England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
ON APPEAL FROM
(1) District Judge Zani (13.08.2009)
(2) District Judge Tubbs (18.08.2009)
(3) Secretary of State for the Home Dept. (21.07.2003)
(4) District Judge Riddle (12.04.2010)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/04/2011

LORD JUSTICE GROSS:

1. There are before the Court three matters; all raise the question of whether extradition of the individual concerned to the United States of America ("the US") would be incompatible with Art. 3 of the European Convention on Human Rights (" the ECHR"). Art. 3 of the ECHR thus falls to be considered in the context of extradition to a non-Convention State – moreover, a State with (it may be said) Courts and constitutional protections as sophisticated as are to be found anywhere.
2. Art. 3 of the ECHR provides as follows:

"No one shall be subject to torture or to inhuman or degrading treatment or punishment. "

No question of torture is raised; the sole focus is on "inhuman or degrading treatment or punishment".

3. It will be convenient to begin with a relatively brief summary of the, by now, familiar legal framework. Thereafter, a close look at the facts of the individual cases is necessary, before seeking to apply the legal principles (themselves not or not much in dispute) to those facts.

THE LAW

4. Consideration of the matter is itself conveniently divided into two parts; first, the domestic context (i.e., the position pertaining within Convention States); secondly, the extradition context (i.e., the position which arises when considering extradition from a State which is party to the ECHR, to a State which is not).
5. The discussion which follows is derived essentially from the following authorities: Soering v United Kingdom (1989) 11 EHRR 439, esp. at [86] – [91] and [100]; Saadi v Italy (2008) 24 BHRC 123, esp. at [124] – [130] and [134]; Kafkaris v Cyprus (2009) 49 EHRR 35, esp. at [96] – [100]; R v Bieber [2008] EWCA Crim 1601; [2009] 1 WLR 223, esp. at [24] – [49]; R (Wellington) v Home Secretary [2008] UKHL 72; [2009] 1 AC 335, esp. at [1] – [36] (the speech of Lord Hoffmann), [50] – [52] (Baroness Hale), [61] – [62] (Lord Carswell) and [88] – [89] (Lord Brown of Eaton-under-Heywood).
6. The domestic context: Generally, the ECHR is not concerned with matters of sentencing.
7. However, Art. 3 of the ECHR prohibits in absolute terms and irrespective of the victim's alleged conduct, "torture or…inhuman or degrading treatment or punishment" – so enshrining one of the fundamental values of the democratic societies making up the Council of Europe. It follows that if a sentence constitutes "inhuman or degrading treatment or punishment", then Art. 3 will be engaged. For ill-treatment to fall within the scope of Art. 3, it has to attain a minimum level of severity, to be assessed in all the circumstances of the individual case. The suffering and humiliation involved has to go beyond the inevitable element of suffering or humiliation inherent in a given form of legitimate punishment.
8. It is settled law that the imposition of a life sentence on an adult offender is not per se incompatible with Art. 3.
9. A life sentence which is "irreducible" may raise an issue under Art. 3 but will by no means necessarily do so, a fortiori, at the time the sentence is imposed. The difference between a discretionary and mandatory life sentence is of importance and may by itself be decisive as to whether any issue arises under Art. 3.

i) A discretionary whole life term, deliberately imposed by a Judge because the offence is so serious that, for the purposes of punishment and deterrence, the offender must remain in prison for the rest of his days, does not of itself violate Art. 3 – even if the sentence is irreducible: see s.269(4) of the Criminal Justice Act 2003 ("the CJA 2003"), together with para. 4(1)(a) of Schedule 21 to that Act. See: Bieber, at [45]; Wellington, at [17].

ii) A mandatory and irreducible whole life term may raise an issue under Art. 3, because of the possibility that (by reason of the mandatory nature of the sentence) the offender will be detained beyond the period that can be justified on the ground of punishment and deterrence. See: Bieber, at [37]; Wellington, at [36].

iii) Assuming an issue does arise under Art. 3 in connection with a mandatory and irreducible whole life term, it is likely to arise at some point in the course of the offender's detention – when it can be argued that all the objects of imprisonment have already been achieved – rather than at the time of the imposition of the sentence itself. See: Bieber, at [43]; Wellington, at [18].

10. As to whether a life sentence is irreducible:

i) A life sentence did not become irreducible by the mere fact that in practice it might be served in full: Kafkaris, at [99].

ii) Provided that there is a prospect, de jure and de facto, of release, a life sentence will not be treated as irreducible. That the possibility of release hinges on executive clemency (rather than judicial intervention), even sparingly exercised, does not result in the sentence being categorised as irreducible; see: Kafkaris, at [100] and [104]. Having regard to the provisions of s.30 of the Crime (Sentences) Act 1997, a "whole life term" in this jurisdiction would not be considered an irreducible sentence: Bieber, at [45] and following.

iii) As has been observed, the "…bar for what counts as irreducible is set high": Wellington, per Lord Hoffmann, at [12].

11. Pulling the threads together, it is plain, therefore, in the domestic (ECHR) context, that Art. 3 has a very limited application to life sentences: Wellington, at [13]. Indeed and though not common ground, the logic of the above discussion strongly suggests that within this context, no Art. 3 issue is capable of arising unless a life sentence is both mandatory and irreducible or, at least, mandatory. Moreover and to repeat, the bar for what counts as irreducible is set high. (For the avoidance of doubt, it is assumed that, in the domestic context, there is no question of a life sentence being imposed other than for unlawful killing or other very grave offending.)
12. The extradition context: If Art. 3, ECHR has a very limited application to life sentences within the domestic context, the scope of its application to life sentences, for unlawful killing or other very grave offending, in the extradition context, is likely to be no greater and, it is suggested, should be still more limited. The ECHR has, as is to be expected, a territorial reach, limited to the jurisdiction of the Contracting States: Soering, at [86]. Further (ibid):

" …the 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."

13. There can, accordingly, be no question of adjudicating on the responsibility of the receiving country in respect of its treatment of an individual surrendered by a Contracting State; liability, if any, under the ECHR can only be incurred by the extraditing Contracting State: Soering, at [86] – [90]. The Strasbourg jurisprudence imposes what may be described as a residual liability on extraditing Contracting States by way of the absolute prohibition on "…inhuman or degrading treatment or punishment". If, therefore, the applicant establishes (the burden being on him to do so) that there are substantial grounds for believing that he faces a real risk of treatment incompatible with Art. 3 if extradited to a (non-ECHR) receiving state, then the extraditing Contracting State will not be absolved from responsibility under Art. 3 for "all and any foreseeable consequences of extradition": Soering, at [86]; Saadi, at [124] et seq.
14. This is, however, a difficult area, crying out for tempering excesses of theory with practical good sense. Art. 3 embodies a fundamental value, it must be hoped, across Europe and beyond; but only cynicism and the devaluation of this fundamental principle can result if the balance struck by the courts fails properly to reflect the needs of the community as well as the rights of the individual. Fortunately, as it seems to me, in the field of extradition, the route to be followed in order to achieve a sensible balance has been clearly mapped out by the European Court of Human Rights ("the Strasbourg Court") and the House of Lords.
15. First, as recognised in Soering itself (at [89]), inherent in the ECHR is the search for a "fair balance" between the demands of the community and the protection of the individual. In this regard, there is a strong policy interest in an effective system of extradition. As the Strasbourg Court observed (loc cit):

" 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 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."

16. Secondly, in my respectful view, the logic of this reasoning points to the underlying strength of the speeches of the majority in Wellington (Lord Hoffmann, Baroness Hale of Richmond and Lord Carswell), in adopting a "relativist" view of the application of Art. 3 in the extradition context. As expressed by Lord Hoffmann (at [24]):

" Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor is taken into account."

As Baroness Hale explained (at [51]), though the Art. 3 prohibition is absolute once it has been determined that there is a real risk of treatment contrary to Art. 3, the assessment of whether there is such a risk is relative. In all this, the alleged conduct of the party resisting extradition may be "central to the assessment" of whether the punishment is inhuman or degrading. For his part, Lord Carswell spoke, with respect, tellingly (at [62]), of seeing matters:

" …through the prism of an application for extradition…".

17. Thirdly, by treating Art. 3 as applicable only in "an attenuated form" in the extradition context (Wellington, at [28]), the test of whether a potential sentence in the receiving state is such as to justify a refusal to extradite, is set necessarily high. For my part, I would respectfully adopt either of Lord Hoffmann's formulations, namely, that to justify a refusal to extradite to a non-ECHR state, the potential sentence must be one which "shocked the conscience" or was likely, on the facts of the case to be "clearly disproportionate": Wellington, at [32] and [35]. Any lesser test would fail to give proper effect to the public interest in effective extradition arrangements and could only serve to bring the law in this area into disrepute.
18. Fourthly, though as a practical matter it is difficult for an English Judge to avoid having regard to sentences in this jurisdiction by way of a frame of reference, I am unable to accept that sentencing practice in this jurisdiction is entitled to any greater weight than that. Mr. Blaxland QC's "speaking note" included the following submission:

"In order to maintain objectivity in the assessment of what is disproportionate the court should start by taking into account the sentence which would be imposed in the domestic jurisdiction. If the sentence to be imposed would significantly exceed that which would reasonably be expected in the UK that is a highly relevant consideration."

I respectfully disagree. Merely because on a given set of facts, the sentence in England would likely be X years, whereas in (say) Florida it would likely be 2X years, cannot justify a refusal to extradite. The danger of such an approach is that, however indirectly, it seeks to impose English sentencing policy on other states, while failing to give effect to the proper interest in effective extradition arrangements. Moreover, as Davis J pointed out in argument, were such an approach to be adopted, it is not self evident why English sentencing levels as opposed to those found in ECHR Contracting States generally (which can of course vary between such States themselves), should provide the benchmark.

19. Fifthly and confining myself throughout to unlawful killing or other very grave offending, it would seem to follow from the discussion of the domestic context, that neither (i) a determinate sentence nor (ii) a discretionary life sentence (whether irreducible or not) will readily give rise to any Art. 3 issue in the extradition context. In this field, as elsewhere, over-rigidity is unwise; I would therefore be reluctant to conclude that such sentences could never give rise to Art. 3 issues but it would be distinctly curious if Art. 3 had a greater scope of application in the extradition context than it has in the domestic context. Accordingly, although the test for a refusal to extradite (see above) is whether the potential sentence "shocked the conscience" or "is clearly disproportionate", it must (at the least) be unlikely that either a determinate sentence or a discretionary life sentence (whether irreducible or not) will satisfy that test.
20. I turn to the individual cases.

THE INDIVIDUAL CASES

(I) Mr. JOSE LUIZ INZUNZA

21. (1) The Facts: The US seeks the extradition of Mr. Inzunza, to stand trial for serious drug trafficking offences. The US is a territory designated by the Extradition Act 2003 (Designation of Part 2 Territories) Order; accordingly, the provisions of Part II of the Extradition Act 2003 ("the 2003 Act") apply.
22. It is said by the US that Mr. Inzunza is a leader of an organised Mexican crime group, responsible for the importation of a substantial quantity of cocaine and methamphetamine ("ice") into the US from Mexico. There is specific reference in the evidence to Mr. Inzunza's involvement in a particular shipment concerning some 15kgs of cocaine and 36kgs of ice. For present purposes, no more need be said of the facts of the alleged offending.
23. Mr. Inzunza was arrested in the United Kingdom on the 13^th February, 2009. He resisted and continues to resist extradition on the ground that it would be incompatible with Art. 3 of the ECHR. Following a hearing in the City of Westminster Magistrates' Court, on the 13^th August, 2009, DJ Zani sent Mr. Inzunza's case to the Secretary of State for the Home Department ("the SSHD") for her decision whether to order extradition. In rejecting Mr. Inzunza's opposition, the Judge, inter alia, remarked (at [20] of the Judgment) on the "clear distinction" to be drawn between a mandatory life sentence and a discretionary life sentence – the latter constituting the very worst possible outcome for Mr. Inzunza in the event of his conviction after a trial (but see below). Subsequently, on the 21^st September, 2009, the SSHD ordered Mr. Inzunza's extradition, pursuant to s.93(4) of the 2003 Act. Mr. Inzunza now challenges the decision of DJ Zani of the 13^th August, 2009; the matter comes before this Court as a statutory appeal under s.103 of the 2003 Act. It is unnecessary to extend this judgment by setting out the listing history, together with previous extensions of time and adjournments.
24. There was some debate in the evidence before the District Judge and before this Court as to the length of sentence faced by Mr. Inzunza, in the event of a plea of guilty or conviction after a trial in the US. Perhaps unsurprisingly, the rival positions were the opposite of those to be anticipated at a sentencing hearing. The evidence adduced on behalf of Mr. Inzunza – not assisted by some hyperbolic language - focused on what might be termed a cumulative worst case scenario; by contrast, the evidence relied upon by the US emphasised the advisory nature of the Federal Sentencing Guidelines (United States v Booker 543 US 220 ) and matters of mitigation upon which Mr. Inzunza might rely.
25. Having considered the evidence, in my judgment, the realistic position may be summarised as follows:

i) Any sentence imposed on Mr. Inzunza would be at the discretion of the US court; there is no question of a mandatory sentence in this case.

ii) Mr. Inzunza's potential sentence could vary widely, depending on all the circumstances, including: whether he enters a guilty plea or is convicted after a trial; whether, if he gives evidence, it is held that his evidence has been untruthful; whether he cooperates with the authorities; whether he is found to be a leader or organiser of the alleged conspiracy.

iii) While there may well be matters of mitigation available to Mr. Inzunza (including the absence of a prior criminal record), realistically, he faces a very substantial sentence in the event of a plea of guilty or conviction after a trial. This conclusion flows from the grave nature of the alleged offending. It is also supported by the fact that an alleged co-conspirator, one Lopez, has already been sentenced to a determinate sentence of 20 years (240) months, following a plea. In any proceedings, it may be anticipated that the US will argue that Mr. Inzunza's role in the conspiracy was, if anything, greater than that of Lopez.

iv) Although the range of available sentences includes a (discretionary) sentence of life imprisonment, the prospect of such a sentence being imposed is "remote". In this regard, I accept the measured evidence of Mr. Craig H. Russell, Assistant US Attorney, contained in his letter of 8^th June, 2009, as follows:

" Life sentences for drug trafficking convictions are very rare. Mr. Inzunza has no known prior criminal convictions. Based thereon, it is my opinion that the chance of Mr. Inzunza receiving a life sentence, while possible under the applicable statutory sentencing range, is remote. "

v) In the "remote" event that a life sentence was imposed on Mr. Inzunza, I need say no more than that, on the material before us, there are (at least) three mechanisms for reducing a Federal life sentence, so that the sentence would be both de jure and de facto "reducible". Those mechanisms are: (1) The provision of substantial assistance in the investigation or prosecution of a third party; (2) The Director of the Department of Justice's Bureau of Prisons may apply by motion to the sentencing court to reduce the term of imprisonment upon a finding that "extraordinary and compelling reasons warrant such a reduction"; (3) The President of the US may commute any sentence.

26. Accordingly, when considering Art. 3 of the ECHR in Mr. Inzunza's case, the context is that, at worst, he faces only a remote prospect of a life sentence; any such sentence would be discretionary. Moreover, that sentence would not be "irreducible".
27. (2) The law applied to the facts: The case of Mr. Inzunza can be taken very briefly indeed. Despite Mr. Blaxland's advocacy, in the light of the conclusions to which I have already come, this appeal is hopeless; there is no real risk of Mr. Inzunza receiving a sentence which "shocks the conscience" or is "clearly disproportionate".
28. First, the most likely outcome (always assuming that Mr. Inzunza is convicted) is that he will not receive a life sentence. On this assumption, no Art. 3 point sensibly arises. Mr. Inzunza will have been convicted of very serious drug dealing or importation. A prison sentence measured in decades is warranted rather than disproportionate let alone clearly disproportionate. Accordingly, the only point left to Mr. Blaxland is the difference between sentencing levels in this jurisdiction and the US. For the reasons already given that approach is unsound. However, insofar as it is at all relevant to consider sentencing levels in this country, for the quantity of (class A) drugs (allegedly) involved, Mr. Inzunza could easily be facing a sentence in excess of 20 years imprisonment. The mere fact that he may face a sentence even longer than that in the US, seems to me to be neither here nor there; on any view, it falls wholly short of giving rise to a realistic Art. 3 challenge. For completeness, Mr. Blaxland's submission that it would be necessary or appropriate to consider not only the likely English sentence but also the early release provisions, amounted, with great respect, to the reductio ad absurdum of the argument for treating English sentencing levels as "highly relevant".
29. Secondly, let it be assumed that the remote prospect materialised and that a discretionary sentence of life imprisonment was imposed on Mr. Inzunza. Let it be further assumed, in Mr. Inzunza's favour, that the fact that the life sentence is discretionary is not itself decisive of the appeal. Even so, as already foreshadowed and in agreement with the submission of Mr. Watson, this is a matter of great significance. It means that the Judge has passed a sentence which on the individual facts of the case is considered appropriate for the purposes of punishment and deterrence. As appears from the authorities discussed above, even in the domestic ECHR context, such a sentence would not be incompatible with Art. 3. For that matter, the maximum sentence in England (for similar offending) would be life imprisonment, so it is not at all apparent why, even on Mr. Blaxland's approach, such a sentence imposed in the US would found an Art. 3 challenge. That drug trafficking of sufficient seriousness is capable of attracting life imprisonment (unlikely though such a sentence may be) does not strike me as objectionable in principle.
30. Thirdly, if necessary to go further and for the reasons already given, I am not at all persuaded that a life sentence (if passed) is irreducible. But even if it was, I am not at all persuaded that the imposition of such a sentence, as a matter of judicial discretion, for (ex hypothesi) very grave drug trafficking, would be incompatible with Art. 3 in the extradition context.
31. Accordingly, in my judgement, Mr. Inzunza's appeal fails.
32. (3) "Supermax" conditions: For completeness, I record that Mr. Blaxland sought leave to amend his grounds, effectively to contend that Mr. Inzunza faced a real risk of confinement in a "Supermax" prison, in conditions which were incompatible with Art. 3. Mr. Blaxland acknowledged that the most he could do was to preserve Mr. Inzunza's position in that, before us, the point was concluded against him by the decision of a constitution this Court in Bary v SSHD [2009] EWHC 2068 (Admin). We refused leave; the application came far too late in the day and, had it been acceded to, the US must have been entitled at least to consider putting in evidence on this issue.

(II) Ms JANJIRA JEFFREY SMITH

33. (1) Preliminary: Before addressing the substance of the matter, I should record that Ms. Smith, who is detained in custody, had applied to be present at the hearing of her appeal. We declined to order that she should be brought to the Court but instead ruled that she should be "present" by way of video link. On the day of the hearing there were unexplained difficulties both with regard to the operation of the video link and the presence of an interpreter. We sought to mitigate those difficulties as far as we could, in particular by hearing the Inzunza appeal first but without losing time overall. Suffice to say that Ms Smith's appeal was ably and thoroughly presented by Mr. Blaxland, who at no stage sought an adjournment. We were wholly satisfied that to the very limited extent that Ms Smith may have missed part of the proceedings and insofar as the interpreter was not present throughout, no injustice whatever was suffered.
34. (2) The facts: The US seeks the extradition of Ms Smith to stand trial for offences of murder in the first degree and assault causing grievous bodily harm (assault in the first degree). Again, the 2003 Act is applicable.
35. It is said that Ms Smith murdered Mr. Roger Lewis and inflicted grievous bodily harm on Ms. Thanyarat Sengphrachanh ("Ms S") by causing them to ingest a highly toxic insecticide, methomyl, difficult to obtain in the US but easy to obtain in Asia and on-line from Asian retailers. Ms. Smith is a Thai national who regularly travelled to Thailand and other Asian countries. Mr. Lewis was a former partner of Ms Smith. In September 2006, it is alleged that Mr. Lewis told Ms Smith that he intended to marry a woman he had met on a recent trip to the Phillipines. Ms Smith was upset at the news. Mr Lewis had previously expressed an interest in dating Ms S. On the 6^th October 2006, Ms Smith ascertained that Ms S would be seeing Mr. Lewis that evening. Ms Smith sent to Ms S a bottle of Mr. Lewis's favourite whisky and urged Ms S to ensure that he was given it and drank from it. In the event, both Mr. Lewis and Ms S drank from that bottle – Mr. Lewis a full shot glass and Ms S half a glass. Almost immediately, Ms S felt ill, lost her sight and blacked out. On the following day, it was discovered that Mr. Lewis was dead and that Ms S had suffered a stroke and was temporarily blind. Forensic examination indicated that the bottle and glasses had contained methomyl; the autopsy determined that Mr. Lewis died of acute methomyl intoxication. In interview, Ms Smith admitted giving the bottle of whisky to Ms S but denied putting any poison in it.
36. Ms Smith fled the US. She was arrested in the United Kingdom on the 5^th December, 2008. She too resisted and continues to resist extradition on the ground that it would be incompatible with Art. 3 of the ECHR. Following a hearing in the City of Westminster Magistrates' Court, on the 18^th August, 2009, DJ Tubbs sent Ms Smith's case to the SSHD for her decision whether to order extradition. In rejecting Ms Smith's opposition, the Judge, inter alia, accepted the sufficiency of the assurances given by the US, that the death penalty would not be sought and that Ms Smith would not be charged with the offence of "Aggravated Murder in the First Degree"; the consequence of the latter assurance meant that Ms Smith would not be subject to a whole life sentence. The Judge underlined that Ms Smith, if convicted, would face a determinate sentence expressed in months, determined in the Judge's discretion and within a prescribed sentencing range; she would be facing neither a mandatory nor a discretionary life sentence. Subsequently, on the 3^rd November, 2009, the SSHD ordered Ms Smith's extradition, pursuant to s.93(4) of the 2003 Act. Again, the matter comes before this Court by way of a statutory appeal by Ms. Smith under s.103 of the 2003 Act. Here too, it is unnecessary to extend this judgment by setting out the listing history, together with previous extensions of time and adjournments.
37. As it seems to me, there is relatively little dispute in the case of Ms Smith as to the sentencing provisions and their likely application. At all events, the conclusions which can properly be drawn from the evidence are these.
38. Sentencing in the State of Washington is governed by the Sentencing Reform Act 1981, as amended ("the SRA"). The SRA "guides" judicial discretion by "providing presumptive sentencing ranges for the courts to follow": see, the Supplementary Affidavit of Mr. Scott O' Toole, Senior Deputy Prosecuting Attorney, dated 15^th July, 2009. Sentences for the two offences would be consecutive. The "presumptive sentencing ranges", adopting the evidence introduced on behalf of Ms Smith, are here:

i) For the murder of Mr. Lewis, 240 – 320 months;

ii) For the assault on Ms S, causing grievous bodily harm, 93 - 123 months;

iii) As a matter of totality, the range for both offences amounts to 333 – 443 months (i.e., 27 years 9 months – 37 years).

39. In what Mr. O' Toole describes as "very limited circumstances", aggravating factors may be alleged and strictly proved to the jury, leading to the imposition of a sentence above the "presumptive standard range". No such factors are currently alleged but, given the "heinous nature of these offences", Mr. O' Toole has reserved, in terms, the State of Washington's right to amend the indictment to allege one or more such factors, including: deliberate cruelty to the victim; a high degree of sophistication and planning; use of a position of trust, confidence or fiduciary responsibility to facilitate the commission of the offence; an egregious lack of remorse. If one or more aggravating factors are proved, the Judge has a discretion to impose a sentence above the maximum for the standard range (i.e., 37 years). If no aggravating factors are alleged or proved, then fixing the sentence within the presumptive standard range is at the discretion of the sentencing Judge.
40. Ms Smith is 53 years old. The gravamen of her case is that given the likely length of determinate sentence if convicted, she faces, as it is put in evidence adduced on her behalf, a "de facto" life sentence – which, it is submitted on her behalf would be clearly disproportionate. It is in that context that Art. 3 of the ECHR falls to be considered in the case of Ms Smith.
41. Pausing here, it is difficult to see how, in the case of Ms. Smith, any question of "irreducibility" could arise (in connection with a determinate sentence). It is plain, however, that questions of age and health will be taken into account at the sentencing stage.
42. (3) The law applied to the facts: This appeal too lacks substance and, in my judgement, must clearly fail. My reasons follow.
43. Assuming Ms Smith is convicted, she will have committed two heinous crimes; it would be a matter of good fortune only that she is not facing sentencing for a double murder.
44. Ms. Smith, if convicted, faces a determinate not an indeterminate sentence. For my part, I am bound to say that a sentence within the tariff bracket (the "presumptive sentencing range") set out above does not begin to "shock the conscience", whether or not it amounts to a de facto life sentence. Nothing in the Strasbourg or English jurisprudence suggests otherwise. Should the sentence exceed the top end of the presumptive sentencing range, then, as already discussed, it would only be because aggravating facts had been proved, justifying such a course. It is, moreover, not to be overlooked that questions of age and health can be taken into account at the sentencing stage. Finally, if (contrary to the conclusion expressed above) it was right to take into account English sentencing levels, Ms Smith would inevitably receive a life sentence and be at risk of a minimum term in this country closer to the 30 year than the 15 year starting point.
45. Further elaboration is unnecessary. There is no real risk of Ms Smith, if convicted, facing a sentence incompatible with Art. 3. I would dismiss this appeal.

Mr. PHILIP HARKINS

46. (1) The facts: The US seeks the extradition of Mr. Harkins to face trial for the murder of Joshua Hayes in the course of a robbery on the 10^th August, 1999. It is unnecessary to say much of the procedural history which now spans some 8 years – a startling length of time at least in respect of 5 of those years. In summary:

i) On the 4^th February, 2000, Mr. Harkins was indicted for first-degree murder and attempted robbery with a firearm in the Circuit Court of the Fourth Judicial Circuit of Florida. Subsequently and knowing that he was awaiting trial for murder, he absconded from the US.

ii) Mr. Harkins came to the attention of the United Kingdom authorities following a fatal traffic accident in Scotland on the 25^th January, 2003. In respect of that matter, he was convicted of causing death by dangerous driving and, on the 22^nd December, 2003 was sentenced to 5 years imprisonment.

iii) Meanwhile, on the 24^th March, 2003, the SSHD issued an Order to Proceed under the Extradition Act 1989 ("the 1989 Act"). On the 21^st July, 2003, District Judge Tubbs determined that the evidence submitted by the US demonstrated that there was a case to answer. The extradition proceedings then went into abeyance, so to speak, until Mr. Harkins was released from his (domestic) prison sentence.

iv) On the 3^rd April, 2006, Mr. Harkins was released on licence from prison in this country. On the 1^st June, 2006, the SSHD ordered his extradition. On the 14^th February, 2007, a different constitution of this Court refused an application for judicial review of the SSHD's decision. Thereafter, following an application by Mr. Harkins to the European Court of Human Rights ("the Strasbourg Court") the case appears to have made no effective progress until an application for permission to apply for Judicial Review, made to the English Court in June 2010.

v) The matter now comes before this Court pursuant to an order of Mitting J, dated 31^st December, 2010, granting Mr. Harkins permission to apply for judicial review on a single ground, viz.:

" …that the Claimant's extradition would be incompatible with Article 3 ECHR because, if convicted of first degree murder in circumstances in which he did not intend to kill or even to cause physical harm to the victim, he would be sentenced to life imprisonment without the possibility of parole, simply because the killing occurred in the course of the robbery. "

For procedural completeness, the Defendant to the application is the SSHD and the US appears as Interested Party.

47. Mr. Harkins faces a two count indictment in the US. Count 1 charges him with murder in the First Degree, in violation of the relevant sections of the Florida Statutes. Count 2 charges him with Attempted Armed Robbery, again in violation of the relevant Florida statutory provision.
48. It is common ground that, as summarised in a US Department of Justice letter dated 4^th June, 2007, Count 1 can be proved by establishing that Mr. Harkins had a premeditated design to effect the death of the person killed or that he committed or was attempting to commit a serious felony offence (including armed robbery) at the time the person was killed (first degree felony murder) (the Florida "felony murder" rule). It is further common ground that if Mr. Harkins is convicted on Count 1, whether as a matter of premeditated murder or felony murder, the sentence in Florida is one of mandatory life imprisonment without parole ("LWOP"). For completeness, the death penalty is available in Florida but there is no dispute as to the sufficiency of the US assurances that the death penalty will not be sought.
49. The possibility of conviction pursuant to the Florida felony murder rule has been at the centre of the debate before us in this case. The complaint, or ground of resistance to extradition, is that Mr. Harkins faces the possibility of LWOP even though the prosecution may have proved no more than that the death of Mr. Hayes occurred during the course of the robbery or attempted robbery – thus without the prosecution needing to prove or having proved that Mr. Harkins intended to kill Mr. Hayes or to cause him serious harm. In the course of argument it was submitted by Mr. Hislop QC on behalf of Mr. Harkins that he was at risk of LWOP even if the killing was an "accident", albeit in the course of a robbery or attempted robbery; however, as will be seen, that submission was later very fairly and materially qualified to clarify what was meant by "accident".
50. Apart from the fact that Mr. Hayes was killed in the course of a robbery or attempted robbery on him and some others, the facts as to the incident are very much in dispute.
51. The case (or primary case) for Mr. Harkins is that he was not there at all.
52. As outlined in the affidavit in support of extradition sworn by Mr. Kimbrel, Assistant State Attorney, on the 27^th February, 2003 (at para. 5), the prosecution case is as follows:

" On August 10, 1999, the victim, Joshua Hayes, and two other males were in a car parked at a boat ramp in Jacksonville…Florida. Phillip Harkins, and his co-defendant, Terry Glover, approached the car and ordered everybody to get out and go face down on the ground and told them that this was a robbery. The other two men in the car complied. Joshua Hayes got out of the car but refused to give up his money or get on the ground. Phillip Harkins fired a single shot from a .223 caliber rifle into Hayes' head, killing him instantly. Harkins and Glover fled the scene and disposed of the rifle by throwing it in the river. Harkins and Glover were wearing masks at the time of the robbery. However, all five men knew each other and one of the two in the car with Hayes identified Harkins' voice. Later in the case, witnesses were found who had heard Harkins plan the robbery and had seen him leave his residence with his gun………Finally, Harkins co-defendant, Terry Glover, became a state witness and gave a complete confession fully implicating Harkins in the fashion related here. "

53. Much about the co-defendant Mr. Glover is highly controversial (as to which, see below). Over and above that, the gist of the first two statements which Mr. Glover did give (though not the third), conveys a somewhat different picture of the event – albeit one which may not be markedly more favourable to Mr. Harkins. The essence of this account from Mr. Glover is that Mr. Hayes said that Mr. Harkins would have to kill him to take his money. At this point, Mr. Harkins struck Mr. Hayes in the face with the barrel of the rifle, the rifle went off and (Mr. Glover's words) "…blew the back …or the side of his head off". It may be noted that there is evidence that the rifle was loaded before arrival at the scene of the robbery and that Mr. Harkins cocked it before getting out of his car to rob Mr. Hayes and the others. Accordingly, on that material, even on Mr. Glover's account, Mr. Harkins struck Mr. Hayes with the barrel of a loaded, cocked rifle, when Mr. Hayes resisted the robbery.
54. Strenuous criticism was made on behalf of Mr. Harkins of the investigation, of the manner in which Mr. Glover became a state witness and of Mr. Glover's reliability. It is indeed submitted by counsel for Mr. Harkins that the case against him rests exclusively on Mr. Glover's evidence; suffice to say that, on any view, Mr. Glover would be a most important witness in any trial.
55. It is fair to Mr. Harkins to note his youth at the time of the fatal incident. He was born in Scotland on the 2^nd September, 1978 and was therefore weeks short of his 21^st birthday at the material time. He had lived in Scotland until he was 14, when he was taken to the US at the request of his mother and stepfather, who then resided there.
56. Although, to begin with, the case against Mr. Harkins was presented on the basis that he had a history of involvement in drug dealing, violence and the possession of firearms, fresh evidence in this regard was introduced, in effect, by consent. In summary, that evidence shows no previous convictions for violence or drugs. The firearms offence related to the time when Mr. Harkins was a juvenile; its minor nature is indicated by the disposal – akin to a caution here. Before us, both the SSHD and the US could not gainsay this evidence and, accordingly, accepted it as correct. By reference, however, to Mr. Harkins' own statements to Prof. Coid (a psychiatrist), the SSHD and US submit that, nonetheless, Mr. Harkins had a criminal lifestyle, had engaged in drug dealing and displayed a familiarity with firearms.
57. Given the risk of a mandatory sentence of LWOP, the question of "reducibility" was much debated in the case of Mr. Harkins.
58. Relying on the evidence of Prof. Babcock of Northwestern University School of Law, contained in her affidavit sworn on the 11^th July, 2008 ("Babcock") and on what he submitted was Florida's "unforgiving stance" on punishment, Mr. Hislop submits that, if convicted on count 1 and sentenced to LWOP, Mr. Harkins would spend the rest of his natural life in prison unless he is granted executive clemency or conditional medical release (limited to permanent physical incapacitation or terminal illness). In Prof. Babcock's view, the likelihood that Mr. Harkins would be granted executive clemency is "so low as to be non-existent": Babcock, at para. 37. Although there was evidence from the US Department of Justice that between 1980 and 2006, the Governor of Florida had commuted the sentences of 133 convicted felony claimants of whom 44 had been convicted of first degree murder, none of these commutations had taken place after 1994 when the sentence of LWOP was first introduced. Accordingly, no claimant convicted of first degree murder and sentenced to LWOP has been granted clemency in Florida. In connection with clemency, claimants enjoyed minimal due process rights: Babcock, at paras. 39 – 46. Moreover, clemency decisions were highly politicised and the political climate told against the grant of clemency. Prof. Babcock's conclusions (Babcock, at para. 48) were as follows:

" ….given that:

a. the Governor of Florida has never commuted the sentence of any prisoner serving life without parole,

b. political pressures mean that no Governor now or in the future would be likely to grant clemency to such a prisoner absent clear evidence of innocence, and

c. there are no effective judicial remedies available for prisoners who are denied clemency,

if Mr. Harkins were to be convicted of first degree murder, it is virtually certain that he would spend the rest of his life in prison. The prospect of him being granted clemency is extremely remote. "

59. Both Ms Dobbin (for the SSHD) and Ms Ezekiel (for the US) dispute the conclusions contended for by Mr. Hislop. Basing themselves on a letter dated 4^th June, 2007 from the US Department of Justice ("the DOJ 4^th June letter"), Ms. Dobbin and Ms Ezekiel's submissions may be summarised as follows:

i) As set out in the Florida constitution, the Governor has authority to grant a full or conditional pardon and/or commute a sentence if two members of his cabinet approve his decision.

ii) The Governor is not constrained in terms of the factors which he is entitled to take into account in considering pardons or commutations. In every case, however, he will consider: (1) the nature of the applicant's offence; (2) any history of mental instability, drug abuse, or alcohol abuse; (3) any subsequent arrests; (4) the applicant's employment history; (5) any outstanding debts or child support payments; (6) any letters submitted in support of, or in opposition to, the application. Additionally, specific provision is made for having regard to illness (should such a consideration arise) and the exercise takes place against the background of the constitutional protections afforded to the individual in the US.

iii) Accordingly, it can be seen that the power vested in the Governor to grant clemency has both a formal and constitutional basis and is not arbitrary. The State of Florida has a specially constituted Clemency Administration Office which operates as the investigative arm of the Governor and Cabinet sitting as the Board of Executive Clemency.

iv) In practice, clemency is granted from time to time. Between 1980 and 2006, whatever the "politics" of the matter, the Governor commuted the sentences of 133 convicted felony defendants of whom 44 had been convicted of first degree murder.

v) Professor Babcock's evidence did not, therefore, support the conclusion that there was no possibility or prospect of clemency being granted in first degree murder cases in the future. The fact that there had been willingness in the recent past to grant clemency, belied the suggestion of a fixed and immutable gubernatorial attitude in this regard.

vi) As Ms Ezekiel put it in her skeleton argument:

" The fact that no prisoner has been granted clemency since the introduction of the sentence of LWOP since it was introduced in 1994 does not indicate that there is no prospect of a grant of clemency in a case involving first-degree murder. A person convicted of first degree murder has committed a grave murder. It is therefore unreasonable to expect that in the period since the introduction of the sentence of LWOP (1994) that such a person would have served a sufficient period of time in prison (approximately 16 years) to warrant an application for the grant of clemency. The Governor of Florida has commuted the sentences of 15 people convicted of first-degree murder between 1994 and 2008…. "

60. For my part, having anxiously weighed this evidence, I conclude as follows:

i) As a matter of law, the State of Florida does have a procedure for granting executive clemency.

ii) As a matter of practice, that procedure has been from time to time exercised, despite what is said about political pressures.

iii) With respect to the evidence of Prof. Babcock, the fact that no one convicted of first degree murder and sentenced to LWOP has been granted clemency in the State of Florida does not mean that there is no prospect of clemency being granted in the future to someone thus sentenced. I accept Ms. Dobbin's and Ms Ezekiel's submissions that it is simply too soon to say; it is perhaps unsurprising that no such clemency has been exercised in the case of a convicted murderer sentenced to LWOP after no more than 16-17 years.

61. Pulling the threads together on the material and submissions before us:

i) The criticisms of the investigation are, for present purposes, nothing to the point. Similar criticisms were considered and rejected by this Court on the previous application for Judicial Review: see, [2007] EWHC 639 (Admin). In any event, these are matters to be raised and dealt with in the trial process in Florida. They do not assist on the Art. 3 issue now before us.

ii) If Mr. Harkins maintains his current defence, his case in any trial in Florida will be that he was not present at the fatal incident. If that case is accepted, he will of course be acquitted, having committed no crime. Faced with that case and on even the limited material we have seen, it must be likely that the prosecution in any such trial will seek to argue that this was a premeditated killing by Mr. Harkins because Mr. Hayes resisted the robbery. Prosecutors are of course not bound by Mr. Glover's interpretation of the fast moving event. For my part, depending how the evidence developed, there must be a realistic possibility of a conviction on this basis.

iii) There must, however, also be a realistic possibility that Mr. Harkins could be convicted by way of the felony murder rule; the prosecution is indeed not bound to put the matter higher. But, if so, as Mr. Hislop came to accept, the only "accident" involved is the accidental discharge of the loaded and cocked firearm. The killing would thus not have been premeditated but would have resulted from a serious and most dangerous assault, committed in the course of a robbery. Insofar as it is permissible to have regard to English Law (as furnishing no more than a frame of reference), the most likely outcome, on that factual assumption, would be a conviction for manslaughter. Moreover, it would involve a very grave case of manslaughter indeed.

iv) On the material before us, it is fanciful to contemplate a complete acquittal on the basis of (true) "accident". As foreshadowed, in the course of argument, Mr. Hislop realistically accepted this.

v) If Mr. Harkins is convicted on count 1, on any basis, the sentence is a mandatory LWOP. Mr. Harkins was aged 20 at the time of the incident.

vi) The sentence of LWOP, if imposed on Mr. Harkins, would not be irreducible; de jure, there is a system for the granting of clemency; de facto, it cannot be said that there is no prospect of clemency.

vii) In all this, I have not overlooked Mr. Hislop's submission that a trial in this country was possible and indeed preferable to extraditing Mr. Harkins to the US. With respect, I need say no more than that this submission was wholly unreal.

62. For completeness, I record that Mr. Hislop sought leave to adduce a variety of new material. It is unnecessary to say more than that we refused leave save for an affidavit from a Mr. Barksdale (dealing with parole) and evidence as to Mr. Harkins' criminal record (see above) – all effectively admitted into evidence by consent. We refused leave for other material going to the risk of rape in prison and an affidavit from Mr. Harkins' English solicitor purporting to deal with US law and practice; all this material was too late, it was unsupported by any proper application and, in any event, with respect, an English solicitor was not competent to provide evidence on US law and practice.
63. (2) The law applied to the facts: In fairness to Mr. Hislop, the case of Mr. Harkins calls for more extended reflection than the cases of Mr. Inzunza and Ms. Smith. But once the true nature of the argument and the facts have been grasped then the answer, in my judgment, is likewise clear – on both the Strasbourg and English jurisprudence outlined above. The extradition of Mr. Harkins to the US would not be incompatible with Art. 3. My reasons follow.
64. First and importantly, it is necessary to clarify the ambit of the argument before this Court. It is not contended on behalf of Mr. Harkins that the Florida felony murder rule is unconstitutional on the ground of arbitrariness or its potential application to a wide range of circumstances and in cases of (relatively) low culpability. Mr. Hislop's submission is instead confined to the contention that, on the facts of this case, the possible conviction of Mr. Harkins by way of the Florida felony murder means that his extradition would be incompatible with Art. 3. It follows that some of Mr. Hislop's more graphic examples of the scope of application of the Florida felony murder rule (e.g., to a man sentenced to LWOP after lending his car to friends to commit a burglary, in the course of which a a woman was killed), can be put to one side. The Court is concerned with the facts of this case and no question arises of accessory liability, remote from the killing; Mr. Harkins' alleged role was plainly that of principal.
65. Secondly, the scope of the debate in this case has now been clarified. Realistically, for reasons already canvassed, this case is concerned with the possibility that Mr. Harkins will be convicted by way of the Florida felony murder rule for conduct (at best for Mr. Harkins) akin to manslaughter in the course of an armed robbery in this jurisdiction. It is fanciful to contemplate Mr. Harkins being at risk of conviction for what was an "accident" truly so called; on any realistic view, there was no such "accident" here.
66. Thirdly, it is of course a matter for the sentencing policy of the State of Florida whether mandatory LWOP is an appropriate sentence for the crime committed in this case, if Mr. Harkins is convicted. Bearing in mind that this Court is not engaged in a comparative sentencing exercise, it is helpful to keep the following matters in mind when considering whether, seen through "the prism of an application for extradition" (Wellington, supra, at [62]) the potential Florida sentence should be seen as clearly disproportionate:

i) As this Court is only concerned with the facts of this case, the mandatory nature of the sentence does not carry the significance which it might, had the Court been engaged in some wider review of the law in question.

ii) The (alleged) facts of the present case are shocking indeed. However analysed, should Mr. Harkins be convicted, he will have committed a grave crime; even on the most favourable (realistic) view of the facts for Mr. Harkins, his culpability will be high. On the (alleged) facts of this case, a severe sentence would be a punishment fitting the crime.

iii) To the extent that it matters, it would be wrong to underestimate the likely sentence Mr. Harkins would face in this country, even were he convicted "only" of manslaughter rather than murder. It is probable that he would receive an indeterminate sentence of imprisonment for public protection ("IPP"), although the possibility of a life sentence cannot be excluded. In any event, so far as concerned the notional determinate element of an IPP or a determinate sentence if it stood alone, on the conduct alleged in the present case, Mr. Harkins could expect a significant sentence well into double figures.

67. Fourthly, against this background, I am unable to conclude that the imposition in the US of a sentence of LWOP on Mr. Harkins would be clearly disproportionate, although it would not be a sentence passed here. Given Mr. Harkins' (alleged) conduct, it would not be a sentence which "shocked the conscience". On any view, that the killing occurred in the course of an armed robbery is a most serious aggravating factor, made, if anything, yet more grave by the (alleged) fact that the loaded rifle had been cocked by Mr. Harkins before getting out of his car.
68. Fifthly, although I have carefully considered Mr. Harkins' age at the time of the incident (he was 20), I am not dissuaded by that factor from the conclusion to which I am otherwise minded to come.
69. Sixthly, on the evidence and as already discussed, the sentence of LWOP is not irreducible. The significance of this feature for the Art. 3 jurisprudence was highlighted above. However, even if, contrary to my conclusion, the sentence was irreducible, on the (alleged) facts of this case, I would not regard the imposition of an irreducible sentence of LWOP as clearly disproportionate and thus in violation of Art. 3 – whatever questions might arise at some point in the course of Mr. Harkins' detention.
70. Pulling the threads together, the case of Mr. Harkins does involve a young (alleged) offender, facing a mandatory sentence of LWOP. But, as the Court is solely concerned with the facts of this case, the mandatory nature of the sentence does not have the wider significance which might otherwise attach to it. Should he be convicted, Mr. Harkins will, on any (realistic) view, have committed a grave crime with high culpability. The sentence of LWOP is manifestly severe and different from the sentence he would face in this jurisdiction – but it cannot be seen as clearly disproportionate. It is, moreover, not irreducible, though even if it was, the imposition of the sentence per se would not be incompatible with Art. 3.
71. It follows, in my view, that Mr. Harkins' application for judicial review should be dismissed.

POSTSCRIPT

72. Marcus Bebb-Jones: This had been a related appeal. However, as recorded in a Consent Order, dated 24^th January, 2011, upon the Appellant withdrawing the appeal, it was ordered that the appeal be dismissed. We pronounced accordingly. Before us, counsel sought further time to consult Mr. Bebb-Jones but, in the light of the Consent Order and in the absence of any, still less any clear and relevant instructions as to why effect should not be given to it, we declined to grant that application.

THE HONOURABLE MR JUSTICE DAVIS :

73. I agree. I add only a few comments of my own.
74. Each of the three applicants here faces very grave charges in the US; in the case of Smith and Harkins charges of murder (amongst other things), in the case of Inzunza charges of conspiracy to supply vast quantities of cocaine and methamphetamine. It is not disputed that each would, in legal terms, receive a fair trial in the US. Their cases have very different facts. But they have this in common. In the case of Ms Smith and Mr Harkins, each fled the US, coming to the United Kingdom, thereby depriving, thus far, the relevant courts in the US from passing judgment. (Mr Inzunza's position perhaps is rather different: he was arrested having travelled by air from Mexico to Heathrow). They have this further in common. If they are right, and the application of the principles of the European Convention on Human Rights is such as to preclude their extradition from the United Kingdom to the US, realistically they will not be tried at all: a handsome reward for flight.
75. If that is a result to be reached in any or all of these cases then it can only be so as a result of the particular facts and circumstances of each such case.
76. The relevant principles here applicable are set out in the judgment of Gross LJ. In truth, as it seems to me, the relevant principles which this court has to apply can be taken from the House of Lords decision in Wellington (in which relevant European authorities, including the important authority of Soering, are reviewed) and the Court of Appeal decision in Bieber (which also reviews the important European authorities). Those decisions are of course binding on us.
77. The delay in these cases coming on for final hearing has been most unfortunate. It appears that this was initially, at the end of 2009, in consequence of representations (doubtless reflecting the parties' understanding at the time) being made in the cases of Mr Inzunza and then Ms Smith that a decision in the European Court of Human Rights in the case of Wellington (in respect of which a reference had been made), and other linked cases including that of Harkins, was imminent. But that never happened. Wellington's case never has been heard by the European Court of Human Rights – we were told he abandoned the case and elected to return to the US. The case of Mr Harkins was itself remitted back to the UK, as all domestic remedies had not been exhausted. It is, in any case, well known that the European Court of Human Rights (as with the European Court of Justice) has an enormous pending case-load. It seems to me that the High Court should be very careful, particularly in extradition cases, in granting adjournments pending assertedly speedy resolution of assertedly relevant other cases before the European Courts. In the present cases the appellants and applicant here either should (if their contentions are wrong) have been returned speedily to the US so that their trials could take place; or (if their contentions are right) have been speedily released from detention. Neither outcome has occurred.
78. That is all the more so here when it can be seen that the cases of Inzunza and Smith really have little or nothing in common with the case of Wellington. Further, the relevant principles have been frequently expounded upon both in the European Court of Human Rights and at the highest levels in the domestic courts. It is true that there have been, and continue to be, views expressed that mandatory and irreducible life sentences will always be an infringement of Article 3. But that view has consistently thus far not been accepted by the European Court of Human Rights as an invariable principle, and as is also reflected in the judgments in Wellington. Put shortly, this is a matter on which it is to be acknowledged that views can legitimately differ and on which a degree of latitude is to be accorded, depending on the underlying facts. It would, in my respectful view, be particularly lamentable in the context of extradition were that not so: given the prospects of evasion of justice and refuge in safe havens: a point emphasised in Soering and by the majority in Wellington.
79. It is, generally speaking, not for member states, subject to the European Convention on Human Rights, to dictate to other states not parties to the Convention what their sentencing policies should be. A person who chooses to commit a crime in a particular country (assuming a properly recognisable trial system in that country) should expect to be sentenced by the laws of that country: not by the laws of his country of birth or ordinary residence or of the country to which he has removed himself by flight. As observed by Ouseley J in paragraph 77 of his judgment in R (Wilcox) v Secretary of State for Justice [2009] EWHC 1483 (Admin) : "If disproportion is the key to the analysis it cannot be considered in a vacuum or as if the whole world shared the same problems to the same extent and shared the same views as to how to tackle them". In my view, this must be right: although I do of course also agree with Mr Blaxland that where the court in the requested state is required to assess whether a projected sentence in the requesting state is consistent with Article 3 or is grossly disproportionate, it must exercise its own judgment and not decide the matter solely on the application of deference to the laws of the requesting state.
80. All this is reflected in the approach ultimately applicable to each of these three cases: are there substantial grounds for believing that there is a real risk that the prospective sentences which they may receive (if convicted) will be grossly or clearly disproportionate? Miss Dobbin emphasised the epithets "grossly" and "clearly". Miss Ezekiel emphasised the epithets "substantial" and "real". They were right to do so.
81. In my view the test of "gross disproportionality" is geared to making ample allowance for these legitimate margins of appreciation, if I may so style them. As to the application of such test by a particular court, all depends on the particular facts of the particular case. I do not altogether withdraw my suggestion in argument that there may need to be something of an "elephant in the room" aspect if an applicant is to make good such a case: albeit that, in legal terms, the test is whether there are substantial grounds for believing that there is a real risk of infringement of Article 3.
82. Turning then to the cases of Mr Inzunza and Ms Smith, I agree with Gross LJ that, on the facts, no question of infringement of Article 3 arises.
83. In the case of Mr Inzunza, I agree that, if he is convicted, the imposition of a life sentence is, on the evidence, not probable. In any case, if a life sentence did eventuate it would have been imposed as a matter of judicial discretion on facts judicially found to be sufficiently grave to warrant such a sentence.
84. In the case of Ms Smith, she does not, on the evidence, face a life sentence at all – the term in her case (if convicted) will be a determinate one. Mr Blaxland argued that the likely length, given her current age, would be to make it a de facto life sentence. The short answer is that it is not a de jure life sentence. In any case, the court in the State of Washington can, within the applicable tariff range, give such weight to her present age, and personal circumstances, as it thinks fit. Clearly, on the evidence, the term will be a very long one indeed, on any footing: but that will be in circumstances where her crimes (if she is convicted) can properly be described as heinous.
85. I think that, with respect, Mr Blaxland generally in his argument sought to place altogether too much emphasis on what the sentence (on comparable facts) might be in the courts of England and Wales. Realistically, no doubt, in an Article 3 context of the present kind, the courts in the requested state may well wish to have some regard to what the likely range of sentence under local law might be on the postulated facts. But the test remains, by reference to Article 3, one of gross disproportionality. In any case, Member States have different sentencing regimes inter se: it cannot be right that a different result with regard to extradition might be achieved by reason of the happenstance (or maybe deliberate choice) of which Member State has been the ultimate destination of the individual whose extradition is sought. As noted by Gross LJ, not the least of the difficulties in Mr Blaxland's pronounced emphasis on the sentence position under local law is brought home by his then going on in this case to rely on the fact that, under English law, release at the half-way stage of a determinate sentence is mandated. That, it may be apprehended, is not necessarily so within all other Member States; nor indeed may all other Member States have as part of their penal codes the principle of life sentences with specified minimum tariff terms to be served as we do in England and Wales. Clearly the requested state, in extradition cases, cannot be expected to be able to undertake a detailed comparative exercise.
86. Ultimately I am of the clear view (and, indeed, without even needing to adopt a relativist approach) that neither the case of Mr Inzunza nor the case of Ms Smith raises an issue under Article 3 to indicate that their putative sentences would be grossly disproportionate so as to amount to inhuman or degrading treatment.
87. The position of Mr Harkins is different. Here, he unquestionably faces (if convicted) a mandatory life sentence without parole.
88. Mr Hislop, in the course of his very able and thorough arguments, mounted a lengthy critique of the prospective prosecution case in Florida. He was particularly critical of the means by which Glover's prospective evidence was obtained by the prosecutors. But questions of admissibility are for the Florida court: and if the prosecution case is as weak and the defence case as strong as Mr Hislop asserts, then no doubt Mr Harkins ought to be acquitted. This court, however, at this stage must – as Mr Hislop indeed accepted – proceed on the footing of an assumed conviction.
89. I agree with Gross LJ that, on the evidence, the sentence is to be regarded as reducible.
90. Whether or not the sentence is reducible or irreducible, if Harkins were to be convicted of deliberate and premeditated murder (he having equipped himself with, and cocked, a loaded firearm and having planned the robbery) then no infringement of Article 3, in my view, could be made out. The problem arises by reason of the Florida felony murder rule: and the prosecuting authority makes clear that it maintains that as an alternative way of putting the case. There is a realistic prospect that, if convicted at all, Mr Harkins will be convicted on that basis.
91. Such a rule is capable of throwing up some notable results. In her report, Professor Babcock described the case of a young man (Holt), convicted under the felony murder rule in Florida, who lent his car to enable a burglary to be committed by friends, in the course of which one of the occupants of the house was killed. Thus it seems that the rule not only can apply in any case of joint enterprise homicide but also it can apply in cases where the particular defendant neither intends nor foresees violence arising, or in cases where killing is not even intended murder on the part of someone. Thus, as Professor Babcock notes, the felony murder rule is capable of leading to remarkably harsh results in terms of sentencing outcome.
92. Mr Hislop was asked in argument whether he sought to challenge the Florida felony murder rule on grounds of arbitrariness or as being inconsistent with the Convention. He replied that he was not. He was right in that. It is not for domestic courts, seeking as best they can to apply Convention rights, to dictate to the US jurisdictions what sentences those jurisdictions can legally and constitutionally impose. That is a matter for the relevant state legislature in the US and for the application of the highly developed constitutional principles applicable in the US. That is, indeed, precisely the point made by Lord Hoffmann in paragraph 35 of his judgment in Wellington. Rather, therefore, in the context of extradition, one has to revert to the facts of the particular case before the court.
93. To focus on the facts of the case provides the answer here. This is (if Mr Harkins is convicted) a hundred miles away from the kind of example given by Professor Babcock. It is also a hundred miles away from the mercy killing example given by Lord Brown in Wellington (even if, correspondingly, it is not of quite the same gravity as the offending allegedly committed by Mr Wellington himself). If Mr Harkins is convicted, his defence of alibi will have been rejected. Prosecutors can reasonably be expected to pursue the case at trial responsibly – here intended killing has always been alleged, with felony murder included as an alternative. He will have been convicted potentially on the basis of evidence that he went to the scene intending to rob, having armed himself with a loaded firearm for the purpose, having cocked it and having confronted the intended victim who said words to the effect "you will have to shoot me to get the money". On the prospective evidence, the applicant will at least have then deliberately and violently struck on the head the victim with the loaded and cocked gun, which goes off and kills the victim. As Mr Hislop accepted, by English standards it would, realistically, at the lowest be a case of manslaughter.
94. Mr Hislop nevertheless submitted that, on such a scenario, a whole life sentence would be grossly disproportionate. I do not agree. Indeed, to the extent comparison with the position in England and Wales is appropriately maintained, it may also be noted that, in English law, not only murder (mandatorily) and manslaughter, but also robbery and possession of a loaded firearm with intent or where committing a scheduled offence all have life sentences (albeit with a tariff term likely to be set) as an available sentencing option.
95. Overall (and in circumstances moreover where the sentence is reducible and the context is extradition) I agree with Gross LJ, and for the reasons he gives, that the putative sentence in the case of Mr Harkins would not infringe Article 3.
96. Thus, in conclusion, I also would dismiss the two statutory appeals and the application for Judicial Review.