|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)
56. The context is important. A request for extradition has come from the State of Missouri, which has its own system of laws and levels of criminal punishment, and it is not for another state to be too ready to condemn that system without sufficiently strong reason. It is claimed on behalf of the appellant that the obligations of the United Kingdom under the Convention, as enshrined in the Human Rights Act 1998, furnish such a reason. Obviously one cannot approach the issue of extradition to a state which is not a party to the Convention as if its provisions applied there with full force. The way in which such obligations are brought to bear, in consequence of such decisions of the European Court of Human Rights (ECtHR) as Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingsom (1996) 23 EHRR 413, resembles the operation of equity on the conscience of a defendant. If the requested state extradites an alleged offender to another state which is not bound by the Convention, where he may face treatment amounting to torture or inhuman or degrading treatment, the extradition may constitute a breach of article 3 on the part of the requested state. The equation is not, however, complete. The ECtHR said in Soering at paragraph 86 of its judgment:
[T]he Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not 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 UK 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.
When considering the issue the courts of this jurisdiction therefore have to take into account and effect a proper balance between two imperatives, the importance of facilitating extradition and the prohibition against extraditing an alleged offender to face treatment which could be classed as inhuman or degrading.
57. I accordingly agree with the reasons given by my noble and learned friend Lord Hoffmann in paragraph 22 to 32 of his opinion for concluding that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the requesting state attains the minimum level of severity which would make it inhuman or degrading. In particular I would underline the importance of facilitating extradition, as appears from paragraph 89 of the judgment of the ECtHR in Soering:
[I]nherent 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.
58. As my noble and learned friend Baroness Hale of Richmond points out in paragraph 51 of her opinion, the cases concerned with the expulsion of persons alleged to be dangerous terrorists do not cast doubt upon the relevance of these considerations in assessing the severity of the treatment or punishment of the person to be extradited. It has been held in Chahal and in Saadi v Italy (2008, Application no 37201/06) that the risks to the expelling state if such a person is not deported cannot be weighed against the risk of his ill-treatment in the receiving state: Saadi, para 138. If it is established that that ill-treatment would amount to torture or inhuman or degrading treatment, the prohibition is absolute: ibid, para 127. The passage which I have quoted from the judgment in Soering demonstrates that in extradition cases considerations founded upon the importance of extradition may legitimately be taken into account in determining whether the alleged offenders treatment would attain the minimum level of severity which would constitute inhuman or degrading treatment, an assessment which is relative: Saadi, para 134.
59. Counsel for the appellant relied upon a formidable battery of statements from judicial and other sources to the effect that to sentence an offender to whole life imprisonment without possibility of parole would be in breach of article 3 of the Convention. In 1976 the Committee of Ministers of the Council of Europe adopted Resolution 76(2) on the Treatment of Long-term Prisoners. The sub-committee which drafted the resolution stated, at para 76:
... [I]t is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.
This statement was referred to with approval by the Grand Chamber of the ECtHR in Kafkaris v Cyprus (2008, Application No 21906/04), para 101. The implication appears clearly from paragraph 98 of the Courts judgment in that case that such imprisonment if irreducible would, when put into effect in a Convention state, constitute a breach of article 3; cf also Nivette v France (2001, Application No 44190/98, where it was said to raise an issue under article 3, Einhorn v France (2001, Application No 71555/01) and Leger v France (2006, Application No 19324/02). In his separate opinion in Kafkaris Judge Sir Nicolas Bratza went further, when he expressed the view:
I consider that the time has come when the Court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3 of the Convention.
In the domestic context Lord Bingham of Cornhill in R v Lichniak  UKHL 47,  1 AC 903, 909, para 8 stated it as his opinion, without dissent from any of the other members of an enlarged Appellate Committee:
If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights as being arbitrary and disproportionate.
Cf also in the Privy Council de Boucherville v The State of Mauritius  UKPC 37.
60. One cannot readily discount these statements of opinion or the high authority which is their source, but it is in my view important to bear in mind the extradition context and seek to attain the necessary balance to which I have referred. It is also important to have regard to the facts and circumstances of the individual case with which one is dealing, the approach constantly adopted by the ECtHR in determining applications before it. The sanction of irreducible life imprisonment is reserved in Missouri for those convicted of murder in the first degree, that is to say, knowingly causing the death of another person after deliberation upon the matter (Revised Statutes of Missouri, section 565.020). It was argued on behalf of the appellant that the mandatory nature of the sanction, applicable to all cases of first degree murder whatever the underlying facts, is arbitrary and indefensible, since it fails to take any account of the possible variations in heinousness of such murders. There may be some cases of first-degree murder, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in paragraph 88 of his opinion, in which it might be said on the facts that life imprisonment without parole is inhuman. But it must be recognised that premeditated murder is a grave and heinous crime, which the Missouri legislature regards as so serious as to merit either the death penalty or whole life imprisonment without parole. The facts which the prosecution allege can be proved against the appellant in the present case, that he deliberately set out to assassinate three people, two of whom died, while the third was very seriously injured, would constitute a crime of the most grave and heinous kind. I therefore, in agreement with Lord Hoffmann, would not regard the imposition of a whole life sentence as ipso facto in breach of article 3 in every case. I think it possible that the continued detention of a prisoner may in the circumstances which have arisen at some time in the future infringe article 3, but that cannot be determined at the charging or sentencing stage.
61. It is necessary then to take account of two further factors, first, the element of relativity arising from the fact that we are dealing with the case in the context of extradition and, secondly, the possibility of future release by executive action. The ECtHR said in Kafkaris at paragraph 98 that a whole life sentence must be de jure and de facto reducible, but that that was sufficient. It was contended on the appellants behalf that the possibility of release is so exiguous in the present case that it can be dismissed as a de facto possibility. It is true to say that it has until now been exercised extremely rarely in cases concerning adult male prisoners. But the possibility exists de jure, and so long as the machinery is in place, unless it is shown to be a mere fiction or a dead letter, I should be reluctant to dismiss it as having no application. It may well be that in a changing climate of opinion it may be exercised with greater frequency in the future - and in the nature of things it would ordinarily be a very long time in a case such as the present before the question of possible parole might arise, by which time the practice may have undergone a change.
62. In the light of the strong authority to which I have referred, I should readily accept the proposition that whole-life imprisonment without possibility of parole may constitute a breach of article 3 of the Convention. If, however, one takes into account several factors, the heinousness of the crime in question, the possibility of future release through executive clemency and the context of extradition, the particular case may not involve a breach of article 3. This is in my view such a case. The offence alleged by the requesting state to have been committed by the appellant is high on the scale of heinousness. Executive release remains a possibility in theory, although an exiguous one on present practice. It has all to be seen through the prism of an application for extradition. I have therefore come to the conclusion that to extradite the appellant would not be in breach of the Convention. I would accordingly dismiss the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD
63. Mandatory death sentences violate article 3 of the European Convention on Human Rights. They constitute inhuman and degrading punishment. Of that there is no doubt. As the Privy Council said in Reyes v The Queen  2 AC 235, 256:
To deny the offender the opportunity, before sentence is passed, to seek to persuade the Court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7 [a provision in the Belize Constitution materially identical to article 3] exists to protect. (para 43 of the Boards opinion given by Lord Bingham of Cornhill).
Earlier (at para 34) Lord Bingham had cited from Stewart Js judgment for the plurality in the Supreme Court of the United States in Woodson v North Carolina (1976) 428 US 280, 304:
A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offence excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
The fact that the Constitution of Belize conferred on the Governor-General the prerogative of mercy and required him to exercise it on the advice of an independent body of high standing did not save the mandatory death sentence from its constitutional invalidity: I[t] is clear that such a non-judicial body cannot decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed. (para 47 of Lord Binghams opinion).
64. Discretionary death sentences, on the other hand, are not in themselves contrary to article 3. As the European Court of Human Rights expressly stated in Soering v United Kingdom (1989) 11 EHRR 439, 474 at para 103: Article 3 cannot be interpreted as generally prohibiting the death penalty (although the Court held that extradition to Virginia to face protracted suffering on death row would breach article 3). Indeed, when quashing a mandatory death sentence, the Privy Council itself not infrequently remits the case to the local court for consideration of whether to pass a discretionary death sentence.
65. Your Lordships, however, are concerned here not with mandatory death sentences but rather with mandatory life sentences. Are these too nowadays to be regarded as violating article 3? And, if so, does article 3 necessarily preclude member states from extraditing those who would be likely to receive such a sentence on return? These are the issues now before the House.
66. It is not, of course, suggested that all mandatory life sentences (like all mandatory death sentences) amount to inhuman and degrading punishment. Far from it. Such a sentence remains, of course, the prescribed penalty for murder in this country. And, indeed, Ms Montgomery QC for the appellant concedes that in a few rare cases of exceptional gravity whole life terms can justifiably be fixed as the appropriate penal tariff. What is contended, however, is that life sentences which are both mandatory and irreducible are contrary to article 3 and, it is submitted, such being the fate in all probability awaiting this appellant were he to be tried and convicted in Missouri, he cannot be extradited and must instead, therefore, be freed. The appellants core submission, as I understand it, is that a mandatory, irreducible whole life term is inhuman and degrading punishment in just the same way as a mandatory death sentence: it denies the defendant the opportunity to plead in mitigation the particular circumstances of his case, treating him as one of an undifferentiated group rather than as an individual and thereby denying him his basic humanity. The fact that in the particular circumstances of his case the defendant might very well have been sentenced, entirely justifiably, to a whole life term is, submits Ms Montgomery, nothing to the pointjust as it is nothing to the point that a defendant subject to a mandatory death sentence might justifiably have received (and might yet receive) a discretionary sentence of death.
67. It is important to understand the relevance to this argument of the impugned sentence being not merely mandatory but also irreducible. The fact that the sentence is mandatory means that, when imposed, just as in the case of a mandatory death sentence, no consideration will have been given to the defendants personal circumstances or the particular circumstances in which he committed the crime. If, literally, his life sentence is also irreducibleif there is simply no realistic prospect of his ever being released irrespective of the particular circumstances of his casethen, the argument runs, he is to all intents and purposes in the same position as someone subjected to a mandatory death sentence. True, he lives rather than dies. But he lives in the certain knowledge that only death will free him from his imprisonment. And this fate will have been dictated simply by virtue of his having committed a specified type of crime, without any further reference to the individual facts of his case. Take this very case. On extradition to Missouri the appellant is likely to be convicted on two counts of first degree murder (premeditated killing) and sentenced to mandatory life imprisonment without the possibility of parole. It is highly unlikely that he will ever be released. His personal circumstancesincluding the fact that he may expect to live a further 40 or 50 years beyond the date of his arrest (in 2003, some six years after the alleged killings, at the age of 29)may never be considered. He will thereby have been denied his basic human right to be treated as an individual. His expected punishment must accordingly be regarded as inhuman and degrading. This essentially is the appellants argument.
68. Before turning to the Strasbourg jurisprudence it is necessary to take brief note of two domestic cases touching on the point on which the appellant seeks to rely: R v Lichniak  1 AC 903 in the House of Lords and de Boucherville v The State of Mauritius  UKPC 37 in the Privy Council. In Lichniak the House of Lords rejected a challenge under articles 3 and 5 of the Convention to the UKs imposition of mandatory life sentences for murder, holding essentially that such sentences in the UK are saved by the tariff system. The appellant, however, seeks to rely on a dictum in Lord Binghams speech at para 8:
If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights. . .as being arbitrary and disproportionate.
69. In de Boucherville the Privy Council was concerned with a mandatory life sentence (deemed to have been imposed in place of a mandatory death sentence), challenged as being incompatible with both section 7 (equivalent to article 3) and section 10 (equivalent to article 6) of the Constitution of Mauritius. Giving the Boards judgment, Lord Bingham first (para 19), in response to the States argument that mandatory life sentences are of their nature distinct from mandatory death sentences, cited the above passage from Lichniak and said that [t]he same reasoning applies in the present case. Later (para 23), in the light of the Grand Chambers judgment in Kafkaris v Cyprus (Application No. 21906/04, 12 February 2008), Lord Bingham concluded that, if the sentence passed on the appellant condemned him to penal servitude for the rest of his days", it would be manifestly disproportionate and arbitrary and so contrary to section 10", it being unnecessary to decide whether there may also have been a violation of section 7 in the Constitution".
70. It is to Kafkaris, then, that I must next turn, Strasbourgs latest, although perhaps not last, word on the subject. Premeditated murder in Cyprus carries with it a mandatory sentence of life imprisonment. No judicial body thereafter considers the case. In determining whether such a sentence is to be regarded as irreducible the Court was concerned principally with article 53 (4) of the Cyprus Constitution which confers on the President a discretion to remit, suspend or commute a life sentence provided that the Attorney-General agrees. The majority of the Grand Chamber found that such life sentences are both de jure and de facto reducible", concluding (at para 107):
It is true that a life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entails anxiety and uncertainty related to prison life but these are inherent in the nature of the sentence imposed and, considering the prospects for release under the current system, do not warrant a conclusion of inhuman and degrading treatment under article 3.
Earlier, at para 97, the majority reaffirmed previous Strasbourg case-law holding that the imposition of an irreducible life sentence on an adult may raise an issue under article 3".
71. Judge Bratza agreed with the majority that a life sentence in Cyprus is not irreducible because there is a real and tangible prospect of the prisoners release. He thought, however, that the time had come for the Court to rule that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with article 3 of the Convention. On this latter point a further five members of the Court agreed with Judge Bratza. But they disagreed with both him and the majority as to whether a mandatory life sentence in Cyprus should be characterised as irreducible. They thought it should and would themselves have found the sentence to constitute inhuman and degrading treatment.
72. To my mind it is apparent that widely differing views are held by the judges in Strasbourg as to whether mandatory life sentences (and perhaps even discretionary life sentences), are compatible with article 3. The judgment of the majority appears to consider life sentences as a category and to ask whether generically they are de jure and de facto reducible", only regarding them as irreducible if the law precludes all possibility of release or the facts demonstrate that virtually no one ever is released. And even if the sentence is to be regarded as irreducible, the majority appear to conclude no more than that it then may raise an issue under article 3 (not that it should be held in principle inconsistent with article 3).
73. The minority on the other hand seem to regard all whole life sentences as intrinsically inhuman and, because the prospect of release for life sentence prisoners in Cyprus is in practice extremely limited, and there was in the case before them manifestly [no] genuine possibility of release, they did not regard the sentence as de facto reducible and would on that ground have found it to violate article 3.
74. Although Kafkaris was, of course, a domestic case within the dichotomy established by the House in R (Ullah) v Special Adjudicator  2 AC 323, a number of foreign cases were referred to as supporting the Courts conclusion that irreducible life sentences may raise an issue under article 3". In the present context it is worth mentioning two of these. Nivette v France (Application No 44190/98, Judgment 3 July 2001) concerned the applicants proposed extradition from France to California on a murder charge. Assurances having been obtained that he would not be sentenced to death or to life imprisonment without possibility of parole, the Court concluded that the danger of the applicants being sentenced to life imprisonment without any possibility of early release being averted, his extradition could not expose him to a serious risk of article 3 ill-treatment or punishment.
75. Einhorn v France (Application No 71555/01, Judgment 16 October 2001) was a similar application, refused a few months later. The proposed extradition there was to Pennsylvania and in this instance it was ruled inadmissible because under Pennsylvanian law the Governor could commute a life sentence so as to allow the offenders release on parole. At paragraph 27 of the judgment, however, the Court observed:
. . . the Court does not rule out the possibility that the imposition of an irreducible life sentence may raise an issue under article 3 of the Convention. . . . Consequently, it is likewise not to be excluded that the extradition of an individual to a State in which he runs the risk of being sentenced to life imprisonment without any possibility of early release may raise an issue under article 3 of the Convention.
Before leaving this area of the Strasbourg case law, I would note just one other decision (curiously not mentioned in Kafkaris): Léger v France (Application No 19324/02, judgment 11 April 2006) where the applicant had been sentenced to life imprisonment with no minimum term fixed and released only after 41 years. In rejecting his article 3 complaint the Court said:
90 [I]n the case of adults the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole
92 [A]fter he had spent 15 years in prison, he had the opportunity to apply for release on licence at regular intervals and had the benefit of procedural safeguards. In those circumstances, the Court considers that the applicant cannot maintain that he was deprived of all hope of obtaining an adjustment of his sentence, which was not irreducible de jure or de facto. It concludes that his continued detention as such, long though it was, did not constitute inhuman or degrading treatment.