CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 3 novembre 2022

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display:inline-block } .s7DB8BC41 { width:183.09pt; display:inline-block } .sC986E16F { font-family:Arial; color:#ffffff } .s2DF49AA6 { width:24.54pt; display:inline-block } .s6A14C109 { width:143.42pt; display:inline-block } .sA8208715 { width:9.2pt; display:inline-block } .s7BF29C1E { width:139.76pt; display:inline-block }   GRAND CHAMBER CASE OF SANCHEZ-SANCHEZ v. THE UNITED KINGDOM (Application no. 22854/20)     JUDGMENT   Art 3 • No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s extradition to, and conviction in, the USA • Contracting States not to be held responsible under the Convention for deficiencies in the system of a third state when measured against the full Vinter and Others standard comprising both a substantive obligation and procedural safeguards • Court’s judgment in Trabelsi v.   Belgium overruled • Adapted two-stage approach developed for extradition cases • 1)   Assessment whether the applicant has adduced evidence capable of proving that there were substantial grounds for believing that, in the event of conviction, there was a real risk of a sentence of life imprisonment without parole • 2)   Assessment whether, as from the moment of sentencing, there is a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other ground for release based on his or her behaviour or other relevant personal circumstances • Availability of procedural safeguards for serving “whole life prisoners” in the requesting State not a prerequisite for compliance by the sending Contracting State with Art   3 • Applicant not facing a mandatory sentence of life imprisonment   STRASBOURG 3 November 2022   This judgment is final but it may be subject to editorial revision. In the case of Sanchez-Sanchez v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President   Jon Fridrik Kjølbro,   Síofra O’Leary,   Georges Ravarani,   Marko Bošnjak,   Krzysztof Wojtyczek,   Yonko Grozev,   Alena Poláčková,   Tim Eicke,   Arnfinn Bårdsen,   Erik Wennerström,   Raffaele Sabato,   Saadet Yüksel,   Anja Seibert-Fohr,   Peeter Roosma,   Ana Maria Guerra Martins,   Ioannis Ktistakis , judges , and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 24 February 2022 and 21   September 2022, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 22854/20) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Mexican national, Mr   Ismael   Sanchez-Sanchez (“the applicant”), on 11 June 2020. 2.     The applicant was represented by Mr R. Sahota of Berkeley Square Solicitors, a lawyer practising in London. The Government of the United Kingdom (“the Government”) were represented by their Agent, Mr   James   Gaughan of the Foreign, Commonwealth and Development Office. 3.     The applicant alleged that his extradition to the United States of America (“US”) would violate Article 3 of the Convention because, if convicted of the charges against him, he would be at risk of receiving a sentence of life imprisonment without the possibility of parole. 4.     On 12 June 2020 the Government were given notice of the application. 5.     A hearing took place in public in the Human Rights Building, Strasbourg, on 23 February 2022. There appeared before the Court: (a)     for the Government Mr   F. Janeczko ,   Agent , Mr   D. Perry QC , Ms   V. Ailes,   Counsel, (b)     for the applicant Mr   D. Josse QC Mr   B. Keith,   Counsel , Mr   R. Sahota,   Adviser.   The Court heard addresses by Mr Perry QC, Mr Josse QC and Mr Keith. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant, who was born in 1968, is currently detained in HMP   Wandsworth. 7 .     He was arrested in the United Kingdom on 19   April 2018 pursuant to a request from the US. According to information provided by the US   Department of Justice, he was believed to have been the joint head of a Mexico-based drug trafficking organisation who supervised and managed the work of US-based conspirators to distribute drugs in Atlanta, Georgia. 8 .     The extradition request related to the following four offences: Conspiracy to possess with intent to distribute marijuana, heroin and fentanyl (maximum sentence of life imprisonment, with a mandatory minimum sentence of twenty years imprisonment); Aiding and abetting the possession with intent to distribute marijuana (maximum sentence of life imprisonment, with a mandatory minimum sentence of ten years imprisonment); Aiding and abetting the possession with intent to distribute heroin and fentanyl (maximum sentence of life imprisonment, with a mandatory minimum sentence of twenty years imprisonment); Conspiracy to import marijuana, heroin and fentanyl in to the US (maximum sentence of life imprisonment, with a mandatory minimum sentence of ten years imprisonment). 9 .     These charges arose from the shipment of 2,613 kilograms of marijuana to a warehouse in Atlanta, Georgia, which was seized in January 2017, and the seizure of fourteen kilograms of fentanyl-laced heroin and about 430   grams of fentanyl from an apartment in Sandy Springs, Georgia which was used by the conspirators to store drugs and money. The first charge on the indictment indicated that a co-conspirator had died as a result of using the fentanyl. According to the US Department of Justice, as far as the US is aware the applicant has no prior convictions. 10 .     The extradition hearing was conducted before the District Judge on 24   January 2019 ( Government of the United States of America v. Ismael Sanchez-Sanchez ). The applicant argued that his extradition would breach his rights under Article 3 of the Convention due to the conditions of pre-trial and any post-conviction detention, and because there was a real risk that he would be sentenced to life imprisonment without parole. 11.     The District Judge did not consider that the applicant had established a real risk of a breach of Article 3 as a result of the conditions of pre-trial or post-conviction detention. 12.     In respect of his complaint concerning the risk of a life sentence without parole, the applicant relied on Trabelsi v. Belgium , no. 140/10 ECHR   2014 (see paragraph 90 below). The District Judge, however, considered herself bound by the domestic decision in R   (Harkins) v. Secretary of State for the Home Department [2014] EWHC   3609 (Admin) (see paragraphs   35 ‑ 47 below), which had fully analysed all the authorities, including Trabelsi . According to R(Harkins) , the mere imposition of a life sentence on an adult offender was not contrary to Article 3 of the Convention; provided that the sentence was not grossly disproportionate, the issue was whether it was “irreducible”. An irreducible life sentence might raise an issue under Article 3 of the Convention, but that Article would be satisfied where national law afforded the possibility of review, with a view to commutation, remission, terminal or conditional release of a prisoner. It was for the State to decide how a review mechanism operated, so long as the terms were sufficiently clear to the prisoner at the outset. An Article 3 issue would only arise when it could be shown that continued imprisonment could no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation) or the sentence was irreducible de facto and de jure . In R(Harkins) the court had interpreted Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts) as meaning that if at the outset a mandatory life sentence was grossly disproportionate or irreducible then the prisoner was not obliged to serve an indeterminate number of years before complaining that the sentence was not Article 3 compliant. 13 .     As for the likelihood that the applicant would receive a life sentence without parole, the parties agreed that the starting point for determining any sentence would be the US Sentencing Guidelines. There were various factors for a court to consider in determining whether to sentence within or below the sentencing range; the guidelines were therefore advisory only. The District Judge, having regard to the evidence before the court, noted that in 2017 48% of the 66,873 sentences handed out by the US courts were below the recommended range in the Sentencing Guidelines, and life sentences were imposed in only 0.3% of cases. Life sentences were rare in drug trafficking cases, having been imposed in fewer than one third of drug trafficking cases in 2013 and as of January 2015 only 1.1% of federal sentenced offenders in the Federal Bureau of Prisons were serving de facto sentences of life imprisonment. The District Judge referred to the evidence of the Assistant United States Attorney, who stated that the applicant was unlikely to receive a life sentence on any count, and it was less likely that he would receive consecutive sentences. He was therefore likely to receive a sentence that provided for his release before his death. There would be a number of opportunities to seek leniency or a reduced sentence, for example by pleading guilty, and even if he were sentenced to life without parole US   law provided for opportunities to seek a reduction in sentence. These included a statutory right of appeal, an application for executive clemency, and a request for compassionate release. 14 .     The applicant’s expert, an experienced US lawyer, agreed that the applicant was likely to receive concurrent rather than consecutive sentences. However, he pointed out that according to a February 2015 report by the US   Sentencing Commission, entitled “Life Sentences in the Federal System”, there was usually a requirement that someone had died as a result of the crime before a life sentence was imposed. As there was an allegation that one of the applicant’s co-conspirators died as a result of a fentanyl overdose, it was more likely that the prosecution would request a life sentence. 15 .     On the facts of the case at hand, the District Judge found 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. It was not possible to determine what sentence he would receive if convicted, although he was likely to receive concurrent rather than consecutive sentences, if convicted of more than one offence. The sentencing process gave discretion to the sentencing judge and the sentencing guidelines were not the only relevant factor. The applicant would also have the right to make representations to the judge. Nonetheless, given the alleged offences, including the fact that one of the applicant’s co ‑ conspirators had died from a fentanyl overdose, 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. The District Judge did not take into account the possible reduction of sentence due to a guilty plea or provision of assistance or information to the US   authorities. 16 .     The District Judge 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 his likely sentence if he were convicted. 17.     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. 18.     On 23 April 2019 the Secretary of State ordered the applicant’s extradition. 19.     The applicant’s appeal was heard by the High Court on 20   February 2020 ( Sanchez v. Government of the United States of America [2020] EWHC   508). With regard to his reliance on Trabelsi , the High Court considered itself bound by the decision of the House of Lords in R   (Wellington) v. Secretary of State for the Home Department [2009] 1   AC   335 (see paragraphs 26-34 below) to hold that to extradite a claimant to the US to face, if convicted, a life sentence without parole, would not breach Article 3 of the Convention. In Wellington (see paragraphs 26-34 below), the majority of the House of Lords had 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. 20.     In any event, the High Court held that it would follow R (Harkins) (see paragraphs 35-47 below) and Hafeez v. United States of America [2020] EWHC 155 (Admin) (see paragraphs 48-56 below). 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 (see paragraph 35 below). Like the High Court in R (Harkins) and Hafeez , it considered that following Trabelsi there had been no “clear and consistent” jurisprudence from the Court about the application of Article 3 to sentences of life imprisonment without parole in the extradition context. 21 .     The High Court was also satisfied that a life sentence would not be irreducible. In Hafeez (see paragraphs 48-56 below), 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. 22.     The High Court also rejected the applicant’s second ground of appeal, which concerned the conditions of pre-trial and post-conviction detention. 23 .     The applicant’s appeal was therefore dismissed and the Court of Appeal declined to certify a point of law of general public importance. RELEVANT LEGAL FRAMEWORK AND PRACTICE The United Kingdom Relevant legislation 24.     Under section 87(1) of the Extradition Act 2003 (“the 2003 Act”), the appropriate judge, on considering a request for extradition, must decide whether the requested person’s extradition would be compatible with his or her Convention rights within the meaning of the Human Rights Act 1998 (“the 1998 Act”). Under section 87(2) of the 2003 Act, if the judge decides this question in the negative he or she must order the person’s discharge. If the judge decides that question in the affirmative then, pursuant to section   87(3) of the 2003 Act, he or she must send the case to the Secretary of State for a decision on whether the person is to be extradited. According to section 103 of the 2003 Act the right of appeal against this decision is to the High Court. 25.     Pursuant to Section 6(1) of the 1998 Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority, under section 6 (3)(a) of the 1998 Act, includes any court or tribunal. Furthermore, pursuant to section 7(1)(b) of the 1998 Act, a person who claims that a public authority has acted (or proposes to act) in a way which is incompatible with the Convention may rely on the Convention provisions in any legal proceedings. Relevant case-law (a)    R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72 26 .     The US requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 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. 27.     In giving judgment in the High Court ([2007] EWHC 1109 (Admin)), Lord Justice Laws found that there were “powerful arguments of penal philosophy” which suggested that a risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention since “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.”     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. 28.     Mr Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on 10 December 2008. Relying on Soering v.   the   United Kingdom (7 July 1989, § 89, Series A no. 161), a majority of their Lordships (Lord Hoffmann, Baroness Hale and Lord Carswell) found that 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. However, insofar as Article 3 applied to inhuman and degrading treatment and not to torture, it was applicable only in a relativist form to extradition cases. 29.     For Lord Hoffmann, paragraph 89 of Soering made clear that: “...the 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.” 30.     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) SC 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, however, it were applied in the context of extradition, 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.” 31.     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. If no one could be expelled if he would then face the risk of torture, so too no one could be expelled if he would then face the risk of treatment or punishment which was properly to be characterised as inhuman or degrading. If a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country. 32.     However, despite these different views, 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 ([GC], no. 21906/04, ECHR 2008) . All five Law Lords also noted that, in Kafkaris , the Court had only said that the imposition of an irreducible life sentence might raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se , 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.” 33.     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. 34 .     Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all expressed doubts about Lord Justice Laws’ views on penal philosophy. In particular, 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. (b)    R(Harkins) v SSHD [2014] EWHC 3609 (Admin) 35 .     Mr Harkins was facing extradition to Florida having been accused of killing a man during an attempted armed robbery. He faced a mandatory sentence of life imprisonment without the possibility of parole. In January   2012 the Chamber, in Harkins and Edwards v. the United Kingdom (nos.   9146/07 and 32650/07, 17 January 2012), found that the applicant’s extradition would not breach his rights under Article 3; such a sentence would not be “grossly disproportionate” and Mr Harkins had not demonstrated that there was a real risk of treatment reaching the Article 3 threshold as a result of his sentence were he to be extradited. In this regard, he had not shown that, if convicted, his incarceration would serve no penological purpose, so no Article 3 issue could arise at that time. If a time was reached when his incarceration could be shown not to serve any legitimate penological purpose, it was “still less certain” that the Governor of Florida and Board of Executive Clemency would refuse to avail themselves of their powers to commute his sentence. 36.     Mr Harkins subsequently made further representations to the Secretary of State, which were rejected on 29 January 2013. On 20 June 2013 he issued an application to judicially review the Secretary of State’s decision. After the Grand Chamber’s judgment in Vinter and Others (cited above) on 9 July 2013, he substituted his judicial review grounds with a submission that the Grand Chamber’s judgment had radically changed the law on Article   3 so that his extradition, in circumstances where he faced a risk of a mandatory sentence of life imprisonment without the possibility of parole, would violate that Article. He sought to rely on expert evidence to the effect that there was virtually no prospect of release at all in cases where a life sentence without possibility of parole was imposed by a court in the state of Florida and, in any event, there was no dedicated review mechanism that accorded with the criteria laid down in Vinter and Others . 37 .     The High Court held a hearing on 9 and 10 July 2014 and reserved judgment. On 8 September 2014 the High Court was informed that the Court had given judgment in Trabelsi (cited above). After considering written submissions on the relevance of Trabelsi , the High Court held a further hearing on 29 October 2014. 38.     On 7 November 2014 the High Court refused permission to re-open proceedings in the Article 3 claim. The court identified two principal issues, namely the basis on which proceedings could be re-opened and whether the Court’s decisions in Vinter and Others and Trabelsi, cited above, had recast Convention law to such an extent that the applicant’s extradition would result in a violation of Article 3. 39.     In relation to the first issue, the High Court accepted that if there had been a change in the law such as fundamentally to affect the human rights of an applicant, that could, in sufficiently exceptional circumstances, give grounds for reopening a case that has already been determined. 40.     With respect to the second issue, the High Court decided that it was necessary to consider, inter alia , (i) whether Vinter and Others had changed the law on Article 3 in relation to mandatory sentences of life imprisonment without the possibility of parole in the domestic context; and (ii) the state of the law on Article 3 in the extradition context. 41.     First, the High Court held that in Vinter and Others the Grand Chamber had not changed Convention law on Article 3 in the domestic context. In particular, it had not changed the position that life sentences could be imposed on adult offenders for very serious offences and, provided that the sentence was not, by itself, “grossly disproportionate”, the relevant issue was whether it was “irreducible”. In respect of “irreducible” sentences, the Grand Chamber had reiterated the position stated in Kafkaris , namely, that an “irreducible” life sentence only “may” raise an issue under Article 3; and, in determining whether a life sentence is “irreducible”, Article 3 will be satisfied if national law afforded the possibility of review with a view to its commutation, remission, termination or the conditional release of the prisoner. The High Court accepted that in Vinter and Others the Grand Chamber had seemingly put the position more firmly when it stated that Article 3 “must be interpreted as requiring reducibility of the sentence” ( Vinter and Others , cited above, § 119) and that where domestic law does not provide for review “a whole life sentence will not measure up to the standards of Article 3” ( Vinter and Others , cited above, § 121). However, the Grand Chamber had decided that it was not for it to prescribe the form of such a review or whether it should be executive or judicial. Whilst the Grand Chamber had noted the “clear support” in international law for a dedicated reviewing mechanism guaranteeing a review after no more than twenty-five years, it did not make such a mechanism a requirement. 42.     Furthermore, the High Court understood paragraph 122 of Vinter and Others to mean that if a sentence was grossly disproportionate or had no mechanism for review, a prisoner could challenge it under Article 3 from the outset of his imprisonment. Harkins and Edwards was not inconsistent with that conclusion because it had only set out the point in time at which the actual violation would occur, namely once continued imprisonment could no longer be justified on any legitimate penological grounds. 43.     Finally, the High Court decided that the requirement for a “review” or “mechanism” and for the prisoner to know at the outset of his sentence what he must do to be considered for release and under what conditions, and when the review might be sought, was not revolutionary. It was inherent in the notion of reducibility and implicit in the Grand Chamber’s decision in Kafkaris . Furthermore, it had done nothing more than invert the statement in Harkins and Edwards that an Article 3 issue would only arise when it could be shown that there was no longer a penological justification for imprisonment and the sentence was irreducible de facto and de jure , since logically the requirement must be that a prisoner should know that he has to satisfy the relevant authority doing the review that his continued imprisonment can no longer be justified on penological grounds. The precise details of how he was to do this and the terms of the detailed criteria were for the individual State to decide, so long as those terms were sufficiently clear from the outset. 44.     Secondly, on the issue of extradition, the High Court observed that Harkins and Edwards was, at least prior to Trabelsi , the leading case. In Harkins and Edwards the Court had departed from Soering to the extent that it had decided that the reason for expulsion could not be weighed against the risk of ill-treatment when considering whether expulsion would violate Article 3. The Court had also clarified that in extradition cases no distinction could easily be drawn between torture and other forms of ill ‑ treatment. The Court had therefore rejected the House of Lords’ approach in Wellington . However, it had accepted a “relativist” approach to the extent that treatment that might violate Article 3 in a domestic context might not reach the minimum level of severity to do so in the extradition context. The tests of “gross disproportionality” and “reducibility” therefore remained as for the domestic context, subject to two important qualifications: Convention standards could not be imposed on non ‑ Contracting States, and as there were legitimate differences of approach to sentencing in different States, there was no absolute standard on whether a sentence was contrary to Article 3 or not. 45.     The High Court then considered Trabelsi (cited above). It noted that the Court had re-affirmed that an irreducible life sentence only “may” raise an issue under Article 3. Furthermore, it had reiterated the finding in Kafkaris (cited above) that a “possibility of review” was sufficient for compliance with Article 3. The Court had therefore set out no new principles in relation to Article 3 and extradition. 46.     In applying the relevant principles, the Court in Trabelsi had decided that the US authorities’ assurances on the possibility of sentence reduction were not sufficiently precise. The High Court considered that such a conclusion was contrary to all the Court’s previous statements about extradition and Article 3 and was difficult to reconcile with the Grand Chamber’s conclusion in Vinter and Others that it should not prescribe the form of review. 47.     Consequently, the High Court decided that the Court’s decision did not develop the principles set out in Vinter and Others , except insofar as it purported to lift and apply them to extradition. Although it appeared that the Court itself considered Vinter and Others to have further developed the principles established in Kafkaris , the High Court declined to agree. (c)    Hafeez v United States [2020] 1 WLR 48 .     Mr Hafeez was facing extradition to the US. He argued that his extradition would breach his rights under Article 3 of the Convention because there was a real risk that he would be sentenced to life imprisonment without the possibility of parole. 49.     The judge considered the possibility that the applicant might be sentenced to life imprisonment without parole. Mr Hafeez had relied on Trabelsi (cited above); however, the judge rejected his Article 3 challenge on this ground as he found that if he was sentenced to life imprisonment he would be able to make an application for compassionate release if there were “extraordinary and compelling circumstances” warranting a reduction in his sentence. In doing so, he indicated that “Having considered the detailed submissions made, I am satisfied that when a life sentence is imposed, the provisions of Article 3 will be satisfied in a domestic context if: (i)     It is de jure and de facto reducible (see Kafkaris v. Cyprus , no. 21906/04), (ii)     The relevant national law ‘affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner’ (per Vinter aforesaid) and (iii)     There is a prospect of release and a possibility of review which exist from the imposition of the sentence (see Murray above).” 50.     On 11 January 2019 the District Judge, being satisfied that all of the procedural requirements were met, and that none of the statutory bars to extradition applied, sent the case to the Secretary of State for a decision to be taken on whether to order extradition. 51.     Mr Hafeez’s appeal was heard by the High Court in December 2019 and judgment was handed down on 31 January 2020. With regard to his reliance on Trabelsi , the court declined to consider whether the evidence established that there was a real risk the applicant, if convicted, would receive a sentence of life imprisonment. It did note that this outcome was “by no means certain”, and pointed out that the US Government had provided evidence from the US Sentencing Commission which indicated that life sentences were rare in the federal system. 52.     The court accepted that if Mr Hafeez did receive a life sentence, there would be no provision for parole. He would therefore only have two routes to obtain a reduction or commutation of his sentence: an application for compassionate release; or a petition for Executive Clemency. For the former, the applicant would have to show that “extraordinary and compelling reasons” existed which would warrant a reduction of his sentence. The Sentencing Commission had identified four scenarios which would fulfil the definition of “extraordinary and compelling”: terminal illness; the prisoner was over 65 and experiencing a serious deterioration in his health due to the ageing process; and a change in family circumstances leading to the prisoner becoming the only available caregiver for a child or spouse. The final scenario was left undefined save that it was expressly stated that rehabilitation was not by itself an “extraordinary and compelling reason”. Rehabilitation could, however, be a relevant factor even though it could not by itself serve to reduce the sentence. 53.     Executive Clemency, on the other hand, was described as an “extraordinary remedy” and evidence indicated that judicial review of a clemency decision was “very rare” and “certainly not routine”. 54.     The court then addressed the Court’s case-law on the issue of life sentences without parole. It noted that in R(Harkins) v. Secretary of State for the Home Department (No. 2) [2015] 1 WLR 2975 the Divisional Court had declined to follow Trabelsi (cited above) since it considered that in that case the Court had ignored the basic principle set out in Kafkaris and Vinter   and   Others ; namely, that a State’s choice of a specific criminal justice system, including sentence review and release arrangements, was in principle outside the scope of the Court’s supervision, provided that the chosen system did not contravene the principles set out in the Convention. Secondly, in R(Harkins) the Divisional Court had indicated that even if detailed consideration of the review scheme in the US had been appropriate, on this issue the judgment in Trabelsi had been “wholly unreasoned”. The High Court agreed with this analysis. It therefore found that Trabelsi was not of assistance since: “insofar as it purports to reach a concluded view on the compatibility of life imprisonment without parole in the United States, it does so without any proper reasoning. Insofar as it departs from the established ECHR jurisprudence on the application of Article 3 in relation to removal to a non-contracting State, we prefer the rationale as set out in Harkins [and Edwards] v. UK .” 55.     It further rejected Mr Hafeez’s submission that any review scheme had to permit release purely by reason of the prisoner’s rehabilitative efforts. 56.     In light of this assessment, the court held that there would be no risk of a violation of Article 3 of the Convention on account of the possibility that Mr Hafeez would be sentenced to life imprisonment since any prisoner so sentenced would have two routes to seek a reduction of that sentence: compassionate release and Executive Clemency. His appeal was therefore dismissed. The United States of America Sentencing principles 57 .     The core sentencing principles under US law are found in Title 18, United States Code (“U.S.C.”), § 3553(a): “(a)     Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1)     the nature and circumstances of the offense and the history and characteristics of the defendant; (2)     the need for the sentence imposed— (A)     to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B)     to afford adequate deterrence to criminal conduct; (C)     to protect the public from further crimes of the defendant; and (D)     to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3)     the kinds of sentences available; (4)     the kinds of sentence and the sentencing range established for— (A)     the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— (i)     issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii)     that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or (B)     in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5)     any pertinent policy statement— (A)     issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (B)     that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. (6)     the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7)     the need to provide restitution to any victims of the offense.” Executive clemency 58.     The basis for commutation of sentence pursuant to Executive Clemency is found in Article 2(II) of the US Constitution, which empowers the President to “grant reprieves and pardons for offences against the United States, except in cases of Impeachment”. Guidance published by the US   Department of Justice reads as follows: “Commutation of sentence is an extraordinary remedy. Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness or old age and meritorious service rendered to the Government by the petitioner e.g. cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action. A combination of these and/or other equitable factors (such as demonstrated rehabilitation whilst in custody or exigent circumstances unforeseen by the court at the time of sentencing) may also provide a basis for recommending commutation in the context of a particular case.” Compassionate release 59.     Pursuant to Title 18, U.S.C., § 3582(c)(1)(A), courts are authorised to reduce a defendant’s term of imprisonment based on “extraordinary and compelling reasons.” When considering any motion under Title 18, U.S.C., §   3582(c)(1)(A) (commonly referred to as “compassionate release” motions), the court must find, after considering the factors set forth in §   3553(a), that “extraordinary and compelling reasons” warrant such a reduction and that any reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” 60.     Before December 2018, courts were authorised to consider motions under Title 18, U.S.C., § 3582(c)(1)(A) only if they were filed by the Director of the Bureau of Prisons. In December 2018, Congress amended that portion of § 3582 to authorise courts to also consider motions filed by offenders, in certain circumstances. Section 603 of The First Step Act 2018 amended Title   18, U.S.C., § 3582(c)(1)(A) to authorise “defendants” to file a motion for compassionate release “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 61.     According to a policy statement issued by the US Sentencing Commission, extraordinary and compelling reasons exist under any of the circumstances set forth below: (i)     The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). (ii)     The defendant is suffering from a serious physical or medical condition, suffering from a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes his ability to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover. (iii)     The defendant (a)   is at least 65 years old; (b)   is experiencing a serious deterioration in physical or mental health because of the aging process; and (c)   has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less. (iv)     The death or incapacitation of the caregiver of the defendant’s minor child or minor children. (v)     The incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner. (vi)     There exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described above. 62.     Pursuant to Title 28, U.S.C., § 994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason for purposes of this policy statement. Statistical information concerning the imposition of life sentences in the Federal System (a)    Report by the US Sentencing Commission, entitled “Life Sentences in the Federal System” (February   2015) 63 .     This report by the US Sentencing Commission provided, insofar as relevant: “Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to