A Right to Hope? Extradition to the U.S. and Life Without Parole
[H]ope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change . . . To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.
In Vinter and Others v. United Kingdom (Vinter), decided on July 9, 2013, the Grand Chamber of the European Court of Human Rights (the Grand Chamber) laid down a strong benchmark for the application of the prohibition of inhuman or degrading treatment set out in Article 3 of the European Convention on Human Rights (ECHR) in the context of life sentences without parole.
Following Vinter, a Chamber of the European Court (Chamber) held on October 7, 2014 in Trabelsi v. Belgium (Trabelsi) that extradition to the United States in circumstances where the applicant faced life imprisonment without parole upon his arrival also breached Article 3.
However, on February 3, 2015, the so-called “right to hope” was thrown into question by the ruling of a different Chamber in Hutchinson v. United Kingdom (Hutchinson).
This Insight will explore the limits placed on the right to hope in the Hutchinson decision and what the minimum assurances would need to be before extradition to the U.S. would satisfy Article 3.
The Vinter Decision
The Grand Chamber accepted in Vinter that the imposition of a life sentence does not itself infringe Article 3, even where it may in fact be served in full. However, a life sentence that is “irreducible” will violate Article 3. In order to avoid an Article 3 violation, a sentence must offer both a prospect of release and a possibility of review.
Crucially, the review must consider whether there continue to be “legitimate penological grounds for the detention” and those penological grounds must emphasize rehabilitation over punishment. This, the Grand Chamber notes, has become a feature of European penal policies well as of international law.
The Grand Chamber concluded that a sentence is only reducible where there exists a review system allowing the domestic authority to consider whether the prisoner has made such progress that there detention “can no longer be justified on legitimate penological grounds.”
The system of review in place at the time in the U.K. did not meet this standard. When a “whole life tariff” is imposed in the U.K., the only prospect of release comes from the Secretary of State, who has the power to release any “life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.” The Secretary of State has set out the criteria that guide the exercise of this power in a Prison Service Order.
The Grand Chamber’s concerns about the U.K. system can be broken down into three parts.
First, the conditions for release were “highly restrictive.” The Prison Service Order requires that the prisoner be terminally ill (with death likely to occur within three months) or be seriously physically incapacitated. The Grand Chamber doubted whether this “could really be considered a release at all, if all it meant was that a prisoner died at home or in a hospice rather than behind prison walls.”
The second concern was over the lack of clarity in the law. The U.K. Government submitted that the Secretary of State, who is legally bound to act compatibly with the ECHR, would have to read the statute as imposing a duty on him to release the prisoner if continued detention had become incompatible with Article 3. The Grand Chamber held that this reading of the statute would in principle satisfy Article 3, but only if there was “a sufficient degree of certainty . . . as to the state of the applicable domestic law to this effect.” The requisite degree of certainty did not exist since the Prison Service Order purported to set out exhaustive conditions and had not been amended to include the Article 3 ground.
The third concern was that there was no “dedicated review mechanism” for whole life orders.
The Impact of Vinter on Extradition to the United States
Vinter was applied to the context of extradition to the U.S. in the Chamber decision in Trabelsi. The Belgian Government had extradited the applicant to the U.S. for prosecution on charges relating to al-Qaeda-inspired acts of terrorism, in breach of an interim measure put in place by the European Court of Human Rights. In reviewing this action, the Chamber in Trabelsi reiterated the well-known principle that extradition is itself incompatible with Article 3 if the person is likely to suffer consequences in that country which are incompatible with Article 3.
The Chamber found that, despite the “several possibilities for reducing” a sentence of life without parole in the U.S., including showing cooperation with the authorities, compelling humanitarian reasons, presidential pardon, and commutation of sentence, the Article 3 test was not met because there was no review mechanism requiring the U.S. authorities to ascertain “on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of the imposition of the life sentence” whether the detention continued to be justified on legitimate penological grounds.
This holding elevates the Grand Chamber’s concern in Vinter about the lack of a dedicated review mechanism in the U.K. from the somewhat second-tier position it occupied in that judgment to a central factor relevant to compatibility of the system with Article 3.
The Chamber awarded EUR 60,000 in compensation and the Grand Chamber rejected the Belgian Government’s request for referral.
If this had been the last word from the Grand Chamber on this issue, it would have been safe to conclude that ECHR signatory states could no longer extradite to the U.S. where a life sentence without parole, as it currently exists in the U.S., was a possible outcome for the accused.
Such a development would have had further-reaching consequences than might immediately be apparent, since life without parole is a far more common sentence in the U.S. than it is in European countries. According to the Sentencing Project, in 2012 there were 49,081 prisoners serving life without parole in the U.S. Allowing for a population nearly 5 times as large and a prison population 26 times as large (and also acknowledging that the figures are not properly comparable), it still speaks for itself that, as of March 2015, only 52 prisoners were serving this sentence in the U.K.: a number 944 times smaller than the U.S. number.
The Hutchinson Decision
However, Trabelsi was not the last word on the matter.
This year, in Hutchinson, a different Chamber found that the U.K.’s system had sufficiently changed such that it no longer breached Article 3.
The only difference between the situation in the U.K. at the time of Vinter and at the time of Hutchinson was a decision of the Court of Appeal in R v. Newell; R v. McLoughlin. The Court of Appeal was specially constituted to deal with the fallout from Vinter. In its decision, the Court of Appeal disagreed with the Grand Chamber’s conclusion in Vinter that U.K. law was insufficiently clear. It disagreed on the basis that the Secretary of State is bound to apply his powers in a manner that is compatible with Article 3 and that it was of no consequence that the Prison Service Order had not been amended.
The Chamber in Hutchinson, relying heavily upon the need to defer to contracting states as to the form of review, found that this Court of Appeal judgment “expressly responded to the concerns detailed in Vinter” and “set out an unequivocal statement of the legal position.”
However, arguably the Court of Appeal judgment did not address the concerns detailed in Vinter at all. The Court of Appeal merely reiterated the submissions that the U.K. Government had made in Vinter, which the Grand Chamber rejected. It was always the case that the Secretary of State was bound to exercise his powers compatibly with Article 3: the Court of Appeal saying so does nothing to increase the certainty as to the position in domestic law. In fact, it possibly makes the state of the law less clear because it calls into question the legality of the Prison Service Order. Nor does the Court of Appeal judgment address at all the other concerns of the Grand Chamber in Vinter: the narrowness of the exceptional grounds for release contained in the Prison Service Order and the lack of a dedicated mechanism of review.
In her dissent, Judge Kalaydjieva faced this issue head-on. Referring to the Court of Appeal’s supposed clarification of the situation, she stated “I do not deem myself competent to determine whether the Court of Appeal expressed an ex tunc trust or an ex nunc hope” that the Secretary of State would exercise his powers in a manner compatible with Article 3, despite not having amended the Prison Service Order, but that she “had no doubt that the Grand Chamber was informed as to the scope of his discretion and the manner of its exercise in reaching their conclusions in Vinter.”
Judge Kalaydjieva is surely right: either the judgment in Hutchinson fails to understand the position or, as seems more likely, the Chamber is tacitly retracting on the position taken in Vinter—perhaps even attempting to go so far as effectively to “overrule” it.
The Applicant in Hutchinson has requested a referral to the Grand Chamber, which was accepted on June 1, 2015.
Whether the Grand Chamber will uphold Hutchinson or retrench into the position it took in Vinter is difficult to predict. There are political nuances to bear in mind here. Anti-ECHR feeling has built in the U.K., particularly as a result of what is perceived as interference by the European Court in matters of penal reform.
If Hutchinson stands, it will be unclear whether there would need to be a dedicated “review mechanism,” as required by the Court in Trabelsi. Indeed, it will be unclear whether ECHR signatory states need to prevent extradition to the U.S. where the person is facing a possible sentence of life without parole, as it is not at all clear that the U.K. system is any different from the U.S. system, whereby any person serving life without parole may apply for his sentence to be reduced, inter alia, on compassionate grounds and for cooperation with the authorities. The grounds themselves are wider and the situation arguably no less unclear than it is in the U.K following R v. Newell; R v. McLoughlin.
The only real difference between the two systems is that those exercising powers of pardon/commutation etc. in the U.S. are not bound to give effect to the right not to be subject to inhuman and degrading treatment. It is possible that the duty of such persons to give effect to the U.S. Constitution, especially to the prohibition on cruel and unusual punishment, could partially fill that void. However, there is little prospect that U.S. law will in the foreseeable future proclaim that, in the case of an adult serving life without parole for the most serious of homicide crimes, it would be a cruel and unusual punishment to continue to detain him once there cease to be legitimate penological grounds for detention.
Whether or not the European Court would take the view that the U.S. system provides sufficiently for the reducibility of sentences will have to be the subject of a future case, once the fate of Hutchinson has been decided. Overall, it appears that the legal world may have been too quick to laud the arrival of the “right to hope.” We are still some way from gaining certainty in this area, which was, ironically, the very complaint of the Grand Chamber in Vinter.
About the Author: Emily MacKenzie is a barrister specializing in human rights and European Union law at Brick Court Chambers in London. From January to August 2014 she was an International Law Fellow at ASIL.
 Vinter, supra note 1, ¶¶ 106–110 (citing Kafkaris v. Cyrpus [GC], 2008-I Eur. Ct. H.R. 223).
 Id. ¶¶ 111, 114. On European penal policy see, for example, the European Prison Rules, especially Rule 6 and 103, available at https://wcd.coe.int/ViewDoc.jsp?id=955747. On International law see, for example, the United Nations Standard Minimum Rules for the Treatment of Prisoners, especially Rules 58–61, 65 and 66; Article 10 § 3 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment on Article 10; Rome Statute of the International Criminal Court, Article 110(3).
 Vinter, supra note 1, ¶ 119.
 Crime (Sentences) Act 1997, c. 43, § 30(1) (Eng.).
 Prison Service Order 4700, c. 12 (Eng.).
 Vinter, supra note 1, ¶ 127.
 Id. ¶¶ 125–126.
 Id. ¶¶ 130.
 Trabelsi, supra note 3, ¶ 120.
 Id. ¶¶ 134, 137.
 The Sentencing Project, Life Goes On: The Historic Rise in Life Sentences in America (2013), available at http://sentencingproject.org/doc/publications/inc_Life%20Goes%20On%202013.pdf.
 Ministry of Justice, Offender Management Statistics Bulletin, England and Wales (2015), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424872/offender-management-statistics-bulletin-oct-dec-2014.pdf.
 Hutchinson, supra note 4, ¶ 25.
 R v. Newell; R v. McLoughlin,  EWCA (Crim) 188.
 Id. ¶¶ 29–30.
 Hutchinson, supra note 4, ¶¶ 20, 23, 25.
 Id. (Kalaydjieva, J., dissenting opinion).
 Although note that this cannot technically be the position, as a Chamber cannot overrule a decision of the Grand Chamber.
 Note the long stand-off that has taken place between the U.K. and the Grand Chamber on the issue of prisoner voting rights following the judgment in Hirst v. United Kingdom No. 2, 2005-IX Eur. Ct. 187.
 Although the Supreme Court has accepted this argument in relation to juveniles (see e.g. Miller v. Alabama, 567 U.S. __ (2012)) and in relation to less serious offences, especially when committed by juveniles (see e.g. Graham v. Florida 560 U.S. 48 (2010)), the gap between this and the position of the Grand Chamber (especially in light of the existence of the death penalty in the U.S.) suggests that it is highly unlikely that the doctrine will, in the foreseeable future, extend far enough to reach adults accused of the most serious homicide crimes.