Communicated on 12 June 2020
Published on 6 July 2020
FIRST SECTION
Application no. 22854/20
Ismail SANCHEZ-SANCHEZ
against the United Kingdom
lodged on 11 June 2020
STATEMENT OF FACTS
1. The applicant is a fifty-two year old man, born in Mexico on 29 May 1968. He was arrested at Heathrow Airport in the United Kingdom on 19 April 2018 pursuant to a request from the United States for his provisional arrest.
2. The charges in respect of which his extradition is sought are as follows:Conspiracy to possess with intent to distribute marijuana, heroin and fentanyl;Aiding and abetting the possession with intent to distribute marijuana;Aiding and abetting the possession with intent to distribute heroin and fentanyl;Conspiracy to import marijuana, heroin and fentanyl in to the USA.
3. The extradition hearing was conducted before the District Judge on 24 January 2019. The applicant argued inter alia that his extradition would breach his rights under Article 3 of the Convention because there was a real risk that post-conviction detention conditions would be inhuman and degrading; and there was a real risk that he would be sentenced to life imprisonment.
4. At the hearing, the parties agreed that, if convicted, it was likely that the applicant would be held in either a high-security prison or a medium-security prison overseen by the Federal Bureau of Prisons (“the FBP”). It was not possible to know where he would be held. Z.C., the applicant’s expert witness, gave evidence that as at 30 June 2016, the high-security prisons were 126 percent over capacity and the medium-security prisons 119 percent. He accepted that there was no evidence that the applicant needed mental health services.
5. Further information was provided by Mr. S., an official of the FBP. The FBP was confident that the applicant would be “appropriately and humanely housed”. Information was also provided by Mr. H., the Assistant United States Attorney charged with conduct of the matter, namely that there was no evidence either that the applicant needed mental health treatment, or that because he was older, prisoners would speculate that he was a sex offender.
6. The District Judge found that if the applicant were convicted, he would likely spend a substantial part of his sentence in a high or medium-security prison. He could be put in any FBP prison in the USA. She concluded that there was not enough evidence that the applicant would have less than three square metres of floor space meaning that there was not enough evidence to show a real risk of a breach of Article 3 on the ground of overcrowding alone. Nor did other conditions demonstrate that there was a real risk of inhuman or degrading treatment.
7. The District Judge then considered the law about sentences of life imprisonment and Article 3. She held that she did not need to decide how the authorities in R (Wellington) v. Secretary of State for the Home Department [2009] 1 AC 335 and Trabelsi v. Belgium, no. 140/10 ECHR 2014 were relevant. She said that she was bound by the decision in R (Harkins) v. Secretary of State for the Home Department [2014] EWHC 3609 (Admin), which had fully analysed all the authorities, including Trabelsi.
8. The parties agreed that if the applicant were convicted, his sentencing level would be Level 43 in the US Sentencing Guidelines, which has a sentence range of life imprisonment. While it was not possible to determine what sentence he would receive if convicted, the District Judge considered that he was unlikely to receive a sentence of life imprisonment on any count. Rather, he was likely to receive a sentence which provided for his early release before his death. The sentencing process gave discretion to the sentencing judge and the sentencing guidelines were not the only relevant factor. Nonetheless, the District Judge considered that there was a real possibility that the applicant would receive a sentence of life imprisonment. This sentence would not be grossly disproportionate given the alleged offending and the US sentencing process.
9. The Judge further held that any sentence of life imprisonment would not be irreducible. The applicant could apply for a presidential pardon or for compassionate release. The system had been assessed in Shaw v. USA [2014] EWHC 4654 (Admin) and was sufficiently clear. Therefore, the applicant had failed to show that there was a real risk of a breach of his Convention rights due to likely sentence if he were convicted.
10. On 25 February 2019 the District Judge sent the case to the Secretary of State for a decision to be taken on whether to order extradition.
11. On 23 April 2019 the Secretary of State ordered the applicant’s extradition.
12. The applicant’s appeal was heard by the High Court on 20 February 2020. With regard to the Trabelsi argument, the High Court considered itself bound by the decision of the House of Lords in Wellington to hold that to extradite a claimant to the United States of America to face, if convicted, a life sentence without parole, would not breach Article 3 of the Convention. In Wellington, the majority of the House of Lords concluded that, in an extradition context, Article 3 applied in a modified form which took account of the desirability of arrangements for extradition. The sentence of life imprisonment without parole was not so grossly disproportionate so as to infringe Article 3 in the extradition context.
13. In any event, the High Court held that it would follow R (Harkins) and Hafeez v. United States of America [2020] EWHC 155 (Admin). It did not consider itself bound to follow Trabelsi which, in light of the reasoning in R (Harkins) and Hafeez, was an unexplained departure from the Court’s approach in Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012. Like the High Court in R (Harkins) and Hafeez, it considered that following Trabelsi there was no “clear and consistent” jurisprudence about the application of Article 3 to sentences of life imprisonment without parole in the extradition context.
14. The High Court was also satisfied that the life sentence was not irreducible. In Hafeez, the court had described two routes by which a prisoner could seek a reduction in sentence under the US system: compassionate release, pursuant to Title 18 of the US Code, and executive clemency.
15. Further, the High Court held that there was no evidence about which prison the applicant would be detained in if he were convicted, or about the specific conditions in such a prison. The evidence presented by the applicant was nowhere near the threshold described in Purcell & Anor v. Public Prosecutor of Antwerp & Anor [2017] EWHC 1981 (Admin) and there was no need to seek further information from the Government of the USA, still less an assurance. The District Judge was not wrong to conclude that the applicant had not discharged the burden of proving that there were substantial grounds for believing that, if he were extradited to the USA, and if he were convicted, there was a real risk that the conditions of his detention would breach Article 3 of the Convention. He would at least have to adduce some evidence to show that there was a real risk that he would be detained in a prison in which he would have less than three metres square of floor space if he were in a multi-occupancy cell.
16. The applicant’s appeal was therefore dismissed.
QUESTION TO THE PARTIES
If the applicant were to be extradited to the United States of America, would there be a real risk that he would be subjected to inhuman and degrading punishment through the imposition of an “irreducible” life sentence? In particular, would his extradition, in circumstances where he risks the imposition of a life sentence without parole, be consistent with the requirements of Article 3 of the Convention (see in particular Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012, Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts) and Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts))?
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