Communicated on 31 March 2015
Application no. 71537/14
against the United Kingdom
lodged on 11 November 2014
STATEMENT OF FACTS
The applicant, Mr Phillip Harkins, is a British national, who was born in 1978. He is currently detained in London. He is represented before the Court by Ms Yasmin Aslam, a lawyer practising in Manchester.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts and domestic proceedings
The background facts and details of domestic proceedings were set out in the Court’s judgment in Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012 (“Harkins (No. 1)”).
2. Further proceedings in the High Court
The applicant made further representations to the Secretary of State, which were rejected on 29 January 2013. On 20 June 2013 the applicant issued an application to judicially review the Secretary of State’s decision. After the Grand Chamber’s decision on 9 July 2013 in Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts), the applicant substituted his judicial review grounds with submissions that the Grand Chamber’s decision had radically changed the law on Article 3. His extradition, in circumstances where he faced a risk of a mandatory sentence of life imprisonment without the possibility of parole, would violate that Article. He later also argued that his extradition would violate Article 6 because of the sentencing court’s inability to consider any mitigating factors because of the mandatory nature of the sentence that would be imposed were he convicted.
The High Court held a hearing on 9 and 10 July 2014 and reserved judgment. On 8 September 2014 the High Court was informed that the Court had given judgment in Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts). After considering written submissions on the relevance of Trabelsi, the High Court held a further hearing on 29 October 2014.
On 7 November 2014 the High Court refused permission to re-open proceedings in the Article 3 claim and refused permission for judicial review in relation to the Article 6 claim. The court identified two principal issues, namely the basis on which proceedings could be re-opened and whether the Court’s decisions in Vinter and Trabelsi, cited above, had recast Convention law to such an extent that the applicant’s extradition would result in a violation of Article 3.
As regards the first, the High Court decided that in the very unusual circumstances of the case it should apply a test analogous to that in Rule 52.17 of the Civil Procedure Rules for re-opening appeals. With respect to the second, the High Court decided that it was necessary to consider (i) whether Vinter had changed the law on Article 3 in relation to mandatory sentences of life imprisonment without the possibility of parole in the domestic context; (ii) the state of the law on Article 3 in the extradition context; (iii) whether there was any conflict between domestic law and Convention law in respect of Article 3 in the extradition context, especially as regards the House of Lords’ decision in R (Wellington) v. Secretary of State for the Home Department  UKHL 72 (see “Relevant domestic law” below); and (iv) the evidence of the applicant’s expert.
The High Court decided that in Vinter the Grand Chamber had not changed the law on gross disproportionality and that the principal issue it had identified was whether a sentence was reducible. In Vinter the Grand Chamber had maintained the view it had set out in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008 that, even if a sentence was irreducible, it only “may” raise an Article 3 issue. As a result, not all irreducible sentences of life imprisonment without the possibility of parole would raise an issue under Article 3. The basic requirement of the Grand Chamber in both Kafkaris and Vinter, cited above, had been that there should be a “possibility of review”. The High Court accepted that in Vinter the Grand Chamber had seemingly put the position more firmly when it stated that Article 3 “must be interpreted as requiring reducibility of the sentence” (Vinter, § 119) and that where domestic law does not provide for review “a whole life sentence will not measure up to the standards of Article 3” (Vinter, § 121). However, the Grand Chamber had decided that it was not for it to prescribe the form of such a review or whether it should be executive or judicial. Whilst the Grand Chamber had noted the “clear support” in international law for a dedicated reviewing mechanism, guaranteeing a review after no more than twenty five years, it did not make such a mechanism a requirement.
The High Court concluded that the Grand Chamber had not materially advanced the law relating to reducibility of sentences beyond what was set out in Harkins (No. 1). The Grand Chamber had not contradicted anything the Court said in that case. Paragraph 122 of Vinter meant that if a sentence was grossly disproportionate or had no mechanism for review, a prisoner could challenge it under Article 3 from the outset of his imprisonment. Harkins (No. 1) was not inconsistent with that conclusion because it had only set out the point in time at which the actual violation would occur.
The High Court decided that the requirement for a “review” or “mechanism” and for the prisoner to know at the outset of his sentence what he must do to be considered for release and under what conditions, including when, was not new. It was inherent in the notion of reducibility and implicit in the Grand Chamber’s decision in Kafkaris, cited above. Furthermore, the Grand Chamber’s requirement in Vinter, cited above, for a “mechanism” had done nothing more than rephrase the statement in Harkins (No. 1) that an Article 3 issue would only arise when it could be shown that there was no longer a penological justification for imprisonment and the sentence was irreducible de facto and de jure.
The court rejected the applicant’s submission that the Court of Appeal, in R v McLoughlin,  EWCA Crim 188, had required a dedicated mechanism, which was additionally capable of judicial review. It would be inconsistent with the Grand Chamber’s finding in Vinter that it was for the State to decide the precise form of review.
On the issue of extradition, after observing that, in Vinter, the Grand Chamber had not considered extradition at all, the High Court concluded that Harkins (No. 1) was, at least prior to Trabelsi, cited above, the leading case. In Harkins (No. 1) the Court had departed from Soering v. the United Kingdom, 7 July 1989, Series A no. 161 to the extent that it had decided that the reason for expulsion could not be weighed against the risk of ill-treatment when considering whether expulsion would violate Article 3. The Court had also clarified that in extradition cases no distinction could easily be drawn between torture and other forms of ill-treatment. The Court had rejected the House of Lords’ approach in Wellington. However, it had accepted a “relativist” approach to the extent that treatment that might violate Article 3 in a domestic context might not reach the minimum level of severity to do so in the extradition context.
Thus, as regards whether there was a conflict between domestic and Convention law, the High Court concluded that, other than to the limited extent set out above, there was none.
In relation to the applicant’s expert evidence, the High Court found that the Florida Rules of Executive Clemency (see “Relevant domestic law” below) were clear and simple to apply. The expert’s evidence implied that it was possible for the applicant to apply to judicially review the Governor’s exercise of his discretion. She neither correctly analysed the Grand Chamber’s judgment in Vinter, cited above, nor took into account that it did not deal with the extradition context. The Rules of Executive Clemency met the Grand Chamber’s requirements. The Governor was not confined to considering any particular factors, a fact which had been noted by the Court in Harkins (No. 1). Vinter did not require a review in the form that the applicant’s expert thought necessary or at a particular time. It was sufficient merely that there was de jure and de facto the possibility of review.
Having reached the above-mentioned conclusions, the High Court considered Trabelsi, cited above. The High Court noted that the Court and the applicant had wished to relinquish the application to the Grand Chamber but that the Belgian Government had objected. The applicant had faced a Federal prosecution in the United States. If he were convicted, a sentence of life imprisonment without the possibility of parole would be discretionary. The High Court noted the Court’s findings on the Federal commutation system, including that an application for commutation was possible five years after conviction and that the United States President’s decision was final.
The High Court noted that the Court had re-affirmed that an irreducible life sentence only “may” raise an issue under Article 3 and had reiterated the finding in Kafkaris, cited above, that a “possibility of review” was sufficient for compliance with Article 3. None of the Court’s observations on Vinter, cited above indicated that the High Court’s conclusion that the Grand Chamber had merely clarified the law was incorrect. The Court had set out no new principles in relation to Article 3 and extradition.
As regards the Court’s application of the law, the High Court noted the Court’s finding that, before his extradition, the circumstances of the applicant in Trabelsi, cited above, had been very similar to the applicants in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012. The Court had decided that the US authorities’ assurances on the possibility of sentence reduction were not sufficiently precise. The Court had made a judgment on statements about US law given to the Belgian authorities. The High Court decided that the Court appeared to have found that a relevant question was whether the US legislation itself was in conformity with Article 3. Such a conclusion was contrary to all the Court’s previous statements about extradition and Article 3. The High Court decided that the Court’s approach was difficult to reconcile with the Grand Chamber’s conclusion in Vinter, cited above, that it should not prescribe the form of review. The Court had taken a clear view of the relevant US legislation but had given no reasons for its conclusion. It had not explained why it was possible to translate, wholesale, principles relating to life sentences in Contracting Parties to the extradition context.
The High Court decided that the Court’s decision did not develop the principles set out in Vinter, except that it purported to lift and apply them to extradition. The Court’s conclusions did not reflect any clear and consistent case law on Article 3, life imprisonment without the possibility of parole and extradition. Although required to take Convention cases into account, the High Court decided that it did not have to follow them. The High Court would not decide the applicant’s case on the basis of new and untried case law, even if the Court had extended previous principles.
With respect to the applicant’s Article 6 claim, the High Court decided that he could have argued it earlier and that it had no merit in any event. If the applicant was convicted a sentence of life imprisonment without parole was mandatory. The sentence would be dealt with as part of the trial process.
B. Relevant domestic law
1. Extradition arrangements between the United Kingdom and the United States
The relevant law was set out in Harkins (No. 1), § 33.
2. United Kingdom law on Article 3 and extradition: R (Wellington) v. Secretary of State for the Home Department  UKHL 72
The relevant law was set out in Harkins (No. 1), §§ 34-42.
3. United States law and practice on sentence commutation
The relevant law was set out in Harkins (No. 1), §§ 51-55. In particular, Article IV, Section 8(a) of the 1968 Florida Constitution, which vests the Governor of Florida with a power of executive clemency, provides:
“Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.”
Furthermore, the Florida Rules of Executive Clemency state in relevant part:
A. These rules were created by mutual consent of the Clemency Board to assist persons in applying for clemency. However, nothing contained herein can or is intended to limit the authority or discretion given to the Clemency Board in the exercise of its constitutional prerogative.
8. Commutation of Sentence
A. Request for Review
An applicant who applies for commutation of sentence under Rule 5(B) may do so only if he or she has completed at least one third of the sentence imposed, or, if serving a minimum mandatory sentence, has completed at least one half of the sentence.
Individuals eligible for commutation of sentence consideration may receive a “Request for Review” form by contacting the Office of Executive Clemency or it may be downloaded from the clemency website at www.fcor.state.fl.us. Upon receipt of the Request for Review form, clemency application, and any other material to be considered, the Coordinator shall forward copies of the documents to the Clemency Board and the Florida Commission on Offender Review. The Commission shall review the documents and make an advisory recommendation to the Clemency Board. Notification of receipt by the Office of Executive Clemency of such a request shall be provided as indicated under Rule 6.
Rule 17 may also be invoked by any member of the Clemency Board.
B. Referral to Commission
Upon receipt by the Coordinator of written notification from the Governor and at least one member of the Clemency Board granting a Request for Review, or notification invoking Rule 17, the Coordinator may refer the request to the Commission on Offender Review for a full investigation and place the case on an agenda to be heard by the Clemency Board.
14. Reapplication for Clemency
Any otherwise eligible person who has been granted or denied any form of executive clemency may not reapply for further executive clemency for at least two (2) years from the date that such action became final. Any person who has been denied a Rule 8 commutation of sentence may not apply for another request for at least five (5) years from the date the prior request was denied.”
The applicant complains under Articles 3 and 6 of the Convention about his intended extradition to the United States of America on the basis that if he is convicted of first-degree murder it is mandatory for a sentence of life imprisonment without parole to be imposed.
QUESTIONS TO THE PARTIES
1. Would the extradition of the applicant, in circumstances where he risks the imposition of a life sentence without parole, be consistent with the requirements of Article 3 of the Convention (see in particular Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012, Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts) and Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts))?
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in relation to the right under Article 6 on which he now wishes to rely before the Court?
If so, would the applicant, if extradited, be at real risk of a flagrant denial of justice contrary to Article 6 of the Convention because of the risk that a mandatory sentence of life imprisonment without the possibility of parole might be imposed.