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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wellington, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 1109 (Admin) (18 May 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1109.html Cite as: [2007] EWHC 1109 (Admin), [2008] 3 All ER 248

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/05/2007

Lord Justice Laws :

INTRODUCTORY

1. This is an application for judicial review, brought with permission granted by Goldring J on 2 November 2006, to challenge the decision of the Secretary of State made on 13 June 2006 by which he ordered the claimant's extradition to the United States of America in order to face charges of murder in the first degree and other serious criminal offences.
2. The facts giving rise to the charges may be very shortly stated. On 13 February 1997 armed intruders broke into an address in Kansas City, Missouri. Three people inside the premises were shot several times. Two of them, Lakesha La Master and John Bonner, died as a result of their injuries. The third, Jo Vonn La Master, was very badly injured but survived. A witness identified the claimant as one of the intruders. He is said to have been angered over a theft of $50,000 or $70,000 apparently stolen from his home.
3. On 16 December 1997 a criminal complaint was filed at the Jackson County Court charging the claimant with two offences of murder in the first degree and other crimes. On the same day a warrant for his arrest was issued. At length he was arrested in London, at Streatham Police Station, on 29 January 2003. He appeared before the Bow Street Magistrates Court the next day. On 15 October 2003 he was committed by District Judge Pratt to await the decision of the Secretary of State as to his return to the United States. He applied to the High Court for a writ of habeas corpus but that was dismissed on 23 February 2004 by this court (Lord Woolf CJ, Steel and Mitting JJ). His petition for leave to appeal to the House of Lords was dismissed by the Appeal Committee. Thereafter representations were made on his behalf to the Secretary of State to the effect that it would be unjust and oppressive to order his extradition. The relevant events took place before the Extradition Act 2003 came into force, and so the extradition process was governed by the Extradition Act 1989 under which the Secretary of State enjoyed a discretion whether or not to order extradition. At length the Secretary of State made the order now sought to be challenged.
4. If he is extradited the claimant will face his trial under the law of the State of Missouri which prescribes, as the penalty for murder in the first degree, death by lethal injection or imprisonment for life with no possibility of parole. An assurance has been given by the Prosecuting Attorney, in an affidavit of 10 March 2003, that the State of Missouri will not seek the death penalty. However the evidence before us (from Mr Sean O'Brien, an attorney with the Public Interest Litigation Clinic of Kansas City) is that in the event of the claimant's conviction of murder in the first degree, if sentence of death is not passed, life imprisonment without the possibility of parole is the mandatory penalty. It is imposed by the State legislature; the trial court has no discretion to pass a lesser sentence in light of any mitigating circumstances. The State Governor, however, does have the power to reduce such a sentence. But Mr O'Brien is aware of only two cases in which the power has been exercised. In one the Governor commuted the sentence to one of life imprisonment with parole. In that case the defendant was a battered woman who had killed her abusive husband. In the other, evidence emerged which demonstrated that the prisoner was not guilty of the crime in question, and he was released.
5. Mr O'Brien indicates that there would be a lesser sentence if the claimant were convicted only of murder in the second degree. Such a sentence might range from ten years to life imprisonment (which for this purpose is treated as a thirty year term), and the claimant would have to serve 85% of the sentence before being eligible for release. It appears that the difference between first and second degree murder is that the former requires proof of pre-meditation or deliberation (Mr O'Brien uses the term "cool reflection") whereas the latter does not. As I understand it the prosecution case against the claimant is that (with others) he went to the house carrying a gun with which he intended to kill his victim or victims, and that is what he did. If those facts are proved it would seem that a reasonable jury would be bound, or at least very likely, to convict of murder in the first degree. In making the order for extradition the Secretary of State was satisfied (as the Extradition Act 1989 required him to be) that a prima facie case against the claimant was established.
6. Accordingly the claimant says that upon being extradited he would face a real or substantial risk of being sentenced to a whole-life term of imprisonment without the possibility of parole, and in those circumstances his return to Missouri by order of the Secretary of State would constitute a violation of his right, guaranteed by Article 3 of the European Convention on Human Rights ("ECHR"), not to be subjected to inhuman or degrading treatment or punishment.
7. There is also a subsidiary argument, to the effect that the conditions in which the claimant would be detained if he were sentenced for first degree murder would be so harsh as to amount of themselves to a potential violation of Article 3. It is convenient to deal with that at once. Mr Patterson for the claimant points to evidence of Mr O'Brien that life without parole prisoners are not segregated from death row prisoners (Missouri is the only State where that is so). He submits that there are no prison programmes "to enhance the quality of his life", and that standards of health care and counselling are "very low". However Mr O'Brien also makes it plain that the relevant Missouri prisons have modern facilities including heating and air conditioning, modern plumbing and sanitation, libraries, access to films and television and some daily exercise. In my judgment such a regime cannot by any measure be said to involve the infliction of inhuman or degrading treatment in violation of the Article 3 standard; and obviously not torture.

THE PRINCIPAL ISSUE INTRODUCED

8. Mr Patterson does not submit that a whole-life tariff is in all circumstances objectionable and liable to violate Article 3. He accepts that such a tariff has been acknowledged by the House of Lords as appropriate in especially grave cases. In Anderson [2003] 1 AC 837 Lord Steyn said this at paragraph 47:

"This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoner as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751, 769, Lord Bingham of Cornhill CJ observed that he could 'see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment.' On appeal to the House of Lords, and with the agreement of Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, and Lord Hutton, I expressed myself in similar terms: R v Secretary of State for the Home Department, Ex p Hindley [2001] 1 AC 410, 416H. The following passage is part of the ratio of that case (at p 417H):

'The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.'"

9. Mr Patterson's essential submission is that a whole-life tariff is only saved from violation of Article 3 if the sentence is imposed by the judgment of an independent court (and not simply mandated by the legislature), which has been in a position to give due consideration to other sentencing options involving the substantial possibility of parole.
10. To support this argument Mr Patterson has marshalled a good deal of authority. A convenient starting-point is Reyes v R [2002] 2 AC 235, a Privy Council case from Belize in which their Lordships held that the mandatory death penalty for murder, in effect imposed by the legislature with no discretion in the hands of the trial court, constituted inhuman or degrading punishment contrary to Part II s.7 of the Constitution of Belize. Delivering the judgment of the Board Lord Bingham of Cornhill stated (paragraph 43):

"In a crime of this kind there may well be matters relating both to the offence and the offender which ought properly to be considered before sentence is passed. To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7 exists to protect."

11. In Lichniak [2003] 1 AC 903, in which their Lordships' opinions were delivered on the same day as those in Anderson (the cases were heard together before a constitution of seven judges), the House of Lords had to consider whether the mandatory life sentence for murder imposed by English domestic law pursuant to s.1(1) of the Murder (Abolition of Death Penalty) Act 1965 was compatible with ECHR Article 3 and Article 5. (Article 5(1) prohibits deprivation of liberty save in accordance with a procedure prescribed by law.) Lord Bingham said (paragraph 2):

"The thrust of the appellants' case can be shortly summarised: section 1(1) is arbitrary and disproportionate because it requires the same life sentence to be passed on all convicted murderers, whatever the facts of the case or the circumstances of the offender, and irrespective of whether they are thought to present a danger to the public or not."

Their Lordships concluded, however, that there was no inconsistency between the mandatory life sentence for murder and Articles 3 and 5; and it is here that the case most closely touches the issues before us. Lord Bingham said this (paragraph 16):

"Fourthly, and very importantly, I do not consider that the appellants' complaints are of sufficient gravity to engage articles 3 and 5(1) of the Convention. Those articles protect very important rights: article 3 the right not to be subjected to torture or to inhuman or degrading treatment or punishment, article 5(1) the right not to be deprived of liberty save in accordance with a procedure prescribed by law and save in a number of specified cases, of which the first is lawful detention after conviction by a competent court. But the Convention is concerned to prevent significant, not minor, breaches. It has been held that mistreatment must attain a certain level of severity to breach article 3: Tyrer v United Kingdom (1978) 2 EHRR 1, para 30; Costello-Roberts v United Kingdom (1993) 19 EHRR 112, paras 30-32. With reference to article 5, in determining the arbitrariness of any detention regard must be had to the legitimacy of the aim of detention and the proportionality of the detention in relation to that aim. So the significance of the appellants' complaints must be viewed in the context of their treatment as a whole. It is relevant to note, first of all, that each of the appellants was sentenced to a tariff term which reflected the judges' views of the bracket within which the term should fall. The appellants themselves may no doubt consider the term too long. The relatives of their respective victims may think it too short. But the appellants were not sentenced to an arbitrary, rule-of-thumb term of imprisonment. Those responsible did their best to match the respective terms to the particular facts and circumstances of each case. I accept that the appellants, while serving their tariff terms, could not be sure of release on their tariff expiry date. But they would probably be aware of the views of the trial judges. If they availed themselves of such courses as were on offer at their respective prisons and did nothing in prison or during home leaves to throw doubt on their ability to eschew acts of violence, they could confidently hope for favourable reports as the tariff expiry date approached. If their sentences were properly administered, reports would be prepared in sufficient time before the expiry date to permit the Parole Board to consider their cases and permit release on the tariff expiry date if the board so recommended... There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt. In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged..."

(The case of Reyes is not referred to in their Lordships' opinions in Anderson and Lichniak, but the law report shows that it was referred to in argument in Lichniak.)

12. On Mr Patterson's argument the over-arching vice which is condemned in this jurisprudence is the possibility of a sentence fixed by a prior rule and therefore not amenable to adjustment to meet the circumstances – indeed, the justice – of the particular case. A sentence so fixed is necessarily arbitrary; and liable to be disproportionate. In Lichniak the rigidity of the mandatory life sentence was held to be relieved by the tariff system; although the life sentence under s.1(1) of the 1965 Act was mandatory, whole life did not necessarily represent the tariff fixed for purposes of retribution and deterrence, which was set to reflect "the judges' views of the bracket within which the term should fall". Mr Patterson submits that but for the tariff system – that is, if life had meant life – the indication is that their Lordships in Lichniak would have found violations of Articles 3 and 5. He relies on these obiter observations of Lord Bingham at paragraph 8:

"If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights... as being arbitrary and disproportionate. But Anderson, following earlier authority, makes plain that such is not the effect of the sentence. It is a sentence partly punitive, partly preventative. The punitive element is represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer has committed. The preventative element is represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considers it safe to release him, and also by the power to recall to prison a convicted murderer who has been released if it is judged necessary to recall him for the protection of the public. It is a sentence so characterised that the appellants must attack if their appeals are to succeed."

13. The vice of arbitrariness, and potential disproportionality, is given further emphasis by this passage from paragraph 13 of Lord Bingham's opinion in Lichniak:

"... The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crimes, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory 7 year minimum sentence for importing drugs was incompatible with section 12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment: R v Smith (Edward Dewey) [1987] 1 SCR 1045."

14. Mr Patterson in his skeleton argument and in his submissions before us placed further reliance on the decision of the Supreme Court of Canada in Smith, there referred to by Lord Bingham. He points in particular to passages in the judgments of Lamer J (giving judgment for himself and for Dickson CJ: p. 1078) and McIntyre J (dissenting, but not in a minority on the point in question: p. 1090) as showing that it is no answer to the charge of arbitrary punishment imposed by an across-the-board rule that on the facts of the particular case the punishment might be said to fit the crime. While of course the observations of the Supreme Court were couched in terms of the application of the Canadian Charter of Rights and Freedoms, Mr Patterson would I think submit that this approach supports a general principle, namely that rational and proportionate justice cannot be done by chance or luck: it can only, and must always, be the outcome of a considered decision arrived at in light of the particular facts of the case. I shall have to refer in due course to further jurisprudence of the Supreme Court of Canada.
15. Mr Patterson's argument also addressed relevant European materials. Since as I have said his case is that the claimant's extradition to Missouri would constitute a violation of his rights guaranteed by ECHR Article 3, the Strasbourg learning is of the first significance. But here I should draw a distinction, which as I shall show is of the first importance for the determination of this claim, and also sound a note of caution. Here is the distinction. It is one thing to decide whether or not a whole-life sentence without the possibility of parole, passed and to be served in one of the States Parties to the ECHR, would violate the prisoner's rights under Article 3. It is quite another to consider whether the prisoner's extradition from a Council of Europe State to be tried and subjected to such a sentence in a State not Party to the ECHR would constitute a violation. The argument of Mr Perry QC for the Secretary of State, to which I will come, is to the effect that whatever the position in the first case, there would be no violation (at least absent special factors) in the second, of which of course the present case is an instance.
16. If the distinction is good, it is plainly necessary to be cautious in treating authority which is concerned with the first of these cases as illuminating the second. I will address the distinction shortly. First I think it will make for clarity and completeness if I summarise what seems to me to be the position in relation to the first case, at any rate were it to occur in this jurisdiction.

WHOLE-LIFE SENTENCE WITHOUT POSSIBILITY OF PAROLE: THE DOMESTIC CASE

17. We may I think collect the following propositions from the authorities.

i) A mandatory life sentence (that is, one set by the relevant legislation) will not constitute a violation of Article 3 or 5, if it is accompanied by an effective mechanism or mechanisms by which the sentence, though strictly fixed by prior rule, may in fact be tailored or adjusted to meet the circumstances and the justice of the case.

ii) Such a mechanism may be found in the judicial determination of a term of years within the life sentence – that is, a tariff – to reflect the requirement of retributive punishment in the particular case, together with a parole system which will secure the prisoner's release on the tariff's expiry unless considerations of public safety require his further detention. In cases of extreme gravity the tariff itself may be whole-life.

iii) Without such a mechanism, however, a mandatory life sentence may violate Articles 3 and 5 as being arbitrary and disproportionate.

18. That in very broad terms represents the domestic position. But this, of course, is an extradition case. The distinction relied on by Mr Perry, between the case where the whole-life sentence is to be served in a State Party to the ECHR and the case where the prisoner is to be extradited from such a State to serve the sentence elsewhere, is acute. I turn next to this second class of case.

WHOLE-LIFE SENTENCE WITHOUT POSSIBILITY OF PAROLE: THE EXTRADITION CASE

(1) Authority on the Application of ECHR Article 3

19. The starting-point must, I think, be the well-known decision of the European Court of Human Rights in Soering (1989) 11 EHRR 439. The applicant alleged that the Secretary of State's decision to extradite him to the United States of America to face trial in Virginia on a charge of capital murder would, if implemented, give rise to a breach by the United Kingdom of Article 3: if he were sentenced to death he would be exposed to the so-called "death row phenomenon". The Court upheld the claim. Mr Patterson relies on this statement of principle at paragraph 88 of the Court's judgment:

"It would hardly be compatible with the underlying values of the Convention, that 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article [sc. 3]."

20. This reasoning contains no suggestion that any significance is to be attached to a distinction between the case where the penalty in question is to be imposed and served in a State Party to the ECHR and the case where the prisoner is to be extradited from such a State to serve the sentence elsewhere. In either case, once it is shown that there is a real risk of exposure to inhuman or degrading treatment or punishment proscribed by Article 3, the subject is entitled to protection. However a reading of the Soering judgment as a whole shows that the Court was very much concerned with this distinction. These are the material passages:

"86. Article 1 of the Convention, which provides that 'the High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I,' sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaitre' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction.' Further, the Convention does not govern the actions of States not parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular.

In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant's complaints...

These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction.

...

89. What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.

...

91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.

21. Applying the law to the facts, it is not without interest that the Court in Soering thought it right to bear in mind the possibility that the applicant might be sent to his home State, Germany, for trial for the offences in question:

"110. For the United Kingdom Government and the majority of the Commission, the possibility of extraditing or deporting the applicant to face trial in the Federal Republic of Germany, where the death penalty has been abolished under the Constitution, is not material for the present purposes. Any other approach, the United Kingdom Government submitted, would lead to a 'dual standard' affording the protection of the Convention to extraditable persons fortunate enough to have such an alternative destination available but refusing it to others not so fortunate.

This argument is not without weight. Furthermore the Court cannot overlook either the horrible nature of the murders with which Mr. Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr. Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case."

The Court concluded (paragraph 111) that:

"...having regard to the very long period of time spent on death row in such extreme conditions, with the ever-present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration."

22. To the extent that the judgment in Soering recognises the distinction to which I have referred – in shorthand, the distinction between "domestic" and "foreign" (or extradition) cases for the purposes of Article 3 – it needs to be set alongside the subsequent decision of the European Court of Human Rights in Chahal (1996) 23 EHRR 413, in which the United Kingdom authorities had sought to deport an Indian national on grounds of his threat to national security. The Court said:

"80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion... In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees...

81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 is engaged.

82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security."

23. It seems to me that superficially at least there is something of a tension between the approach taken by the European Court of Human Rights in Soering and that taken in Chahal. Soering (paragraph 86) suggests that there is a qualitative difference between the case where all the facts relevant to a potential violation of the Convention rights occur, or will occur, in a State Party to the ECHR, and one where the State Party's relevant prospective act is to remove or extradite the subject to another State, not party to the ECHR, where he may be subjected to treatment potentially in breach of the Convention standards. Moreover (paragraph 89) where consideration is being given to the possibility of a violation of Article 3 in an extradition case, the aims and purposes of extradition are themselves a material factor. On the other hand it would appear from Chahal (paragraphs 80 and 81) that there is always, where Article 3 is engaged, but a single question: are there substantial grounds for believing that an individual would face a real risk of being subjected to treatment contrary to the Article?
24. There is further learning of the European Court of Human Rights to which I must refer, but it is convenient first to cite the decision of their Lordships' House in Ullah [2004] 2 AC 323. The House was concerned with the question whether any article of the ECHR other than Article 3 could be relied on by an individual who was to be removed from the United Kingdom where his anticipated treatment in the receiving State might violate the Convention. Specifically the case involved an individual whom the Secretary of State proposed to remove to Pakistan, and it was said that his removal would breach ECHR Article 9 by reason of restrictions that would there be imposed upon his freedom to practise and preach his religion. Lord Bingham drew a distinction (see paragraph 9) between "domestic" and "foreign" cases; and after citing both Soering and Chahal and other learning, he said this (paragraph 24):

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a 'near-certainty'. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113 (see paragraph 10 above); Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111:

'The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state'."

25. Thus in cases involving qualified rights, the distinction between domestic and foreign cases has a marked effect on the level of severity or intrusion that must be shown to establish a breach. But Article 3 is of course not qualified, so that for example there is no room for enquiry as to whether any form of treatment of which complaint is made under Article 3 is or is not proportionate to a legitimate aim (see for example Limbuela [2005] UKHL 66 per Lord Hope of Craighead at paragraphs 49 – 55). However as the House in Ullah was dealing primarily with Article 9, it was unnecessary to examine possible differences in approach as between domestic and extradition cases in the context of Article 3, nor, therefore, the tension (real or apparent) between Soering and Chahal.
26. I shall have to return to this tension, or apparent tension. I should first consider further authority of the Court at Strasbourg. Nivette v France (Application no. 44190/98) was characterised by Mr Perry as the high water mark of Mr Patterson's case. The applicant's extradition was sought from France to California on a charge of murder. Assurances were given by the prosecuting authorities to the effect that the charge was not or would not be framed in such a way that his conviction would expose him to sentence of death or life imprisonment without possibility of parole. The court stated:

"That being so, the Court considers that the assurances obtained by the French government are such as to avert the danger of the applicant's being sentenced to life imprisonment without any possibility of early release. His extradition therefore cannot expose him to a serious risk of treatment or punishment prohibited by Article 3 of the Convention."

Mr Patterson submits that but for the assurances the Court would, or at least might, have found a violation.

27. In Léger v France (Application no. 19324/02) the applicant had been subjected to what in practice amounted to a whole-life sentence. He asserted violations of ECHR Articles 3 and 5(1)(a). At paragraph 43 the Court considered certain instruments which had been adopted by the Committee of Ministers of the Council of Europe. They cited the general report produced by the sub-committee which, as long ago as 1975, had drafted Resolution 76(2) on the treatment of long-term prisoners:

"... it is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release..."

However the application failed. At paragraph 72 the Court was at pains to emphasise (albeit in the context of Article 5) that it was

"not its task... to review the appropriateness of the original sentence... [I]t does not pronounce on 'the appropriate length of detention or other sentence which should be served by a person after conviction by a competent court'... It has further held that 'matters of appropriate sentencing largely fall outside the scope of the Convention' and that it is not its role 'to decide, for example, what is the appropriate term of detention applicable to a particular offence'."

Mr Perry submits that this language reflects the well-known Strasbourg principle by which the court allocates a margin of appreciation to the Contracting States as to how the Convention rights are to be vindicated within their national systems; and he says that such a margin must surely be all the larger where the case is one of exposure to treatment potentially in breach of the Convention standards in a State outside Council of Europe territory.

28. On Article 3, the Court recalled (paragraph 89) that "[i]ll-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3". Then this:

"90. ... [I]n the case of adults the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole (see Nivette v France...)

...

92. The applicant regained his liberty after 41 years' imprisonment, an exceptionally lengthy period resulting from a sentence imposed at a time when minimum terms did not exist. However, from 1979 onwards, after he had spent fifteen years in prison, he had the opportunity to apply for release on licence at regular intervals and had the benefit of procedural safeguards. In those circumstances, the Court considers that the applicant cannot maintain that he was deprived of all hope of obtaining an adjustment of his sentence, which was not irreducible de jure or de facto. It concludes that his continued detention as such, long though it was, did not constitute inhuman or degrading treatment.

93. While accepting that a life sentence such as the one imposed on and served by the applicant necessarily entails anxiety and uncertainty linked to prison life and, after release, to the measures of assistance and supervision and the possibility of returning to prison, the Court does not consider that in the circumstances of the present case the applicant's sentence attained the level of severity required to fall within the scope of Article 3 of the Convention..."

And so it was held there was no violation. Mr Perry points to the use of the phrase "special circumstances" in the reference to Nivette at paragraph 91. The feature of Léger which I would emphasise (and it is a predominant feature of the Strasbourg jurisprudence, including Soering itself) is the extent to which the decision turns on the specific facts – the details: see for example paragraph 92.

(2) The Supreme Court of Canada: Ferras and Burns

29. Mr Perry submits that light is cast on the relation between domestic and foreign (or extradition) cases, for the purposes of Article 3, by authority of the Supreme Court of Canada. In Ferras v United States [2006] 2 SCR 77 the appellants' extradition was sought to the United States. McLachlin CJ made these remarks (paragraphs 84 – 87, pp. 112 – 114):

"84 The appellants Latty and Wright raise two issues on judicial review of the Minister's order to surrender them to the United States.  They say that their surrender to the United States, where they could receive sentences if convicted of 10 years to life without parole, would 'shock the conscience' of Canadians and thus run afoul of fundamental justice.  They also say that the Minister's refusal to seek assurances for enhanced credit for time served in pre-trial custody would offend fundamental justice. 

 85 This Court has adopted a balancing approach to determine whether potential sentences in a requesting state would "shock the conscience" of Canadians.  While affirming this approach in United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, the Court said, at para. 67, that 'the phrase "shocks the conscience" and equivalent expressions are not to be taken out of context or equated to opinion polls.  The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister's decision in extradition cases.'

 86 As in Burns, at para. 72, several factors favour surrendering the appellants Latty and Wright to the United States:  bringing the appellants to trial to determine the truth of the charges; the principle that justice is best served by a trial in the jurisdiction where the alleged crime occurred; the principle that Canadians must generally accept the laws and procedures of the countries they visit; and comity, reciprocity and respect for differences among states.  The factors militating against surrender include:  the harsher sentences that the appellants might receive if convicted in the United States; and the possibility that evidence used in the United States might include wiretap evidence that would not be admissible in Canada.

 87 In my view, the Minister correctly decided that '[s]urrender to an extradition partner whose criminal justice system does not have all the procedural safeguards of the Canadian criminal justice system would not, in itself, violate the principles of fundamental justice.'  The appellants offer no evidence or case law to back up their assertions that the possible sentences would shock the conscience of Canadians.  Furthermore, the factors favouring surrender in this circumstance far outweigh those that do not."

Mr Perry says that this reasoning, in particular what is said at paragraphs 85 and 86, underlines the importance of the extradition context, and the public imperatives which press in favour of effective extradition, in any judicial consideration of the conditions which an extraditee might face. Though he did not expressly so submit Mr Perry would I think have us set this passage alongside the observations of the European Court of Human Rights at paragraph 89 of Soering.

30. Mr Perry also drew on the case of United States v Burns [2001] 1 SCR 283, referred to by the Chief Justice at paragraphs 85 and 86 of Ferras. The respondents' extradition was sought to the State of Washington for trial on three counts of aggravated first degree murder. If convicted they would face either the death penalty or life in prison without the possibility of parole.  They were both 18 years of age at the time of the alleged crimes. The Minister of Justice made an unconditional extradition order. The Court of Appeal set aside the Minister's decision and directed him to seek assurances, as a condition of surrender, that the death penalty would not be imposed or, if imposed, would not be carried out. The Supreme Court dismissed the Minister's appeal.
31. I should first identify the principal point which Mr Perry derives from Burns. It is built on a passage towards the end of the Court's judgment (pp. 359 – 360):

"140 As noted, the Minister's second argument is that it is necessary to refuse to ask for assurances in order to prevent an influx to Canada of persons who commit crimes sanctioned by the death penalty in other states.  This in turn would make Canada an attractive haven for persons committing murders in retentionist states.  The 'safe haven' argument might qualify as a pressing and substantial objective...

141 International criminal law enforcement including the need to ensure that Canada does not become a 'safe haven' for dangerous fugitives is a very legitimate objective, but there is no evidence whatsoever that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a 'safe haven' than the death penalty, or even that fugitives approach their choice of refuge with such an informed appreciation of tactics.  If Canada suffers the prospect of being a haven from time to time for fugitives from the United States, it likely has more to do with geographic proximity than the Minister's policy on treaty assurances...

 142  The fact is, however, that whether fugitives are returned to a foreign country to face the death penalty or to face eventual death in prison from natural causes, they are equally prevented from using Canada as a safe haven.  Elimination of a 'safe haven' depends on vigorous law enforcement rather than on infliction of the death penalty once the fugitive has been removed from the country."

32. Mr Perry submits that the Supreme Court there accepted that a mandatory life sentence without possibility of parole, imposed (pursuant to assurances) in place of the death penalty, would be as effective as the death penalty itself in stopping Canada from becoming a "safe haven" for serious criminals; and on the facts of the case it was acceptable, in terms of the humanitarian standards of the Canadian Charter of Rights and Freedoms, that the respondents should be extradited to face such a sentence. In the present case, says Mr Perry, the assurance that the death penalty will not be imposed or carried out has already been given; the remaining alternative penalty of whole life imprisonment without parole would itself, as in Burns, be a mitigated sentence: lesser than death.
33. So far as it goes, this submission is correct. And the reference to the "safe haven" recalls the reasoning in paragraph 89 of Soering. But the submission's force for present purposes is I think much conditioned by the extent to which the Canadian Charter's humanitarian standards are in parallel with those of ECHR Article 3. Here it is helpful to consider what the Supreme Court makes of the distinction between domestic and extradition cases which confront us in this case. It is clear from paragraphs 50 – 56 in Burns, which with respect I will not set out, that in an extradition case, as opposed to a domestic case, the material provision is not s.12 of the Charter (prohibiting cruel and unusual treatment or punishment) but s.7, which provides:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

34. Thus in extradition cases there exists a structural difference between the Canadian Charter and the ECHR. The reasoning of the Supreme Court as I understand it is that in an extradition case s.12 of the Charter, prohibiting cruel and unusual treatment or punishment, has no application because its scope is strictly territorial. The extraditee's protection is in s.7, requiring "the principles of fundamental justice" to be upheld. Now, the analogue of s.12 is surely ECHR Article 3; and the Strasbourg case-law is distinctly to the effect that Article 3 may apply in extradition cases. Accordingly the distinction between domestic and extradition cases is differently reflected in the Canadian and Strasbourg jurisdictions. In the former, it rests in the separation between s. 7 and s.12 of the Charter. In the latter, the question is as to the effect of Article 3, the single overarching provision, as between the two kinds of case.
35. The reasoning in Burns shows that this separation between s. 7 and s.12 of the Charter, and the latter's exclusive application to extradition cases, exerts an important influence over the degree of severity of treatment or punishment in the foreign receiving State that will be sufficient for the Court to refuse to extradite. What violation of humanitarian standards must be shown to "shock the conscience" for the purpose of s.12? The Court says this:

"69 The 'shocks the conscience' language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition.  Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief.  The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis."

36. Before leaving the Canadian jurisprudence I should also cite the preceding paragraph in Burns, because as I shall suggest it yields an echo to the passage in Chahal (in particular paragraph 81) with which the reasoning in Soering (in particular paragraph 89) is seemingly to be contrasted:

"68 Use of the 'shocks the conscience' terminology was intended to convey the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive which, because of its paramount importance, may control the outcome of the Kindler balancing test on the facts of a particular case.  The terminology should not be allowed to obscure the ultimate assessment that is required:  namely whether or not the extradition is in accordance with the principles of fundamental justice.  The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience.  An extradition that violates the principles of fundamental justice will always shock the conscience.  The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context."

(3) Conclusions in Principle

37. Perhaps the Canadian Supreme Court vouches a greater distance between on the one hand cruel and unusual treatment which would be outlawed in the domestic jurisdiction (s.12) and on the other treatment which would "shock the conscience" for the purpose of extradition (s.7), than does the Strasbourg Court between the kind of treatment or punishment required to be shown respectively in domestic and foreign (extradition) cases for the purposes of Article 3. Certainly the Canadian jurisprudence contains strong statements of the need to avoid extra-territorial application of the Charter (see for example paragraph 36 of Burns citing McLachlin J, as she then was, in the earlier case of Kindler). But however that may be, the reason for any such distance between domestic and foreign cases is essentially the same. Both the Convention and the Charter confer territorial, and not universal, jurisdictions. A State or government subject to either jurisdiction can be condemned for what may befall an individual in a third territory: but only if the State or government ought to bear such a responsibility by virtue of its own actions, within its own jurisdiction, in committing the individual to the other territory. Though he was not dealing with a foreign or extradition case, Lord Brown of Eaton-under-Heywood's dictum in Limbuela marches with this:

"92… The real issue... is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim."

38. In my judgment the whole question, in cases like the present, is as to the conditions upon which this responsibility will be imposed. What, then, are the principles by which these conditions are to be ascertained in an extradition case?
39. I would suggest that the following considerations, taken from the jurisprudence, need to be borne in mind.

i) If there is a real risk that the receiving State will expose the extraditee to torture, he cannot be extradited save on pain of violation of Article 3 by the sending State. No refinements based on any distinction between domestic and foreign cases can begin to promote a different result. Nor can it be claimed that the decision to extradite is in the circumstances proportionate to the legitimate aim of extradition. The test of proportionality (in the ECHR context) is principally apt in relation to the political rights enshrined in Articles 8 – 11, where in each case the second paragraph of the Article (as interpreted by the Strasbourg Court) invites specific attention to the proportionality principle.

ii) Short of torture, as with any case (foreign or domestic), prospective treatment or punishment must attain "a minimum level of severity" if it is to give rise to a breach of Article 3. There may be some extradition cases, in addition to those involving a risk of torture, where the minimum level is plainly exceeded, and in that case nothing in the surrounding circumstances can make a difference. In short there is a class of case of special gravity (the paradigm is torture) in which Article 3 is violated and no appeal to the merits of the extradition process or other public interest factors can afford a defence or justification. Such cases are in my view the proper context of the Court's reasoning in Chahal at paragraph 81; and in my judgment it finds a parallel in paragraph 68 of Burns in the Supreme Court of Canada.

iii) But I think it is clear that there is a second class of case. It arises where the anticipated treatment or punishment is not so dire as to call without more for condemnation under Article 3. Its being so condemned will depend on the surrounding circumstances: if Article 3 is violated, the breach is sub modo, not per se. In such a case an assessment of the surrounding circumstances will of necessity make all the difference for the purpose of Article 3, for the very characteristic of this class is that the treatment in question may or may not violate the Convention standard, depending on the surrounding circumstances' impact. The point may best be demonstrated by further reference to what was said by Lord Brown in Limbuela. At paragraph 93 he referred to the observation of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, 33, para 52:

'Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading …'

Then at paragraph 94 Lord Brown said this:

"In cases of alleged degrading treatment the subjective intention of those responsible for the treatment (whether by action or inaction) will often be relevant. What was the motivation for the treatment? Was its object to humiliate or debase?"

And he gave instances. This reasoning shows that there are cases whose location inside or outside Article 3 depends not simply on the objective nature of the treatment involved but on the circumstances in which, and reasons for which, it is administered. And the existence of these two classes of case – breach per se and breach sub modo – reconciles the seeming tension, to which I have referred, between Soering and Chahal.

iv) In deciding whether a particular set of facts in an extradition case gives rise to an Article 3 complaint within the first or second class I have described, or no such complaint at all, a judgment of the prospective penalty's gravity must of course be made. We may now confront the question: does the risk of a whole-life sentence without parole fall within the first class of case, where there is a breach per se – a case which intrinsically violates the Convention? There are powerful arguments of penal philosophy which would suggest that it does. I would venture, with considerable diffidence (there has been much learning on the subject), to offer a summary, as follows.

The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner's incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty's logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner's life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.

v) But I have concluded, not without misgivings, that these considerations cannot prevail against authority. I have already cited learning of their Lordships' House allowing a whole-life tariff for specially heinous crimes. And I should recall the Strasbourg Court's words in Léger v France:

"90. ... [I]n the case of adults the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole (see Nivette v France...) (my emphasis).

The implication is plainly that such an irreducible sentence will not always raise an Article 3 issue. Moreover in Stafford v United Kingdom 35 EHRR 1121, 1144, paragraph 79, the Court observed "that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence". And it is clear from Burns, not least paragraphs 140 – 142 on which as I have said Mr Perry placed particular reliance, that the Supreme Court of Canada does not regard the risk of a whole-life sentence without parole as necessarily liable to "shock the conscience": indeed, it is an acceptable mitigation of sentence of death.

vi) If the whole-life tariff without possibility of parole will not per se give rise to a violation of Article 3 by the extraditing State, what considerations may bring the case into the second class, where violation depends on the circumstances? The treatment's purpose will be important. Accordingly, where the purpose is to inflict punishment according to law for a crime properly proved in an independent and impartial court, that is a circumstance that may weigh heavily in favour of a conclusion that the case is outwith Article 3. In addition, if it is shown that the prospective punishment, albeit imposed by a blanket legislative rule, is in the particular case by no means out of proportion to the gravity of the extraditee's alleged crime, that too may point in the same direction (pace the decision of the Supreme Court of Canada in Smith, which was however not an extradition case). In this context it is important to recall the Strasbourg Court's insistence (Léger, paragraph 72) "that it is not its role 'to decide... what is the appropriate term of detention applicable to a particular offence'"; important, too, to bear in mind the recognition, for example in authority of this court (see Welsh & anor [2006] 3 AER 204 paragraph 136), that criminal justice systems differ between States which nevertheless must operate multilateral extradition regimes. The application of human rights norms must surely accommodate this circumstance in the administration of extradition cases. I do not think this imperative is anywhere contradicted in the Strasbourg jurisprudence, which positively commends (Soering paragraph 89) the relevance and importance of another consideration, namely the pressing public interest vouchsafed by the extradition process.

(4) Conclusions – This Case

40. If the claimant is convicted as charged he will have been held guilty of a very foul, pre-meditated double murder and associated crimes, involving the use of a firearm. It has not been suggested that there is any substantial mitigation. The State will not seek the death penalty. He will be sentenced to imprisonment for life without possibility of parole. He may be released by executive act of the Governor, although on the evidence that is at best a remote possibility.
41. I have already indicated my view, reached without enthusiasm, that on authority the risk of such a sentence cannot be regarded as giving rise to a breach of Article 3 per se, where the Convention standard is intrinsically violated. If that is right, I do not consider that the case can be brought within Article 3 by force of the surrounding circumstances.
42. I would dismiss this claim.

Mr Justice Davis

43. I do not think it can be said that a life sentence without any possibility of parole or remission is, by its very nature, necessarily and always a violation of Article 3. There have been strong statements to the effect that it is inhuman to imprison a person for life without any hope of release and that nobody should be deprived of the possibility of the chance of release: see, for example, the report of the sub-committee of the Committee of Ministers referred to in paragraph 43 of the judgment in Leger. But, that said, there currently is no authority to the effect that such a sentence necessarily violates Article 3. On the contrary, as put at paragraph 90 of Leger (after citation of certain of the authorities, including the case of Nivette upon which Mr Patterson heavily relied): "…in the case of adults the Court has not ruled out the possibility that in special circumstances [emphasis added] an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole…"
44. In England and Wales, in fact, the provisions of the Criminal Justice Act 2003 permit, in some circumstances, in the case of murder, the imposition of a mandatory life sentence with a whole life tariff. (It may be noted that the murders the applicant here is alleged to have committed in the USA are, as it happens, of such a kind as would entitle a judge in England and Wales, had they post-dated 18^th December 2003 and if there were a conviction, to adopt a whole life starting point as appropriate: see Schedule 21 para 4(1)(2)(a).) In the case of Hindley, it was decided by the House of Lords that there can be cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.
45. Mr Patterson placed reliance on the observations of Lord Bingham in paragraph 8 of his opinion in Lichniak. But those observations have to be set in context. I simply do not read Lord Bingham as saying that in all cases of mandatory life imprisonment a tariff term of less than whole life imprisonment (that is, without the possibility of parole) is always required to avoid a violation of Article 3 or 5. On the contrary, Lichniak was heard at the same time as Anderson and the opinions in Anderson were expressly stated by Lord Bingham to be read into his opinion in Lichniak. And in paragraph 47 of his opinion in Anderson Lord Steyn had said this:

"This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoners as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751, 769, Lord Bingham of Cornhill CJ observed that he could "see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment". On appeal to the House of Lords, and with the agreement of Lord Browne-Wilkinson, Lord Nicholls of Birkenhead and Lord Hutton, I expressed myself in similar terms: R v Secretary of State for the Home Department, Ex p Hindley [2001] I AC 410, 416H. The following passage is part of the ratio of that case, at p417:

"The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence."

In Stafford 35 EHRR 1121, 1144, para 79 the European Court of Human Rights observed "that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence". If in future the judiciary and the Parole Board are given the sole responsibility for the system there may still be cases where the requirements of retribution and deterrence will require life long detention."

46. Mr Patterson went on powerfully to submit, however, that such cases at least – and, as he would say, crucially - involved the exercise of a judicial discretionary determination, as part of the sentencing exercise, before a whole life tariff could be set; whereas in Missouri that was not the case, because if there is a conviction for first degree murder then (assuming the death penalty is not sought to be invoked) an irreducible whole life term is mandatory by operation of the Missouri legislation, without reference to, or the possibility of reference to, any personal or mitigating circumstances.
47. In my judgment, one has to remember that this issue here arises in the context of an extradition case. There is a strong public interest in honouring extradition treaties and a strong public interest in bringing suspected offenders to justice in the country where the alleged offence occurs and in avoiding the establishment of perceived safe havens. It is not, ordinarily, for this country to require, as a price for extradition, another country to adopt the sentencing principles of this country. Further it cannot, to my mind, be said that the State of Missouri has been wholly indiscriminate or arbitrary in fixing a whole life sentence in these cases: for such a whole life sentence in these types of case is only available (albeit, it is true, without reference to any particular mitigating circumstances) in cases properly categorised as murder in the first degree: that is to say, deliberate and pre-meditated killing. Putting it another way (by reference to the language used in Hindley) the State of Missouri has in effect decided that murder in the first degree is of itself sufficiently heinous so as to mandate an irreducible life sentence.
48. I do not, of course, seek to say that this country will necessarily accede to an extradition request from a country where, on conviction in that country, an irreducible life sentence will mandatorily be imposed. On the contrary, this will depend on the circumstances of each case: see Soering. Further, an extradition request where, on conviction in the receiving country, the individual faces an irreducible whole life term possibly may stand on a very different footing in a case where, for example, the individual is a relatively young person with mental health and personal problems as compared to a case with no such special features. This approach could in an appropriate case be available to meet the point that (as under the law of the State of Missouri) there can by law be no remission in respect of a whole life term by reference to age, sex or other personal or mitigating circumstances. Thus it is that in the particular circumstance of a particular extradition case the sending country can rule that the prospective sentence may be inhuman and wholly disproportionate.
49. In the present case, however, the Secretary of State by his detailed decision letter dated 13^th June 2006 had due regard both to the particular circumstances of the alleged first degree murders and to the personal characteristics and situation of this particular applicant. The Secretary of State was also entitled - although I think this a relatively minor point - to have at least some regard to the possibility of the Governor intervening to reduce a sentence of life imprisonment without parole; and the Secretary of State also had regard to prison conditions for life prisoners in Missouri.
50. In my judgment, the Secretary of State, by reference to the circumstances of this case, assessed the matter properly; and reached a decision which was open to him and which was lawful.
51. I should add that I am not sure, with great respect, that I would necessarily agree that an irreducible whole life sentence imposed for an offence of homicide in effect represents lex talionis, as is Laws LJ's view. It seems to me that, as a matter of retributive justice, a penalty of incarceration in prison for life is not to be taken as commensurate with the deliberate deprivation of life (that is, killing by way of murder): although true it is that the whole life tariff sentence it is the most severe judicial sentence possible in the United Kingdom. But be that as it may, it seems to me (and in agreement with what Laws LJ explains elsewhere in paragraph 39 of his judgment) neither the legal authorities nor the circumstances of this particular case require a conclusion, when an irreducible whole life sentence may be imposed by the receiving state, that the decision to extradite was unlawful.
52. Accordingly, I also would dismiss this claim.