TOBIAS BOWEN v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) UNITED STATES OF AMERICA (2016)

The appellant (B) appealed against the respondent secretary of state’s decision to order his extradition to the US. He sought permission to appeal on the ground that his extradition would breach ECHR art.5.

 

The US government had requested B’s extradition to New York in respect of allegations of sexual offences. New York law provided for “civil commitment” of sexual offenders following completion of their sentences if they were dangerous and had a mental abnormality predisposing them to offend again. B resisted extradition. The Divisional Court held that the possibility of civil commitment would not be a denial of his ECHR art.5 rights so was not a bar to extradition. The matter was remitted to the secretary of state, who ordered B’s extradition.

 

B argued that

 

(1) the civil commitment process would mean that he would be “dealt with”, in the terms of the Extradition Act 2003 s.95(3) for an offence for which he had not been extradited, thus breaching the speciality principle, in that the process would involve consideration of complaints which had been alleged but had not been proved; the practical effect of his detention under the civil commitment legislation meant that the process should be regarded as criminal proceedings under ECHR art.6; and even if an order for civil commitment satisfied speciality, an order pending the determination of the civil commitment application would not;

 

(2) there was a risk of breach of ECHR art.5 in that he could be detained by the application of very broad and imprecise criteria.

 

HELD: (1) There was no domestic definition of the phrase “may be dealt with … for an offence” in s.95(3), probably because the phrase had to be applied to different forensic processes in different jurisdictions. One way in which English courts approached the question was to consider whether the court was concerned with a criminal or civil matter. The US courts regarded civil commitment as a civil proceeding, but that was not determinative. ECHR art.6 was concerned with procedural safeguards for those facing criminal charges, and did not affect the domestic classification of proceedings as to whether they were criminal or civil, Crown Prosecution Service v Tweddell [2001] EWHC Admin 188, [2002] 1 F.L.R. 400 applied. The civil commitment process was to be treated as a civil process, not a criminal process. It was designed for the protection from future harm rather than the punishment of past offending (see paras 36-37, 47-48 of judgment). An order for detention pending the determination of the civil commitment application would not offend the speciality principle: since post-extradition pre-trial detention did not offend the principle, it was difficult to see why detention for a permitted purpose should do so (para.49).

 

(2) Following the amendments to s.70 and s.108 of the 2003 Act made by the Crime and Courts Act 2013 Sch.20, the secretary of state could not, at any time after issuing a certificate under s.70, consider whether extradition would be compatible with ECHR rights, and under s.108, the High Court’s powers were limited in a “Section 108 human rights appeal” to allowing or dismissing the appeal. The effect of the statutory scheme was that human rights questions were to be considered by the designated district judge and by the High Court on appeal from that decision and, exceptionally, to avoid real injustice, after the ordinary process of challenging a decision to send the case to the secretary of state for her to make an order and she had done so had expired. The circumstances in which the exceptional jurisdiction should be entertained were as analysed in McIntyre v United States [2014] EWHC 1886 (Admin), [2015] 1 W.L.R. 507 followed (paras 61-64). As the only basis for a challenge on human rights grounds after the secretary of state’s decision was a need to avoid real injustice in exceptional circumstances, B faced several difficulties. Substantially the same arguments on art.5 had been advanced in the previous hearings and there was no new material on which B could rely which could not have been before the court in those hearings. No exceptional circumstances had been relied on. Consequently, B had been refused permission to bring the challenge under art.5. Although US v Giese [2015] EWHC 2733 (Admin), [2016] A.C.D. 4 had found that the prospect of a civil commitment process in Minnesota and California constituted a bar to extradition on art.5 grounds, that case found a distinction between the operation of the civil commitment legislation in those states and New York, Giese applied. The test was whether there would be a flagrant breach of art.5; that was a high threshold. Permission was given to bring the art.5 challenge, but the appeal was dismissed (paras 67-76).

 

Appeal dismissed

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