Published on 13 December 2021

FOURTH SECTION

Application no. 34392/21 Jonah HORNE against the United Kingdom lodged on 12 July 2021 communicated on 24 November 2021

STATEMENT OF FACTS

The applicant, Mr Jonah Horne, a national of the United States of America, was born in 1995, and is currently in custody at HMP Maghaberry, Northern Ireland. He is represented before the Court by Mr R. Gillen (Gillen & Co Solicitors), a lawyer practising in Belfast/Banbridge, Northern Ireland.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 13 March 2017 the applicant was arrested pursuant to an extradition request from the Government of the United States of America. His extradition was sought in relation to a charge of second degree murder with a firearm, relating to an event which took place on 7 June 2016.

On 22 August 2018 the County Court found that this Court’s decisions in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts)) and Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) established that the applicant’s exposure to an irreducible life sentence without any review mechanism , based on pre-established criteria to consider rehabilitation, did not comply with Article 3 of the Convention.

Following this judgment, on 10 September 2018 a diplomatic note was received from the United States Embassy, alongside letters from the Florida State Attorney’s Office. The note and letters gave assurances that the applicant would “not be charged with first-degree murder, a death-penalty offence, upon his surrender, or that, in the event of his conviction for that offence, the death penalty will not be sought”. In addition, the note stated that:

“should Horne be convicted of the charge which carries a potential penalty of life imprisonment, he will not be subject to an unalterable sentence of life imprisonment because, if a life sentence is imposed, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition or commutation to a lesser sentence. If pardon or commutation is granted pursuant to applicable US legal procedures this would result in a reduced sentence. The criteria will be made known to Horne at the time of his sentencing.”

A further affidavit from the Florida Assistant State Attorney dated 17 September 2018 stated that a “sentence of no more than 40 years will be sought... against Jonah Horne” and “it is highly unlikely that the sentencing judge would sentence the applicant to a more severe term than 40 years".

Following receipt of the diplomatic note and affidavit, the County Court received a letter from the Crown Solicitor’s Office (“CSO”), on 1 March 2019, confirming that, as advised by the United States Department of Justice, the “Governor’s Office will not be providing a commutation assurance in this case”.

As a result of these affidavits, assurances and letters, the County Court handed down a judgment addendum on 8 March 2019. The judge noted that the letter attached to the diplomatic note of 10 September 2018 did not rule out a life sentence being imposed. The court found that the diplomatic note, whilst dealing with the issue as regards the death penalty, appeared to contradict the attached letter, as it stated what would likely happen if the applicant were sentenced to life imprisonment without parole rather than confirming that he would not receive such a sentence.

The County Court noted that the United States had not made any submissions regarding the instant case and that of Trabelsi (cited above), and that no evidence had been provided that the “clemency and commutation rules in practice take into account evidence of rehabilitation with a view to determining whether imprisonment can continue to be justified on legitimate penological grounds.” The court, having found that the United States had “declined the opportunity” to provide adequate assurances that the applicant’s Article 3 rights would be protected if he were extradited, discharged the applicant.

The United States appealed to the Divisional Court in the High Court. On 20 December 2019 the court delivered its judgment. It acknowledged that the assurance from the Florida State Attorney, that he would only seek a forty year sentence, was not binding on a sentencing judge. However, it found that the pardon powers of the President, and the ability of the applicant to appeal his sentence in the Florida court system, were enough to “reduce the risk of a whole life sentence without remission.” The court was satisfied that the diplomatic note would carry weight with the sentencing judge and noted that it had not identified any case where a convicted person had been sentenced to life imprisonment despite the prosecution seeking only a time-limited sentence. The court concluded by stating:

“Taking all these factors into consideration we consider the risk of a whole life sentence without possibility of remission being imposed on this citizen of Florida, if convicted of the crime of second degree murder, to be very slight and most unlikely. We consider the possibility of that whole life sentence being maintained on appeal and after consideration by the Governor of Florida and the President of the United States to be wholly negligible.”

The court allowed the United States’ appeal, finding that the applicant did not face a real risk of being subjected to treatment proscribed by Article 3 of the Convention. It therefore quashed the order for discharge and remitted the case back to the County Court. It is important to note that the Divisional Court, in reaching this decision also relied on Trabelsi, coming to a different conclusion to that of the County Court.

The County Court, on 24 January 2020, ordered that the case be sent to the Secretary of State for his decision whether the defendant was to be extradited. On 8 March 2020 the Secretary of State ordered the applicant’s extradition.

The applicant appealed the extradition order to the High Court, and judgment was delivered on 28 April 2021. The High Court, having examined the case of Harkins and Edwards v. the United Kingdom (nos. 9146/07 and 32650/07 17 January 2012), stated:

“It is far from incidental that in Harkins the requesting state was the US and the applicant was alleged to have committed offences contrary to Florida state law punishable by a mandatory life sentence without parole.”

The court noted that in Harkins and Edwards this Court had accepted similar assurances as clear and unequivocal.

The High Court referred to the Court’s statement in Harkins and Edwards that the imposition of a life sentence without parole would not be grossly disproportionate and that:

“Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure . The first applicant has not yet been convicted, still less begun serving his sentence.”

In its comprehensive judgment the High Court, conducted a detailed review of the Court’s case law, including Grand Chamber cases post Trabelsi , and relevant domestic law on the issue. As well as examining Vinter, Trabelsi and Harkins , the High Court also discussed the Grand Chamber case of Hutchinson v. the United Kingdom ( Hutchinson v. the United Kingdom [GC], no. 57592/08, 17 January 2017) and its decision as related to the principles found in Vinter. Following this the court looked at a number of post 2015 ECtHR decisions in which Trabelsi was discussed, such as Findikoglu v. Germany (no. 20672/15, 6 June 2016), López Elorza v. Spain ( no. 30614/15, 12 December 2017) X v. the Netherlands ( no. 14319/17, 10 July 2018) and Murray v. the Netherlands ( Murray v. the Netherlands [GC], no. 10511/10, 26 April 2016).

The High Court, when examining Trabelsi , noted that in Trabelsi the Court had found in the applicant’s favour due to the “failure of the US to provide an express assurance that the applicant would not be punished by a life sentence or that any life sentence imposed would entail the possibility of reduction or commutation”.

The court found that it held the same reservations, about the correctness of the decision in Trabelsi , as those found in the decision of the England and Wales High Court in Hafeez ([2020] 1 WLR 1296; see below).

The High Court stated that the “ECtHR has not examined, much less endorsed, those passages in Trabelsi which have subsequently generated some controversy, namely paragraphs 136 and 137.” and concluded: “in our judgment Trabelsi bears the hallmarks of an aberrant decision, one which clearly cannot be classified as forming part of a clear and consistent line of Strasbourg authority”.

The applicant’s appeal was thus dismissed.

On 11 June 2021, the applicant’s application to certify a question of general public importance and for leave to appeal to the Supreme Court was refused.

Under Section 87 (1) of the Extradition Act 2003, the appropriate judge, on considering a request for extradition, must decide whether the requested person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. Under Section 87 (2), if the judge decides this question in the negative, he must order the person’s discharge. If the judge decides that question in the affirmative then, pursuant to Section 87 (3), he must send the case to the Secretary of State for his decision on whether the person is to be extradited.

Details of the relevant bilateral extradition arrangements between the United States and the United Kingdom can be found in Harkins and Edwards, cited above.

Pursuant to Section 6(1) of the Human Rights Act 1996, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority, under that section, means any court or tribunal (Section 6 (3)(a)). Furthermore, 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 (Section 7(1)(b)).

Details of the above case can be found in Harkins v. the United Kingdom ((dec.) [GC], no. 71537/14, §§ 1-28, 15 June 2017).

Details of the above cases can be found in the statements of facts published by the Court on 24 March 2020 and 12 June 2020 respectively (see Hafeez v. the United Kingdom , no. 14198/20, lodged on 19 March 2020 and Sanchez-Sanchez v. the United Kingdom , no. 22854/20, lodged on 11 June 2020 .

COMPLAINTS

The applicant complained under Article 3 of the Convention that, if he were convicted in the United States, there would be a real risk that he would be sentenced to life imprisonment without any effective mechanisms that would allow him to seek a reduction in his sentence, or to seek a review of that sentence with a view to determining whether his continued detention might be justified on penological grounds. He also complained that the assurances given by the Florida State Attorney’s Office and diplomatic note did not meet the clear standards set out by the Court’s jurisprudence.

QUESTIONS TO THE PARTIES

If the applicant were to be extradited to the United States of America, would there be a real risk that he would be subjected to inhuman and degrading punishment through the imposition of an “irreducible” life sentence? In particular, would his extradition, in circumstances where he risks the imposition of a life sentence without parole, be consistent with the requirements of Article 3 of the Convention (see in particular Harkins and Edwards v. the United Kingdom , nos. 9146/07 and 32650/07, 17 January 2012, Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts), and Trabelsi v. Belgium , no. 140/10, ECHR 2014 (extracts))?