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 Aaron Watkins (instructed by Bindmans) for the Respondent
Hearing dates: 21st December 2015
Crown Copyright ©
Mr Justice Holroyde :
"50.25 Application for permission to appeal to the Supreme Court
(1) This rule applies where a party to an appeal to the High Court wants to appeal to the Supreme Court.
(2) Such a party must—
(a) apply orally to the High Court for permission to appeal immediately after the court's decision; or
(b) apply in writing and serve the application on the High Court officer and every other party not more than 14 days after that decision.
(3) Such a party must—
(a) identify the point of law of general public importance that the appellant wants the High Court to certify is involved in the decision;
(b) serve on the High Court officer a written statement of that point of law; and
(c) give reasons why—
(i) that point of law ought to be considered by the Supreme Court, and
(ii) the High Court ought to give permission to appeal."
"50.27— Reopening the determination of an appeal
(1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(2) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the High Court officer and every other party.
(3) The application must—
(a) specify the decision which the applicant wants the court to reopen; and
(b) give reasons why—
(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy.
(4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations."
i) On 7th October 2015 the court handed down its judgment upholding the decision of the District Judge that extradition of Mr Giese would be inconsistent with his Convention rights and that he must therefore be discharged. It should be noted that the draft judgment had been provided to counsel in advance of this date. It was headed, in the usual way, with a statement that it was "confidential to the parties and their legal representatives".
ii) The court did not however dismiss the appeal on 7th October 2015: rather, it allowed the Government a further opportunity to decide whether or not it would offer a satisfactory assurance that, should Mr Giese be found guilty of any of the offences charged, there would be no attempt to make him the subject of a civil commitment order. It is important to note that the judgment concluded with these words:"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 given in due time. If it is not, then this appeal must be dismissed."
iii) At the time when the judgment was handed down, no submission was made on behalf of the Government objecting to that proposal or raising any practical difficulty. An order was accordingly made directing the Government to confirm in open court as soon as practicable, but in any event no later than 4.00pm on 21st October 2015, whether such an assurance would be forthcoming.
iv) By letter dated 16th October 2015 the Government asked for an oral hearing in order to seek an extension of time. Mr Giese's representatives promptly indicated that any such application would be opposed. A short hearing took place on 21st October 2015, at which the court was told that the Government was actively considering offering an assurance. It was submitted on behalf of the Government that more time was needed because there was practical difficulty in taking instructions at the necessary high level.
v) An extension of time was granted until 6th November 2015. Within that time limit, on the morning of 28th October 2015, the Government offered an assurance.
vi) The court did not at the time see, but has very recently been shown, correspondence between the parties on the 28th, and early on the 29th, October 2015, in which Mr Giese's representatives immediately contended that the offered assurance was inadequate.
vii) At 2012 on 29th October 2015 Holroyde J's clerk sent on his behalf an e mail to the parties in the following terms:"The court has received and read the witness statement of Anne-Marie Kundert dated 28.10.15 and the letter from Mary D. Rodriguez, of the US Department of Justice, dated 27.10.15. Unless the Respondent Mr Giese notifies the court, by 4pm tomorrow (Friday 30.10.15) that he wishes to make representations to the contrary, the court is minded to accept the undertaking offered in Ms Rodriguez's letter, with the proviso which she mentions.In accordance with paragraph 2 of the court's order of 06.10.15, as continued by the order of 21.10.15, a short hearing in open court will be required in any event. If the respondent does not wish to make submissions, the hearing will be listed in open court before Holroyde J alone on the earliest practicable date during w/c 02.11.15. Counsel should liaise with the clerk to Holroyde J to arrange that date. If there are to be submissions, the court will hear them on Friday 06.11.15, at a time to be confirmed."
viii) On 30th October 2015 Mr Giese's representatives notified the court that they did wish to make representations. A hearing was therefore fixed for 9th November 2015.
ix) In advance of that hearing, skeleton arguments were exchanged. Mr Giese contended that the terms of the assurance were inadequate and unenforceable. The Government contended to the contrary, submitting that the offered assurance was sufficient and satisfactory. Oral submissions to similar effect were made at the hearing. At no point in the written or oral submissions did the Government seek any extension of time, or refer to any practical impediment to the taking of instructions, or raise any question of a possible amendment of the assurance.
x) The draft judgment of the court was sent to the parties by e mail on the morning of the 15th December 2015, with an indication that it would be handed down on the morning of 21st December 2015. It was headed in the usual terms to which we have already referred.
xi) On 16th December 2015 counsel for the Government sent an e mail to the court asking that the e mail sent by Holroyde J's clerk at 2012 on 29th October 2015 should be set out in the judgment as it "may form a point of appeal". Later the same day the court indicated (again by an e mail sent by the clerk to Holroyde J) that it did not intend to make such an amendment to the draft judgment. The court quoted the full text of the e mail of 29th October and said –"Following the sending of that e mail, the Respondent did indeed indicate that he wished to make representations. As a result, the hearing of 9th November 2015 was held. At that hearing, there was no application by the Government of the USA for an 'opportunity to respond or amend the assurance'. Nor had any such application been made, or presaged, in the Government's skeleton argument. The court therefore thinks it inappropriate to add to its judgment a reference to a point which was never raised for its consideration."
xii) Judgment was duly handed down on 21st December 2015.
"(i) Whether the High Court was right to rule that the Civil Commitment Rules of Orange County, California, US, infringe Article 5 ECHR, taking into account that when serving a custodial sentence a person's detention following conviction shall be subject to Article 5(1)(a) of the ECHR and thereafter when subjected to Civil Commitment, detention shall be subject to Article 5(1)(e); and
(ii) Whether the requesting state should have been afforded the opportunity to make amendments to the letter of assurance so as to assuage the concerns of the court, and therefore enable the CPS to take further instructions, taking into account that the Court had indicated it being minded to accept the letter subject to defence observations in an e mail communication to the parties."
"As it stands, the Court have effectively said that the rules relating to Civil Commitment breach Article 5 ECHR and thus any application for extradition to the US where Civil Commitment may be an issue must fail as a result."