Case No: CO/1976/2015
Neutral Citation Number: [2016] EWHC 365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/02/2016

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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Mr Toby Cadman (instructed by CPS) for the Appellant
Mr Aaron Watkins (instructed by Bindmans) for the Respondent

Hearing dates: 21st December 2015

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Judgment
Mr Justice Holroyde : 
1.	The Government of the United States of America has appealed against the refusal by a District Judge of the Government’s request for extradition of the Respondent Mr Giese.  On 7th October 2015 the court handed down a judgment upholding the decision of the District Judge that extradition of Mr Giese would be inconsistent with his Convention rights.   On 21st December 2015 the court handed down a further judgment dismissing the appeal. The Government has subsequently made written applications to re-open the appeal pursuant to rule 50.27 Criminal Procedure Rules 2015 (formerly rule 17.27 of the previous Rules), or alternatively for permission to appeal to the Supreme Court pursuant to rule 50.25.  We have received helpful written submissions from Mr Cadman on behalf of the Government and Mr Watkins on behalf of Mr Giese.  Both counsel have been heavily involved in this appeal, and are very familiar with the facts and the issues.  It is unnecessary for the court to hear oral submissions, and the court is able to determine these applications on the basis of the written submissions.  This is the judgment of the court.
2.	So far as is material for present purposes, rule 50.25 is in the following terms:
“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.”
3.	Rule 50.27 is in the following terms:
“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.”
4.	Mr Cadman invites the court first to consider the application to reopen the appeal.  Mr Watkins submits that until the application for permission to appeal has been determined, it is impossible for the Government to satisfy the requirement in rule 50.27(3)(b)(iii) that there is no alternative effective remedy.  We see the force of that submission, and we agree with the observation of Burnett LJ at paragraph 8 of his judgment in USA v Bowen [2015] EWHC 1873 (Admin) that it is “very difficult to envisage” that an application to re-open an appeal could be made whilst there is an outstanding application for certification.  For that reason, the application for certification falls to be considered first.
5.	It is however necessary to begin by summarising the chronology which is relevant to our consideration of both applications:
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. 
6.	 The application for certification and for permission to appeal to the Supreme Court invites the court to certify the following two questions:
“(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.”
7.	The application goes on to state, in purported compliance with rule 50.25(3)(a),  that the relevant point of law is “Article 5 ECHR and in particular the application of Article 5(1)(e)”.
8.	In the statement of reasons provided pursuant to rule 50.25(3)(c), the Government submits that –
“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.”
9.	We can state our conclusion on this application shortly.  Neither of the suggested questions raises any point of law of general public importance.  
10.	The first proposed question: The premise of the Government’s application, as stated in the reasons quoted in paragraph 8 above, is misconceived.  In this case, the District Judge decided, on the basis of the evidence adduced before her by the parties, that there was a real risk that Mr Giese would be made subject to an order for civil commitment and a real risk that such an order would be a flagrant breach of his rights under Article 5(1).  This court concluded that her decisions were correct.  That was a fact-specific decision based on the evidence adduced in this case, not a general pronouncement as to the system of civil commitment in the United States as a whole or in the State of California in particular.  It is impossible to argue that the court’s decision involves a point of law of general public importance.
11.	The second proposed question: Again, this proposed question relates to a fact-specific decision relating to the circumstances of this case, and does not raise a point of law of general public importance.  
12.	In addition, the second proposed question raises an issue which also arises in the Government’s application to reopen the appeal.  In both applications, Mr Cadman submits that the Government were provided with no opportunity to amend the offered assurance in terms which would satisfy the court.  He argues that the court’s view, that the offered assurance was inadequate, only became known to the Government’s legal advisers when the draft judgment was distributed, and could not be discussed with the Government because the draft was confidential.  He attaches significance to the e mail sent at 2012 on 29th October 2015.  
13.	We reject those submissions.  The Government had known for months that it was at the very least possible that the issue of offering an assurance might arise in these proceedings, and had therefore had ample opportunity to consider whether it would be willing to offer any assurance if that issue did arise.  Following the court’s judgment on 7th October 2015, the Government was given additional time in which to consider its position.  The Government then offered the assurance which it was prepared to offer.  The e mail sent by the court at 2012 on 29th October was plainly expressed in provisional terms; and even if it was thought to offer comfort to the Government, that thought must have been dispelled within less than 24 hours, when Mr Giese’s representatives made clear their opposition.  The court made this point entirely clear in the e mail of 16th December.   We think it quite inappropriate for one party to proceedings to seek to use an indication of the court’s provisional view in the way in which it is here being used.  If the approach for which the Government argues were correct, no court would ever be able to assist the parties to litigation, and to promote proper case management and the saving of costs, by indicating a provisional view.  
14.	The issue at the hearing on 9th November was as to the adequacy of the assurance.  We deprecate any suggestion that the court should have engaged in some sort of negotiation with the Government (or indeed with Mr Giese) as to the adequacy of the assurance or as to possible alternative terms: it was for the parties to make their respective submissions, and for the court to reach a conclusion.  If (which we doubt) the usual restriction on distribution of the draft judgment caused a real difficulty about taking instructions in advance of the hearing, the remedy lay in an immediate application to the court for permission to take the necessary instructions and/or for an extension of time.  
15.	For those reasons, we are unable to certify that there is any point of law of general public importance.  It follows that the application for certification and for permission to appeal fails in limine: see Extradition Act 2003 s32(4)(a).  
16.	We turn to the application under rule 50.27 to reopen the appeal.  Mr Cadman submits that the Government should be allowed to reopen the appeal because the Government “has had no effective opportunity to express whether it is minded to amend the letter of assurance and thus assuage the concerns of the court”.  He submits that, in the light of the e mail of 29th October 2015, no further instructions were sought from the Government, and none could be sought when the draft judgment was circulated and the court’s concerns about the offered assurance first became apparent.   He submits that the circumstances are exceptional, and that real injustice will be caused to the Government if the appeal is not reopened.
17.	We reject those submissions.  It seems to us that Mr Watkins in his written submissions has provided a complete answer to the application.  As we have already indicated, we reject the implicit suggestion that the court should have engaged in negotiations in pursuit of an acceptable form of assurance.  We repeat that any practical difficulty about taking instructions could and should have been dealt with by an appropriate application in advance of the hearing date.  
18.	The reality of this application, contrary to the submissions of the Government, is that it is an attempt to “have a second go”, so as to be able to put forward a revised form of assurance in the hope that it may prove acceptable.  That is not a proper use of rule 50.27.  The Government was given an opportunity to offer an assurance if it wished to do so.  It proposed an assurance on the terms it felt to be appropriate.  It cannot now say that the court’s decision, not to accept that assurance as sufficient in the circumstances of this case, gives rise to real injustice, or that the circumstances are exceptional.
19.	We therefore refuse the application to reopen the appeal.
20.	For those reason, both applications fail and are refused.