Co-Head of Extradition
Whole-life sentences & Article 3 - Philip Harkins v UK - round 2
The European Court has intervened again in this longstanding US extradition request under the 1989 Extradition Act dating back to 2003. Mr Harkins is wanted to stand trial in Florida where, if convicted he may face a mandatory whole life sentence for manslaughter. He argues that such a sentence, for an offence of attempted robbery, which was allegedly committed when he was just 20 years old, would be grossly disproportionate because ultimately the only mechanism for reviewing the sentence rests with the Governor of Florida. The prospect of life imprisonment without parole is a sentence which Gross LJ has described as “manifestly severe and different from the sentence he would face in this jurisdiction”.
The Strasbourg Court has previously ruled that life without parole in the US is compatible with Article 3 because it is de jure and de facto reducible – for Harkins, the state governor has the power to order release and so the sentence is reducible as a matter of law. Harkins contends this remedy is too remote in practice to be meaningful and there is no evidence of executive clemency operating in favour of someone in Mr Harkins’ shoes.
This two stage test of de jure and de facto reducibility derives from the decision of the European Court in Kafkaris v Cyprus (multiple murders of an adult and two children arising out of terrorist bombings) and was adopted and applied by the House of Lords in Wellington v SSHD (double murder including a pregnant young woman).
On the same day the European Court referred Vinter v UK to the Grand Chamber, Mr Harkins’ equivalent reference was refused. Yet the Grand Chamber judgment in Vinter introduced clear procedural requirements for reviews to sentences of life without parole when finding that the UK’s mechanisms were Article 3 incompatible. Mr Harkins invited the Secretary of State to recognize that the Florida clemency system fell well short of the new Vinter standard. She refused to do so which led to a third Divisional Court considering Harkins’ case and for the first time whether the ‘dedicated review mechanism’ now required by Vinter existed in Florida. Harkins argued that the process of seeking clemency from the Florida governor does not afford a life prisoner foreseeable goals of rehabilitation and lacked due process. The High Court robustly rejected the challenge.
A dramatic twist arose when the handing down of the Divisional Court’s draft judgment coincided with the European Court’s judgment in Trabelsi v Belgium. Trabelsi was directly at odds with the judgment of the High Court and fully supported Harkins’ submissions to the English Court in upholding Trabelsi’s claim that his Article 3 had been breached by Belgium’s decision to expose him to a federal sentence of life without parole in the US which failed to comply with Vinter. When confronted with the most current authority from the European Court applying Vinter to the extradition context (which the English Court was hesitant to do) the High Court simply declined to follow Trabelsi and relied instead on the governor’s discretion to grant clemency as evidence that this power existed as a matter of both law and practice. Notwithstanding the clear conflict of the law the High Court refused permission for judicial review of its decision thereby denying access to the Supreme Court.
However, on 13th November 2014 the European Court stayed extradition, notwithstanding its previous rejection of the Article 3 claim in the very same case. It will now have to decide whether or not to follow Vinter and Trabelsi and overrule its previous decision in Harkins.
Mr. Harkins’ arguments may be distilled to three points: 1) the absence in Florida of a dedicated review mechanism; 2) the lack of accessible criteria, i.e. objective, pre-established criteria of which the prisoner is aware at the outset of his sentence; and 3) the absence of a right to a review of his sentence, on the basis of rehabilitative progress. The overarching concern is whether, at some point in his sentence, the absence of any legitimate penological grounds for his continued detention could result in his release. If it could not, this would render his extradition incompatible with the irreducible Article 3 standards per the Grand Chamber decision in Vinter and as applied in the Court’s subsequent case law.