Lewis Graham: Life Sentences under the Convention: Law or Politics?

Sometimes cases stand for far more than their strict ratio decidendi. The High Court’s recent ruling in Hafeez v Secretary of State for the Home Department is a prime example of such a case. The facts are simple. The US sought from the UK the extradition of Mr Hafeez, the alleged leader of an international crime syndicate and so-called “Sultan of drugs”. Unsurprisingly, Mr Hafeez resisted that motion, claiming that were he to be extradited, he would in all likelihood be sentenced to life without parole in the US, which would breach his rights under the ECHR. The UK, he argued, would be complicit in breaching his rights were it to proceed with the extradition. The High Court was to determine whether this was in fact the case.  

At least superficially, Mr Hafeez had the law on his side. It is now well established under the jurisprudence of the European Convention that subjecting an individual to life imprisonment without any prospect of release constitutes treatment contrary to Article 3 ECHR. Strasbourg has also previously held, in Trabelsi v Belgium, that life without parole in the US constitutes a sentence of this character, and as such it would ordinarily be contrary to Article 3 for a state to extradite an individual to the US if there would be a real risk they will receive that sentence. 

And yet, the High Court dismissed Mr Hafeez’s case. Notwithstanding any further national appeals, his extradition will now go ahead. Why? There are two answers – one legal, one political.

The legal answer goes something like this. Whilst acknowledging the force of Trabelsi, this authority should be considered alongside domestic High Court authority which suggests otherwise (as well as Wellington, a House of Lords authority to the same effect which was, curiously, barely mentioned in the Hafeez judgment). Although states are under an international law obligation to comply with Strasbourg judgments addressed to them, domestic courts not strictly bound, as a matter of law, to follow Strasbourg case law, and can choose to depart from it under certain circumstances, it was perfectly permissible for the court in this case to choose to follow the domestic court’s ruling over Strasbourg’s. Indeed, it is clear that the court in this case was far from satisfied with the state of the Strasbourg jurisprudence, feeling that it had been decided “without any proper reasoning” (at para 57) and ran contrary to prior authorities (para 53). For its own part, the court doubted that the sentencing system in the US would fall foul of Article 3 and was unconvinced with Strasbourg’s explanations to the contrary (para 58). Given these considerations, it was perfectly defensible to rule that the Strasbourg case law had been wrongly decided (see para 56) and that the High Court’s own view, rather than Strasbourg’s view, should guide the outcome of Mr Hafeez’s case.  

The political answer, on the other hand, goes as follows. A straightforward application of Trabelsi would require the court to uphold Hafeez’s Article 3 arguments. However, ruling against the government in this way would risk creating significant political upset. The judges in this case are keenly aware of the wider political context within which their decisions are made, characterised at least in part by an antagonism towards Europe, human rights law and judicial review more generally. It is all too easy to imagine the narrative which could have emerged: ‘human rights standards set by a foreign court used to override national foreign policy decisions, over the heads of powerless national judges’. Would that be a boat worth rocking? And indeed, regardless of the position at Strasbourg, any ‘wrong answer’ adopted by the domestic courts on this issue would be unlikely to face correction at the European level; after all, national courts had previously rebuffed Strasbourg on this issue before (see below). Antagonism from Strasbourg on this issue is even less likely at present given the current UK government’s marked hostility towards the Convention and the somewhat uncertain position of the Strasbourg Court in the UK’s vision of the future. It would be extremely unlikely that the Strasbourg judges would be in the mood to engage in another high-profile skirmish over life sentences at this point. The prospect of the summoning of any significant political will to defend a foreign drug-dealer from being extradited also seems implausible. As such, the UK judges used this case to restore some sense to the law, aligning it with a political position that would not raise alarm bells for national politicians, socking it to Strasbourg in the process.

Which of these two explanations is the most convincing? Unsurprisingly, neither are totally satisfactory on their own. Whilst it is true to say that the conclusion in Hafeez can, to some extent, be defended as consistent with one reading of the European case law, there are nonetheless some seriously questionable passages in the High Court’s judgment and it could be accused of adopting a selective selective citation of authorities. For example, it almost entirely neglects to mention Murray v the Netherlands, the leading case in the area, which not only imposes a more stringent standard than a number of earlier authorities, but it also explicitly approves of Trabelsi. the very case the court deems to have been wrongly decided in Hafeez. The court also notes, quite curiously, that since 2014, the US life sentence has never been disapproved of by the European Court (para 55) but fails to mention that, since no comparable case involving the US has been determined since that time, the life sentence has never been approved of either.

So is the High Court simply bending Strasbourg jurisprudence to suit its will? Not quite. Despite the fact that the Strasbourg jurisprudence on life sentences has been examined in multiple Grand Chamber judgments, the development of the law, and its application in individual cases, has been messy and has undoubtedly been shaped by political considerations itself. Following a number of early cases in which the court adopted a relatively lax approach to the ‘reducibility’ of life sentences, the court took one of its most significant strides forward in the case of Vinter, in which the court ultimately found that the UK’s life sentences regime breached the Convention. However, that bravery was short-lived; following a very terse judgment by a five-panel Court of Appeal, in Hutchinson the Grand Chamber effectively capitulated on the issue and held, notwithstanding a particularly noisy dissent, that the UK life tariff scheme did, in fact, operate compatibility with the Convention after all. This volte-face has not stopped the stringent standards established in Vinter from being applied to cases against other jurisdictions, especially, as I have noted elsewhere, to the countries of Eastern Europe. The saga has been said to exemplify ‘British exceptionalism’ when it comes to the Convention. That is debatable. But it does result in a mixed message being sent to national courts, including the High Court in the present case, about what the Convention requires in the context of life sentences.

Further, the court has been reluctant to conclusively adjudicate upon what Article 3 requires in the extradition context. As above, it had previously explicitly held that extradition to the US to face a sentence of life without parole would breach the Convention. The case was, as above, disparaged by the High Court in Hafeez. But the European Court had also ruled, remarkably, in two separate cases, Harkins and Ahmed, that the UK would not breach the Convention if it were to extradite individuals to the US to face life imprisonment. One key difference was that these two cases (establishing that extradition would not breach Article 3) were decided in 2012, before the court’s landmark ruling in Vinter. The more recent ruling in Trabelsi (establishing that extradition would breach Article 3) was handed down in 2014, after the court’s ruling in Vinter. The implication here, in one sense, is obvious: the law had developed thanks to the Court’s 2013 ruling; what would not breach the Convention in 2012 could do so in 2014. Frustratingly, however, the Court squandered the opportunity to clarify this timeline. When one of the parties involved in the earlier Harkins case applied to the Grand Chamber, it refused to re-examine his application on technical procedural grounds. The Court could have its cake and eat it: the more rigorous, authoritative standards of the recent case law could be preserved without having to risk antagonising the UK government. 

Given the nature of the Strasbourg case law, is it any wonder the High Court felt able to do what it did? If there are political considerations in play here, it is hardly irresponsible for the Court to take them into account given that it is being asked to apply case law which is itself guided substantially by the same political considerations. 

The High Court notes, for example, that the “fundamental principles” of the early Strasbourg case law, which impose less rigorous standards, have not been overruled or specifically discredited by later case law (see [48] and [55]), but does not draw attention to the significant developments the court has made in later jurisprudence. This approach can be criticised, but is it, in fact, out of step with the Strasbourg court itself, which has refused to examine the correctness of its older case law and has consistently signalled to the UK that it does not need to comply with these newer, stricter standards? Additionally, it could be said that the High Court may be stretching credulity by suggesting that there is no authoritative jurisprudence to draw upon regarding the US life sentence regime, but this, too, must be considered in light of Strasbourg’s reluctance to properly examine the issue.

Taking all of this into account, then, did the court uphold Mr Hafeez’s decision because it was the correct legal decision or was it motivated by political aims instead? The answer, of course, is both. The court reached the decision it did because it was both legally possible, and politically expedient for it to do so. This was almost inevitable due to the very nature of the case. Convention rights are notoriously vague and open-textured. Human rights adjudication requires judges to make determinations which are inherently value-laden and politically-sensitive in nature. Such ambiguity is only compounded when such decisions are made against the backdrop of a changing relationship between national and European courts. Even if it is universally thought to be proper (and it is not) that domestic judges should faithfully apply Strasbourg case law as precedent,  questions relating to the ambit of the law, its proper interpretation and the scope of any margin of appreciation will always grant domestic judges far greater wiggle room than is commonly acknowledged. The proper application of these issues cannot be determined through legal method alone.

The judgment shows that it is often not possible to identify where law ends and politics begins. This is something which both advocates for judicial restraint and those of us seeking to defend judicial discretion would do well to bear in mind.

Lewis Graham is a PhD student in law at Pembroke College, University of Cambridge.

(Suggested citation: L. Graham, ‘Life Sentences under the Convention: Law or Politics?’, U.K. Const. L. Blog (3rd April 2020) (available at https://ukconstitutionallaw.org/))