R Phillip Harkins v The Secretary of State for the Home Department Government of the United States of America (Interest Party)

JurisdictionEngland & Wales
JudgeLord Justice Aikens
Judgment Date07 November 2014
Neutral Citation[2014] EWHC 3609 (Admin)
Docket NumberCase No: CO/7695/2013
CourtQueen's Bench Division (Administrative Court)
Date07 November 2014
Between:
The Queen on the application of Phillip Harkins
Claimant
and
The Secretary of State for the Home Department
Defendant
Government of the United States of America
Interest Party

[2014] EWHC 3609 (Admin)

Before:

Lord Justice Aikens

Mr Justice Globe

Case No: CO/7695/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Edward Fitzgerald CBE QC, Ben Cooper and Graeme Hall (instructed by AGI Solicitors) for the Claimant

James Eadie QC and Clair Dobbin (instructed by The Treasury Solicitor) for the Defendant

Adina Ezekiel (instructed by the CPS) for the Interested Party

Hearing dates: 9–10/07/2014 and 30/10/2014

Lord Justice Aikens
1

This is the judgment of the court.

I. The Procedural Background and the issues to be decided.

2

The question raised by this case is: in what circumstances can a decision of the Grand Chamber ("GC") of the European Court of Human Rights ("ECtHR") entitle a person, who is subject to an extradition order, to challenge the order again, by way of judicial review, after his first challenge has already been rejected both by the Divisional Court (in judicial review proceedings) and then the ECtHR itself?

3

In form, this is a renewed application for permission to bring a claim for judicial review to challenge the decision of the Secretary of State for the Home Department ("SSHD") ordering the extradition of the claimant ("Mr Harkins") to the United States of America, the Interested Party, to face serious criminal charges in the State of Florida. The two counts of which Mr Harkins has been indicted are first degree murder (Count 1) and attempted robbery with a firearm (Count 2). These offences are said to have been committed in 1999. After Mr Harkins was charged with the offences he fled to the United Kingdom. 1 The United States first presented its request for Mr Harkins' extradition on 7 March 2003. Thus the provisions of the Extradition Act 1989 apply to this case. On 23 March 2003 the SSHD issued an Order to Proceed under the 1989 Act. On 21 July 2003 District Judge Tubbs determined that the evidence submitted by the US authorities demonstrated that there was a "case to answer". On 3 June 2005 the Embassy of the USA communicated a diplomatic note to the Foreign and Commonwealth Office. It stated that the US Department of Justice had been informed by the State Attorney for the State of Florida that the death penalty would not be sought against Mr Harkins if he were to be convicted on Count 1. The note continued: "The Government of the United States assures the Government of the United Kingdom that the death penalty will neither be sought nor carried out upon Philip Harkins upon his extradition to the United States". That remains the position. Mr Harkins' extradition was first ordered by the SSHD on 1 June 2006.

4

Mr Harkins has made two previous challenges to the SSHD's extradition decision. Both were by way of judicial review proceedings and both failed. The first challenge was dismissed by the Divisional Court, (The President of the Queen's Bench Division and Lloyd Jones J), in February 2007. 2 None of the grounds for that challenge are now relevant. The second challenge asserted that extradition to the USA would be incompatible with Mr Harkins' rights under Article 3 of the European Convention on Human Rights ("ECHR"), because if Mr Harkins were to be convicted on Count 1, on whatever basis, the sentence in Florida would be one of mandatory life imprisonment without parole ("LWOP"). Article 3 provides: "No one shall be subject to torture or to inhuman or degrading treatment or punishment".

This second challenge was rejected in the reserved judgment of the Divisional Court, (Gross LJ and Davis J), given on 14 April 2011. 3
5

Mr Harkins then brought proceedings before the ECtHR. His case was heard with that of Mr Edwards, who faced extradition to Maryland, USA, on a count of murder. In both cases the principal argument raised was that extradition would infringe the claimants' Article 3 rights. In a judgment given on 17 January 2012, 4 the Fourth Section of the ECtHR rejected both claims. In relation to Mr Harkins, effectively the ECtHR upheld the decision of the Divisional Court given in 2011 ("Divisional Court 2011"), although on a somewhat different basis. On 9 July 2012 a panel of five judges of the ECtHR dismissed an application that Mr Harkins' and Mr Edwards' cases be referred to the GC.

6

On 29 January 2013 the SSHD wrote to Mr Harkins' solicitors informing them that the United States' authorities had given a "specialty" assurance that Mr Harkins would only be prosecuted for the charges detailed in the extradition request. The letter stated that arrangements were being made for Mr Harkins' extradition. Further representations by Mr Harkins' solicitors were rejected by the SSHD.

7

On 9 July 2013 the decision of the Grand Chamber of the ECtHR in the case of Vinter and others v United Kingdom5 was published (" Vinter"). The GC concluded that a "whole life order" made by a United Kingdom trial judge in a case where a defendant has been sentenced to a mandatory life imprisonment sentence for murder constituted a violation of that defendant's Article 3 rights, because, as the GC interpreted English law as it was being applied, it was unclear that such a "whole life order" was "reducible".

8

The current application to bring further judicial review proceedings to challenge the extradition order of the SSHD was issued on 20 June 2013, ie. before the decision of the GC in Vinter was published. The grounds originally put forward are not now pursued. Instead, it is argued on behalf of Mr Harkins that the GC's decision in Vinter has radically changed the Convention law relating to Article 3. It is said that in the light of the GC's decision in Vinter, extradition to the USA to face a mandatory sentence of LWOP (if convicted of Count 1) would breach Mr Harkins' Article 3 rights because that sentence is "irreducible". It is argued that there is, in practice, no system in the State of Florida which amounts to a "dedicated review mechanism" of a sentence of LWOP that can determine whether continued detention of a person subject to LWOP remains in accord with Article 3. It is said that this radical change in the ECHR law requires this court, pursuant to section 6(1) of the Human Rights Act 1998, 6 to re-open Mr Harkins' challenge to the SSHD's extradition order because the SSHD herself refuses to reconsider it in the light of the Vinter decision. Relying on these Article 3 arguments and for other reasons that are now advanced for the first time based on Articles 5 and 6, it is said that the extradition order should be quashed.

9

On 21 January 2014 Wyn Williams J ordered that there should be a combined hearing for the renewed application for permission and the judicial review itself (if permission were to be granted) on the single issue of whether Mr Harkins' extradition would be compatible with his ECHR rights (under Articles 3, 5 and 6) in the light of the GC's decision in Vinter. We heard argument on 9 and 10 July 2014 and reserved judgment.

10

A draft judgment was prepared and was circulated to counsel on Monday 8 September 2014. Counsel informed us that a Section of the ECtHR had handed down its judgment in Trabelsi v Belgium7 (" Trabelsi") on 4 September and that it dealt with the application of Vinter to extradition; in that case the question was whether the extradition of Mr Trabelsi to the USA to stand trial on very serious terrorist charges, which could result in a sentence of life imprisonment would be contrary to his Article 3 rights. We decided not to go ahead with handing down the judgment, but to ask for further written submissions on the effect of Trabelsi. These written submissions were provided by all three parties in the course of September. On considering those we decided that we must hold a short additional hearing for further oral argument on a number of specific points that concerned us regarding Trabelsi. That hearing took place on 29 October 2014 after counsel for the applicant and the respondent had helpfully provided us with further short written submissions.

11

Sections II to XVI of this judgment are, (with some editorial amendments and a new paragraph which is now paragraph 71), as written before the Trabelsi judgment was handed down. (Obviously we have had to revise the "issues to be decided", set out in paragraphs 12–13 below, to take account of the fact that the Trabelsi judgment has now been delivered). In Section XVII below we consider whether, in the light of Trabelsi, we should change the conclusion that we had reached, which was to dismiss the application for judicial review and give our overall conclusion.

12

There are two principal issues before the court which are intertwined. First, on what basis is this court entitled or obliged to re-open a challenge to the extradition order of the SSHD in circumstances where a challenge has already been dismissed after full argument by the Divisional Court 2011 and, subsequently, by the ECtHR? Secondly, does the GC's decision in Vinter and the decision of the Fifth Section of the ECtHR in Trabelsi recast Mr Harkins' Convention rights to such an extent that his extradition to the USA to face the count of murder brought against him now has to be regarded as an infringement of his rights under Article 3? As already mentioned, Mr Harkins now wishes to raise additional arguments based on Articles 5 and 6. Those arguments were neither advanced before the Divisional Court 2011 nor before the ECtHR in 2012. 8

13

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