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

A final judicial-review determination may be reopened only in exceptional circumstances where reopening is necessary to avoid injustice and there is no alternative remedy. A later human-rights judgment must materially and fundamentally affect the applicant’s Convention rights before that high threshold is met.

Under Article 3, a mandatory life sentence is not automatically incompatible with the Convention. The relevant questions include gross disproportionality and whether the sentence is reducible in law and in fact. In extradition cases, Convention standards cannot simply be imposed on a non-Contracting State, and the threshold remains exceptionally high.

The court declined to follow aspects of Wellington concerning the relevance of extradition policy, but held that the central Article 3 test remained substantially intact. Vinter and Trabelsi did not justify reopening the case.

The claimant faced extradition to the United States to stand trial in Florida for first-degree murder and attempted armed robbery. If convicted of murder, he would receive mandatory life imprisonment without parole, following an assurance that the death penalty would not be sought.

The Secretary of State’s extradition order had previously been upheld by the Divisional Court in [2011] EWHC 920 (Admin), and the claimant’s Article 3 challenge had subsequently been rejected by the ECtHR in Harkins and Edwards v United Kingdom (2012) 55 EHRR 19. The claimant relied on the later Grand Chamber judgment in Vinter v United Kingdom and on Articles 3, 5 and 6. The central questions were whether the proceedings could be reopened and whether the later Strasbourg decisions materially changed the applicable Convention law.

1. Reopening. The Administrative Court possessed an inherent jurisdiction to reconsider a final judicial-review determination, but only in exceptional circumstances. An analogous test to CPR Pt 52.17 applied: reopening had to be necessary to avoid injustice, the circumstances had to be exceptional, and there had to be no alternative remedy. The requirements were cumulative and imposed a very high threshold.

2. Article 3 and life sentences. Vinter did not materially change the existing law. A life sentence was not irreducible merely because it might be served in full. The essential question remained whether there was a possibility of review, de jure and de facto, enabling consideration of whether continued detention remained justified on legitimate penological grounds. The form and timing of the review were for the relevant state to determine; Vinter did not require a judicial mechanism, a review after 25 years, or judicial review of the review process.

3. Extradition context. The ECtHR’s decision in Harkins and Edwards v United Kingdom had rejected the proposition that the desirability of extradition could be balanced against Article 3 protection, and the court accepted that approach. Nevertheless, the threshold remained high. A sentence had to be grossly disproportionate before extradition would infringe Article 3, and a sentence that might violate Article 3 domestically might not reach the required minimum severity in an extradition case. Convention standards could not be unilaterally imposed on a non-Contracting State.

4. Wellington and Trabelsi. There was a limited conflict between Wellington and the later ECtHR approach concerning the relevance of extradition policy, but the remaining principles concerning gross disproportionality and reducibility were materially consistent. The court was required by section 2(1) of the Human Rights Act 1998 to take account of Trabelsi, but was not required to follow it. It declined to apply what it regarded as new and untried Strasbourg reasoning which transplanted domestic life-sentence requirements wholesale into extradition cases.

5. Outcome. The new evidence concerning Florida clemency did not show that the proposed sentence was irreducible or grossly disproportionate. The Article 5 and Article 6 arguments could have been raised earlier and in any event lacked merit. Permission to bring the further judicial-review proceedings was refused.

The judgment itself records that the claimant’s earlier challenge was dismissed by the Divisional Court in [2011] EWHC 920 (Admin), and that the ECtHR rejected the subsequent application in Harkins and Edwards v United Kingdom (2012) 55 EHRR 19. The present court refused permission to reopen the matter.