CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 juillet 1989

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (PLENARY)             CASE OF SOERING v. THE UNITED KINGDOM   (Application no. 14038/88)             JUDGMENT       STRASBOURG   07 July 1989 In the Soering case [] , The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   J. Cremona ,   Mr   Thór Vilhjálmsson ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   B. Walsh ,   Sir   Vincent Evans ,   Mr   R. Macdonald ,   Mr   C. Russo ,   Mr   R. Bernhardt ,   Mr   A. Spielmann ,   Mr   J. De Meyer ,   Mr   J.A. Carrillo Salcedo ,   Mr   N. Valticos ,   Mr   S.K. Martens ,   Mrs   E. Palm ,   Mr   I. Foighel , and also of Mr M.-A. Eissen , Registrar , and Mr H. Petzold , Deputy Registrar , Having deliberated in private on 27 April and 26 June 1989, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The case was brought before the Court on 25 January 1989 by the European Commission of Human Rights ("the Commission"), on 30 January 1989 by the Government of the United Kingdom of Great Britain and Northern Ireland and on 3 February 1989 by the Government of the Federal Republic of Germany, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 14038/88) against the United Kingdom lodged with the Commission under Article 25 (art. 25) by a German national, Mr Jens Soering, on 8 July 1988. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the two governmental applications was to obtain a decision from the Court as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 6 and 13 (art. 3, art. 6, art. 13) of the Convention. 2.    In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyers who would represent him (Rule 30). 3.    The Chamber was constituted on 26 January 1989. It included ex officio Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), the Federal Republic of Germany at that stage not being a Party to the case, and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). The names of the other five members, namely Mr J. Cremona, Mrs D. Bindschedler-Robert, Mr R. Bernhardt, Mr N. Valticos and Mrs E. Palm, were drawn by lot by the President in the presence of the Registrar. On the same day the Chamber relinquished jurisdiction forthwith in favour of the plenary Court (Rule 50). 4.    Likewise on the same day, following requests for an interim measure made by the Commission and the applicant, the Court indicated to the United Kingdom Government that it would be advisable not to extradite the applicant to the United States of America pending the outcome of the proceedings before the Court (Rule 36). 5.    The President of the Court consulted, through the Registrar, the Agents of the two Government Parties, the Delegate of the Commission and the representative of the applicant on the need for a written procedure (Rules 37 § 1 and 50 § 3). Thereafter, in accordance with the President’s Orders and directions, the following documents were lodged at the registry: - on 28 March 1989, the memorial of the United Kingdom Government and the memorial of the applicant; - on 31 March 1989, the memorial of the German Government; - on 17 April 1989, the counter-memorial of the applicant; - on 18 April 1989, further affidavits submitted by the United Kingdom Government; - on 20 April 1989, further evidence submitted by the applicant. On 7 April 1989 the Secretary to the Commission had informed the Registrar that the Delegate did not propose to reply in writing to the memorials. 6.    After consulting, through the Registrar, those who would be appearing before the Court, the President directed on 3 February 1989 that the oral proceedings should open on 24 April 1989 (Rule 38). 7.    On 17 February 1989, having been asked to do so by the applicant, the President invited the Commission to produce to the Court all the written and oral pleadings submitted before the Commission. The Commission complied with this request on 22 February. 8.    By letter received on 28 March 1989, Amnesty International, London, sought leave to submit written comments (Rule 37 § 2). On 30 March the President granted leave subject to certain conditions. The comments were filed at the registry on 13 April. 9.    The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court: - for the Government of the United Kingdom   Mr M. Wood , Legal Counsellor,       Foreign and Commonwealth Office,   Agent ,     Sir Patrick Mayhew , Q.C., M.P., Attorney General,     Mr M. Baker , Barrister-at-Law,   Counsel ,     Miss E. Wilmshurst , Legal Secretariat       to the Law Officers,     Mr D. Bentley , Home Office,     Mr T. Cobley , Home Office,   Advisers ; - for the Government of the Federal Republic of Germany   Mr J. Meyer-Ladewig , Ministerialdirigent,       Federal Ministry of Justice,   Agent ,     Mr M. Grotz , Regierungsdirektor,       Federal Ministry of Justice,     Mrs S. Werner , Richterin am Amtsgericht,       Federal Ministry of Justice,   Advisers ; - for the Commission   Mr E. Busuttil ,   Delegate ; - for the applicant   Mr Colin Nicholls , Q.C.,   Counsel ,     Mr R. Spencer , Solicitor,     Mr F. Gardner , Solicitor,   Advisers . The Court heard addresses by Sir Patrick Mayhew for the United Kingdom Government, by Mr Meyer-Ladewig for the German Government, by Mr Busuttil for the Commission and by Mr Nicholls for the applicant. 10.    Various documents were filed by the United Kingdom Government, the German Government and the applicant on the day of the public hearing and on dates between 26 April and 15 June 1989. AS TO THE FACTS I.    PARTICULAR CIRCUMSTANCES OF THE CASE 11.    The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia. 12.    The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicant’s girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud. 13.    The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriff’s Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill them. They rented a car in Charlottesville and travelled to Washington where they set up an alibi. The applicant then went to the parents’ house, discussed the relationship with them and, when they told him that they would do anything to prevent it, a row developed during which he killed them with a knife. On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each. 14.    On 11 August 1986 the Government of the United States of America requested the applicant’s and Miss Haysom’s extradition under the terms of the Extradition Treaty of 1972 between the United States and the United Kingdom (see paragraph 30 below). On 12 September a Magistrate at Bow Street Magistrates’ Court was required by the Secretary of State for Home Affairs to issue a warrant for the applicant’s arrest under the provisions of section 8 of the Extradition Act 1870 (see paragraph 32 below). The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after serving a prison sentence for cheque fraud. 15.    On 29 October 1986 the British Embassy in Washington addressed a request to the United States authorities in the following terms: "Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed." 16.    On 30 December 1986 the applicant was interviewed in prison by a German prosecutor (Staatsanwalt) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as having said, inter alia, that "he had never had the intention of killing Mr and Mrs Haysom and ... he could only remember having inflicted wounds at the neck on Mr and Mrs Haysom which must have had something to do with their dying later"; and that in the immediately preceding days "there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth’s parents". The prosecutor also referred to documents which had been put at his disposal, for example the statements made by the applicant to the American police investigator, the autopsy reports and two psychiatric reports on the applicant (see paragraph 21 below). On 11 February 1987 the local court in Bonn issued a warrant for the applicant’s arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances. 17.    In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr James W. Updike Jr) stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested the applicant’s extradition to the United States in preference to the Federal Republic of Germany. 18.    On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6 October to 90 years’ imprisonment (45 years on each count of murder). 19.    On 20 May 1987 the United Kingdom Government informed the Federal Republic of Germany that the United States had earlier "submitted a request, supported by prima facie evidence, for the extradition of Mr Soering". The United Kingdom Government notified the Federal Republic that they had "concluded that, having regard to all the circumstances of the case, the court should continue to consider in the normal way the United States request". They further indicated that they had sought an assurance from the United States authorities on the question of the death penalty and that "in the event that the court commits Mr Soering, his surrender to the United States authorities would be subject to the receipt of satisfactory assurances on this matter". 20.    On 1 June 1987 Mr Updike swore an affidavit in his capacity as Attorney for Bedford County, in which he certified as follows: "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out." This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured. During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning to provide any further assurances and intended to seek the death penalty in Mr Soering’s case because the evidence, in his determination, supported such action. 21.    On 16 June 1987 at the Bow Street Magistrates’ Court committal proceedings took place before the Chief Stipendiary Magistrate. The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular, evidence was given of the applicant’s own admissions as recorded in the affidavit of the Bedford County police investigator (see paragraph 13 above). On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist (report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman. The psychiatric report concluded: "There existed between Miss Haysom and Soering a ‘folie à deux’, in which the most disturbed partner was Miss Haysom. ... At the time of the offence, it is my opinion that Jens Soering was suffering from [such] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts. The psychiatric syndrome referred to as ‘folie à deux’ is a well-recognised state of mind where one partner is suggestible to the extent that he or she believes in the psychotic delusions of the other. The degree of disturbance of Miss Haysom borders on the psychotic and, over the course of many months, she was able to persuade Soering that he might have to kill her parents for she and him to survive as a couple. ... Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss Haysom’s view of her life and the influence of her parents. ... In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an abnormality of mind which, in this country, would constitute a defence of ‘not guilty to murder but guilty of manslaughter’." Dr Bullard’s conclusions were substantially the same as those contained in an earlier psychiatric report (dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital), which was not however put before the Magistrates’ Court. The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of State’s order for his return to the United States. 22.    On 29 June 1987 Mr Soering applied to the Divisional Court for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review. On 11 December both applications were refused by the Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson). In support of his application for leave to apply for judicial review, Mr Soering had submitted that the assurance received from the United States authorities was so worthless that no reasonable Secretary of State could regard it as satisfactory under Article IV of the Extradition Treaty between the United Kingdom and the United States (see paragraph 36 below). In his judgment Lord Justice Lloyd agreed that "the assurance leaves something to be desired": "Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That must presumably mean an assurance by or on behalf of the Executive Branch of Government, which in this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution." Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd stated: "The Secretary of State has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for Soering’s surrender. Other factors may well intervene between now and then. This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made." As a supplementary reason, he added: "Secondly, even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the Wednesbury sense, see paragraph 35 below.) 23.    On 30 June 1988 the House of Lords rejected the applicant’s petition for leave to appeal against the decision of the Divisional Court. 24.    On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his discretion not to make an order for the applicant’s surrender under section 11 of the Extradition Act 1870 (see paragraph 34 below). This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicant’s surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below). 25.    On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early November 1988 under the special regime applied to suicide-risk prisoners. According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh), the applicant’s dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrist’s report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life. 26.    By a declaration dated 20 March 1989 submitted to this Court, the applicant stated that should the United Kingdom Government require that he be deported to the Federal Republic of Germany he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect. II.    RELEVANT DOMESTIC LAW AND PRACTICE IN THE UNITED KINGDOM A. Criminal law 27.    In England murder is defined as the unlawful killing of a human being with malice aforethought. The penalty is life imprisonment. The death penalty cannot be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965, section 1). Section 2 of the Homicide Act 1957 provides that where a person kills another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts in doing the killing. A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter. 28.    English courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings. Consequently, neither the applicant, as a German citizen, nor Elizabeth Haysom, a Canadian citizen, was or is amenable to criminal trial in the United Kingdom. B. Extradition 29.    The relevant general law on extradition is contained in the Extradition Acts 1870-1935. 30.    The extradition arrangements between the United Kingdom and the United States of America are governed by the Extradition Treaty signed by the two Governments on 8 June 1972, a Supplementary Treaty signed on 25 June 1982, and an Exchange of Notes dated 19 and 20 August 1986 amending the Supplementary Treaty. These arrangements have been incorporated into the law of the United Kingdom by Orders in Council (the United States of America (Extradition) Order 1976, S.I. 1976/2144 and the United States of America (Extradition) (Amendment) Order 1986, S.I. 1986/2020). By virtue of Article I of the Extradition Treaty, "each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [specified in the Treaty and including murder], committed within the jurisdiction of the other Party". 31.    Extradition between the United Kingdom and the Federal Republic of Germany is governed by the Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals, as reapplied with amendments by an Agreement signed at Bonn on 23 February 1960 and as further amended by an Exchange of Notes dated 25 and 27 September 1978. These agreements have been incorporated into the law of the United Kingdom by Orders in Council (the Federal Republic of Germany (Extradition) Order 1960, S.I. 1960/1375 and the Federal Republic of Germany (Extradition) (Amendment) Order 1978, S.I. 1978/1403). 32.    After receipt of an extradition request, the Secretary of State may, by order, require a magistrate to issue a warrant for the arrest of the fugitive criminal (Extradition Act 1870, sections 7 and 8). Extradition proceedings in the United Kingdom consist in an extradition hearing before a magistrate. Section 10 of the Extradition Act 1870 provides that if "such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged". A magistrate must be satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima facie case must be made out against him. "The test is whether, if the evidence before the magistrate stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty" (Schtraks v. Government of Israel [1964] Appeal Cases 556). 33.    Section 11 of the Extradition Act 1870 provides that decisions taken in committal proceedings may be challenged by way of application for habeas corpus. In practice, such application is made to a Divisional Court and, with leave, to the House of Lords. Habeas corpus proceedings are primarily concerned with checking that the magistrate had jurisdiction to hear the case; that there was evidence before him which could justify the committal; that the offence is an extradition crime which is not of a political character; and that there is no bar on other grounds to surrender. Section 12 of the 1870 Act provides for the release of a prisoner, if not surrendered, at the conclusion of such proceedings or within two months of committal unless sufficient cause is shown to the contrary. 34.    Furthermore, under section 11 of the 1870 Act the Secretary of State enjoys a discretion not to sign the surrender warrant (Atkinson v. United States [1971] Appeal Cases 197). This discretion may override a decision of the courts that a fugitive should be surrendered, and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of State for that purpose. In considering whether to order the fugitive’s surrender, the Secretary of State is bound to take account of fresh evidence which was not before the magistrate (Schtraks v. Government of Israel, loc. cit.). 35.    In addition, it is open to the prisoner to challenge both the decision of the Secretary of State rejecting his petition and the decision to sign the warrant in judicial review proceedings. In such proceedings the court may review the exercise of the Secretary of State’s discretion on the basis that it is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and Others v. Minister for the Civil Service [1984] 3 All England Law Reports 935). Irrationality is determined on the basis of the administrative-law principles set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223 (the so-called "Wednesbury principles" of reasonableness). The test in an extradition case would be that no reasonable Secretary of State could have made an order for return in the circumstances. As the judgment of Lord Justice Lloyd in the Divisional Court in the present case shows (see paragraph 22 above), the reliance placed by the Secretary of State on any assurance given by the requesting State may be tested to determine whether such reliance is within the confines of "reasonableness". According to the United Kingdom Government, on the same principle a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one which no reasonable Secretary of State could take. In R v. Home Secretary, ex parte Bugdaycay [1987] 1 All England Law Reports 940 at 952, a House of Lords case concerning a refusal to grant asylum, Lord Bridge, while acknowledging the limitations of the Wednesbury principles, explained that the courts will apply them extremely strictly against the Secretary of State in a case in which the life of the applicant is at risk: "Within those limitations the court must, I think, be entitled to subject an administrative decision to the most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and, when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny." Lord Templeman added (at page 956): "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process." However, the courts will not review any decision of the Secretary of State by reason of the fact only that he failed to consider whether or not there was a breach of the European Convention on Human Rights (R v. Secretary of State, ex parte Kirkwood [1984] 1 Weekly Law Reports 913). In addition, the courts have no jurisdiction to issue interim injunctions against the Crown in judicial review proceedings (Kirkwood, ibid., and R v. Secretary of State for Transport, ex parte Factortame Ltd and Others, The Times, 19 May 1989). 36.    There is no provision in the Extradition Acts relating to the death penalty, but Article IV of the United Kingdom-United States Treaty provides: "If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out." 37.    In the case of a fugitive requested by the United States who faces a charge carrying the death penalty, it is the Secretary of State’s practice, pursuant to Article IV of the United Kingdom-United States Extradition Treaty, to accept an assurance from the prosecuting authorities of the relevant State that a representation will be made to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should be neither imposed no carried out. This practice has been described by Mr David Mellor, then Minister of State at the Home Office, in the following terms: "The written undertakings about the death penalty that the Secretary of State obtains from the Federal authorities amount to an undertaking that the views of the United Kingdom will be represented to the judge. At the time of sentencing he will be informed that the United Kingdom does not wish the death penalty to be imposed or carried out. That means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases. It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances." (Hansard, 10 March 1987, col. 955) There has, however, never been a case in which the effectiveness of such an undertaking has been tested. 38.    Concurrent requests for extradition in respect of the same crime from two different States are not a common occurrence. If both requests are received at the same time, the Secretary of State decides which request is to be proceeded with, having regard to all the facts of the case, including the nationality of the fugitive and the place of commission of the offence. In this respect Article X of the Extradition Treaty between the United Kingdom and the United States provides as follows: "If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offence or for different offences, the requested Party shall make its decision, in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State." III.   RELEVANT DOMESTIC LAW IN THE COMMONWEALTH OF VIRGINIA A. The law relating to murder 39.    The relevant definition and classification of murder and sentencing for murder are governed by the Code of Virginia of 1950, as amended, and the decided cases in the State and Federal courts. 40.    Section 18.2-31 of the Virginia Code provides that eight types of homicide constitute capital murder, punishable as a Class 1 felony, including "the wilful, deliberate and premeditated killing of more than one person as a part of the same act or transaction" (sub-section (g)). The punishment for a Class 1 felony is "death or imprisonment for life" (Virginia Code, section 18.2-10(a)). Except in the case of murder for hire, only the "triggerman", that is the actual perpetrator of the killing, may be charged with capital murder (Johnston v. Commonwealth, 220 Virginia Reports (Va.) 146, 255 South Eastern Reporter, Second Series (S.E.2d) 525 (1979)). Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment (Virginia Code, sections 18.2-10(b), (c) and 18.2-32). 41.    In most felony trials, including trials for capital murder, the defendant is guaranteed trial by jury. The defendant may waive this right but does not often do so. B. Sentencing procedure 42.    The sentencing procedure in a capital murder case in Virginia is a separate proceeding from the determination of guilt. Following a determination of guilt of capital murder, the same jury, or judge sitting without a jury, will forthwith proceed to hear evidence regarding punishment. All relevant evidence concerning the offence and the defendant is admissible. Evidence in mitigation is subject to almost no limitation, while evidence of aggravation is restricted by statute (Virginia Code, section 19.2-264.4). 43.    Unless the prosecution proves beyond a reasonable doubt the existence of at least one of two statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a death sentence. "Future dangerousness" exists where there is a probability that the defendant would commit "criminal acts of violence" in the future such as would constitute a "continuing serious threat to society" (Virginia Code, section 19.2-264.2). "Vileness" exists when the crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" (Virginia Code, ibid.). The words "depravity of mind" mean "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated battery" mean a battery which, "qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), certiorari denied, 441 United States Supreme Court Reports (U.S.) 967 (1979)). Proof of multiple wounds sustained by the victim, particularly a neck wound, which even considered alone, constituted an aggravated battery in the light of the savage, methodical manner in which it was inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the test of "vileness" under this section (Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, certiorari denied, 106 Supreme Court Reporter (S.Ct.) 339, 88 United States Supreme Court Reports, Lawyers’ Edition, Second Series (L.Ed.2d) 324 (1985)). 44.    The imposition of the death penalty on a young person who has reached the age of majority - which is 18 years (Virginia Code, section 1.13.42) - is not precluded under Virginia law. Age is a fact to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, certiorari denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)). 45.    Facts in mitigation are specified by statute as including but not being limited to the following: "(i) the defendant has no significant history of prior criminal activity, or (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, or (iii) the victim was a participant in the defendant’s conduct or consented to the act, or (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, or (v) the age of the defendant at the time of the commission of the capital offence" (Virginia Code, section 19.2-264.4B). 46.    In a case of trial by jury, the jury in a capital murder case has the duty to consider all evidence relevant to sentencing, both favourable and unfavourable, before fixing punishment. In particular, a jury may sentence a defendant to death only after having considered the evidence in mitigation of the offence (Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), certiorari denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)). Furthermore, unless the jury is unanimous the sentence cannot be death but must be life imprisonment (Virginia Code, section 19.2-264.4). Even if one or more of the statutory aggravating circumstances are shown, the sentencer still remains at liberty to fix a life sentence instead of death in the light of the mitigating circumstances and even for no reason other than mercy (Smith v. Commonwealth, loc. cit.). 47.    Following a sentence of death, the trial judge must order the preparation of an investigative report detailing the defendant’s history and "any and all other relevant facts, to the end that the court may be fully advised as to whether the penalty of death is appropriate and just"; after consideration of the report, and upon good cause shown, the judge may set aside the sentence of death and impose a life sentence (Virginia Code, section 19.2-264.5). 48.    Following a moratorium consequent upon a decision of the United States Supreme Court (Furman v. Georgia, 92 S.Ct. 2726 (1972)), imposition of the death penalty was resumed in Virginia in 1977, since which date seven persons have been executed. The means of execution used is electrocution. The Virginia death penalty statutory scheme, including the provision on mandatory review of sentence (see paragraph 52 below), has been judicially determined to be constitutional. It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer’s discretion (Smith v. Commonwealth, loc. cit.; Turnver v. Bass, 753 Federal Reporter, Second Series (F.2d) 342 (4th Circuit, 1985); Briley v. Bass, 750 F.2d 1238 (4th Circuit, 1984)). The death penalty under the Virginia capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection (Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), certiorari denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980)). The Supreme Court of Virginia rejected the submission that death by electrocution would cause "the needless imposition of pain before death and emotional suffering while awaiting execution of sentence" (ibid.). C. Insanity, mental disorders and diminished responsibility 49.    The law of Virginia generally does not recognise a defence of diminished capacity (Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985)). 50.    A plea of insanity at the time of the offence is recognised as a defence in Virginia and, if successful, is a bar to conviction. Such a plea will apply where the defendant knows that the act is wrong but is driven by an irresistible impulse, induced by some mental disease affecting the volitive powers, to commit it (Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952) and Godley v. Commonwealth, 2 Virginia Court of Appeals Reports (Va. App.) 249 (1986)) or where he does not understand the nature, character and consequences of his act or is unable to distinguish right from wrong (Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)). Where no insanity defence is interposed, the defendant’s mental condition is only relevant at the guilt stage in so far as it might be probative of a fact in issue, for example premeditation at the time of the killing (Le Vasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), certiorari denied, 464 U.S. 1063, 104 S.Ct 744, 79 L.Ed.2d 202 (1984)). 51.    In a capital murder trial, the defendant’s mental condition at the time of the offence, including any level of mental illness, may be pleaded as a mitigating factor at the sentencing stage. Evidence on this may include, but is not limited to, showing that the defendant was under the influence of extreme mental or emotional disturbance or that at the time of the offence his capacity to appreciate the criminality of his conduct was significantly impaired (Virginia Code, section 19.2-264.4B - see paragraph 45 above). Additionally, indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history, character and mental condition with a view to establishing factors in mitigation (Virginia Code, section 19.2-264.3:1). Upon presentation of evidence of the defendant’s mental state, the sentencer may elect to impose life imprisonment rather than the death penalty. D. Appeals in capital cases 52.    The Supreme Cou