Wellington R, (on the Application of) v. Secretary of State for the Home Department

W faced two charges of murder in Missouri, United States of America (USA). He was arrested in the United Kingdom (UK) and the USA requested his extradition. In Missouri, the mandatory sentence was death or life without parole, except by the discretion of the Governor. The prosecutor vowed not to seek the death penalty.

W challenged his extradition by application for judicial review on the grounds that such a sentence constituted inhuman or degrading treatment and so breached his rights under Article 3 of the European Convention on Human Rights (“Convention”). The Administrative Court dismissed his application. W appealed to the House of Lords.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeal, the Court held that a life sentence in itself is not prohibited or incompatible with Article 3, although the imposition of an irreducible life sentence may raise an issue under Article 3. A claim under Article 3 cannot be raised merely because a sentence has been imposed, even where no satisfactory mechanism exists for review of the sentence, but only if the prisoner contends that his further detention would constitute inhuman or degrading treatment.

The Court stated that a relativist approach to Article 3 is needed for extradition. The desirability and importance of facilitating 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 counted as inhuman or degrading treatment in the domestic context will not necessarily be thought of as such in cases of extradition.

The Governor of Missouri’s power to pardon a prisoner or commute his sentence, despite being rarely applied, showed that W’s sentence was reducible.

Moreover, even if the sentence was irreducible and might contravene Article 3 if imposed in the UK it would only do so if on the facts of the case this would be disproportionate. On the facts of the case a sentence of life without parole is not grossly disproportionate to the crime.

The dissent argued that there should be an absolutist approach to the scope of Article 3. If the treatment or punishment likely to be faced by an individual extradited would be inhuman/degrading in a domestic situation, the treatment/punishment could count as inhuman whether as a likely consequence of extradition or for other lawful reasons (Chahal v United Kingdom(1997) 23 EHRR 413 considered).

[Adapted from INTERIGHTS summary, with permission]

"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, BAILII: [2008] ECHR 143 (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, BAILII: [2008] ECHR 143 . 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." Para. 34.

"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." Para. 36.