Case No: CO/1976/2015
Neutral Citation Number: [2015] EWHC 3658 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2015

Before:

MR JUSTICE HOLROYDE
SIR RICHARD AIKENS

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Between :

	THE UNITED STATES OF AMERICA	Appellant	
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	ROGER ALAN GIESE	Respondent	

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Ms Louisa Collins (instructed by CPS) for the Appellant
Mr Ben Lloyd (instructed by Bindmans) for the Respondent

Hearing date: 09/11/2015
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Judgment
Sir Richard Aikens : 
1.	This is the judgment of the court.  
The background
2.	The Government of the United States of America (“the Government”) has sought the extradition of Mr Alan Giese (“Mr Giese”),  a citizen of the United States, to stand trial in the state of California on 19 charges of sexual assault allegedly committed against an adolescent boy during the period May 1998 to May 2002 when the boy was under the age of 14.    The extradition request was refused by District Judge (Magistrates’ Court) Margot Coleman (“the DJ”) and the Government appealed to this court.   The sole ground on which the extradition was resisted before this court was whether there was a “real risk” that if Mr Giese were to be extradited and were to be convicted of one or more of the charges alleged he would be made subject to an order for “civil commitment” at the end of whatever sentence he had to serve.  In our judgment which was handed down on 7 October 2015,  we explained the system of “civil commitment” and the evidence that was before the DJ on how it was operated in the state of California.    We concluded that there was a “real risk” that Mr Giese would be made subject to such an order and that,  as a consequence,  there was 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”).    We therefore agreed with the DJ that Mr Giese must not be extradited and that he was entitled to be discharged pursuant to section 87(1) and (2) of the Extradition Act 2003 (“the EA”).   
3.	At the conclusion of the judgment of the court,  however,  we said this:
“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.” 
4.	The order of the court dated 7 October 2015 stipulated that the Government would confirm,  by no later than 4pm on 21 October 2015, whether it intended to provide an assurance that Mr Giese would not be made the subject of an order for civil commitment if he were to be convicted of one or more “qualifying offences” at his trial upon extradition.   Subsequently,   the Government did submit a letter dated 27 October 2015 (“the assurance letter”) from Ms Mary D Rodriguez,  the Acting Director of the US Department of Justice,  Criminal Division,  Office of International Affairs. The letter was addressed to Ms Anne-Marie Kundert,  the Head of the Extradition Unit of the Crown Prosecution Service (“CPS”),  which is handling the extradition proceedings on behalf of the Government.   The terms of the assurance letter are reproduced in the Appendix to this judgment.   The assurance letter was produced to the court as an exhibit to a short witness statement of Ms Kundert dated 28 October 2015.    
5.	Mr Giese objected to this assurance letter on two principal grounds.   On 9 November 2015 we held a hearing at which we heard oral argument from Mr Ben Lloyd on behalf of Mr Giese and Ms Louisa Collins on behalf of the Government.    At the end of the hearing we announced that we were not satisfied that the assurance letter was sufficient,  so that the appeal of the Government would be dismissed.   We said we would give our reasons in writing at a later date.
6.	These are our reasons for refusing to accept the assurance letter and so dismissing the appeal.
The grounds on which the assurance letter was resisted by Mr Giese
7.	Mr Ben Lloyd submitted that there were two reasons why the assurance letter should not be accepted by the court as a ground for allowing the appeal of the Government.   First,  he submitted,  the assurance letter could only be a basis for allowing the appeal if it fulfilled the conditions set out in section 106(5) of the EA,  viz that the issue of an assurance was something that was not raised at the extradition hearing or it constituted evidence that was not available at the extradition hearing.   Mr Lloyd submitted that neither of those conditions was satisfied in this case.  Therefore,  in accordance with section 106(3) of the EA,   the assurance could not be the basis for allowing the appeal.    He submitted that because the court had concluded that the DJ was otherwise correct to decide the “relevant question”  (ie. whether the risk of being subjected to “civil commitment” constituted a “real risk” of a “flagrant breach” of Mr Giese’s Article 5 rights) as she did,  therefore the appeal should be finally dismissed.   Secondly,  Mr Lloyd argued that the terms of the assurance letter were unsatisfactory and inadequate to safeguard Mr Giese’s Article 5 rights.  Thus,  even if the court could consider the assurance letter in principle,  it should reject it and dismiss the appeal.   
8.	On behalf of the Government,   Ms Collins resisted both arguments.   
The first objection:  the assurance letter does not fulfil the conditions set out in section 106(5) of the EA
9.	Section 105 of the EA permits the category 2 territory requesting extradition to appeal the decision of the DJ to order the requested person’s discharge.     An appeal to the High Court may be brought on a question of fact or law,  but only with the leave of the High Court.   Section 106 of the EA  provides as follows:   
(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.

10.	Mr Lloyd submitted that,  given the mandatory nature of the wording in section 106(3) of the EA,   this court could only allow an appeal from the decision of the DJ to discharge Mr Giese if the conditions in section 106(4) or (5) were fulfilled.   He submitted,  and we would accept, that the conditions referred to in section 106(4) are not relevant.     This is because the question of whether the DJ should accept an assurance of the Government (or any other relevant body) that Mr Giese would not be the subject of civil commitment proceedings was not before the DJ.   We accept that the issue of a possible assurance was ventilated at the extradition hearing,  although the precise details of what was said and when are unclear.   However,  it is accepted that,  as the DJ recorded at the end of her ruling,   “no assurance from the USA has been sought or offered”. 
11.	Therefore,  Mr Lloyd submitted,  the Government could only succeed on appeal using the proposed assurance letter if it could come within the terms of section 106(5)(a).   Although Mr Lloyd tentatively submitted that “the issue” of an assurance was “raised” before the DJ because there was some discussion about it,  we reject that argument.    The phrase “an issue is raised that was not raised at the extradition hearing”  must refer to a new issue that is raised in argument on appeal as a ground for allowing the appeal which was  not the subject of concluded argument below.    An argument that was “raised”  below could either result in a decision of the DJ or it could have been abandoned by the party raising it.     Only if the issue that is sought to be raised on appeal was not “raised” below in either of those senses is it one that is “an issue…that was not raised at the extradition hearing…” for the purposes of section 106(5).   
12.	Mr Lloyd did not argue that although “the issue” of an assurance was not “raised” at the extradition hearing in the sense described above,  it could have been raised by the Government and it ought not to be permitted to raise that “issue” for decision on appeal for the first time.    Instead,  he submitted that the Government was attempting to rely on “evidence” in the form of the assurance letter and the statement of Ms Kundert which exhibited it.    Mr Lloyd submitted that this material did not constitute “evidence that is available [on appeal] that was not available at the extradition hearing”,  so that the Government could not come within the second half of the condition set out in section 106(5)(a).    In this regard,  Mr Lloyd relied upon the well-known decision of this court in Hungary v Fenyvesi in support of an argument that this “evidence” could have been adduced before the DJ without difficulty and that the Government had given no reason,  let alone a good one,  as to why the “evidence” had not been advanced at the extradition hearing.    He argued that it was now far too late to allow the Government to attempt to introduce the proposed assurance as “evidence” in support of allowing the appeal.   
13.	We accept that the issue of an assurance by the Government was raised late in the appeal to this court,    but it was raised by the court for the reason we gave in our principal judgment.  This was that the extradition of Mr Giese is not being sought so that it can be decided whether he should be subjected to a civil commitment order.   It is being sought so that he can stand trial on 19 serious charges of sexual assault and the only reason we were not prepared to allow the appeal was because of the “real risk” of a subsequent order for civil commitment being made if he were convicted of one or more of the charges against him. 
14.	We do not accept that the assurance letter constitutes “evidence” in the sense contemplated in section 106(5)(a).   The assurance letter is not a statement going to prove the existence of a past fact;   nor is it a statement of an expert opinion on a relevant matter.   It is a statement about the US Department of Justice’s intentions as to its future conduct and that of the Orange County District Attorney’s Office in relation to Mr Giese’s possible referral to the civil commitment procedure in California.   It is true that the assurance letter is evidence that this statement as to future conduct has been made by Ms Rodriguez,  but that fact is not what is in issue.     Mr Lloyd accepted expressly that he did not challenge the good faith of the Government,  or Ms Rodriguez.   He accepted that the assurance,  as far is it went,  had been made.   The question is whether the assurance letter is sufficient to neutralise the conclusion of the DJ and this court that the civil commitment process would constitute a “real risk” of a flagrant breach of Mr Giese’s Article 5 rights.
15.	On this issue,  therefore,  we conclude,  first,  that “the issue” of an assurance that Mr Giese would not be subject to the civil commitment procedure and a civil commitment order if he were to be extradited is one that was not raised at the extradition hearing,  but is raised for determination in this court for the first time.   Secondly,  we conclude that the assurance letter does not constitute “evidence” for the purposes of section 106(5)(a).   Accordingly,  the first of the two conditions set out in section 106(5)(a) is fulfilled.  Therefore,  if the “issue” of the assurance letter would have resulted in the DJ deciding that Mr Giese should not have been discharged,  then,  pursuant to section 106(3) this court has jurisdiction to allow the appeal.  
16.	We must therefore consider the substance of the objections to the assurance letter. 
Second objection:  the assurance letter is insufficient.
17.	In Ilia v Greece this court noted that the English court’s attitude to undertakings or assurances given by a foreign government in the context of an extradition request had changed in the decades following the various statements of members of the House of Lords in Armah v Government of Ghana.  In Ravi Shankaran v The Government of the State of India, Sir Brian Leveson,  President of the Queen’s Bench Division (“PQBD”),  stated that the scale of migration and of extradition decision-making had made “undertakings and assurances not merely normal but indispensable in the operation of English extradition law”.   He noted that undertakings were regularly given and taken into account.   The PQBD also stated that there was “no restriction as a matter of law as to who may or may not give undertakings”.    However,  the issue of whether the undertaking would be sufficient to obviate the risk of a breach of the relevant ECHR obligation was a matter of fact in each case.    The PQBD also commented,  at [65] of his judgment,  that the assurance proffered in that case (which was not to oppose the grant of bail upon the first application of the extradited person) was not one that “the normal provisions of the law of the requesting state will be departed from in this particular case”,  nor was it an assurance that “unlawful practices will not occur”.    
18.	In the Ravi Shankaran case,  the court referred to the well-known decision of the European Court of Human Rights (“ECtHR”) in Othman (Abu Qatada) v UK (“Othman”).   In that case the ECtHR was concerned with whether a person could be deported to a particular state (Jordan) where it was alleged that the deportee would be tortured upon his return.   At [188] and [189] of the judgment in Othman the ECtHR summarised its previous case law on whether reliance could be placed on an assurance of a receiving state concerning a deportee’s treatment upon return.   The ECtHR stated:
“[188]. 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.
[189]. 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”.	
19.	In the light of the English and ECtHR authorities,  it seems to us that,  in this case,  the particular factors that the English court has to take into account when considering whether the terms of the assurance proffered will be sufficient to obviate the risk of a “flagrant breach” of  Mr Giese’s Article 5 ECHR  rights are as follows:  
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.   
20.	On behalf of Mr Giese,  Mr Lloyd sought to introduce a further statement of Mr Jeffrey Lowry,  Deputy Public Defender based in San Bernadino County,  California.    The statement was produced on the morning of the hearing and we decided that it was produced too late,  so that we should not admit it.  Accordingly,  we have not taken account of it as evidence of fact or US or Californian law.  
21.	The first two paragraphs of the assurance letter set out the background.  The first sentence of the third paragraph is unequivocal.   However,  the unqualified nature  of that sentence is,  in our view,  seriously undermined by the next sentence,  which states that “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”.    There are two problems with this sentence.  First,  it is clean contrary to the conclusion of fact of the DJ,  which this court upheld,  that there is a real risk that Mr Giese would be referred for civil commitment and that there was a real risk that every stage of the process would be resolved against him so that “he will therefore be detained in a secure institution for an indefinite period”.   An assurance letter which is given on a factual basis which is entirely contrary to that upon which our judgment is based  is highly unsatisfactory.    Secondly,  “the facts of the case”  which will form the basis of any decision on whether to refer Mr Giese to the civil commitment procedure are not those as they are perceived today,   but those existing at a time when the offender’s sentence is nearly at an end.  The wording therefore does not take account of the fact that there is a possibility that,  in the view of the responsible officials in the Orange County at that time,  “the facts of the case” may have changed.   
22.	The next sentence is also unsatisfactory.   It refers to the fact that it is the District Attorney’s Office which makes the decision on whether to petition for commitment:  see section 6601(i) of the Code.   However, under the terms of the legislation,  this decision of the District Attorney is taken only after all the procedures that precede that stage have been completed.  These steps are summarised at [12] of the principal judgment.   By the time the District Attorney makes his decision on whether to petition,   (i) the Secretary of  the California Department of Corrections and Rehabilitation (“CDCR”) will have determined that the offender may be a “sexually violent predator”  (“SVP”) within the meaning of the Code,  so that the offender will then be sent for initial screening;  (ii) the screening will have determined that the offender is “likely to be an SVP”;  (iii)  the offender will have been subject to a full evaluation by two professional evaluators,  who will have concluded that he meets the criteria set out in section 6000 of the Code.    If the evaluators concluded in Mr Giese’s case that all the criteria had been met,  then we find it difficult to believe that a District Attorney,  who will certainly not be the present incumbent,  would feel bound by an assurance letter based upon an assumption of the facts that was contrary to those that would by then have been indicated in the process of assessment that had just been undertaken.    Furthermore,  by that time,  Mr Giese would already have been subjected to part of the civil commitment process,  which,  on the evidence that was accepted by the DJ and we upheld,  would continue long after Mr Giese’s prison sentence has ended and he would remain in detention during the whole of that time. 
23.	Our disquiet is reinforced by the terms of the first sentence of the last full paragraph of the assurance letter.   This states that it is understood that “the High Court’s judgment and order addresses the present circumstances and not presently unforeseeable circumstances”.   The judgment does indeed address “present circumstances”.   However,  in our view it is implicit in the wording of the sentence that if,  in the opinion of whoever is to take a decision on whether to initiate or continue the civil commitment procedure in the future,  “unforeseeable circumstances” have occurred,  then the assurance will no longer be binding.    Those “unforeseeable circumstances” could be the fact that Mr Giese will have been subjected to all the evaluation process that has to be undertaken before the District Attorney has to decide on whether to submit a petition and the fact that the evaluators had decided that he had, after all,  met all the statutory criteria.    Another “unforeseeable circumstance” may be,  for example,  that the terms of the legislation had been amended,  so that no discretion was given to the District Attorney on whether or not to present a petition. 
24.	Our concern is not assuaged by the second sentence in the past paragraph of the assurance letter.  That deals with one particular “unforeseeable circumstance”, viz that Mr Giese commits more offences following his extradition.  That is a possibility, but it is not the only set of facts which might constitute an “unforeseeable circumstance”,  as we have indicated above.   
25.	Accordingly,  taking all these points into account in the context of the factors set out in [19] above,  we concluded that the terms of the assurance proffered would not be sufficient to obviate the risk of a “flagrant breach” of  Mr Giese’s Article 5 ECHR  rights in relation to the danger of being subjected to a civil commitment order.  
Conclusion
26.	We therefore concluded,  at the end of the hearing,  that the assurance letter could not be accepted.     It followed that the appeal had to be dismissed.    That is the order we make.  

Appendix
U.S. Department of Justice

Criminal Division
Office of International Affairs
MDR:KJH:JEC:TSL
DOJ No. 95-100-22045
Washington, D.C. 20530

October 27, 2015

VIA ELECTRONIC MAIL

Anne-Marie Kundert
Head of the Extradition Unit
Crown Prosecution Service
2 Southwark Bridge
London SE1 9HS

RE:	Response to the High Court Concerning the Extradition of Roger Giese

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.

Sincerely,

Mary D. Rodriguez
Acting Director

cc: Julian Gibbs, Extradition Section, Home Office