R (Ralston Wellington) v the Secretary of State for the Home Department

JurisdictionUK Non-devolved
JudgeLORD CARSWELL,LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD HOFFMANN,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date10 December 2008
Neutral Citation[2008] UKHL 72
CourtHouse of Lords
Date10 December 2008
R (on the application of Wellington) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

(Criminal Appeal from Her Majesty's High Court of Justice)

[2008] UKHL 72

Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under Heywood

HOUSE OF LORDS

Appellant:

Clare Montgomery QC

Gareth Patterson

(Instructed by Russell-Cooke Solicitors)

Respondent:

David Perry QC

Ben Watson

(Instructed by Treasury Solicitors)

LORD HOFFMANN

My Lords,

1

The State of Missouri alleges that on 13 February 1997 the appellant Ralston Wellington committed two murders in Kansas City. According to the evidence submitted on behalf of the prosecutor, the appellant was a Jamaican drug dealer carrying on a substantial business in Jamaica, the United States and the United Kingdom. While he was staying with a woman in Kansas City, a member of her family took about US$70,000 from his room. The appellant made the woman drive him and two other Jamaicans to the house where the thief had been staying. They entered with guns firing, killed two of the occupants (one of them a pregnant young woman) and injured another. The victims do not appear to have been concerned in the theft and the money was afterwards returned by the thief.

2

The appellant is charged with murder in the first degree, defined in section 565.020 of the Revised Statutes of Missouri as knowingly causing the death of another person after deliberation upon the matter. The prescribed penalties are death or imprisonment for life without eligibility for probation or parole or release except by the act of the Governor.

3

On 29 January 2003 the appellant was arrested in London on a provisional warrant. The United States requested his extradition. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty and after a hearing on 13 October 2003 the District Judge committed the appellant to await the decision of the Home Secretary as to whether he should be extradited. Some time was then taken up with an unsuccessful challenge to the committal by judicial review, but on 13 June 2006 the Home Secretary notified the appellant that he had ordered his extradition. This decision was also challenged by an application for judicial review, which was dismissed by the Administrative Court (Laws LJ and Davis J) on 18 May 2007: [2007] EWHC 1109. The appellant appeals to your Lordships' House.

4

The sole ground of challenge is that, in ordering extradition, the Home Secretary, as a public authority, acted in a way which was incompatible with the appellant's Convention right under article 3 of the European Convention on Human Rights not to be "subjected to…inhuman or degrading…punishment." A sentence of life imprisonment without eligibility for parole is alleged to constitute such punishment. The order for extradition is therefore said to have contravened section 6(1) of the Human Rights Act 1998.

5

The appeal raises two issues. First, whether a sentence of imprisonment for life without eligibility for parole would, if imposed in the United Kingdom, constitute an inhuman or degrading punishment. Secondly, whether it makes a difference that the sentence will not be imposed by a United Kingdom authority but by the State of Missouri.

6

Before coming to the authorities in the United Kingdom and the European Court of Human Rights ("ECHR"), I shall consider the question in principle. In the Divisional Court, Laws LJ put forward a philosophical argument for treating life imprisonment without parole as inhuman or degrading (para 39(iv)):

"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."

7

This passage was quoted with apparent approval by Lord Bingham of Cornhill in De Boucherville v State of Mauritius [2008] UKPC 37 but in my respectful opinion the argument breaks down at the very first step. It is not the case that the abolition of the death penalty must have been founded upon the premise that the life of every person has such inalienable value that its forfeiture cannot be justified on the ground of retributive punishment. A perfectly respectable case for the abolition of the death penalty can be constructed without subscribing to the view that the lives of Streicher, Eichmann, Saddam Hussein or Myra Hindley had such inalienable value that their executions could not be morally justified. Opposition to the death penalty may be based upon the more pragmatic grounds that it is irreversible when justice has miscarried, that there is little evidence that its deterrent effect is greater than that of other forms of punishment and that the ghastly ceremony of execution is degrading to the participants and the society on whose behalf it is performed. For people who hold such views, who must include many opposed to the death penalty, the parallels between the death penalty and life imprisonment without parole, to which Laws LJ draws attention, are the very reasons why they think that in some cases the latter sentence is appropriate. The preservation of a whole life sentence for the extreme cases which would previously have attracted the death penalty is for such people part of the price of agreeing to its abolition. The Member States of the European Union are in principle democracies and the views of such people must be taken into account by the courts which are invited to extend the reach of article 3. As Lord Bingham of Cornhill said of the mandatory life sentence for murder in R v Lichniak [2003] 1 AC 903, 911-912:

"the House must note that [the mandatory life sentence] represents the settled will of Parliament. Criticism…has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that [the mandatory life sentence] represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled."

8

I come then to the law. The leading European authority is now Kafkaris v Cyprus (Application No 21906/04) 12 February 2008, which concerned a mandatory life sentence for murder imposed in Cyprus. Only the President could order the release of such a prisoner, either by exercising the power of mercy under article 53(4) of the Constitution or by ordering release on licence under section 14 of the Prison Law 1996. The prisoner, who had been sentenced in 1989, complained in 2004 that his continued detention was in breach of his rights under, inter alia, article 3.

9

The majority judgment noted (in paragraph 97) that a life sentence was "not in itself prohibited by or incompatible with article 3" but that the imposition of an irreducible life sentence "may raise an issue" under article 3. On the question of what counted as an irreducible sentence, the court said (in paragraph 98):

"where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy article 3…. The court has found this is the case…even when the possibility of parole for prisoners serving a life sentence is limited…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."

10

The court went on to say (in paragraph 99) that—

"the existence of a system providing for consideration of the possibility of release is a factor to be taken into account when assessing the compatibility of a particular life sentence with article 3."

11

But the Court signalled that it would not inquire too closely into the way such a system worked:

"it should be observed that a State's choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention."

12

The conclusion I draw from the Court's guarded statement that an...

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