Published on 3 July 2023

FOURTH SECTION

Application no. 56532/22 Valerie Perfect HAYES against the United Kingdom and 2 other applications (see list appended) communicated on 14 June 2023

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

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

The Government of the United States of America (“the US”) requested the extradition of the applicants from the United Kingdom by reference to mutual treaty obligations. The request was governed by the Extradition Act 2003.

On 21 February 2019 the Scottish Ministers certified that the request was valid and made in the approved way.

The request was made on the basis of warrants dated 16 January 2019 issued by the District Court for the Western District of Virginia. The warrants libel the following offences: (1) conspiracy to commit kidnapping involving children; (2) conspiracy to kill witnesses with intent to prevent communication to a federal law enforcement officer; (3) kidnapping; (4) ‑ (8) attempted kidnapping of a child (relating to five children); (9) ‑ (12) attempted killing of witnesses (being the parents of the children) with intent to prevent communication to a federal law enforcement officer; and (21)-(24) brandishing a firearm during a crime of violence, to wit, attempted killing of a witness.

Although the warrants originally libelled further counts ((13)-(20)), the US Department of Justice subsequently confirmed that if the applicants were to be extradited, it would not proceed on those counts.

On charge (2), the minimum sentence is life imprisonment. The minimum sentence on each of charges (1) and (4)-(8) is twenty years, and the maximum is life. There is no minimum sentence on charges (3) and (9)-(12). Charge (3) has a maximum sentence of life imprisonment and charges (9)-(12) have a maximum sentence of thirty years imprisonment. Charges (21)-(24) carry a minimum sentence of seven years imprisonment and a maximum sentence of life imprisonment.

The allegations against the applicants are as follows. Jennifer Amnott and her husband met Valerie Hayes in 2015. The Amnotts were desperate to start a family and Valerie Hayes told them that she had three children who had been “captured” and were in the custody of two Mennonite families in West Virginia. She told the Amnotts that if they helped her to recover her children they could keep one of the Mennonite families’ two other children. Gary Reburn was Valerie Hayes’ boyfriend and together the two couples formed a plan which involved carrying out surveillance on the houses of the two Mennonite families; obtaining firearms; achieving armed entry to the two houses; securing the five children; and murdering their four parents by shooting them in the head.

On 28 July 2018 Valerie Hayes, Gary Reburn and Mr Amnott travelled from Maryland to Virginia, while Jennifer Amnott remained in Maryland with the children of Valerie Hayes. On 29 July 2018, Valerie Hayes, Gary Reburn and Mr Amnott entered the home of the first Mennonite family while they were at Church to familiarise themselves with the layout. They returned after dark, with Gary Reburn and Mr Amnott carrying firearms, and forced their way inside the house. The father was secured in the basement but the mother managed to escape and call the police. When the police arrived the father was bound in the basement and Mr Amnott was holding him at gunpoint. Valerie Hayes and Gary Reburn managed to escape, and shortly thereafter they fled to Scotland with Jennifer Amnott.

Mr Amnott has pleaded guilty to charge (2). He has not yet been sentenced.

According to a letter from the US Department of Justice dated 26 October 2020, for counts (1) through to (12) the sentencing court will have discretion to run the sentences either concurrently or consecutively, whereas on counts (21)-(24) sentences must run consecutively. Thus, the US Department of Justice acknowledged that if the applicants were convicted of every single charge, the minimum possible sentence would be a sentence of life imprisonment plus twenty-eight years.

However, according to the US Department of Justice, the applicants would have several opportunities to avoid a mandatory sentence of life imprisonment. First of all, they would have the opportunity to attack the charges and have some or all of them dismissed. They could also file motions to attack the evidence, the venue and the jurisdiction. In addition, should their cases proceed to trial they could be acquitted on one or all of the charges.

Furthermore, the applicants could plead guilty in exchange for a favourable sentence. Such negotiations occurred in virtually every federal prosecution in the US. Moreover, sentencing judges would have broad discretion to determine the appropriate sentence after a fact-finding process in which the applicants would have an opportunity to offer evidence. The applicants would also have a statutory right to appeal any sentence imposed if it were substantively or procedurally unreasonable in the circumstances of the case. It would even be possible to challenge a mandatory sentence of life imprisonment by arguing that it was cruel and unusual under the Eighth Amendment of the US Constitution (see United States v. Slatten , 865 F. 3d 767 (D.C. Cir. 2017)).

If the applicants were sentenced to life imprisonment, and any appeal and/or habeas review was unsuccessful, they would have the following opportunities to reduce their sentence, despite the fact that there was no traditional parole available in the federal system.

First of all, the Federal Rules of Criminal Procedure authorised judges, upon a request from the prosecutor, to reduce a previously imposed sentence to reflect a convicted defendant’s assistance post-sentencing.

Secondly, there was the possibility of “compassionate release”. Under this program, the Director of the Federal Bureau of Prisons would consider factors described in Title 18 of the United States Code, Section 3553(a) (for further information about compassionate release, see Sanchez-Sanchez v. the United Kingdom , [GC], no. 22854/20, §§ 59-62, 3 November 2022). The First Step Act 2018 allowed for an appeal against the denial of an application for compassionate release by the Bureau of Prisons (for further information about the First Step Act, see Sanchez-Sanchez , cited above, § 60). According to the US Department of Justice, since implementation of the First Step Act several US courts had ordered the release of prisoners after their requests for compassionate release were denied by the Bureau of Prisons. Furthermore, in the first six months after the First Step Act went into effect, the Bureau of Prisons granted 150% more of the compassionate release applications filed by prisoners than it had done the previous year.

Thirdly, the applicants could seek executive clemency in the form of a commutation or reduction in sentence (for further information about executive clemency, see Sanchez-Sanchez , cited above, § 58). Such a request could be filed at any time after they began to serve their sentence, as long as all appeal rights against conviction and sentence had been exhausted. If a request was denied, they could reapply one year from the date of the President’s denial action. There was no limit on the number of times they could apply for commutation. In considering such requests, the Office of the Pardon Attorney would take into account a variety of factors, including expressions of remorse and acceptance of responsibility.

Finally, the letter addressed the question of gross disproportionality. It noted that killing a human to prevent their communication to law enforcement or their testimony at trial was the ultimate perversion of the course of justice, and the US Congress had decided that it should be met with the most severe punishment applicable, regardless of whether the scheme was successful. In this case, it was hard to imagine a more egregious set of facts. The applicants had sought to eliminate the parents of young children as witnesses so they could successfully escape with their children, all of whom were under eight years old and were too young to fight back. The plot was interrupted while it was unfolding, with the father of the first family bound and held at gunpoint, ready to be executed.

The applicants sought to challenge their extradition. Although they invoked a number of different grounds, the only ones maintained before the Court are as follows: that their extradition would be incompatible with Article 3 of the Convention because a mandatory sentence of life imprisonment on charge (2) would be grossly disproportionate for a crime less than murder; and that a sentence of life imprisonment without parole would be irreducible.

The Sheriffdom of Lothian and Borders handed down its judgment on 30 July 2021. The Sheriff held that the threshold of “grossly disproportionate” was a particularly difficult hurdle for the applicants to surmount (see, for example, Babar Ahmad and Others v. the United Kingdom , nos. 24027/07 and 4 others, §§ 237-238, 10 April 2012 and Harkins and Edwards v. the United Kingdom , nos. 9146/07 and 32650/07, § 133, 17 January 2012). In his view, on the facts of the case the evidence on excessiveness was fundamentally lacking in quality and quantity to show that the likely sentences, at least on count (2), would be grossly disproportionate.

With regard to reducibility, the Sheriff did not consider relevant the possibility of a reduction in sentence for assistance given, since the Article 3 argument focused on post-sentence reduction for rehabilitation. In relation to compassionate release, he found that the grounds for seeking such release were considerably constrained in legal terms. Nevertheless, they were available, and the process was a judicial one. Furthermore, repeated applications were possible. He similarly accepted that executive clemency was a process that did not ostensibly involve any consideration of justification on penological grounds, that it had unspecified criteria for awards, that it involved no issue of reasons, that it did not inform a prisoner what he or she had to do to qualify for clemency and under what conditions, and had no procedural safeguards such as judicial review. It was, however, available, there was a structure for such applications, and repeated applications were possible.

In considering the current law on the reducibility of sentences, the Sheriff had regard to the recent case-law of the Court, together with the domestic authorities. He noted that in Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) the Court had decided that the remedies available under the US federal law of compassionate release and executive clemency did not satisfy the requirements of Article 3 of the Convention. However, the domestic courts had declined to follow Trabelsi (for further information about the relevant domestic case-law, see Sanchez-Sanchez , cited above, §§ 19-23 and 26-56). The Sheriff considered the approach taken by the High Court of England and Wales in Sanchez v. Government of the United States of America ([2020] EWHC 508) (for details of that domestic decision, see Sanchez-Sanchez , cited above, §§ 19-23) and Hafeez v United States ([2020] 1 WLR) (for details of that domestic decision, see Sanchez-Sanchez , cited above, §§ 48-56; see also Hafeez v. the United Kingdom (dec.), no. 14198/20, §§ 18-39, 28 March 2023) to be persuasive, although not binding, when dealing with a United Kingdom wide statute. He further considered that he was bound to follow decisions of the Supreme Court and House of Lords – in this case, the judgment of the House of Lords in R (Wellington) v. Secretary of State for the Home Department ([2008] UKHL 72) (see Sanchez-Sanchez , cited above, §§ 26-34).

Consequently, he found that the limitations on compassionate release and executive clemency did not exclude their availability de facto and de jure . As such, any sentence of life imprisonment would not be irreducible. The Sheriff accepted that the applicants would face considerable difficulty in obtaining either remedy, but did not consider that fact to be relevant since their difficulty stemmed entirely from the nature of their alleged crimes. Quoting Lord Hoffman in R(Wellington) , he observed that the requirement that the sentence be reducible could not mean that there had to be a real prospect of release for the prisoner in question. If that were the case, the more heinous the crime the stronger the claim would be not to be extradited.

The applicants were granted permission to appeal and the Appeal Court handed down its judgment on 28 January 2022.

The Appeal Court noted at the outset that the Sheriff had erred in finding that he was bound by the judgment of the House of Lords in R(Wellington), since the Scottish courts were generally not bound by judgments of the Supreme Court and House of Lords. The Scottish courts were, however, bound to “take into account” the judgments of the Court in a matter involving Convention rights, and, in a matter which applied across the whole of the United Kingdom, the Scottish courts would regard decisions of the Court of Appeal and High Court in England and Wales as persuasive.

The Appeal Court refused the applicants’ appeal. In its view, it was not possible to conclude that a sentence of life without parole would be “grossly disproportionate” for the purposes of Article 3 of the Convention, given the extreme gravity of the crimes charged. With regard to reducibility, the Appeal Court also agreed broadly with the reasoning of the High Court of England and Wales in the cases of Hafeez and Sanchez . In Babar Ahmad and Harkins and Edwards (both cited above) the Court had acknowledged that a distinction was to be made between extraditions and removals within Contracting States and those involving non-Contracting Sates. It would therefore require a high level of ill-treatment, including death or torture, to amount to a bar on extradition to States with a long history of respect for democracy, human rights and the rule of law. Although the judiciaries in Europe might not agree with all aspects of the US penal system, it was not for them to insist upon that system abiding strictly by the Convention standards before granting an order for extradition. The system of compassionate release and executive clemency in the US criminal justice system was sufficient to meet the requirements of Article 3 in the extradition context, even if it might not be likely that the applicants would be afforded either remedy over time.

In conclusion, the Court noted that:

“It may be that in the upcoming case of Sanchez-Sanchez the Grand Chamber of the European Court will follow this new [ Trabelsi ] line rather than the approach in earlier cases. If it does so, and holds that any prospective ill-treatment, in a country which has a long history of respect for democracy, human rights and the rule of law, is sufficient to bar extradition, that could have a profound influence on the practical operation of extradition treaties with non-Contracting States. It has the potential to create safe havens for fugitives from justice, who are charged with very serious crimes, including, as here, those perpetrated in their states of origin. That is not an attractive prospect. Application of the mainstream European Court jurisprudence, as illustrated in Kafkaris , Harkins and Edwards and [Babar] Ahmad , may be thought preferable for those parts of the world governed by the rule of law. It attaches considerable importance to the sovereignty principle under which the Convention should not be used as a means of imposing the criminal justice values of contracting States on non-Convention countries. It should require some obvious and serious form of ill-treatment to bar the extradition to a country such as the United States for the crimes of conspiracy to murder parents and to steal their children.”

On 3 March 2022 the Appeal Court refused to grant the applicants permission to appeal to the Supreme Court.

The applicants subsequently applied to the Supreme Court for permission to appeal. On 16 November 2022 they made further submissions in which they relied on the judgment of the Grand Chamber in Sanchez-Sanchez (cited above), which had been handed down on 3 November 2022. On 8 December 2022 the Supreme Court refused permission to appeal as the applications did not raise an arguable point of law. It noted that “the scheme for compassionate release, as described in the sheriff’s findings, complies with paragraph 96 of the judgment in Sanchez v Sanchez [sic].”

The applicants asked the Court to grant interim measures under Rule 39 of the Rules of Court to prevent their extradition to the US pending the determination of their substantive applications. The Court granted their requests on 13 December 2022, in the cases of Valerie Hayes and Jennifer Amnott, and on 20 January 2023, in the case of Gary Reburn.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

The relevant legal framework and practice in the United Kingdom is set out in Sanchez-Sanchez (cited above, §§ 24-56). The relevant legal framework and practice in the US can be found in Sanchez-Sanchez (cited above, §§ 57 ‑ 64).

COMPLAINTS

The applicants complain that their extradition to the US would violate their rights under Article 3 of the Convention because there is a real risk that if convicted they would receive a mandatory sentence of life imprisonment without parole and such a sentence would be both grossly disproportionate and irreducible.

QUESTIONS TO THE PARTIES

1. Would the applicants’ extradition to the United States of America be compatible with Article 3 of the Convention? In particular, are there substantial grounds for believing that, if extradited, and in the event of their conviction, there would be a real risk that a sentence of life imprisonment without parole would be imposed on the applicants? If so, would there exist, as from the moment of sentencing, a review mechanism in place allowing the domestic authorities to consider (i) whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds, or (ii) any other ground for release based on the life prisoner’s behaviour or other relevant personal circumstances (see Sanchez-Sanchez v. the United Kingdom ([GC], no. 22854/20, §§ 96-97, 3 November 2022)?

2. On the facts of the three cases, would a mandatory life sentence be grossly disproportionate so as to amount to ill-treatment contrary to Article 3 at the moment of its imposition?

APPENDIX

List of applications

No.

Application no.

Case name

Lodged on

Applicant, Year of Birth, Place of Residence, Nationality

Represented by

1.

56532/22

Hayes v. the United Kingdom

09/12/2022

Valerie Perfect HAYES, 1980, Edinburgh, American

Jelina BERLOW-RAHMAN

(Berlow Rahman Hassan Ltd.)

2.

56889/22

Amnott v. the United Kingdom

13/12/2022

Jennifer AMNOTT, 1985, Polmont, American

Euan GOSNEY (Thorley Stephenson SSC)

3.

3739/23

Reburn v. the United Kingdom

19/01/2023

Gary REBURN, 1963, Edinburgh, American

Rebecca HOUSTON (Houston Law,

Clyde Offices)