Government of the United States of America v Bowen (includes supplementary judgment) (Rev 1) [2015] EWHC 1873 (Admin)

Background

[4]The respondent faces seven charges of sexual offences on an indictment filed on 14th September 2010 before a Grand Jury of the County Court of Onondaga, New York. The respondent was arrested and interviewed by police in the United States on 19th March 2010. At that time he was living in New York State. He was granted bail, subject to a bond of $10,000. The bail bond was lodged and he was released from custody on 23rd March 2010. He failed to appear for a hearing on 20th September 2010 and a bench warrant was issued for his arrest. Apparently the respondent had left the United States for Liberia.

The Extradition Application

[5]The United States of America is a Category 2 territory for the purposes of the Extradition Act 2003 [“The Act”]. Part 2 of the Act applies to the extradition proceedings. The extradition request was dated 17th April 2014. A certificate was issued by the Home Office pursuant to section 70 of the Act on 17th April and an arrest warrant was issued by Westminster Magistrates’ Court on 18th April 2014. The respondent was arrested on 19th April 2014 when he arrived at Heathrow Airport. He resisted extradition on the grounds that his removal to the United States would breach a number of his rights under the ECHR and that the application was an abuse of the process of the court. He also raised the issue of specialty. The application was heard over two days on 17th and 18th December 2014. The judge took time to consider her decision. She gave a written judgment in which she rejected the respondent’s challenges in respect of abuse of process and alleged breaches of articles 6 and 8 of the ECHR. She found that the issue of specialty was not for determination by her but for decision by the Secretary of State. As we have noted, the judge found that were he to be extradited to the United States the respondent would suffer a flagrant denial of his rights under

article 5 ECHR

. Accordingly, she discharged him.

[6]The appeal is brought under section 105 of the Act. It is the appellant’s case that the judge made errors of fact and of law. By a respondent’s notice dated 28th January 2015 the respondent seeks to uphold the decision of the judge on the ground that her decisions on article 5 were correct. We permitted Mr Hawkes to amend the respondent’s notice at the hearing to include in it two additional points that he deployed in the skeleton argument prepared shortly before the hearing. The respondent did not seek to challenge the judge’s decisions on abuse of process or the breaches of articles 6 and 8. Accordingly, the only issue before us relates to article 5.

Fresh Evidence

[7]The appellant sought leave to adduce as fresh evidence a letter from the United States Department of Justice Office of International Affairs dated 27th March 2015 together with three attachments:(a) a diagrammatic representation of the Civil Management Review Process,

(b) SATIC-99 Coding Rules Revised-2003, and

(c) a risk assessment tool and its score sheet. The purpose of the evidence was principally to contradict the evidence of Mr Brenner, an American attorney with extensive experience of civil commitment, albeit not in respect of the New York law. He was called on behalf of the respondent before the judge.

[8]We agreed to consider the evidence without prejudice to whether it should be admitted. The respondent objected to the admission of the evidence, but submitted a further report to be considered on his behalf in the event that we permitted the appellant to rely on the fresh evidence.

[9]The admissibility of fresh evidence in extradition appeals is subject to statutory restriction which was considered by this court in Szombathely City Court and Others v Roland and Kaman Fenyvesi

[2009] EWHC 231 (Admin)

. The approach was summarised at para 6 through 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; iv) Whether the fresh evidence is credible; and v) Whether the fresh evidence might lead to a different outcome of the case.

[10]The reason offered by the appellant for its failure to adduce the evidence at first instance was that “the issues in the case only crystallised close to the date of the extradition hearing, which only allowed a limited time for a detailed response to be provided by the Appellant.” We do not consider this to be a correct statement of the position. The respondent’s statement of issues was served on 28th July 2014. At 4(d) the assertion was made that the respondent was at risk of civil commitment and that this would involve a breach of articles 5 and 6 of the Convention. The respondent cited R (Sullivan) v Government of the USA

[2012] EWHC 1689 (Admin)

in which the absence of an assurance that civil commitment would not be pursued was the decisive issue in the case in respect of Article 5. The case concerned state legislation in Minnesota which is different from that in New York. Whilst the evidence of the respondent’s expert, Mr Brenner, was late, it was received a full five weeks before the hearing. In her written submissions Ms Collins asserted that a decision was made not to seek an adjournment because the respondent was in custody and the court was likely to refuse it. If that is right then it supports our conclusion that a judgement was made that the application was ready to be argued on the evidence that had already been adduced.

[11]We are satisfied that the evidence was not adduced because a decision was taken that it was not necessary to do so. All of the attachments to the letter were in existence years before the hearing. The letter could have been written before the hearing. A litigant is not entitled to run a case in a particular way and, when that fails, to adopt a different approach on appeal which includes evidence that could have been called at first instance. We refuse permission to the appellant to rely on the fresh evidence. Accordingly we have not taken it into account nor have we taken into account the evidence in response served on behalf of the respondent.

Article 5 ECHR

[12]The relevant parts of article 5 read:- “5.1 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 the procedure proscribed by law:(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

[13]The circumstances in which a person may rely upon the ECHR to resist removal from the United Kingdom were considered in the House of Lords in R(Ullah) v Special Adjudicator (HL(E))

[2004] 2 AC 323

. Where a person seeks to resist extradition on the basis of protections other than Article 3 the threshold is a very high one. The starting point is the speech of Lord Bingham at para 24:

“Whilst the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3 it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subject to torture or to inhuman or degrading treatment or punishment: Soering paragraph 91… Where reliance is placed on Article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving State. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes.”

At paragraph 50 Lord Steyn said:

“It will be apparent from the review of the Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other articles [i.e. beyond article 3] could become engaged.” 14. At paragraph 69 Lord Carswell put it thus: “The adjective “flagrant” has been repeated in many statement where the court has kept open the possibility of engagement of articles … other than article 3. … The concept of a flagrant breach or violation may not always be easy for the domestic courts to apply…but it seems to me that it was well expressed by the Immigration Appeal Tribunal (IAT) in Devaseelan v Secretary of State for the Home Department[2003]Imm AR 1, 34, paragraph 111 when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the context of a fundamental breach, with which courts in this jurisdiction are familiar.” (Emphasis added in each quotation)

[14]The right to liberty is not absolute. The sub-paragraphs of Article 5 are, for the purposes of determining the reach of article 5 in ECHR states, an exhaustive list of the circumstances in which a person may be deprived of his liberty. The central purpose of article 5 is to protect the individual from arbitrary arrest and detention: see Winterwerp v Netherlands

(1979) 2 EHRR 387

, para 37; Kurt v Turkey

(1998) 27 EHRR 373

, paras 122 and 123. At its heart is judicial control: see Brogan v United Kingdom

(1988) 11 EHRR 117

, para 58.

[15]It is not necessary for the legal system of a state which seeks extradition precisely to mirror within its legal system the circumstances justifying detention set out in article 5 to avoid a finding that removal would breach article 5. Different legal systems may, for example, allow preventative detention in varying circumstances. It would not be surprising if some legal orders regarded the provisions of article 5 which allow the detention of alcoholics, drug addicts and vagrants as going too far. Equally, different legal orders might countenance the detention of other categories of individual who pose societal risks. It may be particularly difficult to establish the precise boundaries of mental illness. The issue when extradition is resisted upon article 5 grounds is that identified in Ullah in the different language emphasised in the speeches from which we have quoted. They are to the same effect. In a case where a person is to be removed from the United Kingdom the question in domestic proceedings is whether there is a real risk, demonstrated by evidence, that the right to liberty would be completely denied or nullified in the receiving country. In particular, that engages the question whether what he risks amounts to arbitrary arrest or detention and whether detention would be subject to effective judicial control.

[16]The parties’ analysis in this case, both before the judge and in this court, proceeded by reference to Winterwep, which is the leading authority in Strasbourg on article 5 in the context of the deprivation of liberty of a person of unsound mind. At para 38, the court observed that article 5 does not give any definition of “persons of unsound mind” but concluded that the Netherlands Mentally Ill Persons Act, which authorised the confinement of a “mentally ill person” in principle fell within the ambit of Article 5.1(e). In determining whether detention was lawful the court indicated that, save in an emergency, “The individual concerned should not be deprived of his liberty unless he has been reliably shown to be of “unsound mind”. The very nature of what has to be established … that is, a true mental disorder – calls for objective medical expertise … Further the mental disorder must be of a kind or degree warranting compulsory confinement.”

The Law of New York State: Mental Hygiene Law

[17]We are concerned with the law of New York State: Mental Hygiene Law article 10 which was introduced by the Sex Offender Management and Treatment Act of 2007.

[18]Article 10 is headed “Sex Offenders requiring Civil Commitment or Supervision”. It begins with legislative findings which set out the context of the statute and its aims. It is not necessary to repeat them. Article 10 provides, amongst other things, for the assessment of sex offenders at the end of their sentence to establish whether they are dangerous sex offenders suffering from a mental abnormality which predisposes them a) to commit sex offences and b) prevents them from controlling their behaviour so that they are a danger to others and likely to commit further sex offences. If they are, then they are confined to a secure facility. That is civil commitment. Sex offenders who are not dangerous within the meaning of article 10 may be subject to Strict and Intensive Supervision (SIST) in the community.

[19]Article 10.01 so far as is relevant, reads as follows:

“ (b) That some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses. These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result of the criminal process, and should continue to receive treatment when that incarceration comes to an end. In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct”

. And at (e): “ (e) That the system for responding to recidivistic sex offenders with civil measures must be designed for treatment and protection. It should be based on the most accurate scientific understanding available, including the use of current, validated risk assessment instruments. Ideally, effective risk assessment should begin to occur prior to sentencing in the criminal process, and it should guide the process of civil commitment”.

[20]10.03 contains the definitions:

““Dangerous sex offender requiring confinement” means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility”

. Detained sex offender is defined at (g): (g) ““Detained sex offender”means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, in that the person is either: (1) A person who stands convicted of a sex offense as defined in subdivision (p) of this section [this applies in this case], and is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense”;… And at (i) the definition of mental abnormality appears: (i) ““Mental abnormality” means a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct”.

(q) :

““Sex offender requiring civil management” means a detained sex offender who suffers from a mental abnormality. A sex offender requiring civil management can, as determined by procedures set forth in this article, be either (1) a dangerous sex offender requiring confinement or (2) a sex offender requiring strict and intensive supervision”

(r) :

““Sex offender requiring strict and intensive supervision” means a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement”

The Article 10 process

[21]Article 10.05 contains the provisions for the review of a sex offender who is coming to the end of his sentence.

[22]Once a qualifying offender is within 100 days of release the Office of Mental Health receives notification of the anticipated release date. Delay in notification does not invalidate the process. At that point the case is screened by a multi-disciplinary team of the office of Mental Health. They review the records and assessments and either refer the matter to a case review team for further evaluation or the case is closed. If a case is closed there will be no civil commitment. If the case is referred to a case review team, notice of that referral is given to the Office of the Attorney General and to the offender. If the case review team, which includes at least two mental health professionals and a psychiatric examiner, determines that the offender is appropriate for civil management they report in writing to that effect and refer the case to the Office of the Attorney General to commence legal proceedings. If the review team and psychiatric examiner find the offender does not require civil management the case is not referred and is closed.

[23]If, when a case is referred, the Office of the Attorney General determines that civil management is appropriate, court proceedings are initiated and a petition is filed. The offender is entitled to an attorney at all stages. First there is a hearing before a judge to determine whether there is probable cause to believe the offender is a sex offender requiring civil management. If the court is satisfied of probable cause, then the offender is transferred to an office of mental health secure treatment facility pending trial, or he may choose to remain in the custody of the Department of Corrections and Community Supervision. If probable cause is not established the petition is dismissed and the offender released.

[24]When probable cause is found the case is then prepared for a trial before a judge and a jury of 12, although an offender may waive his right to a jury. There are two questions for the jury: first, whether the offender is a detained sex offender who suffers from a mental abnormality and second, whether he is a dangerous sex offender requiring confinement. The burden of proof is on the State at both stages. Evidence is called by the State and may be called on behalf of the offender. Unanimous verdicts are required “on clear and convincing evidence”. Where the jury is satisfied of the first question but not of the second the offender is made subject of a SIST order. Offenders are entitled to petition for termination of a SIST after two years. Article 10.13 permits offenders to appeal any final order.

[25]If an order for civil commitment is made there follow annual reviews with the offender having access to the court to seek release.

The arguments in outline

[26]Mr Hawkes accepts that if civil commitment followed “only a proper medical diagnosis of genuine mental disorder” there could be no complaint that the process (if pursued in an ECHR state) was not article 5 compliant. There is no criticism of the judicial control of the process. In this case, however, he submits, as he submitted successfully to the judge below, that there is a real risk of a diagnosis being made which is not of a “genuine mental disorder” as it would be understood in Europe. His submissions rely on the decision of the Divisional Court in Sullivan and on the evidence of Mr Brenner, upon which the judge placed significant reliance. Sullivan was concerned with a Minnesota state law. Ms Collins submits that the position in Minnesota is quite different from that in New York and, furthermore, that the evidence of Mr Brenner was exaggerated and unreliable. She relies on the letter from the United States Department of Justice of 11th December 2014. That set out a detailed explanation of how the civil commitment system works. It attached the annual report for 2013 to 2014 from the Attorney General which provides a very detailed description of the working of the law. She submits that there is no real risk of civil commitment in this case and no question that it would breach article 5 were the process in an ECHR state, still less amount to a flagrant denial of the sort contemplated in Ullah.

Minnesota and New York

[27]In Sullivanthe Divisional Court was concerned with an appeal against extradition by a requested person who argued that if convicted he was likely to be subject to civil commitment in the State of Minnesota. The relevant statute was the Sexually Dangerous Persons Act 1994. A sexually dangerous person was defined as a person who “has engaged in a course of harmful sexual conduct…[and] has manifested a sexual, personality, or other mental disorder or dysfunction; and as a result, is likely to engage in acts of harmful sexual conduct”. In that jurisdiction it is sufficient to prove “that he cannot “adequately control his sexual impulses”, para 8. Moses LJ observed the relatively low threshold that needed to be passed to establish a course of harmful sexual conduct. The court’s conclusion was contained in para 33 of his Lordship’s judgment:

“In the instant appeal the evidence does not come close to establishing that orders for civil commitment are only made in respect of those suffering from an unsound mind within the meaning of Article 5.1(e) let alone a serious mental disorder. I have already identified the Minnesota statutory authority for an order of civil commitment which merely requires that the person: “(2) has manifested a sexual, personality or other mental disorder or dysfunction;”

The risk I have found that Mr Sullivan will be detained under an order of civil commitment exists only if he manifests a sexual dysfunction. Since it is not necessary to prove that that amounts to an inability to control his sexual impulses, it is plain that the criteria fall far short of the necessity of proving he is of unsound mind.” “(2) has manifested a sexual, personality or other mental disorder or dysfunction;”

[28]By contrast in New York the law requires the State to prove that the person is a:

“dangerous sex offender requiring confinement, namely a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.”

[29]We have set out the meaning of detained sex offender and mental abnormality above. We do not agree with the judge’s view that the two regimes are broadly similar. The difference between them is marked. The law in Minnesota was amended in 1994 to extend the reach of civil commitment to include those with disorders or dysfunctions and to remove the requirement that a person should be unable to control sexual impulses. The law of New York State with which we are concerned is more recent, narrower in its scope and includes requirements that the person is(a) suffering from a mental abnormality and

(b) is so incapable of controlling his behaviour that he is likely to be a danger to others, and

(c) requires treatment in a secure facility. The evidential threshold for civil commitment is high, reflecting the policy that it should apply only in extreme cases.

Mr Brenner’s evidence

[30]Mr Brenner is a lawyer very experienced in the operation of federal law in respect of the Adam Walsh Act (which deals with civil commitment) which came into force in 2006. The Adam Walsh Act was derived from the sexual commitment laws of a number of states. His opinion was that the respondent was not at risk of being committed under that statutory provision. Having set out his expertise the judge acknowledged the reservations about him expressed on behalf of the United States Government. She said: “He does have a wealth of specialist knowledge in his own area of conducting Adam Walsh Act cases and has studied the various state laws and decisions. He is familiar with the type of secure facilities and treatment available although he had not been to the New York State facility. He was able to offer little assistance as to comparisons between the law and procedures in Minnesota and New York; that being relevant when considering the Sullivan decision”.

[31]It seems to us that it is relevant also to the question of his expertise about the operation of the New York State law and procedures on civil commitment.

The judge continued:

“He has a general expertise on civil commitment in the US and considerable expertise in his own area of practice.”

She concluded:

“His evidence is considered subject to the limitation that his opinions about New York State law and procedures are not based on personal litigation experience in that state.”

She concluded:

[32]We are not quite sure how the judge applied that limitation, which seems to us to be a fundamental problem with his evidence. It was inescapable that Mr Brenner was not an expert in New York State law and procedures nor did he have any direct experience of either. Although he had conducted a number of cases and referred to his long experience of “academic medicine” he is not medically qualified. It is unnecessary to burden this judgment with a discussion of the requirements which must be satisfied before evidence can be admitted as “expert evidence”. A basic requirement, however is that before evidence can be relied upon the expertise of a witness must be established. If it is not, the evidence is of no value.

[33]A range of statistics was deployed before the judge. As is perhaps common, many arguments can be raised on statistics and some caution is called for in their assessment. That said, the evidence in the Attorney General’s review showed that by 2014 of all those convicted of qualifying sexual offences in New York State since civil commitment was introduced in 2007 only 6.9% had been referred for hearings under the article 10 procedures. The overwhelming majority are weeded out before they get to formal proceedings. Mr Brenner opined that Mr Bowen is likely to be within that cohort. His opinion was based entirely on the nature of the offences he is alleged to have committed. We find that surprising given that only two of the counts are qualifying offences under the Sex Offender Management and Treatment Act. Were the offences themselves sufficient for a referral without more there would be no purpose in the assessment at that stage by the team and, particularly, by the psychiatric examiner. His evidence ignores the structured process that is applied before a case is even referred to a full hearing before a jury. We think it unlikely that Mr Brenner is right in his assessment, particularly as the judge recorded that Mr Brenner “could not provide examples of New York cases where the circumstances alone have provided the basis of a finding of mental abnormality.” There is no basis to think the input from the teams at the early stages is other than genuine and effective in informing the decision whether or not to refer.

[34]The evidence of Mr Brenner really comes to no more than that because the civil commitment law exists and the respondent might theoretically be subject to it, that generates the necessary real risk. The evaluation of a real risk requires the personal characteristics of the respondent to be considered together with a focussed assessment of what is likely to happen to him if he is convicted of offences which qualify him for consideration for civil management.

[35]The judge considered Mr Brenner’s opinion that the respondent is at “real risk of a finding that he is suffering from a mental abnormality”, and further, “that he lacks sufficient volitional control that he would be sexually dangerous if released”. We have read Mr Brenner’s report and considered the judge’s account of his evidence. As to the opinion expressed that there was a real risk of a finding that the respondent is suffering from a mental abnormality, we record that Mr Brenner is extremely sceptical about the manual relied on by psychiatrists and the courts, generally considered to be the gold standard: the Diagnostic and Statistical Manual of Mental Disorders (DSM) now in its fifth edition, DSMV. The manual is in use across the world. Mr Brenner alerted the judge to controversy about aspects of the current edition, demonstrated by a critical article in the New York Review of Books. We have not seen the article but we are prepared to accept that there can be controversy in a field of medicine that moves to reflect changing attitudes, changing times and a developing understanding of mental illness or abnormality. He allied himself with the view, expressed in that article, that DSMV is “medically and scientifically invalid”. As a lawyer, he would be entitled to make a submission to that effect in legal proceedings based upon evidence adduced before the court. In our view, he has no relevant expertise to express that opinion as an expert. It is Mr Brenner’s view that as regards sexual behaviour, psychiatrists have improperly attached diagnostic labels which are not appropriate and do not reflect mental illness or disorder. The respondent’s attack upon DSMV is at the heart of his complaint coupled with what Mr Brenner described as “aggressive over-diagnosis” of mental illness. Like many lawyers across the world, his work brings him into contact with disputes about whether an individual is suffering from a mental disorder, and if so what it is. That does not qualify him to give an opinion that the medical specialists involved in the production on DSMV were wrong. There is no reason to suppose that were civil commitment to be ordered, it would not follow a “proper medical diagnosis of genuine mental disorder”, as Mr Hawkes puts it.

[36]Mr Brenner expressed the view in his report “that a finder of fact would have little difficulty in finding the requisite mental abnormality.” In evidence he said that a diagnosis of paedophilia was inevitable. We repeat that Mr Brenner is not a psychiatrist or qualified to give expert medical evidence. There was no psychiatric evidence before the judge or available to Mr Brenner suggesting that the Respondent is suffering from a mental illness. On the contrary, such evidence as there was indicated that save for anxiety, he was not suffering from mental illness. However, even if he were right that a diagnosis of paedophilia could be made, that does not lead inevitably to a finding of mental abnormality within the meaning of article 10. As to evidence of lack of volitional control, Mr Brenner placed particular reliance on the fact that the respondent had breached his bail conditions, having “broken his covenant with the court”. He said in evidence that, “not turning up shows an inability to control impulses. His failure to comply with his covenant and his fraud [in relation to his passport] leads to a conclusion of strong evidence that he won’t comply with supervision and that he will follow impulses”.

[37]We disagree. The fact that a person fails to answer to his bail logically can tell the court nothing about whether he is able to control his sexual urges. The fact that he apparently has committed no further offences during the four years he has been at liberty is, it might be thought, some evidence to the opposite effect.

[38]Before leaving Mr Brenner we note that in his report he asserted that racism and xenophobia would adversely influence the outcome for Mr Bowen in the New York courts. This was a very serious allegation to make. It was not supported by the data upon which Mr Brenner purported to rely. He abandoned it at the hearing. This volte face significantly undermined his evidence, in our view. It also called into question his objectivity and independence.

[39]We have considered the voluminous material which was before the judge, in addition to the evidence of Mr Brenner. We do not accept that it supports the proposition that there is a real risk that a finding of mental abnormality would be made in this case, still less that the respondent would be at real risk of being found to be a dangerous sex offender within the meaning of Article 10. We recognise that it is for the court of first instance to make findings of fact and that this court is slow to interfere with such findings. In this case our conclusion is that the judge relied upon Mr Brenner’s evidence in ways which were impermissible given his lack of relevant expertise and in any event, on analysis, it did not provide support for the conclusion that the respondent was at real risk of being subject to civil commitment.

[40]Even were we wrong on that, in our judgment, the New York law would survive scrutiny by the Strasbourg Court on an article 5 challenge in light of the principles articulated, in particular, in Winterwerp at para 38. The provisions we have quoted make plain that the scheme can be invoked only in respect of those who suffer from a mental abnormality and then only if the further qualifying criteria are met. The essential point in Winterwerp is that detention is permissible under article 5.1(e) only if the person concerned suffers from a “true mental disorder” which warrants compulsory confinement. Article 10 satisfies those criteria.

[41]That said, the exercise is not to test the New York scheme against article 5 as if the civil management scheme had been enacted by an ECHR state. The question is whether civil commitment under the New York scheme, and the process underpinning it, would deny the very essence of the right to liberty and protection from arbitrary detention guaranteed by

article 5 ECHR

. In our judgment, that is an impossible contention.

The two further arguments

[42]Mr Hawkes submitted that there is a lacuna in the civil commitment process which leads to a further risk of a flagrant breach of

article 5 ECHR

. Article 10 permits the process to continue even if time limits are not observed. Thus if, for example, the initial notification is closer to the release date than the 100 days set out in article 10 the time available for the completion of the process is less than is required. As a result an offender may be held in custody beyond the end of his sentence even though no adverse determination has been reached. Furthermore there is no provision for bail during the article 10 process. This is, he says, plainly not compliant with

article 5 ECHR

. These arguments were not advanced before the District Judge. There is no evidence in relation to it, beyond the legislation itself. So, for example, what happens when time limits are not complied with remains a mystery. It is correct that article 10 provides that a failure to comply with time limits does not invalidate the process. In the absence of compelling evidence we would not accept that such an individual would be subject to arbitrary detention unsupervised by the courts. We do not consider that an inability to be granted bail in circumstances where probable cause has been found that an offender satisfies the article 10 criteria of mental disorder and dangerousness could amount to a complete denial of the right to liberty.

[43]These arguments are, with respect to Mr Hawkes, a theoretical construct. There is no reason at all to suppose that they support the proposition that there is a real risk of arbitrary detention in the respondent’s (or anyone else’s) case.

Conclusion

[44]We are satisfied that the New York process by which a civil commitment order may be made under article 10 would be consistent with

article 5 ECHR

if enacted in an ECHR state. In concluding that the article 10 process could lead to the commitment of someone who was not of “unsound mind” within the meaning of Article 5.1(e) the judge placed too much weight on the opinions of Mr Brenner and gave insufficient attention to the strict requirements of article 10 and, in particular, the definition of “dangerous offender requiring confinement” which we have set out above. The New York law provides that before such a finding can be made there is a proper assessment and review of the offender by mental health professionals and psychiatrists. Thereafter there would be a fair judicial process. First there is a judicial filter, effectively a leave stage, and then a trial in which the offender plays a full part. He is provided with legal assistance. He can challenge evidence relied upon by the State, and call his own evidence. The burden is on the state to prove that he suffers from a mental abnormality together with the other ingredients necessary to justify civil commitment. The determination is by a jury of 12, unless that right is waived. A unanimous verdict is required to support an order of civil commitment and there is a right of appeal. Civil commitment at the end of this process is far from arbitrary. Our analysis of the evidence in this case leads us to conclude that the respondent is not at real risk of civil commitment in any event. The circumstances of this case do not come close to satisfying the strict Ullah test necessary to resist extradition on article 5 grounds.

[45]Accordingly we allow the appeal. Supplementary Judgment Neutral Citation Number:

[2015] EWHC 18733 (Admin)

Case No: CO/374/2015 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/09/2015 Before : LORD JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - 47. Between : GOVERNMENT OF THE UNITED STATES OF AMERICA Claimant - and - TOBIAS BOWEN Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Louisa Collins (instructed by Extradition Unit (CPS)) for the Appellant Malcolm Hawkes (instructed by Leslie Franks Solicitors) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment

[1]On 30 June 2015 we handed down judgment in the appeal of the Government of the United States of America against a decision of the District Judge at Westminster Magistrates’ Court of 19 January 2015 whereby she discharged Mr Bowen, whose extradition had been sought. We indicated that we would deal with any application for certification of a point of law of general public importance and application for permission to appeal to the Supreme Court on receipt of written submissions. On 13 July Mr Hawkes, on behalf of Mr Bowen, made those applications in writing. The appeal concerned civil commitment of dangerous sex offenders pursuant to the laws of the State of New York:

[2015] EWHC 1873 (Admin)

. We refused to certify.

[2]At the same time he made a concurrent application “to reopen the determination of the appeal” pursuant to Rule 17.27 of the Criminal Procedure Rules. We invited the Crown Prosecution Service on behalf of the United States to respond to this novel application and are grateful for Miss Collins’ written submissions.

[3]We indicated that we would deal with the application on the basis of written submissions.

[4]The essence of the application is that the judgment we gave was in error in a number of respects. The submission advanced, which runs to 105 paragraphs, refers to materials not relied upon by the respondent 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.

[5]Rule 17.27 provides:

“17.27. (1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal. (2) Such a party must— (a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and (b) serve the application on the High Court officer and every other party. (3) The application must— (a) specify the decision which the applicant wants the court to reopen; and (b) give reasons why— (i) it is necessary for the court to reopen that decision in order to avoid real injustice, (ii) the circumstances are exceptional and make it appropriate to reopen the decision, and (iii) there is no alternative effective remedy. (4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations.”

[6]The language of rule 17.27(3) mirrors precisely that of Part 52.17 of the Civil Procedure Rules which provides a similar power to reopen a final appeal following determination in the Court of Appeal. In turn, that rule reflects the common law position identified in Taylor v. Lawrence

[2002] EWCA Civ 90

. The narrow scope of the application of that rule is well-established in the authorities, collected together in the notes to the rule in the White Book.

[7]This court has considered identical language found in section 108(7) of the Extradition Act 2003 as Crim PR 17.27(3)(b)(i) and (ii), which enacted the recommendation of Sir Scott Baker in September 2011 that human rights issues arising at the end of the extradition process in Part 2 cases should be dealt with by the courts: see paragraphs 9.32-40 and 11.71-2 of the report of the review. The recommendation was that any supervening human rights issues arising after the conclusion of the appeals should be addressed by re-opening the appeal in the High Court. This had the effect of removing the Home Secretary’s obligation to consider such issues when raised late in the process (i.e. after an appeal to the High Court) with the possibility of subsequent judicial review of her decision, by vesting it in the courts. In McIntyre v Government of the United States

[2014] EWHC 1886 (Admin)

at [11] Lord Thomas CJ identified the principles which should apply to the question whether exceptionally to avoid real injustice an application under section 108 should be heard by this court:

“The court should simply give effect to the statutory language having regard to its statutory context and purpose: i) It is well established that all issues relating to the extradition of a requested person under Part 2 of the 2003 Act should be raised at the extradition hearing before the District Judge. ii) On any appeal to the Divisional Court the court only considers such issues as have been raised, subject to s.106(5) (a) and (b) of the 2003 Act, as explained by Sir Anthony May PQBD in Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 32-35 in relation to the equivalent provision in Part 1 (s.29(4) (a) and (b)). iii) The decision on the extradition hearing (if there is no appeal) or of the Divisional Court or Supreme Court (if there is an appeal) is intended to bring finality to the extradition proceedings; the Home Secretary is thereafter under an obligation to extradite within strict time limits. iv) Exceptionally events can occur after the decision on the extradition hearing (if there is no appeal) or of the Divisional Court or of the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights. v) It was determined by Parliament that it is not apposite that the jurisdiction to determine these issues should remain with the Home Secretary. vi) The provisions of s.108 (5)-(8) are therefore intended to permit the determination of such issues by the courts by way of an appeal. The express language of the new provisions makes it clear a court can only consider such an appeal if it is both necessary to avoid a real injustice and the circumstances are exceptional and make it appropriate to consider the appeal. vii) It is not necessary to embellish that language. It is evident from the statutory purposes that a requested person will ordinarily have to establish that the issue arises as a result of a supervening development or event. It will also be necessary to provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal. viii) Any application under s.108 (5) - (8) must be brought promptly. The evidence relied on should be filed with the application or within a period immediately thereafter to be measured in days, not weeks. The court must make arrangements for the rapid hearing of the application. It may be desirable for appropriate directions to be given immediately in writing by the Master of the Administrative Court. Strict compliance with the directions must be observed (or a variation sought from the court). The matter should generally be determined at a single hearing to avoid delay. However, though such applications will be rare, the practice we have outlined should be reviewed in the light of experience. ix) Applications under the new provisions must not be used to bring about undue delay to the process of extradition.”

[8]In our judgment these principles apply with necessary modifications to an application to reopen under the Crim PR. Such an application is not limited to Human Rights grounds. Subparagraph (v) has no application in the context of this case nor (viii), in the first instance, because Crim PR 17.27 envisages a leave stage, which will be conducted on paper. There is, in addition under this rule, the requirement that there should be no alternative effective remedy. It is very difficult to envisage that such an application could be made whilst there is an outstanding application for certification.

[9]We would draw particular attention to the expectation that the jurisdiction under Crim PR 17.27 will not be exercised unless something has developed after the determination of the appeal. The jurisdiction is not designed to allow a disappointed party to the appeal to reconsider his arguments, material and evidence and come back to the court to have another go. Furthermore, we would emphasise the importance of finality in extradition cases by noting the observations of Lord Thomas in Abu Hamzav Government of the United States of America

[2012] EWHC 2736 (Admin)

at [21] and [22],namely that there is an overwhelming public interest in both the proper functioning of extradition arrangements and in honouring extradition treaties as well as there being an equally high importance in the finality of litigation. Finality of litigation is particularly important in extradition cases:

"because of the public interest in an efficient process, the need to adhere to international obligations and to avoid a recurrence of the delays which have so disfigured the extradition process in the past and to which successive appeals over time can subject it."

[10]The application to reopen falls far short of satisfying the test found in Crim PR 17.27. We refuse permission to do so.

Cited in 13 later judgments

and 4 more of the most senior