The United States of America v Giese

An application to reopen an extradition appeal should ordinarily be considered only after any outstanding application for certification and permission to appeal has been determined, because that application may provide an alternative effective remedy.

Certification requires a point of law of general public importance. A decision based on the evidence and circumstances of an individual extradition case will not ordinarily satisfy that requirement. A provisional indication by the court does not create an obligation to negotiate an assurance or permit a party to have a second opportunity to revise its case. Any difficulty in taking instructions must be raised promptly by application to the court.

The United States appealed against the refusal of extradition on the ground that extradition would be inconsistent with the respondent’s Convention rights. The court had upheld the District Judge’s decision and subsequently dismissed the appeal after rejecting an assurance concerning possible civil commitment.

The United States applied for certification and permission to appeal to the Supreme Court under rule 50.25 of the Criminal Procedure Rules 2015. Alternatively, it sought to reopen the appeal under rule 50.27, arguing that it had not been given a proper opportunity to amend its assurance after a provisional indication by the court.

1. Order of applications. The application for certification and permission to appeal was considered first. The court agreed with the observation in USA v Bowen [2015] EWHC 1873 (Admin) that it was very difficult to envisage reopening an appeal while an application for certification remained outstanding.
2. Certification. Neither proposed question raised a point of law of general public importance. The finding that there was a real risk of a flagrant breach of article 5(1) was fact-specific and based on the evidence in this case. It was not a general ruling on civil commitment in the United States or California. The application therefore failed in limine under Extradition Act 2003, section 32(4)(a).
3. Provisional indication and assurance. The court’s email of 29 October 2015 was provisional. It did not justify any expectation that the court would negotiate the terms of an assurance or permit the Government to reformulate its case. The parties were responsible for making their submissions. If the draft judgment or the timing of instructions created a genuine difficulty, the proper course was an immediate application for permission to take instructions or for an extension of time.
4. Reopening. Rule 50.27 required exceptional circumstances, real injustice and the absence of an alternative effective remedy. The Government had been given an opportunity to offer an assurance and had offered the terms it considered appropriate. Its application was an attempt to have a second opportunity to put forward a revised assurance, which was not a proper use of the rule. The application to reopen was refused.

Both applications failed and were refused.

• High Court (Administrative Court): The court upheld the District Judge’s conclusion that extradition would be inconsistent with the respondent’s Convention rights and subsequently dismissed the appeal.
• High Court (Administrative Court): The present judgment refused certification and permission to appeal to the Supreme Court and refused the application to reopen the appeal.