Sanchez (Aka Zachary Tracey) v Secretary of State for the Home Department

When removal exposes a person to criminal proceedings and punishment abroad, Article 3 is assessed relatively rather than in isolation from the removal context. The question is whether the anticipated punishment would be grossly disproportionate. Relevant considerations include the desirability of ensuring that a person does not avoid justice and respect for the democratic choices of the receiving state. A severe sentence is not inhuman or degrading merely because it is more severe than the sentence imposed domestically. The court should avoid condemning a foreign criminal justice system unless Article 3 compels that conclusion. A sentence may engage Article 3 where it lacks any possible legitimate justification, but punishment designed to protect the public and deter recidivism may be justified.

The claimant sought judicial review of the Secretary of State’s refusal to revoke a deportation order. If returned to California, he faced trial for alleged second-degree robbery. He argued that, because of previous felony convictions, he risked a lengthy sentence which would constitute inhuman or degrading punishment contrary to Article 3.

The Secretary of State relied on assurances from the Los Angeles County District Attorney that the claimant would not be prosecuted as a third-strike offender and would not receive an indeterminate sentence. The central issues were whether those assurances could be relied upon and whether the determinate sentence potentially faced by the claimant created a real risk of treatment contrary to Article 3.

1. Application dismissed. The court held that there was no real risk that the Californian authorities would depart from their assurances. The fact that the case was not an extradition did not justify a different approach to the reliability of assurances from a major democracy.
2. The principles identified in R (Wellington) v Secretary of State for the Home Department [2009] 1 AC 335 applied to other forms of removal as well as extradition. The Article 3 question was relative to the removal context. The relevant inquiry was whether the anticipated sentence would be grossly, meaning obviously or clearly, disproportionate.
3. In applying that test, the court had to take account of the desirability that a person should not avoid justice and of the democratic views of the legislature of the state where trial and punishment were proposed. The court should not readily condemn a different criminal justice system or a punishment adopted to deter recidivism.
4. The potential determinate sentence, although severe, was justified by the Californian legislature’s objectives of protecting the public and deterring repeated offending. There was no absence of justification capable of making the punishment inhuman or degrading. It was therefore impossible to conclude that deportation would expose the claimant to a real risk of breach of Article 3.

Mr Justice Hickinbottom agreed. The claimant was ordered to pay the defendant’s costs, subject to the usual qualification concerning enforcement, and permission to appeal was sought.

This was a first-instance judicial review in the Administrative Court. Permission to apply had been granted by Mr Justice Ouseley. At the hearing, the claimant sought permission to appeal to the Court of Appeal; the judgment does not record that permission as granted.