The appellant Wellington was a drug dealer who killed two people in Kansas City (one of whom was a pregnant woman) by firing with guns on 13 February 1997. The appellant was charged with murder of the first degree in the State of Missouri (USA). On 29 January 2003 the appellant was arrested in London. The United States requested his extradition, undertaking not to impose the death penalty. On 13 June 2006 the Home Secretary notified the appellant that he ordered his extradition. Wellington applied for judicial review and his application was dismissed by the Administrative Court.

He further appealed to the House of Lords on the ground that the Home Secretary’s order violated article 3 of the European Convention on Human Rights (prohibition of torture and of inhuman and degrading treatment), on the basis that a sentence of life imprisonment without eligibility for parole is alleged to constitute ‘inhuman or degrading treatment’.

The House of Lords unanimously dismissed the appeal. Lord Brown and Lord Scott disagreed with Lord Hoffmann, Lord Carswell and Baroness Hale that a relativistic approach to article 3 had to be taken in the context of extradition.

Lord Hoffmann, who gave the leading judgement, examined two main issues. The first was whether a sentence of imprisonment for life without eligibility for parole would constitute an inhuman or degrading punishment in the UK.

He rejected the philosophical approach according to which life sentence without parole constitutes ‘inhuman or degrading treatment’ in that it destructs a life without possibility of redemption and that it is justified only if the death penalty argument is justified, i.e. if the crime is so heinous that it can never be atoned for. He instead accepted the ECHR’s ruling in Kafkaris v Cyprus that a life sentence may breach article 3 only if it is irreducible, i.e. only if there is no de jure and de facto possibility of reducing the punishment.

He held that on the facts of the case the punishment was reducible de jure and that the fact that the Missouri Governor’s powers to reduce it were rarely used de facto was not sufficient to make the sentence irreducible. It had to be accepted that the appellant’s chances of release were poor: otherwise the more horrendous the crime, the stronger the claim not to be extradited. In his opinion, however, even an irreducible life punishment would not contravene article 3 if it were proportionate to the crime committed.

Lord Hoffmann held that, in the circumstances of the case, a life sentence would not be disproportionate to the crime committed and that the English Criminal Law would also impose the same treatment on the appellant. In the circumstances, therefore, there was no inhuman or degrading treatment under article 3.

The second issue was whether it makes a difference that the sentence will not be imposed by a United Kingdom authority but by the State of Missouri. Lord Hoffmann took a relativist approach to article 3, holding that, in cases of extradition, article 3 did not apply as if the extraditing State were responsible for any punishment inflicted in the receiving State. The creation of safe havens for fugitives would otherwise undermine the whole foundations of extradition. He also considered the absolutist approach to article 3 in Chahal v UK as confined to torture cases and as not affecting the present case.

Lord Carswell and Baroness Hale of Richmond agreed with Lord Hoffmann. Baroness
Hale held that the minimum level of severity of treatment under article 3 depended on the circumstances of each case and that in the case of extradition, the threshold was higher, there had to be disproportion between the punishment and the crime. She nonetheless accepted, referring to Chahal, that torture was different and had to be treated in an absolute approach.

Lord Scott of Foscote, despite agreeing that there was no inhuman or degrading treatment, considered that an absolutist approach to article 3 was required. He argued that if an exception could be made to absolute rights in the context of extradition, exceptions could also be made on other public policy grounds. Moreover two results would follow from Lord Hoffmann’s approach: either a distinction would be made between torture and other ‘inhuman or degrading’ treatment – however, there was no basis for this distinction in the wording of the article – or a uniformly narrow approach to article 3 would be taken but this was inconsistent with the Strasbourg jurisprudence: article 3 had to be a floor, not a ceiling.

Lord Brown of Eaton-under-Heywood held that a sentence would not be irreducible ‘de jure and de facto’ if at some point in time its proportionality to the circumstances of the crime were reconsidered and that, according to Kafkaris v Cyprus, a life sentence ‘may’ but must not in principle violate article 3 and that article 3 is violated only when the prisoner’s further imprisonment can no longer be justified.

Lord Brown disagreed with Lord Hoffmann’s relativistic view. He held that the approach to ‘inhuman or degrading treatment’ should be analogous to the Chahal approach to torture: no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading. In his opinion extradition was not a sufficient factor to abandon the absolutist approach to article 3.

Furthermore, he held that the fact that the measures used in the criminal law of the USA could constitute a potential breach of article 5(4) was not sufficient to give rise to an immunity from extradition.