West Law Report

Whole-life sentence not inhuman punishment

Posted in House of Lords (case), Times Law Report by mrkooenglish on December 12, 2008

From The Times
December 12, 2008
Whole-life sentence not inhuman punishment

House of Lords
Published December 12, 2008
Regina (Wellington) v Secretary of State for the Home Department
Before Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches December 10, 2008

A mandatory sentence of life imprisonment without eligibility for parole which would be imposed on a prisoner convicted of two offences of murder in the first degree did not amount to inhuman or degrading punishment so as to justify a refusal to extradite him to stand trial in the United States of America.

House of Lords so held, dismissing the appeal of the applicant, Ralston Wellington, from the refusal by the Queen’s Bench Divisional Court (Lord Justice Laws and Mr Justice Davis) ([2007] EWHC 1109) of an application for judicial review of the decision on June 13, 2006, by the Secretary of State for the Home Department to order his return to the United States of America at the request of the US Government for his extradition to stand trial in the State of Missouri on several criminal charges including two counts of murder in the first degree alleged to have been committed on February 13, 1997.

Miss Clare Montgomery, QC and Mr Gareth Paterson for the applicant; Mr David Perry, QC and Mr Ben Watson for the Home Secretary.

LORD HOFFMANN said that according to the evidence submitted on behalf of the prosecutor, the applicant was a Jamaican drug dealer carrying on substantial business in Jamaica, the USA and the United Kingdom.

While staying with a woman in Kansas City, a member of her family took about US$70,000 from his room. The applicant made the woman drive him and two others 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 did not appear to have been concerned in the theft and the money was afterwards returned by the thief.

The applicant was charged with murder in the first degree, defined as knowingly causing the death of another after deliberation upon the matter. The prescribed penalties were death or imprisonment for life without eligibility for parole or probation or release except by act of the State Governor. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty.

The sole ground of challenge was that the secretary of state, as a public authority had acted in a way which was incompatible with the applicant’s 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 was alleged to constitute such punishment.

Opposition to the death penalty might be based on the pragmatic grounds that it was irreversible, that there was little evidence that its deterrent effect was greater than other forms of punishment and that the ghastly ceremony of execution was degrading to the participants and the society on whose behalf it was performed. The preservation of a whole life sentence for the extreme cases which would previously have attracted the death penalty was part of the price of agreeing to its abolition.

In Kafkaris v Cyprus (Application No 21906/04) (February 12, 2008) the European Court of Human Rights in Strasbourg said that a life sentence was not in itself prohibited or incompatible with article 3 but that the imposition of an irreducible life sentence might raise an issue under article 3.

It went on to say that the existence of a system for release was a factor to be taken into account in assessing the compatibility of article 3 with a life sentence and that an irreducible life sentence would not necessarily infringe it. The fact that the possibility of release existed de facto was shown by evidence that some prisoners had been released.

The Criminal Justice Act 2003 gave a judge in the UK power to order that a prisoner be imprisoned for life without eligibility for parole, but under the Crime (Sentences) Act 1997 the secretary of state had power to order the prisoner’s release if there were exceptional circumstances. Those provisions had clear parallels with the sentence of life imprisonment without parole and release only by order of the State Governor under the statutes of Missouri.

In R v Bieber (The Times August 11, 2008) the Court of Appeal considered that the existence of the Home Secretary’s power of release, even though used sparingly, meant that the whole life sentence was not in Strasbourg terms irreducible, so 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 his further detention would be inhuman or degrading treatment.

In his Lordship’s opinion, those conclusions were correct. It followed that the imposition of a whole life sentence in the UK would not ipso facto infringe article 3.

The next issue was the application of that construction of article 3 to cases in which the whole life sentence was not imposed in the UK but was likely to be imposed in a country to which the prisoner was extradited.

The leading authority was Soering v UK (Application No 14038/88) ((1989) 11 EHRR 439) concerning the Home Secretary’s decision to extradite a German citizen to Virginia to face charges of capital murder for which the penalty was death. It was not submitted that the death penalty itself was a violation of article 3 but it was complained that the manner in which it was implemented in Virginia, namely after long delays, was inhuman or degrading.

The Strasbourg court made it clear that the desirability of extradition was a factor to be taken into account in deciding whether the punishment in the receiving state attained the minimum level of severity which would make it inhuman and degrading. Punishment which counted as inhuman and degrading in the domestic context would not necessarily be so regarded when the extradition factor had been taken into account.

A relativist approach to the scope of article 3 was essential if extradition was to continue to function. Treating article 3 as applicable only in an attenuated form if the question arose in the context of extradition or other forms of removal to a foreign state was consistent with Strasbourg jurisprudence on the applicability of other Convention articles in a foreign context.

There was a practical need to construe any human rights instrument in a way which did not make extradition dependent upon compliance by the receiving country with the full panoply of rights enjoyed in the extraditing country.

Applying those principles to the present case, it was necessary to decide whether the mandatory sentence for first degree murder in Missouri was irreducible.

The Governor’s power showed that it was reducible de jure. The requirement that the sentence must be reducible de facto could not 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 the sentence in Missouri was just as much reducible as the sentence in the Kafkaris case.

Both depended upon the exercise of executive clemency without judicial control. Any prisoner was able to petition the Governor of Missouri and there was nothing to show that such petitions were not properly considered.

Even if the sentence was irreducible and might therefore contravene article 3 if imposed in the UK, it would contravene article 3 only if, on the facts of the case, the likely sentence would be clearly disproportionate.

On the facts of this case it could not be said that a sentence of life without parole would be so disproportionate to the offence as to meet the heightened standard for contravention of article 3 in its application to extradition cases.

Lady Hale and Lord Carswell delivered concurring speeches. Lord Scott and Lord Brown delivered speeches concurring in the result.

Solicitors: Russell-Cooke; Treasury Solicitor.

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