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Published online by Cambridge University Press: 02 January 2018
It is a familiar principle of the law of extradition that a fugitive should not be surrendered to a requesting State if his alleged offence is of a political character. Yet in recent years this exception to extradition has been the subject of criticism. With the increase in political violence in Europe in the 1970's it was feared that fugitive terrorists might be able to shelter behind the political offence exception. In the United Kingdom some politicians have been particularly disturbed by the application of the political offence exception by the courts of the Republic of Ireland to prevent cxtradition of alleged terrorists.
1. Extradition Act 1870, s 3(1); Backing of Warrants (Republic of Ireland) Act 1965, s 2(2)(0); Fugitive Offenders Act 1967, s 4(l)(a).
2. This construction is taken from various parliamentary debates on the exception. See also Report of the Royal Commission on Extradition (1878) C2039.
3. See further Kirchheimer Political Justice (1961), Ch 9.
4. [1891] 1 QB 149.
5. The definition taken from Stephen, A History of the Criminal Laws in England (1883), Vol II, pps 70–71 Google Scholar was adopted by Hawkins and Stephen JJ, [1891] 1 QB 149 at 165 and 167. The language of Denman J is more equivocal.
6. Cf Amerasinghe ‘The Schtraks case, Defining Political Offenders and Extradition’ (1965) 28 MLR 27.
7. Sir George Bower MP, 6 August, 1866, Parl Debs, Vol 184, col 2122.
8. See eg Schtraks v Government of Israel [1964] AC 556 at 583 per Lord Reid. However, cf Lord Simon's speech in Cheng v Governor of Pentonville Prison [1973] AC 931.
9. [1973] AC 931 at 945.
10. European courts have confronted the same problems when applying the political purpose approach. See Wijngaert The Political Offence Exception to Extradition (1980) pp 120–132.
11. The Swiss courts inter alia have actually adopted this approach. See eg Ktir v Ministere Public Federal 34 ILR 143 at 144.
12. Cf the Swiss case of Re Ockert (1933–34) 7 Annual Digest of International Law 369.
13. Lord Diplock was presumably attempting to accommodate Re Kolczynski [1955] 1 QB 540, if so his explanation of the case is at odds with the judgments in that case, discussed below.
14. [1955] 1 QB 540. Commentators have sometimes seen Re Kolzynski as a special rule apart from the general approach to the political offence: see eg Amerasinghe, loc cit, at 544. It will be clear from the text that I take a different view of it.
15. Cassels J, the other member of the Divisional Court who delivered a reasoned judgment rested his judgment on rather different grounds see below p 218.
16. [1964] AC 556 at 591.
17. In addition to the cases discussed in the text see Cheng v Governor of Pentonville Prison [1973] AC 931 at 942, 961, per Lords Hodson and Salmon; R v Governor of Winson Green Prison, ex p Littlejohn [1975] 3 All ER 208; Re Taylor [1973] NI 159.
18. [1969] 1 WLR 12 at 19.
19. [1980] 1 WLR 1110 at 1125.
20. [1964] AC 556 at 589.
21. This view is elaborated in Lowe and Young, ‘Suppressing Terrorism under the European Convention: A British Perspective’ (1978) 25 Netherlands International LR 305 at 321–324; Warbrick, [1980] PL 113, at 120–122.
22. Extradition Act 1870, s 3(2); Fugitive Offenders Act 1967 s 4(3).
23. Atkinson v United States Government [1971] AC 197. This was exercised in the case of Christos Kotronis after the House of Lords held there was no basis on which the courts could prevent his extradition in Royal Government of Greece v Brixton Prison Governor [1971] AC 250.
24. Re Arton [1896] 1 QB 108 at 114 per Lord Russell CJ; Cheng v Governor of Pentonville Prison [1973] AC 931 at 944, per Lord Diplock.
25. Schtraks v Government of Israel [1963] 1 QB 55 at 83, per Lord Parker CJ; [1964] AC 556 at 588, per Lord Radcliffe. R v Pentonville Prison, ex p Budlong [1980] 1 WLR 1110 at 1126.
26. [31964] AC 556 at 588.
27. These provisions were borrowed from Art 3 of the European Convention on Extradition 1957, European Treaty Series No 24.
08. 6 February 1967, Parl Debs, HC, Vol 740, col 1161. See also the contributions of Lord Reid, 17 April 1967, Parl Debs HL Vol 282, col 76, and Viscount Dilhorne, 15 June, 1967, Parl Debs, HL, Vol 283, col 1090.
29. This conclusion is rejected by the Government Interdepartmental Working Party, A Review of the Law and Practice of Extradition in the United Kingdom (1982), but it does not explain why the political offence exception as presently interpreted may protect the fugitive where the asylum proviso could not.
30. The Interdepartmental Working Party, op cit, has produced comprehensive proposals for such an overhaul. The Report recommends that the asylum proviso should be extended as suggested here. Indeed, it is apparenty ‘present policy to seek the inclusion of safeguards on the lines of s 4(1) of the 1967 Act in new extradition treaties whenever the other State agrees.’ (Para 6.9).
31. Op cit, para 64.
32. See Lowe & Young, loc cit.
33. In Fernandez v Government of Singapore [1971] 1 WLR 987 the House of Lords showed some understanding of the difficulties of proving the risk of prejudice when it was said that a fugitive must show that there is a ‘reasonable chance’, ‘serious possibility’ or ‘substantial grounds for thinking’, that one of the eventualities envisaged in s 4(1)(c) might occur.
