Sullivan v The Government of the United States of America & Anor  EWHC 1680 (20 June 2012)
The appellant appealed to the England and Wales High Court against orders for his extradition to the United States to be prosecuted for sexual offences. Lord Justice Moses held that the extradition would expose the appellant to a real risk of detainment under the Minnesota “civil commitment” program, which would amount to a flagrant denial of his rights under article 5.1 (deprivation of liberty) of the European Convention on Human Rights.
Between July 1993 and January 1994 the appellant allegedly indecently assaulted two girls under the age of 13 and allegedly raped a girl aged 14 in Minnesota, before fleeing the United States. He was eventually arrested in the United Kingdom on 28 June 2010. In 1997 he was convicted of two further indecent assaults on two 12 year old girls in Ireland.
The United States government sought his extradition from the UK to prosecute him for the US offences. Mr Sullivan asserted that, if extradited, there was a real risk that he would be detained under a process called “civil commitment”.
In Minnesota, a person may be committed indefinitely if found by a judge to be a “sexually dangerous person” under the following criteria specified in the Sexually Dangerous Persons Act 1994 (Minn) (the Act): the person has engaged in a course of harmful sexual conduct; has manifested a sexual, personality or other mental disorder or dysfunction; and is likely to engage in future acts of harmful sexual conduct.
An order of committal is made by a court not on sentencing, but when a convicted sex offender is approaching release. An order follows the inmate’s referral by the Department of Corrections to the prosecutor’s office, the filing of a petition by a prosecutor with a district court, an examination of the respondent by a court-appointed mental health expert, and, finally, the court’s finding that the statutory criteria are satisfied.
Lord Justice Moses found that “[t]here is a real risk that if extradited the appellant might be subject to an order for civil commitment within Minnesota and that that amounts to a risk that he would suffer a flagrant denial of his rights enshrined in Art. 5.1.”
Despite this conclusion, there was no order made on the appeal. His Honour stated that it is in the interests of justice that the appellant faces trial in respect of the serious allegations made against him. To otherwise allow the appeal would have deprived the US Government of the opportunity to give an undertaking to not make an order for civil commitment, as the court would need to quash the order for his extradition under section 104(5) of the Extradition Act 2003 (UK) (the Extradition Act).
Risk of an order of civil commitment if returned
The court adopted the principle established in R (Ullah) v Special Adjudicator  UKHL 26 that in order to resist extradition an applicant must show strong grounds for the conclusion that there is “a real risk of infringement” that his Convention rights will be violated if returned.
In his assessment of the Act, the appellant’s expert witness Professor Janus provided a number of reasons as to why there was a real risk that the appellant would be categorised as a “sexually dangerous person”. One reason was that each of Sullivan’s five acts of sexual misconduct – three suspected and two proven – would be taken into account on applying the Act, considering that 45 percent of men currently under the program had two or fewer criminal convictions prior to their commitment.
The evidence submitted at first instance by the US Government from Judith Cole, the Assistant Hennepin County Attorney was to the effect that the applicant does not meet the criteria for civil commitment under the Act. On appeal, however, Ms Cole’s evidence was that it is too early to be able to predict whether a petition for civil commitment would be filed against the appellant.
This significant change of position by the US Government, combined with the cogent evidence of Professor Janus, led the court to conclude that there was a real risk that if returned the appellant would be subject to an order of civil commitment.
Risk of an order of civil commitment leading to a flagrant denial of the right to freedom from deprivation of liberty
The court applied the principle established in Soering v United Kingdom  11 EHRR 439 that in order to resist extradition, the infringement, the occurrence of which there is a real risk, must amount to a flagrant denial of rights under the Convention. The court held that detention under civil commitment would amount to a flagrant denial of article 5.1 deprivation of liberty. Of particular relevance was the fact that not one of the 600 persons committed since 1988 has been released. The court also found that committal is not justified under any of the article 5.1 exceptions. Specifically, the article 5.1(a) exception for lawful detention after conviction by a competent court is not relevant as the decision to commit is not made by the sentencing court. Further, the article 5.1(e) exception for the lawful detention of persons of unsound mind did not apply as the Act does not require the prospective subject of a civil commitment order to be suffering from a serious mental disorder, but rather a “sexual … disorder or dysfunction”.
The appellant’s arguments concerning his article 6 right to a fair trial and section 95 (speciality) of the Extradition Act were deemed unnecessary to consider in detail because of the finding concerning article 5.1. In obiter, his Honour indicated that both would likely fail, the article 6 argument because “[a flagrant denial of justice] only exists where the breach of the principles of fair trial guaranteed by Art. 6 is so fundamental as to amount to a nullification of the very essence of the right.”
This judgment has general relevance to section 21(3) of the Charter, as it provides guidance on what constitutes a real risk of a flagrant denial of the right to freedom from deprivation of liberty sufficient to challenge an order for extradition. This question is yet to be considered by a Victorian court. Unlike the Convention, the Charter does not specify circumstances in which deprivation of liberty is justified.
The obiter concerning article 6 has general relevance to section 24 of the Charter which protects the right to a fair trial, as it provides guidance on the requirements for establishing a flagrant denial of justice.
It is relevant to note that Australia has an International Transfer of Prisoners scheme which allows people imprisoned in a foreign country to apply to transfer to their own country to serve the balance of their sentence, provided certain conditions are met. The question as to how this scheme would intersect with the Charter remains to be judicially considered.
The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1680.html
Jade Cooper is a Vacation Clerk at Allens Linklaters.