Harkins, R (on the application of) v Secretary of State for the Home Department

On extradition under the Extradition Act 1989, the committal question is whether the evidence would justify a trial in England and Wales, not whether conviction abroad is probable. Credibility disputes and evidential inconsistencies ordinarily belong to the requesting state’s trial court. The Secretary of State may take account of a magistrate’s finding that a prima facie case exists, but retains an independent and wider discretion.

Delay caused by the requested person’s absconding cannot ordinarily make extradition unjust or oppressive. A diplomatic assurance from the requesting state may reliably prevent a death penalty, including where the prosecution is conducted by a constituent state, provided the assurance is clear and given in good faith.

The claimant sought judicial review of the Secretary of State’s decision to order his extradition to the United States to face murder and attempted robbery charges. He argued that the evidence was insufficient, that evidence obtained through agreements with a prosecution witness constituted an abuse of process, that delay made extradition unjust or oppressive, and that the undertaking concerning the death penalty was inadequate.

The extradition request had been made in 2003, so the Extradition Act 1989, rather than the Extradition Act 2003, applied. The claimant also referred to habeas corpus, but no separate habeas corpus application had been made. The central issues were whether the Secretary of State had acted unlawfully in accepting the prima facie case, leaving trial-evidence questions to the Florida courts, rejecting the delay objection, and relying on the diplomatic assurance.

1. Application refused. The court also rejected the purported habeas corpus challenge. The request was governed by the Extradition Act 1989.
2. The claimant’s submission that conviction was extremely improbable misstated the committal test. The issue was whether the evidence would be sufficient to warrant a trial in England and Wales. The District Judge had correctly treated the inconsistencies in Glover’s accounts as matters for trial and had reasonably concluded that a prima facie case existed. The Secretary of State was entitled to take that finding into account and was not required to reconsider the evidence as an appellate court. His discretion remained wide and he was not a mere rubber stamp.
3. It was unnecessary to determine definitively whether section 78 of the Police and Criminal Evidence Act 1984 applied to extradition proceedings. Even if it did, excluding Glover’s evidence was not required to secure fairness. The objection concerned matters properly considered by the Florida trial court, and exclusion based on domestic notions of fairness could undermine extradition arrangements. The Secretary of State was entitled to leave admissibility and trial fairness to Florida, where safeguards and challenges were available.
4. Under section 12(2) of the 1989 Act, the delay objection failed. Applying Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779, delay attributable to the claimant’s absconding could not ordinarily be relied upon. The pre-absconding proceedings had continued actively, and the alleged prejudice was general and insufficiently particularised.
5. The diplomatic note and supporting evidence provided an effective assurance that the death penalty would neither be sought nor imposed. The assurance was issued through the United States Government because the treaty relationship was between the United Kingdom and the United States, and it recorded confirmation from the Florida State Attorney. The court assumed good faith and found no real risk that the undertaking would be breached. The Secretary of State was therefore entitled to conclude that surrender would not be unjust or oppressive or contrary to Articles 2 or 3 of the European Convention.

First-instance judicial review proceedings. The Divisional Court refused the application for judicial review and refused leave to appeal or certification of a point of law.