|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)
32. A similar relativist approach is taken by the Supreme Court of Canada. In Smith v The Queen  1 SCR 1045 it decided that a law which imposed a mandatory sentence of 7 years imprisonment for importing, for whatever reason, any quantity of prohibited drugs, was unconstitutional because it was inevitable that in some cases it would lead to a grossly disproportionate and therefore cruel and unusual punishment. On the other hand, in United States v Burns  1 SCR 283 and Ferras v United States  2 SCR 77 it was decided that only in extreme cases (something which shocked the conscience was the phrase used) would the potential sentence in the receiving country justify a refusal to extradite. A long mandatory sentence for drug dealing was not sufficient.
33. It is true that the provisions of the Canadian Charter of Rights which led to this distinction between domestic and extradition cases are different from those in the Convention. But the Canadian cases show the practical need to construe any human rights instrument in a way which does not make extradition dependent upon compliance by the receiving country with the full panoply of rights enjoyed in the extraditing country.
34. Applying these principles to the present case, it is first necessary to decide whether the mandatory sentence for first degree murder in Missouri is irreducible as that term was explained by the ECHR in Kafkaris v Cyprus (2008) 12 February 2008. The power of the Governor of Missouri to pardon a prisoner or to commute his sentence to one of imprisonment with the possibility of parole shows that it is reducible de jure. Is it reducible de facto? The evidence shows that the power has been sparingly used, in some cases for the benefit of battered women who killed after brutal treatment, in one case when the conviction was demonstrated to have been wrong, in another case in return for co-operation in another prosecution. It must be accepted that if the appellant is convicted of first degree murder in the circumstances alleged against him, his prospects of release would be poor. But the requirement that the sentence must be reducible de facto cannot mean that the prisoner in question must have a real prospect of release. Otherwise the more horrendous the crime, the stronger would be the claim not to be extradited. It must mean that the system for review and release must actually operate in practice and not be merely theoretical. By that standard, I think that the sentence in Missouri is just as much reducible as the sentence in Kafkaris v Cyprus. In both cases it depends upon the exercise of executive clemency without judicial control. Any prisoner is able to petition the Governor of Missouri and there is nothing to show that such petitions are not properly considered. The fact that the criteria which the Governor has apparently adopted for the exercise of his powers are rarely satisfied is not in my opinion sufficient to make the sentence irreducible.
35. However, even if the sentence is irreducible and might therefore contravene article 3 if imposed in the United Kingdom, there remains the question of whether it would contravene article 3 as interpreted in the context of extradition. In my opinion it would only do so if one would able to say that such a sentence was likely, on the facts of the case, to be clearly disproportionate. In a case of extradition we are not concerned, as the Canadian Supreme Court was in Smith v The Queen  1 SCR 1045, with the constitutionality of the law under which the mandatory sentence is imposed. In such a case, it is sufficient to invalidate the law that it would be bound in some cases to produce disproportionate sentences. In extradition, however, one is concerned with whether in this case the sentence would be grossly disproportionate. The fact that it might be grossly disproportionate in other cases is irrelevant.
36. In my opinion, on the facts of this case, it could not be said that a sentence of life without parole would be so grossly disproportionate to the offence as to meet the heightened standard for contravention of article 3 in its application to extradition cases. Unlike Soering, there is no other jurisdiction in which the appellant can be tried. If he is not extradited to Missouri, he will be entitled to remain in this country as a fugitive from justice. The standard of what amounts to inhuman and degrading treatment for the purposes of article 3 must therefore be a high one. The offence which he is alleged to have committed is one for which an English judge might well impose a whole life sentence under section 269(4) of the 2003 Act. It is true that the English judge would do so as a matter of judicial discretion, whereas in Missouri the sentence is mandatory. And Miss Montgomery QC placed some stress on this difference in the course of her able argument for the appellant. But in my opinion it is irrelevant. The mandatory nature of the sentence would be very important if we were concerned with the validity of a domestic rule imposing such a sentence, such as Reyes v The Queen  2 AC 235 (mandatory death sentence), R v Lichniak  1 AC 903 (mandatory life sentence) or Smith v The Queen  1 SCR 1045 (mandatory minimum term). But we are not concerned with the validity of the Missouri law. The fact that a life sentence without parole is mandatory in Missouri is relevant only in enabling the English court to predict the punishment which the appellant will receive if he is convicted of first degree murder. The question then is whether such a sentence would be obviously disproportionate for the crime of which this appellant is accused. For the reasons I have given, I do not think that it would. On the other hand, if the facts were that a prisoner was charged with the kind of mercy killing postulated by my noble and learned friend Lord Brown of Eaton-under-Heywood, it might well be. In this case, however, I would dismiss the appeal.
LORD SCOTT OF FOSCOTE
37. I have had the advantage, in advance of writing this opinion, of reading the respective opinions on this appeal of my noble and learned friends, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood. Each has reached the conclusion that this appeal should be dismissed. I have reached the same conclusion and for substantially the same reasons. There is, however, as Baroness Hale has observed, one point on which Lord Hoffmann and Lord Brown differ. The point is whether the test of what, for Article 3 purposes, constitutes inhuman or degrading treatment or punishment is the same test when what is being considered is the likely fate that an individual whose extradition is being sought will, if extradited, face in the requesting country as the test when what is being considered is what constitutes inhuman or degrading treatment in a purely domestic context.
38. Lord Hoffmann has expressed the view that, in extradition cases, the fact that extradition is being sought in order that an individual should be tried for serious crimes alleged to have been committed by him in the requesting country, coupled with the fact that there is nowhere else that the individual could be tried for those crimes, and the importance of extradition in preventing fugitive offenders from evading justice and in preventing the establishment of safe havens where fugitives can shelter from the consequences of their crimes (see paras. 24 and 25 of Lord Hoffmanns opinion), justifies the adoption of a relativist approach to what constitutes Article 3 inhuman or degrading treatment. Under the relativist approach, suggested to have been sanctioned by the Strasbourg court in Soering v United Kingdom (1989) 11 EHRR 439 (see paras.88 and 89), treatment or punishment that would be categorised as inhuman or degrading, and consequently as being incompatible with Article 3 rights, if it were inflicted, or threatened to be inflicted, on an individual pursuant to a criminal sentence in this country would not necessarily be so categorised if it were treatment or punishment likely to be faced by the individual after his extradition to the requesting country and his trial and conviction there for the alleged crimes.
39. Lord Brown, on the other hand, has preferred an absolutist approach to what constitutes inhuman or degrading treatment. If the treatment or punishment likely to be faced by an individual if extradited to the requesting country and then tried, convicted and sentenced for the crimes in question would be inhuman or degrading for Article 3 purposes in a domestic context, the treatment or punishment would, in Lord Browns opinion, count as inhuman or degrading in a foreign context, whether as a likely consequence of extradition, or of removal from the United Kingdom on refusal of immigration consent or for any other otherwise lawful reason.
40. My Lords, my respectful preference is for Lord Browns approach. As Baroness Hale points out (para.3 of her opinion), the right under Article 3 not to be subjected to torture or to inhuman or degrading treatment is an absolute right which cannot be balanced against other considerations. That this is so was confirmed by the Strasbourg court in Chahal v United Kingdom (1996) 23 EHRR 413 and again in Saadi v Italy (2008 - unreported). It is accepted that the absolute nature of the Article 3 bar on torture would bar extradition to a country where the extradited person would face torture and that that which would constitute torture for Article 3 purposes in Europe would constitute torture for those purposes everywhere. But it is suggested that treatment or punishment that might for Article 3 purposes be inhuman or degrading in Europe would not necessarily need to be so categorised if it were treatment or punishment likely to be faced in the requesting country by a person faced with extradition to that country for crimes committed there. But, if that is so, how can it be said that Article 3 rights not to be subjected to inhuman or degrading treatment are absolute rights? If, in an extradition context they can be relativist rights, why should they not also be relativist rights in other contexts where the public interest were equally engaged and would be advanced by the removal to his home country of the individual in question? This might often be so in immigration or deportation cases.
41. The paradox created by categorising Article 3 rights not to be subjected to inhuman or degrading treatment or punishment as absolute and at the same time authorising or applying a relativist approach to the interpretation of those rights in an extradition context could, it seems to me, be resolved in two alternative ways. One way would be to distinguish between treatment that constituted torture for Article 3 purposes and treatment or punishment that was merely inhuman or degrading", the former being absolutely prohibited by Article 3, the latter, too, being prohibited absolutely in a domestic context but not necessarily preventing removal to his home country of a person likely in that country to face such treatment or punishment. The problem with this approach to Article 3 is that the language of the Article provides no basis at all for distinguishing between that which would qualify as sufficiently inhuman or degrading, and therefore prohibited by Article 3, in an extradition context and that which would be prohibited by Article 3 in a domestic context but could be overlooked in an extradition context, or for distinguishing between treatment that would be sufficiently inhuman or degrading to bar removal to a foreign country in an immigration context but insufficiently in order to bar removal to that country in an extradition context. It seems to me that the standard of treatment or punishment apt to attract the adjectives inhuman or degrading for Article 3 purposes ought to be a constant. I do not see how otherwise the Article 3 prohibition regarding such treatment or punishment can be regarded as an absolute one. This, I think, and respectfully agree with, is Lord Browns point.
42. The other way of resolving the paradox would be to adopt a uniformly strict approach to what constitutes inhuman or degrading treatment or punishment for Article 3 purposes. It must, in my respectful opinion, be borne in mind that Article 3 was prescribing a minimum standard of acceptable treatment or punishment below which the signatory nations could be expected not to sink but not as high a standard as that which many of those nations might think it right to require for every individual within their jurisdiction, and therefore entitled, even if only temporarily, to their protection. Article 3 was prescribing a minimum standard, not a norm. It must be open to individual states to decide for themselves what, if any, higher standard they would set for themselves. Lord Hoffmann referred (para 27 of his opinion) to a decision of the Court of Session which ruled that in prisons in Scotland the practice of slopping out was, or might be, an infringement of Article 3. This decision illustrates very well the point I am trying to make. It would, of course, be unexceptionable for the courts of Scotland, or the courts of any other jurisdiction, or their prison authorities to rule that the practice of slopping-out was unacceptable and should cease. But to give that ruling as an interpretation of an Article 3 obligation would, in my opinion, undermine the absolute nature of the obligation in question. It would be unthinkable to rule that in no circumstances could slopping-out in a prison, or comparable institution, be tolerated. Whatever view one might have about the objectionable quality of slopping-out, that view could not, in my opinion, be carried forward into an acceptable interpretation of an absolute obligation in Article 3.
43. The present case concerns a mandatory sentence of life imprisonment without the possibility of parole. It appears that, under the law of the State of Missouri, the Governor of the State has a statutory discretion, not reviewable by the courts, to authorise the release of a prisoner serving such a sentence. The power has been exercised sparingly and there is no reason to suppose that it would ever be exercised in the appellants favour if he were to be convicted of the murders of which he is charged. It may be that the life sentence without parole would not, under Strasbourg jurisprudence, be regarded as an irreducible life sentence. There would be at least the possibility of a discretionary release. But that possibility might, in the appellants case, be highly remote and I think it necessary to consider whether an irreducible life sentence should be regarded, per se, as constituting inhuman or degrading treatment or punishment for Article 3 purposes.
44. In my opinion, it should not. It is accepted that imprisonment as such is not inhuman or degrading for Article 3 purposes. The conditions of imprisonment in a particular prison or in the prison system of a particular country may be so, but that is not alleged of Missouri prisons in the present case. Nor is it suggested that a sentence of full life imprisonment without possibility of parole may not be a proper punishment, compatible with Article 3, for crimes of a particularly wicked character. So why should the prospect, or likelihood, that such a sentence may be passed on the appellant in the present case, in the event of his trial and conviction in a Missouri State court, be regarded as incompatible with Article 3?
45. A number of answers have been suggested on behalf of the appellant. First, there is the mandatory nature of the sentence. The judge, in the event of a conviction, will have no sentencing discretion. But the appellant will have been convicted of two pre-meditated, drug-related, revenge killings and the attempted killing of a third person which are by any standard heinous crimes that might well attract a whole life tariff on a conviction in this country. The mandatory nature of the sentence does not, in my opinion, having regard to the charges faced by the appellant in this case, thereby bring the sentence into the inhuman and degrading category. The mandatory nature of an irreducible full life sentence would, I think, do so if the sentence were to appear so grossly disproportionate to the circumstances of the crime as to offend ordinary notions of fairness and justice. Not so here.
46. It has been suggested, also, that an irreducible life sentence is inhuman and degrading for Article 3 purposes because it denies the prisoner the possibility of atonement and redemption. Once, however, it is accepted that a full life tariff may be a just punishment, merited by the heinous quality of the crime or crimes for which the sentence has been, or may be, imposed, reliance on the denial of possibilities of atonement or redemption seem to me to miss the point of the sentence. If a whole life sentence of imprisonment without parole is a just punishment for the crime, the prisoner atones by serving his sentence. Redemption, a matter between him and his Maker, may well be achieved during the currency of the sentence, but I do not follow why it is said to require a reduction of the length of the just punishment sentence. The possibility, or probability, that he serve the full life term merited by his crimes cannot, in my opinion, justify describing the sentence as disproportionate unless a full life term is per se disproportionate, which, it is agreed, is not the case.
47. A full life term of imprisonment without parole would not, I believe, have been regarded as a per se inhuman and degrading sentence in the 1950s when the Convention was signed, nor in 1998 when the United Kingdom enacted the Act that incorporated Article 3 into the domestic law of this country. If such a sentence would not have been so regarded in 1998, there is no justification, in my opinion, for so regarding it now. I would, therefore, uphold the judgments of the courts below and, in agreement with Lord Brown, dismiss this appeal on that ground.
BARONESS HALE OF RICHMOND
48. I agree that this appeal should be dismissed, for the reasons given by my noble and learned friend Lord Hoffmann. As my noble and learned friend Lord Brown of Eaton under Heywood disagrees with him on one point, I must explain my reason for preferring Lord Hoffmanns view.
49. In short, the European Court of Human Rights has not yet said, either in Kafkouris v Cyprus (Application No 21906/04) 12 February 2008, or in any other case, that all irreducible life sentences are inhuman and degrading treatment within the meaning of article 3. There may come a time when it will do so and we shall then have to have regard to that view. In the meantime, it has simply said that such sentences may raise an issue under article 3. Reducible life sentences, on the other hand, do not. In my view, however, even if the sentence faced by the appellant were to be regarded as irreducible, it would not in his case amount to inhuman or degrading treatment within the meaning of article 3.
50. I agree, of course, that if there is substantial ground for believing that a person who is to be expelled from this country faces a real risk of being subjected to torture or to inhuman or degrading treatment in the country to which he is to be expelled, then his right not to be subjected to such treatment is absolute. It cannot be balanced against other considerations, including the real risk which he poses to the country from which he is to be expelled: see Chahal v United Kingdom (1996) 23 EHRR 413 and Saadi v Italy (Application No 37201/06) 28 February 2008. But the particular context of the case is important in assessing whether the treatment which he faces is indeed to be regarded as inhuman or degrading. It is worth repeating what was said in Soering v United Kingdom (1989) 11 EHRR 439, at para 89:
What amounts to inhuman and degrading treatment or punishment depends upon all the circumstances of the case. . . As movement around the world becomes easier and crime takes on a large international dimension, it is increasingly in the interest of all nation ns 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 foundation of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the noti0ons of inhuman and degrading treatment or punishment in extradition cases.
51. There is nothing in either Chahal or Saadi which casts doubt upon the relevance of these considerations in assessing the severity of the treatment or punishment faced by the person to be extradited. The references in Saadi, paras 127 and 138, to the irrelevance of the victims conduct refer to the absolute nature of the prohibition once it has been determined that there is a real risk of treatment contrary to article 3. They do not cast doubt on the oft-repeated statements that the assessment of the minimum level of severity is relative: see Saadi itself, at para 134. Thus, for example, in Soering the Court went on, at para 100, to repeat some well known general considerations:
As is established in the Courts case law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is, in the nature of things, relative; it depends upon all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim. . . .
In order for punishment or treatment associated with it to be inhuman or degrading', the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate punishment.
Indeed, if the concept of proportionality in sentencing is relevant to the assessment of severity, then the conduct of which the prospective victim has been found guilty may be central to the assessment of whether the punishment is inhuman or degrading.
52. As already seen, the Court has not stated that even an irreducible life sentence is automatically an illegitimate form of punishment. Assuming for the moment that the appellant is convicted, the circumstances in which he will be sentenced to life imprisonment without possibility of parole are these. A particularly cold blooded and premeditated murder by shooting took place. The murderer chose to commit this crime in a State where the only possible penalties were death or life imprisonment without the possibility of parole. That was the punishment prescribed by the law of the place where he chose to commit these murders for the crime which he chose to commit. He fled to a country which has an extradition treaty with the United States of America. That is the only place where he can be tried for these offences. It is not for us to impose our views of the proper tariff for any particular offence upon another country. Our only legitimate concern is that they should not impose the death penalty and that what they do impose does not cross the high threshold of inhuman or degrading punishment for the offence in question. There is nothing to suggest that the conditions in Missouri prisons are inhuman or degrading. Hence I have difficulty in seeing how a punishment which was prescribed by the law of the State where the crime was committed, and which falls within the range of legitimate punishments for that offence, can be considered inhuman or degrading. That view is strengthened if, as in this case, the offence was one which might have attracted the same penalty if committed here.
53. I do understand the philosophical position, that each human being should be regarded as capable of redemption here on earth as well as hereafter. To those who hold this view, the denial of the possibility of redeeming oneself in this life by repentance and reform may seem inhuman. I myself was brought up in that tradition. But, as Lord Hoffmann has pointed out, this is not the only tenable view of the matter. There are many people, in and outside prison, who would draw a very sharp distinction between life and death, however restricted that life might be. There are many justifications for subjecting a wrongdoer to a life in prison. It is not for us to impose a particular philosophy of punishment upon other countries.
54. I too, therefore, would dismiss this appeal.
55. The central issue in this appeal is whether the extradition of a person alleged to have committed an offence for which the mandatory penalty is a sentence of imprisonment for life without eligibility for parole would be in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Determination of this issue involves two questions: the first is whether the extradition of an alleged offender to a state where he would face such a sentence would ipso facto constitute inhuman or degrading treatment, and the second is whether the possibility of executive release is sufficient to prevent the extradition from being in breach of article 3.