by the US authorities for several years. On 12 February 2014 the Government issued a request that Mr Giese, who was believed to be living at an address in Hampshire, be arrested and extradited to stand his trial in California. That request was certified by the Secretary of State for the Home Department ("SSHD") on 8 May 2014, pursuant to section 70 of the EA. Mr Giese was arrested on 4 June 2014.
6. The extradition hearing took place before the DJ on 9 and 10 March 2015. As noted above, the DJ gave her judgment on 21 April 2015.
7. The USA has been designated a Category 2 territory for the purposes of the EA. Therefore Part 2 of the EA applies to these proceedings. Mr Giese has accepted that he was properly identified in the warrant and that the offences with which he stands charged are extradition offences. The DJ found that there were no statutory bars to extradition other than the Article 5 issue.
8. Before the DJ, Mr Giese argued, pursuant to section 87 of the EA, that extradition would be incompatible with his Convention rights for two reasons:

i) first, because the prison conditions in which he would be held in California would violate his Convention rights under Article 3. The DJ decided this issue in favour of the Government and Mr Giese no longer seeks to advance this argument;

ii) secondly, because there was a real risk that he would be subject to civil commitment in California and that his Convention rights under Article 5(1) would thereby be violated. The DJ decided this issue in favour of Mr Giese.

9. The references above to a "real risk" reflects the law as stated in R (Ullah) v Special Adjudicator [2004] 2 AC 323, Sullivan v Government of USA and, most recently, Government of USA v Bowen. In Ullah, it was held that the applicant must show strong grounds for the conclusion that he risked suffering a "flagrant denial" of his Article 5 rights.^[1] In Sullivan, which as we have said was specifically concerned with civil commitment in the State of Minnesota, Moses LJ said^[2] that "what must be established is a real risk of infringement". Moses LJ also pointed out that the use of the adjective "flagrant" in this context does not assist as to the extent of the risk which must be established; "flagrant" qualifies the extent of the denial or violation.^[3] In the same case Eady J said^[4] that the appellant must show a "more than fanciful risk" that he would suffer a flagrant denial of his Article 5 rights. In Bowen, Burnett LJ, giving the judgment of the court, said^[5] that

"In a case where a person is to be removed from the United Kingdom, the question in domestic proceedings is whether there is a real risk, demonstrated by evidence, that the right to liberty would be completely denied or nullified in the receiving country. In particular that engages the question whether what he risks amounts to arbitrary arrest or detention and whether detention would be subject to effective judicial control".

10. The issue concerning "civil commitment" before the DJ and the grounds of appeal raise two questions:

i) Is there was a real risk of Mr Giese being subject to civil commitment?

ii) If so, would extradition lead to a "real risk" of a violation of Mr Giese's rights under Article 5(1) of the ECHR such as to constitute a bar to Mr Giese's extradition pursuant to section 87(2) of the EA. Before the DJ it seems that the Government argued that the detention of Mr Giese under a civil commitment order came within the exceptions set out in Article 5(1)(a), (c) or (e) of the ECHR. The DJ concentrated on (e), viz that Mr Giese's detention would be lawful because he would have been held to be a person of "unsound mind". That was the basis of the Government's case on Article 5 before us.

A summary of the California law and procedure relating to "civil commitment".

11. Civil commitment orders were introduced into California law by the California Sexually Violent Predator Act of 1996. The law is now codified in the California Welfare and Institutions Code (WIC) §6600 to 6609.3. We have set out the relevant parts of the WIC in the Appendix to this judgment.
12. For present purposes, the essential elements of the system can be summarised as follows: (1) if the Secretary of the California Department of Corrections and Rehabilitation("CDCR") determines that an individual who is serving a determinate prison sentence for one or more specified sexual offences "may be" a "sexually violent predator" ("SVP"), the Secretary shall, at least six months prior to the individual's scheduled date for release, refer the person for evaluation in accordance with the Code.^[6] (2) An SVP is defined by the Code as a person "who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior".^[7] (3) The offences that are "sexually violent offences" for the purposes of the civil commitment procedure are defined in WIC §6600(b) and a "conviction" for a "sexually violent offence" includes a conviction that has resulted in a determinate prison sentence for one or more of the defined offences.^[8] (4) Conviction of one or more "sexually violent offences" shall "constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for that determination".^[9] (5) Definitions of "diagnosed mental disorder", "danger to the health and safety of others" and " predatory" are set out in WIC §6600(c), (d) and (e). (6) If the Secretary of the Department of Corrections and Rehabilitations refers an individual under WIC §6601(b), he is then subject to an initial screening. If, as a result of this screening, it is determined that he is "likely" to be an SVP, he is referred to the Department of State Hospitals ("DSH") for a full evaluation of whether he meets the criteria set out in WIC §6600. We describe the evidence before the DJ on how this has worked in practice in more detail below. (7) If the evaluators agree that the person meets the three criteria for an SVP, the case is referred to the District Attorney, who decides whether or not to pursue the matter. If he does, the case goes before a judge alone to determine whether there is "probable cause" to proceed further.^[10] (8) If the judge does so determine, then there is a trial, before a judge and usually a jury, to determine "whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility".^[11] (9) If the individual is determined ("beyond a reasonable doubt") to be an SVP, he is committed for an "indeterminate term" to the custody of the Department of State Hospitals "for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals".^[12] (10) The prisoner is reviewed annually to see if he still meets the criteria of being an SVP. If he does not he may petition for release which may be unconditional or conditional.

What is the correct approach for this court where there is a challenge to the DJ's conclusions that extradition would not be compatible with a person's Article 5 Convention rights?

13. In this case the question of whether the extradition of Mr Giese to California would be incompatible with his Article 5 Convention rights involves questions of fact and law at each stage. The question of whether there is a "real risk" that Mr Giese might, if convicted, be made the subject of a civil commitment order is, ultimately, a question of fact, although that required the DJ to evaluate and make conclusions on expert opinion evidence on the whole process.
14. Assuming that there is a "real risk" that Mr Giese would be subject to a civil commitment order, the question of whether, as a consequence, his extradition would be incompatible with his Article 5 rights is a question of fact and law. The argument is that any detention of Mr Giese under a civil commitment order is within the exception of Article 5(1)(e) of the ECHR, viz. it is lawful because he would be detained "in accordance with a procedure prescribed by law" and it would be the "lawful detention" of a person of "unsound mind". To determine that issue, it is necessary to examine whether the criteria set out in the California legislation, as put into practice by the Californian decision makers (psychiatrists, psychologists, officials, the District Attorney, the judge and (if involved) the jury) are compatible with the phrase "persons of unsound mind" in Article 5(1)(e), as interpreted by the European Court of Human Rights (ECtHR). Again, that involves an evaluation of the expert evidence on the process in California. Even if the criteria as operated are not compatible with Article 5(e), the ultimate question is whether there is a real risk that the whole process would constitute a "flagrant breach or violation" of Mr Giese's Article 5 rights such that his extradition would be incompatible with his Convention rights for the purposes of section 87 of the EA. That also involves an evaluation of the expert evidence on the process in California and the way that the Californian law is applied in practice by all involved.
15. There was some debate before us as to how this court should approach a challenge to the DJ's conclusions on the evidence and the law in an Article 5 case. It seems to us that we should adopt the principles set out by the Lord Chief Justice in Celinski v Poland [2015] EWHC 1274 (Admin). First, we must have a very high respect for the findings of fact of the DJ. Secondly, we must also have respect for the DJ's evaluation of the expert evidence, especially as in this case the evaluation was based not only on written reports but also on oral evidence and cross-examination. Thirdly, the decision of the DJ can only be successfully challenged if it is demonstrated that it is "wrong".^[13]
16. We consider the issues on that basis.

The first issue: was the DJ wrong to conclude that there is a "real risk" that Mr Giese would be subject to a civil commitment order?

17. The DJ received evidence from a number of witnesses both on the process of civil commitment in California in general, and also on the risk that Mr Giese in particular, would, in all the circumstances of his case, be made subject to that process. The Government relied on the evidence contained in the reports of Miss Lynn Holliday, a senior trial attorney within the US Department of Justice, and Mr Peter Finnerty, a District Attorney in Orange County, California. Mr Giese relied on the evidence of Dr Dana Putnam, a clinical and forensic psychologist who had undertaken more than 700 evaluations for the civil commitment process in California, and Mr Jeffrey Lowry, a deputy Public Defender who for three years has been the lead attorney in the civil commitment unit in San Bernardino County. The latter two witnesses gave oral evidence by videolink, essentially to the same effect as the contents of their respective reports. The DJ was satisfied that all four witnesses were expert in their respective fields and well qualified to give their evidence.
18. The evidence of Dr Putnam, which the DJ accepted, identified the following features of the system of civil commitment:

i) When a prisoner is nearing release, the CDCR makes an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal and institutional history".

ii) If as a result of that screening it is determined that the prisoner is likely to be a SVP, he is referred to the Department of State Hospitals ("DSH") for a full evaluation of whether he meets the criteria in WIC section 6600. A State psychologist carries out a further screening process to determine whether a full evaluation is warranted. It will not be warranted if the prisoner is regarded as very unlikely to fulfil the criteria. If a full evaluation is warranted, it is performed by two evaluators, each of whom may be either a psychiatrist or a psychologist, and may or may not be employed by the State. The evaluation considers whether the prisoner has been convicted of a qualifying offence; whether he has a diagnosable mental disorder which predisposes him to the commission of sexual offences; and whether, without appropriate treatment and custody, he is likely to engage in acts of sexual violence as a result of his diagnosed mental disorder. In relation to the third of those questions, California case law establishes that "likely" means that there is a serious and well-founded risk that he will so behave: it is not necessary for the evaluators to conclude that there is a probability that he will do so. The evaluators work independently of each other. If they both find the prisoner meets the three criteria for a SVP, the case is referred to the District Attorney to start legal proceedings. If they disagree in their conclusions, two further evaluators are engaged. If three of the evaluators agree that the prisoner meets the criteria for an SVP, the case is referred to the District Attorney.

iii) The District Attorney has a discretion not to pursue the matter towards civil commitment. If the District Attorney decides to file a petition, the prisoner has a right to challenge that decision.

iv) Once a petition has been filed, there is a hearing before a judge to determine whether there is "probable cause" to proceed further. The judge must for this purpose determine whether the petition states sufficient facts which, if true, "would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior" upon release. The prisoner is entitled to legal representation, and may cross examine witnesses at this hearing. If the judge finds probable cause, the prisoner must be detained in a secure facility until trial. The trial may not take place until years after the probable cause hearing, with the prisoner being detained throughout. Dr Putnam and Mr Lowry both accepted that in some cases delay may be caused or contributed to by the prisoner himself, but Mr Lowry gave other reasons – beyond the control of the prisoner - why the process is a very long one.

v) Either a jury or a judge alone then determines the issue of whether the prisoner is an SVP: that is, "by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence" upon release^[14]. The burden is on the State to prove beyond reasonable doubt that the prisoner is an SVP. If the issue is determined by a jury, their verdict that the prisoner is an SVP has to be unanimous.

vi) If the finding is that the prisoner is not an SVP, he is released. If he is found to be an SVP, he is committed for an indeterminate term to the custody of the Department of State Hospitals period "for appropriate treatment and confinement in a secure facility". The prisoner found to be an SVP has a right of appeal on a point of law.

vii) The prisoner will thereafter be reviewed annually. If he no longer meets the criteria for an SVP, he may petition to be released from his civil commitment. Such release may be conditional or unconditional.

19. Mr Finnerty's evidence was that of the total of more than 50,000 California prisoners referred to the DSH over a period of years, only about 1.5% were ultimately subject to civil commitment. Miss Holliday provided evidence of records and statistics to a similar effect. On that basis, it was argued by the Government that there was no real risk that Mr Giese, even if he were convicted, would be made subject to civil commitment. Dr Putnam considered the statistical material on which that evidence was based, and noted that the total number of cases to which Mr Finnerty referred in fact included multiple referrals of the same individuals. Moreover, the total number related to those who on the initial screening by the CDCR met the criteria as potential SVPs without reference to whether there was a qualifying mental disorder: it therefore included many who were not real candidates for civil commitment.
20. Dr Putnam's evidence, which the DJ accepted, was that the more relevant cohort comprised those individuals who were referred to the DSH for full evaluation because they were deemed to have a sex offending history that could possibly result in their being found to be an SVP. The number of such persons was 14,335; and of those, 1,983 (14%) were found to meet the criteria and were referred to District Attorneys. Dr Putnam went on to say that of the 1,983 prisoners so referred, petitions were filed in 1,736 cases. Even taking into account cases in which the petition was subsequently withdrawn, probable cause was found in about 87% of them (96% if the withdrawn cases were left out of account). Finally, Dr Putnam showed that of those who went to trial, just over 85% were civilly committed. In short, said Dr Putnam, the statistics quoted by Mr Finnerty were accurate, but were not really relevant to the question of whether Mr Giese would be at real risk of being found an SVP.
21. As to that risk, Dr Putnam noted that each of the offences with which Mr Giese is charged is a qualifying offence. It follows that if convicted he would certainly be an SVP candidate at the first stage of the process. He went on to say that, given the facts and circumstances of the alleged offences, it is almost certain that Mr Giese would be referred for a full evaluation, and would be found to meet the criteria for an SVP. A plea bargain might result in a shorter sentence, but would not avoid Mr Giese being convicted of qualifying offences. We note at this point that Mr Lowry similarly said that "there is no doubt, given the nature of Mr Giese's offences and the length of time over which they were committed, he will undergo a full evaluation".
22. Summarising his evidence – in a passage from his report which was cited by the DJ in her judgment – Dr Putnam stated:

"Mr Giese's history makes it almost certain that he would be referred by CDCR to DSH and found by DSH to warrant a full clinical evaluation. Thus he would be expected to come within the category of those 14,335 referred to … above. As described above, 14% of those evaluated were found by evaluators to be SVPs and were referred to District Attorneys for adjudication. Once a person has been referred to the District Attorney there is a high likelihood (87-96%) of being held to await trial and a high likelihood if sent to trial that he will be found a SVP (85%). Given the data, it is clear that anyone who is referred for clinical evaluation has a real risk of being held and committed as an SVP."

23. Dr Putnam acknowledged that he had not personally assessed Mr Giese, and that he could not perform a full clinical evaluation without interviewing Mr Giese. He nonetheless concluded that

"there is a real risk Mr Giese would be subject to a civil commitment assessment and be evaluated and a real risk that if returned to the USA he will be subject to the SVP law, and a real risk of his being found to be an SVP".

The DJ accepted that evidence. She expressly found Dr Putnam's evidence as to the relevant statistics to be more persuasive than that of Mr Finnerty:

"They appear to me to be more transparent and take account of the different factors."

24. At page 15 of her judgment the DJ reached the following conclusion:

"There is no doubt that Mr Giese faces extremely serious charges and, on the face of it, there is a strong case against him. However because of the nature of these serious charges, because of the age of the victim, because of the degree of grooming and breach of trust said to have been involved, because of the length of time over which the offending is said to have been perpetrated, [it] makes it a near certainty that Mr Giese will be referred by the California Department of Corrections and Rehabilitation to the State Hospital for evaluation. There is a real risk he meets the criteria for commitment. Quite likely he will have a probable cause hearing. Strong likelihood to be found by a jury to be a sexually violent predator (the standard of proof is beyond reasonable doubt). Clearly it is impossible to predict what the outcome of the trial would be, but assessing what is currently known leads me to believe there is a substantial risk of Mr Giese being detained for a very long period, ether because an order of civil commitment is made or, if not, simply waiting for the process to complete. As stated above, Dr Putnam mentions periods from 6 years 3 months to 7 years 8 months."

25. At the end of her judgment, the DJ repeated that finding:

"I accept that the risk has to be assessed on the information available now. I reject the proposition that it is too early to assess the risk. I reject the proposition put forward by the Government's witnesses, that there is little risk of an order being made. Having analysed the evidence of the Government's witnesses and the witnesses called on behalf of [Mr Giese], I have reached the conclusion that if [Mr Giese] is returned to stand his trial, and if he is convicted, the risk of his being made subject to civil commitment cannot be described as fanciful. I accept the evidence of Dr Putnam and Mr Lowry that Mr Giese will be the subject of civil commitment. The risk is real."

26. Before us, on behalf of the Government, Mr Toby Cadman challenged that finding as being wrong in law. He conceded that if Mr Giese were to be convicted of the offences with which he is charged, he would be liable, and would be likely, to be subject to an application that he be considered for civil commitment. But, Mr Cadman submitted, there was no certainty that such an application would succeed at all or any of the stages of the procedure which we have outlined above: it would therefore be purely speculative to say that Mr Giese would be civilly committed. It was, he submitted, impossible to quantify the risk. He thus conceded that, in the event of Mr Giese being extradited and convicted, there would be a risk that the civil commitment process would be triggered, but argued that the DJ should have found there was no real risk of civil commitment in fact being ordered.
27. In support of his argument, Mr Cadman made a number of specific criticisms of the judgment of the DJ and of the evidence of both Dr Putnam and Mr Lowry. First, Mr Cadman submitted that the DJ placed undue emphasis on the seriousness of the charges which Mr Giese faces: seriousness of the offending is not in itself a sufficient basis for Mr Giese to be made subject to civil commitment, and a proper consideration of other factors should have led the DJ to conclude that there is no more than a speculative possibility of civil commitment in this case.
28. We cannot accept that submission. In the passage which we have cited at paragraph 24 above, the DJ plainly had regard to factors other than the seriousness of the charges.
29. Secondly, Mr Cadman argued that Dr Putnam had not addressed the point that Mr Giese does not have any previous convictions. That feature, argued Mr Cadman, meant that Mr Giese would register a low score in the actuarial tests used by the evaluators in relation to recidivism, and faced no significant risk of civil commitment.
30. That point was, however, addressed in the evidence heard by the DJ. Both Dr Putnam and Mr Lowry were asked questions in cross-examination suggesting that the absence of previous convictions, and the absence of any allegation of offending between 2002 and the present, would be taken into account in Mr Giese's favour and would make it unlikely that he would be found an SVP. Both acknowledged that those matters would be taken into account. Dr Putnam, however, said that an absence of reoffending did not necessarily prevent a diagnosis of a mental disorder, and that it could not be assumed that offending had not occurred just because it had not been detected.
31. Mr Lowry said that the absence of other convictions was extremely important, but that even when there was a period of time with no offending, a person could still be found to be "likely" to engage in sexually violent criminal behaviour: "State evaluators look at past behaviour and believe they can predict future behaviour". That oral evidence supplemented a passage at page 6 of his report in which he said:

"Mr Finnerty makes the statement that Mr Giese has no criminal record, therefore he will be scored low. This simply does not follow. It may or may not hold true in relation to the Static 99R or 2002R actuarial instruments (there are many more factors considered than just past criminal history), but not the MnSOST or SORAG assessment methods. It very much depends on which instrument is chosen and evaluators are free to choose any instrument, or no instrument at all, in evaluating offenders."

32. The DJ therefore heard and considered evidence on this issue. Indeed, as page 12 of her judgment makes clear, she had very much in mind the overall stance of Mr Finnerty, whose evidence "essentially purports to undermine both the reliability of Dr Putnam's evidence and the credibility of Dr Putnam as an expert". She was in our judgment entitled to accept the expert evidence on behalf of Mr Giese to the effect that previous and subsequent good character would not reduce to "fanciful" the risk of his being made subject to civil commitment.
33. Thirdly, Mr Cadman argued that Dr Putnam had gone beyond the proper boundaries of his expertise and had purported to examine in detail the legal framework of the civil commitment process. But again, that point had been argued before, and considered by, the DJ. It is clear (in particular from page 10 of her judgment) that she approached his evidence on the basis that he was a highly experienced clinician giving evidence as to how the law was applied in practice. She was, in our judgment, plainly entitled to do so. We are not persuaded that the DJ fell into any error in accepting those parts of Dr Putnam's evidence which touched upon aspects of the State law in the course of explaining his opinion as to the risk of Mr Giese's being subject to civil commitment. The Government adduced no evidence which convincingly showed Dr Putnam to be wrong in any of those parts of his evidence. Indeed, it is in our view noticeable that the evidence adduced by the Government tended to concentrate on the process overall and gave comparatively little attention to the likely outcome of the process in the particular circumstances of this case.
34. Fourthly, Mr Cadman similarly criticised aspects of the evidence of Mr Lowry. In this regard also he relied on the evidence of Mr Finnerty. Again, however, it is apparent that the DJ preferred the evidence of Mr Lowry, whose report she described as "extremely helpful and informative in terms of the process and the practice". Mr Lowry, like Dr Putnam, was giving evidence based on his considerable experience of the way in which the process operates in practice. We have no doubt that he was entitled to give such evidence and that the DJ was entitled to accept his evidence as reliable.
35. Finally, Mr Cadman relied on the evidence of Miss Holliday and Mr Finnerty to the effect that, of the total number of prisoners referred to the DSH, only 1.5% were ultimately subject to civil commitment. As to that, we have no doubt that the DJ was entitled to prefer the statistics on which Dr Putnam's evidence focused. Dr Putnam gave convincing reasons why Mr Finnerty's evidence had an inappropriate focus, and did not assist the court to assess the risk of civil commitment in the particular circumstances of this case.
36. We note, moreover, that Mr Cadman relied on two sets of figures set out in Memos of the Office of the District Attorney to Miss Holliday. The first of these, dated 11 June 2013, showed that of 24,816 offenders considered for possible civil commitment over a 17-year period from 1996 to 2013, only 1,962 were referred to the District Attorney for the initiation of civil commitment proceedings after the clinical evaluation by the DSH. Later in the same memo, however, the fate of that cohort of 1,962 prisoners was set out as follows: petitions were filed by the District Attorney in 1,711 cases; "probable cause" was found by a judge in 1,408 of those cases; and 788 of those persons were made subject to civil commitment, only 180 of whom have subsequently been released.
37. In a subsequent Memo to Miss Halliday from the Office of the District Attorney which is undated but clearly prepared in 2014, it is stated that during the period from 1 January 1996 to 20 August 2014, 2004 cases were recommended by the DSH to the District Attorney for initiation of civil commitment proceedings. Of that number, 1745 cases generated civil commitment petitions and were officially filed by the District Attorney in court and in 243 cases that were recommended by the DSH the District Attorney decided against filing the case in court. Of the 1745 petitions filed, 1439 were found to have "probable cause" by a judge and of that total 810 were found after a trial to meet the criteria as an SVP and were made the subject of a civil commitment order. Of the 810 that were found to meet the criteria as an SVP and committed to a hospital following a trial, 29 had been conditionally released to the community through the Conditional Release Program.
38. In our view, those figures strongly support the argument on behalf of Mr Giese that if he were convicted, evaluated and referred to the District Attorney, there is a substantial risk that he would ultimately be made subject to civil commitment and would be detained for a long period after serving his sentence.
39. Mr Watkins, on behalf of Mr Giese, submitted that the evidence of Dr Putnam and Mr Lowry established a more than fanciful risk that Mr Giese would not only be subject to the civil commitment process (which would in itself involve his being detained long after the completion of his prison sentence) but that he would also be committed and thereafter detained for an indeterminate period. He made the compelling point that, after the initial screening and evaluation before sending the case to the District Attorney, the process begins with the the District Attorney deciding whether or not to file a petition. Mr Watkins submitted that it would therefore be possible for the Government to preclude any question of a civil commitment by stating unequivocally that no petition would be filed in Mr Giese's case, even if he were to be convicted of all the offences with which he is charged and an initial evaluation made so that the case was sent to the District Attorney. Mr Watkins pointed out that the Government had not been prepared to give such an undertaking and he invited the court to draw the inference that the Government did at the very least wish to keep open the option of pursuing civil commitment. We are prepared to do so.
40. We are unable to accept Mr Cadman's overall submissions on this first issue. It is correct, as Mr Cadman submits, that there are a number of stages of the process; that Mr Giese will be able to challenge his detention at each of those stages; and that all of the stages would have to be resolved against him before he could be made subject to civil commitment. That argument, however, only goes to show why it is not possible to predict the outcome of the process with certainty. It does not answer the point that, on the evidence adduced on behalf of Mr Giese, there is a real risk that every stage of the process will be resolved against Mr Giese and that he will therefore be detained in a secure institution for an indeterminate period.
41. In our judgment, the DJ was entitled to accept the evidence she did and to make the findings she did on this issue. The evidence was strongly supportive of the conclusion that Mr Giese, if returned to the USA and convicted, would be entered into the civil commitment process. The DJ was entitled to find that, once entered into the process, Mr Giese would inevitably be detained for a substantial period of time as the process took its course, and that he would face a real risk that he would ultimately be subject to civil commitment for an indeterminate period. The fact that the Government is not prepared to make a definitive statement that no petition for civil commitment will be filed does in our judgment give rise to an inference that there is a real risk which the Government is not willing to exclude. We accept of course that the outcome of the civil commitment process is not (in Mr Cadman's phrase) "a foregone conclusion". It was however unnecessary for Mr Giese to show a certainty that he will be subject to the process: what was required is evidence of a real risk. In our judgment, the DJ was entitled to find that the evidence before her established a real risk.
42. For those reasons, the first ground of appeal identified in paragraph 10 above must fail.

The second issue: was the DJ wrong to conclude that the extradition of Mr Giese would be incompatible with his Article 5 Convention rights for the purposes of section 87(2) of the EA?

43. Article 5(1) of the ECHR provides, so far as is material to the present case, as follows:

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

…….

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

44. The test that the DJ set (at page 17 of her judgment) was whether civil commitment would "constitute a flagrant breach of Mr Giese's Article 5 rights". In our judgment, that is the correct standard to adopt and is consistent with the law as laid down by the House of Lords in Ullah: see [9] above. The DJ also stated that if the requirements in California for civil commitment required that the individual be of "unsound mind" within the meaning of Article 5(1)(e) of the ECHR, then any detention under such an order would not amount to a breach of Article 5. We also agree with that analysis.
45. After a reference to the judgment of Moses LJ in Sullivan, and the two leading ECtHR cases on the ambit of "unsound mind" for the purposes of Article 5(1)(e), the DJ continued:

In California, I accept that there are checks and balances in the process and there appears to be a more onerous test than in Minnesota.^[15] Those of unsound mind may well fall within the category of those liable to civil commitment, but it seems to me that the net is cast widely, and those with a mental diagnosis which falls far short of "unsound mind are likely to be committed.

In those circumstances I am obliged to follow the decision in Sullivan and conclude that civil commitment would amount to a flagrant denial of Article 5 rights if I am satisfied that Mr Giese is at "real risk" of a civil commitment order being made".

46. The DJ concluded that there was such a "real risk". Therefore, in the absence of any assurance from the USA that a civil commitment order would not be sought if Mr Giese were to be extradited, the DJ ordered Mr Giese's discharge.
47. Mr Cadman accepted that detention under a civil commitment order made pursuant to the California legislation would be a breach of Mr Giese's Article 5 rights unless the procedure falls within the exception of Article 5(1)(e). His submission to us on this issue was that the DJ was wrong to conclude that the wording of the Californian legislation and the manner in which it was applied was inconsistent with the concept of a "person of unsound mind" in Article 5(1)(e), as interpreted by the ECtHR. Mr Cadman emphasised the key requirement of the WIC that the person had to be suffering from a current mental disorder and the procedural requirement that the psychological assessment be made by at least two recognised and appropriately qualified physicians. He pointed out that there are procedural safeguards at every stage of the process and that, even if a person is made subject to a civil commitment order, there is thereafter an annual review.
48. The starting point on this issue must be the ECtHR's interpretation of "unsound mind" in Article 5(1)(e). The ECtHR has considered this in three cases in particular: Winterwerp v The Netherlands (1979) 2 EHRR 387; Varbanov v Bulgaria (judgment 5 October 2000) and Stanev v Bulgaria (Grand Chamber judgment 17 January 2012). The effect of these decisions (insofar as relevant to the present case) is as follows: (1) the term "unsound mind" in Article 5(1)(e) is not fixed or immutable because scientific investigation and knowledge on the mental state of humans is continuously advancing and society's attitudes to "mental illness" are constantly changing. However, a distinction is to be drawn between a person being dangerous and being of "unsound mind". Only in the case of a serious mental disorder would detention under Article 5(1)(e) be justified.^[16] (2) The mental state of the person must be established by objective medical expertise and must be based on the actual state of mental health of the person concerned and not solely on past events. (3) The mental state of the person must be of a kind or degree warranting compulsory confinement. This may be necessary either because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, or because the person needs control and supervision to prevent him from causing harm to himself or other persons.^[17] (4) The validity of continued confinement must depend on the continuance of such a mental disorder. (5) Article 5(1)(e) cannot be used to permit the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would be contrary to the terms of Article 5(1), and the exceptions to that rule must be given a narrow interpretation. (6) Except in urgent cases, or where it is otherwise not possible to obtain medical advice, the detention should only be made after obtaining the opinion of a medical expert.
49. The next stage is to see whether the California system, as set out in the legislation and as put into practice, is "compatible" with the interpretation which the ECtHR has given to Article 5(1)(e). That was the approach used by the ECtHR itself in Winterwerp in relation to the system in the Netherlands which it examined in that case.^[18]
50. We start with the terms of the Californian legislation. A person can only be subject to the civil commitment procedure and an order if he is a "sexually violent predator": see WIC 6601(a)(1). A "sexually violent predator" is defined as a person who (a) has been convicted of a sexually violent offence against one or more victims; (b) has a "diagnosed mental disorder", which (c) makes the person a danger to the health and safety of others in that "it is likely that he or she will engage in sexually violent criminal behaviour": see WIC 6600(a)(1). "Diagnosed mental disorder" is stated to "include a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others": see WIC 6600(c). "'Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody": see WIC 6600(d).
51. The DJ referred to the evidence of Mr Putnam on how, in practice, the medical evaluators establish whether a person has a "diagnosed mental disorder" for the purposes of establishing whether or not he is an SVP. The DJ accepted the evidence of Dr Putnam that there was a risk that Mr Giese would be diagnosed with "pedophilic disorder", because the alleged offences were with a child under the age of 14 for a period of over 6 months. However, Dr Putnam also noted that this diagnosis would not be appropriate if the boy concerned were not pre-pubescent at the time of the alleged offences and that was improbable because it was reported that he ejaculated during the alleged offences. If the boy were not pre-pubescent, then Mr Giese could be diagnosed with the "more controversial diagnosis" of hebephilia, which relates to a person's sexual arousal towards adolescents. That condition is not specifically listed in DSM-5,^[19] but, Dr Putnam stated, the condition may be diagnosed as an "Other Specified Paraphilic Disorder". He also noted that, in the past, both conditions had been found to be qualifying mental disorders for the purposes of WIC 6600(c).
52. The DJ accepted the evidence of Dr Putnam that the passage of time would not negate Mr Giese being found to have a qualifying mental disorder. That was because the disorders of which Mr Giese could potentially be diagnosed were generally considered by mental health professionals to be lifelong disorders that did not remit simply with the passage of time or age.
53. The DJ accepted the evidence of Mr Lowry on the process and the practice of civil commitment in California. The DJ noted the following elements of Mr Lowry's evidence in particular: (1) the issue of civil commitment had become "politicised in relation to the perception of an electorate which does not want the law to be soft on sex offenders". (2) California is the state that has the most individuals committed as SVPs. (3) Based on Mr Lowry's years of experience, (as a public defender in the San Bernadino County Public Defender's office since 2000 defending SVP cases) and his training "and the fact that there is such unfettered discretion afforded [to] DSH evaluators, there is no doubt, given the nature of Mr Giese's offences and the length of time over which they were committed, he will undergo a full evaluation".
54. The DJ noted that the definition of "diagnosed mental disorder" in WIC 6600(c) referred to a "congenital or acquired condition" affecting "the emotional or volitional capacity that predisposes a person to the commission of criminal sexual acts…." and she commented that there was no definition of "volitional impairment" in the DSM nor was there any definition in the WIC. The DJ accepted the evidence of Mr Lowry that:

"…evaluators therefore are given free rein to define what it [viz. volitional impairment] is or what is required for someone to have volitional impairment. Some [evaluators] are of the opinion that lengthy periods of offending when the perpetrator knows the conduct is wrong is sufficient".

55. The DJ also accepted the oral evidence of Mr Lowry at the extradition hearing on this point. The DJ recorded (and accepted) an extract of the agreed note of Mr Lowry's evidence, as follows:

"The diagnosis of recognised mental disorder is quite broad. It merely requires a condition that a person has behaviours that society doesn't like. The law doesn't require him not to be able to control. The law just requires him not to think correctly. It can include severe mental disorder but it can also be people who just make the wrong decisions. It can be an Antisocial Behaviour Disorder. That can be considered as sufficient for SVP".

On the basis of this evidence, the DJ concluded that whilst those of "unsound mind" for the purposes of Article 5(e) may well fall within the category of those liable to civil commitment, in the latter case "…the net is cast widely, and those with a mental diagnosis which falls far short of "unsound mind" are likely to be committed".

56. Mr Lowry also gave evidence, which the DJ accepted, about how, in practice, the expression "likely that he or she will engage in violent sexual behaviour" in WIC 6600(a)(1) is interpreted. In California, "likely" need not be greater than 50%. Juries in California were not bound by percentages. The test was "substantial danger", which in California amounted to "a serious and well-founded risk" and it was up to the jury or the judge in deciding the case to determine whether there was such a risk.
57. Mr Cadman argued that the DJ had failed to give sufficient weight to the fact that, after the initial evaluation of whether a person is a possible SVP, but before the case is sent to the District Attorney for a decision on whether to go ahead with a petition for a civil commitment order, there has to be a medical evaluation by at least two practising psychiatrists or psychologists on whether the person had a "diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior". However, Mr Cadman had to accept that there was no evidence from the Government witnesses as to how the medical practitioners made an evaluation of whether the person suffered from a "diagnosed mental disorder etc" or what criteria or methods they used to arrive at their conclusions. There was no evidence to counter that of Dr Putnam and Mr Lowry summarised above, which the DJ accepted. Moreover, we note that Mr Lowry gave written evidence in his report that although WIC 6601(2)(c) provides that the two qualified medical practitioners should make their evaluation of whether the person is an SVP in accordance with a "standardised assessment protocol", since 2010 the protocol has been a document of only 6 pages. This gave "far greater latitude to evaluators to evaluate a person in any way the individual evaluator considers appropriate. Thus, it really does matter which evaluator(s) are selected by DSH".^[20]
58. Was the DJ wrong to conclude that the California legislation and practice was not compatible with the ECtHR's interpretation of Article 5(1)(e) of the ECHR? In our judgment she was not. We fully accept the point made by Mr Cadman that a person cannot be held to be an SVP unless at least two properly qualified medical practitioners have concluded that the person fulfils the requirement that he has a "diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behaviour". However, the evidence of Dr Putnam and Mr Lowry on how this statutory criterion is interpreted in practice, which we have summarised above and which was not countered by any evidence from the Government, demonstrates that "diagnosed mental disorder" is widely interpreted by the medical evaluators. The conclusion of the DJ that "the net is cast widely" is amply justified by the statements of Dr Putnam and Mr Lowry that evaluators have a great deal of latitude in SVP evaluations and in determining the likelihood of re-offending.^[21]
59. In the course of argument Holroyde J pointed out that the wording of the statutory definition of "diagnosed mental disorder", as interpreted in practice, is sufficiently wide for an evaluator to conclude that if a person has a predisposition towards certain sexual behaviour (eg with pubescent but under age boys, which is therefore "criminal"), then that predisposition will be a "condition", whether it be congenital or acquired, that will be sufficient to amount to a "diagnosed mental disorder" if the predisposition is such as to "constitute a menace to the health and safety of others", viz in this case, under age boys. It seems to us that a "predisposition" could be proved by virtue of the fact that the person has committed a number of similar offences. We are confident that any criminal sexual acts against under age children must constitute a "menace to the health and safety of others". On this analysis, it seems to us that any offender who commits a number of sexual offences against under age children will be a person who can come within the definition of having a "diagnosed mental disorder".
60. In our judgment, the definition of "diagnosed mental disorder" in WIC 6600(d), in the way it is put into practice as indicated by the evidence in this case, is incompatible with the exception of "unsound mind" in Article 5(1)(e) of the ECHR. It has been clear since Winterwerp that "unsound mind", being a concept in one of the exceptions to the general rule in Article 5(1), must be given a narrow interpretation. By comparison, "diagnosed mental disorder" in the WIC is a broad and imprecise concept and it is open to an interpretation that would apply to many person whose "diagnosis" is no more than the type of disorder common in child sex offenders found within the prison system of either the UK or the USA. Accordingly, we agree with the DJ that there is a real risk not only that Mr Giese will be made subject to a civil commitment order if extradited and convicted, but also that there is a real risk that the basis for this order would be a incompatible with exception to the general rule of Article 5(1) as expressed in the concept of "lawful detention of persons of unsound mind" referred to in Article 5(1)(e).
61. The fact that, at each stage of the process towards a civil commitment order, there are legal safeguards for the potential detainee only goes to whether the detention would be in accordance with a procedure "prescribed by law" and so a "lawful detention". If, however, the detention is not of a person of "unsound mind" as interpreted by the ECtHR case law, then the detention will be in breach of the that person's Article 5 rights.
62. The final question, therefore, is whether the DJ was wrong to conclude that there is a real risk that Mr Giese would suffer a "flagrant denial" of his Article 5 rights, in the sense that there is a real risk that the right not to be deprived of his liberty save by lawful detention would be completely denied or nullified if extradited to California.^[22] In our judgment, the conclusion of the DJ was correct. In Sullivan, Moses LJ stated, at [33], that because the criteria used in Minnesota for deciding whether a person should be subject to a civil commitment order "fell far short of the necessity of proving he is of unsound mind", then if a civil commitment order were to be made in that case "…it would be a flagrant denial" of Mr Sullivan's rights under Article 5(1) because it fell outside the provisions of the only exception relied upon, viz. Article 5(1)(e). That analysis must be correct. Article 5(1) guarantees that no one shall be deprived of his liberty, save in the exceptions that are specifically identified thereafter in sub-paragraphs (a) to (e). If there is a real risk that someone can be detained in circumstances that do not fall within those exceptions, then, it seems to us, there must be a real risk that there will be a denial of the very essence of the person's right to liberty and a real risk that he will be subject to arbitrary detention in the sense that it is not in accordance with Article 5.
63. However, in addition, there are other factors in this case which we think would make the denial, if it occurred, a "flagrant" one. First, the civil commitment process is very long. It begins when the person is nearing completion of the sentence imposed upon conviction for the instant offences. The evidence before the DJ showed, and she found, that once the process of initial evaluation is started it can take between 6 years 3 months to 7 years 8 months before a determination at the trial (by judge or jury) of whether the person is an SVP. During that period there is no "reliable" basis for showing that the person is an SVP because that is the very thing that has to be tested in court. Thus, although the legislation provides for time limits at the early stages, overall, as Mr Cadman was forced to accept, the whole process is very long. During this time there is no concluded reason why the person should be detained at all, within the ambit of Article 5. During the time after completion of sentence and before a determination by the court on whether he is an SVP, Mr Giese would be in detention and thus wholly deprived of his liberty. Secondly, on the evidence there is a real risk that the basis on which Mr Giese could be found to be an SVP and thereby subject to a civil commitment order is that he has some kind of "antisocial behaviour disorder". In our view indeterminate detention on that basis would also amount to a complete denial of his Article 5(1) rights, because such a "mental disorder" cannot be said to warrant the draconian step of compulsory confinement for an indefinite period. Thirdly, the evidence was that once a person has been made the subject of a civil commitment order, which is for an indefinite period, the road to release, even a conditional one, is long and arduous. If the initial basis for the order was, in fact, a diagnosis outside the specific mental disorders given in DSM-5, then the subsequent detention would, in our view, be a "flagrant" denial of Article 5 rights. Thus, in our judgment, there is a real risk that Mr Giese would be denied the very essence of his right to liberty and protection from arbitrary detention that is guaranteed by Article 5.

The Government of the USA v Bowen

64. As already mentioned, this case considered the system of civil commitment that operates in New York State. It is applicable to sexual offenders following completion of their sentence for certain types of sexual offence if (in short) they are both dangerous and suffering from a mental abnormality which predisposes them to repeat sexual offending. In that case the District Judge had concluded that there was a real risk that Mr Bowen would be made the subject of a civil commitment order and that detention in those circumstances might be ordered even if he were not of "unsound mind" for the purposes of Article 5(1)(e), so that there was a real risk of a flagrant denial of rights guaranteed by Article 5. This court (Burnett LJ and Thirlwall J) allowed an appeal by the Government of the USA. It held that, on the evidence, there was no real risk that Mr Bowen would be made subject to a civil commitment order. It also held that, even if there were a real risk, the New York legislation would "survive scrutiny in the Strasbourg court on an Article 5 challenge in light of the principles articulated, particularly in Winterwerp at para 38".^[23]
65. The definition of "mental abnormality" in the New York legislation is very similar to that in the Californian WIC. So also is the system by which a person can be made subject to a civil commitment order. Before the District Judge in Bowen there was evidence in the form of a letter from the US Department of Justice dated 11 December 2014 which provided what the Divisional Court described as a "detailed explanation" of how the New York civil commitment system worked. The letter attached the annual report for 2013-4 from the Attorney General, which the court said provided a "very detailed description of the working of the law".^[24] On behalf of Mr Bowen, there was evidence from an American attorney, Mr Brenner, who had considerable experience of civil commitment, albeit not in respect of the New York law. The District Judge relied on Mr Brenner's evidence in reaching her conclusions.
66. The Divisional Court was very doubtful whether Mr Brenner was qualified to give expert evidence at all on the civil commitment system in New York because he was not an expert in New York law and procedures and had no direct experience of it. Nor was he medically qualified. The Divisional Court concluded that the District Judge relied on Mr Brenner's evidence "in ways that were impermissible given his lack of relevant expertise" and that in any event, "upon analysis, [his evidence] did not support the conclusion that [Mr Bowen] was at real risk of being subject to civil commitment".^[25] The Divisional Court then concluded that, even if there were a real risk, the New York legislation would survive a Strasbourg scrutiny.
67. It is clear from this short summary of Bowen that the position in that case in relation to the evidence is very different from the present one. In this case the DJ had expert evidence from Dr Putnam, a clinical and forensic psychologist and from Mr Lowry, a California attorney who had great experience in civil commitment cases in California. The DJ accepted their evidence and we have concluded that she was entitled to do so. The only evidence in this case on how the civil commitment system works in California in practice was given by defence experts, as Mr Cadman accepted before us. Even if the civil commitment legislation in New York and California are very similar, the evidence of how they are operated is not.

Conclusion and disposal

68. The DJ was correct to conclude that there is a real risk that Mr Giese would, if extradited, be made subject to a civil commitment order. The DJ was also correct to conclude that, if he was, that would be a "flagrant denial" of his Article 5 rights. Accordingly, the DJ was correct in concluding that the extradition of Mr Giese would be inconsistent with his Convention rights, so that, in accordance with section 87(2) of the EA, he must be discharged.
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, 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.
Appendix Relevant provisions of the California Welfare and Institutions Code §6600- §6609.3

§6600(a)(1) and (2)(A); §6600(a)(3); §6600(b); §6600(c); §6600(d); §6600.1; §6601(a)(1); §6601(b); §6601(c)-(j); §6601.5; §6602(a); §6603(a); §6604.

6600. As used in this article, the following terms have the following meanings:

(a)(1) "Sexually violent predator" means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behaviour.

(2) For purposes of this subdivision any of the following shall be considered a conviction for a sexually violent offense:

(A) A prior or current conviction that resulted in a determinate prison sentence for an offense described in subdivision (b).

6600. (a)(3) Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behaviour.

6600. (b) "Sexually violent offense" means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262. 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.

6600. (c) "Diagnosed mental disorder" includes a congenital or acquired [mental] condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.

6600. (d) "Danger to the health and safety of others" does not require proof of a recent overt act while the offender is in custody.

6600.1. If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a "sexually violent offense" for purposes of Section 6600.

6601. (a)(1) Whenever the Secretary of the Department of Corrections and Rehabilitation determines that an individual who is in custody under the jurisdiction of the Department of Corrections and Rehabilitation, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the secretary shall, at least six months prior to that individual's scheduled date for release from prison, refer the person for evaluation in accordance with this section. However, if the inmate was received by the department with less than nine months of his or her sentence to serve, or if the inmate's release date is modified by judicial or administrative action, the secretary may refer the person for evaluation in accordance with this section at a date that is less than six months prior to the inmate's scheduled release date.

6601. (b) The person shall be screened by the Department of Corrections and Rehabilitation and the Board of Parole Hearings based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history. This screening shall be conducted in accordance with a structured screening instrument developed and updated by the State Department of State Hospitals in consultation with the Department of Corrections and Rehabilitation. If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections and Rehabilitation shall refer the person to the State Department of State Hospitals for a full evaluation of whether the person meets the criteria in Section 6600.

6601. (c) The State Department of State Hospitals shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of State Hospitals, to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.

(d) Pursuant to subdivision (c), the person shall be evaluated by two practicing psychiatrists or physiologists, or one practicing psychiatrist and one practicing physiologist, designated by the Director of State Hospitals. If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of State Hospitals shall forward a request for a petition for commitment under Section 6602 to the county designated in subdivision (i). Copies of the evaluation report and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment.

(e) If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of State Hospitals shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).

(f) If an examination by independent professionals pursuant to subdivision (e) is conducted, a petition to request commitment under this article shall only be filed if both professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d). The professionals selected to evaluate the person pursuant to subdivision (g) shall inform the person that the purpose of their examination is not treatment but to determine if the person meets certain criteria to be involuntarily committed pursuant to this article. It is not required that the person appreciate or understand that information.

(g) Any independent professional who is designated by the Secretary of the Department of Corrections and Rehabilitation or the Director of State Hospitals for purposes of this section shall not be a state government employee, shall have at least five years of experience in the diagnosis and treatment of mental disorders, and shall include psychiatrists and licensed psychologists who have a doctoral degree in psychology. The requirements set forth in this section also shall apply to any professionals appointed by the court to evaluate the person for purposes of any other proceedings under this article.

(h) If the State Department of State Hospitals determines that the person is a sexually violent predator as defined in this article, the Director of State Hospitals shall forward a request for a petition to be filed for commitment under this article to the county designated in subdivision (i). Copies of the evaluation reports and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment in the superior court.

(i) If the county's designated counsel concurs with the recommendation, a petition for commitment shall be filed in the superior court of the county in which the person was convicted of the offense for which he or she was commited to the jurisdiction of the Department of Corrections and Rehabilitation. The petition shall be filed, and the proceedings shall be handled, by either the district attorney or the county counsel of that county. The county board of supervisors shall designate either the district attorney or the county counsel to assume responsibility for proceedings under this article.

(j) The time limits set forth in this section shall not apply during the first year that this article is operative.

6601.5. Upon filing of the petition and request for a review under this section, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behaviour upon his or her release. If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be completed pursuant to Section 6602. The probable cause hearing provided for in Section 6602 shall commence within 10 calendar days of the date of the order issued by the judge pursuant to this section.

6602. (a) A judge of the superior court shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behaviour upon his or her release. The person named in the petition shall be entitled to assistance of counsel at the probable cause hearing. Upon commencement of the probable cause hearing, the person shall remain in custody pending the completion of the probable cause hearing. If the judge determines that there is not probable cause, he or she shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Correction and Rehabilitation or other secure facility.

6603. (a) A person subject to this article shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. Any right that may exist under this section to request DNA testing on prior cases shall be made in conformity with Section 1405 of the Penal Code.

6604. The court or jury shall determine whether, beyond a reasonable doubt, the person in a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals. The facility shall be located on the grounds of an institution under the jurisdiction of the Department of Corrections and Rehabilitation.

Note 1   See per Lord Bingham of Cornhill at [24]. Lord Steyn stated that there had to be a “real risk of a flagrant violation of the very essence of the right”: see [50]. Lord Carswell accepted that the concept of a “flagrant breach or violation” might not always be easy to apply, but that it was encapsulated in the criterion that “the right in question would be completely denied or nullified in the destination country”: see [69].     [Back]

Note 2   At [14].    [Back]

Note 3   See [14]. Moses LJ referred to the ECtHR decision of Soering v United Kingdom [1989] 11 EHRR 439.     [Back]

Note 4   At [33].     [Back]

Note 5   At [15].     [Back]

Note 6   WIC §6601(a)(1).     [Back]

Note 7   WIC §6600(a)(1).     [Back]

Note 8   WIC §6600(2)(A).    [Back]

Note 9   WIC §6600(3).     [Back]

Note 10   WIC §6601.5 and §6602(a).    [Back]

Note 11   WIC §6602(a).    [Back]

Note 12   WIC §6604.    [Back]

Note 13   See Celinski at [24]    [Back]

Note 14   WIC §6602(b).     [Back]

Note 15   The State with which Sullivan was concerned.     [Back]

Note 16   The distinction is made by Moses LJ at [32] of Sullivan, referring to M v Germany [2010] 51 EHRR 41.    [Back]

Note 17   Those are the two examples given in Stanev at [145]. Another possible example may be where there is a danger of the person causing damage to property because he is a pyromaniac.     [Back]

Note 18   See [38] of Winterwerp.     [Back]

Note 19   The latest edition of the Diagnostic and Statistical Manual of Mental Disorders, produced by the American Psychiatric Association and accepted almost universally.     [Back]

Note 20   Lowry para 15.     [Back]

Note 21   See Putnam para 38 and Lowry paras 15 and 30.     [Back]

Note 22   See [9] above.     [Back]

Note 23   [39] of Bowen.     [Back]

Note 24   Bowen [26].     [Back]

Note 25   Bowen at [39].    [Back]