01 April 2008

FOURTH SECTION
Application no. 32650/07
by Joshua Daniel EDWARDS
against the United Kingdom
lodged on 1 August 2007

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Joshua Daniel Edwards, is an American national who was born in 1987 and is currently detained at HM Prison Belmarsh, London. He is represented before the Court by Messrs Lewis Nedas & Co., solicitors practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 October 2006, a grand jury of Washington County, Maryland returned an indictment against the applicant on eleven counts, relating to the death of a Mr J. Rodriguez, the non-fatal shooting of a second man, Mr T. Perry and assault of a third man, Mr S. Broadhead. The first count of the indictment is murder in the first degree of Mr Rodriguez. The second count is attempted murder in the second degree of Mr Perry. The third and fourth counts are alternatives to counts one and two, charging the applicant with murder in the second degree of Mr Rodriguez and attempted murder in the second degree of Mr Perry. Counts five to seven charge the applicant with assault in the first degree upon the three men. Counts eight to ten charge him with assault in the second degree upon the men and count eleven charges him with using a handgun in the commission of a crime of violence. A warrant for the applicant’s arrest was issued the same day.
On 21 January 2007, the applicant was arrested in the United Kingdom pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003.
In an affidavit of 14 March 2007, an attorney of the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of the case and the charges against the applicant. On count one, he stated:
“Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.”
On 19 March 2007, the United States Embassy in London issued Diplomatic Note No. 12, which requested the applicant’s extradition. The note specified that count one, first degree murder, carried a maximum penalty of life imprisonment and that count two, attempted first degree murder, also carried a maximum penalty of life imprisonment. Counts three and four each carried maximum penalties of thirty years’ imprisonment. Counts five to seven carried a maximum penalty of twenty-five years’ imprisonment; counts eight to ten, ten years’ imprisonment; and count eleven, twenty years’ imprisonment.
On 23 March 2007, the Secretary of State certified that the extradition request was valid.
In a decision given on 16 April 2007, the District Judge, sitting at the City of Westminster Magistrates’ Court, ruled that the extradition could proceed. He held that, inter alia, the applicant’s extradition would not be incompatible with his rights under Article 3 of the Convention since the Maryland Criminal Code stated that it was for the State of Maryland to seek the death penalty and the extradition request clearly indicated that it would not do so. The District Judge accordingly sent the case to the Secretary of State for his decision as to whether the applicant should be extradited.
On 5 June 2007, the United States Embassy issued a further Diplomatic Note in respect of the applicant, No. 23, which provides as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 012 dated March 19, 2007, and previous Notes requesting the extradition of Joshua Daniels [sic] Edwards to the United States of America.
Pursuant to Article IV of the 1972 Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States assures the Government of the United Kingdom that Joshua Daniels Edwards [i]s not subject to the death penalty, the death penalty would not be sought or carried out against him upon his extradition to the United States. The Government of the United States has been assured of the same by the Deputy State Attorney of [the] State of Maryland.
[closing formula]”

On 27 June 2007, the Secretary of State ordered the applicant’s extradition. The applicant appealed to the High Court, inter alia, on the ground that a sentence of life imprisonment without the possibility of parole amounted to inhuman or degrading treatment in violation of Article 3 of the Convention.
On 26 July 2007, in a second affidavit in support of the extradition, the Maryland prosecuting attorney provided further details of the sentence for first degree murder under Maryland law. He stated:
“5. This particular case qualifies for a maximum penalty of life imprisonment under Maryland Ann. Criminal Law § 2-201(b). The Death Penalty does not apply.
6. The State has the option of filing a notice to the Defendant that it will seek a sentence of life without the possibility of parole, which entitles the sentencing court to consider a sentence of life without parole, but does not require that the sentencing court impose such a sentence.
7. Given the heinous nature of the instant case, which the State characterizes as a[n] ‘execution style’ homicide, which claimed one life, and seriously and permanently injured a second victim, the State anticipates that it will seek a sentence of life without the possibility of parole under Maryland Ann. Criminal Law §2-203 and §2-304(a)(1).
8. In the instant case, in the event that the State did in fact file its notice of intention to seek life without parole, the trial judge would be the sole sentencing authority, and would have the discretion to seek a sentence of:
- life without the possibility of parole;
- life with the possibility of parole;
- life with the possibility of parole, with all but a certain number of years suspended, followed by up to five years of probation.
9. In the undersigned’s experience, there is no way to accurately predict what sentence a defendant with face if convicted of first degree murder.”
Before the High Court, the applicant later accepted that his ground of appeal based on Article 3 of the Convention was precluded by the House of Lords’ ruling in R. v. Lichniak (see domestic law and practice below) and conceded that it had to be dismissed. On 27 July 2007, the High Court therefore dismissed the applicant’s appeal on this ground, allowing only his appeal that count ten of the indictment was not an extraditable offence. It also refused to certify a point of law of general public importance which ought to be considered by the House of Lords.
On 1 August 2007 the applicant lodged an application with this Court and requested an interim measure to prevent his extradition. On 3 August 2007 the President of the Chamber to which this application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be extradited until further notice.
B.  Relevant domestic law and international law
1. Extradition treaty between the United Kingdom and the United States
At the material time, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty).
Article IV of the 1972 treaty provided as follows:
“If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out.”
2. The United Kingdom Extradition Act 2003
Part II of the Extradition Act 2003 regulates the extradition of individuals to ‘category 2’ territories which, by designation of the Secretary of State, includes the United States. Pursuant to sections 71(4), 73(5), 84(7) and 86(7) of the Act, the Secretary of State has the power to designate certain States as not being required to provide prima facie evidence in support of their requests for extradition. By Article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (Statutory Instrument 2003 No. 3334) this includes, inter alia, the United States. Article 2 of the same order designates the United States as a ‘category 2’ territory.
Section 73 of the Extradition Act 2003 provides for the issue of a provisional warrant of arrest if certain conditions are satisfied. Section 87 requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. Section 103 provides for the right of appeal to the High Court against the decisions of the judge and against an order for extradition made by the Secretary of State. Section 114 provides for a further appeal to the House of Lords from the High Court where the High Court certifies a point of law of general public importance and either that court or the House of Lords then grants leave to appeal.
3. R. v. Lichniak and R. v. Pyrah, [2002] UKHL 47
In the above two cases, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article. Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).
The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention.
4. Relevant Council of Europe, European Union and international texts
The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris v. Cyprus [GC], no. 21906/04, §§ 68-76, 12 February 2008.
COMPLAINT
The applicant complains under Article 3 of the Convention that if extradited to the United States he is a real risk of receiving a sentence of life imprisonment without parole. He submits that such a sentence constitutes, of itself, and in any event in his case, torture, or inhuman or degrading treatment or punishment.
QUESTIONS TO THE PARTIES

1.  Would the applicant’s intended surrender violate Article 3 of the Convention and/or Article 1 of Protocol No. 13? In particular, the Government are requested to confirm whether in the event that the prosecution of the State of Maryland does not seek the death penalty the trial court would be unable to impose it of its own motion.

2. The Government are further requested to clarify whether the imposition of a life sentence without parole would be likely in the event of the applicant’s conviction by a trial court in Maryland. If so, and given in particular the relatively young age of the applicant, would such a sentence be consistent with the requirements of Article 3 of the Convention (see Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008; Nivette v. France(dec.), no. 44190/98, ECHR 2001‑VII; Soering v. the United Kingdom, judgment of 7 July 1989, Series A; Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I, and T. v. the United Kingdom and V. v. the United Kingdom [GC], nos. 24724/94 and 24888/94, judgments of 16 December 1999)?

3. The Government are also requested to clarify whether, in the event of the applicant’s conviction on several counts in the indictment, any sentences imposed would be served consecutively or concurrently.