Giese v The Government of the United States of America

The abuse-of-process jurisdiction in extradition is residual and exceptional. A renewed request does not become abusive merely because an earlier request failed. The court must make a broad, merits-based assessment of all circumstances, including the statutory scheme, public interest and any unfair prejudice.

An assurance may neutralise a real risk of treatment contrary to Convention rights. Its practical and legal effect must be assessed in the context of the requesting state's reliability. A court will ordinarily proceed on the basis that a rule-of-law state will act in good faith and honour its undertaking. For violence by non-state actors, the issue is both the individual's objective risk and whether the state provides reasonable protection.

The United States sought the appellant's extradition to California to stand trial for numerous alleged sexual offences. An earlier extradition request had failed because assurances concerning possible post-sentence civil commitment were found inadequate in Giese (No.1), [2015] EWHC 2733 (Admin), and Giese (No.2), [2015] EWHC 3658 (Admin); an application to reopen those proceedings was refused in Giese (No.3), [2016] EWHC 365 (Admin).

Following fresh and more comprehensive assurances, the United States made a second request. The district judge sent the case to the Secretary of State. The appellant appealed, contending that the fresh proceedings were abusive, that the assurances did not remove an article 5 risk, and that he faced an article 3 risk of violence in Californian prisons.

1. Appeal dismissed. The district judge was entitled to reject each challenge to the renewed extradition request.

2. The implied abuse jurisdiction exists outside the Extradition Act 2003, but is residual and rarely exercised. There is no res judicata or issue estoppel in extradition proceedings. The Henderson principle cannot be applied mechanistically. Where a first request has failed, the court must make a broad, merits-based judgment on all the circumstances, including the public interest in complying with extradition obligations and bringing accused persons to trial.

   The Government's earlier inadequate assurance and unsuccessful attempt to reopen the first appeal did not make the fresh request abusive. The new assurances addressed the Convention risk, there was no bad faith or manipulation of the court's process, and the appellant's status as a fugitive and the seriousness of the allegations reinforced the public interest in a trial.

3. The further assurances adequately mitigated the risk of civil commitment and thus any flagrant denial of article 5 rights. Applying the approach in Othman v UK, (2012) EHRR 1, the court assessed their practical and legal effect. The United States and California were rule-of-law authorities whose solemn assurance was to be taken in good faith. Speculation about a future change of office-holder, administrative arrangements, other offences, or future legal change did not establish a real risk that the undertaking would be circumvented.

4. For article 3, the correct inquiry was the appellant's objective risk of attack and the reasonable protection available from the state. The evidence did not show that he faced a real risk greater than that faced by other sex offenders, nor that Californian authorities would fail to provide reasonable protection. Article 3 does not require an absolute guarantee of safety. Sensitive Needs Yards and other protective arrangements were sufficient on the evidence.

• High Court (Administrative Court). The court dismissed the appeal: [2018] EWHC 1480 (Admin).
• Westminster Magistrates' Court. On 14 August 2017, District Judge Margot Coleman sent the appellant's case to the Secretary of State for a decision on extradition.