Harkins, R (on the Application of) v The Secretary of State for the Home Department & Anor (Rev1)

Judgment

Lord Justice Aikens :

This is the judgment of the court.

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

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?

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. The United States first presented its request for Mr Harkins’ extradition on 7 March 2003. Thus the provisions of the The extradition process from the UK was triggered by the fact that Mr Harkins was arrested after a fatal traffic accident in Scotland on 25 January 2003. He was subsequently convicted of causing death by dangerous driving and, on 22 December 2003, sentenced to 5 years in prison. This prison sentence inevitably slowed up the extradition process. He was released on licence on 3 April 2006. apply to this case. On 23 March 2003 the SSHD issued an Order to Proceed under Extradition Act 1989 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 Har