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|Judgments - R (On the Application of Wellington) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)
HOUSE OF LORDS
 UKHL 72
on appeal from:  EWHC 1109(Admin)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Wellington) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Criminal Appeal from Her Majestys High Court of Justice)
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under Heywood
Clare Montgomery QC
(Instructed by Russell-Cooke Solicitors)
David Perry QC
(Instructed by Treasury Solicitors)
3 and 4 NOVEMBER 2008ON WEDNESDAY 10 DECEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Wellington) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Criminal Appeal from Her Majestys High Court of Justice)
 UKHL 72
1. The State of Missouri alleges that on 13 February 1997 the appellant Ralston Wellington committed two murders in Kansas City. According to the evidence submitted on behalf of the prosecutor, the appellant was a Jamaican drug dealer carrying on a substantial business in Jamaica, the United States and the United Kingdom. While he was staying with a woman in Kansas City, a member of her family took about US$70,000 from his room. The appellant made the woman drive him and two other Jamaicans to the house where the thief had been staying. They entered with guns firing, killed two of the occupants (one of them a pregnant young woman) and injured another. The victims do not appear to have been concerned in the theft and the money was afterwards returned by the thief.
2. The appellant is charged with murder in the first degree, defined in section 565.020 of the Revised Statutes of Missouri as knowingly causing the death of another person after deliberation upon the matter. The prescribed penalties are death or imprisonment for life without eligibility for probation or parole or release except by the act of the Governor.
3. On 29 January 2003 the appellant was arrested in London on a provisional warrant. The United States requested his extradition. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty and after a hearing on 13 October 2003 the District Judge committed the appellant to await the decision of the Home Secretary as to whether he should be extradited. Some time was then taken up with an unsuccessful challenge to the committal by judicial review, but on 13 June 2006 the Home Secretary notified the appellant that he had ordered his extradition. This decision was also challenged by an application for judicial review, which was dismissed by the Administrative Court (Laws LJ and Davis J) on 18 May 2007:  EWHC 1109. The appellant appeals to your Lordships House.
4. The sole ground of challenge is that, in ordering extradition, the Home Secretary, as a public authority, acted in a way which was incompatible with the appellants Convention right under article 3 of the European Convention on Human Rights not to be subjected to inhuman or degrading punishment. A sentence of life imprisonment without eligibility for parole is alleged to constitute such punishment. The order for extradition is therefore said to have contravened section 6(1) of the Human Rights Act 1998.
5. The appeal raises two issues. First, whether a sentence of imprisonment for life without eligibility for parole would, if imposed in the United Kingdom, constitute an inhuman or degrading punishment. Secondly, whether it makes a difference that the sentence will not be imposed by a United Kingdom authority but by the State of Missouri.
6. Before coming to the authorities in the United Kingdom and the European Court of Human Rights (ECHR), I shall consider the question in principle. In the Divisional Court, Laws LJ put forward a philosophical argument for treating life imprisonment without parole as inhuman or degrading (para 39(iv)):
The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war, but retributive punishment is never enough to justify it. Yet a prisoners incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate - the very vice which is condemned on article 3 grounds - unless, of course, the death penaltys logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoners life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip service to the value of life; not to vouchsafe it.
7. This passage was quoted with apparent approval by Lord Bingham of Cornhill in De Boucherville v State of Mauritius  UKPC 37 but in my respectful opinion the argument breaks down at the very first step. It is not the case that the abolition of the death penalty must have been founded upon the premise that the life of every person has such inalienable value that its forfeiture cannot be justified on the ground of retributive punishment. A perfectly respectable case for the abolition of the death penalty can be constructed without subscribing to the view that the lives of Streicher, Eichmann, Saddam Hussein or Myra Hindley had such inalienable value that their executions could not be morally justified. Opposition to the death penalty may be based upon the more pragmatic grounds that it is irreversible when justice has miscarried, that there is little evidence that its deterrent effect is greater than that of other forms of punishment and that the ghastly ceremony of execution is degrading to the participants and the society on whose behalf it is performed. For people who hold such views, who must include many opposed to the death penalty, the parallels between the death penalty and life imprisonment without parole, to which Laws LJ draws attention, are the very reasons why they think that in some cases the latter sentence is appropriate. The preservation of a whole life sentence for the extreme cases which would previously have attracted the death penalty is for such people part of the price of agreeing to its abolition. The Member States of the European Union are in principle democracies and the views of such people must be taken into account by the courts which are invited to extend the reach of article 3. As Lord Bingham of Cornhill said of the mandatory life sentence for murder in R v Lichniak  1 AC 903, 911-912:
the House must note that [the mandatory life sentence] represents the settled will of Parliament. Criticism has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that [the mandatory life sentence] represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled.
8. I come then to the law. The leading European authority is now Kafkaris v Cyprus (Application No 21906/04) 12 February 2008, which concerned a mandatory life sentence for murder imposed in Cyprus. Only the President could order the release of such a prisoner, either by exercising the power of mercy under article 53(4) of the Constitution or by ordering release on licence under section 14 of the Prison Law 1996. The prisoner, who had been sentenced in 1989, complained in 2004 that his continued detention was in breach of his rights under, inter alia, article 3.
9. The majority judgment noted (in paragraph 97) that a life sentence was not in itself prohibited by or incompatible with article 3 but that the imposition of an irreducible life sentence may raise an issue under article 3. On the question of what counted as an irreducible sentence, the court said (in paragraph 98):
where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy article 3 . The court has found this is the case even when the possibility of parole for prisoners serving a life sentence is limited It follows that a life sentence does not become irreducible by the mere fact that in practice it may be served in full. It is enough for the purposes of article 3 that a life sentence is de jure and de facto reducible.
10. The court went on to say (in paragraph 99) that
the existence of a system providing for consideration of the possibility of release is a factor to be taken into account when assessing the compatibility of a particular life sentence with article 3.
11. But the Court signalled that it would not inquire too closely into the way such a system worked:
it should be observed that a States choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention.
12. The conclusion I draw from the Courts guarded statement that an irreducible sentence may raise an issue under article 3 and that the existence of a system for release was a factor to be taken into account in assessing the compatibility of a life sentence with article 3 is that an irreducible sentence will not necessarily infringe. On the particular facts of the case, an offence may justify an irreducible sentence. Furthermore, provided that the sentence is reducible, its imposition will not even raise an issue under article 3. And the bar for what counts as irreducible is set high. It must be shown that the national law does not afford a real possibility, de jure and de facto, of review with a view to commutation or release.
13. This very limited application of article 3 to life sentences is shown by the way the court applied the stated principles to the facts. It concluded that the possibility of Presidential pardon or release was sufficient to prevent the sentence from being irreducible, notwithstanding that the prospect for release was limited. The fact that the possibility of release existed de facto was shown by evidence that some prisoners had been released. It did not matter that Cyprus had no parole board system.
14. Having found that the sentence was not irreducible, the majority did not need to discuss the issue which would have arisen if it had been irreducible and said nothing more on the point.
15. The caution of the majority did not satisfy Judge Bratza, who wrote in a concurring opinion that the time had come for the court clearly to affirm that an irreducible life sentence was in principle inconsistent with article 3. But he agreed with the majority on the criteria for irreducibility and their application to the facts of the case.
16. In the United Kingdom, section 269(4) of the Criminal Justice Act 2003 gives a judge power to order that a prisoner shall be imprisoned for life without eligibility for parole. If such an order is made, he may be released only by order of the Secretary of State if she is satisfied that exceptional circumstances exist which justify the prisoners release on compassionate grounds": see section 30(1) of the Crime (Sentences) Act 1997. These provisions have clear parallels with the sentence of life imprisonment without parole and release only by order of the Governor in the statutes of Missouri.
17. In R v Bieber  EWCA Crim 1601 the Court of Appeal considered whether a whole life sentence under section 269(4) of the 2003 Act was compatible with article 3. Lord Phillips of Worth Matravers CJ, who gave the judgment of the Court, said that the effect of the majority decision in Kafkaris v Cyprus was that an irreducible life sentence, if imposed to reflect the requirements of punishment and deterrence for a particularly heinous crime, was not in potential conflict with article 3.
18. In any case, the court considered that the existence of the Home Secretarys power of release under section 30 of the 1997 Act, even though used sparingly, meant that the whole life sentence was not in Strasbourg terms irreducible. It followed that a complaint under article 3 could not be made simply because such a sentence had been imposed, but should be made (if at all) when the prisoner contended that for one reason or another his further detention would be inhuman or degrading treatment.
19. In my respectful opinion, these conclusions are correct and reflect the decision of the majority of the ECHR in Kafkaris v Cyprus. It follows that the imposition of a whole life sentence under section 269(4) of the 2003 Act, would not ipso facto infringe article 3. There may come a time when the continued detention of the prisoner does so infringe, but that is a question which can only be adjudicated upon when it arises.
20. The next question is the application of this construction of article 3 to cases in which the whole life sentence is not imposed in the United Kingdom but is likely to be imposed in a country to which the prisoner is extradited. The leading authority on this question is the decision of the ECHR in Soering v United Kingdom (1989) 11 EHRR 439. That case concerned a decision by the Home Secretary to extradite the applicant (a German citizen) to Virginia to face charges of capital murder, for which the penalty was death. The applicant did not submit that the death penalty was in itself a violation of article 3 (as the Court noted at paragraph 101, that would have been difficult to reconcile with the language of article 2(1)) but complained that the manner in which it was implemented in Virginia, namely, after long delays, was inhuman or degrading. The court accepted this submission. The Privy Council later reached a similar conclusion in Pratt and Morgan v Attorney-General for Jamaica  2 AC 1.
21. The United Kingdom nevertheless submitted that the Convention required it only to refrain from imposing inhuman or degrading punishments in the United Kingdom. It was not responsible for what happened in Virginia after the applicants lawful extradition. The court accepted (in paragraph 86) that the engagement undertaken by a Contracting State was confined to securing Convention rights within its own jurisdiction and that it could not require a Contracting State, notwithstanding its extradition obligations, not to surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention:
Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular. (emphasis added)
22. I have emphasised the last few words of this passage because they make it clear that in cases of extradition, article 3 does not apply as if the extraditing State were simply responsible for any punishment likely to be inflicted in the receiving state. It applies only in a modified form which takes into account the desirability of arrangements for extradition. The form in which article 3 does apply must be gathered from the rest of the judgment and subsequent jurisprudence.
23. In paragraph 88 the court distinguished between torture and other inhuman or degrading treatment". Torture attracted such abhorrence that it would not be compatible with the values of the Convention for a Contracting State knowingly to surrender a fugitive to another State if there were substantial grounds for believing that he was in danger of being subjected to torture, however heinous the crime allegedly committed". The position in relation to inhuman or degrading treatment is more complicated. What amounts to such treatment depends upon all the circumstances of the case paragraph 89. The court went on:
Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
24. The passage makes it clear that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the minimum level of severity which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.
25. The relevance of the desirability of extradition in deciding whether article 3 has been infringed is shown by the weight which the court attributed to the fact that Mr Soering, as a German citizen, could be tried in Germany. It said (at paragraph 110) that
[T]he Court cannot overlook either the horrible nature of the murders with which Mr Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case.
26. The inference I would draw from this passage is that if Mr Soering could not have been tried in Germany and the court had been left with the stark choice of extraditing him to Virginia or allowing him to escape justice altogether, it would not necessarily have decided that, in the context of extradition, the method of implementing the death penalty in Virginia made the punishment sufficiently severe to be inhuman or degrading treatment.
27. A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (Lord Bonomy, 26 April 2004) that in Scotland the practice of slopping out (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.
28. Treating article 3 as applicable only in an attenuated form if the question arises in the context of extradition or other forms of removal to a foreign state is consistent with the ECHRs jurisprudence on the applicability of other Convention articles in a foreign context. These authorities were discussed at some length by the Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator  2 A C 323 and led to his conclusion (at paragraph 24) that
While 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.
29. For example, it is not sufficient that the fairness of the trial in the receiving state would not meet the requirements of article 6. There must be a risk of a flagrant denial of justice". As the ECHR said in Drozd and Janousek v France (1992) 14 EHRR 745 at paragraph 110:
As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the interests of the persons concerned. The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice.
30. There is in my opinion nothing in the subsequent jurisprudence of the ECHR to qualify the principle laid down in Soering that torture is a contravention of article 3 whether the context is domestic or foreign but that such context may affect whether other punishment or treatment is regarded as sufficiently severe to contravene. In Chahal v United Kingdom (1996) 23 EHRR 413 the Court decided that nothing could justify deporting someone to a country where he faced a serious risk of suffering torture. It rejected the argument of the United Kingdom that even in such a case, deportation could be justified by interests of national security. But the case was not concerned with whether treatment or punishment less than torture, which might be regarded as inhuman or degrading in the United Kingdom, would necessarily engage article 3 on the ground that it was likely to be suffered in another country. It is true that the Court said in paragraph 81 that
It should not be inferred from the Courts remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a States responsibility under Article 3 is engaged.
31. In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.