Mitchell v Government of the United States of America & Anor

This is an appeal by Mr Mitchell against two decisions. He challenges first the decision of District Judge Shenagh Bayne in the Westminster Magistrates Court on 25^th February 2016 to send to the Secretary of State for the Home Department (‘SSHD’) the request by the US Government that he should be extradited to face prosecution on one count of distributing child pornography. Secondly, he appeals against the SSHD’s decision that he should be so extradited.

Central to both his challenges is his concern that, if extradited, convicted and sentenced to prison, he would not be released at the end of his sentence. Instead, he says, he may be subject to ‘civil commitment’ as a dangerous sex offender under a federal statute, the Adam Walsh Child Protection and Safety Act (‘the Adam Walsh Act’) which is codified at Title 18, United States Code s.4248. He argues that civil commitment would be arbitrary detention and a flagrant denial of his rights under Article 5 of the European Convention on Human Rights (‘ECHR’). Additionally, his extradition would be a breach of his rights under Article 8 of the ECHR. Accordingly, the District Judge ought to have refused to send the request for his extradition to the SSHD in accordance with the Extradition Act 2003 (‘EA 2003’) s.87 and instead ordered his discharge. Furthermore, the prospect of civil commitment means that he would not have the specialty protection which EA 2003 s.95 requires. In consequence the SSHD was bound not to order his extradition.

The allegation against the Appellant goes back to a time in 2013 when he worked as a nanny or au pair for a family in Decatur, Georgia, USA. He was looking after three boys aged 10 – 12. An undercover FBI officer in Pennsylvania used a peer to peer network called Gigatribe and observed that a user with the name ‘Mitch287’ had 897 files in a password protected folder. Thumbnail images suggested they were, or included, child pornography. The agent contacted Mitch287 who provided the password and the undercover officer was able to download and inspect the files. They contained images of pre-adolescent and adolescent boys exposing their genitals or engaging in sexual acts.

Title 18, United States Code, s.2252(a)(2) prohibits the inter-state distribution of child pornography. The maximum sentence is 20 years imprisonment.

On 25^th March 2014 a federal grand jury sitting in Atlanta, Georgia returned an indictment with one count which charged the Appellant with an offence under this provision. It was filed with the US District Court for the Northern District of Georgia and, on the same day, a warrant was issued for the arrest of the Appellant.

An affidavit testifying to these matters was sworn by Ms Jamie Mickelson, an Assistant US Attorney on 23^rd September 2014.

The US Department of Justice requested the Appellant’s extradition on 6^th October 2014. On 20^th April 2015 the SSHD certified that the request had been made in the approved way. The USA is a territory for the purposes of Part 2 of the EA 2003. The Appellant was arrested and brought before the Westminster Magistrates’ Court.

Many of the matters which the District Judge had to consider were not disputed and I can pass over these. However, the Appellant did argue that his extradition would be incompatible with his rights under the ECHR and was therefore barred by EA 2003 s.87. He claimed:

The sentence which he was likely to receive would be of disproportionate length and would be contrary to his rights under Article 3 of the ECHR. The District Judge rejected this challenge. Her finding in this regard has not been appealed. I need say no more about it.

As I have already mentioned, he claimed that, if he was extradited and convicted, towards the conclusion of any sentence imposed by the criminal court, he was at risk of being subjected to civil commitment and this would be contrary to his rights under Article 5 of the ECHR.

He argued that there was a risk that he would be prosecuted under the criminal law of the state of Georgia as well as by the federal authorities who were seeking his extradition. He argued that this risk of dual prosecution made his extradition disproportionate and contrary to his rights under Article 8 of the ECHR.

The District Judge had from the Appellant a report dated 10^th August 2015 by Dr Melissa Hamilton who is a qualified lawyer and an academic in Texas and a supplemental report by Dr Hamilton of 9^th December 2015. Ms Mary Rodriguez of the US Department of Justice provided a letter dated 19^th October 2015, and Ms Mickelson made a declaration dated 21^st October 2015 in response to Dr Hamilton’s first report and a second declaration dated 13^th January 2016 in response to Dr Hamilton’s supplemental report. Dr Hamilton gave oral evidence. Ms Mickelson did not.

In her decision the District Judge made the following material findings:

Dr Hamilton’s experience in practice was limited to 1 year as a law clerk to a federal appellate judge. She was an academic with experience in researching federal sentencing, laws and policies regarding (among other things) child pornography. She based her evidence on the gathering of data and analysis of case outcomes, rather than the day to day experience of judicial process. She had strong views about the punishment of sex offenders and thought that lengthy incarceration was inappropriate. She had little practical experience of the federal legal system or the legal system in the state of Georgia.

Ms Mickelson had been employed by the US Department of Justice since 2010 and specifically in the Northern District of Georgia since 2013. She had 6 years experience of prosecuting offenders in West Virginia and Georgia and had day to day experience of decision making in the judicial process. The District Judge recognised that there had been no opportunity to cross examine Ms Mickelson.

The evidence of both Dr Hamilton and Ms Mickelson was admissible under EA 2003 s.202 but the weight to be given to their evidence was for the District Judge to decide.

The experts agreed that the Appellant would face a minimum sentence of 5 years and a maximum of 20 years. It was uncertain what precise sentence he would receive between these figures, although it was likely to be just above 9 years.

Such a sentence would be considerably greater than would be imposed for a comparable offence in the UK, but it would not infringe the Appellant’s rights under Article 3.

The civil commitment procedure in the US provides for indeterminate detention which could not be justified under Article 5(1)(a) or Article 5(1)(e) of the ECHR. The District Judge referred to the case of Sullivan v USA [2012] EWHC 1680 (Admin).

However, extradition would only be a breach of the Appellant’s rights under Article 5 if there was a real risk that he would be subject to civil commitment.

In this case there was no real risk that the Appellant would be civilly committed. That was because:

The Appellant was of previous good character. The present charge did not involve contact molestation with any child.

The Appellant was a British Citizen. The letter from Ms Rodriguez of 19^th October 2015 amounted to an assurance that he would be subject to deportation at the conclusion of his sentence. That letter was an indication of the course of proceedings which would follow at the end of his sentence. It had been given after consultation with the appropriate bodies that would have a say in what happened to the Appellant at that stage. He would then have no lawful status in the USA. He would be subject to removal and would not be entitled to a removal hearing before an Immigration Judge. In any case, that course would make practical and economic sense. The purpose of civil commitment was to protect the public in the US. The deportation of the Appellant would do that as effectively. There would be no likely obstacles to his deportation. The position was closely analogous to that in Castle v USA [2013] EWHC 1048 (Admin) where also the Court had found that there was not a real risk that a British Citizen would be subject to civil commitment rather than deportation at the conclusion of his sentence.

Sullivan had concerned extradition to Minnesota which had its own (state) regime of civil commitment. Georgia did not. It was, of course, always possible that the state of Georgia might also in future enact its own civil commitment regime, but that possibility was speculative and no more than a fanciful risk.

It was true that the federal offence relied on an inter-state element in the distribution of child pornography. In theory that might expose the Appellant to a risk of civil commitment in another state apart from Georgia. However, there was no evidence that any other state was interested in taking such action. The risk of it happening was no more than fanciful.

There was no real risk that the Appellant would be subject to dual prosecution (i.e. prosecution first by the federal authorities and then by the authorities of one of the individual states). In her initial evidence Dr Hamilton had said this was unlikely, although she later revised her view and said it was possible. However, the District Judge preferred the first evidence of Dr Hamilton and accepted the evidence in response from Ms Mickelson that dual prosecution was rare and only where there was evidence of contact molestation. There was no such evidence in the Appellant’s case. Article 18 of the US/UK treaty on extradition would also protect the Appellant.

The Appellant’s extradition would not be disproportionate or a breach of Article 8 of the ECHR. He was a single man with no dependents. He was estranged from his parents and siblings. There was nothing in his circumstances to set against the strong public interest in giving effect to extradition arrangements which outweighed the interference there would be in his private life.

The SSHD ordered the Appellant to be extradited on 19^th April 2016.

The Appellant has a right of appeal against the decision of the District Judge by EA 2003 s.108 and against the decision of the SSHD by s.103. He needed permission to appeal which Ouseley J. granted on 11^th August 2016.

In paragraph 78 of her decision the District Judge said,

At the level of the Divisional Court Mr Hawkes, on the Appellant’s behalf recognises that an extradition will only infringe the Appellant’s Convention rights on Article 5 grounds if there is a real risk of a flagrant breach of Article 5 in the requesting state – see R (Ullah) v Special Adjudicator [2004] 2 AC 323 but, he submits, the District Judge recognised that this was the case. She referred to Ullah in her decision and it must be implicit in paragraph 78 that she was finding that civil commitment would indeed be a flagrant breach of Article 5.

During the course of the hearing, Mr Cadman, on behalf of the Government of the USA, applied to put in a Respondent’s Notice seeking to uphold the District Judge’s decision on the alternative ground that she was wrong to reach any such conclusion. Very fairly, Mr Hawkes did not oppose Mr Cadman’s application (although he did, of course, not accept that the additional ground had merit). That was both fair and sensible on Mr Hawkes’s part. It was sensible because he was well able to respond to the new argument despite the late notice. We heard all parties on this issue de bene esse but said we would deal with Mr Cadman’s application in the course of our judgment. I will return to this question below.

But, even if Mr Hawkes is right about the way we should read paragraph 78, the appeal against the District Judge’s decision can only succeed if he can persuade us that she was wrong to conclude that the Appellant did not face a real risk of civil commitment.

Mr Hawkes says that the District Judge was wrong to conclude that the Appellant did not face a real risk of civil commitment for the following reasons:

Ms Rodriguez’s letter said only that she ‘submits’ that the Appellant would be deported. This fell short of an assurance on the part of the Government of the USA that that course would be followed.

If, prior to the conclusion of the Appellant’s federal sentence, he was prosecuted in a state court, the federal government would not have the power to deport. Although there was no evidence to this effect before the District Judge, a concession to this effect was made on behalf of the US Government in Bowen v Government of the United States of America.

The civil commitment process was initiated prior to the completion of a criminal sentence. Deportation only after the sentence was completed would not therefore protect the Appellant from civil commitment.

On the District Judge’s findings, the Appellant was likely to receive a sentence in the order of 9 years or more. The danger for the Appellant in seeking to rely on an ambiguous statement made many years previously will be all the greater.

It is striking that the US Government has not given an assurance that it will not seek civil commitment. Ms Rodriguez said that she had consulted with the Board of Prisons, but the communication to the English court has not been made by that body, yet that body (or its delegate) is authorised to seek civil commitment under the federal statute.

I was not persuaded by Mr Hawkes’s submissions on this matter. I am not persuaded that the District Judge erred in her conclusion that there was no real risk that the Appellant would be subjected to the civil commitment procedure.

Ms Rodriguez’s letter began by saying this,

Mr Hawkes relies on the use of the word ‘submits’ suggesting that Ms Rodriguez was speaking of a prediction as to what would happen rather than an assurance. But in my view, the District Judge was entitled to reach the conclusion that she did, namely that the US would deploy deportation rather than civil commitment at the conclusion of any sentence imposed on the Appellant. While it is right that a District Judge must scrutinise communications from requesting states with care, a fair reading of this letter really allowed no other conclusion. After all, the final sentence of this opening paragraph (‘Therefore the issue of civil commitment will not arise.’) only makes sense if it is read as the District Judge did. But, in any event, that may not matter.

Ms Rodriguez’s letter went on to refer to the case of Richard Castle who had been extradited to the USA in 2013. There, too, the requested person had been a British Citizen. There, too, concerns were raised about the possibility of civil commitment at the conclusion of any criminal sentence. There, too, a letter (in very similar terms) had referred to deportation at the conclusion of the sentence. The judgment of this court (Castle v Government of the USA [2013] EWHC 1048 (Admin)) did not record how the District Judge interpreted the letter. This Court (Moses LJ and Kenneth Parker J) seem to have been content to regard it as something less than a formal assurance - see [26] – but nonetheless explained that the course of deportation rather than civil commitment made eminent sense for the US authorities when dealing with a British Citizen at the conclusion of his sentence. It may be different where there were potential obstacles to deportation (such as an anticipated claim for asylum), but this Court in Castle said that nothing of that nature arose and there was in that case no real risk the US authorities would embark on the course of civil commitment rather than have recourse to the far more obvious remedy of deportation. Ms Rodriguez said that the same applied in the present case. The District Judge agreed. In my view she was plainly entitled to do so.

Georgia currently has no state civil commitment legislation comparable to the Adam Walsh Act. Ms Mickelson acknowledged the obvious truth that it was possible that the state legislature might decide to pass such legislation (as about 20 other states have done), but while this was a possibility, the District Judge was plainly entitled to conclude that there was not a real risk that the Appellant would face civil commitment proceedings from the state of Georgia. In those circumstances, it is unnecessary to consider whether it is open to the federal government to deport someone who is subject to state civil commitment proceedings.

Because of this conclusion, it is not strictly necessary for me to reach a view on Mr Cadman’s Respondent’s Notice. He seeks to argue that the District Judge was wrong to find that civil commitment infringed Article 5, still more was she wrong (if this was implicit in paragraph 78 of her decision) to find that civil commitment would constitute a flagrant denial of Article 5. He draws attention to the decision of the European Court of Human Rights in Bergmann v Germany (application No 23279/14) where judgment was given on 7^th January 2016. There is some force in his arguments, but for myself, I would rather leave a decision to a case where it is of practical importance. Much may turn on the detail of the legislation in question.

EA 2003 s.95 provides;

The offence is one falling within subsection (4), or

He is given an opportunity to leave the territory.

The offences are –

Mr Hawkes submits that, if the Appellant were civilly committed at the conclusion of his sentence, this would be an example of him being ‘dealt with’ as the expression is used in s.95(3). While the basis for civil commitment might include the interstate distribution of child pornography with which he is presently charged, it was also likely to encompass suspicion or allegations of other conduct which took place prior to the extradition. That was because, as Dr Hamilton’s evidence showed, those who committed offences of distributing such material were regarded as people who would potentially commit contact offences. Mr Hawkes accepted that there was no breach of specialty if the requesting state took account of conduct other than the offence for which extradition had been granted in fixing the criminal sentence – see Welsh v SSHD [2006] EWHC 156 (Admin) and Norris v USA (No.2) [2009] EWHC 995 (Admin). However, he submitted, that was different since the criminal court’s task was then to fix a determinate sentence while civil commitment continued indefinitely.

The difficulty with this argument is that the very same submissions were made to the Divisional Court (Simon LJ and Mitting J) recently in Bowen v SSHD (No.3) [2016] EWHC 1400 (Admin). They were rejected.

The court considered whether the impugned proceedings were criminal or civil. A starting point was to consider how the requesting state regarded their nature. It noted that the US courts considered civil commitment to be a civil measure and not criminal - Kansas v Hendricks 521 US 346 (1997). That was a start, but only a start: classification by the requesting state could not be determinative (Bowen (No.3) at [37]. In England importance is placed on whether the proceedings were concerned with the prevention of criminal conduct in the future (in which case they were likely to be civil) or with condemnation and punishment (in which case they were likely to be criminal). – R (McCann) v Crown Court at Manchester [2003] 1 AC 787. In Bowen (No.3) the court concluded that the New York civil commitment process was to be treated, as a matter of the law of England and Wales, as a civil process and not a criminal process. It was designed for the protection of future harm rather than the punishment of past offending – see [48]. The Court also rejected an argument that detention prior to a final civil commitment offended the specialty principle. It said at [49],

Mr Hawkes observes that Bowen (No.3) was concerned with the system of civil commitment as operated in New York State, whereas what is in issue in the present case is the federal Adam Walsh Act version of civil commitment. He argued that the two were different. The New York system, he said, operates more swiftly and had time limits built into it. At the conclusion of the New York process a designated dangerous sexual offender could be either committed or required to undergo supervision in the community. That choice was not built into the federal system.

I am not persuaded that these are good grounds for distinguishing Bowen (No.3). I see no grounds for concluding that the purpose of the federal legislation is different from the purpose of the New York legislation. Furthermore, the court in Bowen (No.3) did not find that the principle of specialty was not infringed because the New York system operated relatively quickly (if that be the case) or that there was the choice at the end of the process to which Mr Hawkes referred. Those features are not mentioned.

The decision of a previous Divisional Court is not binding on us as a matter of precedent, but it should be followed unless we were persuaded that it is ‘clearly wrong’ – see R v Manchester Coroner ex parte Tal [1985] QB 67, 81. In my view Mr Hawkes’s submissions came nowhere near meeting that exacting test. Accordingly, I would follow Bowen (No.3) and reject the Appellant’s ground of appeal based on specialty.

That means that it is unnecessary to give a definitive answer to the question as to whether s.95 precludes extradition where there is a lacuna in the specialty arrangements but there is no real risk of the facts which would give rise to the lacuna occurring. Mr Hawkes’s response was that either arrangements exist to preclude the requested person being dealt with matters contrary to the principle of specialty or they do not. There is, in his submission, no middle ground. He may be right, but it would, to say the least, be odd if the beneficial public policy behind extradition arrangements, could be jeopardised by what on this hypothesis is no more than a fanciful possibility.

Mr Hawkes’s argument that extradition would be a disproportionate interference with the Appellant’s private life has a very particular basis. The Appellant is unmarried. He is not in a relationship. He has no children. He appears to be estranged from his parents and siblings. Despite that unpromising start, Mr Hawkes submits that extradition would be disproportionate because the Appellant would face the prospect of being prosecuted both by the federal authorities and also by one of the State authorities for distributing child pornography. Like the District Judge I will refer to this for simplicity as the risk of ‘dual prosecution’ although, at least in theory, the Appellant’s conduct might contravene the criminal law of more than one of the States.

Mr Hawkes did not argue that he could frame this as a specialty objection. The Appellant’s fear is that both the federal and the state prosecution would be based on the same facts and the State prosecution on that basis would be permitted by s.95(4)(b). The same may be said of Article 18 of the UK/US Extradition Treaty to which the District Judge had referred. Instead, Mr Hawkes submits that it would be disproportionate to expose the Appellant to such a risk. Because of the time which the Appellant has already spent in custody (and which would be comparable to any sentence that he would be likely to have received for an equivalent offence under the Protection of Children Act 1978 –an offence which can be committed by a UK national, such as Mr Mitchell, even abroad – see Sexual Offences Act 2003 Schedule 2(1)(d)(i)) it cannot be said his offence has been costless. As such, he argues, extradition would be a disproportionate interference with the Appellant’s private life.

The District Judge dealt with this argument by finding that the risk of any State (as opposed to the federal authorities) prosecuting the Appellant was fanciful. On the evidence the individual States only took action in addition to the federal authorities where there was evidence of contact molestation, in respect of which the federal criminal law would not (or, perhaps not usually) bite. There was no evidence here that the Appellant had committed any contact offences. The evidence before the District Judge showed that the number of cases where there had been both federal and State prosecutions was anyway very small.

It is sufficient for me to say that nothing which Mr Hawkes submitted persuaded me that the District Judge was wrong to characterise the risk of the Appellant being prosecuted by both the federal and one or more State authorities as fanciful. EA 2003 s.202 gives a District Judge a wide latitude to accept documentary evidence from a requesting state (see s.202(3) and (5)). Mr Hawkes argued that the District Judge ought not to have admitted Ms Mickelson’s statements so far as they constituted expert evidence because she had not made the declarations required of experts and, in any case, as an employee of the requesting state, she was plainly not independent. However, in my view, s.202 is broad enough to allow the District Judge to admit evidence such as this. Of course the weight to be given to such evidence and the relative weight to be given to the evidence of Ms Mickelson on the one hand and Dr Hamilton on the other were matters for the District Judge to assess. She gave cogent reasons for her conclusions which cannot be characterised as unreasonable. Whatever the position would be if there was a real risk of dual prosecution, it cannot help this Appellant.

In my view none of the grounds of appeal advanced by Mr Hawkes succeeds. It follows that the appeal against the decision of the District Judge must be dismissed and the appeal against the decision of the SSHD must also be dismissed.

I agree.