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Harkins v UK: Highlighting the Importance for Discourse on Extradition

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About The Author

Kateřina Hemalova (Guest Contributor)

Kateřina is a law graduate from SOAS, University of London. She is currently an investigator at the Serious Fraud Office and a Future Trainee Solicitor at BLP. Her interests range from human rights and tax law to international financial regulations and white-collar disputes. Outside the law, she enjoys excessive fiction reading, compulsive jogging and dusting off one of her five languages.

People should not be imprisoned without having the ability to challenge the legality of that imprisonment.

Jeff Bingaman

In 1978, Phillip Harkins was born in Inverclyde, Scotland to a Scottish mother and an American father. In 1992, when Harkins was 14, his family moved to Florida where – four years later – he allegedly participated in an armed robbery in Jacksonville that resulted in death of 22-year old Joshua Hayes. Harkins, who has always denied this charge, returned to Scotland in 2002 after being released on bail by the authorities in Florida. In 2003, he was sentenced to five years in an English prison for causing death by dangerous driving.

Though these facts make for a curious tale, their importance and interest from a legal perspective increase greatly upon discovery that they form the background of Britain’s longest running extradition case. As this article examines, it raised two very interesting and very controversial areas of law which may dominate the discourse around extradition for the foreseeable future.

A Mammoth Legal Fight

The extradition saga officially started in March 2003, when the US government made an extradition request for Harkins. In order to comply with well-established obligations under the European Convention of Human Rights (ECHR) that had been articulated in cases like Soering v UK [1989], the UK government sought assurances that Harkins would not face the possibility of the death penalty. When such assurances were granted, the Secretary of State ordered Harkins to be extradited. After exhausting his available domestic remedies (a judicial review of the Secretary of State’s decision), Harkins challenged the order before the European Court of Human Rights (ECtHR).  

The ECtHR’s First Decision

In his first application, submitted in 2012, Harkins argued that his rights enshrined in Article 3 of the ECHR – which states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’ – not only protected him from the death penalty, but also protected him from being exposed to life imprisonment. Given that US prosecutors had not agreed to seek this option, Harkins argued extradition would amount to a breach of Article 3 of the ECHR.

The ECtHR in Harkins And Edwards v UK [2012] rejected these submissions. It concluded that the possibility of Harkins receiving a mandatory life sentence without the possibility of parole was not grossly disproportionate breach to his crime; thus, he could not demonstrate that there was a risk of treatment which crossed the Article 3 of the ECHR threshold.

In reaching this conclusion, the ECtHR took into account a range of factors, including that at the time of the offence Harkins was over 18-years old, not diagnosed with a psychiatric disorder and the existence of an aggravating factor – the fact that the alleged killing occurred during an armed robbery. Most importantly, the ECtHR noted that, if Harkins’ imprisonment stopped being justifiable in light of fresh evidence, the Governor of Florida and the Florida Board of Executive Clemency had the authority to reduce his sentence.

The ECtHR’s Second Decision

In what the BBC described as a ‘legal twist’, Harkins – who seemed destined to reach US soil – was given a lifeline by the ECtHR’s decision in Trabelsi v Belgium [2014], where it was found that an extradition to the US would breach the applicant’s rights under Article 3 of the ECHR as he would be exposed to a life sentence without parole.

In light of this decision, Harkins was allowed to submit the second application in which he asked the court to re-assess his original argument. However, in Harkins v UK [2017], held that Harkins’ complaint was substantially the same as that raised in his previous application and, as a result, it refused to consider it any further.

Two Important Issues

Life Imprisonment

The topic of life imprisonment, and its human rights and political implications, is controversial. The extent to which a society will consider it acceptable depends on its view of the purpose of the criminal justice system. Where the criminal justice system is viewed as having a primarily retributive function, it may be considered acceptable: after all, for some, the idea that someone who committed a heinous crime may atone or even change is far too much for many to take.

Under English law, however, a sentence ordering a defendant be detained for life is not necessarily indefinite. Under special circumstances, a prisoner can be released by the Home Secretary, or their conviction can be quashed by the Court of Appeal. This appears to reflect an acceptance that there is the possibility of all and every offender being rehabilitated.

In this way, given that imprisonment for life was intended to fill the void left behind by the abolition of the death penalty in 1965, it could be argued that the idea of life sentences represents a weakening of the criminal justice system. After all, as the BBC have documented, the average time served in prison by those sentenced to life imprisonment was 14 years.

Nevertheless, this overlooks how the crossover between the criminal justice system and the Executive (via the Home Secretary) has seen some of history’s most notorious offenders – such as the Yorkshire Ripper or the Moor Murderers – remain behind bars for their full life sentences. Indeed, the controversial issue of whether the Home Secretary should be able to decide the length of a prisoner’s sentence was thoroughly scrutinised as Myra Hindley – who had been sentenced to two consecutive life sentences for her part in the Moor Murders – issued numerous petitions for release. All her pleas were rejected – a decision some attribute to the fact that a succession of Home Secretaries were unwilling to bear the policital weight of the decision to release the unpopular prisoner.

The fact that such discretion is vested in a member of the Executive has been concluded legitimate by the ECtHR on two separate occassions: in both Vinter and Others v UK [2012] and Hutchinson v UK [2017], it held that because the prisoners could apply to the Home Secretary for compasionate release, the whole life orders did not breach their human rights.

Ultimately, only four prisoners are believed to have been released out of their life imprisonment – three of them under the Good Friday Agreement in 1999, while the infamous East London gangster Reggie Kray was freed after being diagnosed with cancer.

It might be argued that the debate over whether prisoners who are sentenced for life should be given a chance of parole or not is moot, on the grounds that those stringent sentences are passed for a reason; the crimes that were committed must warrant them. However, this argument seems to lack weight – today’s society is one where individuals, no matter how deviant they may be, simply cannot be shunned and forgotten. Being committed to protecting human rights often means that society should stand up and offer a fair deal, even to those who have denied it to others.

After all, a life sentence often has a negative impact on the prisoner’s mental and physical state. It may lead to more violence as the prisoner often has no incentive to behave well behind bars. Inmates are often prone to self-harm and attempt to commit suicide.

Life imprisonment undoubtedly has its place in our legal order. It works both as a deterring and protective measure. Very often in the cases where it is sought, the offenders’ acts more than justify such sentence. However, it is also important that those who are sentenced for life are offered a hope, even if minimal, to fight for parole and a second chance at contributing to society.

The Clash between Human Rights and Extradition

Following the furore that surrounded the case of R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] UKHL 41 – which concerned former Chilean dictator Augusto Pinochet’s attempts to plead Head of State immunity to evade extradition and subsequent apparent bias claims against Lord Hoffman – and the declaration of the ‘War on Terror’ in response to the attack in September 2001, the issue of extradition has been a much-discussed legal issue. Indeed, it is one so powerful that it has often re-opened the debate on whether the UK should abolish the Human Rights Act 1998 and slowly abandon its commitment to the ECHR.

What often stands between a foreign government’s attempts to extradite a prisoner is the so-called ‘extraterritorial effect’ of the ECHR. It is well-established that if the rights protected under the ECHR may be violated following that prisoner’s extradition, it must not go ahead. Applicants often invoke their rights under Article 2 (right to life) or Article 3 (freedom from torture and inhumane treatment) of the ECHR to try and avoid extradition. Such arguments allowed the defendants in Soering v UK [1989] and Chahal v UK [1996] to escape being extradited to countries where they were at risk of facing the death penalty and tortue respectively.

It might be argued that the extradition system (the power of which is vested in the Executive) often appears to impose double-standards and reflect political rather than legal consideration: in many cases, decisions appear to based on how the attitudes of the public towards the offence or the offender in question. For example, in the case of Gary McKinnon – an autistic system administrator from Scotland, who was accused of hacking into 97 US military and NASA computers – the then-Home Secretary Theresa May decided not to pursue his extradition because it would:

[G]ive such a high risk of him ending his life that a decision to extradite would be incompatible with his human rights.

However, the state have tended to decline to be so lenient when the crime in question is terror-related. On 5 October 2017, radical cleric Abu Hamza lost his eight-year long battle against an extradition to the US where he would be charged with offences ranging from solicitation of murder to inciting hatred.

The extent to a prisoner’s human rights can block the Executive’s right to decide when to extradite appear nonsensical to some. For example, Rosalind English has argued that:

[T]he continued deference to a broad interpretation of Article 3, ever requiring a country to put its own security at risk, makes a mockery of the Convention in general and Article 2 in particular, which is after all designed to protect the right to life of people living within the state’s jurisdiction.

There is undoubted logic to her argument. It is fair to question why a state or a judiciary should put its own citizens at risk in order to protect someone who may eventually become a threat to them. Even the most vocal defenders of human rights must gather all their strength to argue in favour of the rights granted to people such as Abu Hamza.

However, as the Gary McKinnon case shows, the fight against extradition is often a matter of life and death. Even if the offender is not necessarily exposed to the risk of the death penalty, being deprived of his or her community support, family and background may become lethal. Ultimately too, it must not be forgotten that today’s society is not based on a blind vengeance, but on a willingness to offer human rights protection to anyone and everyone – even those who may not appear to deserve it.

Conclusion

The longest extradition battle in British history ended when Phillip Harkins was extradited to the US on 20 July 2017. Most of the attention that was given to the story focused on the length of the legal battle; few, if any, column inches were given to the two key legal issues that underpinned the case.

Yet both issues  life imprisonment without parole and the likelihood of clashes between a prisoner's human rights and  the government's power of extradition – warrant continuous discourse, particularly by those who seek to ensure justice is done. Informed and nuanced debates must be had here, and it is hoped that the decision in in Harkins v UK [2017], and the story of Philip Harkins as a whole, will stand as a reminder of that.

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Tagged: Anti-Terror, Courts, Criminal Law, Extradition, Human Rights, Justice, Rule of Law

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