133. For the first issue, the Court observes that all five Law Lords in Wellington found that, in a sufficiently exceptional case, an extradition would be in violation of Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. The Government, in their submissions to the Court, accepted that proposition. Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that “gross disproportionality” is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 59–61 above, the judgments of the Supreme Court of Canada at paragraph 73 above, and the further comparative materials set out at paragraphs 76– 81 above). Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. 134. The Court also accepts that, in a removal case, a violation would arise if the applicant were able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving State. However, as the Court has recalled at paragraph 129 above, the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States. Due regard must be had for the fact that sentencing practices vary greatly between States and that there will often be legitimate and reasonable differences between States as to the length of sentences which are imposed, even for similar offences. The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3. 135. The Court now turns to the second issue raised by the Court of Appeal and House of Lords. It considers that, subject to the general requirement that a sentence should not be grossly disproportionate, for life sentences it is necessary to distinguish between three types of sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment without the possibility of parole. 136. The first sentence is clearly reducible and no issue can therefore arise under Article 3. 137. For the second, a discretionary sentence of life imprisonment without the possibility of parole, the Court observes that normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) as the Grand Chamber stated inKafkaris, cited above, the sentence is irreducible de facto and de iure. 138. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 76 and 77 above). This is especially true in the case of a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified. However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 66 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 44 above). The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (Kafkaris, cited above). (..) The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.
Case of Harkins and Edwards v. the United Kingdom (Application nos. 9146/07 and 32650/07)
132. The Court takes note of the parties’ submissions as to whether the applicants’ likely sentences are irreducible within the meaning of that term used in Kafkaris. However, given the views expressed by the House of Lords in Wellington and the Court of Appeal in Bieber in respect of Kafkaris (summarised at paragraphs 34–42 and 69 above), the Court considers it necessary to consider first whether, in the context of removal to another State, a grossly disproportionate sentence would violate Article 3 and second, at what point in the course of a life or other very long sentence an Article 3 issue might arise.