Are Mandatory Life Sentences without Parole Cruel, Inhuman and Degrading?

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

The House of Lords has held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights.

Facts

The applicant was an international drug trafficker who, while staying with a woman in Kansas City, had money stolen from him.  The applicant forced the woman to drive him and two other men to the house where the thief had been residing.  There they killed two people, including a pregnant young woman, and injured another.  The victims were unconnected with the theft.

Six years later, the applicant was arrested in London and the United States requested his extradition.  The Missouri prosecutor undertook not to seek the death penalty.  However, in Missouri the charge of murder in the first degree attracts a mandatory penalty of imprisonment for life without eligibility for probation, parole or release except by the act of the Governor.  The Home Secretary ordered the applicant’s extradition.  The applicant challenged this decision in the High Court but lost.  He then appealed to the House of Lords asserting that, as a mandatory sentence of life in prison without parole is ‘inhuman or degrading punishment’, the extradition order was incompatible with his rights under art 3 of the European Convention on Human Rights.  Consequently, the applicant maintained that the order contravened s 6(1) of the Human Rights Act 1998 (UK).

Decision

The House of Lords unanimously dismissed the appeal, holding that a sentence of life imprisonment without parole does not necessarily constitute ill-treatment.  Two distinct approaches emerged in determining whether punishment was inhuman or degrading in the context of extradition.

The Relativist Approach

Lord Hoffman (with Lord Carswell and Baroness Hale concurring) adopted what was termed a ‘relativist approach’ to the issue of what constitutes inhuman or degrading punishment.  The fact that the applicant was to be extradited necessarily modified and heightened the threshold of what amounts to inhuman or degrading punishment.

In the domestic context, Lord Hoffman found that a life sentence that is de jure and de facto irreducible may raise an issue under art 3, but a reducible life sentence will not.  However, depending on the circumstances of a particular case, an irreducible life sentence may nevertheless be permissible.

In an extradition context, art 3 does not apply such that the extraditing State is responsible for any punishment likely to be inflicted in the receiving State.  Instead, Lord Hoffman maintained that art 3 applies only in a modified form in which the desirability of extradition is to be considered when deciding whether the punishment is severe enough to render it inhuman and degrading.  Thus, punishment which is inhuman and degrading in a domestic context is not necessarily so when extradition is taken into account.  Lord Hoffman held that punishment will only be inhuman and degrading in the context of extradition where it is ‘grossly disproportionate’ on the facts of the particular case.

On the facts, Lord Hoffman found that, because the Governor could reduce the sentence and considered all applications for reduction (i.e. the process was more than merely theoretical), no issue arose under art 3.  Even if the sentence was found to be irreducible, the ‘relativists’ held that the sentence was not disproportionate given the heinous nature of the applicant’s alleged crimes.

The Absolutist Approach

In contradistinction to the relativist approach, Lord Brown (with whom Lord Scott agreed) adopted an absolutist approach.  He held that the right under art 3 is absolute and cannot be balanced against other considerations.  There is nothing in art 3 to suggest that the standards required should differ depending on whether the case involves domestic law or extradition.  Instead, what constitutes inhuman and degrading punishment is constant.  Their Lordships held that the threshold of what amounts to inhuman and degrading punishment is high as a consequence of the absolute and constant nature of the right.  An irreducible life sentence will only violate art 3 rights at such a time when further imprisonment could no longer be justified on any basis, whether punishment, deterrence, public protection or otherwise.

Thus, their Lordships held that in this case a mandatory sentence of life imprisonment, even if irreducible, was not a breach the applicant’s art 3 rights.

Relevance to the Victorian Charter

This case provides important guidance on when punishment may be deemed to be inhuman and degrading, particularly given the distinct absence of Australian authority on the issue.  However, the utility of this case is tempered by two issues.  First, while s 32(2) of the Charter states that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision, a decision split in principle as this decision was does not provide clear guidance to Victorian courts as to whether to adopt the ‘relativist’ or the ‘absolutist’ approach.

Second, because international extradition in Australia is governed by the Extradition Act 1988 (Cth), consideration of comparable cases under the Charter will only potentially be relevant in the context of inter-State extradition.  As a result, s 10 arguments (under the current and probable future positions under other State or Territory laws) are unlikely to arise in the context of potential death penalty cases, but may in the context of mandatory or maximum penalties applicable or available in other States or Territories which may constitute cruel, inhuman or degrading treatment.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/72.html.

Alex Goddard and Peter Henley, Human Rights Law Group, Mallesons Stephen Jaques