Bowen v Secretary of State for Home Department and the Government of the United States of America

For specialty purposes, a civil commitment process directed to preventing future harm and treating mental abnormality is a civil, not criminal, process. It does not ordinarily amount to dealing with an extradited person for an offence, even if detention may result. The statutory classification is not determined solely by the requesting state’s description, but must accommodate reasonable foreign legal practices.

After the Secretary of State has issued an extradition certificate, human-rights questions are ordinarily determined by the designated judge and the High Court on appeal from that decision. A later human-rights appeal is available only where necessary to avoid real injustice in exceptional circumstances. A challenge based on article 5 ECHR also requires a real risk of a flagrant breach, a high threshold.

The appellant faced seven sexual-offence charges in New York. The District Judge discharged him under section 87(2) of the Extradition Act 2003, finding a real risk of civil commitment which would flagrantly breach article 5 ECHR.

A differently constituted Divisional Court allowed the United States’ appeal in Government of the United States of America v Bowen [2015] EWHC 1873 (Admin), holding that civil commitment was not inconsistent with article 5 and that there was no real risk of such commitment. Permission to reopen was later refused.

The appellant challenged the Secretary of State’s specialty decision and renewed his article 5 challenge, also seeking to adduce fresh expert evidence. The central issues were the meaning of specialty protection and whether the statutory scheme permitted a further human-rights challenge.

1. Fresh evidence. The court refused permission to rely on the late evidence of Dr Plaud and Dr Hamilton. The evidence could and should have been deployed earlier, was not shown to reflect a material subsequent development, and would not justify reopening conclusions reached on the same evidence. The approach in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin) required consideration of why the evidence was late, the explanation offered, its role, its credibility and its potential effect on the outcome.
2. Specialty. The relevant question under section 95(3) of the Extradition Act 2003 was whether the appellant might be dealt with in the United States for an offence other than an extradited offence. The court was required to form its own view, while adopting a purposive and flexible approach capable of accommodating reasonable foreign legal systems.
3. The New York civil commitment process was civil in character. It was directed to protection from future harm and treatment of mental abnormality, rather than condemnation or punishment for past offending. The reasoning in Kansas v Hendricks 521 US 346 (1997), R (McCann) v Crown Court at Manchester [2002] UKHL 39 and Pooley v Whetham (1880) 15 Ch D 435 supported that conclusion. Detention pending determination of the civil process was likewise not prohibited by specialty.
4. The specialty challenge therefore failed. The statutory amendments made by the Crime and Courts Act 2013 and the Extradition Appeals (England and Wales and Northern Ireland) Order 2013 did not create an unrestricted first-instance human-rights appeal against the Secretary of State’s order. Human-rights issues were ordinarily to be determined by the District Judge and the High Court on appeal from that decision. A later appeal required the statutory conditions of avoiding real injustice in exceptional circumstances.
5. The article 5 challenge was refused. The arguments had already been rejected in Bowen (No 1) and Bowen (No 2), no new admissible material was available, and no exceptional circumstances were shown. In any event, the high threshold of a real risk of a flagrant breach was not met.
6. The order for extradition was upheld.

• District Judge: District Judge Rose discharged the appellant under section 87(2) of the Extradition Act 2003 on article 5 grounds.
• High Court (Divisional Court): A differently constituted court allowed the United States’ appeal in Government of the United States of America v Bowen [2015] EWHC 1873 (Admin).
• High Court (Divisional Court): Permission to reopen was refused in Government of the United States of America v Bowen (Bowen No 2).
• High Court (Administrative Court): The present court dismissed the challenges and upheld the extradition order.