Mitchell v Government of the United States of America & Anor

Extradition is barred on Convention grounds only where the proposed removal creates a real risk of a flagrant breach of the relevant right. A requesting state’s carefully scrutinised communication may establish that deportation, rather than civil commitment, will follow imprisonment, removing that risk. Civil commitment directed to preventing future harm is civil, not criminal, for the purposes of the specialty principle. A previous Divisional Court decision should be followed unless clearly wrong. A speculative or fanciful risk of additional state prosecution does not make extradition disproportionate. Documentary evidence from a requesting state may be admitted under Extradition Act 2003 s.202, with its weight assessed by the District Judge.

The appellant challenged the Westminster Magistrates’ Court decision sending the United States extradition request to the Secretary of State and the Secretary of State’s subsequent order for extradition. He was wanted in the United States on one federal charge of distributing child pornography.

He argued that imprisonment might be followed by indeterminate civil commitment under the Adam Walsh Act, contrary to ECHR Article 5 and the specialty requirements in Extradition Act 2003 s.95. He also argued that possible federal and state prosecutions would make extradition disproportionate under Article 8. Permission to appeal was granted by Ouseley J. The central issues were whether there was a real risk of civil commitment or dual prosecution and whether the District Judge had erred in assessing the evidence.

1. Appeal dismissed. The appeals against both the District Judge’s decision and the Secretary of State’s extradition order were dismissed.

2. An extradition will infringe Article 5 on the asserted basis only if there is a real risk of a flagrant breach in the requesting state. The court did not need finally to determine whether civil commitment under the Adam Walsh Act would infringe Article 5 because there was no real risk that it would occur.

3. The United States communication, read fairly and in context, entitled the District Judge to conclude that the appellant would be deported to the United Kingdom after serving any sentence. The absence of a formal assurance did not prevent that conclusion. Castle v Government of the USA [2013] EWHC 1048 (Admin) supported the practical conclusion that deportation was the obvious protective course for a British citizen where no obstacle to removal was identified.

4. For specialty purposes, civil commitment is a civil process where its purpose is protection against future harm rather than condemnation and punishment for past offending. The court followed Bowen v SSHD (No.3) [2016] EWHC 1400 (Admin). Although that earlier Divisional Court decision was not binding, it should be followed unless clearly wrong, applying R v Manchester Coroner ex parte Tal [1985] QB 67.

5. The court left open whether s.95 would preclude extradition where specialty arrangements contained a lacuna but there was no real risk of the facts giving rise to it.

6. The alleged risk of federal and state prosecutions was properly characterised as fanciful and could not make extradition disproportionate under Article 8. Under Extradition Act 2003 s.202, the District Judge had broad latitude to admit documentary evidence from the requesting state and was entitled to assess its weight.

High Court (Administrative Court): Appeals from the Westminster Magistrates’ Court decision of District Judge Bayne dated 25 February 2016 and the Secretary of State’s extradition decision dated 19 April 2016 were both dismissed. Permission to appeal was granted by Ouseley J on 11 August 2016.