Scottish man wanted in the US is victim of a stitch-up

Press Release from Scotland Against Criminalising Communities (SACC)
2pm, Friday 20 January 2012

Scotland Against Criminalising Communities (SACC) says it is disappointed by the decision earlier this week by the European Court of Human Rights (ECHR) to allow the extradition of a Scottish man to the US to face a murder charge. Phillip Harkins is accused of killing Joshua Hayes during an alleged robbery attempt at a Florida dockside in 1999.

SACC says that the Court's decision continues a trend of withholding from people facing extradition or deportation the full rights guaranteed them under the European Convention on Human Rights. SACC is also alarmed that the Strasbourg judges, like British judges who have considered the case, have sidestepped the fact that the evidence looks more like evidence of a stitch-up than evidence of guilt.

Richard Haley, Chair of SACC, said:

"Phillip Harkins isn't the only victim of the flawed legal process. The family of the murdered man, Joshua Hayes, are still waiting for justice. They are understandably relieved by the Strasbourg ruling. But their interests won't be served by a prosecution that seems to be directed towards closing the case instead of towards justice. Nor will they be served by British and European judges who aren't willing to show Florida prosecutors the red card.

"A miscarriage of justice is being manufactured in Florida. Judges in Britain and Strasbourg say it's none of their business. That can't be right."

Background

No physical evidence places Phillip Harkins at the crime scene or connects him to the shooting, despite a forensic examination of his clothing and property and of vehicles said to have been linked to the crime. Witnesses present at the scene gave mulitiple contradictory statements, which changed over time with the way the prosecution was putting the case.

One witness, Toney Randle, was told by Assistant State Attorney Angela Corey that, in exchange for a statement, he wouldn't be charged in connection with Hayes death. He later testified that Angela Corey asked him to put Phillip Harkins name at the crime scene. Toney Randle's statement implicates Assistant State Attorney Angela Corey and Officer Davis, lead detective in the case, in an attempt to pervert the course of justice.

Another witness, Leon Madden, said that the masked man who shot Joshua Hayes was bigger and taller than Phillip Harkins and had a deeper voice. Leon Madden's statement corroborates Toney Randle's later statement that the masked man who shot Joshua Hayes was larger than Phillip Harkins and his voice was different.

The crucial evidence against Phillip Harkins was provided by a young man called Terry Glover. Glover co-operated with the police following a written agreement that the resulting conversation would only be used against Phillip Harkins. Glover was 17 years old. He didn't have legal representation and the meeting wasn't recorded by video or audio. All this was in breach of the Florida rules of criminal procedure.

On that night Terry Glover agreed a plea bargain with the State of Florida. The following day a further agreement was put in writing stating that the State agreed not to charge him with murder but agreed to charge him, and he agreed to plead guilty to, the offences of robbery with a weapon and being an accessory after the fact to first degree murder. At the time of entering this plea agreement Terry Glover was in violation of felony probation for "possession of a firearm", "possession of a deadly weapon", and "possession of crack cocaine". After ensuring that the violation of probation for the aforementioned crimes would be amalgamated with and disposed of for his testimony against Phillip, Terry Glover was eventually sentenced to 5 years probation.

Plea bargains are a commonplace feature of the US justice system. Long prison terms and harsh conditions, often including solitary confinement or other forms of isolation, give prosecutors the leverage they need to extract these "bargains." The current extradition arrangements between Britain and the US have been criticised by human rights groups, including SACC, for failing to include a requirement for prima facie evidence to be shown. But Phillip Harkins case is proceeding under earlier arrangements which do require evidence to be produced. Unfortunately, British judges have taken an extremely narrow view of the evidence and have been supported by the ECHR. They have failed to act upon evidence pointing inescapably towards unethical, unprofessional and illegal conduct by Florida prosecutors and police, saying that this is a matter for the courts in Florida.

In taking this view, they have failed to recognise that plea bargains are so entrenched in the US justice system that a US court is much less likely than a court in Europe to reject this kind of flawed evidence. There is a real risk that Phillip Harkins will not receive a fair trial in Florida. British courts and the ECHR have not yet addressed this risk.

The only issues that the ECHR considered were the risk of the death penalty or of a sentence of life imprisonment without parole, in possible breach of Article 3 of the European Convention on Human Rights, which guarantees freedom from torture or inhuman or degrading treatment or punishment.

The Court chose to accept diplomatic assurances from the US that the death penalty – now considered an automatic breach of Article 3 – would not be sought. It also ruled that a sentence of life imprisonment without parole, would not, in this case, breach Article 3. In doing so it said that:

"treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case."

Article 1 of the European Convention on Human Rights states:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

In rejecting Phillip Harkins appeal, the Strasbourg judges have settled for two tiers of rights and freedoms. Their ruling means that people in European jurisdiction are not entitled to full Convention rights if they happen to be the target for extradition or deportation to a non-European country.

It's a political fix intended to appease powerful non-European countries like the US and their friends and allies in Europe. Unfortunately, it's quite contrary to the spirit of both the European Convention on Human Rights and the UN Universal Declaration of Human Rights.

A miscarriage of justice is being prepared in Florida for Phillip Harkins. In SACC's view, any court that discovers such a thing developing right under its nose has an obligation to take steps to prevent it. It isn't enough to leave the job to another court, especially to one in another jurisdiction.

Notes for Editors

1. Much of the factual background to the case can be found in a High Court judgement refusing Philip Harkins' application for judicial review. Phillip Harkins represented himself, having been told a few days before the hearing that his barrister would be unable to represent him. According to Justice Lloyd Jones, he "presented his arguments ably and efficiently in circumstances which have not been easy for him." See the Full text of the High Court judgement (pdf document)
2. Phillip Harkins legal representative is Yasmin Aslam of AGI Criminal Solicitors in Manchester
3. Phillip Harkins is of mixed race. He was born in Scotland and raised by his grandparents. At the age of 14 he went on holiday to visit his mother in Florida and his parents decided that he would not return to Scotland but live with them. On 11th August 1999 he was arrested in Florida on suspicion of the murder and attempted robbery of Joshua Hayes. On 22nd September 1999, he was notified that he would not be prosecuted for any involvement in the killing of Joshua Hayes. The charges in relation to the killing of Joshua Hayes were formally dismissed by the prosecutor on 18th November 1999, and a notice of this decision sent to the clerk of court. The case was re-opened in early 2000 on the basis of a plea agreement with a key witness, Terry Glover. Throughout 2000 and 2001 Phillip attended all the court hearings in his case. In December 2001 he left the US and went back to Scotland. Following his involvement in a fatal road traffic accident he was arrested in connection with the Florida offence and taken to London, where extradition proceedings commenced. At the time of his arrest he was still severely injured, having discharged himself early intending to take responsibility for the car accident. He wasn't provided with adequate medical care either while in police custody or in prison. On 22 December 2003 he appeared before Edinburgh High Court where he pleaded guilty to causing death by dangerous driving and was sentenced to five years' imprisonment. He was released on parole licence with effect from 3 April 2006, but remained in jail in connection with the extradition. He is currently in Wandsworth Prison.
4. This ECHR's 17 January ruling on Phillip Harkins extradition is a Chamber judgement, reached by a panel of 7 judges. Phillip Harkins and the Home Office have three months in which to lodge a request for a referral to the Grand Chamber of the ECHR, made up of 17 judges. If no request is received by that time, the Chamber judgment will become final.