The Government of the United States of America v Giese

In extradition proceedings, the court must assess whether there is a real risk that the requested person will undergo the impugned detention process and whether that process would result in a flagrant denial of the Convention right to liberty. A multi-stage procedure does not make the risk speculative where the evidence shows a real possibility that each stage will be resolved adversely. For Article 5(1)(e) of the ECHR, “unsound mind” requires a serious mental disorder established by objective medical expertise, warranting compulsory confinement and continuing to justify detention. Procedural safeguards do not cure detention falling outside that exception. A broad statutory concept of diagnosed mental disorder, as applied in practice, may be incompatible with Article 5(1)(e). Where extradition is sought for trial and the risk arises only after conviction, the requesting state should have an opportunity to provide an assurance excluding the impugned detention.

The Government of the United States appealed under section 105 of the Extradition Act 2003 against District Judge Coleman’s refusal to order the extradition of Roger Alan Giese. The request concerned 19 Californian sexual-offence charges relating to alleged offending against a boy under 14.

The District Judge rejected an Article 3 prison-conditions objection but accepted that there was a real risk that, if convicted, Mr Giese would be subjected to California’s sexually violent predator civil-commitment process. She concluded that detention under that process would create a real risk of a flagrant denial of Article 5(1) rights. The appeal concerned whether those conclusions were wrong and whether extradition was barred by section 87 of the Act.

1. Appeal and standard of review. The court, in a joint judgment, held that the District Judge’s findings could be challenged only if shown to be wrong. The appellate court must have a very high respect for findings of fact and respect for the evaluation of expert evidence, particularly where oral evidence and cross-examination were involved. Celinski v Poland [2015] EWHC 1274 (Admin) was applied.
2. Real risk of civil commitment. The relevant question was not whether commitment was certain, but whether the evidence established a real risk. The Californian process contained several stages and safeguards, but the accepted expert evidence showed a substantial risk that a person convicted of the charged offences would be referred for evaluation, detained while the process continued, and ultimately committed for an indeterminate period. The Government’s refusal to give an assurance that no petition would be filed supported an inference that the risk could not be excluded. The first ground therefore failed.
3. Article 5(1)(e). The court accepted the principles derived from Winterwerp v The Netherlands (1979) 2 EHRR 387, Varbanov v Bulgaria, and Stanev v Bulgaria. “Unsound mind” is a developing concept, but detention requires a serious mental disorder established by objective medical expertise, of a kind or degree warranting compulsory confinement, with continued detention dependent on the disorder’s continuance. The exception must receive a narrow interpretation.
4. The California statutory definition of “diagnosed mental disorder”, as interpreted and applied in practice, was broad and imprecise. The evidence indicated that evaluators had wide latitude and that diagnoses potentially extending to antisocial behaviour disorder or other conditions falling substantially short of “unsound mind” could support commitment. The definition was therefore incompatible with Article 5(1)(e). Procedural safeguards addressed whether detention was prescribed by law, but could not make detention lawful if the detainee was not of unsound mind.
5. Flagrant denial and disposal. Applying R (Ullah) v Special Adjudicator [2004] 2 AC 323 and Sullivan v Government of USA [2012] EWHC 1680 (Admin), the court held that detention outside the Article 5(1) exceptions would risk denial of the very essence of the right to liberty. The lengthy pre-trial commitment process, the risk of indeterminate detention on an insufficient mental-health basis, and the arduous route to release made the risk flagrant. The District Judge was correct under section 87(2) of the Extradition Act 2003. Because commitment would arise only after conviction, the Government was given 14 days to state whether it would provide a satisfactory assurance that no civil-commitment order would be sought. Without such an assurance, the appeal would be dismissed and Mr Giese discharged.
6. The court distinguished The Government of the USA v Bowen [2015] EWHC 1873 (Admin) on the evidence. In that case the evidence did not establish a real risk of commitment and the New York system was held Strasbourg-compatible; the evidence concerning California’s operation was materially different.

• High Court (Administrative Court): appeal under section 105 of the Extradition Act 2003 from the District Judge’s order of 21 April 2015 refusing extradition. The court upheld the substance of the District Judge’s Article 5 findings and allowed the requesting state 14 days to provide an assurance excluding civil commitment.
• District Judge (Magistrates’ Courts): extradition refused. The Article 3 objection failed, but the Article 5(1) civil-commitment objection succeeded under section 87.