QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE LLOYD JONES
|THE QUEEN ON THE APPLICATION OH PHILIP HARKINS||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The applicant appeared in person assisted by a McKenzie Friend, Esther Hutchison
MISS C DOBBIN (instructed by the Treasury Solicitors) appeared on behalf of the DEFENDANT
MISS A EZEKIEL (instructed by the CPS, London EC4M 2NG) appeared on behalf of the Interested Party, the Government of America
Crown Copyright ©
The factual background
The present application
"The coming into force of the Act shall not apply for the purposes of any request for extradition… which is received by the relevant authority in the United Kingdom on or before 31st December 2003."
In these circumstances the provisions of the Extradition Act 1989 apply to the present case.
The improbability of conviction
"…District Judges should be wary before embarking on the trappings of a trial, in particular the testing of credibility of complainants by reference to alleged inconsistencies in their accounts and to their previous conduct, lest they offend the principles of comity and reciprocity that give rise to this jurisdiction and pre-empt the function of the court of the state seeking extradition."
"I find that the evidence contained in Terry Glover's affidavit establishes a prima facie case on the charges against Philip Harkins. The differences between the accounts given by Terry Glover are not fundamental, in my view, and not such as to completely undermine the evidence he can give and so justify rejecting or eliminating his evidence. The other matters raised on Mr Harkins' behalf are matters for consideration at the trial in the United States. The evidence produced would, according to the law of England and Wales, make a case requiring an answer by the defence if the proceedings were for trial here on these charges so there is sufficient evidence to justify an order for committal."
I consider that the District Judge directed herself correctly as to the applicable test and having taken account of all of the evidence before her came to a conclusion which was reasonably open to her.
"…there is no obligation on the part of the Home Secretary to reconsider the facts presented to the Magistrate and it is no part of his function to review the decision of the Magistrate, or for that matter in this case the decision of the Divisional Court. On the contrary, the Secretary of State is entitled to have regard to the fact that the Magistrate and the Divisional Court have found a prima facie case to exist. They are relevant factors in his decision-making process."
The agreements with Glover
"Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self-evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and, if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive's return."
Similarly Lord Woolf CJ in Wellington observed at paragraph 17(3):
"The fairness of the use of evidence at trial is a question for the trial court, not for the committing magistrate."
The passage of time
"(2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony—
(a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences, in respect of which his return is sought, that—
(ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be ..."
""Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.
As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude." (782H to 783B)
These considerations apply equally under the 1989 Act.
The death penalty
(b)the Secretary of State may decide to make no order for the return of a person accused or convicted of an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made."
"In this case the State of Florida has withdrawn its notice of intent to seek a death penalty and is pursuing a life sentence."
"The US Department of Justice has been informed by the State Attorney of the State of Florida that the death penalty will not be sought or imposed against Philip Harkins based on the assurance provided by the State Prosecutor and pursuant to Article 4 of the Extradition Treaty between the Government of the United States and the Government of the United Kingdom Great Britain and Northern Ireland and signed June 8th 1972. 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."
The matter was addressed by the Secretary of State in his decision letter in the following terms:
"The Secretary of State has received an assurance from the US authorities by way of a letter dated 3 June 2005 that the State Attorney of the State of Florida had confirmed that the death penalty will not be sought or imposed against Mr Harkins. Based on the assurance provided by the State Prosecutor, and pursuant to Article IV of the 1972 US/UK Extradition Treaty, the US Government assured the UK Government that the death penalty will neither be sought nor carried out against Mr Harkins upon his extradition to the US. Given these assurances from the US authorities, the Secretary of State is of the opinion that an order for Mr Harkins' return to the US would not be unjust or oppressive or be in breach of the ECHR."
"775.082 (1) A person who has been convicted of a capital felony shall be punished by death if the proceedings held to determine sentence according to the procedure set forth in s.921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole."
"921.141 (1)SEPARATE PROCEEDINGS ON ISSUE OF PENALTY,- Upon conviction of adjudication of guilt of a defendant of a capital felony, the court -shall conduct a separate sentence proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082."
"Rule 3.171 Plea Discussions and Agreements
(a) In General. Ultimate responsibility for sentence determination rests with the trial judge. However, the prosecuting attorney and the defense attorney, or the defendant when representing himself or herself, are encouraged to discuss and to agree on pleas that may be entered by a defendant. The discussion and agreement must be conducted with the defendant's counsel. If the defenant represents himself or herself, all discussions between the defendant and the prosecuting attorney shall be of record.
(b) Responsibilities of the Prosecuting Attorney.
(1) A prosecuting attorney may:
(a) engage in discussions with defense counsel or a defendant who is without counsel with a view toward reaching an agreement that, upon the defendant's entering a plea of guilty or nolo contendere to a charged offense or to a lesser or related offence, the prosecuting attorney will do any of the following.
(i) abandon other charges or
(ii) make a recommendation, or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the trial judge; or
(ii) agree to a specific sentence; and
(b) consult with the victim, investigating officer, or other interested persons and advise the trial judge of their views during the course of plea discussions.
(2) The prosecuting attorney shall;
(a) apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant's background prior to acceptance of a plea: by the trial judge; and
(b) maintain the record of direct discussions with a defendant who represents himself or herself and make the record available to the trial judge upon the entry of a plea arising from these discussions."
"6. Contrary to the representations made by Philip Harkins, he will not be subject to the death penalty if he is convicted of first degree felony murder.
7. As Harry L Shurstein, the State Attorney of the Fourth Judicial Circuit, has informed the State authorities, the Office of the State Attorney withdrew its notice of intention to seek the death penalty and will not seek the death penalty in this case.
8. As a matter of long-standing practice the circuit court of the Fourth Judicial Circuit will not conduct a sentencing proceedings pursuant to section 921.141 Florida Statutes in cases where as here the Office of the State Attorney does not seek the death penalty. Absent such a hearing the court cannot impose the death penalty.
9. I have personally handled or supervised other Assistant State Attorneys who have handled more than 25 capital felony cases where the Office of the State Attorney did not seek the death penalty. In none of those cases did the circuit court conduct the sentencing proceedings pursuant to section 921.141.
10. Furthermore, even if the court were to conduct such a proceeding, the Office of State Attorney would not present any evidence during the proceedings since there is no mechanism by which the circuit court, or any third party could present such evidence. There will be no basis upon which the circuit court could find that there were sufficient aggravating circumstances to warrant the death penalty, as required by section 921.141(3). As a result, even if the court were to depart from long-standing practice and conduct the sentencing proceedings pursuant to section 921.141, and there will be no basis in practice or any precedents to support such a departure, the death penalty would not and could not be imposed.
11. Finally, the death penalty assurances provided by the United States in this matter are binding on the State of Florida, pursuant to Article 4 of the Extradition Treaty between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland."
THE PRESIDENT: Any there any applications? Yes, Mr Harkins, I understand you want to make an application to us for leave to appeal to the House of Lords?
THE APPLICANT: That is correct, my Lord.
THE PRESIDENT: Is there anything else you want to say?
THE APPLICANT: Yes, my Lord, on the basis of the diplomatic notes and the contents of their undertaking in the affidavit from the Florida prosecutor, the language contained therein and the applicability of the Florida law itself, and the imposition of the death penalty, I would like to appeal to the House of Lords basically on the death penalty point only and on the effect of the undertaking and the offence in that regard.
THE PRESIDENT: Thank you. I am afraid, Mr Harkins, that we do not think that there is any point of law which we should certify for consideration in the House of Lords, but, in any event, we should refuse leave.
THE APPLICANT: In the case of you refusing leave where does that leave me now?
THE PRESIDENT: As far as the proceedings in this country are concerned, that is the end of the line.
THE APPLICANT: Is there no application for me, or anything that I could make to go to the House of Lords? I understand just now the case of Ahmad and Aswat before the House of Lords their case is currently being appealed. I mean it would be very unfortunate to myself if the American authorities come and pick me up and then that case was turned around in some form of fashion in my favour as to the diplomatic notes.
THE PRESIDENT: I am sorry I cannot help you about what the consequences are of our decision in relation to how the authorities will deal with the application for extradition because I do not know. So far as the court process is concerned in this country, you have now exhausted the remedies that are available to you.
THE APPLICANT: One more question: what about the European Court of Human Rights?
THE PRESIDENT: The short answer to that is I do not know.
MISS DOBBIN: I may be able to assist on that point. It is open to persons who are in this jurisdiction to apply to the Europe court for an interim measure to prevent them being removed whilst their application is pending to the European Court of Human Rights. It is an emergency procedure which has to be done within a short time. I do not know off the top of my head what it is.
THE PRESIDENT: Thank you very much. I think you can assume that Miss Dobbin is right.
THE APPLICANT: In that respect how would I proceed? I do not know what the time limit is now for anyone to come and pick me up and for me to, my Lord, engage in this emergency procedure.
THE PRESIDENT: There is a limit you see as to what I can tell you (a) because I cannot and (b) because I do not actually know. You are acting for yourself. If I were you my strong advice would be to get in touch with the solicitors, Levys, who have been acting for you right through until the hearing before us and take their advice. That is what I would do and that is the advice I would give you. Thank you both.