Harkins, R (on the Application of) v The Secretary of State for the Home Department & Anor (Rev1) [2014] EWHC 3609 (Admin)

Case No CO/7695/2013[2014] EWHC 3609 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/11/2014
Before
LORD JUSTICE AIKENSMR JUSTICE GLOBE
Between
The Queen on the application of Phillip HarkinsClaimant
Edward Fitzgerald CBE QC, Ben Cooper and Graeme Hall (instructed by AGI Solicitors) for ClaimantJames Eadie QC and Clair Dobbin (instructed by The Treasury Solicitor) for DefendantAdina Ezekiel (instructed by the CPS) for Interested PartyHearing Hearing dates: 9-10/07/2014 and 30/10/2014
JudgmentLord Justice Aikens :
[1]This is the judgment of the court. I. The Procedural Background and the issues to be decided.[2]The question raised by this case is: in what circumstances can a decision of the Grand Chamber (“GC”) of the European Court of Human Rights (“ECtHR”) entitle a person, who is subject to an extradition order, to challenge the order again, by way of judicial review, after his first challenge has already been rejected both by the Divisional Court (in judicial review proceedings) and then the ECtHR itself?[3]In form, this is a renewed application for permission to bring a claim for judicial review to challenge the decision of the Secretary of State for the Home Department (“SSHD”) ordering the extradition of the claimant (“Mr Harkins”) to the United States of America, the Interested Party, to face serious criminal charges in the State of Florida. The two counts of which Mr Harkins has been indicted are first degree murder (Count 1) and attempted robbery with a firearm (Count 2). These offences are said to have been committed in 1999. After Mr Harkins was charged with the offences he fled to the United Kingdom. The extradition process from the UK was triggered by the fact that Mr Harkins was arrested after a fatal traffic accident in Scotland on 25 January 2003. He was subsequently convicted of causing death by dangerous driving and, on 22 December 2003, sentenced to 5 years in prison. This prison sentence inevitably slowed up the extradition process. He was released on licence on 3 April 2006. The United States first presented its request for Mr Harkins’ extradition on 7 March 2003. Thus the provisions of the Extradition Act 1989 apply to this case. On 23 March 2003 the SSHD issued an Order to Proceed under the 1989 Act. On 21 July 2003 District Judge Tubbs determined that the evidence submitted by the US authorities demonstrated that there was a “case to answer”. On 3 June 2005 the Embassy of the USA communicated a diplomatic note to the Foreign and Commonwealth Office. It stated that the US Department of Justice had been informed by the State Attorney for the State of Florida that the death penalty would not be sought against Mr Harkins if he were to be convicted on Count 1. The note continued:
“The Government of the United States assures the Government of the United Kingdom that the death penalty will neither be sought nor carried out upon Philip Harkins upon his extradition to the United States”
. That remains the position. Mr Harkins’ extradition was first ordered by the SSHD on 1 June 2006.[4]Mr Harkins has made two previous challenges to the SSHD’s extradition decision. Both were by way of judicial review proceedings and both failed. The first challenge was dismissed by the Divisional Court, (The President of the Queen’s Bench Division and Lloyd Jones J), in February 2007. [2007] EWHC 639 (Admin) None of the grounds for that challenge are now relevant. The second challenge asserted that extradition to the USA would be incompatible with Mr Harkins’ rights under Article 3 of the European Convention on Human Rights (“ECHR”), because if Mr Harkins were to be convicted on Count 1, on whatever basis, the sentence in Florida would be one of mandatory life imprisonment without parole (“LWOP”). Article 3 provides:
“No one shall be subject to torture or to inhuman or degrading treatment or punishment”
. This second challenge was rejected in the reserved judgment of the Divisional Court, (Gross LJ and Davis J), given on 14 April 2011. [2011] EWHC 920 (Admin)[5]Mr Harkins then brought proceedings before the ECtHR. His case was heard with that of Mr Edwards, who faced extradition to Maryland, USA, on a count of murder. In both cases the principal argument raised was that extradition would infringe the claimants’ Article 3 rights. In a judgment given on 17 January 2012, Harkins and Edwards v UK (2012) 55 EHRR 19 the Fourth Section of the ECtHR rejected both claims. In relation to Mr Harkins, effectively the ECtHR upheld the decision of the Divisional Court given in 2011 (“Divisional Court 2011”), although on a somewhat different basis. On 9 July 2012 a panel of five judges of the ECtHR dismissed an application that Mr Harkins’ and Mr Edwards’ cases be referred to the GC.[6]On 29 January 2013 the SSHD wrote to Mr Harkins’ solicitors informing them that the United States’ authorities had given a “specialty” assurance that Mr Harkins would only be prosecuted for the charges detailed in the extradition request. The letter stated that arrangements were being made for Mr Harkins’ extradition. Further representations by Mr Harkins’ solicitors were rejected by the SSHD.[7]On 9 July 2013 the decision of the Grand Chamber of the ECtHR in the case of Vinter and others v United Kingdom [2013] ECHR 645. was published (“Vinter”). The GC concluded that a “whole life order” made by a United Kingdom trial judge in a case where a defendant has been sentenced to a mandatory life imprisonment sentence for murder constituted a violation of that defendant’s Article 3 rights, because, as the GC interpreted English law as it was being applied, it was unclear that such a “whole life order” was “reducible”.[8]The current application to bring further judicial review proceedings to challenge the extradition order of the SSHD was issued on 20 June 2013, ie. before the decision of the GC in Vinter was published. The grounds originally put forward are not now pursued. Instead, it is argued on behalf of Mr Harkins that the GC’s decision in Vinter has radically changed the Convention law relating to Article 3. It is said that in the light of the GC’s decision in Vinter, extradition to the USA to face a mandatory sentence of LWOP (if convicted of Count 1) would breach Mr Harkins’ Article 3 rights because that sentence is “irreducible”. It is argued that there is, in practice, no system in the State of Florida which amounts to a “dedicated review mechanism” of a sentence of LWOP that can determine whether continued detention of a person subject to LWOP remains in accord with Article 3. It is said that this radical change in the ECHR law requires this court, pursuant to section6(1) of the Human Rights Act 1998, This provides:
“It is unlawful for a public authority to act in a way that is incompatible with a Convention right”
. By section 6(3) “public authority” includes a court. to re-open Mr Harkins’ challenge to the SSHD’s extradition order because the SSHD herself refuses to reconsider it in the light of the Vinter decision. Relying on these Article 3 arguments and for other reasons that are now advanced for the first time based on Articles 5 and 6, it is said that the extradition order should be quashed.[9]On 21 January 2014 Wyn Williams J ordered that there should be a combined hearing for the renewed application for permission and the judicial review itself (if permission were to be granted) on the single issue of whether Mr Harkins’ extradition would be compatible with his ECHR rights (under Articles 3, 5 and 6) in the light of the GC’s decision in Vinter. We heard argument on 9 and 10 July 2014 and reserved judgment.[10]A draft judgment was prepared and was circulated to counsel on Monday 8 September 2014. Counsel informed us that a Section of the ECtHR had handed down its judgment in Trabelsi v Belgium [2014] ECHR 893. (“Trabelsi”) on 4 September and that it dealt with the application of Vinter to extradition; in that case the question was whether the extradition of Mr Trabelsi to the USA to stand trial on very serious terrorist charges, which could result in a sentence of life imprisonment would be contrary to his Article 3 rights. We decided not to go ahead with handing down the judgment, but to ask for further written submissions on the effect of Trabelsi. These written submissions were provided by all three parties in the course of September. On considering those we decided that we must hold a short additional hearing for further oral argument on a number of specific points that concerned us regarding Trabelsi. That hearing took place on 29 October 2014 after counsel for the applicant and the respondent had helpfully provided us with further short written submissions.[11]Sections II to XVI of this judgment are, (with some editorial amendments and a new paragraph which is now paragraph 71), as written before the Trabelsi judgment was handed down. (Obviously we have had to revise the “issues to be decided”, set out in paragraphs 12-13 below, to take account of the fact that the Trabelsi judgment has now been delivered). In Section XVII below we consider whether, in the light of Trabelsi, we should change the conclusion that we had reached, which was to dismiss the application for judicial review and give our overall conclusion.[12]There are two principal issues before the court which are intertwined. First, on what basis is this court entitled or obliged to re-open a challenge to the extradition order of the SSHD in circumstances where a challenge has already been dismissed after full argument by the Divisional Court 2011 and, subsequently, by the ECtHR? Secondly, does the GC’s decision in Vinter and the decision of the Fifth Section of the ECtHR in Trabelsi recast Mr Harkins’ Convention rights to such an extent that his extradition to the USA to face the count of murder brought against him now has to be regarded as an infringement of his rights under Article 3? As already mentioned, Mr Harkins now wishes to raise additional arguments based on Articles 5 and 6. Those arguments were neither advanced before the Divisional Court 2011 nor before the ECtHR in 2012. Mr Edwards did advance arguments under Art 5 before the ECtHR when his case was being heard at the same time as Mr Harkins’ case. They were rejected: see [143]-[146] of the judgment.[13]In order to decide these two issues, it is necessary first to summarise the facts concerning the alleged offence of Mr Harkins. Next we must set out the relevant history of the litigation in which Mr Harkins has tried to prevent his extradition on the ground that it would be in breach of his Article 3 rights. In doing the latter exercise we think that we must analyse the current leading English case on extradition and Article 3, Regina (Wellington) v Secretary of State for the Home Department, [2009] 1 AC 335. (“Wellington”)which has had a central role in the litigation up until now and featured heavily in the oral argument before us. We must also examine closely the GC’s decision in Vinter and the Fifth Section’s decision in Trabelsi before deciding the matter in the light of the arguments made to us.

II. The Facts concerning the alleged offences of Mr Harkins

[14]On 10 August 1999, Joshua Hayes was killed by a single gunshot wound in the head during the course of a robbery in Jacksonville, Florida. The prosecution case against Mr Harkins is based principally upon the testimony of a co-accused, Mr Terry Glover, who, according to the affidavit filed in support of the US government’s request for Mr Harkins’ extradition, has since confessed and become a witness for the prosecution. His evidence is that he and Mr Harkins arranged that Mr Hayes would purchase marijuana from Mr Harkins. A meeting was fixed and Mr Glover and Mr Harkins arrived wearing masks. Mr Glover has stated that Mr Harkins brandished a rifle and when Mr Hayes refused to hand over any money, Mr Harkins shot him in the head and then he and Mr Glover fled. The prosecution relies on other witness evidence and also upon ballistics evidence.[15]Mr Harkins denies being involved in the incident at all and asserts that his only action was to lend his car to another participant in the incident, Mr Randle. However, Mr Harkins also maintains that initial reports into Mr Hayes’ death record Mr Glover as stating that Mr Harkins hit Mr Hayes on the head with the gun and then it went off accidentally. Mr Harkins further relies upon the medical examiner’s report on Mr Hayes’ injuries, which Mr Harkins assert is consistent with the gun going off accidentally. This summary is taken from [6] of the ECtHR’s judgment.[16]It was not in dispute before us that, under Florida criminal law, Count 1 can be proved by establishing either that Mr Harkins had a premeditated design to effect the death of the person killed or that he committed or attempted to commit a serious felony offence (including armed robbery) at the time that the person was killed. The latter is known as “first degree felony murder” and in the Divisional Court judgment 2011 this means of proving Count 1 was called “the Florida felony murder rule”. We will adopt the same phrase. It is also not in dispute that if Mr Harkins is convicted on Count 1, on either basis, the sentence in Florida must be one of mandatory life imprisonment without parole (LWOP), because of the assurance given that the death penalty would not be sought.[17]At the time Mr Hayes was killed, Mr Harkins, who had been born in Scotland but who had lived in the USA since the age of 14, was just under 21 years old. He had no previous convictions for violence or drugs. He had a conviction for possession of firearms when a juvenile, for which he was given the equivalent of a caution. Nonetheless, upon Mr Harkins’ own statements to a psychiatrist (Professor Coid) it would appear that he had engaged in drug dealing and displayed a familiarity with firearms. These two paragraphs summarise [48], [55] and [56] of the judgment of the Divisional Court 2011. III. Article 3 and extradition: the House of Lords’ decision in Wellington.[18]We consider Wellington at this point of the judgment because the case was prominent in both the decision of the Divisional Court 2011 and Mr Harkin’s appeal to the ECtHR. Mr Ralston Wellington, a Jamaican citizen, was alleged to have committed two murders in Kansas City, Missouri, USA and he was charged with murder in the first degree, for which the penalty in Missouri was (and is) either death or LWOP. If the latter sentence were to be imposed, the offender could only be released by executive act of the Governor of Missouri. Mr Wellington fled to London, was arrested there and his extradition was sought by the USA. The Missouri prosecutor undertook not to seek the death penalty in the event of Mr Wellington’s conviction. Mr Wellington challenged the extradition on the sole ground that it would be incompatible with his Article 3 rights and so the extradition order was contrary to section 6(1) of the HRA 1998.[19]In the House of Lords, Lord Hoffmann gave the leading speech. First, he noted that there are parallels between the death penalty and a sentence of life imprisonment without parole, in the sense that the latter, by its nature, means (to use Laws LJ’s phrase in his Divisional Court judgment) that the offender’s punishment is “only exhausted by his last breath”. See Wellington in the Div. Court at [2007] EWHC 1109 (Admin) at [59 (iv)]. The crucial difference between the two punishments, of course, is that the latter is reversible when justice has miscarried. See [7] of Lord Hoffmann’s speech. Next, Lord Hoffmann analysed the ECtHR (Grand Chamber) decision in Kafkaris v Cyprus, (2009) 49 EHRR 35. which concerned a life sentence for murder imposed by the court in Cyprus. The national law stipulated that only the President could order the prisoner’s release, either on the ground of mercy or by ordering release on licence, provided that the Attorney General agreed. The issue before the ECtHR was whether these provisions were contrary to Article 3 in a “domestic” (as opposed to an “extradition”) context. Lord Hoffmann noted that the majority judgment of the ECtHR stated that an “irreducible” life sentence “may raise an issue” under Article 3. The majority judgment of the ECtHR in Kafkaris, at [98], characterised an “irreducible” life sentence by stating what would not be contrary to Article 3: if the national law afforded “the possibility of a review” of the life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, that would satisfy Article 3. The ECtHR continued in the same paragraph:
“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 Article 3 that a life sentence is de jure and de facto reducible”
. Lord Hoffmann noted that the ECtHR made two other points in Kafkaris: first, that the existence of a system providing for the possibility of release was “a factor” to be taken into account in assessing the compatibility of a life sentence with Article 3. Secondly, the particular state’s choice of method of sentence review and release arrangements was outside the scope of review of the ECtHR, “provided that the system chosen does not contravene the principles set forth in the Convention”.[20]Lord Hoffmann drew three conclusions from these statements. First, in certain circumstances even an “irreducible” sentence may not infringe Article 3; it may be justifiable on the facts. Secondly, if the sentence is reducible, then no Article 3 issue is raised. Thirdly, for a sentence to be irreducible, it had to be shown that the national law did not afford “a real possibility, de jure and de facto, of review with a view to commutation or release”. See [12]. He also concluded that the decision of the Court of Appeal (Criminal Division) in R v Beiber, [2009] 1 WLR 223 which held that a “whole life sentence” was compatible with Article 3 was correctly decided. Therefore the imposition of such a sentence did not itself infringe Article 3. However, there might come a time, after the initial imposition of the sentence when the continued detention of a prisoner did infringe it; but that question could only be examined at that stage. [19] of Lord Hoffmann’s speech.[21]Lord Hoffmann then considered the ECtHR jurisprudence on how the inevitability of the imposition of a whole life sentence by a state demanding the extradition of a person from a Contracting State to the Convention might affect that person’s Article 3 rights. At the time the leading ECtHR case on this topic was Soering v United Kingdom. (1989) 11 EHRR 439. In that case, the person to be extradited was alleged to have committed capital murder in Virginia, USA and, if convicted, faced the death penalty. Lord Hoffmann noted that the ECtHR accepted the principal argument advanced on behalf of the UK that it could not be responsible for what happened in Virginia and that a Contracting State’s only obligation was to secure Convention rights in its own jurisdiction. Lord Hoffmann emphasised the statement of the ECtHR that “…the beneficial purpose of extradition in preventing fugitives from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular”. In quoting this passage, Lord Hoffmann emphasised the words in italics. From this Lord Hoffmann drew the conclusion that, in the “extradition context”, Article 3 applied “only in a modified form which takes into account the desirability of arrangements for extradition”. [22]. This key conclusion was considered by the ECtHR in Mr Harkin’s case and was the subject of argument before us.[22]In Lord Hoffmann’s analysis, examination of the rest of the ECtHR’s judgment in Soering demonstrated, first, that it distinguished between torture and other forms of “inhuman and degrading punishment”; secondly, in the latter case, (which would be the term applicable, if any, to describe the death penalty or LWOP), that the ECtHR noted it was increasingly in the interests of all nations that suspected offenders should be brought to justice and that the establishment of “safe havens” would undermine “the foundations of extradition”; and, thirdly, that these factors were to be taken into account “in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases”. See [89] of the ECtHR’s judgment in Soering. From this passage Lord Hoffmann drew the conclusion that “…punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account”. [24] of Lord Hoffmann’s speech. Lord Hoffmann characterised this as a “relativist approach to the scope of Article 3” and he considered that the application of Article 3 in what he called “an attenuated form” [28] was “…essential if extradition is to continue to function”. [27]. Lord Hoffmann concluded that the subsequent ECtHR case of Chahal v United Kingdom (1996) 23 EHRR 413. maintained the firm distinction between the possibility of facing torture upon extradition and that of facing inhuman and degrading treatment. He concluded that the ECtHR did not intend to depart from “…the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering”. [31].[23]In applying this analysis to the facts of Wellington’s case, Lord Hoffmann accepted that his prospects of release were “poor”, but there did not have to be a “real prospect of release” or else the more “horrendous the crime” the stronger would be the claim not to be extradited. It was not significant that release depended upon the exercise of “executive clemency without judicial control” or upon the fact that the criteria adopted by the governor for the exercise of his powers were rarely satisfied. [34] In any event, even if a sentence of LWOP might contravene Article 3 if imposed in the UK, in the extradition context it could only do so if it were likely, on the facts of the case, “to be clearly disproportionate” or “grossly disproportionate”. [35] On the facts of this case the sentence of LWOP was not so “grossly disproportionate” to the offence as to “meet the heightened standard for contravention of Article 3 in its application to extradition cases”. [36][24]Baroness Hale of Richmond agreed with Lord Hoffmann. Baroness Hale emphasised the fact that in the two ECtHR decisions of Chahal and Saadi v Italy, (2008) 24 BHRC 123 (Grand Chamber). the court had not cast doubt on “the oft-repeated statements that the assessment of the minimum level of severity [for Article 3 to be breached] is relative” and in this they were following what the ECtHR had said in Soering. [51] referring to Saadi at para 134 and Soering at para 100. Baroness Hale also re-iterated that it was not for the UK courts to impose on another country their views of the proper tariff for a particular offence. There was no evidence that the conditions in Missouri prisons were inhuman or degrading. Thus, Baroness Hale stated, she had “…difficulty in seeing how a punishment which was prescribed by the law of the state where the crime was committed and which falls within the legitimate punishments for that offence can be considered inhuman or degrading.” [52].[25]Lord Carswell said that when the court was considering the issue of whether the extradition of Mr Wellington for an offence for which the mandatory penalty would be LWOP would be contrary to Article 3, two “imperatives” had to be taken into account and properly balanced. The first was the importance of facilitating extradition; the second was the prohibition against extraditing for an alleged offender to face treatment “which could be classed as inhuman or degrading”. [56]. He agreed with Lord Hoffmann’s view that the desirability of extradition was a factor to be taken into account in deciding whether the Article 3 threshold was crossed and noted that this was the reasoning of the ECtHR in Soering at [89] and Saadi at [134]. See [57] and [58] of Lord Carswell’s speech. Lord Carswell regarded three factors as being of prime importance in deciding whether the extradition would be in breach of Article 3. First, the alleged facts concerning the offences of which Mr Wellington was charged; secondly, the “extradition context”; and thirdly, the possibility of a future release of the offender (if convicted) by executive action, even if that was exiguous. Bearing in mind those matters, on the facts of this case, extradition would not be contrary to Article 3. [60]-[62].[26]Both Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood disagreed with what they characterised as Lord Hoffmann’s “relativist” approach to Article 3 when being considered in the “extradition context”. We will examine Lord Brown’s speech first, because he took the lead in disagreeing with Lord Hoffmann’s “relativist” approach. In Lord Brown’s view there were four issues to be considered:(1) in what circumstances will a life sentence in fact be held to be “de jure and de facto “irreducible”;(2) in what circumstances will an “irreducible” life sentence be found to violate Article 3;(3) when a life sentence does so, at what point does it violate Article 3;(4) what is the relevance of the fact that these questions arise in the “extradition context”? On (1), Lord Brown concluded that the effect of the ECtHR decisions was that provided that, at some point during alife sentence (even a mandatory one) the offender’s individual circumstances would be considered to see whether or not he should remain in prison forever, then the sentence is not “irreducible”. [78]. On (2), Lord Brown’s analysis of the majority judgment in Kafkaris was that an “irreducible” life sentence will only violate Article 3 if there comes a stage when imprisonment is being continued but it cannot be justified on any ground, whether of punishment, deterrence or public protection. [81]. Thus the answer to (3) is: at the point when the offender’s further imprisonment can no longer be justified, but not earlier, even if, upon passing sentence, there are no satisfactory laws or procedures for reviewing an individual case. [83].[27]It is in dealing with question (4) that Lord Brown expressed disagreement with Lord Hoffmann, although the extent to which he did was the subject of extensive argument before us. Lord Brown states clearly, at [85], that he disagrees with Lord Hoffmann’s view that the threshold of what constitutes inhuman and degrading treatment or punishment is heightened in the “extradition context” because of the desirability of extradition to ensure a person can be tried for his alleged crimes. In Lord Brown’s view, in both Chahal and Saadi the ECtHR departed from the kind of “relativist approach” identified by Lord Hoffmann. What Lord Brown concluded in [86] and [87] of his speech is less easy to summarise, but we must try to do so if we are to deal with the arguments addressed to us on the effect of Wellington.[28]The first two sentences of [86] are clear: on Lord Brown’s reading of the Strasbourg cases, it is a breach of a person’s Article 3 rights if he were to be expelled from a Contracting State and then faced the risk of either torture or treatment or punishment which is properly to be characterised as inhuman or degrading. But this general statement is then qualified in two respects in the third and final sentence of [86], which covers 19 lines of text and contains a number of subordinate clauses. First, Lord Brown points out that what constitutes inhuman or degrading treatment or punishment in one situation or country may not necessarily be so in another. So, we would comment, in one sense (at least) Lord Brown considered that Article 3 is indeed “relative”. Secondly, Lord Brown emphasises that the ECtHR has repeatedly said that the ECHR does not “purport to be a means of requiring Contracting States to impose Convention standards on other states”. The quotation is from Soering at para 86. Thus, Lord Brown says, “…Article 3 does not bar removal to non-Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment”. Thirdly, in [87], Lord Brown points out that in Saadi, the GC reaffirmed that the ECtHR has always been very cautious before concluding, on the material placed before it, that removal from a Contracting State would be contrary to Article 3. Lord Brown concludes, fourthly, that there is “a great deal of flexibility in the concept of inhuman and degrading treatment and punishment” and that there are “many factors in play” in determining whether the relevant treatment or punishment attains the “minimum standard” and whether “the risk of such ill-treatment” is satisfied. But he is emphatic in rejecting the notion that “the expelling state’s desire to extradite the person concerned (legitimate though clearly it is) can itself properly be one such factor”.[29]The consequence of these conclusions for Lord Brown was that, on the facts of Mr Wellington’s case, the imposition of a mandatory life sentence could not constitute inhuman or degrading punishment at the extradition stage. That question could only possibly arise in the future. See [88].[30]Lord Scott of Foscote preferred what he termed Lord Brown’s “absolutist approach”. He pointed out that the ECtHR had stated in both Chahal and Saadi that the right under Article 3 not to be subject to torture or to inhuman or degrading treatment was an absolute right which could not be balanced against other considerations. [40]. Lord Scott’s approach to the problem was to assume that the sentence that would be imposed on Mr Wellington, were he to be convicted, was an “irreducible” life sentence, but to ask whether, in the circumstances, that constituted inhuman or degrading treatment or punishment. He concluded that neither the mandatory nature of the sentence, nor the fact that, in this case, it could be for the remainder of the offender’s life made it inhuman or degrading treatment or punishment.[31]Mr Wellington’s appeal was dismissed unanimously. An application to the ECtHR was struck out after the applicant indicated he wished to withdraw it. See [42] of the judgment of the ECtHR in Harkins and Edwards v UK (application Nos. 9146/07 and 32650/07)

IV. The findings and conclusions of the Divisional Court 2011

[32]Before the Divisional Court 2011, it was argued that if Mr Harkins were to be convicted on Count 1, on whatever basis, then he would be sentenced to LWOP. That would mean he would spend the rest of his life in prison unless he were to be granted executive clemency or a conditional medical release, which is limited to cases of permanent physical incapacitation or terminal illness. It was argued that such a prospect would be contrary to his Article 3 rights and so extradition should be refused. In giving the first judgment, Gross LJ summarised the legal framework before considering the facts of the four individual cases (including Mr Harkins’) that were before the court. He based his discussion of the law on well-known domestic and Strasbourg decisions. Those referred to by Gross LJ were: Soering v UK (1989) 11 EHRR 439 at [86]-[91]; Saadi v Italy (2008) 24 BHRC 123 at [124]-[130] and [134]; Kafkaris v Cyprus (2009) 49 EHRR 35 at [96] – [100]; R v Bieber [2009] 1 WLR 223 at [24]-[49]; R(Wellington) v Home Sec [2009] 1 AC 335 at [1]-[36], [50]-[52], [61]-[62] and [88]-[89]. Gross LJ’s summary of the law as it stood when the cases were before the Divisional Court in 2011 was not, (nor could it be), challenged before us by Mr Fitzgerald QC, who appeared for Mr Harkins. Mr Fitzgerald’s argument was that the law had moved on since then in a radical way, principally as a result of the GC’s Vinter decision.[33]Gross LJ divided his analysis of the law into two parts. He dealt first with “the domestic context”, although in this regard he obviously had to consider both English and Strasbourg decisions. We think we can summarise his conclusions, These are at [6]-[11]. (so far as relevant to the present case), as follows:(1) a sentence will only “engage” Article 3 if the degree of humiliation and suffering reaches a minimum level of severity that goes beyond the inevitable element of suffering or humiliation inherent in a given form of legitimate punishment.(2) The imposition of a life sentence on an adult offender is not, of itself, incompatible with Article 3.(3) A mandatory and “irreducible” life sentence may raise an issue under Article 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.(4) If an issue does arise under Article 3 in relation to a mandatory and “irreducible” life sentence, it is likely to do so at some point in the course of the offender’s detention, when it can be argued that all the legitimate objects of imprisonment have already been achieved, rather than when the sentence is first imposed.(5) A life sentence is not “irreducible” by virtue of the fact that it might be served in full.(6) If there is a prospect, de jure and de facto, of release, a life sentence will not be treated as “irreducible”. The fact that the possibility of release is dependent upon executive clemency (even if sparingly exercised) rather than judicial intervention will not result in the sentence being categorised as “irreducible”.(7) The bar of what counts as “irreducible” is set high. In our respectful view, Gross LJ’s judgment accurately states the law concerning life sentences and Article 3 in the “domestic context”.[34]Gross LJ next analysed the law in “the extradition context”. We think we can summarise his conclusions, These are at [12]-[19]. (so far as relevant to the present case), as follows:(1) because the ECHR has a territorial reach that is limited to the jurisdiction of Contracting States, there can be no question of adjudicating (in ECHR terms) on the responsibility of a receiving country in respect of its treatment of the individual surrendered. Liability under the ECHR, if any, can only be incurred by the extraditing Contracting State.(2) The Strasbourg jurisprudence imposes a “residual liability” on such extraditing States, if the person to be extradited establishes that there are substantial grounds for believing that he will face a real risk of treatment that is incompatible with Article 3 if extradited to a non-ECHR state. In such a case the extraditing Contractual State “will not be absolved from responsibility under Article 3 for ‘all and any foreseeable consequences of extradition’”. The quotation, by Gross LJ, is from Soering at [86] and Saadi at [124].(3) Article 3 embodies a fundamental value applicable to Europe and beyond. But a sensible balance has to be struck in the field of extradition in order to maintain the credibility of that fundamental value. This is done by striking a “fair balance” between the needs of the community and the protection of the individual. In this regard there is a strong policy interest in an effective international system of extradition and avoiding the possibility of ‘safe havens’ for fugitives. That factor has to be taken into account when interpreting and applying the notion of inhuman and degrading treatment or punishment in extradition cases.(4) The logic of this reasoning is reflected in the “relativist” view of the majority of the House of Lords in its decision in Wellington. Gross LJ cited from the speeches of Lord Hoffmann, Baroness Hale and Lord Carswell: see above.(5) By treating Article 3 as applicable only in an “attenuated form” The phrase used by Lord Hoffmann at [28] of his speech in Wellington. in the extradition context, the test of whether a sentence in a receiving state is such as to justify a refusal to extradite to a non-ECHR state is set necessarily high: it must “shock the conscience” or be “clearly disproportionate”. Any lesser test would fail to give proper effect to the public interest in effective extradition arrangements.(6) In principle it is wrong to set English sentencing practice as a standard by which to judge whether the sentences of other states are “clearly disproportionate”. That fails to give effect to the proper interest in effective extradition arrangements and would wrongly attempt to impose English standards on other states. Again, our respectful view is that this accurately stated the law on life sentence and Article 3 in the “extradition context” as it then stood.[35]Gross LJ then considered Mr Harkins case on the facts. First, he summarised the evidence. Then he considered the Florida law and practice relating to the grant of clemency to defendants who had been convicted of first degree murder. Before the Divisional Court 2011 Mr Harkins had relied on evidence from Professor Sandra Babcock, a clinical professor at Northwestern University School of Law, contained in an affidavit of 11 July 2008. Her evidence, (which is relied on in the present application), was summarised in the Divisional Court judgment 2011, See [58] and we further summarise it here. Its effect is:(1) 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. However, none of these commutations had taken place after 1994 when the sentence of LWOP was first introduced. Thus no person convicted of first degree murder and sentenced to LWOP had been granted clemency in Florida.(2) In connection with clemency, claimants enjoyed “minimal due process rights.”(3) Clemency decisions were highly politicised and the political climate “told against the grant of clemency”. No Governor now or in the future would be likely to grant clemency to a LWOP prisoner in the absence of clear evidence of innocence.(4) There were no effective judicial remedies available for prisoners denied clemency.(5) Thus the prospects of Mr Harkins being granted clemency, were he to be convicted of first degree murder, were “extremely remote”.[36]Professor Babcock’s conclusions were challenged by the SSHD and the US government. They relied principally on a letter of the US Department of Justice dated 7 June 2007. This evidence (which is also relevant to the present application) was summarised by the court See [59] and we summarise it still further as follows:(1) the Florida constitution Identified in the ECtHR’s judgment as section 8(a) of the Florida Constitution, replicated in Florida Statute section 940.01(1). provides that the Governor has authority to grant a full or conditional pardon and/or to commute a sentence if two members of his Cabinet approve his decision.(2) The Governor can take all factors into account, but in the case of every applicant he will consider: (a) the nature of the offence; (b) any history of mental instability, and drug or alcohol abuse; (c) any subsequent arrests; (d) the applicant’s employment history; (e) any outstanding debts or child support maintenance; (f) any letters submitted in support of or in opposition to the application. Specific provision is made for having regard to illness (if relevant).(3) The exercise “takes place against the background of the constitutional protection afforded to the individual in the US”. See [59(ii)].(4) The power of the Governor to grant clemency is not arbitrary but has a formal and constitutional basis. The State of Florida has a specially constituted Clemency Administration Office which operates as the investigative arm of the Governor and his Cabinet, who sits as the Board of Executive Clemency.(5) The Governor of Florida had commuted the sentences of 15 people convicted of first degree murder between 1994-2008.[37]Gross LJ concluded on the evidence: See [60] and [61]. Davis J (as he then was) agreed with the judgment of Gross LJ, although he made additional comments, which do not detract from Gross LJ’s conclusions.(1) as a matter of law, the State of Florida does have a procedure for granting executive clemency.(2) As a matter of practice, from time to time that procedure has been exercised, despite what was argued about “political pressures”.(3) The fact that no one convicted of first degree murder and sentenced to LWOP had not been granted clemency in the State of Florida did not mean that there was no prospect of clemency being granted in the future. It was too soon (after 1994) to say. Gross LJ commented “…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”. See [60].(4) The sentence of LWOP, if imposed on Mr Harkins, would not be “irreducible” because de jure there is a system for the grant of clemency and de facto it could not be said that there was no prospect of clemency.[38]On the issue of whether the extradition of Mr Harkins to the USA would be contrary to his Article 3 rights, Gross LJ concluded: See [65] –[71].(1) the highest that Mr Harkins’ case could be put was that, if extradited, he may be convicted under the Florida felony murder rule for conduct which, in the jurisdiction of England and Wales would be “akin to manslaughter in the course of an armed robbery…”.(2) The principal issue is whether, seen through “the prism of an application for extradition” The quotation is from Lord Carswell’s speech in Wellington at [62]. the potential Florida sentence should be seen as clearly disproportionate.(3) In that regard, on the facts as alleged, if Mr Harkins were convicted, he would have committed a grave crime and, even on the most favourable realistic view of the facts his culpability would be high, such that a severe sentence would be a punishment fitting the crime.(4) Given the facts, the mandatory nature of the Florida sentence does not, of itself, carry particular significance.(5) If relevant, the sentence that Mr Harkins would receive in England, assuming he were convicted of manslaughter, would be either Imprisonment for Public Protection (“IPP”) A type of sentence since abolished. or a discretionary life sentence. In either case the notional determinate sentence would be “well into double figures”.(6) Against that background, a sentence of LWOP imposed by the Florida court is not “clearly disproportionate,” nor does it “shock the conscience”, despite Mr Harkins’ young age (20) at the time of the incident.(7) Moreover, the sentence of LWOP is not “irreducible”. Even if it were, on the alleged facts of the case the imposition Gross LJ’s emphasis. of an irreducible sentence of LWOP, although “manifestly severe”, is not to be regarded as clearly disproportionate and so in violation of Article 3, whatever questions may arise subsequently in the course of Mr Harkins’ detention.[39]Davis J, in giving his judgment, commented that if the arguments advanced on behalf of Mr Harkins were correct “…and the application of the principles of the ECHR is such as to preclude [his] extradition from the UK to the USA, realistically [he] will not be tried at all: a handsome reward for flight”. [74]. Davis J agreed with Gross LJ’s analysis and conclusions in relation to the case of Mr Harkins. He made the further point 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”, the first court must exercise its own judgment, not simply apply the laws of the requesting state. [79]. V. The decision of the Fourth Section of the ECtHR in the case of Harkins and Edwards v the UK.[40]After a summary of the facts in the two cases before it, the ECtHR examined “Relevant domestic and international law on Article 3 and extradition”. In this section the Court analysed the decision of both the Divisional Court and the House of Lords in Wellington. See [34]-[42] of the judgment. At [36] of its judgment in Harkins and Edwards, the ECtHR stated that paragraph 89 of its judgment in the case of Soering v UK [1989] 11 EHRR 439 had been “central” to the appeal in Wellington. The court said that in paragraph 89 of Soering, the ECtHR had stated that considerations in favour of extradition must be included amongst 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. In Harkins and Edwards, the ECtHR said that the majority of the House of Lords in Wellington Lord Hoffmann, Baroness Hale and Lord Carswell. had concluded that, in the extradition context a distinction had to be drawn between torture and inhuman and degrading treatment, and insofar as Article 3 applied to the latter category (ie. not torture), “it was applicable only in a relativist form to extradition cases”. [37] of the ECtHR’s judgment.[41]Under the heading “Relevant Domestic and International Law and Practice on Life Sentences”, the ECtHR considered US case law in which allegedly “grossly disproportionate” sentences were challenged as being contrary to the Eighth Amendment to the US Constitution. This provides that “cruel and unusual punishment” shall not be inflicted. The ECtHR noted that the US Supreme Court had held that a sentence lacking in legitimate penological justification (such as retribution, deterrence, incapacitation and rehabilitation) was, by its nature, disproportionate. Such purposes could justify LWOP sentences in some contexts but not in the case of juvenile non-homicide offenders. Graham v Florida 130 S.Ct 2011, 2021 (2010). The ECtHR noted that the US Supreme Court had upheld (amongst other sentences) one of LWOP for possessing a large quantity of cocaine. In Harmelin v Michigan 501 US 957 (1991).[42]The arguments made on behalf of Mr Harkins to the ECtHR were, at least in some respect, similar to those raised before us. Thus, it was submitted that the majority of the House of Lords had erred in Wellington in adopting the “relativist” approach. It was also submitted that the imposition of a mandatory sentence of LWOP if convicted under the “felony murder rule” demonstrated that there was no discretion in the sentence, which could even be called arbitrary; it was at least grossly disproportionate, harsh and unfair. Before the ECtHR Mr Harkins relied on evidence from Professor Babcock to show that the sentence of LWOP in Florida was “irreducible”. See [93]-[99] of the judgment.[43]When the ECtHR came to consider the merits, it dealt first with “Article 3 in the extra-territorial context” and, under that heading, commented extensively on Wellington. In analysing that case the court concluded:(1) the question of whether there is a real risk of treatment contrary to Article 3 in another state cannot depend on the legal basis for removal to that state, including that of extradition. [120].(2) Whilst it is more easy to draw a distinction between torture (on the one hand) and inhuman or degrading punishment (on the other) in “the domestic context” where events have already taken place, it is less easy to do so in the extra-territorial context where a “prospective assessment” is required. Moreover, when the ECtHR has found that a proposed removal would be in violation of Article 3 because of a real risk of treatment that would be intentionally inflicted by the receiving state, the court has refrained from considering whether the treatment should be characterised as either torture or inhuman or degrading treatment or punishment. [121]-[122].(3) At [80] of Chahal, the ECtHR had said that it was not to be inferred from [89] of Soering that “there was any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a state’s responsibility under Article 3 was engaged”. The case law of the ECtHR in the 22 years since Soering demonstrated that “…in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State. To this extent the Court must be taken to have departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment”. In short, in extradition cases, the desirability of extradition as a means of dealing with alleged offenders was not a factor to be taken into account in interpreting and applying the notions of inhuman or degrading treatment or punishment. [124]-[125](4) Article 7 of the International Covenant on Civil and Political Rights, Which provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. the comments of the Human Rights Committee on how that article is to be applied in refoulement cases, Article 19 of the Charter on Fundamental Rights of the European Union, Which provides that no one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. and Articles 3 and 16.2 of the UN Convention against Torture all supported this interpretation of Article 3 of the ECHR.(5) Therefore, the rulings of the ECtHR in Chalal and Saadi applied both to extradition and other types of removal from the territory of a Contracting State and applied to all types of ill-treatment covered by Article 3.(6) However, it does not follow from the “absolute nature” of Article 3 that “any form of ill-treatment will act as a bar to removal from a Contracting State”. The ECHR does not purport to be a means of requiring Contracting States to impose Convention standards on other states.(7) Thus, “treatment which might violate Article 3 because of an act or omission in a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case”.(8) The court affirmed Lord Brown’s statement that the ECtHR had been “very cautious” in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. See [119]-[131].[44]The ECtHR next considered life sentences in the context of extradition. It effectively accepted the view of the law lords in Wellington that if a sentence that would be imposed in the receiving state would be “grossly disproportionate” then that would be in violation of Article 3. But “gross disproportionality” is a strict test and only on “rare and unique occasions” will that test be met. Due regard must be paid to legitimate and reasonable differences between states on sentencing for the same offence. Therefore only in “very exceptional cases” will an applicant be able to show that the sentence faced in a non-Contracting State would be “grossly disproportionate” and so contrary to Article 3. [133]-[134].How an occasion can be “unique and “rare” at the same time is not explained.[45]The court then examined the question of whether various forms of life sentence could be contrary to Article 3. In relation to mandatory LWOP sentences, the court concluded that such sentences were not per se incompatible with the Convention, “although the trend in Europe is against such sentences”. In the absence of “gross disproportionality”, an Article 3 issue will arise for a mandatory LWOP in the same way as for discretionary life sentences, ie. when it is shown that:
“(i) the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) the sentence is irreducible de facto and de jure (Kafkaris, cited above).”
It follows that, in the absence of “gross disproportionality” in the mandatory LWOP sentence when it was passed, an Article 3 issue cannot arise at that time, but only at a later point in the sentence, ie. when (i) above can be established and, secondly, the sentence is irreducible. [138].[46]After this analysis, the ECtHR examined the facts of the two cases. It dealt with Mr Harkins’ case in two paragraphs. Its conclusions were:(1) the mandatory LWOP would not be “grossly disproportionate” in this case, given the circumstances of the offence and the offender.(2) This was so even allowing for the fact that Mr Harkins might be convicted under the “felony murder rule” without the prosecution having to prove premeditation. There was “no evidential basis” for the submission that Mr Harkins might be convicted under that rule on the basis simply that he lent his car to one of the participants, because the prosecution case was always that Mr Harkins had shot Mr Hayes.(3) Mr Harkins had not shown that, if convicted, his incarceration in the USA would not serve any legitimate penological purpose, so no Article 3 issue could arise at this point, given conclusions (1) and (2).(4) If a time were ever reached when it could be shown that incarceration would not serve any legitimate penological purpose, it was “still less certain” that the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their powers to commute Mr Harkins’ sentence.(5) Therefore Mr Harkins had not demonstrated that there was a real risk of treatment reaching the Article 3 threshold as a result of his sentence were he to be extradited to the USA. [139]-[140][47]We note that the second applicant, Mr Edwards, raised an alternative argument, based on Article 5(4) of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered fi the detention is not lawful”
. The argument was that the lawfulness of Mr Edwards’ continued detention would have to be reviewable by the Maryland court at some stage, pursuant to Article 5(4). The ECtHR rejected this submission as “manifestly ill-founded.” It was satisfied that if Mr Edwards were to be convicted and sentenced to LWOP, the lawfulness of his detention under Article 5(4) would be incorporated in the sentence imposed at the trial and no further review was required under Article 5(4). [146]. VI. The decision of the Grand Chamber of the ECtHR in Vinter v UK.[48]This case concerned three offenders (Mr Vinter, Mr Bamber and Mr Moore), each of whom had been convicted of murder in the Crown Court and who had each been given the mandatory sentence of life imprisonment. In each case the trial judge had made a “whole life order” pursuant to section 269 of the Criminal Justice Act 2003 (“CJA”). This meant that, in their cases, the Parole Board had no power to consider whether they could ever be released from custody. The primary argument of the three applicants was that, in consequence, such “whole life orders” were “irreducible” and so incompatible with Article 3. The GC examined the relevant English statutes and case law on life sentences; the relevant European, international and comparative law on life sentences and “grossly disproportionate” sentences and also the relevant international instruments on the rehabilitation of prisoners.[49]The GC’s conclusions on the state of Convention law were:(1) it confirmed previous ECtHR pronouncements that “grossly disproportionate” sentences would violate Article 3, but that it will only be on “rare and unique” occasions that this test will be met. [102]. It was not argued that “whole life orders” were, in themselves, “grossly disproportionate”.(2) Because there can be legitimate debate on the appropriate length of sentence for a particular offence, it is not the role of the ECtHR to decide on the appropriate length of detention for a particular offence. States must be accorded a degree of flexibility as to what is appropriate. [105].(3) Although the imposition of a life sentence on an adult offender will not, of itself, violate Article 3, (particularly when such a sentence is not mandatory), the imposition of an “irreducible” life sentence on an adult may raise an issue under Article 3. [107] However, a life sentence is not “irreducible” by virtue of the “mere” fact that in practice it may be served in full. [108].(4) If a life sentence is de jure and de facto reducible, no issue will arise under Article 3. [108].(5) A life sentence is not “irreducible” where there is a prospect of release and the national law “affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of a prisoner”; that will satisfy Article 3. The court cited its previous decision in Kafkaris at para 98. [109]-[110].(6) The reason for the necessity of a review after the initial sentence is to enable investigation of the issue of whether legitimate penological grounds for the prisoner’s continued detention are still present. These grounds include punishment, deterrence, public protection and rehabilitation. There must be the possibility of a prisoner being able to atone for his crime. Furthermore there is “clear support in European and international law” for the principle that all prisoners be encouraged towards rehabilitation by the prospect of release thereafter. [112]-[114]. The GC went on to examine this support in some detail, but it is not necessary to try and summarise those provisions here.(7) It is not for the ECtHR to dictate either the form of the review - it can be executive or judicial - or when it should take place. However, the international law materials show that there is “clear support” for “a dedicated mechanism guaranteeing a review no later than 25 years after the imposition of a life sentence, with further periodic reviews thereafter.” [120].(8) A prisoner should not be obliged to wait and serve an indeterminate number of years before he can raise the complaint that the legal conditions attaching to his sentence do not satisfy Article 3. He must be able to challenge an “irreducible” sentence upon its imposition. [122].(9) “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”. [122].(10) Where domestic law does not provide any Our emphasis. mechanism or possibility of review of a whole life sentence, the incompatibility with Article 3 arises when that sentence is imposed, not at some later point. [122].[50]The GC then applied these conclusions to the three cases before it. The GC decided that there was a “lack of clarity” on the state of English law concerning the prospect of release of prisoners subject to “whole life orders”. This view was based on the GC’s understanding of the way that section 30 of the Crime (Sentences) Act 1997 (“the 1997 Act”) This provides that the Secretary of State has the power to release a life prisoner on licence at any time if he is satisfied that there are exceptional circumstances which justify a release on compassionate grounds. was effectively operated, given the “exhaustive conditions” set out in guidance on the Secretary of State for Justice’s policy as to the criteria for the release of “whole life order” prisoners set out in chapter 12 of the Indeterminate Sentence Manual, issued as Prison Service Order 4700(known as the “Lifer Manual”). The current version dates from April 2010. Given this lack of clarity, the GC was “not persuaded” that the applicants’ life sentences could be regarded as “reducible” for the purposes of Article 3 of the Convention. [123]-[131].[51]The decision of the GC in Vinter has been considered by the Court of Appeal Criminal Division in Attorney General’s Reference (No 69 of 2013) (Ian McLouglin) and R v Lee Newell (“McLoughlin”). [2014] EWCA Crim 188; [2014] HRLR 7. In short the court accepted the principles adumbrated by the GC, but disagreed with the GC’s view that English law displayed a “lack of clarity” on the criteria for the release of prisoners subject to “whole life orders”. The Court held that the GC had not fully apprehended the full extent of the duty of the Secretary of State under section 30 of the 1997 Act, nor the fact that the powers given by that section had to be exercised in a manner consistent with principles of English administrative law and with Article 3. Furthermore, the GC had not appreciated that the Secretary of State’s duty under that section could not be fettered by anything stated in the Lifer Manual. See [29]-[34] of the judgment of the court, given by Lord Thomas of Cwmgiedd CJ. Accordingly, contrary to the GC’s view, the law of England and Wales did provide an offender with the “hope” or the “possibility” of release in exceptional circumstances where the original just punishment (of a “whole life order”) had become no longer justifiable. [35]. VII. The arguments of the parties at the first hearing on 9 and 10 July 2014.[52]We can now consider the arguments of the parties against this long procedural history and the extensive domestic and ECtHR case law on which the parties’ submissions were based.[53]For Mr Harkins, Mr Fitzgerald QC submitted, first, that the GC’s decision in Vinter constitutes a very considerable advance on previous Convention law concerning life imprisonment and Article 3. Now, he argued, two new requirements must be satisfied before a mandatory sentence of LWOP can be regarded as “reducible” and so compatible with Article 3. There must(a) be a “real prospect of release” in the light of progress in detention and(b) a “dedicated review mechanism” to determine whether continued detention after a lengthy period remains justified. Moreover, in Mr Fitzgerald’s submission, Vinter requires that the “dedicated review mechanism” must satisfy a number of basic conditions as to certainty, clarity and the tests to be applied for release. In addition, any decision under the mechanism must itself be capable of being reviewed judicially. He submitted that those requirements were accepted as necessary in McLoughlin.[54]Secondly, Mr Fitzgerald submitted that in Harkins v UK the ECtHR had rejected the “relativist approach” to the prohibition of ill-treatment in extradition cases as advanced by the majority of the House of Lords in Wellington. Therefore, if the regime for a mandatory sentence of LWOP in the state seeking extradition did not fulfil the requirements as now set out by the GC in Vinter and so were contrary to Article 3, then extradition to that state would necessarily also violate Article 3.[55]Thirdly, on the facts of this case, extradition of Mr Harkins to face the certainty of a sentence of LWOP if convicted under the Florida felony murder rule must violate his Article 3 rights. In this regard, whilst Mr Fitzgerald accepted that if this court re-opened the case it must take the view of the facts as found by the Divisional Court 2011 decision, he wished to rely on new evidence of Professor Babcock, filed in two affidavits dated 13 June 2014 and 8 July 2014, that is, shortly before the hearing. In summary, this new evidence is that there is virtually no prospect of release at all in cases where a sentence of LWOP is imposed by a court in the state of Florida. In any event, in Florida there is no “dedicated review mechanism” that accords with the criteria laid down by the GC in Vinter. In particular, there is no constitutional or legal right (in existence at the time of sentence) to the prospect of a review of the merits of the detention after a period of 25 years or any period, or the possibility of challenging whether continued detention would be “inhuman” (Article 3) or “cruel” (USA Eighth Amendment). Mr Fitzgerald submitted that an alternative way of putting this point is that the absence of any realistic prospect of release or of a Vinter compliant review mechanism made the mandatory sentence of LWOP “grossly disproportionate”, at least on the facts of this case, and so would violate Article 3.[56]Fourthly, the alleged antithesis between extradition of Mr Harkins and impunity from prosecution for his alleged offences if extradition is refused is false. This is because a number of possible compromises have not yet been considered. These include: the State of Florida undertaking to charge Mr Harkins with manslaughter only; the USA undertaking to repatriate Mr Harkins upon conviction, so he would serve his sentence in the UK; obtaining an undertaking that Mr Harkins would not be sentenced to LWOP (as some Latin American States have done in US cases); or, lastly, prosecuting Mr Harkins in the UK.[57]Mr Fitzgerald also advanced two arguments based respectively on Article 5 and Article 6 that had not been made to either the Divisional Court 2011 or to the ECtHR subsequent to that decision, although Mr Fitzgerald accepted that both arguments had been available on those occasions. The Article 5 argument is that a sentence of LWOP is arbitrary in length and no account is taken of mitigating or other personal factors when it is imposed. When that is combined with the fact that there is no subsequent realistic possibility of review by a judicial body, the sentence of LWOP must violate Article 5(4). Mr Fitzgerald relied on statements of Lord Bingham in R v Lichniak [2003] 1 AC 903 at [8] and [13]. The other six law lords agreed with Lord Bingham’s speech. and De Boucherville v the State of Mauritius. [2008] UKPC 37 at [19], giving the advice of the Judicial Committee of the Privy Council. The Article 6 argument is based on statements of Moses LJ in the very recent decision of the Divisional Court in Government of Ghana v Gambrah. [2014] EWHC 1569 (Admin) particularly at [48]. The inability of Mr Harkins to make any submissions by way of mitigation, because the sentence of LWOP is mandatory if he is convicted under the “Florida felony murder rule” means, in Mr Fitzgerald’s submission, that there will be a “flagrant breach” of his Article 6 right to a fair trial. Merely to be expected to await the possible decision of the Governor and the Clemency Board at some unknown date long in the future must amount to such a “flagrant breach”.[58]Mr Fitzgerald submitted that, under section 6 of the HRA, the Secretary of State has a continuing obligation, as a public authority, to keep the extradition order made in respect of Mr Harkins under review. She has a duty to withdraw the order if there has been a material change of circumstances that would now make it a breach of Mr Harkins’ Convention rights to extradite him. This court has jurisdiction to consider such a refusal to withdraw an extradition order by way of judicial review. This court should therefore re-open the case, despite the previous decisions of the Divisional Court and the ECtHR, because there has been such a major advance in Convention law that radically affected Mr Harkins’ human rights. This principle is consistent with older cases such as R v The Parole Board ex parte Wilson [1992] 1 QB 740 at 754F to 756D which state that a court can depart from a previous decision, particularly in the context of a criminal case, where it is in the interests of justice to do so and the “liberty of the subject” is at stake.[59]For the Secretary of State, Mr James Eadie QC first dealt with the jurisdiction of the court to consider the present application. He accepted that there was a continuing duty on the part of the SSHD, as a public authority, to keep an extradition order under review under the HRA and, in proper circumstances, to withdraw the extradition order where to continue it would be a breach of a person’s Convention rights. He referred us to his submissions as reported in Abu Hamza and others v SSHD [2012] EWHC 2736 (Admin) at [127]-[128], from which the Divisional Court did not dissent. But Mr Eadie submitted that once the litigation process has been exhausted, then the decision cannot be re-challenged in judicial review proceedings save in exceptional circumstances. When there has, allegedly, been a change in the law, the correct test for whether this court can reconsider the Divisional Court 2011 decision is whether the change has been so significant that it would be just to reconsider the matter. He accepted that a significant change in Convention law, as pronounced by the ECtHR, will count for these purposes. But it is a high bar. Secondly, Mr Eadie dealt with the status of the House of Lords’ decision in Wellington. He reminded us that if there is a difference between a decision of the House of Lords which binds this court and a subsequent Strasbourg decision, (even one of the GC), then we are bound by the domestic decision, in the absence of exceptional circumstances; in this case there are none. He referred to Kay v Lambeth LBC [2006] 2 AC 465 at [45] per Lord Bingham; R(on the application of M) v Sec of State for Work and Pensions [2009] 1 AC 311 at [64] per Lord Neuberger of Abbotsbury. The latter case referred particularly to the Court of Appeal being bound by a previous House of Lords’ decision. The same rule must apply a fortiori to the Divisional Court. He accepted that there is a difference between the majority and the minority of their lordships in Wellington as to the relevance of the desirability of extradition being a factor to take into account in deciding whether the person to be extradited would face inhuman or degrading treatment or punishment so as to violate his Article 3 rights. However, Mr Eadie submitted that this disagreement was not of primary significance. There were two more important points of agreement of all five law lords:(a) that Convention standards cannot be imposed on non-Contracting States and(b) what constitutes a breach of Article 3 in one situation or country may not be so in another. In that sense all five law lords accepted that there is a “relativist” approach to Article 3. He submitted that the ECtHR in Harkins v UK did not disagree with Wellington on those points. Thirdly, Mr Eadie submitted that Vinter does not change Convention law, in particular as regards Article 3 and extradition. Vinter was concerned only with Article 3 in a domestic context and the issue of whether there was “clarity” in a Contracting State’s domestic law such that it could be demonstrated that a “whole life term” was a “reducible” life sentence for Article 3 purposes.[60]Mr Eadie submitted that the Divisional Court 2011 and the ECtHR in Harkins v UK had considered all the relevant facts. The proposed “new” evidence of Professor Babcock did not add anything significant to the material in her 2008 reports which were analysed in detail by both the Divisional Court and the ECtHR. If the arguments of behalf of Mr Harkins on Article 3 were accepted, then England and Wales and all Contracting States to the ECHR would be “safe havens” for those accused of murder in the USA where the sentence was LWOP. It would also mean, contrary to both domestic law and ECtHR decisions, that Convention standards would be imposed on a democratic state with a well-developed judicial system which had adopted its own legitimate standards. The argument about the further assurances now sought had not been raised before and, in any event, were unrealistic.[61]On the Article 5 and Article 6 arguments, Mr Eadie submitted that these did not raise any separate issue. In any event, the Article 5 argument was rejected by the ECtHR in Edwards v UK At [144]-[146]. and should be rejected now for the same reasons. As for the Article 6 argument, the sentence of LWOP is mandatory if Mr Harkins is convicted under the Florida felony murder rule, so that if the sentence is otherwise not objectionable on Article 3 grounds, there can be no denial of his Article 6 rights. The case of Gambrah is distinguishable because the prisoner’s status was not that of a person who had been properly sentenced at all.[62]On behalf of the Interested Party, the USA, Ms Ezekiel adopted Mr Eadie’s arguments. She added that she had no specific instructions on the undertakings that Mr Fitzgerald had argued could be sought and obtained. Ms Ezekiel’s general submission was that the undertakings sought were both far-reaching and unrealistic. They were far-reaching because they would interfere with the judicial process of a sovereign state in a way not envisaged by extradition proceedings, particularly if this court were to suggest what charges or sentence were to be “appropriate” to enable extradition to take place.

VIII. How should the two primary issues be analysed?

[63]As we have already stated, the two primary issues in this case, which are intertwined, are: first, on what basis is this court obliged to re-open a challenge to the extradition order of the SSHD in circumstances where a challenge has already been dismissed after full argument by the Divisional Court 2011 on the Article 3 issue (from which there was no appeal) and, subsequently, by the ECtHR? In neither court were arguments based on Articles 5 and 6 raised. Secondly, does the GC’s decision in Vinter recast Mr Harkins’ Convention rights to such an extent that his extradition to the USA to face the count of first degree murder has now to be regarded as an infringement of his rights under Article 3? We have kept this phraseology here, not referring to Trabelsi, because we thought it right to keep this part of the judgment as it was when it was given to counsel in draft on 8 September 2014. We will consider first, what legal test has to be applied to re-open this case in the present, very unusual, circumstances. We will then consider the application under the following headings:(1) whether Vinter has changed Convention law on Article 3 in relation to mandatory life sentences in the domestic context and, if so, how;(2) the state of Convention law on Article 3 in the extradition context in relation to life sentences;(3) whether there is any relevant conflict between Convention law and English domestic law on Article 3 in the extradition context in relation to life sentences, in particular with respect to Wellington;(4) in the light of the conclusions on (1) to (3), is the new evidence of Professor Babcock of significance and if so, how;(5) has the test for re-opening the case been satisfied;(6) should permission to bring these judicial review proceedings be granted and, if so, should the judicial review be allowed? IX. What is the legal test for re-opening this case after the Divisional Court 2011 has given a final judgment from which there was no appeal?[64]It was assumed by both Mr Fitzgerald and Mr Eadie that this court has jurisdiction, in the context of an application for judicial review of a decision of the SSHD not to review further her order for Mr Harkins’ extradition, to re-open the case notwithstanding the final judgment of the Divisional Court 2011 on the Article 3 issues. No specific authority was cited to us for this proposition, although the issue was canvassed in the Abu Hamza case cited above at [57]. However, we accept that the Administrative Court, which is a part of the High Court, must have an inherent jurisdiction to reconsider a matter that it has already finally decided on a judicial review, although only in exceptional circumstances. In this regard there is some assistance in the decision of the Court of Appeal (Civil Division) in Taylor v Lawrence. [2003] QB 528 That case was decided at a time when Part 52 of the new Civil Procedure Rules contained no provision for re-opening an appeal (either to the Court of Appeal or the High Court) after an appeal had been finally concluded. The Court of Appeal had to consider whether it had an inherent jurisdiction to do so and, if so, under what circumstances. Lord Woolf CJ gave the judgment of the five person court. It held that the court had an inherent jurisdiction to re-open proceedings which had already been heard and determined if it was sufficiently established that an injustice had probably occurred and that there was no other effective remedy. The court would take account of the effect that a re-opening might have on others and would examine whether the party applying had been the author of his own misfortune. It would also consider whether there was any prospect of an appeal from the previous decision and only if there could not be one would the step of re-opening the decision be considered. See in particular, [26], [50] and [54]-[55].[65]Subsequently, CPR Pt 52.17 was introduced. It confirmed the very restricted circumstances in which the Court of Appeal (Civil Division) and the High Court could re-open appeals that had been finally determined. CPR Pt 52.17(1) stipulates that the Court of Appeal and High Court will not re-open a final determination of any appeal unless – “(a) it is necessary to do so in order to avoid injustice; (b) the circumstances are exceptional and make it appropriate to re-open the appeal; and (c) there is no alternative remedy”. Under CPR Pt 52.17(4) permission is needed to make an application under that rule to re-open a final determination of an appeal, even in a case where permission was not needed for the original appeal. Effectively, therefore, to re-open an appeal (as opposed to a refusal to grant permission to appeal), there are three stages in the CPR Pt 52.17 process. First, permission to make the application to re-open the appeal has to be granted. Secondly, if it is, then the application to re-open the appeal has to be made and granted. Only if the application is granted will the Court of Appeal go on to the third stage of re-opening the merits of the appeal and considering whether the original decision was correct or not in the light of the changed circumstances.[66]The present application is not, of course, an appeal from any judicial decision, let alone one in a civil matter. It is an application for judicial review of a decision of the SSHD after a challenge to that decision has already been rejected by the Divisional Court in judicial review proceedings, so that the issue has been finally determined and subsequently the SSHD has continued to maintain her decision. Two fundamental principles, which are in tension to an extent, are in play here. The first is that there is a public interest that litigation be final once a court has determined a matter and there has been no appeal; the second is that no one should have to suffer injustice if that can be avoided. We have concluded that, in these circumstances, an analogous test to that in CPR 52.17 should be applied to the present situation. We regard the present application for judicial review is similar to the first two of the stages under CPR Pt 52.17, albeit combined, ie. the need for permission to make the application and then the consideration of whether the tests for re-opening have been fulfilled. It is only if those tests are satisfied that we should then consider the merits of whether or not the Divisional Court 2011 decision was wrong in the light of the changed circumstances. Thus we are only prepared to re-open this case (by which we mean grant the application for permission) if the three conditions set out in Pt 52.17 are satisfied. All case-law since the introduction of that Rule has confirmed that the cumulative requirements set a very high bar indeed. Generally speaking, a subsequent change in the law will not cause “injustice” for these purposes, nor will it amount to “exceptional” circumstances which would require a case to be re-opened. Moreover, we must bear in mind what this court said in the Abu Hamza case [2012] EWHC 2736 (Admin): see [21] and [22]. cited above, namely that there is an overwhelming public interest in both the proper functioning of extradition arrangements and in honouring extradition treaties as well as there being an equally high importance in the finality of litigation. Sir John Thomas, President of the Queen’s Bench Division (now Lord Chief Justice) said in that case that the finality of litigation is particularly important in extradition cases “because of the public interest in an efficient process, the need to adhere to international obligations and to avoid a recurrence of the delays which have so disfigured the extradition process in the past and to which successive appeals over time can subject it”. Nonetheless, we do accept that if there has been a change in the law such as fundamentally to affect the human rights of an applicant, that could, in sufficiently exceptional circumstances, give grounds for re-opening a case that has already been determined. X. Issue (1): Has the Grand Chamber’s judgment in Vinter changed Convention law on Article 3 in relation to mandatory life sentences in the domestic law context and, if so, how?[67]First, the existing Convention law that only a “grossly disproportionate” prison sentence would violate Article 3 was not changed by the GC’s judgment. It also re-iterated its previously stated view that it would only be on “rare and unique” occasions that this test would be met. [102]. Secondly, when dealing in particular with life sentences, the GC did not change its previous position that life sentences could be imposed on adult offenders for very serious offences and that, on the assumption that such a sentence was not, by itself, “grossly disproportionate,” then the issue was whether the life sentence imposed was “irreducible”. Even if it is found to be, the GC maintained the view, expressed in Kafkaris, that an “irreducible” life sentence only “may” raise an issue under Article 3. [107]. It must follow from this phraseology that it is still the ECtHR’s view that not all “irreducible” life sentences will necessarily raise an Article 3 issue. Thirdly, in determining whether a life sentence is “irreducible”, the GC again re-iterated its position, as stated in Kafkaris, that “where national law affords the possibility of review…with a view to its commutation, remission, termination or the conditional release of the prisoner”, then that will satisfy Article 3. [109]. The GC went on to give reasons why there should be such a possibility of review, but the basic requirement that there be a “possibility of review” (our emphasis) remains as before.[68]We accept that, at [119], the GC puts the position more firmly in the context of a life sentence, given that it states that Article 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 the continued detention can no longer be justified on penological grounds”
. Our emphasis. We also accept that, at [121], the GC is firm in stating that where domestic law does not provide for such a review, then “a whole life sentence will not measure up to the standards of Article 3 of the Convention”. Our emphasis. However, at [120], the GC also emphasised that it was not for the Court to prescribe whether the form of the review should be judicial or executive or when it should take place. These matters are left to individual Contracting States. The GC did note that there is “clear support” in the international law materials for a “dedicated mechanism guaranteeing a review no later than 25 years after the imposition of a life sentence” with further periodic reviews thereafter. But, on our reading of the judgment, the GC was noting a particular fact; the GC was being very careful not to dictate that Contracting States must have precisely such a kind of mechanism in place before a mandatory whole life sentence could be Article 3 compliant. To be so prescriptive would be clean contrary to what the GC had just stated about it not being the ECtHR’s job to prescribe the form or timing of the review mechanism chosen by Contracting States. This reading of the judgment is reinforced by the statement of the GC in the last sentence of [122], which refers to a state whose domestic law does not provide “any mechanism Our emphasis. or possibility of a review of a whole life sentence” which would make it incompatible with Article 3 and would do so at the outset. That again makes it clear that the form and timing is up to the individual Contracting State to decide.[69]In our judgment the statements of the GC in Vinter do not materially advance the law from that stated by the Fourth Section of the ECtHR in its judgment in Harkins v UK. First, it is striking that the GC in Vinter does not contradict or even refer to anything that the court had said in Harkins. Secondly, the phraseology in the two cases is very similar even if not exactly the same. Thus, at [137] of Harkins the court rejected the argument that, in the case of a discretionary life sentence an Article 3 obligation can arise at the moment the sentence is imposed. It 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 jure”
. Then, in considering mandatory life sentences, which the court said required “greater scrutiny”, it held, at [138], that a mandatory life sentence without parole was not itself contrary to Article 3, in the absence of it being “grossly disproportionate”. An Article 3 issue will only arise in mandatory life sentence cases where (i) the applicant’s continued imprisonment can no longer be justified on legitimate penological grounds – which must include all those referred to in [137] – and (ii) where the sentence is “irreducible”. In short, it is the same test as for discretionary life sentences, although the scrutiny must be closer in the case of a mandatory sentence. The precise formulation of the wording in Vinter at [109] and [119]is different from that in Harkins v UK, but we can perceive no material change in the principles of law being expressed.[70]We accept, however, that this leaves open the correct interpretation of [122] in Vinter, on which Mr Fitzgerald relied heavily. We interpret the first statement in [122] of Vinter as meaning simply that if, at the outset of a mandatory life sentence, it is either, in fact, “grossly disproportionate” or it is, in fact, “irreducible” because there is no mechanism for review of any kind, then a prisoner is not obliged to wait and serve an indeterminate number of years before he can complain that his sentence is not (for those reasons) Article 3 compliant. There is nothing new or surprising in that statement. Plainly, if a mandatory life sentence is, in fact, grossly disproportionate when imposed, or is not de jure and de facto reducible at that moment, because there would be no possibility of reviewing the continued imprisonment on legitimate penological grounds, then an Article 3 issue will (or at least may) be raised and it must be capable of challenge at that point. We do not regard that as being inconsistent with the statement of the ECtHR in Harkins and Edwards v UK at [137], which only pointed out that the actual Article 3 violation will occur at the point when the period of imprisonment that can be justified has ended and there is no prospect of any review. Cf Lord Brown’s statement in Wellingtonat [82], referring to the judgment of Lord Phillips of Worth Matravers CJ in R v Bieber [2009] 1 WLR 223 at [43]. The ECtHR in Harkins refers specifically to these decisions at [137].[71]That leaves just one possible “new” point, concerning the need for a “review”, which had been referred to in [119] of Vinter, and then is called a “mechanism” in the last sentence of [122]. This requirement of a “review” iscoupled with the statement in the penultimate sentence of [122] that a 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”; in short, what he must do to succeed on the review. The need for a “review” or a “mechanism” is not really new, because it is inherent in the very idea of “reducibility”. How else can a sentence of LWOP be “reduced” except as a result of some kind of “review” or “mechanism” to do so? So this “requirement” must be implicit in the basic statement in Kafkaris at [89]-[90]. The requirement that a prisoner must know, at the outset of his sentence, what he has to do and so forth is also not revolutionary. It is just putting the statement in Harkins and Edwards v UK at [137] the other way round. Logically, the requirement must be that a prisoner should know that he has to satisfy the relevant authority doing the “review” that his continued imprisonment can no longer be justified on any legitimate penological grounds. As the ECtHR pointed out at [61] of Harkins and Edwards v UK, the US Supreme Court itself stated in Graham v Florida 130 S.Ct 2011,2021 (2010), that a sentence lacking “legitimate penological justification” was, by its nature, “disproportionate”. The precise details of how the prisoner is to do this and the terms of the detailed criteria must be for the individual state to decide; just so long as the terms are sufficiently clear at the outset. Thus the basic test, viz. whether continued imprisonment is still justified on any legitimate penological grounds, is not new.[72]In short, we have concluded that, effectively, the GC in Vinter used the case as an opportunity to “clarify” the Convention law on Article 3 and life sentences, without advancing any new principles.[73]We therefore accept Mr Eadie’s submission that the essence of the GC decision in Vinter is the court’s concern with what it perceived as a “lack of clarity” in English domestic law or, rather, the way it was apparently being applied by the SSHD, given the terms of the Lifer Manual. It is clear from [130] that the GC accepted that section 30 of the 1997 Act was broadly worded. However the court contrasted that broad wording (as interpreted in a Convention compliant manner by the Court of Appeal in R v Bieber) with the “exhaustive conditions” in the Lifer Manual. That fact, as well as what the GC thought was a lack of “any dedicated review mechanism for whole life orders” led to the GC’s conclusion that the whole life orders were not “reducible”. But the GC was in error on both points of English domestic law, as the Court of Appeal in McLouhglin has subsequently made clear. See in particular [32]-[36] of the judgment of the Court.[74]Mr Fitzgerald appeared to us to be arguing at one point that McLoughlin has itself advanced the Convention law further than the GC expressed it in Vinter. As we understood him, he submitted that McLoughlin had accepted that it was now a firm requirement that there be not only be a “dedicated review mechanism” for a mandatory life sentence, but that this mechanism itself must also be capable of judicial review of some sort before Article 3 can be satisfied. This submission is based on the statement in the judgment of Lord Thomas of Cwmgiedd CJ at [34] of McLoughlin that the decision of the Secretary of State on whether to release under section 30 of the 1997 is “…subject to scrutiny by way of judicial review”. But that statement is simply indicating what the position is under English domestic law, rather than setting out an additional test before “reducibility” is established as dictated by the ECtHR. We note that in Harkins v UK the ECtHR considered the “Eighth Amendment case law on “grossly disproportionate” sentences” in the USA, but the ECtHR did not stipulate that there had to be a means of judicial review of any “review mechanism” under which it was determined that a particular sentence of LWOP would or would not be reduced or modified. In our view the ECtHR has not stipulated a requirement of a means of judicial review of whatever “review mechanism” is in place. To say so would be inconsistent with the firm statement in [120] of Vinter that it is not the task of the ECtHR to determine the precise form that any review mechanism must take, nor when the review should be conducted.[75]Our conclusion is, therefore, that, in essence, the GC’s judgment in Vinter has not changed Convention law on Article 3in relation to mandatory life sentences in the domestic law context. XI. Issue (2): What is the state of Convention law on Article 3 in the extradition context in relation to life sentences?[76]Vinter did not consider Article 3 in an extradition context at all. The latest ECtHR case on Article 3 in the extradition context to which we were referred (up to the time of the July hearing) was therefore Harkins and Edwards v UK. We accept that in that case the ECtHR departed from what it had said in the last sentence of [89] in Soering. It had effectively done so in Saadi v Italy [2008] ECHR 179 at [138] without it expressly admitting as much. Therefore the reason for expulsion of a person from a Contracting State (in this case to uphold the principle of extradition and to avoid the establishment of “safe havens for fugitives”) is not a factor to be put in the balance when considering whether the expulsion would itself violate the person’s Article 3 rights. In Harkins the ECtHR also stated that, when considering Article 3 rights in extradition cases, it could not easily differentiate between torture and inhuman or degrading treatment or punishment. In those limited respects, the ECtHR has rejected the “relativist approach” of the majority of the House of Lords in Wellington. However, the ECtHR in Harkins and Edwards v UK emphasised that treatment that might violate Article 3 in a Contracting State might not attain the minimum level of severity so as to be a violation of Article 3 in an extradition case. See [129]. In that sense, the “relativist” approach remains intact. Further, the ECtHR emphasised that Convention standards could not be imposed on non-Contracting States and that there were legitimate differences of approach to sentencing in different states. The ECtHR in Harkins and Edwards v UK re-iterated the need for caution before finding that removal from the territory of a Contracting State would violate Article 3. See [131]. The views that the ECtHR took in Vinter on “gross disproportionality” and “irreducibility” of life sentences were no different in essence from those expressed in Harkins and Edwards v UK that we have already summarised above.[77]Therefore, the Convention law on Article 3 in the extradition context has not, in our view, changed since Mr Harkins’ case was before the Fourth Section of the ECtHR. XII. Issue (3): Is there any relevant conflict between Convention law and English domestic law on Article 3 in the extradition context, when the requested person faces a life sentence if convicted?[78]As already stated, we accept that there is a conflict between two statements made by the majority of the House of Lords in Wellington and the judgment of the ECtHR in Harkins and Edwards v UK. The effect of this is that if we follow the ECtHR view of Convention law then “the desirability of extradition” The phrase Lord Hoffmann uses at [24] of Wellington. is not a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the minimum standard of severity to make it inhuman or degrading. Nor would we, in the extradition context, try and distinguish between what constitutes “torture” or “inhuman or degrading treatment or punishment” for Article 3 purposes.[79]However, that is the limit of the disagreement, in our view. In both Wellington and Harkins and Edwards v UK the courts emphasised that although Article 3 imposed “absolute” standards, nonetheless what constituted a violation of Article 3 in one situation or country may not do so in another. Also, both courts stated that the test for violation of Article 3 was a high one. There is no material difference between the courts on the requirement that a sentence must be “grossly disproportionate” before it violates Article 3; nor on the point that if a life sentence is not “reducible” it only “may” raise an Article 3 issue. There is also no material difference on the essential test for “reducibility”, although, as we acknowledge above, the GC used Vinter as an opportunity to clarify Convention law on Article 3 and life sentences.[80]In Government of Ghana v Gambrah [2014] EWHC 1569 (Admin) the Divisional Court had to consider whether it would be a violation Mr Gambrah’s Article 3 rights to extradite him to Ghana to stand trial for murder, where, if convicted, the mandatory penalty was death, but Ghana had given an assurance that the sentence would not be carried out in that case. The consequence would be that Mr Gambrah would be detained on “death row” unless and until he received a presidential pardon. He would not be given any alternative sentence, eg of LWOP, and there was no mechanism for reviewing his situation. Moses LJ gave the leading judgment and Silber J agreed with him in concluding that extradition in those circumstances would be contrary to Mr Gambrah’s Article 3 rights.[81]In analysing the case law, Moses LJ considered Wellington, Harkins and Edwards v UK and Vinter. He acknowledged the disagreement between the Law Lords in Wellington. At [23] he referred to Harkins and Edwards and said that “it is now clear that the importance of extradition to face trial is not a relevant factor” to take into account when considering Article 3 in an extradition context. He also stated, at [24], that it was “plain” that both domestic law and the ECtHR required that “for a life sentence to remain compatible with Article 3 there must be a prospect of release and a prospect of review”. He acknowledged that this was the test applied in McLoughlin. In our judgment these remarks reinforce our view that, the “relativist approach” point apart, there is no distinction between English domestic law and the law as expounded by the ECtHR on how Article 3 is to be applied in the extradition context where the requested person faces the prospect of a life sentence if convicted. XIII. Issue (4): In the light of the conclusions on the issues (1) to (3) above, is the new evidence of Professor Babcock of significance and, if so, how?[82]In the first of the two new affidavits Professor Babcock refers to the opinion that she gave in 2008 and states that she has been asked to “update” her affidavit and respond to two new questions. The first is to report on the current position on LWOP sentences and clemency in Florida. The second is to give an opinion on whether:
“the system of LWOP in Florida meets the criteria laid down in Vinter v UK”
. In that regard, Professor Babcock states that she had been invited to consider six subsidiary questions on: the prospect of release; the prospect of review; whether there is a “dedicated review mechanism” in Florida and if so what it is; whether it is in place at the time sentence is imposed or later; what happens in practice in Florida; and, lastly, whether there is a possibility of judicially reviewing a refusal of clemency. It will be immediately obvious that these questions pre-suppose a particular interpretation of the GC’s judgment in Vinter which does not accord with our own analysis.[83]The first sections of the affidavit deal with the facts and then cover ground that is not specifically relevant to the questions asked. It goes over ground that Professor Babcock had considered in her 2008 affidavit and is not “new” evidence at all. The section on the death penalty and the value of the diplomatic assurance given by the USA are not relevant to the present discussion. A section on “executive clemency” begins at paragraph 39 of the 13 June 2014 affidavit. This also goes over old ground to some extent. The points the affidavit then makes are:(1) a person must apply for clemency and there is no “dedicated mechanism guaranteeing review of a sentence once passed”.(2) The Rules of Executive Clemency (it is said) are “vague”. Professor Babcock refers to two specific rules which are Rules 8A and 8B and are headed “Commutation of Sentences”. We set them out in the footnote below. Rule 8A Request for Review. An applicant who applies for commutation of sentence under Rule 5(B) may only do so if he or she has completed at least one third of the sentence imposed, or, if serving a minimum mandatory sentence, has completed at least half of the sentence. Individuals eligible for commutation of sentence consideration may receive a “Request for Review” form by contacting the Office of Executive Clemency…Upon receipt of the original and four (4) copies of the Request for Reprieve form, clemency application and any other material to be considered the Coordinator shall forward copies of the documents to the Clemency Board and the Florida Parole Commission. The Commission shall review the documents and make an advisory recommendation to the Clemency Board. Rule 8B. Referral to Commission. Upon receipt by the Coordinator of written notification from the Governor and at least one member of the Clemency Board granting a Request for review, or notification invoking Rule 17, the Coordinator may refer the request to the Parole Commission for a full investigation and place the case on an agenda to be heard by the Clemency Board. In our view they are clear and simple to apply. It appears from Rule 8A that the Florida Parole Commission “shall review” the documents and then make a recommendation to the Clemency Board on whether to grant the Request for Review. Rule 8B indicates that if the Request is granted, the matter then goes to the Parole Commission for “a full investigation” before returning to the Clemency Board.(3) The Board of Executive Clemency has yet to recommend clemency for a single offender convicted of first degree murder and sentenced to LWOP. The position has not changed since her affidavit of 2008.(4) Executive clemency is in the discretion of the executive branch and both State and Federal courts are “extremely hesitant” to intrude upon that discretion and have repeatedly rejected prisoners’ attempts to obtain judicial review of clemency determination. That suggests to us that there is indeed a mechanism for applying for judicial review of a clemency determination, but that the applications have not been successful in individual cases.(5) The US Supreme Court has held that, in clemency proceedings, only “minimal procedural requirements” are required to meet the due process guarantee of the Fourteenth Amendment to the US Constitution. This is not a new point.(6) The Florida Supreme Court has held that clemency is an exclusively executive power precluding any intrusion by the legislative or judicial branches. However, Professor Babcock acknowledges that the Florida Supreme Court has recognised the obligation to provide minimal procedural safeguards under the Eighth Amendment, although it has rejected all procedural challenges that have been made by individuals to the clemency process.(7) The courts of Florida cannot review clemency decisions made by the Governor and the Board of Executive Clemency.(8) Clemency decisions are highly politicised. This is not a new point.(9) Florida’s laws are exceptionally vague with regard to the timing, form and substance of the clemency process.[84]The affidavit is therefore intended to demonstrate three particular points, which all concern the issue of whether, for Article 3 purposes, a sentence of LWOP on an adult convicted of first degree murder by a Florida court, is “irreducible”, so that to extradite a person there to face such a sentence would violate his Article 3 rights. The first assertion is that there is no “dedicated mechanism for review” in the Florida system; secondly, it is (correctly) noted that the clemency regime is in the hands of the executive and there is very little opportunity to challenge it. Thirdly, within the review system that exists, it is alleged that the rules are not clear.[85]We do not accept that Professor Babcock has correctly analysed the basic requirements set out by the GC in Vinter and, in any event, Professor Babcock has failed to take account of the fact that Vinter was not dealing with Article 3 in the extradition context. Therefore she has not used the correct standards by which to gauge whether or not, for extradition purposes, the system of LWOP in Florida would be Article 3 compliant. To summarise: first, Vinter does not prescribe that there must be a “dedicated mechanism for review” whether after 25 years or at any particular time; it simply notes what is done in an increasing number of states, both within and outside the Council of Europe. Secondly, Vinter does not state a requirement that the mechanism must be judicially reviewable. Thirdly, Vinter states in terms that the ECtHR will not dictate the form of the review and affirms that it can be executive or judicial in form. Fourthly, the “requirement” at [122] of Vinter that a 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 (our emphasis) is, in our view, met by the precise terms of Sections 8A and 8B of the Rules of Executive Clemency. Moreover, as the ECtHR stated at [52] of Harkins and Edwards v UK, there is no legal limitation on what the Governor can consider in granting pardon or commuting a sentence; he is not confined to considering only particular, identified factors. Fifthly, the ECtHR in Harkins and Edwards v UK re-emphasised that the standards set by the ECHR on Contracting States must not be unilaterally imposed on non-Contracting States. Therefore the margin of flexibility on the nature and form of any review system that is acknowledged by the GC in Vinter must be all the more permitted in the case of a non-Contracting State. Thus even if it might be appropriate to have some form of judicial review of the “review mechanism” in a Contracting State, that cannot be imposed on other states. The USA has as well developed a judicial system as any other democratic country in the world. At the same time, there is a delicate balance between what is the responsibility of individual States and their courts and what is the responsibility of the Federal authorities and the Federal Courts. “States rights”, both executive and judicial, are a vital part of the constitutional balance of the USA. That is one “relative” aspect that has to be carefully borne in mind in deciding whether there would be a violation of Article 3 if Mr Harkins were to be extradited to Florida.[86]Overall, in our view, this affidavit fails to demonstrate that, if Mr Harkins were extradited to Florida and there faced a sentence of LWOP for first degree murder, that sentence would be “irreducible” according to Convention law, such that to extradite him there to face such a sentence would violate his Article 3 rights.[87]In the second of the two new affidavits (dated 8 July 2014) Professor Babcock states that she has been asked to address three “supplementary” questions. These all relate to the Eighth Amendment. The questions are:
“(a) Does the Eighth Amendment guarantee a prisoner to LWOP a right to have his case reviewed after a period of years to ensure that continued detention is not incompatible with the prohibition on cruel and unusual punishment? (b) Does the Eighth Amendment guarantee a right for a person sentenced to LWOP to have a review to ensure that his detention is still justified in light of the rehabilitative progress made during the sentence? (c) Has the US Supreme Court or the Florida Supreme Court ever ruled that the sentence of LWOP for adults violates the Eighth Amendment (and similar provisions under the Florida Constitution prohibiting cruel and unusual punishment)?”
[88]Professor Babcock makes three points. First, neither the Eighth Amendment nor Section 17 of the Florida Constitution grants to adult prisoners sentenced to LWOP any right to review of their sentence to determine whether their continued detention is compatible with Federal or State prohibitions on “cruel and unusual punishment” or is justified in the light of any rehabilitative progress made. Secondly, neither the US Supreme Court nor the Florida Supreme Court has ever held that a prisoner has a right to review of their sentence after a specified time. Thirdly, the US Supreme Court has rejected a claim that a mandatory sentence of LWOP on an adult offender violated the Eighth Amendment. Professor Babcock refers specifically to Harmelin v Michigan and Graham v Florida. Respectively: 501 US 957 (1991); 560 US 48 (2010).[89]These points do not take the matter further. Vinter does not, indeed could not, require a non-Contracting State to have a review system as described by Professor Babcock. It is sufficient if there is the possibility of a review de jure and de facto as clarified in that case. Vinter certainly does not prescribe that there must be a review after a specified time. The third point really goes to the question of whether, for Article 3 purposes, in the extradition context, a sentence of LWOP is “grossly disproportionate”. That issue was dealt with extensively by the ECtHR in Harkins and Edwards v UK. It concluded, after a review of the relevant US cases, including Harmelin and Graham, At [59]-[61]. that the US courts did give consideration to whether a type of sentence in general and an individual sentence in particular was, to use the Convention term, “grossly disproportionate”. The ECtHR also acknowledged that the US courts have held that a sentence lacking penological justification would be disproportionate. At [61]. In the section of the judgment dealing with Mr Harkins’ case, no adverse comment is made about the US jurisprudence on this topic.[90]Accordingly, Professor Babcock’s second affidavit adds nothing to what had already been considered and decided in Harkins and Edwards v UK.[91]Overall, our conclusion must therefore be that Professor Babcock’s new evidence is not of significance in the present circumstances. XIV. Issue (5): Has the test for re-opening the case been satisfied on the Article 3 arguments?[92]In our judgment it has not. We have, effectively, given our reasons for this. To summarise: first, Vinter, when properly read and understood, has not materially altered the test for deciding whether a life sentence is “irreducible” for Article 3 purposes. Secondly, Vinter has not and could not, make any new Convention law on Article 3 in the specific context of extradition. Thirdly, although Harkins and Edwards v UK held that the desirability of extradition was not a factor that should be weighed in the balance when considering whether the sentence of a person facing extradition would violate Article 3, the tests on “gross proportionality” and “reducibility” remain as for the domestic context, with two important qualifications. These are that Convention standards cannot be imposed on non-Contracting States and that there is no absolute standard on whether a sentence is contrary to Article 3 or not. What might be contrary to Article 3 in one country or situation is not necessarily so in another. Fourthly, even if the ECtHR has disagreed with the majority view in Wellington on the “relativist approach”, that is of little significance given the point just made. Furthermore, the ECtHR obviously had the inapplicability of the “relativist approach” in mind in making its decision in Harkins and Edwards v UK and rejecting Mr Harkins’ case.It is striking that a panel of five judges of the GC rejected an application that Harkins and Edwards v UK be reconsidered by it on the very day it agreed to accept the reference in Vinter. The GC clearly felt that there was nothing new to be said on Article 3 in the extradition context, where the issue was that the person to be extradited would face a mandatory life sentence without parole.[93]The position therefore remains as it was when the case was considered by the Divisional Court 2011, save for the validity of the Wellington “relativist approach”. That point was dealt with by the ECtHR subsequently and Mr Harkins’ case on Article 3 was still rejected. Accordingly, there is no “injustice” to Mr Harkins that has to be avoided by re-opening the case. Moreover, the circumstances are not exceptional because there has been no change in the law which materially, let alone fundamentally, changes his human rights in a way that makes it appropriate that the case should be reopened. The issue of an “alternative effective remedy” does not arise. XV. The Article 5 and Article 6 arguments.[94]These arguments could have been made before the Divisional Court 2011 and the ECtHR but were not, as Mr Fitzgerald frankly admitted. No reason was advanced to explain why and Mr Fitzgerald did not, with respect, advance any cogent reasons why, at this very late stage, he should be allowed to raise these new points now. We note, in any event, that the Article 5 argument Mr Fitzgerald now wishes to advance was rejected in Mr Edwards’ case by the ECtHR in 2012. Arguments on Article 5 were not considered in Vinter in the GC because they were determined inadmissible. If need be we would reject the Article 5 argument now for the same reasons given by the ECtHR in Harkins and Edwards v UK.[95]The Article 6 argument suffers from the same problem. In any event, it has no merit. If Mr Harkins is convicted, the sentence of LWOP is mandatory. The sentence will be dealt with as part of the trial process and Mr Harkins would not be denied any rights to a fair trial. XVI. Issue (6): Conclusion (as at 8 September 2014). Should permission to bring these judicial review proceedings be granted and, if so, should the judicial review be allowed?[96]We have concluded that permission to bring these judicial review proceedings should be refused. The circumstances are unusual because we are being invited to re-open a case when the legality of the SSHD’s decision to order Mr Harkins’ extradition has already been challenged unsuccessfully in this court and in the ECtHR. However, applying a test which is analogous to CPR Pt 52.17, before permission to bring these new proposed judicial review proceedings can be granted, we would have to be satisfied that it is necessary that the new judicial review proceedings be brought in order to avoid “real injustice” to Mr Harkins; that the circumstances are “exceptional” such that it makes it appropriate to grant permission and, (if relevant), that there is no other alternative remedy. For the reasons we have explained, we do not accept that there has been such a change in Convention law as fundamentally to alter the human rights of Mr Harkins under Article 3 such that it would be contrary to his ECHR rights to extradite him to the USA to face the possibility of a sentence of LWOP if convicted of first degree murder. Therefore there is no “real injustice” to avoid. Secondly, the circumstances are therefore not exceptional such that it makes it appropriate to grant permission to bring these proposed judicial review proceedings. The issue of any alternative effective remedy does not arise.[97]Accordingly, as at 8 September 2014 we would have refused permission to bring judicial review proceedings. XVII. Is this conclusion invalidated by the decision of the “former Fifth Section” of the ECtHR in Trabelsi?[98]The Facts and procedural history of the case. The facts of Trabelsi are striking. Mr Trabelsi had lived in Brussels. On 30 September 2003, having admitted various offences of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia, Mr Trabelsi was sentenced to 10 years imprisonment by the Brussels Regional Court for attempting to blow up a Belgian army base. The sentence was confirmed on appeal. On 26 January 2005 Mr Trabelsi was sentenced in absentia by a Tunisian military court to 10 years imprisonment for belonging to a terrorist organisation abroad in peacetime. The various Belgian prison sentences were completed on 13 September 2011.[99]Meanwhile, on 8 April 2008 the US authorities requested the extradition of Mr Trabelsi to answer to an indictment issued by the District Court of the District of Columbia against him on 16 November 2007. There were four charges, three of them allegations of conspiracy, respectively to kill US nationals outside the USA, to use “weapons of mass destruction” and to provide material support and resources to a foreign terrorist organisation. The fourth, substantive charge, alleged that Mr Trabelsi had provided material support and resources to a foreign terrorist organisation. The broad factual allegation was that Mr Trabelsi had committed these offences in a period up to mid – 2000 whilst in Europe and in Afghanistan, where he had “knowingly entered into an agreement with al’Qaeda associates, including Osama Bin Laden” to provide material and resources to kill (unlawfully) US nationals in Western Europe and to destroy US property in W Europe by using a “large-scale explosive device (a weapon of mass destruction)”.[100]The extradition request was challenged by Mr Trabelsi up to the Cour de cassation. Mr Trabelsi argued, amongst other things, that he could be subject to an “irreducible” life sentence and that extradition would therefore be contrary to his Article 3 rights. The Cour de cassation ruled that the Cour d’Appel had provided adequate reasons and legal justification for its decision in concluding that the appellant would not be liable to a life sentence for the offences for which his extradition had been requested. In any event the penalties that the offences carried could be commuted into other penalties with possibilities for release on parole. See [21].[101]In a letter of 11 November 2009 the US Department of Justice stated to the Belgian authorities that the maximum sentence on conviction for the first two conspiracy charges was life imprisonment, but for the other two charges it was 15 years. The US “Sentencing Guidelines” which were voluntary so that the judge could “choose” to follow them, called for “a life sentence for each of the first two” of the four offences. The letter went on to say that a life sentence was not mandatory. If Mr Trabelsi were sentenced to a term of years, it could be reduced by up to 15% “for good behaviour while incarcerated”. However, if he were sentenced to life imprisonment he would not be eligible for any reduction in his sentence. The letter concluded: “Finally, (Mr) Trabelsi can apply for a Presidential pardon or sentence commutation. ….However, this is only a theoretical possibility in [his] case. We are not aware of any terrorism defendant ever having successfully applied to a Presidential pardon or sentence commutation”.[102]On 10 June 2010 the Indictments Division of the Belgian Court of Appeal issued a favourable opinion on the applicant’s extradition, on condition that the USA give assurances that Mr Trabelsi would not be subject to the death penalty and that “any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts”. In response, the US authorities stated in a diplomatic note of 10 August 2010 that there were several means of reducing life sentences. The relevant ones for present are: that the defendant has provided substantial assistance to the investigation or prosecution of a third party, “compelling humanitarian reasons” and a request that the sentence be reduced “as an exercise of executive clemency by the President of the United States”. The letter described the President’s powers to commute or reduce a sentence (including a life sentence) under Article H Section 2 of the US Constitution. The letter continued:
“There are established regulations and procedures governing the application process for executive clemency and the Office of the Pardon Attorney has been established by the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The US constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has on occasion been granted for serious offences implicating national security…”
. See [27]. None of the examples were for offences after 11 September 2001.[103]On 23 November 2011 the Belgian Minister of Justice adopted a ministerial decree granting Mr Trabelsi’s extradition to the USA. In the decree it stated that it was “manifestly plausible” that the offences charged would not call for or result in the imposition of “irreducible life sentences”. It also stated that the statistics showed that, in the USA, even after 11 September 2001, “…objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought”.[104]On 6 December 2011 Mr Trabelsi lodged a request to the ECtHR for an interim measure under Rule 39 of the Rules of the Court in order to suspend the extradition and that was granted. The Belgian government tried to lift the interim measure on several occasions but it was maintained by the ECtHR.[105]In early 2012 Mr Trabelsi applied to the Conseil d’Etat for judicial review of the ministerial decree. When the matter was argued he relied on the judgment of the GC in Vinter. On 23 September 2013 the Conseil d’Etat dismissed the application. It concluded that a life sentence was de jure and de facto reducible by virtue of the presidential power to commute sentences. Further, it held that “it had not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing [Mr Trabelsi’s] imprisonment”. See [36].[106]In October 2013 the section of the ECtHR constituted to examine the case stated that it wished to relinquish it to the GC, given that the GC had decided Vinter in July 2013. Mr Trabelsi agreed to that proposal but the government of Belgium did not and so the Section retained the case. In the meantime, on 3 October 2013 the Belgian authorities took Mr Trabelsi from the prison in Belgium where he was being detained to a Belgian military airport, where Federal Bureau of Investigation agents were waiting for him. He was extradited to the USA that morning. At the time of the deliberation of the ECtHR on his case, Mr Trabelsi was being held in a prison in Virginia, where he had apparently been placed in an isolation cell.[107]The ECtHR’s findings on US law on commutation of sentences by the President. In the judgment of the ECtHR, at [82], the Court summarised the US law on the mechanism by which a Presidential commutation of sentence could be obtained. The Pardon Attorney has to prepare a recommendation to the President for every application for a pardon (or commutation) and the Pardon Attorney is required to consider the applications in accordance with guidelines set out in Title 28 of the Code of Federal Regulations. That provides that an application can only be made once a person has waited 5 years after conviction; the person must fill out an application form in which he sets out the reasons for requesting a pardon/commutation and give references. The Pardon Attorney has to carry out an investigation and decide whether the application for a pardon/commutation should be accepted by the President, whose decision is final.[108]The ECtHR’s analysis of the law on Article 3 and life sentences in the light of Vinter. The Court characterised the “alleged violation”as one of “having exposed [Mr Trabelsi], by extraditing him to the United States, to the risk of an irreducible life sentence without parole, in breach of the requirements of Article 3 of the Convention”. The Court then reviewed the “principles applicable to life imprisonment”. It confirmed that the imposition of an irreducible life sentence on an adult “may” raise an issue under Article 3. [112]. It said that Article 3 “prohibits” a life sentence that is irreducible de jure and de facto. It reiterated the statement in Kafkaris At [98] of the judgment in that case. that where national law afforded “the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this would be sufficient to satisfy Article 3”. [113] of Trabelsi.[109]At [115], the Court stated that in Vinter the ECtHR “re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible”. This paragraph makes three points. First, that “with reference to a principle already set out in the Kafkaris judgment” (our emphasis), the life sentence should be subject to review, which “allowed the domestic authorities to consider whether any changes in the life prisoner were so significant and such progress towards rehabilitation had been made in the course of the sentence as to mean that continued detention could no longer be justified on legitimate penological grounds”. That confirms the view we have expressed, at [71] above, that the requirement of a “review” or “mechanism” is not new in Vinter. The second point made in [115] is that Vinter stated “for the first time” that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release, under what conditions, and when this could take place or be sought. We are prepared to accept that it was the first time that the ECtHR had put the point in these terms. But, as we say at [71] above, the basic principle is not revolutionary, because it had been foreshadowed in Harkins and Edwards v UK. The third point, that if there is no possibility of a review of a whole-life sentence, then the incompatibility with Article 3 arises at the outset, is also not new, for the reasons we have pointed out in [70] above.[110]The ECtHR’s application of Vinter to extradition cases to non-Contracting States. At [116] the Court re-iterates the previously well-established Convention law that the protection granted by Article 3 is “absolute” and that where a person who is sought to be extradited from a Contracting State to a requesting state where he would “run the risk of being subjected to treatment contrary to Article 3” it engages the responsibility of the Contracting State. The Court also confirms the position it took in Harkins and Edwards v UK (contrary to that in Soering at [89] last sentence) that the fact a person is to be extradited is not a material consideration in deciding whether or not the responsibility of the Contracting State under Article 3 is engaged. [118].[111]Our conclusion is that no new principle, in relation to Article 3 and extradition, is stated in this part of the Court’s judgment.[112]The Court’s application of the law to Mr Trabelsi’s case. In [121] – [122] the ECtHR points out that because Mr Trabelsi had actually been extradited he was now at risk of being convicted and being sentenced to a “maximum discretionary whole-life prison sentence”. The question for the court was therefore whether that risk meant that the extradition was in violation of his Article 3 rights. The Court points out that in Harkins and Edwards v UK and also in Babar Ahmad and other v UK [2012] ECHR 609 it concluded that the risk of a mandatory life sentence was not, in itself, any obstacle to the applicants’ extradition. Before his extradition, Mr Trabelsi had been in a “very similar” situation. [126][113]The Belgian government argued that the case was distinguishable from Vinter because in that case the whole-life sentence had already been imposed, so that it was permissible to see whether that sentence was “irreducible”, whereas in this case Mr Trabelsi had not even been convicted, so that the Court should not now decide on the nature of the sentence. The ECtHR rejected that argument and held that the aim of Article 3, in an extradition context, was to prevent a requested person from suffering a penalty or treatment “of a level of severity proscribed by [Article 3]” The risk of this occurring had to be assessed before sentence, not after. [131]. The Court said that this was the reasoning in all ECtHR extradition cases since Soering.[114]The Court then analysed what it understood to be the US law on the possibility of Mr Trabelsi obtaining release on parole or by some other means if he were to be sentenced to life imprisonment. The Court understood that there was no possibility of parole. There were other possibilities, including, at least theoretically, that of commutation by the President of the USA. However, the Court understood that the US authorities had not provided any assurance to the Belgian government that Mr Trabelsi would either be “spared” a life sentence, or, if one were imposed, that it would be Our emphasis. accompanied by a reduction or commutation in sentence. In any event, it considered the US authorities’ explanations on sentencing and the applicable US provisions on sentence reduction and Presidential pardons to be “very general and vague and cannot be deemed sufficiently precise”. [135].[115]This is a judgment by the ECtHR on statements concerning US law and practice on sentences that were give to the Belgian authorities, not to the Court, in the first place. We cannot see, with respect, quite how the US authorities were supposed to know what degree of precision or detail in their statements was needed by the ECtHR before they would be regarded as sufficiently precise for its particular purposes.[116]In [136], the ECtHR then characterises the “central issue” in the case by posing the following question: “whether, over and above the assurances provided, the provisions of the US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down or assessing the reducibility of a life sentence and its Our emphasis. conformity with Article 3 of the Convention”.[117]We note the terms of the question. First, the judgment of the Court apparently contemplates that there must be sufficiently precise legislation, as judged by the ECtHR, in dealing with the topic. That would appear to go beyond what the Court has previously said in leaving the form and the content of any “review mechanism” to individual states, whether they be Contracting States or not. Secondly, given the way the second sentence of [136] is phrased, the word “its” must refer back to “the provisions of US legislation”. Thus the Court appears to be saying that a relevant question is whether that legislation is itself in conformity with Article 3. If so, that is contrary to all statements of the ECtHR in previous cases concerning extradition and Article 3 and, indeed, the statement at [119] of this case, viz. that the exercise of assessing the situation in the non-Convention requesting state does not “involve making the Convention an instrument governing the actions of States not Parties to it or requiring Contracting States to impose standards on such States”. The wording of [119] in this case.[118]In [137] the Court sets out what it regards the legislation in a non-Contracting State must provide. There has to be: “…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 the imposition of the life sentence, whether, while serving his sentence, the prison has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above)”.[119]We find this passage difficult to square with what the GC had so carefully said in Vinter at [120], that it was not for the ECtHR to dictate either the form or the timing of any “review mechanism.” In Trabelsi the Court seems to have taken a clear view on the relevant US legislation and yet given no reasons for its conclusion. More fundamentally, neither in the previous section of the judgment nor at [136]-[137] is there any explanation of why any principles laid down in relation to Article 3 and life sentences in Contracting States can be translated, wholesale, to the extradition context. In our view statements that the requirements in Article 3 are absolute and that the issue is whether the extraditing state has complied with its Article 3 duties to the requested person do not meet the point. That is because they fail to deal with two principles frequently made in previous ECtHR judgments concerning Article 3, life-sentences and extradition. These are, as noted in several paragraphs above, [28], [43] and [76]. See in particular Saadi v Italyat [142]. that in the extradition (or expulsion) context the bar for establishing a violation of Article 3 is very high; and secondly, that the Court has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3. And, as the Court stated at [131] in Harkins and Edwards v UK, save for death penalty cases, the ECtHR has “…even more rarely found that there would be a violation of Article 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”. The USA is, without doubt, pre-eminently such a state.

Conclusion

[120]In our judgment, upon a close analysis of Trabelsi it does not advance the principles laid down by the GC in Vinter, save in the obvious sense that it purports to lift the Vinter principles and apply them wholesale in the extradition context. It would appear from the statement in Trabelsi at [115] - (“for the first time”) - that the “Former Fifth Section” may have concluded that Vinter had further developed the principles first established in Kafkaris and then explained in subsequent cases up to and including Harkins and Edwards v UK. If so, on the basis of our analysis, we must respectfully decline to agree. Furthermore, there is, in our view, no clear and constant jurisprudence of the ECtHR in relation to Article 3, LWOP and extradition in the terms of [137] of Trabelsi. We are obliged by the terms of section 2(1) of the HRA to take account of that decision. But we are not obliged to follow it. Even if the judgment of the “Former Fifth Section” does extend previous principles, we decline to decide this case on the basis of what we regard as new and untried ECtHR jurisprudence in this area.[121]Given those conclusions, there is no basis on which we should reconsider our appreciation of the Florida legislation and its application in this case. Therefore, there is no new factor that requires us to reconsider the conclusion that we had reached before we were made aware of Trabelsi.[122]Accordingly, we refuse to grant permission to bring judicial review.

Cited in 4 later judgments