QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SIR RICHARD AIKENS
| THE UNITED STATES OF AMERICA
|- and -
|ROGER ALAN GIESE
Mr Ben Lloyd (instructed by Bindmans) for the Respondent
Hearing date: 09/11/2015
Crown Copyright ©
Sir Richard Aikens :
"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."
The grounds on which the assurance letter was resisted by Mr Giese
The first objection: the assurance letter does not fulfil the conditions set out in section 106(5) of the EA
(1) On an appeal under section 105 the High Court may-
(a) allow the appeal;
(b) direct the judge to decide the relevant question again;
(c) dismiss the appeal.
(2) A question is the relevant question if the judge's decision on it resulted in the order of the person's discharge.
(3) The court may allow the appeal only if the conditions in subsection (4) or the conditions in subsection (5) are satisfied.
(4) The conditions are that-
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge;
(5) The conditions are that-
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding the relevant question differently;
(c) if he had decided the question in that way, he would not have been required to order the person's discharge.
(6) If the court allows the appeal it must –
(a) quash the order discharging the person;
(b) remit the case to the judge;
(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.
(7) If the court makes a direction under subsection (1)(b) and the judge decides the relevant question differently he must proceed as he would have been required to do if he had decided that question differently at the extradition hearing.
(8) If the court makes a direction under subsection (1)(n) and the judge does not decide the relevant question differently the appeal must be taken to have been dismissed by the decision if the High Court.
(9) If the court –
(a) allows the appeal, or
(b) makes a direction under subsection (1)(b),
It must remand the person in custody or on bail.
(10) If the court remands the person in custody it may later grant bail.
Second objection: the assurance letter is insufficient.
". In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human-rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances.
. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(1) whether the terms of the assurances have been disclosed to the Court;
(2) whether the assurances are specific or are general and vague;
(3) who has given the assurances and whether that person can bind the receiving state;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;
(6) whether they have been given by a Contracting State;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(10) whether the applicant has previously been ill-treated in the receiving state;
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State".
i) The USA is a democratic state which is governed by the rule of law. Moreover, it is a state from which assurances are routinely accepted in extradition cases by the English courts (eg in relation to the non-application of the death penalty in homicide cases) and is a long-term extradition partner of the UK.
ii) The system of civil commitment is a part of the law of California which is codified in the California Welfare and Institutions Code and the system operates according to the law set out therein. Accordingly, in giving an assurance that Mr Giese would not be subject to a civil commitment order at the end of his sentence pursuant to Sections 6600-6609.3 of that Code, its effect is that the law would not be applied as it normally would, in the sense that Mr Giese would normally be subject to the possibility of assessment and the procedure thereafter, if convicted and sentenced.
iii) The assurance has been given by the US Department of Justice, albeit that the assurance itself records that the Orange County District Attorney's Office of the County of Orange, California, has given the confirmation that "it will not seek to subject Mr Giese to a civil commitment order pursuant to sections 6600-6609.3 of the California Welfare and Institutions Code at the end of his sentence". However, it must be noted that the applicable law is a state law, not a Federal law, and the officers who enforce it are not appointed by the Federal authorities, but elected in California.
iv) The DJ found, and we accepted, that under the California Code the District Attorney has a discretion on whether, if a prisoner meets the requisite requirements, he will pursue the matter towards civil commitment. That decision is one that would be made by the District Attorney of the day.
v) The precise terms of the assurance must be examined carefully to decide whether it is sufficiently precise, particular and is binding.
U.S. Department of Justice
Office of International Affairs
DOJ No. 95-100-22045
Washington, D.C. 20530
October 27, 2015
VIA ELECTRONIC MAIL
Head of the Extradition Unit
Crown Prosecution Service
2 Southwark Bridge
London SE1 9HS
Dear Ms. Kundert:
This letter is in response to the order of the High Court of Justice with respect to the extradition of Roger Alan GIESE to the United States.
We have been advised that the High Court of Justice has determined Mr. GIESE's extradition shall only be granted if – in the event that Mr. GIESE is convicted of the charges for which extradition is sough – the State of California will not, at the conclusion of his criminal sentence for that conviction, order him civilly committed. We understand that in reaching judgment, the High Court and the District Judge interpreted California law and practice.
In the unique and specific circumstances of this case, the Orange County District Attorney's Office in the County of Orange, California, has confirmed that it will not seek to subject Mr. GIESE to a civil commitment order pursuant to Sections 6600 – 6609.3 of the California Welfare and Institutions Code at the end of his sentence. The Orange County District Attorney's Office has concluded, based upon a review of the facts of the case and its experience with the above-described legal procedure, that there is little or no likelihood that Mr. GIESE would be referred for commitment by the State of California. The decision of the District Attorney's Office not to seek the imposition of such an order as to Mr. GIESE conclusively bars such an order from being issued, since under Section 6601(i), the District Attorney's Office in the county in which the person was convicted must file a petition seeking such an order, and where it does not, the sexually violent predator petition process cannot be initiated.
We understand that the High Court's judgment and order addresses the present circumstance, and not presently unforeseeable circumstances. In particular, should Mr. GIESE commit offenses following his extradition that make him eligible for commitment under Sections 6600 -6609.3 of the California Welfare and Institutions Code, use of that provision could apply to such subsequent offenses.
We thank you for your assistance in this matter.
Mary D. Rodriguez
cc: Julian Gibbs, Extradition Section, Home Office