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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Government of the United States of America v Giese [2015] EWHC 2733 (Admin) (07 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2733.html Cite as: [2015] EWHC 2733 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLROYDE
____________________
| THE GOVERNMENT OF THE UNITED STATES OF AMERICA |
Appellant |
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| - and - |
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ROGER ALAN GIESE![]() |
Respondent |
____________________
Mr Aaron Watkins (instructed by Bindmans) for the Respondent
Hearing dates: 1st July, 2015
____________________
Crown Copyright ©
Lord Justice Aikens:
The Question on this appeal
Giese
("Mr
Giese
").
Giese
would be made subject to an order for civil commitment under the system which operates in California and, if so, whether there is 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"). If so, as the DJ concluded, Mr
Giese
must not be extradited and is entitled to be discharged pursuant to section 87(1) and (2) of the EA.
The Facts and the proceedings before the DJ
Giese
was charged with a number of serious sexual offences allegedly committed against an adolescent boy during the period May 1998 to May 2002 when the boy was under the age of 14. He appeared before a court and was arraigned and bailed. After further pre-trial hearings his trial was fixed for 12 March 2007. On that date Mr
Giese
failed to answer to his bail, and a warrant for his arrest was issued. He left the USA and came to the United Kingdom. He remained undetected by the US authorities for several years. On 12 February 2014 the Government issued a request that Mr
Giese
, who was believed to be living at an address in Hampshire, be arrested and extradited to stand his trial in California. That request was certified by the Secretary of State for the Home Department ("SSHD") on 8 May 2014, pursuant to section 70 of the EA. Mr
Giese
was arrested on 4 June 2014.
Giese
has accepted that he was properly identified in the warrant and that the offences with which he stands charged are extradition offences. The DJ found that there were no statutory bars to extradition other than the Article 5 issue.
Giese
argued, pursuant to section 87 of the EA, that extradition would be incompatible with his Convention rights for two reasons:
i) first, because the prison conditions in which he would be held in California would violate his Convention rights under Article 3. The DJ decided this issue in favour of the Government and MrGiese
no longer seeks to advance this argument;
ii) secondly, because there was a real risk that he would be subject to civil commitment in California and that his Convention rights under Article 5(1) would thereby be violated. The DJ decided this issue in favour of Mr
Giese
.
"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".
i) Is there was a real risk of MrGiese
being subject to civil commitment?
ii) If so, would extradition lead to a "real risk" of a violation of Mr
Giese
's rights under Article 5(1) of the ECHR such as to constitute a bar to Mr
Giese
's extradition pursuant to section 87(2) of the EA. Before the DJ it seems that the Government argued that the detention of Mr
Giese
under a civil commitment order came within the exceptions set out in Article 5(1)(a), (c) or (e) of the ECHR. The DJ concentrated on (e), viz that Mr
Giese
's detention would be lawful because he would have been held to be a person of "unsound mind". That was the basis of the Government's case on Article 5 before us.
A summary of the California law and procedure relating to "civil commitment".
What is the correct approach for this court where there is a challenge to the DJ's conclusions that extradition would not be compatible with a person's Article 5 Convention rights?
Giese
to California would be incompatible with his Article 5 Convention rights involves questions of fact and law at each stage. The question of whether there is a "real risk" that Mr
Giese
might, if convicted, be made the subject of a civil commitment order is, ultimately, a question of fact, although that required the DJ to evaluate and make conclusions on expert opinion evidence on the whole process.
Giese
would be subject to a civil commitment order, the question of whether, as a consequence, his extradition would be incompatible with his Article 5 rights is a question of fact and law. The argument is that any detention of Mr
Giese
under a civil commitment order is within the exception of Article 5(1)(e) of the ECHR, viz. it is lawful because he would be detained "in accordance with a procedure prescribed by law" and it would be the "lawful detention" of a person of "unsound mind". To determine that issue, it is necessary to examine whether the criteria set out in the California legislation, as put into practice by the Californian decision makers (psychiatrists, psychologists, officials, the District Attorney, the judge and (if involved) the jury) are compatible with the phrase "persons of unsound mind" in Article 5(1)(e), as interpreted by the European Court of Human Rights (ECtHR). Again, that involves an evaluation of the expert evidence on the process in California. Even if the criteria as operated are not compatible with Article 5(e), the ultimate question is whether there is a real risk that the whole process would constitute a "flagrant breach or violation" of Mr
Giese
's Article 5 rights such that his extradition would be incompatible with his Convention rights for the purposes of section 87 of the EA. That also involves an evaluation of the expert evidence on the process in California and the way that the Californian law is applied in practice by all involved.
The first issue: was the DJ wrong to conclude that there is a "real risk" that Mr
Giese
would be subject to a civil commitment order?
Giese
in particular, would, in all the circumstances of his case, be made subject to that process. The Government relied on the evidence contained in the reports of Miss Lynn Holliday, a senior trial attorney within the US Department of Justice, and Mr Peter Finnerty, a District Attorney in Orange County, California. Mr
Giese
relied on the evidence of Dr Dana Putnam, a clinical and forensic psychologist who had undertaken more than 700 evaluations for the civil commitment process in California, and Mr Jeffrey Lowry, a deputy Public Defender who for three years has been the lead attorney in the civil commitment unit in San Bernardino County. The latter two witnesses gave oral evidence by videolink, essentially to the same effect as the contents of their respective reports. The DJ was satisfied that all four witnesses were expert in their respective fields and well qualified to give their evidence.
i) When a prisoner is nearing release, the CDCR makes an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal and institutional history".ii) If as a result of that screening it is determined that the prisoner is likely to be a SVP, he is referred to the Department of State Hospitals ("DSH") for a full evaluation of whether he meets the criteria in WIC section 6600. A State psychologist carries out a further screening process to determine whether a full evaluation is warranted. It will not be warranted if the prisoner is regarded as very unlikely to fulfil the criteria. If a full evaluation is warranted, it is performed by two evaluators, each of whom may be either a psychiatrist or a psychologist, and may or may not be employed by the State. The evaluation considers whether the prisoner has been convicted of a qualifying offence; whether he has a diagnosable mental disorder which predisposes him to the commission of sexual offences; and whether, without appropriate treatment and custody, he is likely to engage in acts of sexual violence as a result of his diagnosed mental disorder. In relation to the third of those questions, California case law establishes that "likely" means that there is a serious and well-founded risk that he will so behave: it is not necessary for the evaluators to conclude that there is a probability that he will do so. The evaluators work independently of each other. If they both find the prisoner meets the three criteria for a SVP, the case is referred to the District Attorney to start legal proceedings. If they disagree in their conclusions, two further evaluators are engaged. If three of the evaluators agree that the prisoner meets the criteria for an SVP, the case is referred to the District Attorney.
iii) The District Attorney has a discretion not to pursue the matter towards civil commitment. If the District Attorney decides to file a petition, the prisoner has a right to challenge that decision.
iv) Once a petition has been filed, there is a hearing before a judge to determine whether there is "probable cause" to proceed further. The judge must for this purpose determine whether the petition states sufficient facts which, if true, "would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior" upon release. The prisoner is entitled to legal representation, and may cross examine witnesses at this hearing. If the judge finds probable cause, the prisoner must be detained in a secure facility until trial. The trial may not take place until years after the probable cause hearing, with the prisoner being detained throughout. Dr Putnam and Mr Lowry both accepted that in some cases delay may be caused or contributed to by the prisoner himself, but Mr Lowry gave other reasons – beyond the control of the prisoner - why the process is a very long one.
v) Either a jury or a judge alone then determines the issue of whether the prisoner is an SVP: that is, "by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence" upon release[14]. The burden is on the State to prove beyond reasonable doubt that the prisoner is an SVP. If the issue is determined by a jury, their verdict that the prisoner is an SVP has to be unanimous.
vi) If the finding is that the prisoner is not an SVP, he is released. If he is found to be an SVP, he is committed for an indeterminate term to the custody of the Department of State Hospitals period "for appropriate treatment and confinement in a secure facility". The prisoner found to be an SVP has a right of appeal on a point of law.
vii) The prisoner will thereafter be reviewed annually. If he no longer meets the criteria for an SVP, he may petition to be released from his civil commitment. Such release may be conditional or unconditional.
Giese
, even if he were convicted, would be made subject to civil commitment. Dr Putnam considered the statistical material on which that evidence was based, and noted that the total number of cases to which Mr Finnerty referred in fact included multiple referrals of the same individuals. Moreover, the total number related to those who on the initial screening by the CDCR met the criteria as potential SVPs without reference to whether there was a qualifying mental disorder: it therefore included many who were not real candidates for civil commitment.
Giese
would be at real risk of being found an SVP.
Giese
is charged is a qualifying offence. It follows that if convicted he would certainly be an SVP candidate at the first stage of the process. He went on to say that, given the facts and circumstances of the alleged offences, it is almost certain that Mr
Giese
would be referred for a full evaluation, and would be found to meet the criteria for an SVP. A plea bargain might result in a shorter sentence, but would not avoid Mr
Giese
being convicted of qualifying offences. We note at this point that Mr Lowry similarly said that "there is no doubt, given the nature of Mr
Giese
's offences and the length of time over which they were committed, he will undergo a full evaluation".
"MrGiese
's history makes it almost certain that he would be referred by CDCR to DSH and found by DSH to warrant a full clinical evaluation. Thus he would be expected to come within the category of those 14,335 referred to … above. As described above, 14% of those evaluated were found by evaluators to be SVPs and were referred to District Attorneys for adjudication. Once a person has been referred to the District Attorney there is a high likelihood (87-96%) of being held to await trial and a high likelihood if sent to trial that he will be found a SVP (85%). Given the data, it is clear that anyone who is referred for clinical evaluation has a real risk of being held and committed as an SVP."
Giese
, and that he could not perform a full clinical evaluation without interviewing Mr
Giese
. He nonetheless concluded that
"there is a real risk MrGiese
would be subject to a civil commitment assessment and be evaluated and a real risk that if returned to the USA he will be subject to the SVP law, and a real risk of his being found to be an SVP".
The DJ accepted that evidence. She expressly found Dr Putnam's evidence as to the relevant statistics to be more persuasive than that of Mr Finnerty:
"They appear to me to be more transparent and take account of the different factors."
"There is no doubt that MrGiese
faces extremely serious charges and, on the face of it, there is a strong case against him. However because of the nature of these serious charges, because of the age of the victim, because of the degree of grooming and breach of trust said to have been involved, because of the length of time over which the offending is said to have been perpetrated, [it] makes it a near certainty that Mr
Giese
will be referred by the California Department of Corrections and Rehabilitation to the State Hospital for evaluation. There is a real risk he meets the criteria for commitment. Quite likely he will have a probable cause hearing. Strong likelihood to be found by a jury to be a sexually violent predator (the standard of proof is beyond reasonable doubt). Clearly it is impossible to predict what the outcome of the trial would be, but assessing what is currently known leads me to believe there is a substantial risk of Mr
Giese
being detained for a very long period, ether because an order of civil commitment is made or, if not, simply waiting for the process to complete. As stated above, Dr Putnam mentions periods from 6 years 3 months to 7 years 8 months."
"I accept that the risk has to be assessed on the information available now. I reject the proposition that it is too early to assess the risk. I reject the proposition put forward by the Government's witnesses, that there is little risk of an order being made. Having analysed the evidence of the Government's witnesses and the witnesses called on behalf of [MrGiese
], I have reached the conclusion that if [Mr
Giese
] is returned to stand his trial, and if he is convicted, the risk of his being made subject to civil commitment cannot be described as fanciful. I accept the evidence of Dr Putnam and Mr Lowry that Mr
Giese
will be the subject of civil commitment. The risk is real."
Giese
were to be convicted of the offences with which he is charged, he would be liable, and would be likely, to be subject to an application that he be considered for civil commitment. But, Mr Cadman submitted, there was no certainty that such an application would succeed at all or any of the stages of the procedure which we have outlined above: it would therefore be purely speculative to say that Mr
Giese
would be civilly committed. It was, he submitted, impossible to quantify the risk. He thus conceded that, in the event of Mr
Giese
being extradited and convicted, there would be a risk that the civil commitment process would be triggered, but argued that the DJ should have found there was no real risk of civil commitment in fact being ordered.
Giese
faces: seriousness of the offending is not in itself a sufficient basis for Mr
Giese
to be made subject to civil commitment, and a proper consideration of other factors should have led the DJ to conclude that there is no more than a speculative possibility of civil commitment in this case.
Giese
does not have any previous convictions. That feature, argued Mr Cadman, meant that Mr
Giese
would register a low score in the actuarial tests used by the evaluators in relation to recidivism, and faced no significant risk of civil commitment.
Giese
's favour and would make it unlikely that he would be found an SVP. Both acknowledged that those matters would be taken into account. Dr Putnam, however, said that an absence of reoffending did not necessarily prevent a diagnosis of a mental disorder, and that it could not be assumed that offending had not occurred just because it had not been detected.
"Mr Finnerty makes the statement that MrGiese
has no criminal record, therefore he will be scored low. This simply does not follow. It may or may not hold true in relation to the Static 99R or 2002R actuarial instruments (there are many more factors considered than just past criminal history), but not the MnSOST or SORAG assessment methods. It very much depends on which instrument is chosen and evaluators are free to choose any instrument, or no instrument at all, in evaluating offenders."
Giese
to the effect that previous and subsequent good character would not reduce to "fanciful" the risk of his being made subject to civil commitment.
Giese
's being subject to civil commitment. The Government adduced no evidence which convincingly showed Dr Putnam to be wrong in any of those parts of his evidence. Indeed, it is in our view noticeable that the evidence adduced by the Government tended to concentrate on the process overall and gave comparatively little attention to the likely outcome of the process in the particular circumstances of this case.
Giese
that if he were convicted, evaluated and referred to the District Attorney, there is a substantial risk that he would ultimately be made subject to civil commitment and would be detained for a long period after serving his sentence.
Giese
, submitted that the evidence of Dr Putnam and Mr Lowry established a more than fanciful risk that Mr
Giese
would not only be subject to the civil commitment process (which would in itself involve his being detained long after the completion of his prison sentence) but that he would also be committed and thereafter detained for an indeterminate period. He made the compelling point that, after the initial screening and evaluation before sending the case to the District Attorney, the process begins with the the District Attorney deciding whether or not to file a petition. Mr Watkins submitted that it would therefore be possible for the Government to preclude any question of a civil commitment by stating unequivocally that no petition would be filed in Mr
Giese
's case, even if he were to be convicted of all the offences with which he is charged and an initial evaluation made so that the case was sent to the District Attorney. Mr Watkins pointed out that the Government had not been prepared to give such an undertaking and he invited the court to draw the inference that the Government did at the very least wish to keep open the option of pursuing civil commitment. We are prepared to do so.
Giese
will be able to challenge his detention at each of those stages; and that all of the stages would have to be resolved against him before he could be made subject to civil commitment. That argument, however, only goes to show why it is not possible to predict the outcome of the process with certainty. It does not answer the point that, on the evidence adduced on behalf of Mr
Giese
, there is a real risk that every stage of the process will be resolved against Mr
Giese
and that he will therefore be detained in a secure institution for an indeterminate period.
Giese
, if returned to the USA and convicted, would be entered into the civil commitment process. The DJ was entitled to find that, once entered into the process, Mr
Giese
would inevitably be detained for a substantial period of time as the process took its course, and that he would face a real risk that he would ultimately be subject to civil commitment for an indeterminate period. The fact that the Government is not prepared to make a definitive statement that no petition for civil commitment will be filed does in our judgment give rise to an inference that there is a real risk which the Government is not willing to exclude. We accept of course that the outcome of the civil commitment process is not (in Mr Cadman's phrase) "a foregone conclusion". It was however unnecessary for Mr
Giese
to show a certainty that he will be subject to the process: what was required is evidence of a real risk. In our judgment, the DJ was entitled to find that the evidence before her established a real risk.
The second issue: was the DJ wrong to conclude that the extradition of Mr
Giese
would be incompatible with his Article 5 Convention rights for the purposes of section 87(2) of the EA?
"No one should be deprived of his liberty save in the following cases, and in accordance with a procedure prescribed by law:
…….
(e) the lawful detention of persons of unsound mind."
Giese
's Article 5 rights". In our judgment, that is the correct standard to adopt and is consistent with the law as laid down by the House of Lords in Ullah: see [9] above. The DJ also stated that if the requirements in California for civil commitment required that the individual be of "unsound mind" within the meaning of Article 5(1)(e) of the ECHR, then any detention under such an order would not amount to a breach of Article 5. We also agree with that analysis.
In California, I accept that there are checks and balances in the process and there appears to be a more onerous test than in Minnesota.[15] Those of unsound mind may well fall within the category of those liable to civil commitment, but it seems to me that the net is cast widely, and those with a mental diagnosis which falls far short of "unsound mind are likely to be committed.
In those circumstances I am obliged to follow the decision in Sullivan and conclude that civil commitment would amount to a flagrant denial of Article 5 rights if I am satisfied that MrGiese
is at "real risk" of a civil commitment order being made".
Giese
were to be extradited, the DJ ordered Mr
Giese
's discharge.
Giese
's Article 5 rights unless the procedure falls within the exception of Article 5(1)(e). His submission to us on this issue was that the DJ was wrong to conclude that the wording of the Californian legislation and the manner in which it was applied was inconsistent with the concept of a "person of unsound mind" in Article 5(1)(e), as interpreted by the ECtHR. Mr Cadman emphasised the key requirement of the WIC that the person had to be suffering from a current mental disorder and the procedural requirement that the psychological assessment be made by at least two recognised and appropriately qualified physicians. He pointed out that there are procedural safeguards at every stage of the process and that, even if a person is made subject to a civil commitment order, there is thereafter an annual review.
Giese
would be diagnosed with "pedophilic disorder", because the alleged offences were with a child under the age of 14 for a period of over 6 months. However, Dr Putnam also noted that this diagnosis would not be appropriate if the boy concerned were not pre-pubescent at the time of the alleged offences and that was improbable because it was reported that he ejaculated during the alleged offences. If the boy were not pre-pubescent, then Mr
Giese
could be diagnosed with the "more controversial diagnosis" of hebephilia, which relates to a person's sexual arousal towards adolescents. That condition is not specifically listed in DSM-5,[19] but, Dr Putnam stated, the condition may be diagnosed as an "Other Specified Paraphilic Disorder". He also noted that, in the past, both conditions had been found to be qualifying mental disorders for the purposes of WIC 6600(c).
Giese
being found to have a qualifying mental disorder. That was because the disorders of which Mr
Giese
could potentially be diagnosed were generally considered by mental health professionals to be lifelong disorders that did not remit simply with the passage of time or age.
Giese
's offences and the length of time over which they were committed, he will undergo a full evaluation".
"…evaluators therefore are given free rein to define what it [viz. volitional impairment] is or what is required for someone to have volitional impairment. Some [evaluators] are of the opinion that lengthy periods of offending when the perpetrator knows the conduct is wrong is sufficient".
"The diagnosis of recognised mental disorder is quite broad. It merely requires a condition that a person has behaviours that society doesn't like. The law doesn't require him not to be able to control. The law just requires him not to think correctly. It can include severe mental disorder but it can also be people who just make the wrong decisions. It can be an Antisocial Behaviour Disorder. That can be considered as sufficient for SVP".
On the basis of this evidence, the DJ concluded that whilst those of "unsound mind" for the purposes of Article 5(e) may well fall within the category of those liable to civil commitment, in the latter case "…the net is cast widely, and those with a mental diagnosis which falls far short of "unsound mind" are likely to be committed".
Giese
will be made subject to a civil commitment order if extradited and convicted, but also that there is a real risk that the basis for this order would be a incompatible with exception to the general rule of Article 5(1) as expressed in the concept of "lawful detention of persons of unsound mind" referred to in Article 5(1)(e).
Giese
would suffer a "flagrant denial" of his Article 5 rights, in the sense that there is a real risk that the right not to be deprived of his liberty save by lawful detention would be completely denied or nullified if extradited to California.[22] In our judgment, the conclusion of the DJ was correct. In Sullivan, Moses LJ stated, at [33], that because the criteria used in Minnesota for deciding whether a person should be subject to a civil commitment order "fell far short of the necessity of proving he is of unsound mind", then if a civil commitment order were to be made in that case "…it would be a flagrant denial" of Mr Sullivan's rights under Article 5(1) because it fell outside the provisions of the only exception relied upon, viz. Article 5(1)(e). That analysis must be correct. Article 5(1) guarantees that no one shall be deprived of his liberty, save in the exceptions that are specifically identified thereafter in sub-paragraphs (a) to (e). If there is a real risk that someone can be detained in circumstances that do not fall within those exceptions, then, it seems to us, there must be a real risk that there will be a denial of the very essence of the person's right to liberty and a real risk that he will be subject to arbitrary detention in the sense that it is not in accordance with Article 5.
Giese
would be in detention and thus wholly deprived of his liberty. Secondly, on the evidence there is a real risk that the basis on which Mr
Giese
could be found to be an SVP and thereby subject to a civil commitment order is that he has some kind of "antisocial behaviour disorder". In our view indeterminate detention on that basis would also amount to a complete denial of his Article 5(1) rights, because such a "mental disorder" cannot be said to warrant the draconian step of compulsory confinement for an indefinite period. Thirdly, the evidence was that once a person has been made the subject of a civil commitment order, which is for an indefinite period, the road to release, even a conditional one, is long and arduous. If the initial basis for the order was, in fact, a diagnosis outside the specific mental disorders given in DSM-5, then the subsequent detention would, in our view, be a "flagrant" denial of Article 5 rights. Thus, in our judgment, there is a real risk that Mr
Giese
would be denied the very essence of his right to liberty and protection from arbitrary detention that is guaranteed by Article 5.
The Government of the USA v Bowen
Conclusion and disposal
Giese
would, if extradited, be made subject to a civil commitment order. The DJ was also correct to conclude that, if he was, that would be a "flagrant denial" of his Article 5 rights. Accordingly, the DJ was correct in concluding that the extradition of Mr
Giese
would be inconsistent with his Convention rights, so that, in accordance with section 87(2) of the EA, he must be discharged.
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.
§6600(a)(1) and (2)(A); §6600(a)(3); §6600(b); §6600(c); §6600(d); §6600.1; §6601(a)(1); §6601(b); §6601(c)-(j); §6601.5; §6602(a); §6603(a); §6604.
6600. As used in this article, the following terms have the following meanings:
(a)(1) "Sexually violent predator" means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behaviour.
(2) For purposes of this subdivision any of the following shall be considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate prison sentence for an offense described in subdivision (b).
6600. (a)(3) Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behaviour.
6600. (b) "Sexually violent offense" means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262. 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.
6600. (c) "Diagnosed mental disorder" includes a congenital or acquired [mental] condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.
6600. (d) "Danger to the health and safety of others" does not require proof of a recent overt act while the offender is in custody.
6600.1. If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a "sexually violent offense" for purposes of Section 6600.
6601. (a)(1) Whenever the Secretary of the Department of Corrections and Rehabilitation determines that an individual who is in custody under the jurisdiction of the Department of Corrections and Rehabilitation, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the secretary shall, at least six months prior to that individual's scheduled date for release from prison, refer the person for evaluation in accordance with this section. However, if the inmate was received by the department with less than nine months of his or her sentence to serve, or if the inmate's release date is modified by judicial or administrative action, the secretary may refer the person for evaluation in accordance with this section at a date that is less than six months prior to the inmate's scheduled release date.
6601. (b) The person shall be screened by the Department of Corrections and Rehabilitation and the Board of Parole Hearings based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history. This screening shall be conducted in accordance with a structured screening instrument developed and updated by the State Department of State Hospitals in consultation with the Department of Corrections and Rehabilitation. If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections and Rehabilitation shall refer the person to the State Department of State Hospitals for a full evaluation of whether the person meets the criteria in Section 6600.
6601. (c) The State Department of State Hospitals shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of State Hospitals, to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by two practicing psychiatrists or physiologists, or one practicing psychiatrist and one practicing physiologist, designated by the Director of State Hospitals. If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of State Hospitals shall forward a request for a petition for commitment under Section 6602 to the county designated in subdivision (i). Copies of the evaluation report and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment.
(e) If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of State Hospitals shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).
(f) If an examination by independent professionals pursuant to subdivision (e) is conducted, a petition to request commitment under this article shall only be filed if both professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d). The professionals selected to evaluate the person pursuant to subdivision (g) shall inform the person that the purpose of their examination is not treatment but to determine if the person meets certain criteria to be involuntarily committed pursuant to this article. It is not required that the person appreciate or understand that information.
(g) Any independent professional who is designated by the Secretary of the Department of Corrections and Rehabilitation or the Director of State Hospitals for purposes of this section shall not be a state government employee, shall have at least five years of experience in the diagnosis and treatment of mental disorders, and shall include psychiatrists and licensed psychologists who have a doctoral degree in psychology. The requirements set forth in this section also shall apply to any professionals appointed by the court to evaluate the person for purposes of any other proceedings under this article.
(h) If the State Department of State Hospitals determines that the person is a sexually violent predator as defined in this article, the Director of State Hospitals shall forward a request for a petition to be filed for commitment under this article to the county designated in subdivision (i). Copies of the evaluation reports and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the recommendation, a petition for commitment shall be filed in the superior court of the county in which the person was convicted of the offense for which he or she was commited to the jurisdiction of the Department of Corrections and Rehabilitation. The petition shall be filed, and the proceedings shall be handled, by either the district attorney or the county counsel of that county. The county board of supervisors shall designate either the district attorney or the county counsel to assume responsibility for proceedings under this article.
(j) The time limits set forth in this section shall not apply during the first year that this article is operative.
6601.5. Upon filing of the petition and request for a review under this section, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behaviour upon his or her release. If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be completed pursuant to Section 6602. The probable cause hearing provided for in Section 6602 shall commence within 10 calendar days of the date of the order issued by the judge pursuant to this section.
6602. (a) A judge of the superior court shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behaviour upon his or her release. The person named in the petition shall be entitled to assistance of counsel at the probable cause hearing. Upon commencement of the probable cause hearing, the person shall remain in custody pending the completion of the probable cause hearing. If the judge determines that there is not probable cause, he or she shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Correction and Rehabilitation or other secure facility.
6603. (a) A person subject to this article shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. Any right that may exist under this section to request DNA testing on prior cases shall be made in conformity with Section 1405 of the Penal Code.
6604. The court or jury shall determine whether, beyond a reasonable doubt, the person in a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals. The facility shall be located on the grounds of an institution under the jurisdiction of the Department of Corrections and Rehabilitation.
Note 1 See per Lord Bingham of Cornhill at [24]. Lord Steyn stated that there had to be a “real risk of a flagrant violation of the very essence of the right”: see [50]. Lord Carswell accepted that the concept of a “flagrant breach or violation” might not always be easy to apply, but that it was encapsulated in the criterion that “the right in question would be completely denied or nullified in the destination country”: see [69]. [Back] Note 3 See [14]. Moses LJ referred to the ECtHR decision of Soering v United Kingdom [1989] 11 EHRR 439. [Back] Note 6 WIC §6601(a)(1). [Back] Note 7 WIC §6600(a)(1). [Back] Note 8 WIC §6600(2)(A). [Back] Note 10 WIC §6601.5 and §6602(a). [Back] Note 13 See Celinski at [24] [Back] Note 15 The State with which Sullivan was concerned. [Back] Note 16 The distinction is made by Moses LJ at [32] of Sullivan, referring to M v Germany [2010] 51 EHRR 41. [Back] Note 17 Those are the two examples given in Stanev at [145]. Another possible example may be where there is a danger of the person causing damage to property because he is a pyromaniac. [Back] Note 18 See [38] of Winterwerp. [Back] Note 19 The latest edition of the Diagnostic and Statistical Manual of Mental Disorders, produced by the American Psychiatric Association and accepted almost universally. [Back] Note 21 See Putnam para 38 and Lowry paras 15 and 30. [Back]