The European Court of Human Rights' well-known judgment in Soering v. United Kingdom (1989) 11 E.H.R.R. 439 established the non-refoulement principle within the scope of Article 3 of the European Convention on Human Rights (ECHR): that the surrender or extradition of a person from an ECHR state party to another country where there is a serious risk that this person could be subjected to torture or to inhuman or degrading treatment or punishment would amount to a violation of Article 3. ECHR member states no longer extradite individuals without adequate assurances that they will not be subjected to the death penalty. In R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72, [2009] 1 A.C. 335, the House of Lords grappled with the difficult question whether a sentence of life imprisonment imposed by the state seeking extradition raises an issue under Article 3 ECHR.

The appellant was charged in the US state of Missouri with murder in the first degree of two persons. The prescribed penalty for this crime was a mandatory life sentence, without eligibility for probation, parole or release except by an act of the Governor of Missouri. The appellant was arrested in London, and the United States requested his extradition. Wellington thus raised two basic issues. First, whether the sentence in question would amount to inhuman or degrading treatment or punishment contrary to Article 3 ECHR if it had been imposed in an ECHR state party, such as the UK. Second, whether the clearly important interest that states have in facilitating extradition has any relevance to whether the risk of the punishment in question could violate Article 3.

On the first issue, their Lordships started their analysis from the leading Strasbourg authority on the matter, Kafkaris v. Cyprus, Application No 21906/04, 12 February 2008. That case also concerned a mandatory life sentence for murder, from which there could again be no eligibility for parole save for executive clemency. The applicant had argued that, because a life sentence without the possibility of parole denied any prospect that the convicted person could be rehabilitated and reintegrated into society, a necessary condition for the legitimacy of any criminal punishment, such a sentence was inhuman and violated Article 3. In a rather cryptic statement, the Court held that “the imposition of an irreducible life sentence on an adult may raise an issue under Article 3” (Kafkaris, at [97], emphasis added). However, because Cypriot law allowed for executive clemency, a possibility which existed not only de jure but also de facto, the life sentence in question was not irreducible, and no Article 3 issue arose (Kafkaris, at [102]–[103]).

Thus, to apply Kafkaris in Wellington, the House had to answer two questions: (1) whether the life sentence imposed in Missouri was reducible both de jure and de facto, and (2) if it was irreducible, would this amount to a violation of Article 3 ECHR, even though the European Court had held that this “may raise an issue” under this Article, thus implying that an irreducible life sentence would not necessarily infringe it. In the opinion of Lord Hoffmann, at [34], who delivered the leading speech, though the possibility of executive clemency for the appellant in Missouri was remote, that did not render his eventual life sentence irreducible anymore than it did in Kafkaris. Their Lordships unanimously agreed (Lord Scott at [37]; Baroness Hale at [48]; Lord Carswell at [61]; Lord Brown at [79], though expressing some doubts). Lord Hoffmann further held that, even if the life sentence was irreducible, this did not necessarily mean that it ipso facto infringed upon Article 3, though it could indeed do so in the particular circumstances of a given case (at [19]). Their Lordships again agreed (Lord Scott at [43]–[47]; Baroness Hale at [48]; Lord Carswell at [60]; Lord Brown at [81]).

This brings us to the second major issue in Wellington. Assuming that the life sentence was irreducible, and that an irreducible life sentence was not a per se violation of Article 3, the question still remained whether such a sentence would constitute a violation on the particular facts. At this point the extradition setting becomes relevant. Lord Hoffmann invoked a dictum of the European Court in Soering, where the Court stated, at [89], that

This, in Lord Hoffmann's view, meant that the desirability of extradition should be taken into account in assessing whether the punishment in question reached the “minimum level of severity” needed to violate Article 3 ECHR. Article 3 would apply only in attenuated and relative form – that a particular practice qualified as inhuman or degrading treatment if used in an ECHR member state would not necessarily mean that it should so qualify in an extradition setting (Wellington, at [20]–[33], [35]–[36]). Thus, even if an irreducible life sentence was a violation of Article 3 in a domestic setting, it need not be so in an extradition setting. This indeed proved to be the most contentious issue in the case, with two other Law Lords agreeing (Baroness Hale at [49]–[53]; Lord Carswell at [56]–[58]), and two disagreeing (Lord Scott at [37]–[42]; Lord Brown at [85]–[87]), with Lord Hoffmann.

To the present author, their Lordships' unanimous ruling that the life sentence in question was not irreducible, and that even if it was this would not amount to a per se violation of Article 3 seems unimpeachable – though the Strasbourg case law on the latter point might change in the future. The majority's relativistic approach to defining inhuman or degrading treatment under Article 3 is much more troubling. It is certainly true that Lord Hoffmann found support for his holding in Soering. It is likewise true that the issue whether rehabilitation or redemption must be a necessary component of any criminal punishment requires a value judgment, which courts are not equipped to make any better than (foreign) legislatures. But if there is any human right that must be universal, rather than culturally relative, then this is the prohibition of inhuman treatment. Lord Scott's critique of Lord Hoffmann's position, as well as his admonishment that the threshold for inhuman treatment consequently must be high to remain universal, thus seem more convincing.