19 February 2009
by Ralston WELLINGTON
against the United Kingdom
lodged on 16 December 2008
STATEMENT OF FACTS
The applicant, Mr Ralston Wellington, is a Jamaican national who was born in 1973 and lives in London. He is represented before the Court by Russell-Cooke, a firm of solicitors practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 December 1997, a warrant for the applicant’s arrest was issued, and he was formally charged by the Circuit Court of Jackson County, Missouri, with two counts of murder in the first degree; one of assault in the first degree causing serious injury; and three of armed criminal action.
The penalty for first degree murder in Missouri is either death by lethal injection or life imprisonment without parole. The Prosecuting Attorney for Jackson County, Michael D. Jackson, has sworn an affidavit stating that the death penalty would not be sought in respect of the applicant. If the applicant is found guilty of first degree murder, therefore, it appears that the judge will have no discretion but to sentence him to life imprisonment without parole. Such a sentence can only be commuted by order of the Governor of Missouri. Evidence adduced by the applicant’s representatives indicates that the power to commute is exercised exceedingly sparingly, in limited circumstances of which none apply in the present case, and it is therefore very unlikely that the applicant would have any prospect of release.
The applicant was arrested in the United Kingdom on 29 January 2003, and remanded in custody the next day. On 15 October 2003, a District Judge committed the applicant to await the decision of the Secretary of State as to whether or not he should be extradited. The applicant applied for a writ of habeas corpus, which was dismissed by the High Court on 23 February 2004. Leave to appeal to the House of Lords was refused on 25 November 2004.
By letters dated 26 April and 3 May 2005, the applicant made representations to the Secretary of State, arguing, inter alia, that his extradition would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole. Despite these representations, the Secretary of State ordered the applicant’s extradition on 13 June 2006. In a letter giving reasons for his decision, he noted that there were authorities to the effect that mandatory or minimum sentences may, in certain circumstances, operate in a disproportionate manner. However, the authorities also reflected the fact that there were certain crimes sufficiently heinous as to deserve whole life sentences. The applicant would be sentenced to life imprisonment without parole only if found guilty beyond reasonable doubt of two extremely serious murders. There did not appear to be any mitigating circumstances. In such a situation, the imposition of a whole life sentence would not meet the threshold for inhuman or degrading treatment or punishment in terms of Article 3.
The applicant applied to the High Court for permission to apply for judicial review of the Secretary of State’s decision, and permission was granted on 2 November 2006. The application was heard on 16 March 2007 by the High Court, and was dismissed on 18 May 2007. It was found that a whole life sentence did not, per se, constitute inhuman and degrading treatment but could amount to such in the presence of certain circumstances, for example if it were imposed in a wholly arbitrary manner, or upon a very young person, or a person with mental health problems. The Secretary of State had carefully examined all the circumstances surrounding the applicant’s extradition, and the decision to extradite was lawful and did not breach Article 3.
The High Court certified that its decision involved a point of law of general public importance, but refused leave to appeal. Leave to appeal was, however, granted by the House of Lords on 31 January 2008.
The House of Lords dismissed the appeal on 10 December 2008. Although all five Law Lords agreed that the appeal should be dismissed, Lords Scott and Brown differed from the other three in considering that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. Lords Carswell and Hoffman and Baroness Hale all found that Article 3, insofar as it applied to inhuman and degrading treatment and not to torture, was applicable only in attenuated form to extradition cases.
However, the five Law Lords all agreed that a whole life sentence, even if truly irreducible, did not constitute inhuman and degrading treatment in violation of Article 3. Relevant factors in determining that the sentence did not amount to ill-treatment were the heinousness of the alleged crimes; the possibility of eventual release; and (for some) the extradition context. Lord Brown stated that although a whole life sentence did not violate Article 3 at the time of its imposition, there might come a time during the sentence where continued imprisonment, if no longer justifiable on any ground, would become a violation.
As to whether the sentence likely to be imposed on the applicant was in fact truly irreducible, Lord Scott and Baroness Hale did not directly address the issue, but Lords Hoffman, Brown and Carswell found that it was just as reducible as the sentence in issue in Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008. As in Kafkaris¸ the sentence could be commuted only by executive action, and without judicial control. It was conceded that the applicant’s chances of release were slight in the extreme, but found that it was still reducible de facto since there was a system in place for providing release which worked in practice and not merely in theory.
The application to this Court was lodged on 16 December 2008, and on 19 December 2008, the President of the Chamber to which this application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be extradited until further notice.
B. Relevant domestic and international law
1. Extradition treaty between the United Kingdom and the United States
The applicable bilateral treaty on extradition is the 2003 UK – USA Extradition Treaty.
Article 7 of the treaty provides as follows:
“When the offence for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the executive authorities in the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out.”
2. The United Kingdom Extradition Act 2003
Part II of the Extradition Act 2003 regulates the extradition of individuals to ‘category 2’ territories which, by designation of the Secretary of State, includes the United States. Pursuant to sections 71(4), 73(5), 84(7) and 86(7) of the Act, the Secretary of State has the power to designate certain States as not being required to provide prima facie evidence in support of their requests for extradition. By Article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (Statutory Instrument 2003 No. 3334) this includes, inter alia, the United States. Article 2 of the same order designates the United States as a ‘category 2’ territory.
Section 73 of the Extradition Act 2003 provides for the issue of a provisional warrant of arrest if certain conditions are satisfied. Section 87 requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. Section 103 provides for the right of appeal to the High Court against the decisions of the judge and against an order for extradition made by the Secretary of State. Section 114 provides for a further appeal to the House of Lords from the High Court where the High Court certifies a point of law of general public importance and leave to appeal is granted by either the High Court itself or the House of Lords.
3. R. v. Lichniak and R. v. Pyrah  UKHL 47
In the above two cases, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article. Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).
The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention.
4. R. v. Bieber  EWCA Crim 1601
The Court of Appeal in this case considered the compatibility with Article 3 of section 269(4) of the Criminal Justice Act 2003, which provided for whole life sentences, reducible only by order of the Secretary of State where there were exceptional compassionate circumstances. It was held that such sentences, if imposed to reflect the requirements of punishment and deterrence of particularly heinous crimes, did not breach Article 3. The Court of Appeal found that sentences imposed under s. 269(4) were not, in fact, irreducible, due to the power of the Secretary of State to alter the sentence. However, it was also noted that this Court, in Kafkaris, had not stated that an irreducible life sentence, imposed when the crime was so serious that it meant that the perpetrator should spend the rest of his days in prison, would constitute a breach of Article 3.
5. Relevant Council of Europe, European Union and international texts
The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris, cited above, at §§ 68-76.
The applicant complains under Article 3 of the Convention that, if extradited to the United States, he is at real risk of receiving a sentence of life imprisonment without parole. He submits that such a sentence constitutes torture, or inhuman or degrading treatment or punishment.
QUESTIONS TO THE PARTIES