On October 24, 2006, a grand jury in Washington County, Maryland, U.S.A. indicted a Mr. Edwards (Applicant) on 11 counts, relating to the death of one J. Rodriguez, the non‑fatal shooting of T. Perry, and assault of a third man, S. Broadhead. The most serious charges are  murder in the first degree of Rodriguez; and  attempted murder in the second degree of Perry. The 3rd and 4th counts are alternatives to counts 1 and 2, charging the applicant with murder in the second degree of Rodriguez and attempted murder in the second degree of Perry.
Applicant, Rodriguez, Perry and Broadhead were visiting the apartment of a friend on the evening of July 23, 2006. Applicant began to argue with Rodriguez and Perry who had made fun of his small stature and feminine appearance. Applicant left the apartment and later returned with 3 other men. Broadhead told the police that, while the other men in the kitchen were restraining him, Applicant produced a handgun and went into the living room. Shots were then fired killing Rodriguez and injuring Perry with a non‑fatal gunshot wound to his head. Somehow Applicant fled the U.S. and ended up in the United Kingdom.
On January 21, 2007, U.K. authorities arrested Applicant pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003. In an affidavit of March 14, 2007, Mr. Joseph S. Michael, an attorney in the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of this case and the state charges against the Applicant. As to count I, he stated: “Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.”
The U.S. Embassy in London issued Diplomatic Note 12 in March 2007. It asked for Applicant’s extradition to the U.S. for trial. The Note specified that both Counts one and two carried a maximum penalty of life imprisonment, and that count two, attempted first‑degree murder, also carried a maximum penalty of life imprisonment.
Later that month, the Secretary of State certified that the extradition request was valid. In a decision given on April 16, 2007, the district judge, sitting at the City of Westminster Magistrates’ Court, ruled that the extradition could proceed. He held that, inter alia, Applicant’s extradition would not be incompatible with his rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 312 U.N.T.S. 221 as amended [ECPHR]. [It provides: “Article 3. Prohibition of Torture. No one shall be subjected to torture or to inhuman or degrading treatment.”]
The Maryland Criminal Code stated that it was up to the State of Maryland to seek the death penalty. The extradition request clearly declared that it would not do so. The District Judge accordingly sent the case to the U.K. Secretary of State for his decision as to whether the U.K. should extradite the Applicant to Maryland.
On June 5, 2007, the U.S. Embassy issued a further diplomatic note on Applicant’s case. It assured the U.K. Government that Applicant was not subject to the death penalty, that Maryland would not seek or carry out the death penalty upon his extradition to the United States, and that the Deputy State Attorney of the State of Maryland has assured the U.S. Federal Government of this decision.
Three weeks later, the U.K. Secretary of State ordered Applicant’s extradition. Applicant appealed to the High Court, inter alia, on the ground that a sentence of life imprisonment without the possibility of parole amounted to “inhuman or degrading treatment” in violation of ECPHR Article 3.
On July 26, 2007, in a second affidavit in support of the extradition, Mr. Michael provided further details of the potential sentences for first‑degree murder under Maryland law. He stated: “5.This particular case qualifies for a maximum penalty of life imprisonment under Maryland Ann. Criminal Law § 2‑201(b). The Death Penalty does not apply.”
Given the heinous nature of the instant case, which the State characterizes as a[n] ‘execution style’ homicide, which claimed one life, and seriously and permanently injured a second victim, the State anticipates that it will ask the Court to impose a life sentence without the possibility of parole under Maryland Criminal Law §2‑203 and §2‑304(a)(1).
In the present case, in the event that the State did in fact file its notice of intention to seek life without parole, the trial judge would be the sole sentencing authority. State law grants the judge the discretion to impose one of the following 3 types of sentence:  life without the possibility of parole;  life with the possibility of parole; or  life with the possibility of parole, with all but a certain number of years suspended, followed by up to 5 years of probation.
In Mr. Michael’s experience, “there is no way to accurately predict what sentence a defendant will face if convicted of first‑degree murder.” Mr. Michael added that a person convicted of first‑degree murder was entitled to a pre‑sentencing investigation. This involves a background report from the Department of Parole and Probation on the Defendant and includes information received from the surviving victims.
Convicted defendants also have the right to apply for review of the sentencing by the sentencing judge and thereafter for review by 3 other circuit judges. Mr. Michael also stated he was unprepared to offer an opinion on any mitigating factors which might affect Applicant’s sentence if a court convicts him of first‑degree murder.
Mr. Michael continued: “In general terms, the Washington County Circuit Court [the county where Applicant would be tried] has considered as mitigating factors several known attributes possessed by Applicant: youth and lack of serious criminal history. The single biggest mitigating factor in regard to whether a defendant receives life without parole would be an acceptance of responsibility upon the part of a given defendant.”
Before the U.K. High Court, Applicant accepted that the House of Lords’ ruling in Regina v. Lichniak [25 November 2002] [202 UKHL 47] precludes an appeal based on Article 3 of the ECPHR and conceded that it had to be dismissed. On July 27, 2007, the High Court therefore dismissed Applicant’s appeal on this ground, allowing only his appeal that count 10 of the indictment was not an extraditable offence. The Court also refused to certify to the House of Lords a point of law of general public importance.
On August 1, 2007, this Applicant lodged an application with the European Court of Human Rights (ECHR) and requested an interim measure to stay his extradition. On August 3, 2007 the President of the assigned Chamber decided to *574 apply Rule 39 of the Rules of Court. It therefore indicated to the Government of the United Kingdom that it should not extradite the Applicant until further notice. The ECHR then relates the various extradition arrangements between the United Kingdom and the United States. [Another Applicant named Harvey was considered along with Mr. Edwards but is not covered herein.]
- A seven‑ judge panel of the ECHR explains its rulings and their bases. “For [Mr. Edwards], the applicable bilateral treaty on extradition was the 1972 UK–USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 Treaty provided that extradition could be refused unless the requesting party gave assurances satisfactory to the requested party that the death penalty would not be carried out. II. For relevant U.K. law on article 3 and extradition: see Regina (on the application of Wellington) v. Secretary of State for the Home Department,  UKHL 72;  1 A.C. 335.
- “[In that case] [t]he United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on 3 counts of murder in the first degree. In his appeal against extradition, Mr. Wellington argued that his surrender would violate art. 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.”
- “In giving judgment in the High Court, Laws L.J. found that there were ‘powerful arguments of penal philosophy’ which suggested that risk of a whole‑life sentence without parole intrinsically violated Article 3 of the Convention. He observed: ‘The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self‑defence or just war; but retributive punishment is never enough to justify it.”
“Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence, the whole‑life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole‑life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for.”
“But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip‑service to the value of life; not to vouchsafe it. However, and ‘not without misgivings’, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.”
- “Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on December 10, 2008. Central to the appeal was at  of this Court’s judgment in Soering v. United Kingdom, (A/161) (1989) 11 E.H.R.R. 439; Times, July 8, 1989. There the Court stated that considerations in favour of extradition: ‘[m]ust also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.’”
- “A majority of their Lordships,[Lord Hoffmann, Baroness Hale and Lord Carswell,] found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill‑treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. Insofar as Article 3 applied to inhuman and degrading treatment and not to torture, however, it was applicable only in a relativist form to extradition cases.”
- “Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. United Kingdom, (22414/93) (1997) 23 E.H.R.R. 413; 1 B.H.R.C. 405; Times, November 28, 1996; in which the Court stated that: ‘It should not be inferred from the Court’s remarks [in] Soering that there is any room for balancing the risk of ill‑treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged.’ Lord Hoffmann stated: ‘In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture.”
“I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”
“For Lord Hoffmann, in Soering made clear that: ‘[T]he desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.’”
“He went on to state: ‘A relativist approach to the scope of Article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers, 2005 1 S.C. 229; 2004 S.L.T. 555; 2004 S.C.L.R. 558;  U.K.H.R.R. 881;  (2005) S.C. 229, that, in Scotland, the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of Article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If it were applied in the context of extradition, however, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”
- “A minority of their Lordships [Lord Scott and Lord Brown,] disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy (37201/06) (2009) 49 E.H.R.R. 30; 24 B.H.R.C. 123;  Imm. A.R. 519;  I.N.L.R. 621;  Crim. L.R. 898; ECHR (Grand Chamber) had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering.”
He explained “There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too 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.”
“That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries [(see para 27 of Lord Hoffmann’s opinion)] ¼ the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ (Soering, para 86) and Article 3 does not bar removal to non‑Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.”
“Nor is it to say that a risk of Article 3 ill‑treatment, the necessary pre‑condition of an Article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142: ‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill‑treatment ¼ in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof ¼ before ¼ finding *577 that the enforcement of removal from the territory would be contrary to Article 3 of the Convention.”
“As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’” Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.”
- “Despite these different views, however, none of the Law Lords found that the sentence likely to be imposed on Mr. Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus, (21906/04) (2009); 49 E.H.R.R. 35; 25 B.H.R.C. 591;  1 Prison L.R. 1; ECHR (Grand Chamber).”
“All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not per se constitute inhuman and degrading treatment in violation of Article 3, unless it were grossly or clearly disproportionate.”
“Lord Brown in particular noted: ‘Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber in Kafkaris would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating Article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that Article 3 may be engaged.’
“Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. Lord Brown, however, considered that, in a more compelling case, such as the mercy killing of a terminally‑ill relative, this Court: ‘[M]ight well judge the risk of ill‑treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on Article 3 grounds.”
- “Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Laws L.J.’s view that life imprisonment without parole was lex talionis. Lord Hoffmann, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence.”
- “Wellington’s application to this Court was struck out on October 5, 2010, the Applicant having indicated his wish to withdraw it. “ *578
* * * *
- “Applicant [Edwards] faces, at most, a discretionary sentence of life imprisonment without parole. Given that this sentence will only be imposed after consideration by the trial judge of all relevant aggravating and mitigating factors, and that it could only be imposed after the applicant’s conviction for a premeditated murder in which one other man was shot in the head and injured, the Court is unable to find that the sentence would be grossly disproportionate.”
- “Moreover, for the reasons it has given in respect of the first applicant, the Court considers that Applicant (Edwards) has not shown that incarceration in the United States would not serve any legitimate penological purpose, still less that, should that moment arrive, the Governor of Maryland would refuse to avail himself of the mechanisms which are available to him to reduce a sentence of life imprisonment without parole. ¼Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.
Alleged violation of Article 5 of the Convention
- The Court then considers the Applicant’s claim that there would be a violation of Article 5 of the Convention. “Applicant Edwards [also] submitted that, if the Court did not examine his complaint relating to his sentence under Article 3, then, alternatively, that issue could be examined under Article 5 which guarantees the right to liberty and security. In particular, Article 5(1)(a) and (4) provide: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ¼4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’”
- “This Court considers that, even assuming that this submission is intended to raise a separate issue from the complaint made under Article 3, it has been determined by its recent admissibility decision in Kafkaris v. Cyprus (No.2).  That application was introduced by Mr. Kafkaris following the Grand Chamber’s judgment in his case. He complained, inter alia, that, under Article 5(4), he was entitled to a further review of his detention, arguing that his original conviction by the Limassol Assize Court was not sufficient for the purposes of that provision.”
“He submitted that he had already served the punitive period of his sentence and, relying on Stafford v. United Kingdom, (46295/99) (2002) 35 E.H.R.R. 32; 13 B.H.R.C. 260;  Po. L.R. 181;  Crim. L.R Stafford. 828; (2002) 152 N.L.J. 880; Times, May 31, 2002. ECHR argued that new issues affecting the lawfulness of his detention had arisen. These included the Grand Chamber’s finding of a violation of Article 7, the Attorney General’s subsequent refusal to recommend a presidential pardon and the fact that, in habeas corpus proceedings, the Supreme Court had failed to consider factors such as his degree of dangerousness and rehabilitation.”
- “The Court rejected that complaint as manifestly ill‑founded. The Court found that the Assize Court had made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life. It was clear, therefore, that the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time.  The ‘new issues’ relied upon by the applicant could not be regarded as elements which rendered the reasons initially warranting detention obsolete or as new factors capable of affecting the lawfulness of his detention.”
“Nor could it be said that the Applicant’s sentence was divided into a punitive period and a security period as he claimed. Accordingly, the Court considered that the review of the lawfulness of the Applicant’s detention required under Article 5(4) had been incorporated in the conviction pronounced by the courts, no further review therefore being required.”
- “The Court considers the complaint made in the present cases to be indistinguishable from the complaint made in Kafkaris (No.2). It is clear from the provisions of Maryland law which are before the Court that any sentence of life imprisonment without parole would be imposed to meet the requirements of punishment and deterrence. Such a sentence would therefore be different from the *607 life sentence considered in Stafford, which the Court found was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness.”
“Consequently, as in Kafkaris (No.2), the Court is satisfied that, if convicted and sentenced to life imprisonment without parole, the lawfulness of Applicant’s detention required under Article 5(4) would be incorporated in the sentence imposed by the trial, and no further review would be required by this Article. Accordingly, this complaint is manifestly ill‑founded and must be rejected.”
Citation: [Mr. Edwards’ Application No. [9146/07 and 32650/07] [Harkins and] Edwards v. United Kingdom, (2012) 55 E.H.R.R. 19; 19 Times, 2/13/2012 (Eur. Ct. Hum. Rts. 2012).