USA extradition case limits scope of Convention rights
Contracting states to the European Convention on Human Rights should not impose Convention standards on non-contracting states, especially those with a history of respect for democracy, human rights and the rule of law, the High Court has reaffirmed.
Lord Justice General Carloway, Lord Pentland and Lord Matthews made the observations in refusing appeals by Jennifer Amnott, Valerie Hayes and Gary Reburn against extradition to the USA, on warrants issued by a court in Virginia libelling offences including conspiracy to commit kidnapping involving children, conspiracy to kill witnesses, actual or attempted kidnappings, and attempted killing of witnesses, relating to four parents. It was alleged that along with Ms Amnott's husband they had begun to carry out their plan, holding a family at gunpoint, but were thwarted; Mr Amnott was arrested and the three appellants fled.
The offence of conspiracy to kill (with intent to prevent communication to a federal law enforcement officer) attracted a mandatory life sentence; the other conspiracy charge and the attempted kidnappings attracted minimum sentences of 20 years. There was no minimum sentence on the other charges.
The appellants argued that a potential mandatory life sentence, without parole (there being no parole system for federal crimes in the USA), for a lesser crime than murder constituted a breach of article 3 of the European Convention (inhumane and degrading treatment), because it was grossly disproportionate and, in any event, not capable of being reduced thereafter.
It was said that the sheriff had erred in finding some divergence between English and European Court of Human Rights authority, and preferring the former; and had failed to apply the "greater scrutiny" test in considering whether a mandatory life sentence without parole was grossly disproportionate, and in any event in reaching the conclusion that it was not.
Giving the opinion of the court, Lord Carloway observed first that the High Court was not generally bound by decisions of the House of Lords or the UK Supreme Court, except in cases raising Convention compatibility issues, though in appropriate cases they would be treated as highly persuasive. The court was bound to “take into account” the decisions of the Human Rights Court in a matter involving Convention rights, unless there was a sound reason for not doing so.
There was no basis for holding that the sheriff had failed to apply the correct level of scrutiny. It was not possible to conclude that a life sentence without parole was grossly disproportionate, for the purposes of triggering a breach of article 3, given the "extreme gravity" of the crimes charged. "There will no doubt be some cases in which it can be said that a sentence is grossly disproportionate", he said. "This is not one of them. The seriousness of the offences, if proved, would merit very substantial custodial, including life, terms."
Considering the lack of reducibility of the sentence, Lord Carloway said the court broadly agreed with the reasoning in two English cases, Hafeez and Sanchez, which considered the effect of European jurisprudence. He concluded: "The European Court recognised in Harkins and Edwards (at para 129) and in Ahmad (at para 177) that there is a distinction to be made between extraditions or removals within contracting states and those involving non-contracting states. It was not for contracting states to impose Convention standards in non-contracting states. It would therefore require a high level of ill treatment, including death or torture, to amount to a bar to extradition to states with a long history of respect for democracy, human rights and the rule of law.
"Although the judiciaries in Europe may not, in the context of article 3, agree with all aspects of the penal system in the USA, it is not for them to insist upon that system abiding strictly by the Convention standards, which apply to contracting states, before granting an order for extradition. The existence of compassionate release and executive clemency within the US criminal justice system is sufficient to meet the requirements of article 3 in the extradition context, even if it may not be likely that the appellants will be afforded either remedy over time."
He recognised that the case of Trabelsi appeared to modify this line, and if that was affirmed in another upcoming case, it could have a "profound influence" on the operation of extradition treaties. "It has the potential to create safe havens for fugitives from justice, who are charged with very serious crimes, including, as here, those perpetrated in their states of origin. That is not an attractive prospect. Application of the mainstream European Court jurisprudence... may be thought to be preferable for those parts of the world governed by the rule of law. It attaches considerable importance to the sovereignty principle under which the Convention should not be used as a means of imposing the criminal justice values of contracting states on non-Convention countries. It should require some obvious and serious form of ill treatment to bar the extradition to a country such as the United States for the crimes of conspiracy to murder parents and to steal their children."