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Government of the United States of America v Bowen (includes supplementary judgment) (Rev 1) [2015] EWHC 1873 (Admin) (11 September 2015)
URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/1873.html
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Neutral Citation Number: [2015] EWHC 1873 (Admin) |
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Case No: CO/374/2015 |
IN THE HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
30/06/2015 |
B e f o r e :
LORD JUSTICE BURNETT
MRS JUSTICE THIRLWALL DBE
____________________
Between:
____________________
Louisa Collins (instructed by Extradition Unit, CPS) for the Appellant
Malcolm Hawkes (instructed by Leslie Franks Solicitors) for the Respondent
Hearing date: 14th May 2015
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord Justice Burnett:
- This is the judgment
of
the court to which we have both contributed.
- This is an appeal by the Government
of
the
United States of America
against a decision
of
District Judge Rose sitting at Westminster Magistrates' Court on 19th January 2015 to discharge the Respondent, a Dutch/Liberian dual national whom the
United States
Government seek to extradite. She refused to send the case to the Secretary
of State
because she was satisfied that the respondent's extradition would violate his rights under article 5
of
the European Convention on Human Rights ["ECHR"]. His extradition is sought to face trial in New York for alleged sexual offences. If convicted, the respondent is likely to receive a sentence
of
imprisonment. New York
state
law provides for "civil commitment"
of
sexual offenders following completion
of
their sentences if (we paraphrase) they are both dangerous and suffering from a mental abnormality which predisposes them to repeat sexual offending. The judge concluded that there was a real risk that the respondent 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". In those circumstances there was a real risk
of
a flagrant denial
of
rights guaranteed by article 5.
- Accordingly, two questions arose before the District Judge regarding article 5. First, whether there is a real risk that the respondent would be detained under that law following the completion
of
any sentence he may receive if convicted
of
any sexual offences. That engaged a number
of
factual issues. Secondly, whether that detention would amount to a flagrant denial or nullification
of
the rights guaranteed by article 5. A stepping stone to that question is to consider whether if the regime in question were in place in an ECHR
state
it would be incompatible with article 5.
Background
- The respondent faces seven charges
of
sexual offences on an indictment filed on 14th September 2010 before a Grand Jury
of
the County Court
of
Onondaga, New York. The respondent was arrested and interviewed by police in the
United States
on 19th March 2010. At that time he was living in New York
State
. He was granted bail, subject to a bond
of
$10,000. The bail bond was lodged and he was released from custody on 23rd March 2010. He failed to appear for a hearing on 20th September 2010 and a bench warrant was issued for his arrest. Apparently the respondent had left the
United States
for Liberia.
The Extradition Application
- The
United States of America
is a Category 2 territory for the purposes
of
the Extradition Act 2003 ["The Act"]. Part 2
of
the Act applies to the extradition proceedings. The extradition request was dated 17th April 2014. A certificate was issued by the Home Office pursuant to section 70
of
the Act on 17th April and an arrest warrant was issued by Westminster Magistrates' Court on 18th April 2014. The respondent was arrested on 19th April 2014 when he arrived at Heathrow Airport. He resisted extradition on the grounds that his removal to the
United States
would breach a number
of
his rights under the ECHR and that the application was an abuse
of
the process
of
the court. He also raised the issue
of
specialty. The application was heard over two days on 17th and 18th December 2014. The judge took time to consider her decision. She gave a written judgment in which she rejected the respondent's challenges in respect
of
abuse
of
process and alleged breaches
of
articles 6 and 8
of
the ECHR. She found that the issue
of
specialty was not for determination by her but for decision by the Secretary
of State
. As we have noted, the judge found that were he to be extradited to the
United States
the respondent would suffer a flagrant denial
of
his rights under article 5 ECHR. Accordingly, she discharged him.
- The appeal is brought under section 105
of
the Act. It is the appellant's case that the judge made errors
of
fact and
of
law. By a respondent's notice dated 28th January 2015 the respondent seeks to uphold the decision
of
the judge on the ground that her decisions on article 5 were correct. We permitted Mr Hawkes to amend the respondent's notice at the hearing to include in it two additional points that he deployed in the skeleton argument prepared shortly before the hearing. The respondent did not seek to challenge the judge's decisions on abuse
of
process or the breaches
of
articles 6 and 8. Accordingly, the only issue before us relates to article 5.
Fresh Evidence
- The appellant sought leave to adduce as fresh evidence a letter from the
United States
Department
of
Justice Office
of
International Affairs dated 27th March 2015 together with three attachments: (a) a diagrammatic representation
of
the Civil Management Review Process, (b) SATIC-99 Coding Rules Revised-2003, and (c) a risk assessment tool and its score sheet. The purpose
of
the evidence was principally to contradict the evidence
of
Mr Brenner, an American attorney with extensive experience
of
civil commitment, albeit not in respect
of
the New York law. He was called on behalf
of
the respondent before the judge.
- We agreed to consider the evidence without prejudice to whether it should be admitted. The respondent objected to the admission
of
the evidence, but submitted a further report to be considered on his behalf in the event that we permitted the appellant to rely on the fresh evidence.
- The admissibility
of
fresh evidence in extradition appeals is subject to statutory restriction which was considered by this court in Szombathely City Court and Others
v
Roland and Kaman Fenyvesi [2009] EWHC 231 (Admin). The approach was summarised at para 6 through a series
of
questions:
i) Why the evidence was not adduced at first instance;
ii) Whether there is a good reason or excuse for not doing so;
iii) What part the fresh evidence would play if it were adduced;
iv) Whether the fresh evidence is credible; and
v
) Whether the fresh evidence might lead to a different outcome
of
the case.
- The reason offered by the appellant for its failure to adduce the evidence at first instance was that "the issues in the case only crystallised close to the date
of
the extradition hearing, which only allowed a limited time for a detailed response to be provided by the Appellant." We do not consider this to be a correct statement
of
the position. The respondent's statement
of
issues was served on 28th July 2014. At 4(d) the assertion was made that the respondent was at risk
of
civil commitment and that this would involve a breach
of
articles 5 and 6
of
the Convention. The respondent cited R (Sullivan)
v
Government
of
the USA [2012] EWHC 1689 (Admin) in which the absence
of
an assurance that civil commitment would not be pursued was the decisive issue in the case in respect
of
Article 5. The case concerned
state
legislation in Minnesota which is different from that in New York. Whilst the evidence
of
the respondent's expert, Mr Brenner, was late, it was received a full five weeks before the hearing. In her written submissions Ms Collins asserted that a decision was made not to seek an adjournment because the respondent was in custody and the court was likely to refuse it. If that is right then it supports our conclusion that a judgement was made that the application was ready to be argued on the evidence that had already been adduced.
- We are satisfied that the evidence was not adduced because a decision was taken that it was not necessary to do so. All
of
the attachments to the letter were in existence years before the hearing. The letter could have been written before the hearing. A litigant is not entitled to run a case in a particular way and, when that fails, to adopt a different approach on appeal which includes evidence that could have been called at first instance. We refuse permission to the appellant to rely on the fresh evidence. Accordingly we have not taken it into account nor have we taken into account the evidence in response served on behalf
of
the respondent.
Article 5 ECHR
- The relevant parts
of
article 5 read:-
"5.1 Everyone has the right to liberty and security
of
person. No one shall be deprived
of
his liberty save in the following cases and in accordance with the procedure proscribed by law:
(a) the lawful detention
of
a person after conviction by a competent court;
(b) the lawful arrest or detention
of
a person for non-compliance with the lawful order
of
a court or in order to secure the fulfilment
of
any obligation prescribed by law;
(c) the lawful arrest or detention
of
a person effected for the purpose
of
bringing him before the competent legal authority on reasonable suspicion
of
having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention
of
a minor by lawful order for the purpose
of
educational supervision or his lawful detention for the purpose
of
bringing him before the competent legal authority;
(e) the lawful detention
of
persons for the prevention
of
the spreading
of
infectious diseases,
of
persons
of
unsound mind, alcoholics, or drug addicts or vagrants;
(f) the lawful arrest or detention
of
a person to prevent his effecting an unauthorised entry into the country or
of
a person against whom action is being taken with a view to deportation or extradition."
- The circumstances in which a person may rely upon the ECHR to resist removal from the
United
Kingdom were considered in the House
of
Lords in R(Ullah)
v
Special Adjudicator (HL(E)) [2004] 2 AC 323. Where a person seeks to resist extradition on the basis
of
protections other than Article 3 the threshold is a very high one. The starting point is the speech
of
Lord Bingham at para 24:
"Whilst the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation
of
a very strong case. In relation to article 3 it is necessary to show strong grounds for believing that the person, if returned, faces a real risk
of
being subject to torture or to inhuman or degrading treatment or punishment: Soering paragraph 91… Where reliance is placed on Article 6 it must be shown that a person has suffered or risks suffering a flagrant denial
of
a fair trial in the receiving
State
. Successful reliance on article 5 would have to meet no less exacting a test. The lack
of
success
of
applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty
of
meeting the stringent test which that court imposes."
At paragraph 50 Lord Steyn said:
"It will be apparent from the review
of
the Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will have to be satisfied. It will be necessary to establish at least a real risk
of
a flagrant violation
of
the very essence
of
the right before other articles [i.e. beyond article 3] could become engaged."
At paragraph 69 Lord Carswell put it thus:
"The adjective "flagrant" has been repeated in many statement where the court has kept open the possibility
of
engagement
of
articles … other than article 3. … The concept
of
a flagrant breach or violation may not always be easy for the domestic courts to apply…but it seems to me that it was well expressed by the Immigration Appeal Tribunal (IAT) in Devaseelan
v
Secretary
of State
for the Home Department [2003] Imm AR 1, 34, paragraph 111 when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the context
of
a fundamental breach, with which courts in this jurisdiction are familiar."
(Emphasis added in each quotation)
- The right to liberty is not absolute. The sub-paragraphs
of
Article 5 are, for the purposes
of
determining the reach
of
article 5 in ECHR
states
, an exhaustive list
of
the circumstances in which a person may be deprived
of
his liberty. The central purpose
of
article 5 is to protect the individual from arbitrary arrest and detention: see Winterwerp
v
Netherlands (1979) 2 EHRR 387, para 37; Kurt
v
Turkey (1998) 27 EHRR 373, paras 122 and 123. At its heart is judicial control: see Brogan
v United
Kingdom (1988) 11 EHRR 117, para 58.
- It is not necessary for the legal system
of
a
state
which seeks extradition precisely to mirror within its legal system the circumstances justifying detention set out in article 5 to avoid a finding that removal would breach article 5. Different legal systems may, for example, allow preventative detention in varying circumstances. It would not be surprising if some legal orders regarded the provisions
of
article 5 which allow the detention
of
alcoholics, drug addicts and vagrants as going too far. Equally, different legal orders might countenance the detention
of
other categories
of
individual who pose societal risks. It may be particularly difficult to establish the precise boundaries
of
mental illness. The issue when extradition is resisted upon article 5 grounds is that identified in Ullah in the different language emphasised in the speeches from which we have quoted. They are to the same effect. 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.
- The parties' analysis in this case, both before the judge and in this court, proceeded by reference to Winterwep, which is the leading authority in Strasbourg on article 5 in the context
of
the deprivation
of
liberty
of
a person
of
unsound mind. At para 38, the court observed that article 5 does not give any definition
of
"persons
of
unsound mind" but concluded that the Netherlands Mentally Ill Persons Act, which authorised the confinement
of
a "mentally ill person" in principle fell within the ambit
of
Article 5.1(e). In determining whether detention was lawful the court indicated that, save in an emergency,
"The individual concerned should not be deprived
of
his liberty unless he has been reliably shown to be
of
"unsound mind". The very nature
of
what has to be established … that is, a true mental disorder – calls for objective medical expertise … Further the mental disorder must be
of
a kind or degree warranting compulsory confinement."
The Law
of
New York
State
: Mental Hygiene Law
- We are concerned with the law
of
New York
State
: Mental Hygiene Law article 10 which was introduced by the Sex Offender Management and Treatment Act
of
2007.
- Article 10 is headed "Sex Offenders requiring Civil Commitment or Supervision". It begins with legislative findings which set out the context
of
the statute and its aims. It is not necessary to repeat them. Article 10 provides, amongst other things, for the assessment
of
sex offenders at the end
of
their sentence to establish whether they are dangerous sex offenders suffering from a mental abnormality which predisposes them a) to commit sex offences and b) prevents them from controlling their behaviour so that they are a danger to others and likely to commit further sex offences. If they are, then they are confined to a secure facility. That is civil commitment. Sex offenders who are not dangerous within the meaning
of
article 10 may be subject to Strict and Intensive Supervision (SIST) in the community.
- Article 10.01 so far as is relevant, reads as follows:
" (b) That some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses. These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result
of
the criminal process, and should continue to receive treatment when that incarceration comes to an end. In extreme cases, confinement
of
the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct".
And at (e):
" (e) That the system for responding to recidivistic sex offenders with civil measures must be designed for treatment and protection. It should be based on the most accurate scientific understanding available, including the use
of
current, validated risk assessment instruments. Ideally, effective risk assessment should begin to occur prior to sentencing in the criminal process, and it should guide the process
of
civil commitment".
- 10.03 contains the definitions:
""Dangerous sex offender requiring confinement" means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility".
Detained sex offender is defined at (g):
(g) ""Detained sex offender" means a person who is in the care, custody, control, or supervision
of
an agency with jurisdiction, with respect to a sex offense or designated felony, in that the person is either:
(1) A person who stands convicted
of
a sex offense as defined in subdivision (p)
of
this section [this applies in this case], and is currently serving a sentence for, or subject to supervision by the division
of
parole, whether on parole or on post-release supervision, for such offense or for a related offense";
…
And at (i) the definition
of
mental abnormality appears:
(i) ""Mental abnormality" means a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity
of
a person in a manner that predisposes him or her to the commission
of
conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct".
The definition
of
a sex offender requiring civil management is set out at (q):
""Sex offender requiring civil management" means a detained sex offender who suffers from a mental abnormality. A sex offender requiring civil management can, as determined by procedures set forth in this article, be either (1) a dangerous sex offender requiring confinement or (2) a sex offender requiring strict and intensive supervision".
Finally, for our purposes, at (r):
""Sex offender requiring strict and intensive supervision" means a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement".
The Article 10 process
- Article 10.05 contains the provisions for the review
of
a sex offender who is coming to the end
of
his sentence.
- Once a qualifying offender is within 100 days
of
release the Office
of
Mental Health receives notification
of
the anticipated release date. Delay in notification does not invalidate the process. At that point the case is screened by a multi-disciplinary team
of
the office
of
Mental Health. They review the records and assessments and either refer the matter to a case review team for further evaluation or the case is closed. If a case is closed there will be no civil commitment. If the case is referred to a case review team, notice
of
that referral is given to the Office
of
the Attorney General and to the offender. If the case review team, which includes at least two mental health professionals and a psychiatric examiner, determines that the offender is appropriate for civil management they report in writing to that effect and refer the case to the Office
of
the Attorney General to commence legal proceedings. If the review team and psychiatric examiner find the offender does not require civil management the case is not referred and is closed.
- If, when a case is referred, the Office
of
the Attorney General determines that civil management is appropriate, court proceedings are initiated and a petition is filed. The offender is entitled to an attorney at all stages. First there is a hearing before a judge to determine whether there is probable cause to believe the offender is a sex offender requiring civil management. If the court is satisfied
of
probable cause, then the offender is transferred to an office
of
mental health secure treatment facility pending trial, or he may choose to remain in the custody
of
the Department
of
Corrections and Community Supervision. If probable cause is not established the petition is dismissed and the offender released.
- When probable cause is found the case is then prepared for a trial before a judge and a jury
of
12, although an offender may waive his right to a jury. There are two questions for the jury: first, whether the offender is a detained sex offender who suffers from a mental abnormality and second, whether he is a dangerous sex offender requiring confinement. The burden
of
proof is on the
State
at both stages. Evidence is called by the
State
and may be called on behalf
of
the offender. Unanimous verdicts are required "on clear and convincing evidence". Where the jury is satisfied
of
the first question but not
of
the second the offender is made subject
of
a SIST order. Offenders are entitled to petition for termination
of
a SIST after two years. Article 10.13 permits offenders to appeal any final order.
- If an order for civil commitment is made there follow annual reviews with the offender having access to the court to seek release.
The arguments in outline
- Mr Hawkes accepts that if civil commitment followed "only a proper medical diagnosis
of
genuine mental disorder" there could be no complaint that the process (if pursued in an ECHR
state
) was not article 5 compliant. There is no criticism
of
the judicial control
of
the process. In this case, however, he submits, as he submitted successfully to the judge below, that there is a real risk
of
a diagnosis being made which is not
of
a "genuine mental disorder" as it would be understood in Europe. His submissions rely on the decision
of
the Divisional Court in Sullivan and on the evidence
of
Mr Brenner, upon which the judge placed significant reliance. Sullivan was concerned with a Minnesota
state
law. Ms Collins submits that the position in Minnesota is quite different from that in New York and, furthermore, that the evidence
of
Mr Brenner was exaggerated and unreliable. She relies on the letter from the
United States
Department
of
Justice
of
11th December 2014. That set out a detailed explanation
of
how the civil commitment system works. It attached the annual report for 2013 to 2014 from the Attorney General which provides a very detailed description
of
the working
of
the law. She submits that there is no real risk
of
civil commitment in this case and no question that it would breach article 5 were the process in an ECHR
state
, still less amount to a flagrant denial
of
the sort contemplated in Ullah.
Minnesota and New York
- In Sullivan the Divisional Court was concerned with an appeal against extradition by a requested person who argued that if convicted he was likely to be subject to civil commitment in the
State of
Minnesota. The relevant statute was the Sexually Dangerous Persons Act 1994. A sexually dangerous person was defined as a person who "has engaged in a course
of
harmful sexual conduct…[and] has manifested a sexual, personality, or other mental disorder or dysfunction; and as a result, is likely to engage in acts
of
harmful sexual conduct". In that jurisdiction it is sufficient to prove "that he cannot "adequately control his sexual impulses", para 8. Moses LJ observed the relatively low threshold that needed to be passed to establish a course
of
harmful sexual conduct. The court's conclusion was contained in para 33
of
his Lordship's judgment:
"In the instant appeal the evidence does not come close to establishing that orders for civil commitment are only made in respect
of
those suffering from an unsound mind within the meaning
of
Article 5.1(e) let alone a serious mental disorder. I have already identified the Minnesota statutory authority for an order
of
civil commitment which merely requires that the person:
"(2) has manifested a sexual, personality or other mental disorder or dysfunction;"
The risk I have found that Mr Sullivan will be detained under an order
of
civil commitment exists only if he manifests a sexual dysfunction. Since it is not necessary to prove that that amounts to an inability to control his sexual impulses, it is plain that the criteria fall far short
of
the necessity
of
proving he is
of
unsound mind."
- By contrast in New York the law requires the
State
to prove that the person is a:
"dangerous sex offender requiring confinement, namely a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility."
- We have set out the meaning
of
detained sex offender and mental abnormality above. We do not agree with the judge's view that the two regimes are broadly similar. The difference between them is marked. The law in Minnesota was amended in 1994 to extend the reach
of
civil commitment to include those with disorders or dysfunctions and to remove the requirement that a person should be unable to control sexual impulses. The law
of
New York
State
with which we are concerned is more recent, narrower in its scope and includes requirements that the person is (a) suffering from a mental abnormality and (b) is so incapable
of
controlling his behaviour that he is likely to be a danger to others, and (c) requires treatment in a secure facility. The evidential threshold for civil commitment is high, reflecting the policy that it should apply only in extreme cases.
Mr Brenner's evidence
- Mr Brenner is a lawyer very experienced in the operation
of
federal law in respect
of
the Adam Walsh Act (which deals with civil commitment) which came into force in 2006. The Adam Walsh Act was derived from the sexual commitment laws
of
a number
of states
. His opinion was that the respondent was not at risk
of
being committed under that statutory provision. Having set out his expertise the judge acknowledged the reservations about him expressed on behalf
of
the
United States
Government. She said:
"He does have a wealth
of
specialist knowledge in his own area
of
conducting Adam Walsh Act cases and has studied the various
state
laws and decisions. He is familiar with the type
of
secure facilities and treatment available although he had not been to the New York
State
facility. He was able to offer little assistance as to comparisons between the law and procedures in Minnesota and New York; that being relevant when considering the Sullivan decision".
- It seems to us that it is relevant also to the question
of
his expertise about the operation
of
the New York
State
law and procedures on civil commitment. The judge continued:
"He has a general expertise on civil commitment in the US and considerable expertise in his own area
of
practice."
She concluded:
"His evidence is considered subject to the limitation that his opinions about New York
State
law and procedures are not based on personal litigation experience in that
state
."
- We are not quite sure how the judge applied that limitation, which seems to us to be a fundamental problem with his evidence. It was inescapable that Mr Brenner was not an expert in New York
State
law and procedures nor did he have any direct experience
of
either. Although he had conducted a number
of
cases and referred to his long experience
of
"academic medicine" he is not medically qualified. It is unnecessary to burden this judgment with a discussion
of
the requirements which must be satisfied before evidence can be admitted as "expert evidence". A basic requirement, however is that before evidence can be relied upon the expertise
of
a witness must be established. If it is not, the evidence is
of
no value.
- A range
of
statistics was deployed before the judge. As is perhaps common, many arguments can be raised on statistics and some caution is called for in their assessment. That said, the evidence in the Attorney General's review showed that by 2014
of
all those convicted
of
qualifying sexual offences in New York
State
since civil commitment was introduced in 2007 only 6.9% had been referred for hearings under the article 10 procedures. The overwhelming majority are weeded out before they get to formal proceedings. Mr Brenner opined that Mr
Bowen
is likely to be within that cohort. His opinion was based entirely on the nature
of
the offences he is alleged to have committed. We find that surprising given that only two
of
the counts are qualifying offences under the Sex Offender Management and Treatment Act. Were the offences themselves sufficient for a referral without more there would be no purpose in the assessment at that stage by the team and, particularly, by the psychiatric examiner. His evidence ignores the structured process that is applied before a case is even referred to a full hearing before a jury. We think it unlikely that Mr Brenner is right in his assessment, particularly as the judge recorded that Mr Brenner "could not provide examples
of
New York cases where the circumstances alone have provided the basis
of
a finding
of
mental abnormality." There is no basis to think the input from the teams at the early stages is other than genuine and effective in informing the decision whether or not to refer.
- The evidence
of
Mr Brenner really comes to no more than that because the civil commitment law exists and the respondent might theoretically be subject to it, that generates the necessary real risk. The evaluation
of
a real risk requires the personal characteristics
of
the respondent to be considered together with a focussed assessment
of
what is likely to happen to him if he is convicted
of
offences which qualify him for consideration for civil management.
- The judge considered Mr Brenner's opinion that the respondent is at "real risk
of
a finding that he is suffering from a mental abnormality", and further, "that he lacks sufficient volitional control that he would be sexually dangerous if released". We have read Mr Brenner's report and considered the judge's account
of
his evidence. As to the opinion expressed that there was a real risk
of
a finding that the respondent is suffering from a mental abnormality, we record that Mr Brenner is extremely sceptical about the manual relied on by psychiatrists and the courts, generally considered to be the gold standard: the Diagnostic and Statistical Manual
of
Mental Disorders (DSM) now in its fifth edition, DSMV. The manual is in use across the world. Mr Brenner alerted the judge to controversy about aspects
of
the current edition, demonstrated by a critical article in the New York Review
of
Books. We have not seen the article but we are prepared to accept that there can be controversy in a field
of
medicine that moves to reflect changing attitudes, changing times and a developing understanding
of
mental illness or abnormality. He allied himself with the view, expressed in that article, that DSMV is "medically and scientifically invalid". As a lawyer, he would be entitled to make a submission to that effect in legal proceedings based upon evidence adduced before the court. In our view, he has no relevant expertise to express that opinion as an expert. It is Mr Brenner's view that as regards sexual behaviour, psychiatrists have improperly attached diagnostic labels which are not appropriate and do not reflect mental illness or disorder. The respondent's attack upon DSMV is at the heart
of
his complaint coupled with what Mr Brenner described as "aggressive over-diagnosis"
of
mental illness. Like many lawyers across the world, his work brings him into contact with disputes about whether an individual is suffering from a mental disorder, and if so what it is. That does not qualify him to give an opinion that the medical specialists involved in the production on DSMV were wrong. There is no reason to suppose that were civil commitment to be ordered, it would not follow a "proper medical diagnosis
of
genuine mental disorder", as Mr Hawkes puts it.
- Mr Brenner expressed the view in his report "that a finder
of
fact would have little difficulty in finding the requisite mental abnormality." In evidence he said that a diagnosis
of
paedophilia was inevitable. We repeat that Mr Brenner is not a psychiatrist or qualified to give expert medical evidence. There was no psychiatric evidence before the judge or available to Mr Brenner suggesting that the Respondent is suffering from a mental illness. On the contrary, such evidence as there was indicated that save for anxiety, he was not suffering from mental illness. However, even if he were right that a diagnosis
of
paedophilia could be made, that does not lead inevitably to a finding
of
mental abnormality within the meaning
of
article 10. As to evidence
of
lack
of
volitional control, Mr Brenner placed particular reliance on the fact that the respondent had breached his bail conditions, having "broken his covenant with the court". He said in evidence that,
"not turning up shows an inability to control impulses. His failure to comply with his covenant and his fraud [in relation to his passport] leads to a conclusion
of
strong evidence that he won't comply with supervision and that he will follow impulses".
- We disagree. The fact that a person fails to answer to his bail logically can tell the court nothing about whether he is able to control his sexual urges. The fact that he apparently has committed no further offences during the four years he has been at liberty is, it might be thought, some evidence to the opposite effect.
- Before leaving Mr Brenner we note that in his report he asserted that racism and xenophobia would adversely influence the outcome for Mr
Bowen
in the New York courts. This was a very serious allegation to make. It was not supported by the data upon which Mr Brenner purported to rely. He abandoned it at the hearing. This volte face significantly undermined his evidence, in our view. It also called into question his objectivity and independence.
- We have considered the voluminous material which was before the judge, in addition to the evidence
of
Mr Brenner. We do not accept that it supports the proposition that there is a real risk that a finding
of
mental abnormality would be made in this case, still less that the respondent would be at real risk
of
being found to be a dangerous sex offender within the meaning
of
Article 10. We recognise that it is for the court
of
first instance to make findings
of
fact and that this court is slow to interfere with such findings. In this case our conclusion is that the judge relied upon Mr Brenner's evidence in ways which were impermissible given his lack
of
relevant expertise and in any event, on analysis, it did not provide support for the conclusion that the respondent was at real risk
of
being subject to civil commitment.
- Even were we wrong on that, in our judgment, the New York law would survive scrutiny by the Strasbourg Court on an article 5 challenge in light
of
the principles articulated, in particular, in Winterwerp at para 38. The provisions we have quoted make plain that the scheme can be invoked only in respect
of
those who suffer from a mental abnormality and then only if the further qualifying criteria are met. The essential point in Winterwerp is that detention is permissible under article 5.1(e) only if the person concerned suffers from a "true mental disorder" which warrants compulsory confinement. Article 10 satisfies those criteria.
- That said, the exercise is not to test the New York scheme against article 5 as if the civil management scheme had been enacted by an ECHR
state
. The question is whether civil commitment under the New York scheme, and the process underpinning it, would deny the very essence
of
the right to liberty and protection from arbitrary detention guaranteed by article 5 ECHR. In our judgment, that is an impossible contention.
The two further arguments
- Mr Hawkes submitted that there is a lacuna in the civil commitment process which leads to a further risk
of
a flagrant breach
of
article 5 ECHR. Article 10 permits the process to continue even if time limits are not observed. Thus if, for example, the initial notification is closer to the release date than the 100 days set out in article 10 the time available for the completion
of
the process is less than is required. As a result an offender may be held in custody beyond the end
of
his sentence even though no adverse determination has been reached. Furthermore there is no provision for bail during the article 10 process. This is, he says, plainly not compliant with article 5 ECHR. These arguments were not advanced before the District Judge. There is no evidence in relation to it, beyond the legislation itself. So, for example, what happens when time limits are not complied with remains a mystery. It is correct that article 10 provides that a failure to comply with time limits does not invalidate the process. In the absence
of
compelling evidence we would not accept that such an individual would be subject to arbitrary detention unsupervised by the courts. We do not consider that an inability to be granted bail in circumstances where probable cause has been found that an offender satisfies the article 10 criteria
of
mental disorder and dangerousness could amount to a complete denial
of
the right to liberty.
- These arguments are, with respect to Mr Hawkes, a theoretical construct. There is no reason at all to suppose that they support the proposition that there is a real risk
of
arbitrary detention in the respondent's (or anyone else's) case.
Conclusion
- We are satisfied that the New York process by which a civil commitment order may be made under article 10 would be consistent with article 5 ECHR if enacted in an ECHR
state
. In concluding that the article 10 process could lead to the commitment
of
someone who was not
of
"unsound mind" within the meaning
of
Article 5.1(e) the judge placed too much weight on the opinions
of
Mr Brenner and gave insufficient attention to the strict requirements
of
article 10 and, in particular, the definition
of
"dangerous offender requiring confinement" which we have set out above. The New York law provides that before such a finding can be made there is a proper assessment and review
of
the offender by mental health professionals and psychiatrists. Thereafter there would be a fair judicial process. First there is a judicial filter, effectively a leave stage, and then a trial in which the offender plays a full part. He is provided with legal assistance. He can challenge evidence relied upon by the
State
, and call his own evidence. The burden is on the
state
to prove that he suffers from a mental abnormality together with the other ingredients necessary to justify civil commitment. The determination is by a jury
of
12, unless that right is waived. A unanimous verdict is required to support an order
of
civil commitment and there is a right
of
appeal. Civil commitment at the end
of
this process is far from arbitrary. Our analysis
of
the evidence in this case leads us to conclude that the respondent is not at real risk
of
civil commitment in any event. The circumstances
of
this case do not come close to satisfying the strict Ullah test necessary to resist extradition on article 5 grounds.
- Accordingly we allow the appeal.
Supplementary Judgment
|
|
Neutral Citation Number: Same as 30 June 2015 Judgment |
|
|
Case No: CO/374/2015 |
IN THE HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
11/09/2015 |
B e f o r e :
LORD JUSTICE BURNETT
MRS JUSTICE THIRLWALL DBE
____________________
Between:
____________________
Louisa Collins (instructed by Extradition Unit (CPS)) for the Appellant
Malcolm Hawkes (instructed by Leslie Franks Solicitors) for the Respondent
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord Justice Burnett :
- On 30 June 2015 we handed down judgment in the appeal
of
the Government
of
the
United States of America
against a decision
of
the District Judge at Westminster Magistrates' Court
of
19 January 2015 whereby she discharged Mr
Bowen
, whose extradition had been sought. We indicated that we would deal with any application for certification
of
a point
of
law
of
general public importance and application for permission to appeal to the Supreme Court on receipt
of
written submissions. On 13 July Mr Hawkes, on behalf
of
Mr
Bowen
, made those applications in writing. The appeal concerned civil commitment
of
dangerous sex offenders pursuant to the laws
of
the
State of
New York: [2015] EWHC 1873 (Admin). We refused to certify.
- At the same time he made a concurrent application "to reopen the determination
of
the appeal" pursuant to Rule 17.27
of
the Criminal Procedure Rules. We invited the Crown Prosecution Service on behalf
of
the
United States
to respond to this novel application and are grateful for Miss Collins' written submissions.
- We indicated that we would deal with the application on the basis
of
written submissions.
- The essence
of
the application is that the judgment we gave was in error in a number
of
respects. The submission advanced, which runs to 105 paragraphs, refers to materials not relied upon by the respondent in resisting the appeal, including evidence which was available to him but which he did not seek to adduce. It repeats arguments advanced in the appeal, some in an augmented form. We say nothing about whether the new evidence could properly have been admitted on the Fenyvesi principles: [2009] EWHC 231 (Admin). We have considered the materials but are unpersuaded that even were they before us the result would have been different. We do not accept that there is any demonstrated injustice. That said, Rule 17.27 is not designed to enable an unsuccessful party in extradition proceedings immediately to regroup after losing the appeal and to return with further developed submissions.
- Rule 17.27 provides:
"17.27.
(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."
- The language
of
rule 17.27(3) mirrors precisely that
of
Part 52.17
of
the Civil Procedure Rules which provides a similar power to reopen a final appeal following determination in the Court
of
Appeal. In turn, that rule reflects the common law position identified in Taylor
v
. Lawrence [2002] EWCA Civ 90. The narrow scope
of
the application
of
that rule is well-established in the authorities, collected together in the notes to the rule in the White Book.
- This court has considered identical language found in section 108(7)
of
the Extradition Act 2003 as Crim PR 17.27(3)(b)(i) and (ii), which enacted the recommendation
of
Sir Scott Baker in September 2011 that human rights issues arising at the end
of
the extradition process in Part 2 cases should be dealt with by the courts: see paragraphs 9.32-40 and 11.71-2
of
the report
of
the review. The recommendation was that any supervening human rights issues arising after the conclusion
of
the appeals should be addressed by re-opening the appeal in the High Court. This had the effect
of
removing the Home Secretary's obligation to consider such issues when raised late in the process (i.e. after an appeal to the High Court) with the possibility
of
subsequent judicial review
of
her decision, by vesting it in the courts. In McIntyre
v
Government
of
the
United States
[2014] EWHC 1886 (Admin) at [11] Lord Thomas CJ identified the principles which should apply to the question whether exceptionally to avoid real injustice an application under section 108 should be heard by this court:
"The court should simply give effect to the statutory language having regard to its statutory context and purpose:
i) It is well established that all issues relating to the extradition
of
a requested person under Part 2
of
the 2003 Act should be raised at the extradition hearing before the District Judge.
ii) On any appeal to the Divisional Court the court only considers such issues as have been raised, subject to s.106(5) (a) and (b)
of
the 2003 Act, as explained by Sir Anthony May PQBD in Hungarian Judicial Authorities
v
Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 32-35 in relation to the equivalent provision in Part 1 (s.29(4) (a) and (b)).
iii) The decision on the extradition hearing (if there is no appeal) or
of
the Divisional Court or Supreme Court (if there is an appeal) is intended to bring finality to the extradition proceedings; the Home Secretary is thereafter under an obligation to extradite within strict time limits.
iv) Exceptionally events can occur after the decision on the extradition hearing (if there is no appeal) or
of
the Divisional Court or
of
the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights.
v
) It was determined by Parliament that it is not apposite that the jurisdiction to determine these issues should remain with the Home Secretary.
vi) The provisions
of
s.108 (5)-(8) are therefore intended to permit the determination
of
such issues by the courts by way
of
an appeal. The express language
of
the new provisions makes it clear a court can only consider such an appeal if it is both necessary to avoid a real injustice and the circumstances are exceptional and make it appropriate to consider the appeal.
vii) It is not necessary to embellish that language. It is evident from the statutory purposes that a requested person will ordinarily have to establish that the issue arises as a result
of
a supervening development or event. It will also be necessary to provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal.
viii) Any application under s.108 (5) - (8) must be brought promptly. The evidence relied on should be filed with the application or within a period immediately thereafter to be measured in days, not weeks. The court must make arrangements for the rapid hearing
of
the application. It may be desirable for appropriate directions to be given immediately in writing by the Master
of
the Administrative Court. Strict compliance with the directions must be observed (or a variation sought from the court). The matter should generally be determined at a single hearing to avoid delay. However, though such applications will be rare, the practice we have outlined should be reviewed in the light
of
experience.
ix) Applications under the new provisions must not be used to bring about undue delay to the process
of
extradition."
- In our judgment these principles apply with necessary modifications to an application to reopen under the Crim PR. Such an application is not limited to Human Rights grounds. Subparagraph (
v
) has no application in the context
of
this case nor (viii), in the first instance, because Crim PR 17.27 envisages a leave stage, which will be conducted on paper. There is, in addition under this rule, the requirement that there should be no alternative effective remedy. It is very difficult to envisage that such an application could be made whilst there is an outstanding application for certification.
- We would draw particular attention to the expectation that the jurisdiction under Crim PR 17.27 will not be exercised unless something has developed after the determination
of
the appeal. The jurisdiction is not designed to allow a disappointed party to the appeal to reconsider his arguments, material and evidence and come back to the court to have another go. Furthermore, we would emphasise the importance
of
finality in extradition cases by noting the observations
of
Lord Thomas in Abu Hamza
v
Government
of
the
United States of America
[2012] EWHC 2736 (Admin) at [21] and [22], namely that there is an overwhelming public interest in both the proper functioning
of
extradition arrangements and in honouring extradition treaties as well as there being an equally high importance in the finality
of
litigation. Finality
of
litigation is particularly important in extradition cases:
"because
of
the public interest in an efficient process, the need to adhere to international obligations and to avoid a recurrence
of
the delays which have so disfigured the extradition process in the past and to which successive appeals over time can subject it."
- The application to reopen falls far short
of satisfying the test found in Crim PR 17.27. We refuse permission to do so.
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