QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILLIAM DAVIS
| MUHAMMED ASIF HAFEEZ
|- and –
GOVERNMENT OF THE UNITED STATES OF AMERICA
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Rosemary Davidson (instructed by CPS) for the Respondent
Hearing dates: 5th December 2019
Crown Copyright ©
Mr Justice William Davis:
This is the judgment of the court.
(i) Conspiracy to import heroin into the United States of America.
(ii) Conspiracy to import methamphetamines and hashish into the United States of America.
(iii) Aiding and abetting the manufacture/distribution of heroin, knowing and intending that it would be imported into the United States of America.
The alleged offences
Proceedings in Kenya
The evidence before the District Judge
- William Hughes, a US attorney retained by Mr Hafeez to represent him in the criminal proceedings in the United States.
- Evans Monari, a Kenyan attorney instructed by those representing Mr Hafeez in the extradition proceedings to conduct enquiries in Kenya.
- Dr Crofton Black, a research consultant for human rights groups with a particular interest in the use of renditions by the United States.
- Davina Chen, a US Attorney with an interest and expertise in US federal sentencing law and procedure.
- Zachary Katznelson, a US Attorney with a campaigning interest in the prison system in New York.
Proposed fresh evidence
Where there is an application to justify fresh evidence before the High Court, the Court will expect a witness statement explaining why the evidence was not available before. An explanation fed through counsel, to the effect that "we did not think of it" or "we did not consider it necessary then but we have changed our minds now" must and will get short shrift.
Varga was a case under Part 1 of the Act but the statement of principle applies equally to a case under Part 2 of the Act.
32. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing…….
34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998…..
35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.
12. It is incumbent on parties and their representatives to keep in mind that the court's powers in an extradition appeal have a statutory basis. In relation to a Part 2 extradition, the court's powers on appeal are laid down in sections 103 and 104 of the 2003 Act. In order for the court to exercise its powers on appeal under section 103 , the court may only allow such an appeal if the conditions in subsections 104(3) or (4) are satisfied. Section 104(3) is directed to a case where the issues and evidence below and on appeal are identical. Where it is said that fresh issues or further evidence arise, the court's powers are founded on the satisfaction of the conditions under section 104(4) , which subsection reads:
"The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."
13. For present purposes the provisions in relation to Part 2 of the 2003 Act are identical to those in sections 26 and 27 of the Act, bearing on *3487 extradition to Category 1 territories and the authorities dealing with section 27 have equal force as to the interpretation of section 104 …..
…….As was recognised in the Miklis and Fenyvesi cases, where the appellant's Convention rights are engaged the court owes its own duty to protect those rights. If on an appeal there is an application to introduce material which is said to be central to the protection of those rights then, particularly with the agreement of the requesting state or judicial authority, the court may consider such material de bene esse and, if the material can properly be brought within the relevant statutory test, may rely on such material in reaching a conclusion to allow an appeal.
21. However, the statutory test must be kept in mind. There has been no submission in this case that the statutory basis upon which an appeal may be allowed is incompatible with the Convention. Nor is there any authority to that effect. Thus the court cannot allow an appeal in an extradition case save in conformity with the statute.
Life imprisonment without parole
Commutation of sentence is an extraordinary remedy. Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness or old age and meritorious service rendered to the government by the petitioner e.g. co-operation with investigative or prosecutive efforts that has not been adequately rewarded by other official action. A combination of these and/or other equitable factors (such as demonstrated rehabilitation whilst in custody or exigent circumstances unforeseen by the court at the time of sentencing) may also provide a basis for recommending commutation in the context of a particular case.
The published guidance does not indicate any means by which a clemency decision can be the subject of judicial review. Margaret Love's evidence was that "judicial review of a clemency decision is very rare and is certainly not routine". The District Judge proceeded on the basis that there was no provision for judicial review of an adverse decision. That is the basis on which we shall proceed. What undoubtedly is the case is that there is no limit on the number of applications which a prisoner may make for Executive Clemency.
98. The imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with art.3 or any other article of the Convention. At the same time, however, the Court has also held that the imposition of an irreducible life sentence on an adult may raise an issue under art.3.
99. In determining whether a life sentence in a given case can be regarded as irreducible the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. An analysis of the Court's case law on the subject discloses that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy art.3….It follows that a life sentence does not become "irreducible" by the mere fact that in practice it may be served in full. It is enough for the purposes of art.3 that a life sentence is de jure and de facto reducible.
100. …..it should be observed that a state's choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention.
No subsequent authority in the ECHR has cast doubt on the fundamental principles articulated in Karkaris. It is important to note that the Court abjured the proposition that it was in a position to lay down standards or guidelines applicable to every criminal justice system. All that was required was that the life sentence should be de jure and de facto reducible.
….the Court would underline that it agrees with Lord Brown's observation in Wellington that the absolute nature of art.3 does not mean that any form of ill-treatment will act as a bar to removal from a contracting state. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other states…..
….the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a contracting state would be contrary to art.3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment. The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of art.3 if an applicant were to be removed to a state which had a long history of respect for democracy, human rights and the rule of law….
…..if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an art.3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an art.3 issue will only arise when it can be shown: (i) that the applicant's continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) as the Grand Chamber stated in Kafkaris, the sentence is irreducible de facto and de iure.
Thus, the ECHR confirmed the principles in Kafkaris and emphasised the caution to be adopted in extradition or removal cases in respect of alleged violations of Article 3.
…..the Court considers that, in the context of a life sentence, art.3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds….
…A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with art.3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.
The ECHR in Vinter was more explicit as to the nature of the review required i.e. one which addressed changes in the prisoner and progress towards rehabilitation. Nonetheless, the court repeated the reference to legitimate penological grounds which include punishment and deterrence. The ECHR also found that the review mechanism, whatever it may be, should be apparent from the outset of the sentence. The outcome of the case was a finding that the whole life order in the UK violated Article 3 on the basis that the Secretary of State's discretionary power in Section 30 of the 1997 Act did not satisfy the requirement in Kafkaris that the life sentence should be de facto reducible.
Under well-established case-law, protection against the treatment prohibited under art.3 is absolute, and as a result the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the state in question under the Convention, where there are serious grounds to believe that if the person is extradited to the requesting country he would run the real risk of being subjected to treatment contrary to art.3 . The fact that the ill-treatment is inflicted by a non-Convention State is beside the point. In such cases art.3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State. The Court draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition.
Cited in support of this general proposition is Harkins v UK. As will be apparent from our citation and discussion of the decision of the ECHR in Harkins, Harkins does not provide the support suggested. The court went on to conclude that, if extradition would be likely to have consequences in the requesting state incompatible with Article 3, the Contracting State must not extradite. Stress was laid on the absolute nature of Article 3.
136. The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with art.3 of the Convention.
137. No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a "prospect of release" within the meaning of the Kafkaris judgment—even if doubts might be expressed as to the reality of such a prospect in practice—none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds.
Unsurprisingly Mr Fitzgerald relies on this conclusion. He argues that the decision of ECHR is clear. The procedures which the US Government put forward as providing for de facto reducibility do not meet the requirements of the ECHR jurisprudence. He submits that Trabelsi is conclusive in establishing a violation of Article 3.
As for the nature of the review, the Court has emphasised that it is not its task to prescribe whether it should be judicial or executive, having regard to the margin of appreciation that must be accorded to Contracting States (Vinter and Others, cited above, § 120). It is therefore for each State to determine whether the review of sentence is conducted by the executive or the judiciary.
The court went on to consider the system of review under Section 30 of the 1997 Act and, contrary to the conclusion in Vinter, determined that it did not violate Article 3. The important point is the overriding principle set out in Karkaris at . So long as the principles of the Convention are observed, the precise mechanism by which a review is conducted is not to be subject to close scrutiny.
Abuse of process/Article 6