Prospect of indefinite detention halts extradition

The Government of the United States of America v Giese [2015] EWHC 2733 (Admin) (07 October 2015)

The UK High Court found that a District Court judge was correct in refusing to extradite Mr Alan Giese to the United States, where he faced serious charges of sexually assaulting a teenage boy. The appeal was pursuant to section 105 of the Extradition Act 2003 (UK) and was lodged by the United States’ Government. The relevant question hinged on the application of Article 5 of the European Convention on Human Rights (ECHR) and whether the civil commitment for serious sex offenders laws in California breached this provision.

Facts

Mr Giese was charged with numerous serious sexual offences in the US from May 1998 to May 2002 against a young boy. Mr Giese was charged and bailed to a US court, however he failed to answer his bail and a warrant was issued for his arrest. Following this, he fled to the UK and remained undetected until 12 February 2014, when US authorities requested that Mr Giese be extradited for trial to California. Mr Giese was arrested on 4 June 2014 to face a UK court for extradition proceedings.

If extradited, Mr Giese would likely to be subject to an order for civil commitment in California. Civil commitment involves the indefinite detention of serious sexual offenders, with annual reviews. Accordingly, the District Court judge called expert witnesses to provide evidence on the following questions:

• Is there a “real risk” that Mr Giese would be subject to civil commitment?
• If Mr Giese is subject to civil commitment, would this constitute a “flagrant breach” of his rights under Article 5(1) of the ECHR?

The District Court judge found that Mr Giese would be subject to a real risk of civil commitment and this confinement would be in breach of his rights under Article 5(1) of the ECHR. The US Government appealed the decision not to extradite.

The decision

The High Court upheld the District Judge’s decision. In doing so, the court was required to consider two issues:

• Was the District Judge wrong to conclude that there is a real risk that Mr Giese would be subject to a civil commitment order?
• Was the District Judge wrong to conclude that the extradition of Mr Giese would be incompatible with his Article 5 ECHR rights for the purposes of section 87(2) of the Extradition Act?

The US Government challenged the findings that Mr Giese would be at a real risk of being subject to an order of civil commitment, and argued that it was “wrong in law”. The US Government agreed that that if Mr Giese was convicted of the sexual assault charges, civil commitment may be a “likely” conclusion. Accordingly, the US Government argued that there was “no certainty” of Mr Giese being subject to an order of civil commitment and that any assessment at this stage, prior to extradition, is “purely speculative”. The Court did not accept this submission, and instead concluded that:

Because of the nature of these serious charges…the age of the victim…the degree of grooming and breach of trust said to have been involved, because of the length of time over which the offending is said to have been perpetrated, [it] makes it a near certainty that Mr Giese will be referred…for evaluation (for a civil commitment order).

The US Government also argued that these civil commitment laws are analogous to the UK’s laws which allow for indeterminate detention of an individual when they are “of unsound mind" (permissible under Article 5(1) of the ECHR, as interpreted by European Court of Human Rights (ECtHR)). The High Court rejected this claim.

The Court found that the District Judge was correct in her conclusion that there was a “real risk” of Mr Giese facing civil commitment if found guilty of the sexual assault charges. It also found that such civil commitment would breach Mr Giese’s rights under Article 5(1) of the ECHR and extradition would be “inconsistent” with his ECHR rights. Accordingly, the Court found that he should be discharged unless assurance is provided that there will be no case of civil commitment brought against Mr Giese in the event that he is charged. The US Government failed to give this assurance, despite being given ample opportunity.

Commentary

This is clearly a vexed decision: the Court was required to weigh up an individual’s human rights with the broader justice imperative of criminal accountability for serious offences. Importantly, the Court provided a way to ensure Mr Giese was brought to justice, which would have been for the US Government to provide an assurance that Mr Giese would not be indefinitely detained pursuant to a civil commitment order. The US Government was unable to provide this assurance – and therefore would not guarantee that Mr Giese’s ECHR rights would be upheld.

On the one hand, this decision could be seen as inadvertently condoning absconding behaviour. Mr Giese absconded from a jurisdiction which is not subject to the ECHR, and in doing so and arriving in the UK, he ensured he had greater human rights protections than he would have had available to him in the US. The result is that he has been able to avoid criminal prosecution for serious offences.

On the other hand, the Court’s decision could be understand is applying the ECHR is an un-bias way – all people, irrespective of who they are and what they are (alleged) to have done, are deserving of human rights protection. The high level of human rights protection provided by the ECHR should be upheld, rather than undermined through extradition proceedings to a jurisdiction with a lesser human rights regime.

Given how political extradition decisions are, it would be unsurprising if this decision of the High Court was appealed.

The full case can be found here.

Isaac Johanson-Blok is a researcher at the Human Rights Law Centre.