Sullivan v The Government of the United States of America & Anor

Extradition must be refused where the requested person establishes strong grounds for believing that return would expose him to a real risk of a flagrant denial of a Convention right. A risk need not approach certainty. The Minnesota civil-commitment scheme, which permitted indefinite detention on proof of sexual dysfunction without proof of mental illness, mental incompetence or inability to control sexual impulses, fell outside Art 5.1(e). Extradition in circumstances creating a real risk of detention under that scheme would therefore constitute a flagrant denial of Art 5.1 rights.

The United States sought the extradition of Shawn Eugene Sullivan to face prosecution in Minnesota for alleged sexual offences against three children. Senior District Judge Riddle sent the case to the Secretary of State, who ordered extradition on 10 February 2011. The claimant appealed under sections 103 and 108 of the Extradition Act 2003.

The claimant argued that extradition created a real risk of indefinite civil commitment in Minnesota and therefore breached his rights under Arts 5 and 6 of the Convention, as well as the statutory rule of speciality. The central issues were whether there was a real risk of civil commitment and, if so, whether that detention would amount to a flagrant denial of Art 5.1.

1. Risk of civil commitment. The court accepted that the claimant faced a real, more than fanciful risk of being made subject to Minnesota’s civil-commitment process. The court attached significant weight to the clear evidence describing the statutory scheme and to the United States’ change from an earlier assertion that the claimant did not meet the criteria to the later position that it was too early to say. The absence of an undertaking further supported the risk assessment.
2. Article 5. The governing test, derived from R (Ullah) v Special Adjudicator [2004] 2 AC 323; [2004] UKHL 26 and Soering v United Kingdom [1989] 11 E.H.R.R. 439, was whether there were strong grounds for concluding that return would expose the claimant to a real risk of a flagrant denial of the relevant Convention right. “Flagrant” described the gravity of the denial, not the degree of risk.
3. The Minnesota scheme did not require proof that the person was of unsound mind, mentally ill or mentally incompetent, or unable to control sexual impulses. A finding of sexual dysfunction was sufficient. Applying Winterwerp v Netherlands [1979-1980] 2 E.H.R.R. 387 and M v Germany [2010] 51 E.H.R.R. 41, the court held that detention under the scheme would fall outside Art 5.1(e) and would amount to a flagrant denial of the claimant’s rights under Art 5.1.
4. The court did not decide the Art 6 or speciality issues. It considered that the claimant might have difficulty establishing a flagrant denial of justice under Othman v UK [2012] ECHR 56, and that civil commitment might not constitute detention, trial or punishment for a criminal offence under section 95 of the Extradition Act 2003, but no concluded view was reached. Further argument on disposal was directed, including the possible effect of an assurance from the United States.

• High Court (Administrative Court): the claimant appealed against the District Judge’s extradition decision under section 103 of the Extradition Act 2003 and against the Secretary of State’s order under section 108. The court concluded that extradition would expose him to a real risk of a flagrant denial of Art 5.1 rights. Disposal was reserved for further argument.