Government of the United States v Bowen [2015] EWHC 1873 (Admin)

 

800px-Flag_of_the_United_States.svgBackground

On 30 July 2015, the High Court refused to reopen the appeal against the decision of District Judge Rose not to extradite Tobias Bowen, from the United Kingdom to the United States, on the basis that the application made by the US failed to meet the test in Rule 17.27 of the Criminal Procedure Rules (Crim PR). The judgment is here.

District Judge Rose, 19 January 2015

On 19 February 2015, District Judge Rose, sitting at Westminster Magistrates’ Court, discharged Tobias Bowen, a Dutch/Liberian dual national whom the US sought to extradite from the UK to stand trial in New York for alleged sexual offences.

District Judge Rose ruled that the extradition of Mr Bowen to the US would violate his rights under Article 5 of the European Convention of Human Rights (ECHR). This was on the basis that there was a risk that Mr Bowen would be subject to ‘civil commitment’ procedures in the US, were he to be deemed to be dangerous and suffering from a mental abnormality.

Under the civil commitment procedure, District Judge Rose concluded that Mr Bowen might be detained even if he were not of ‘unsound mind’, violating Art 5 ECHR.

On 15 July 2015, the United States sought permission to appeal the decision to the Supreme Court, which was refused by the High Court. The respondent also made a concurrent application to reopen the determination of the appeal, pursuant to Rule 17.27 Crim PR.

High Court, 30 July 2015

On 30 July 2015, Lord Justice Burnett and Mrs Justice Thirlwall DBE, sitting at the High Court, dismissed the application, and clarified the application of the operation of Rule 17.27 Crim PR. The Court held:

  • Rule 17.27 Crim PR is not designed to enable an unsuccessful party in extradition proceedings to regroup immediately after losing an appeal and to return with further developed submissions.
  • In McIntyre, Lord Thomas CJ considered the language of section 108(7) EA 2003, which is identical to the language in Rule 17.27(3)(b) (i) Crim PR, and which enacted the recommendation that human rights issues arising at the end of the extradition process in Part 2 extradition cases should be dealt with by the courts. In the McIntyre judgment, at paragraph 11, available here, Lord Thomas CJ identified the principles which should apply to the question of whether to avoid real injustice, an application under s. 108 EA 2003 should be heard by the High Court. These same principles applied to an application to reopen under the Crim PR, subject to necessary modification. Further, such an application was not limited to human rights grounds.
  • Under Rule 17.27 Crim PR, there is the additional requirement that there is no effective remedy. It is very difficult to envisage that such an application would be made whilst there was an outstanding application for certification.
  • There is the expectation that the jurisdiction under Crim PR 17.27 will not be exercised unless something has developed after the determination of the appeal. Finality is important in extradition cases. There is an overwhelming public interest in the proper functioning of extradition arrangements and in honouring extradition treaties, and in the finality of litigation. Abu Hamza considered.
  • The decision would not have been different in the event that further materials had been provided by the US, in the present application

The application failed to meet the test in Crim PR 17.27. Permission to reopen was therefore refused.

108 (7) EA 2003

(7)     Where [notice of application for leave to appeal] is given in accordance with subsections (5) and (6), the High Court is to [grant leave] 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 [for the appeal to be heard]

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