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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bowen v Secretary of State for Home Department and the Government of the United States of America [2016] EWHC 1400 (Admin) (17 June 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1400.html Cite as: [2016] EWHC 1400 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/06/2016

Lord Justice Simon:

1. This is the Judgment of the Court to which both members have contributed.

Introduction

2. The Appellant faces 7 charges of sexual offences on an indictment filed on 14 September 2010 before a Grand Jury of the County Court of Onondaga, New York. He was arrested and interviewed by police in the United States on 19 March 2010, at a time when he was living in New York State. He was granted bail, subject to a bond of $10,000, and was released from custody on 23 March 2010. He failed to appear for a hearing on 20 September 2010 and a bench warrant was issued for his arrest. It appears that he left the United States for Liberia. He now lives in this country.
3. A request for his extradition was issued on behalf of the 2nd Respondent ('the US Government') on 17 April 2014. The USA is a Category 2 territory for the purposes of the Extradition Act 2003 ('the 2003 Act'), and Part 2 of the 2003 Act applies to the extradition proceedings.
4. On 17 April 2014 the Home Office issued a certificate pursuant to section 70 of the 2003 Act; on 18 April an arrest warrant was issued by Westminster Magistrates' Court and he was arrested on the following day.
5. Among other arguments raised before the Magistrate, District Judge Rose, the Appellant submitted that, if he were convicted, it was likely that a sentence of imprisonment would be passed and New York State law provided for 'civil commitment' of sexual offenders following completion of their sentences if they were dangerous and suffering from a mental abnormality which predisposed them to repeat sexual offending. The application was heard on 17 and 18 December 2014, and District Judge Rose gave her written decision on 19 January 2015. She rejected some of the Appellant's challenges to extradition, decided that the issue of specialty was a matter for the 1st Respondent ('the Secretary of State'); but concluded that there was a real risk that the Appellant would be made the subject of a civil commitment order and that his detention might be ordered even if he were not of 'unsound mind'. This, she determined, would constitute a flagrant denial of his rights under article 5 ECHR. Accordingly, she ordered his discharge under s.87(2) of the Extradition Act 2003.
6. The US Government appealed this decision under section 105 of the 2003 Act and, on 30 June 2015, this Court differently constituted (Burnett LJ and Thirlwall J) allowed the appeal. The Court identified two questions which fell to be decided. The first was whether there was a real risk that the Appellant would be detained following the completion of any sentence if convicted of any sexual offences? The second was whether that detention would amount to a flagrant denial or nullification of the rights guaranteed by article 5? The Court found that a civil commitment order would not be inconsistent with the Appellant's article 5 rights and that there was, in any event, no real risk of civil commitment, see [44] of the judgment in Government of the United States of America v. Bowen [2015] EWHC 1873 (Admin) ('Bowen (No.1)').
7. Following the handing down of the judgment in Bowen No.1, the Appellant sought to reopen the appeal under what was then Criminal Procedure Rule 17.27. On 11 September 2015 the same constitution of the Divisional Court refused permission to reopen the appeal, see Government of the United States of America v. Bowen, with the same neutral citation number ('Bowen (No.2)'). At [4] the Court said this:

… the submission advanced, which runs to 105 paragraphs, refers to materials not relied upon by [Mr Bowen] in resisting the appeal, including evidence which was available to him but which he did not seek to adduce. It repeats arguments advanced in the appeal, some in an augmented form. We say nothing about whether the new evidence could properly have been admitted on the Fenyvesi principles: [2009] EWHC 231 (Admin). We have considered the materials but are unpersuaded that even were they before us the result would have been different. We do not accept that there is any demonstrated injustice. That said, Rule 17.27 is not designed to enable an unsuccessful party in extradition proceedings immediately to regroup after losing the appeal and to return with further developed submissions.

8. The reference to 'evidence which was available to him but which he did not seek to adduce' was a reference to, among other matters, the evidence of Dr Joseph Plaud, to which we will come later.
9. On 16 September 2015, the Divisional Court remitted the case to the District Judge under s.106 of the 2003 Act, and the Appellant's case was then sent to the Secretary of State for a decision (under s.87(3)) whether or not to extradite him.
10. By s.93 of the 2003 Act, the Secretary of State is bound to decide whether extradition is prohibited by particular sections of the 2003 Act. These prohibitions include specialty protection, see s.93(2)(b) and s.95 which, stated shortly, is a principle that an extradited person shall not be tried or punished for any offence other than the offence or offences for which he had been extradited.
11. On 13 October, the Appellant lodged written representations addressed to the Secretary of State. These representations covered both specialty (which was a matter to be considered by the Secretary of State) and article 5 (which was not). The paragraphs dealing with article 5, sought to rely on the evidence of Mr. Brenner (which had already been rejected by the Divisional Court in Bowen (No.1)), referred (in §16) to the evidence of Dr Plaud (although the report itself was not provided); and repeated submissions which had already been rejected by the Divisional Court.
12. By a letter dated 4 November 2015, the Appellant's solicitors were notified that the Secretary of State had considered the submissions in relation to specialty and had concluded that the extradition was not prohibited by s.95 of the 2003 Act. The letter referred to the UK-USA Extradition Treaty and to authorities in which the Court found that there was nothing to indicate that the specialty doctrine was not applied in the USA or that the arrangements with the USA required by s.95 were not in place. In these circumstances the Secretary of State ordered the appellant's extradition.
13. So far as the present hearing is concerned, there is no issue that the Appellant is entitled to challenge the specialty decision under the provisions of s.108 of the 2003 Act, permission to do so having been granted by Ouseley J on 13 January 2016. However, there is a closely contested issue as to whether the Appellant is entitled to raise a challenge in relation to article 5. Ouseley J refused permission on the basis that the issue had been previously determined by the Divisional Court on two occasions, Bowen (No.1) and Bowen (No.2), and a third attempt to litigate the same point amounted to an abuse. The application for permission to appeal on this ground is renewed; and it will be necessary to consider later in this judgment whether there is a further, procedural bar to an appeal on article 5 grounds.

New evidence

14. As is clear from the above, there have been problems with deployment of the Appellant's evidence. The District Judge had received evidence about the operation of civil commitment orders in the United States; and, as noted above, this included evidence from, Mr Brenner, an American lawyer with experience in the operation of civil commitment orders. It also included statistical material from each side in relation to the operation of such orders.
15. When the US Government appealed the District Judge's decision, it indicated an intention to rely on evidence in the form of a letter from Mary D. Rodriguez of the US Department of Justice, dated 27 March 2014, in answer to the evidence of Mr Brenner. In the event the Divisional Court in Bowen (No.1) refused to admit the evidence of Ms Rodriguez and did not take into account the evidence of Dr Plaud in response (see [11]). The Court also decided that the evidence of Mr Brenner was an insufficient basis for the District Judge's conclusions, doubting that he was qualified to give expert evidence on the law and practice of civil commitment in New York State (see [39]).
16. As already noted, the Divisional Court in Bowen (No.2) did consider Dr Plaud's evidence and concluded that it made no difference to its conclusion. In our view it would require exceptional circumstances before one constitution of the Divisional Court would accept an invitation to disregard the conclusions of another constitution in relation to the same evidence.
17. Mr Southey QC submitted that Dr Plaud's evidence was available to the Secretary of State and she was bound to take it into account. We reject that submission. First, the report itself was not included in the material sent to the Secretary of State; and in the present circumstances we do not consider that it is arguable that the Secretary of State fell into legal error by not considering a report that the Appellant's advisors had decided not to include with the representations. Secondly, the primary relevance of the evidence was in support of the submission on article 5, which was not a matter for the Secretary of State. Thirdly, the Court in Bowen (No.2) had concluded that the evidence made no difference to the article 5 argument.
18. On this appeal the Appellant applied to rely on the opinion evidence of both Dr Plaud and a further, and entirely new, opinion of Dr Melissa Hamilton. Dr Hamilton's report was sent to the Respondents on 7 April 2016, some 3 weeks before the hearing. It runs to 76 paragraphs of closely argued material about the operation of the civil commitment process in the State of New York.
19. Since it is late evidence on a point for which permission has not been given, its admission falls to be determined by reference to the approach set out in Szombathely City Court and others v. Fenyvesi and another [2009] EWHC 231 (Admin) at [6] to which reference has already been made. As the Court in Bowen (No.1) observed at [9] the approach can be summarised by a series of questions: (i) why the evidence was not adduced at first instance; (ii) whether there is a good reason or excuse for not doing so; (iii) what part the fresh evidence would play if it were adduced; and, in particular, (iv) whether the fresh evidence is credible, and (v) might lead to a different outcome of the case?
20. In the present case such answers to these questions as the Appellant can offer are problematic. No reason is given for the late appearance of Dr Hamilton's evidence. It is material which could, and should have been deployed before the District Judge and, at the latest, at the hearing in Bowen (No.1). Nor is it evidence of a material development which has occurred since the District Judge's decision. The evaluation of evidence should normally take place in the Magistrates' Court where it can be tested; and this is particularly relevant in the present case because the Secretary of State is able to point to a decision where Dr Hamilton's ability to give objective and independent evidence to the Court was doubted, see USA v. Mitchell at [50] and [51], a decision of DJ Bayne sitting on 25 February 2016:

She herself admitted in cross-examination that she has strong views about the punishment of sex offenders. She is of the opinion that long periods of incarceration are inappropriate for most sex offenders. It is her view that empirical evidence shows that most sex offenders are not at risk of recidivism and she expressed concern that the [US Government] adamantly disagrees with this view. She vehemently opposes the concept of civil commitment.

It could be said that, as an academic, who expresses firm opposition to the regime of prosecution and sentencing of sex offenders in the USA, Dr Hamilton may not provide a balanced view …

21. In these circumstances we decline to accept the evidence of Dr Plaud and Dr Hamilton. However, for reasons we will come to, some of the points made in these reports can properly be made on the Appellant's behalf by reference to the decision of the US Supreme Court in Kansas v. Hendricks 521 US 346 (1997), Article 10 of the New York State Mental Hygiene law ('Article 10') and, to a very much more limited extent, to decisions of the New York courts. We note, further, that three propositions set out in the reports of Dr Plaud and Dr Hamilton are relatively uncontroversial. First, there is relatively little difference between the civil commitment process in the State of Minnesota (considered in USA v. Sullivan [2012] EWHC Admin 1680), California (considered in USA v. Giese (No.1) [2015] EWHC 2733 Admin) and New York (the present case). Secondly, we accept that there is an unquantified risk that the civil commitment process in New York may result in a delay between the end of the sentence for a criminal offence and the start of the civil commitment process, during which the subject of the process may be detained. Thirdly, although the civil commitment process is set out in Article 10, its application may vary in different courts in the State of New York.
22. We consider these matters further under the heading, 'Article 5'.

Specialty

23. Section 95 of the 2003 Act provides so far as material:

(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.

…

(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if-

(a) the offence is one falling within subsection (4), or

(b) he is first given an opportunity to leave the territory.

(4) The offences are -

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;

(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence …

24. The specialty arrangements between this country and the USA are set out in Article 18 of the Extradition Treaty, dated 31 March 2003. Article 18 is headed 'Rule of Specialty' and provides (so far as material):

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:

(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;

(b) any offense committed after the extradition of the person; or

(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person's detention, trial, or punishment. For the purpose of this subparagraph:

(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and

(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

…

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person … if the person:

(a) leaves the territory of the Requesting State after extradition and voluntarily returns to it; or

(b) does not leave the territory of the Requesting State within 20 days of the day on which that person is free to leave …

25. It follows from the specialty arrangements in the Treaty that the relevant provision is s.95(3) of the 2003 Act; and the argument focused on the interpretation of the words, 'may be dealt with … for an offence [which is not an extradited offence]', and the words: 'may not be detained [for an extradition offence]' in Article 18.1 of the Extradition Treaty.
26. Before considering the submissions it is convenient to refer to some of the material upon which the submissions were based.
27. Article 10 of the New York State Act sets out the procedure to be followed where an application is made for a civil commitment order. For present purposes it is sufficient to note that there is a case review panel, which considers the case when a detained sex offender is 'nearing an anticipated release' and gives a notice to the State Attorney-General and the Commissioner of Mental Health. This notice should, so far as possible contain 'a description of the act or acts which constitute the sex offense and a description of the person's criminal history, including the person's most recent sentence …' (§10.05(c)(3)), as well as the pre-sentence reports 'and other available materials' concerning the person's sex offence (§10.05(c)(4)).
28. On receipt of the notice the Commissioner is authorised to designate staff to 'review and assess relevant medical, clinical, criminal, or institutional records, actuarial risk assessment instruments or other records and reports, including records and reports provided by the district attorney of the county where the person was convicted' to determine whether the person should be referred for evaluation (§10.05(d)). The case review team then goes on to review 'relevant records' and may order a psychiatric evaluation. These assessments comprise the basis for deciding whether the offender is a sex offender requiring civil management (§10.05(e)). If the Attorney-General decides to file a sex offender civil management petition, it 'shall contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management,' (§10.06(a)). There is then a court hearing to decide whether there is probable cause to believe that the respondent is a sex offender requiring civil management (§10.06(g)). If probable cause is shown directions are given for a jury trial and the respondent is not released pending the trial.
29. At the trial, the jury 'shall determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality'. In charging the jury, 'the court's instruction shall include the admonishment that the jury may not find solely on the respondent's commission of a sex offense that the respondent is a detained sex offender who suffers from a mental abnormality' (§10.07(d)).
30. An analysis of the US law can conveniently start with US Supreme Court decision in Kansas v. Hendricks (see above), where the Court considered the nature of the civil commitment process. The state of Kansas had enacted the Sexually Violent Predator Act 1994 which established procedures for the civil commitment of persons who, due to a 'mental abnormality' or a 'personality disorder', were likely to engage in 'predatory acts of sexual violence.' The US Supreme Court allowed an appeal against the State Supreme Court's finding that the statute violated Hendricks's due process rights. In giving the opinion of the Court (at p.361-3) Justice Thomas characterised the civil commitment scheme:

As a threshold matter, commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a 'mental abnormality' exists or to support a finding of future dangerousness …

… Because none of the parties argues that people institutionalised under the Kansas general civil commitment statute are subject to punitive conditions, even though they may be involuntarily confined, it is difficult to conclude that persons confined under this Act are being 'punished'

… Hendricks focuses on his confinement's potentially indefinite duration as evidence of the State's punitive intent. That focus, however, is misplaced. Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others …

31. It is apparent that detention pursuant to a civil commitment order is not regarded in the USA as punishment; its purpose is to treat 'mental abnormality' and to protect the public by preventing further offences.
32. It is common ground that two of the extradition offences are felonies which potentially render the Appellant liable to civil commitment.
33. Mr Southey QC submitted that the civil commitment process in Article 10 of the New York State law requires a broad review of the Appellant's background, and this will involve consideration of complaints which have been alleged but not proved, as well as the extradition offences of which he may be convicted. Since the extradition request contained reference to another sexual offence against another victim, which did not lead to charges, it is likely, or at least possible, that this unproven allegation would be placed before the jury at a civil commitment hearing with a view to persuading them that the Appellant suffers from a mental abnormality, and that consequently the Appellant may be detained or 'dealt with' for an offence for which he was not extradited, thereby offending the specialty principle.
34. Mr Summers QC submitted, in answer, that the civil commitment process was not criminal in nature. It was designed for the treatment of offenders and the protection of the public. Although other conduct may be taken into account in deciding these issues, the court would not 'deal with' such conduct or detain the offender in respect of such conduct; and prospective civil process, even if it may result in detention, does not fall within the specialty prohibition.
35. We have considered these submissions.
36. There is no domestic definition of the phrase 'may be dealt with … for an offence' in s.95(3) of the 2003 Act in the context of an outward extradition; and this is probably because the phrase may have to be applied to different forensic processes in a number of different jurisdictions.
37. One of the ways in which the English courts approach the question is to consider whether the court is concerned with a criminal or civil matter. It is clear from Hendricks that the US Courts regard civil commitment as a civil proceeding, but that plainly cannot be determinative.
38. In R (McCann and others) v. Crown Court at Manchester and another [2002] UKHL 39, [2003] 1 AC 787, the House of Lords had to consider whether proceedings which resulted in an anti-social behaviour order should be classified as criminal or civil when determining the standard of proof and the admissibility of evidence. In reaching the conclusion that they were civil proceedings, Lord Steyn emphasised the importance of considering whether the proceedings were concerned with the prevention of criminal conduct (in which case they were likely to be civil proceedings) or with condemnation and punishment (in which case they were likely to be criminal proceedings), see [19]-[20] and [54]-[55]. At [20] he referred with approval to a passage in the judgment of Lord Bingham of Cornhill CJ in Customs and Excise Commissioners v. City of London Magistrates' Court [2000] 1 WLR 2020, at 2025.

It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.

39. In Welsh and another v Secretary of State for the Home Department and another [2006] EWHC 156 (Admin), [2007] 1 WLR 128, the Divisional Court (Laws LJ and Ouseley J), in an outward extradition case, considered a specialty argument in the context of the US judicial practice of using evidence of uncharged prior offending for the purposes of sentencing. The issue was addressed by Ouseley J giving the main judgment.

135. The effect of section 95 is to impose a prohibition on extradition where the conditions it contains are not met. In my judgment, it does require the English courts to reach their own view as to whether or not the practice in the USA amounts to 'dealing with' someone, which includes punishing him, in a way prohibited by section 95. It does not permit the United Kingdom simply to say that a practice is not regarded as falling foul of the specialty doctrine by the USA and therefore does not fall foul of the prohibition in the Act. It is not permissible simply to adopt the USA's view of what offences are being punished.

136. However, the language of the Act has to be applied to many treaties and foreign justice systems which will differ from each other as well as from those of the United Kingdom. It is not intended, I believe, to require the imposition of peculiarly English or UK sentencing practices before extradition can occur. Reaching an answer on the scope of 'deal with' in relation to extradition and punishment demands a purposive and flexible approach, which must be capable of accommodating the reasonable range of sentencing practices and values which other countries adopt. The recognition of important technical requirements is not the same as the erection of technical hurdles wherever ingenuity can manage it. A court may properly be reluctant to adopt a construction of the Act which would allow those who flee a jurisdiction to gain an unwarranted reward for their flight, because of the routine and justifiable sentencing practices of the jurisdiction which they seek to evade.

137. I also judge it to be significant that the Act is not intended to bring about profound changes in extradition arrangements in a way which would add a novel and significant hindrance to extradition. If there are radical changes they are aimed at making extradition a less time-consuming and technical area of international co-operation. The Act cannot have been intended to halt extraditions to the United States on the basis of a sentencing practice which its case law suggests has been in place since before its independence. I see force in the approach of the US courts that if this sentencing practice was seen by the United Kingdom or other countries as breaching treaty obligations, there would have been a clarification in the superseding treaties, but instead there is nothing which excludes that practice … I have seen nothing in any UK or US case to show that the United Kingdom has ever regarded this long-standing practice as a breach of a treaty or of specialty.

138. For my part, I do not consider therefore that the absence of an arrangement which would prevent the extradited person being punished for the extradition offence in the way in which he could be under the now discretionary US sentencing guidelines shows that the requisite arrangement for section 95 is not in place. Such a person is not being 'dealt with' within the scope of that phrase in the Act for an offence for which he has not been or could not have been extradited. He is being 'dealt with' for that very offence by reference to conduct which is relevant to the gravity of the way in which he committed the offence or to the offending behaviour revealed by it.

40. The English court's unwillingness to treat the US Court's approach to sentencing as breaching the specialty principle was reaffirmed by the Divisional Court in Norris v U.S.A (No 2) [2009] EWHC 995 (Admin). At [51] Laws LJ described the principle to be derived from the Welsh case:

In my judgment the ratio decidendi of Welsh …, adopted in Bermingham, as it relates to s.95 and extraditions to the United States may be gathered from paragraph 138 of Ouseley J's judgment. It is that an extraditee who is punished pursuant to the Guidelines in such a way that other conduct for which he could not be extradited is taken into account against him is not being 'dealt with' within the scope of that phrase in the Act for an offence for which he has not been and could not have been extradited.

41. At [54] of Norris Laws LJ added this:

… the commission of every offence has a context; there is a penumbra of surrounding fact which will include elements that aggravate, and elements that mitigate, the offence itself. An aggravating element may involve distinct criminal behaviour. Subject to proper safeguards for the defence, that circumstance will not rule out consideration of such an element as relevant to the sentence the court thinks right to pass. That does not mean the defendant is being sentenced for the distinct crime, for which it may be he is not prosecuted …

42. In the Supreme Court, Lord Collins of Mapesbury, Norris v U.S.A (No 2) [2010] 2 AC 487, offered the following coda to this point, at [121].

The effect of the evidence before the Divisional Court was that, if Mr Norris is convicted on the obstruction of justice charges, it is at the least possible that the judge will have regard to the anti-trust violations in sentencing him for obstruction of justice. The Divisional Court, applying Welsh v Secretary of State for the Home Department [2007] 1 WLR 1281 and R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, held that this was not contrary to the principle of specialty (also, but less commonly, referred to as speciality). The principle is reflected in article XII(1) of the 1972 UK-US Extradition Treaty and section 95 of the Extradition Act 2003 . The traditional statement of the principle is that a surrendered person will not be tried or punished for any offence other than that in respect of which he has been extradited: Oppenheim's International Law, 9th ed. (1992), vol I, Pt 2 (eds Jennings and Watts), para 420; Whiteman, Digest of International Law, vol 6 (1968), p 1095 (and at p 1100 on non-extraditable offences as aggravation). The Divisional Court refused to certify as a question of law of general public importance the question whether it offended the specialty principles if offences which were not extradition offences could be treated as aggravating factors for sentencing purposes. The Appeal Committee of the House of Lords did not give leave to appeal on this point

43. It is clear then that reliance on prior non extradited conduct for the purpose of sentencing by the criminal courts of the USA is not regarded as breaching the specialty principle. On that basis, the question arises as to whether it is to be regarded as breaching the specialty principle when it is relied on as part of a process of civil commitment?
44. Mr Summers submitted that it is significant that s.95(3) of the 2003 Act uses the word 'offence'. He argued that the use of the word refers to a crime for which an offender can be tried under the criminal law. It follows that prospective civil process, even if it can result in incarceration, is outside the specialty prohibition.
45. In Pooley v. Whetham (1880) 15 Ch D 435 the Court of Appeal were concerned with the specialty argument in an inward extradition case. Pooley had been extradited from France to face criminal charges under the bankruptcy laws then in force. On his return to this jurisdiction, he was dealt with for breach of a High Court order requiring him to deliver up possession of certain company property to a Receiver. The disobedience had occurred before his flight to France and he argued that, in dealing with him for contempt of court, the High Court was acting in breach of s.19 of the Extradition Act 1870 which provided that a person surrendered '… shall not … be triable or tried for any offence committed prior to his surrender…' The Court of Appeal held that s.19 did not apply to punishment for a contempt. At p.443, Brett LJ posed the question in the following way:

Now the offence [mentioned in s.19] is one which is thus described: 'Where a person might be triable or tried for any offence.' How is it possible to say that he was ever triable or tried for a contempt? It is not a matter which is a triable offence. It is a civil process under which he is detained, which he can get rid of at any time by purging his contempt, and it is not, in my opinion, a triable offence or an offence upon which a man can be tried at all. The real truth is that the word 'offence' in the 19th section means a criminal act, whether a felony or a misdemeanour is immaterial, but an offence which would be triable in a criminal court. Therefore it does not apply to civil processes, so that the objections which were founded on that reading of the statute all fail …

46. More recently, in Director of the Serious Fraud Office v. O'Brien [2014] AC 1246 the Supreme Court considered a similar argument in relation to domestic proceedings for contempt in the case of an inward extradition and affirmed the decision in Pooley v. Whetham. At [34] Lord Toulson (giving a judgment with which the other members of the Court agreed) stated:

In any event, however, it is in my judgment clear for the reasons set out above that nothing can constitute an extradition offence (whether for the purposes of Part 1, Part 2 or Part 3) unless it is a criminal offence under the law of the relevant state. Not every alleged criminal offence will amount to an extradition offence, but it is a necessary precondition of an extradition offence that the conduct or alleged conduct is proscribed by the criminal law of the relevant state.

47. Mr Southey argued that it is necessary to consider the practical effect of an ostensibly civil matter to determine whether there is a criminal charge. He referred to a number of decisions of the ECtHR which make clear that a purely domestic characterisation of whether a process is criminal or civil, is not determinative for the purposes of the respective protections under article 6. We do not accept this argument. Article 6 is concerned with procedural safeguards for those facing criminal charges, and does not affect the domestic classification of proceedings as to whether they are criminal or civil, see for example, CPS v. Tweddell [2002] 1 FLR, Latham LJ at [21]-[22]. Furthermore, if the appellant's argument were right the O'Brien case would have been decided differently.
48. In our judgment the US civil commitment process is to be treated, as a matter of our domestic law, as a civil process and not a criminal process. It is designed for the protection of future harm rather than the punishment of past offending, see Hendricks (above); and, as Lord Bingham of Cornhill observed in R (R) v. Durham Constabulary [2005] 1 WLR 1184 (HL) at [14]:

A process which can only culminate in measures of a preventative, curative, rehabilitative or welfare promoting kind would not ordinarily be the determination of a criminal charge.

49. Mr Southey's final argument was that, even if an order for civil commitment satisfied the specialty test, an order for detention pending the determination of the civil commitment application did not. In our view this does not follow, since post-extradition pre-trial detention does not offend the specialty principle, it is difficult to see why detention, for what (on this hypothesis) is a permitted purpose, should offend the specialty principle.
50. For these reasons we dismiss the challenge based on specialty grounds.

Article 5

The statutory provisions

51. As originally enacted Section 93 of the Extradition Act 2003 provided:

Secretary of State's consideration of case

(1) This section applies if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.

(2) The Secretary of State must decide whether he is prohibited from ordering the person's extradition under any of these sections.

(a) Section 94 (death penalty)

(b) Section 95 (specialty)

(c) Section 96 (earlier extradition to United Kingdom from other territory).

(3) If the Secretary of State decides any of the questions in sub-section (2) in the affirmative he must order the person's discharge.

(4) If the Secretary of State decides those questions in the negative he must order the person to be extradited to the territory to which his extradition is requested…

(5) In deciding the questions in sub-section (2), the Secretary of State is not required to consider any representations received by him after the end of the permitted period.

(6) The permitted period is the period of 6 weeks starting with the appropriate day.

52. Amendments have been made to this section in subsequent legislation, but the only relevant amendment is that the permitted period in sub-section (6) has been shortened to four weeks.
53. As originally enacted, Section 108 provided:

Appeal against extradition order

(1) If the Secretary of State orders a person's extradition under this Part the person may appeal to the High Court against the order.

…

(3) An appeal under this section may be brought on a question of law or fact…

54. Section 109, as originally enacted, provided:

Courts' powers on appeal under section 108

(1) On an appeal under section 108 the High Court may -

(a) allow the appeal.

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in sub-section (3) or the conditions in sub-section (4) are satisfied.

(3) The conditions are that

(a) the Secretary of State ought to have decided a question before him differently.

(b) if he had decided the question in the way he ought to have done he would not have ordered the person's extradition.

(4) The conditions are that –

(a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time.

(b) the issue or information would have resulted in the Secretary of State deciding a question before him differently.

(c) if he had decided the question in that way, he would not have ordered the person's extradition.

(5) If the court allows the appeal it must –

(a) order the person's discharge.

(b) quash the order for his extradition.

55. Section 70 as originally enacted, required the Secretary of State to issue a certificate certifying that a request for extradition had been made in the approved way by a category 2 territory and then to send the request and the certificate to a designated District Judge.
56. Until the amendments to the 2003 Act, introduced with effect from 29 July 2013 by Schedule 20 to the Crime and Courts Act 2013, it was doubtful whether or not the Secretary of State was entitled or required to consider whether extradition would infringe the human rights of the requested person before making the extradition order. The argument was that, because the Secretary of State was a public authority exercising a public function, he was bound by Section 6 of the Human Rights Act 1968 not to order a person's extradition if to do so would violate his convention rights, see Laws LJ in R (Bermingham) v Director of the Serious Fraud Office and Government of the United States of America [2007] QB 727 [152]. There was, however, little doubt that the High Court was not generally required to entertain an appeal on human rights grounds from the decision of the Secretary of State. In McKinnon v Government of the USA [2007] EWHC 762 (Admin) Maurice Kay LJ said, at [62], that in the great majority of cases an Appellant's human rights case will stand or fall with his appeal against the decision of the District Judge. He expanded on this at [63]:

In the present case Mr McKinnon has been able to raise his human rights points in this Court in the context of his appeal against the decision of the District Judge. They have failed, and in our judgment he has no separate human rights case against the Secretary of State … We tend to the view that, in reality, the only situation in which a free-standing human rights case may lie against the Secretary of State pursuant to section 6 of the Human Rights Act is where statutory appeals against the decisions of the District Judge and the Secretary of State have been exhausted, but something arises between finality in those proceedings and actual removal to the requesting state - for example, a supervening illness which impacts on the subject's ability to travel to or the face trial in the requesting state. At that stage a challenge to a refusal of the Secretary of State to reconsider extradition on human rights grounds may arise (subject to the high threshold), albeit probably in judicial review proceedings rather than by way of statutory appeal.

57. The issue could only arise if there was a long delay between the decision of the District Judge and the Secretary of State's order because, under s.103, an appeal can only be heard after the order is made.
58. The 2003 Act was amended by Schedule 20 to the Crime and Courts Act 2013 to put the position beyond doubt. The technique used was to amend Sections 70 and 108. To Section 70 was added the following:

(10) Subsection (11) applies at all times after the Secretary of State issues a certificate under this section.

(11) The Secretary of State is not to consider whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

59. To s.108 was added:

(5) But notice of an appeal under this section may be given after the end of the permitted period if it is an appeal on human rights grounds …

(7) Where notice of an appeal is given in accordance with sub-sections (5) and (6), the High Court is to consider the appeal only if it appears to the High Court that –

(a) the appeal is necessary to avoid real injustice, and

(b) the circumstances are exceptional and make it appropriate to consider the appeal.

(8) In this section 'appeal on human rights grounds' means an appeal against the order for the person's extradition on the grounds (and only on the grounds) that the extradition would not be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

60. Section 59 of the 2013 Act authorised the Secretary of State to make by order such provision she considered appropriate 'in consequence of this Act' to amend 'any provision made by … an enactment'. She exercised that power in relation to Section 109 of the 2003 Act by the Extradition Appeals (England and Wales and Northern Ireland) Order 2013 number 2384, which came into force on 14 October 2013. Articles 2 and 3 provide:

2. Interpretation.

In this Order 'section 108 human rights appeal' means –

(a) an appeal brought -

(i) In accordance with section 108(4) of the Extradition Act 2003 if, or to the extent that, it is an appeal against an order by the Secretary of State for a person's extradition on the grounds that the extradition would not be compatible with the Convention Rights within the meaning of the Human Rights Act 1998; and

(ii) in circumstances where the Secretary of State was precluded from considering that question by section 70(11) of the Extradition Act 2003; or

(b) an appeal brought in accordance with section 108(5) and (6) of the Extradition Act 2003.

3. Modification of the Extradition Act 2003.

(1) The Extradition Act 2003 is modified as follows:

(2) Sub-sections (2) to (4) of section 109 of the Extradition Act 2003 do not apply to a section 108 human rights appeal.

61. The present position is therefore as follows:

i) The Secretary of State may not, at any time after she issues a certificate under Section 70, which starts the extradition process in England and Wales, consider whether extradition would be compatible with the Convention rights.

ii) Under Section 108, as amended by the 2013 Order, the High Court's powers are limited in a 'Section 108 human rights appeal' to allowing or dismissing the appeal; and, if allowing an appeal, ordering the requested person's discharge and quashing the order for his extradition.

62. Mr Southey argued that, despite removing the power of the Secretary of State to consider whether or not extradition would be compatible with the Convention rights of the requested person, Parliament had departed from the conclusions of Maurice Kay LJ in McKinnon by providing an unfettered right of appeal against the decisions actually made by the Secretary of State on the questions set out in Section 93 on that ground. He accepts that, if this is right, Parliament has, by a side wind, conferred on the High Court the power and duty to consider human rights questions in an appeal against a Secretary of State's extradition order, as a Court of First Instance, not an Appellate Court.
63. It would be surprising if it had done so, when it had addressed precisely that issue in the case of a notice of appeal given after the end of the permitted period in what is now Section 108(5) to (8). That cannot have been Parliament's intention. The scheme of Part 2 permits a court, initially the designated District Judge and later the High Court, to determine the compatibility of extradition with Convention rights. The Secretary of State is specifically precluded from doing so. If Mr Southey were correct, uniquely, in a highly prescriptive Act, no provision is made for the basis upon which the High Court can allow an 'appeal' on human rights grounds against the order of the Secretary of State, provided only that notice of appeal is given before the end of the permitted period. We can discern no reason of policy other than a necessity to avoid real injustice in exceptional circumstances (the statutory test applicable to appeals brought after the expiry of the permitted period) for entertaining an appeal on grounds that the Secretary of State was not entitled to consider.
64. In our view, the altered statutory scheme is clear: human rights questions are to be considered by the designated District Judge and by the High Court on appeal from that decision and, exceptionally, and to avoid real injustice, after the ordinary process of challenging a decision to send the case to the Secretary of State for her to make an order and she has done so has expired. The circumstances in which the exceptional jurisdiction should be entertained were analysed in McIntyre v Government of the USA [2015] 1 WLR 507 and need not be repeated here.
65. Mr Southey further argued that a paragraph in the explanatory notes suggests that this interpretation of the intention of the Secretary of State and/or of Parliament set out above is wrong. The paragraph reads:

This Order clarifies that the High Court is able to allow or dismiss an appeal brought on human rights grounds where human rights questions were not considered by the Secretary of State because of the effect of section 70(11).

66. The explanatory notes make perfect sense in relation to the qualified right of appeal afforded by Parliament under Section 108(5) and (6). Otherwise, a right expressly given by Parliament would be nullified, because the only grounds upon which an appeal would be allowed would be that the Secretary of State ought to have decided a question before her differently or should have done so if an issue was not raised or information was not available when she made her decision to make the extradition order. In relation to an appeal within the permitted time, it begs rather than answers the question discussed by Maurice Kay LJ in the cited paragraph from his judgment in McKinnon. If there was no right to challenge an order made by the Secretary of State on human rights grounds before the amendments introduced by the 2013 Act and Order, they do not have the consequence of creating a right where none existed before.

The argument on Article 5

67. If, as we have concluded, the only basis for a challenge on human rights grounds after the Secretary of State's decision is on the basis of a need to avoid real injustice in exceptional circumstances, the Appellant faces a number of difficulties. First, substantially the same arguments were advanced before this court as were argued unsuccessfully in the two previous hearings before another (differently constituted) Divisional Court. Secondly, in any event, there is no new material on which Appellant can rely which was not, or could not have been, before the Court in Bowen (No.1) and Bowen (No.2), since we have refused permission to adduce further evidence. Thirdly, no exceptional circumstances have been relied on. Fourthly and consequently, the Appellant has been refused permission to bring the challenge under article 5.
68. In these circumstances we can deal with the argument more shortly than otherwise we might have done.
69. Article 5 of the ECHR, 'Right to liberty and security' provides:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

…

e. the lawful detention … of persons of unsound mind …

70. The Appellant submitted that there was a real risk of him being detained under the civil commitment process, not because he was of unsound mind or suffering from a serious and identifiable mental disorder, but because he might be deemed by a Court to fall within very broad and imprecise criteria which may apply to many offenders within the prison system. Mr Southey relied on the two decisions of the Divisional Court, Sullivan and Giese (No.1), to which we have referred above, where the Court found that the prospect of a civil commitment process in the States of Minnesota and California constituted a bar to extradition on article 5 grounds.
71. At [48] and [60]-[62] of Giese (No.1) Aikens LJ set out his analysis of the issue in that case.

48. The starting point on this issue must be the ECtHR's interpretation of 'unsound mind' in Article 5(1)(e). The ECtHR has considered this in three cases in particular: Winterwerp v The Netherlands (1979) 2 EHRR 387; Varbanov v Bulgaria (judgment 5 October 2000) and Stanev v Bulgaria (Grand Chamber judgment 17 January 2012). The effect of these decisions (insofar as relevant to the present case) is as follows: (1) the term 'unsound mind' in Article 5(1)(e) is not fixed or immutable because scientific investigation and knowledge on the mental state of humans is continuously advancing and society's attitudes to 'mental illness' are constantly changing. However, a distinction is to be drawn between a person being dangerous and being of 'unsound mind'. Only in the case of a serious mental disorder would detention under Article 5(1)(e) be justified. (2) The mental state of the person must be established by objective medical expertise and must be based on the actual state of mental health of the person concerned and not solely on past events. (3) The mental state of the person must be of a kind or degree warranting compulsory confinement. This may be necessary either because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, or because the person needs control and supervision to prevent him from causing harm to himself or other persons. (4) The validity of continued confinement must depend on the continuance of such a mental disorder. (5) Article 5(1)(e) cannot be used to permit the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would be contrary to the terms of Article 5(1) and the exceptions to that rule must be given a narrow interpretation. (6) Except in urgent cases, or where it is otherwise not possible to obtain medical advice, the detention should only be made after obtaining the opinion of a medical expert.

…

60. In our judgment, the definition of 'diagnosed mental disorder' in [the relevant provision of the California Code] in the way it is put into practice as indicated by the evidence in this case, is incompatible with the exception of 'unsound mind' in article 5(1)(e) of the ECHR. It has been clear since Winterwerp that 'unsound mind', being a concept in one of the exceptions to the general rule in Article 5(1) must be given a narrow interpretation. By comparison, 'diagnosed mental disorder' [in the California Code] is a broad and imprecise concept and it is open to an interpretation that would apply to many persons whose 'diagnosis' is no more than the type of disorder common in child sex offenders found within the prison system of either the UK or the USA. Accordingly, we agree with the DJ that there is a real risk not only that Mr Giese will be made subject to a civil commitment order if extradited and convicted, but also that there is a real risk that the basis for this order would be incompatible with the exception to the general rule of Article 5(1) as expressed in the concept of 'lawful detention of persons of unsound mind' referred to in Article 5(1)(e).

61. The fact that, at each stage of the process towards a civil commitment order, there are legal safeguards for the potential detainee only goes to whether the detention would be in accordance with a procedure 'prescribed by law' and so a 'lawful detention'. If, however, the detention is not of a person of 'unsound mind' as interpreted by the ECtHR case law, then the detention will be in breach of the person's Article 5 rights.

62. The final question, therefore, is whether the DJ was wrong to conclude that there is a real risk that Mr Giese would suffer a 'flagrant denial' of his Article 5 rights, in the sense that there is a real risk that the right not to be deprived of his liberty save by lawful detention would be completely denied or nullified if extradited to California. In our judgment, the conclusion of the DJ was correct. In Sullivan, Moses LJ stated, at [33], that because the criteria used in Minnesota for deciding whether a person should be subject to a civil commitment order 'fell far short of the necessity of proving he is of unsound mind', then if a civil commitment order were to be made in that case '… it would be a flagrant denial' of Mr Sullivan's rights under Article 5(1) because it fell outside the provisions of the only exception relied upon, viz. Article 5(1)(e). That analysis must be correct. Article 5(1) guarantees that no one shall be deprived of his liberty, save in the exceptions that are specifically identified thereafter in sub-paragraphs (a) to (e). If there is a real risk that someone can be detained in circumstances that do not fall within those exceptions, then, it seems to us, there must be a real risk that there will be a denial of the very essence of the person's right to liberty and a real risk that he will be subject to arbitrary detention in the sense that it is not in accordance with Article 5.

72. In the course of the judgment in Giese (No.1) the Court recognised (as do we) the tension between the decisions in Sullivan and Giese on the one hand, and Bowen (No.1) and (No.2) on the other.
73. At [64]-[67] of Giese (No.1) Aikens LJ considered the judgments in Bowen and concluded:

67. It is clear from this short summary of Bowen that the position in that case in relation to the evidence is very different from the present one. In this case the DJ had expert evidence from Dr Putnam, a clinical and forensic psychologist and from Mr Lowry, a California attorney who had great experience in civil commitment cases in California. The DJ accepted their evidence and we have concluded that she was entitled to do so. The only evidence in this case on how the civil commitment system works in California in practice was given by defence experts, as Mr Cadman accepted before us. Even if the civil commitment legislation in New York and California are very similar, the evidence of how they are operated is not.

74. It is apparent that the Divisional Court in Giese (No.1) considered that a distinction was to be drawn on the basis of the evidence in the two cases. We share that view. We would only add that it is to be noted that where, in an extradition case, it is said that there will be a real risk of a violation of article 5, the test is one of 'a flagrant breach', and that this is high threshold.
75. In Othman v. United Kingdom (2012) 55 EHRR 1 the ECtHR expressed the following view of the application of article 5 in extradition cases at §233.

The Court therefore considers that, despite the doubts it expressed in Tomic, it is possible for art.5 to apply in an expulsion case. Hence, the Court considers that a Contracting State would be in violation of art.5 if it removed an applicant to a state where he or she was at real risk of a flagrant breach of that article. However, as with art.6, a high threshold must apply. A flagrant breach of art.5 would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of art.5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial.

76. We have therefore concluded that, although permission should be given to bring the article 5 challenge, the application itself should be refused.

Conclusion

77. For these reasons the order for the Appellant's extradition must be upheld.