Jose Luis Inzunza and Others v (1, 2) Government of the United States of America and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,The Honourable Mr Justice Davis |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWHC 920 (Admin) |
| Docket Number | CO/11384/2009, CO/13607/2009, CO/6535/2010, CO/6969/2010,Case Nos: (1) CO/11384/2009 (3) CO/6535/2010 (4) CO/6969/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 April 2011 |
[2011] EWHC 920 (Admin)
Lord Justice Gross
and
Mr Justice Davis
Case Nos: (1) CO/11384/2009
(2) CO/13607/2009
(3) CO/6535/2010
(4) CO/6969/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
ON APPEAL FROM
(1) District Judge Zani (13.08.2009)
(2) District Judge Tubbs (18.08.2009)
(3) Secretary of State for the Home Dept. (21.07.2003)
(4) District Judge Riddle (12.04.2010)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Henry Blaxland QC and Mr Ben Cooper for the 1 st Appellant
Mr Henry Blaxland QC and Mr Ben Cooper for the 2 nd Appellant
Mr David Hislop QC and Mr John Jones for the 3 rd Appellant
Mr Ben Cooper for the 4 th Appellant
Mr Ben Watson for the 1 st and 2 nd Respondent
Mr Ben Watson and Miss Clair Dobbin for the 3rd Respondent;
Miss Adina Ezekiel for the Interested Party
Hearing dates: 27 th and 28 th January 2011
There are before the Court three matters; all raise the question of whether extradition of the individual concerned to the United States of America ("the US") would be incompatible with Art. 3 of the European Convention on Human Rights ("the ECHR"). Art. 3 of the ECHR thus falls to be considered in the context of extradition to a non-Convention State – moreover, a State with (it may be said) Courts and constitutional protections as sophisticated as are to be found anywhere.
Art. 3 of the ECHR provides as follows:
"No one shall be subject to torture or to inhuman or degrading treatment or punishment."
No question of torture is raised; the sole focus is on "inhuman or degrading treatment or punishment".
It will be convenient to begin with a relatively brief summary of the, by now, familiar legal framework. Thereafter, a close look at the facts of the individual cases is necessary, before seeking to apply the legal principles (themselves not or not much in dispute) to those facts.
THE LAW
Consideration of the matter is itself conveniently divided into two parts; first, the domestic context (i.e., the position pertaining within Convention States); secondly, the extradition context (i.e., the position which arises when considering extradition from a State which is party to the ECHR, to a State which is not).
The discussion which follows is derived essentially from the following authorities: Soering v United Kingdom (1989) 11 EHRR 439, esp. at [86] – [91] and [100]; Saadi v Italy (2008) 24 BHRC 123, esp. at [124] – [130] and [134]; Kafkaris v Cyprus (2009) 49 EHRR 35, esp. at [96] – [100]; R v Bieber [2008] EWCA Crim 1601; [2009] 1 WLR 223, esp. at [24] – [49]; R (Wellington) v Home Secretary [2008] UKHL 72; [2009] 1 AC 335, esp. at [1] – [36] (the speech of Lord Hoffmann), [50] – [52] (Baroness Hale), [61] – [62] (Lord Carswell) and [88] – [89] (Lord Brown of Eaton-under-Heywood).
The domestic context: Generally, the ECHR is not concerned with matters of sentencing.
However, Art. 3 of the ECHR prohibits in absolute terms and irrespective of the victim's alleged conduct, "torture or…inhuman or degrading treatment or punishment" – so enshrining one of the fundamental values of the democratic societies making up the Council of Europe. It follows that if a sentence constitutes "inhuman or degrading treatment or punishment", then Art. 3 will be engaged. For ill-treatment to fall within the scope of Art. 3, it has to attain a minimum level of severity, to be assessed in all the circumstances of the individual case. The suffering and humiliation involved has to go beyond the inevitable element of suffering or humiliation inherent in a given form of legitimate punishment.
It is settled law that the imposition of a life sentence on an adult offender is not per se incompatible with Art. 3.
A life sentence which is "irreducible" may raise an issue under Art. 3 but will by no means necessarily do so, a fortiori, at the time the sentence is imposed. The difference between a discretionary and mandatory life sentence is of importance and may by itself be decisive as to whether any issue arises under Art. 3.
i) A discretionary whole life term, deliberately imposed by a Judge because the offence is so serious that, for the purposes of punishment and deterrence, the offender must remain in prison for the rest of his days, does not of itself violate Art. 3 – even if the sentence is irreducible: see s.269(4) of the Criminal Justice Act 2003 ("the CJA 2003"), together with para. 4(1)(a) of Schedule 21 to that Act. See: Bieber, at [45]; Wellington, at [17].
ii) A mandatory and irreducible whole life term may raise an issue under Art. 3, because of the possibility that (by reason of the mandatory nature of the sentence) the offender will be detained beyond the period that can be justified on the ground of punishment and deterrence. See: Bieber, at [37]; Wellington, at [36].
iii) Assuming an issue does arise under Art. 3 in connection with a mandatory and irreducible whole life term, it is likely to arise at some point in the course of the offender's detention – when it can be argued that all the objects of imprisonment have already been achieved – rather than at the time of the imposition of the sentence itself. See: Bieber, at [43]; Wellington, at [18].
As to whether a life sentence is irreducible:
i) A life sentence did not become irreducible by the mere fact that in practice it might be served in full: Kafkaris, at [99].
ii) Provided that there is a prospect, de jure and de facto, of release, a life sentence will not be treated as irreducible. That the possibility of release hinges on executive clemency (rather than judicial intervention), even sparingly exercised, does not result in the sentence being categorised as irreducible; see: Kafkaris, at [100] and [104]. Having regard to the provisions of s.30 of the Crime (Sentences) Act 1997, a "whole life term" in this jurisdiction would not be considered an irreducible sentence: Bieber, at [45] and following.
iii) As has been observed, the "…bar for what counts as irreducible is set high": Wellington, per Lord Hoffmann, at [12].
Pulling the threads together, it is plain, therefore, in the domestic (ECHR) context, that Art. 3 has a very limited application to life sentences: Wellington, at [13]. Indeed and though not common ground, the logic of the above discussion strongly suggests that within this context, no Art. 3 issue is capable of arising unless a life sentence is both mandatory and irreducible or, at least, mandatory. Moreover and to repeat, the bar for what counts as irreducible is set high. (For the avoidance of doubt, it is assumed that, in the domestic context, there is no question of a life sentence being imposed other than for unlawful killing or other very grave offending.)
The extradition context: If Art. 3, ECHR has a very limited application to life sentences within the domestic context, the scope of its application to life sentences, for unlawful killing or other very grave offending, in the extradition context, is likely to be no greater and, it is suggested, should be still more limited. The ECHR has, as is to be expected, a territorial reach, limited to the jurisdiction of the Contracting States: Soering, at [86]. Further ( ibid):
" …the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States."
There can, accordingly, be no question of adjudicating on the responsibility of the receiving country in respect of its treatment of an individual surrendered by a Contracting State; liability, if any, under the ECHR can only be incurred by the extraditing Contracting State: Soering, at [86] – [90]. The Strasbourg jurisprudence imposes what may be described as a residual liability on extraditing Contracting States by way of the absolute prohibition on "…inhuman or degrading treatment or punishment". If, therefore, the applicant establishes (the burden being on him to do so) that there are substantial grounds for believing that he faces a real risk of treatment incompatible with Art. 3 if extradited to a (non-ECHR) receiving state, then the extraditing Contracting State will not be absolved from responsibility under Art. 3 for "all and any foreseeable consequences of extradition": Soering, at [86]; Saadi, at [124] et seq.
This is, however, a difficult area, crying out for tempering excesses of theory with practical good sense. Art. 3 embodies a fundamental value, it must be hoped, across Europe and beyond; but only cynicism and the devaluation of this fundamental principle can result if the balance struck by the courts fails properly to reflect the needs of the community as well as the rights of the individual. Fortunately, as it seems to me, in the field of extradition, the route to be followed in order to achieve a sensible balance has been clearly mapped out by the European Court of Human Rights ("the Strasbourg Court") and the House of Lords.
First, as recognised in Soering itself (at [89]), inherent in the ECHR is the search for a "fair balance" between the demands of the community and the protection of the individual. In this regard, there is a strong policy interest in an effective system of extradition. As the Strasbourg Court observed ( loc cit):
" As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to...
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