The United States of America v Giese (Rev 1)

On an appeal under section 106 of the Extradition Act 2003, the High Court may consider a new assurance only if the statutory conditions for allowing an appeal are met. An assurance about future conduct is not necessarily “evidence” merely because it is contained in a letter. The court must assess whether the assurance is precise, particular and binding, having regard to the requesting state’s legal system, the authority of the person giving it, the role of local officials, the statutory process, and the possibility of changed circumstances. An assurance based on factual assumptions contrary to the court’s findings, or which leaves its future binding effect uncertain, may fail to neutralise a real risk of a flagrant breach of Convention rights.

The United States appealed against the refusal of District Judge Margot Coleman to order the extradition of Roger Alan Giese to California to face 19 sexual assault charges. The appeal concerned the real risk that, following conviction and imprisonment, Mr Giese would be subjected to California’s civil commitment procedure, leading to a flagrant breach of his rights under Article 5(1) of the European Convention on Human Rights.

In its earlier judgment, cited as [2015] EWHC 2733 (Admin), the court upheld the district judge’s conclusions but invited the United States to provide an assurance that civil commitment would not be pursued. The United States supplied an assurance letter. The central issues were whether the letter could be considered under section 106 of the Extradition Act 2003 and, if so, whether it sufficiently removed the identified risk.

1. The appeal was dismissed. The assurance letter was insufficient to neutralise the real risk of a flagrant breach of Article 5 rights arising from California’s civil commitment procedure.
2. Section 106(3) of the Extradition Act 2003 restricted the court’s power to allow the appeal to cases satisfying section 106(4) or section 106(5). The possible assurance had been discussed at the extradition hearing, but it had not been the subject of concluded argument or a decision. It was therefore an issue raised for determination on appeal for the first time within section 106(5)(a).
3. The letter was not “evidence” within section 106(5)(a). It did not prove a past fact or express expert opinion. It recorded the future intentions of United States and Californian authorities. The fact that the assurance had been made was not disputed; the question was whether it was sufficient.
4. In assessing an assurance, the court had to consider its precision, particularity and binding force in context. Relevant matters included the requesting state’s democratic and legal character, its history of giving assurances, the legal status of the conduct addressed, the authority of the person giving the assurance, the relationship between federal and state authorities, the statutory discretion of the district attorney, and the possibility that the relevant facts or law might change.
5. The assurance was materially undermined by its statement that there was little or no likelihood of referral, because that factual premise contradicted the findings already made by the district judge and this court. It also failed to address the assessment and evaluation stages preceding the district attorney’s decision and suggested that unforeseen circumstances might remove its binding effect. The assurance could not therefore be accepted, and the appeal was dismissed.

• High Court (Administrative Court): The Government’s appeal against the district judge’s refusal of extradition was dismissed. The court had previously upheld the refusal in [2015] EWHC 2733 (Admin), then rejected the subsequent assurance letter.
• District Judge (Magistrates’ Court): Refused the extradition request and ordered Mr Giese’s discharge. No citation is stated in the judgment.