Government of the United States of America v Bowen (includes supplementary judgment) (Rev 1)

Extradition may be resisted under article 5 of the European Convention on Human Rights only where evidence demonstrates a real risk that the receiving state will completely deny or nullify the right to liberty. The inquiry focuses on arbitrary detention and effective judicial control. The receiving state’s law need not reproduce article 5 precisely.

Evidence of future detention must be assessed by reference to the requested person’s characteristics and what is likely to happen to that person. Expert opinion has no value unless the witness’s relevant expertise is established.

A final extradition appeal may be reopened only exceptionally to avoid real injustice, where no effective alternative remedy exists. Ordinarily, a supervening development is required; the jurisdiction does not permit an unsuccessful party merely to reformulate arguments or adduce previously available material.

The United States appealed against a District Judge’s decision discharging a requested person whose extradition was sought for trial on alleged sexual offences in New York. The judge had found a real risk that, after any sentence, he would undergo civil commitment under article 10 of New York’s Mental Hygiene Law despite not being of unsound mind. She therefore concluded that extradition risked a flagrant denial of article 5 of the European Convention on Human Rights.

The Divisional Court considered whether civil commitment was a real risk and whether the New York regime would nullify the essence of the right to liberty. It also determined an application by the United States to adduce fresh evidence.

After allowing the appeal, the court refused certification of a point of law of general public importance. In its supplementary judgment it also refused permission to reopen the appeal under rule 17.27 of the Criminal Procedure Rules.

1. Appeal allowed. The requested person’s circumstances did not come close to satisfying the stringent test in R (Ullah) v Special Adjudicator [2004] 2 AC 323. In an extradition case founded on article 5, the question is whether evidence establishes a real risk that the receiving country will completely deny or nullify the right to liberty. Particular attention is required to the risks of arbitrary detention and the absence of effective judicial control. The receiving state’s law need not mirror the permitted categories of detention in article 5.

2. The New York civil-commitment regime was materially narrower than the Minnesota regime considered in R (Sullivan) v Government of the USA [2012] EWHC 1689 (Admin). Article 10 required a mental abnormality, a strong predisposition to sexual offending, serious inability to control behaviour, dangerousness and a need for secure treatment. It also supplied professional assessment, a judicial probable-cause filter, legal representation, a jury trial, a demanding burden of proof, unanimity, annual review and a right of appeal. Detention after that process would be far from arbitrary.

3. The regime satisfied the principles in Winterwerp v Netherlands (1979) 2 EHRR 387. Civil commitment required a genuine mental abnormality of a kind and degree warranting confinement. Even if the regime would not have been fully compatible with article 5 had it operated in a Convention state, the decisive extradition question remained whether it would deny the right’s very essence. It plainly would not.

4. No real risk of civil commitment was established. Such a risk required consideration of the requested person’s characteristics and a focused assessment of what was likely to happen to him. The District Judge had impermissibly relied on a lawyer who lacked expertise in New York law, its procedures and psychiatry. Expertise must be established before opinion evidence can possess evidential value.

5. The United States was refused permission to adduce fresh evidence. The material could have been obtained for the extradition hearing, and a deliberate decision had been made to proceed without it. A litigant cannot conduct a case in one way and, after failure, adopt a different evidential approach on appeal.

6. Supplementary judgment. Certification was refused. Permission to reopen the appeal under rule 17.27 of the Criminal Procedure Rules was also refused. Reopening required real injustice, exceptional circumstances and the absence of an effective alternative remedy. It ordinarily required a supervening development and could not be used to repeat or augment arguments with material previously available. The application fell far short of that test.

1. High Court (Administrative Court): The Government’s appeal was allowed. The court later refused certification of a point of law of general public importance and refused permission to reopen its decision under rule 17.27 of the Criminal Procedure Rules.

2. Westminster Magistrates’ Court: On 19 January 2015 District Judge Rose discharged the requested person because she found that extradition created a real risk of a flagrant denial of article 5 of the European Convention on Human Rights. She rejected the abuse-of-process and articles 6 and 8 challenges, and held that specialty was for the Secretary of State.