Appeals by Antonis Zacharia and Euripides Arestidou from orders of the Divisional Court of the Queen's Bench Division (LORD PARKER, C.J., ASHWORTH and WIDGERY, JJ.), dated Nov. 22, 1961, dismissing the application of each appellant for a writ of habeas corpus and for relief under s. 10 of the Fugitive Offenders Act, 1881. On Sept. 13, 1961, at Bow Street Magistrates' Court orders had been made under s. 5 of the Act of 1881 committing the appellants to Brixton prison pending their return in custody to Cyprus, in the case of Zacharia, in respect of four warrants alleging offences of abduction, demanding money with menaces and murder, and in the case of Arestidou in respect, of one warrant alleging offences of demanding money with menaces and possessing a firearm. The Divisional Court refused the appellants leave to appeal to the House of Lords but by an order dated Dec. 20, 1961, the Appeal Committee of the House granted the appellants leave to appeal. The grounds of the appeals, put forward in the petitions of the respective appellants for leave to appeal, were that: - (i) The Divisional Court in exercising its discretion under s. 10 of the Fugitive Offenders Act, 1881, failed to take into account the political aspects and character of the alleged offences, and failed to apply or relate the provisions of s. 3 of the Extradition Act, 1870. (ii) The Divisional Court placed too narrow a construction on the words of s. 10 of the Act of 1881, in considering whether (a) the applications for the return of the appellants to Cyprus were made faith in the interests of justice; (b) the orders for return were, in all the circumstances, unjust or oppressive. It was further submitted by both appellants that the Divisional Court wrongly held that the depositions in support of the count in the second warrant, alleging the offence of demanding money with menaces, disclosed a strong or probable presumption of guilt of that offence.
The Divisional Court were not asked to, and did not, certify under s. 1 (2) of the Administration of Justice Act, 1960, that their decision dismissing the applications for writs of habeas corpus and for relief under s. 10 of the Fugitive Offenders Act, 1881, involved a point of law of general public importance. As a result a preliminary point arose as to the jurisdiction of the House of Lords to hear the appeals in the absence of such a certificate. The appeals we directed only to the issue of relief under s. 10 of the Fugitive Offenders A 1881, and in this circumstance it was contended by the second respondent, the Governor of Brixton Prison, that the appeals were not made in a criminal application for habeas corpus so as to come within s. 15 (3) of the Administration of Justice Act, 1960, and therefore could not be entertained by the House of Lords unless the Divisional Court had given a certificate pursuant to s. 1 (2) of the Act of 1960.
The facts are fully set out in the opinion of LORD RADCLIFFE, pp. 450, letter F, et seq., post.
J. N. Hutchinson, Q.C., and J.C. Mathew for the appellants.
E. Clarke, Q.C., and J. Bolland for the first respondents, the Republic of Cyprus.
J. H. Buzzard for the second respondent, the Governor of Brixton Prison.
The House took time for consideration.
Apr. 17. The following opinions were read.
VISCOUNT SIMONDS: My Lords, your Lordships have to consider two appeals from orders of the Divisional Court of the Queen's Bench Division, the first entitled
"In the matter of Antonis Zacharia and In the matter of an application for a writ of habeas corpus ad subjiciendum and for relief under s. 10 of the Fugitive Offenders Act, 1881",
the second similarly entitled with the substitution of the name of Euripides Arestidou for that of Antonis Zacharia. My reason for thus setting out the titles of the orders of the court will appear. Much that I have to say concerns both appeals, but I will for convenience deal in the first place with that of Zacharia.
On Sept. 13, 1961, at Bow Street Magistrates' Court an order was made under s 5 of the Fugitive Offenders Act, 1881, committing Zacharia to Brixton prison pending his return to Cyprus in respect of warrants on which he had previously been arrested. These warrants, to which I will presently return, had been duly indorsed under s. 3 of the Act and Zacharia had been apprehended accordingly. Under s. 5 it is the duty of the magistrate before whom the fugitive when apprehended is brought to hear the case in the same manner and exercise the same jurisdiction and powers as near as may be as if the fugitive were charged with an offence committed within his jurisdiction. And, if the indorsed warrant for the apprehension of the fugitive is duly authenticated and such evidence is produced as, subject to the provisions of the Act, according to the law administered by the magistrate raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant and that the offence is one to which that part of the Act applies, it is his duty to commit the fugitive to prison and forthwith to send a certificate and such report of the case as he may think fit to the Secretary of State. It is further his duty when he commits the fugitive to inform him that he will not be surrendered until after the expiration of fifteen days and that he has a right to apply for a writ of habeas corpus or other like process.
I refer also to s. 6, because it has a bearing on the observations I shall finally make. That section provides that on the expiration of fifteen days after a fugitive has been committed to prison to await his return or, if a writ of habeas corpus or other like process is issued with reference to such fugitive by a superior court, after the final decision of the court in that case, the Secretary of State may, if he thinks it just, by warrant under his hand order that fugitive to be returned to the part of Her Majesty's dominions from which be is a fugitive with the necessary ancillary directions.
I pass over s. 7 and s. 8 of the Act and mention s. 9 only to note that treason is specifically mentioned as an offence to which the Act applies and that it beyond all question covers the several offences charged in the warrants on which Zacharia was arrested.
It is s. 10 with which your Lordships have been mainly concerned and since it has been closely analysed by the learned counsel for the appellants I must set it out in full. It provides as follows:
"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."
The warrants to which I have referred alleged numerous offences by Zacharia, abduction, carrying a revolver or pistol contrary to the firearms law, assault, robbery with violence, demanding money with menaces, murder and again murder. They were supported by depositions on which the learned magistrate came to the conclusion that they raised a strong or probable presumption that Zacharia had committed the offences named in the warrants. Some discussion took place before your Lordships as to the exact meaning and content of the words "strong or probable presumption". To me it appeared academic, for, unless the words mean nothing at all, I do not see how the magistrate could have failed to find in the depositions ample justification for the course which he took. He duly committed Zacharia to prison to await his return to Cyprus but in further accordance with his duty notified him of his right to apply a writ of habeas corpus.
The right was in due course exercised by Zacharia and in accordance with the modern practice leave was sought of PLOWMAN, J., and granted by him that the Queen's Bench Division should in due course be moved on behalf of Zacharia that a writ of habeas corpus in the usual form should issue directed to the Cyprus government representative in London and to the Governor of Her Majesty's Prison at Brixton.
The motion came before the Divisional Court consisting of LORD PARKER, C.J., ASHWORTH and WIDGERY, JJ. It was supported by numerous affidavits and exhibits, to which a number of affidavits was filed in answer by the Cyprus government. It was dismissed by the court, the Lord Chief Justice delivering a long and careful judgment in which the other members of the court concurred Leave to appeal was obtained from the Appeal Committee of this House and so the matter came before your Lordships.
It is now necessary to mention a matter which did not emerge until the hearing of the appeal had proceeded for some time. It then appeared that a serious question arose whether the appeal, being undoubtedly in a criminal cause or matter, could be entertained by this House unless a certificate had been given by the court below that a point of law of general public importance was involved in their decision. No such certificate had been asked for or obtained. Your Lordships proceeded to consider this as a preliminary point and by a majority decided that it was not well founded. I feel constrained to express my own view that this is a wrong decision and, I may add, my regret that it should have been reached.
Apart from the provisions of the Administration of Justice Act, 1960, the appeal would clearly have been incompetent. It is necessary then to consider the relevant sections of that Act. They are ss. 1 and 15.
Section 1 (so far as relevant) provides that (1) an appeal shall lie to the House of Lords at the instance of the defendant or the prosecutor from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter; but (2) that no appeal shall lie under this section except with the leave of the court below or the House of Lords and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.
So far the matter is clear. No appeal lies in a criminal cause, including an application under s. 10 of the Fugitive Offenders Act, 1881, without (inter alia) the proper certificate.
Section 15, however, which comes within a fasciculus of sections headed "contempt of court, habeas corpus, and certiorari", provides by sub-s. (1) that, subject to the provisions of that section, an appeal shall lie in any proceedings on application for habeas corpus, whether civil or criminal, against an order for the release of the person restrained as well as against the refusal of such an order, and by sub-s (3) that in relation to a decision of a Divisional Court on a criminal application for habeas corpus s. 1 of the Act should have effect as if so much of sub-s (2) as restricted the grant of leave to appeal were omitted.
Here then is the question: "When an order is ex facie made on an application for habeas corpus and for relief under s. 10 of the Fugitive Offenders Act, 1881, is an appeal from that order to be regarded as an appeal in an application for habeas corpus within the meaning of s. 15, when it is directed only to relief under the Act?"
Some guidance is to be obtained from authority. In R. v. Govenor of Brixton Prison, Ex p. Savarkar, the distinction between an application for a writ of habeas corpus and an application for relief under s. 10 of the Act of 1881 and between the remedies which could be granted in regard to such applications respectively was clearly pointed out. The facts were somewhat complicated but are accurately stated in the headnote which I repeat. An order nisi for habeas corpus was obtained in the King's Bench Division on the application of a person in custody under the Fugitive Offenders Act, 1881, but was afterwards discharged. The affidavit on which the order nisi was obtained stated (inter alia) matters material as ground for the exercise of the power given by s. 10 of the Act but the order nisi was simply in form for a habeas corpus and not in the alternative for relief under s. 10. On the argument of the order nisi the matters referred to in the affidavit were discussed and the court in giving judgment pronounced them as insufficient for the exercise of the power given by s. 10. The order ultimately drawn up, however, was simply for a discharge of the order nisi for habeas corpus. An application was subsequently made to the Court of Appeal to exercise the powers given by s. 10 as having original jurisdiction in that behalf under the Act concurrently with the High Court. A preliminary objection was taken to the hearing of the application on the ground that the matter had been previously adjudicated on by the King's Bench Division and was therefore res judicata. It was held unanimously by a strong court (VAUGHAN WILLIAMS, FLETCHER MOULTON and BUCKLEY, L.JJ.) that, inasmuch as the only matter adjudicated on by the order of the King's Bench Division as drawn up was that the order nisi for a habeas corpus should be discharged, the matter of the application to the Court of Appeal (i.e., for relief under the Act of 1881) was not res judicata. The point at issue is summed up most concisely by FLETCHER MOULTON, L.J. in these words:
"In my opinion, the relief which the court is empowered to give under s. 10 and s. 35 of the Fugitive Offenders Act, 1881, ought to be made the subject of a substantive application to the court. Such relief has in reality nothing to do with relief by habeas corpus; it can be obtained by an independent application to the court; and I think it was the intention of the statute that it should be so."
BUCKLEY, J.J., puts it thus:
"The question which is raised upon the application for a habeas corpus is whether the fugitive is validly imprisoned or detained, and that which is raised under s. 10 and s. 35 is whether, it having been found that he is lawfully detained, he ought or ought not to be deported."
This view of the law has never so far as I am aware been challenged, though, as happened in the case cited, it has sometimes been found convenient to raise and discuss on a habeas corpus application matters that are relevant only to relief under the Act of 1881. But this should not obscure the fact that (as the title to the order shows) here are two different claims (i) that the fugitive is not lawfully detained to which alone the remedy of a writ of habeas corpus is appropriate and (ii) that relief should as a matter of discretion be granted by the court under the Act of 1881. It is only if the applicant fails on the first application that he needs to urge the second. And on that application the relief that may be granted is far different from any that a court can grant on a successful application for habeas corpus.
Is there then any reason why in s. 15 of the Administration of Justice Act, 1960, the words "a criminal application for habeas corpus" should be extended to mean an application under the Fugitive Offenders Act, 1881, which has been joined with an application for a writ of habeas corpus? Where the fugitive has been found to be lawfully detained the writ of habeas corpus is spent. The hope remains to him that he may get relief under s. 10 of the Act by judicial process or as a last resort under s. 6 by executive favour. I see no reason for straining the language of s. 15 of the Act of 1960. It is of course clear that that Act has opened the door wider than ever before to criminal appeals to this House. There remains under s. 1 the substantial Safeguard from frivolous application which sub-s. (2) affords. It is not provided in the case of criminal application for habeas corpus under s. 15 but I see no reason for giving to those words a wider meaning than they naturally bear. Nor, though Parliament has thought fit to give to the subject whose legal rights are involved, as they necessarily are in habeas corpus, an unqualified right of appeal, do I see any reason why he should be given a similar right where the relief that he claims is prima facie a matter of judicial discretion.
Your Lordships have, however, decided otherwise and the appeal has proceeded on the footing that no certificate was necessary and it is on that footing that I now examine it.
My Lords, I think that the only question of law that arises on this appeal is one that is not referred to in the judgment of the Lord Chief Justice. It is whether it is relevant to the consideration of relief under s. 10 of the Fugitive Offenders Act, 1881, to determine whether the offences with which the fugitive is charged are "political offences" within the meaning of the Extradition Act, 1870. That question arises in this way. By the Cyprus Act, 1960, it was provided by s. 1 that on the day on which Her Majesty should by Order in Council declare that the constitution of the Republic of Cyprus should come into force there should be established an independent sovereign Republic of Cyprus over which Her Majesty should have no sovereignty or jurisdiction. Section 3 provided that on or after that day any existing law which operated as law of, or of any part of, the United Kingdom being a law applying in relation to Cyprus or persons or things in any way belonging thereto or connected therewith, should (save as therein mentioned) continue to apply in like manner in relation to the Republic of Cyprus or persons or things in any way belonging thereto or connected therewith. It follows that the Fugitive Offenders Act, 1881, which before the establishment of the Republic of Cyprus applied to that island and its inhabitants, continued after the establishment and continues so to apply. But the Fugitive Offenders Act, 1881, unlike the Extradition Act, 1870, makes no exception of political offences. It would be strange if it did, since in the forefront of the offences for which a fugitive offender may be apprehended and returned to his own country is placed the offence of treason. I am therefore of opinion that it is irrelevant to consider whether the offences with which Zacharia has been charged could in another context be called "political offences", and I must respectfully dissent from a dictum of LORD GODDARD, C.J., in Re Government of India and Mubarak Ali Ahmed, where a similar question arose on the establishment of the Republic of India, that
"in a proper case the court would apply the same rules with regard to applications under the Fugitive Offenders Act, 1881 as it does under s.3 (1) of the Extradition Act, 1870."
It is proper that I should add that in any case I could not come to the conclusion that the offences with which Zacharia has been charged were political offences.
This question, which is undoubtedly of importance, having been disposed of, what remains? My Lords, the Divisional Court has exercised a discretionary jurisdiction under s. 10 of the Act. Interference with such an exercise can only be justified if that court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. That is a principle on which this House, sitting as a final court of appeal, has always acted and will, I hope, continue to act, not least in matters of criminal jurisdiction which have traditionally been the province of the Court of King's Bench. I should therefore be content to say that I see no possible ground in this case for substituting my own view, if I had a different one, for that of the Divisional Court. But the earnest and persuasive argument of counsel for the appellants leads me to make certain observations. In the first place he challenged the good faith of the application denying that it was in the interests of justice and asserting that it was made for the purpose of revenge. I asked in vain whose good faith was impugned. It was said that various persons who played some part in the proceedings were or had been members of the organisation known as E.O.K.A. and therefore were suspect. But in effect your Lordships were asked to say that the whole background suggested a picture of the responsible authorities in Cyprus trying by these proceedings to punish a man who had been a traitor to a patriot cause. When such a contention is put forward I recall what was said by the first Low) RUSSELL OF KILLOWEN, C.J., in Re Arton (No. 1):
"I come now to the third, and last, ground upon which this rule has been moved-that the demand for extradition is not made in good faith and in the interests of justice. It has been pointed out by myself and my learned brothers during the argument that this is in itself a very grave and serious statement to put forward, and one which ought not to be put forward except upon very strong grounds; it conveys a reflection of the gravest possible kind, not only upon the motive and actions of the responsible government, but also impliedly upon the judicial authorities of a neighbouring and friendly power. Is it open to us at all to consider such a suggestion? In my judgment, it is not, and I have already stated the grounds for my opinion."
My Lords, I do not hesitate to apply these words to the present case. Whoever may in form be regarded as the applicant under s. 10, the proceedings have been adopted by the Government of Cyprus who are a party appearing before the House. The charges made against Zacharia are supported by evidence which raises a strong or probable presumption that he has been guilty of very serious crimes. It has not been suggested that the courts of Cyprus will not try him fairly. He is, it is said, fearful lest evidence should be fabricated against him. But I do not doubt the competence of the court to discriminate between the false and the true. Why then should he not be tried?
It is said that, if he returns to Cyprus even under police guard, he will be in danger of assassination by revengeful members of E.O.K.A. And it is true that attempts were made on his life before he left Cyprus in January, 1961, and that his peril was then recognised by the Cyprus government. It is said that for this reason it would be in the words of the section "unjust or oppressive" to send him back. How serious this danger will be, your Lordships are in no position to judge, but it is, I think, proper to assume that, forewarned of the danger, the Cyprus authorities will take the necessary precautions for his safety before and during his trial. If he is acquitted, he will be able to invoke the provisions of s. 8 of the Act and may procure his return free of cost to this country.
Some criticism was directed to the fact that the Cyprus authorities assisted Zacharia to leave Cyprus and, having done so, then commenced the proceedings which have culminated in this appeal. If there is any weight in this criticism, it bears on the question of good faith with which I have already dealt. But I see no weight in it. It is a fair conclusion that the police authorities obtained after his assisted departure evidence that was not then available. On the other hand, it would be paradoxical to suppose that they would at any time have assisted him to escape from threatening danger if, as is now alleged, they are animated by a spirit of revenge and are not acting in good faith in the interests of justice.
I would for these reasons dismiss this appeal. I have only to add that, as I have already pointed out, the appellant can still have recourse to the Secretary of State. He may have access to information more reliable than that supplied by the conflicting affidavits on which the court must come to a judicial decision.
There remains the appeal of Euripides Arestidou. The charge against him is less serious but it is within the scope of the Act. It was urged on his behalf that the depositions did not justify the magistrate in committing him, and your Lordships thought it right, while accepting the view that the magistrate's decision in these cases is not to be lightly disturbed, to scrutinise the evidence carefully. Having done so, your Lordships thought the matter so clear that it was not necessary to call on counsel for the respondents on this point.
In other respects I see no reason for distinguishing his case from that of Zacharia. His appeal also must be dismissed.
LORD RADCLIFFE: My Lords, I have not found it easy to know what a court of law ought to do in dealing with these applications under the Fugitive Offenders Act, 1881. I do not think that their circumstances are at all usual or that there is any help to be got from what has been said by judges in the comparatively few reported cases under this Act or the Extradition Act, 1870.
There are however two matters on which I do not feel any doubt. The first is that on the appeal before us the only fair debatable questions are those which relate to s. 10 of the Act of 1881. It is true that under s. 5 the magistrate before whom arrested persons are brought for committal to await return has to be satisfied on the evidence produced to him that it raises "a strong or probable presumption" of guilt, and it was put to us on behalf of the appellants that no such presumption arose from the evidence adduced on the second warrant relating to the demanding of money by menaces from one Costas Triantifillides. Since the second warrant is the only one which concerns the appellant Arestidou, the point is material in his case: but I am satisfied that, as the evidence stands, it is impossible to say that there is not at any rate a probable presumption of guilt attaching to both appellants in respect of this charge.
The Divisional Court has already held that there was no sufficient evidence to support the probability on the first count covered by the second warrant, that of robbery with violence; but, even if that is kept out of the way, there is still enough to support the probability of guilt on the second count, that of demanding money with menaces. I do not think therefore that either of the appellants has any case to argue in this House as to the propriety of the magistrate's decision under s. 5 of the Act. The whole appeal turns on what should be the decision of a "superior court" exercising its powers and duties under s. 10, having regard to the evidence that has been put before it as bearing on that issue.
The second matter relates to the scope of the considerations of which the court is entitled to take account when it acts under s. 10. It was urged before us that the evidence showed that the offences covered by the warrants were political offences or that the application made by the Republic of Cyprus for the return of the fugitives was made with a view to trying or punishing the appellants for offences of a political character. These considerations are avowedly borrowed from s. 3 of the Extradition Act, 1870, and they are not referred to, expressly or by implication, in s. 10 of the Act of 1881, which is the Act that we have to apply. Is it permissible for the court exercising its jurisdiction under the Act of 1881 to import them on its own authority and, having done so, to address itself to the possible political aspects of an application for the return of an offender? I know that it has been said that this importation is permissible (see Re Government of India and Mubarak Ali Ahmed, but I think that the point was there assumed rather than decided and in my opinion it is quite clear that a court acting under s. 10 is confined to the considerations of which it is there directed to take account and has no authority to set up a separate category formed out of political considerations to which its attention is neither directed nor invited.
Apart from the fact that parts of the procedure and machinery employed are much the same, I can see no interconnexion between the Extradition Act. 1870, and the Fugitive Offenders Act, 1881. The former has as its basis some arrangement or treaty made between the Crown and a foreign power and Parliament has itself prescribed what are evidently regarded as fundamental restrictions on the operation of any such extradition arrangements. The whole Act of 1870 rests on the importance of preserving in this country the right of political asylum as then recognised. Thus the first condition, of s. 3 [of the Extradition Act, 1870] forbids the surrender of a fugitive if his offence is of a political character or the extradition demand is found to be prompted by an intention to try him for a political offence: s. 3 (2) forbids his being detained for trial, once extradited, on any offence different from that for which he was surrendered: s. 7 authorises the Secretary of State to refuse a requisition for surrender from the diplomatic representative of a foreign state if he considers the offence to be of a political character and on the same ground to discharge from custody a person so accused or convicted: s. 9 directs the magistrate before whom the fugitive is brought to receive any evidence tendered as to the political aspect of the offence charged: and, lastly, the offence of treason is, perhaps noticeably, omitted from the list of extraditable crimes which is set out in Sch. 1.
The Fugitive Offenders Act, 1881, on the other hand, gives no indication that it is concerned with any right of political asylum. It is intended to apply as between the various portions of Her Majesty's Dominions and has no dependence on the making of extradition treaties or arrangements. It does not require reciprocity because the Act is intended to apply by its own force to all the territories concerned and reciprocity is therefore assumed. It operates without any of the restrictions that are a conspicuous feature of the Extradition Act, 1870. The crimes to which it is to apply are comprehensively described in s. 9 and the only two which are identified by name are treason and piracy. The magistrate who hears an application for committal has no authority to consider whether the offence is of a political character; and the various considerations which are listed in s. 10 as requiring the attention of a court to which application is made, though extensive and far-reaching, do not include any element that has any direct bearing on those issues that are concerned with political asylum. For these reasons I conclude that the court, if it is to intervene at all, must find its ground for action in one of the categories listed in s. 10 and that "political offence" and "political character" are not among them. It can no more introduce these considerations into its decision under the Fugitive Offenders Act, 1881, than a court acting under the Extradition Act, 1870, could refuse an order on the ground that the application for surrender is not made "in good faith in the interests of justice" (see Re Arton (No.1)).
Now s. 10, as I have said, specifies a number of grounds for the intervention of a court where it is "made to appear" to it that certain circumstances exist. The only formula that could be relevant to the present case, as I see it, would be that
"by reason of the application for the return of [the] fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to all the circumstances of the case, be unjust or oppressive to return the fugitive "
The Divisional Court, from which the appeal reaches us, has stated its position very clearly in the judgment of the Lord Chief Justice, and I think that it is not unfair to summarise it as saying that, while there is a real danger that evidence against the appellant Zacharia will be fabricated, if he stands trial in Cyprus, and a very real danger of his being assassinated, it has not been made to appear that the application for return is not made in good faith in the interests of justice nor, weighing the danger to life against the gravity of the offences alleged, would it be oppressive to send him back "purely for that reason". As to the other appellant, Arestidou, the evidence of danger of assassination was much slighter in his case and, if Zacharia had to be sent back, so a fortiori must he go. The court stated that it reached its conclusion that it could not intervene with some regret and I am quite sure that if I came to the same conclusion l should share that feeling, for the ascertainable facts of the case, to which I will come shortly, can only leave one with a sense of deep misgiving as to where the balance of justice lies.
It was argued however on behalf of the Republic of Cyprus that in refusing to act under s. 10 the Divisional Court had exercised a discretionary power vested in it by the Act and that this exercise could not be interfered with on appeal unless vitiated by the adoption of some principle of law which was itself incorrect. For more than one reason I do not think that this argument should succeed. A court acting under s. 10 may in one sense be exercising or refusing to exercise a discretion, but when its power to act is introduced by the words "where it is made to appear", I think that it is primarily a question of law in each case whether what does appear amounts to one or more of the specified circumstances. If it does, it is, I think, the court's duty to act, not its privilege to decide whether to act or not. "I hold that it is proved that the return of the fugitive would be unjust and oppressive and too severe a punishment, but nevertheless in the exercise of my discretion I shall take no action" is not in my opinion a maintainable attitude for a court faced with an application under this section.
Apart from this, however, there are other grounds which make it right to review the Divisional Court's decision. It is not in my view an adequate assessment of the evidence bearing on what is unjust or oppressive to allude only to the very real danger that Zacharia will be assassinated if he is taken back to Cyprus. There are several other circumstances of the case not alluded to at all in the Divisional Court judgment which have a direct bearing on the oppressive aspect of what is proposed to be done. I will mention them later, but I think that it is an error not to recognise that these factors too contribute weight to the critical balance.
Lastly, I am bound to say that in my opinion the judgment under appeal has erred in law in placing on an applicant under s. 10 an onus or in putting him under the burden of a presumption for which neither the section nor the Act that contains it gives any authority. Briefly, it seems to have been the basis of the court's view that in considering applications under s. 10 there must be imported memo presumption in favour of the good faith and impartial desire for justice of a government that applies for the custody of a fugitive offender.
"It seems to me that when one is dealing with a friendly sovereign power and, indeed, a member of the British Commonwealth, that very strong evidence indeed would be required to justify this court in holding that such a government was not, in making such an application as this, acting in good faith and in the interests of justice",
it is said at one point. And again, more generally,
"it is comparatively rare for the court to exercise those powers, and for the very good reason that in dealing with the government of a friendly power it would only be in an extreme case that the court would think it right to refuse their request to have their national returned to their country for an alleged offence committed in that country."
I do not for one moment suppose that the learned Lord Chief Justice or his colleagues would ever be anything but scrupulous in weighing the balance of any case put before them in an application under s. 10. I am quite sure that they would not be. Nevertheless I think, with respect, that expressions such as those I have quoted are a bad guide to those who have to exercise this jurisdiction. To be specific, it is not a relevant consideration, nor does it give rise to any presumption, that an applicant for surrender is a friendly power or a member of the Commonwealth. The whole Fugitive Offenders Act, 1881, was conceived as applicable to Her Majesty's Dominions only, just as the Extradition Act, 1870, was conceived as relating only to those friendly powers with whom there had been made the appropriate extradition treaty. Yet, given the range within which the Act of 1881 can operate, Parliament has decreed in s. 10 that if the facts show an application for surrender not to be made in good faith and in the interests of justice, the court must perform its duty and discharge the prisoner. This must depend on the evidence before it in each particular case: it must not be a matter that is aided or influenced by presumptions. In my opinion the court has no right to demand a special standard of proof, such as "very strong evidence", or to decline to act except in "an extreme case" or on "comparatively rare" occasions either because the surrender is demanded by a Commonwealth government or by a friendly power or because the good faith of such a demand is challenged on the application or because some imputation is sought to be made on the judicial process to which the fugitive offender, if surrendered, will be subjected.
I do not doubt that in practice it will be very difficult for a fugitive offender to make good a case of this sort by any evidence that he can muster. Such cases are inherently difficult of demonstration and in that practical sense the occasions will probably be rare on which a court will be entitled to intervene. Bur that, if anything, is a reason why it should address itself indifferently to the question what is "made to appear" by the evidence available without any preconceptions as to the probable result of its scrutiny. For these reasons I do not myself find it satisfactory to rely on the observations of LORD RUSSELL OF KILLOWEN, C.J., in Be Arton (No. 1) which were cited to us. While he was, if I may say so, clearly correct in ruling that the question whether a demand for extradition was made in good faith and in the interests of justice could not be entertained by the court under the Extradition Act, 1870, since it was not brought by the Act within the factors open to the court's review, the justification for that ruling lies in the frame and wording of that Act and not in the consideration that such a challenge involves a very grave and serious reflection on the motive and actions of a responsible government. Certainly such allegations are very grave matters but they are matters which the express wording of the Fugitive Offenders Act, 1881, makes it permissible for an applicant to raise.
Having said this much I must add that in my opinion the evidence now before the court does not make it appear that the republic's application for return of the appellants is not made in good faith and in the interests of justice. There is no solid evidence to support the case. The most that can be said is that there is a curious inconsistency in the attitude of the government in first facilitating Zacharia's departure from the island and then seeking to reclaim him as a fugitive criminal; and that there is an uncontradicted statement by Zacharia that the Minister of Justice and the investigating and prosecuting officers in Cyprus, who are concerned with his case, are members of E.O.K.A., the terrorist organisation against which he claims to have worked for the government forces during the disturbances which preceded the setting up of the independent republic. But there is nothing in those facts which is sufficient to support the case that the present government of Cyprus is actuated by other motives than a genuine desire to execute justice when it applies to have the appellants sent back to stand trial for the crimes that it believes itself able to prove against them.
There remains then the question whether for any other reasons, "otherwise", it would be unjust or oppressive to return the appellants and this, I think, constitutes the real difficulty of the case. The difficulty lies partly in the fact that the court has to make up its mind on the basis of affidavit evidence only, that a great many of the statements made on one side are contradicted, often in the most vague and general terms, by statements made on the other, and that not a few of those statements, some of considerable possible importance, are expressed in a form which does not present even the elements of acceptable evidence on which a court of law could act. This is particularly noticeable in the case of the affidavit of Costas Constantinides, the divisional commander of gendarmerie at Limassol, which is put in as the main reply to the appellants' application. This deponent constantly founds his statements, which are serious indeed, on such bases as "it is suspected that " and "it appears that "; and it is not reassuring to find that in para. 17 of this affidavit he treats the appellant Zacharia as equally implicated in a series of very grave charges, even though he knows that in respect of some of them Zacharia was arrested and discharged or had the charge withdrawn before he ever left Cyprus.
The other difficulty lies in the fact that the four warrants for the arrest of Zacharia relate to what can only be called terrible crimes for which, it is accepted, there has been shown a probability of guilt and the offence charged against Arestidou is at any rate a serious one. No court could refuse to return such persons for trial unless it was satisfied that to do so came fairly within the admissible idea of what would be unjust or oppressive.
I have come to the conclusion that there is no other fitting description of an order for return than that it would be oppressive. Since any conclusion on this must depend on the total impression created by a number of separate factors, I will set out briefly such of them as I think can safely be extracted from the evidence before us, though I am aware and am sorry that the conclusion arrived at by others of your Lordships does not agree with mine.
(1) During the period of terrorist or insurrectionary activity against the then Government of Cyprus which preceded the setting up of the independent republic in 1960 Zacharia assisted the special branch of the Cyprus police, providing them with information. There was an E.O.K.A. attempt to murder him in 1957, in which he was wounded, and after the incident he was provided with a gun and permit by the then head of the Cyprus police C.I.D.
(2) In the autumn of 1960 a leaflet was circulated in his neighbourhood, purporting to be composed by persons styling themselves "E.O.K.A. fighters", in which he was accused of having "persecuted and tortured the heroes of E.O.K.A." and is referred to as a well-known traitor and criminal. The leaflet attributes to him, with the complicity of the special branch, the murder of Mouzomenos which is the subject of warrant No. 4 and it plainly announces the intention of the authors, whoever they may be, to exterminate Zacharia. Constantinides says in his affidavit (para. 22) that this leaflet, which he evidently knows of, cannot be an official E.O.K.A. proclamation and must be attributed to persons not connected with E.O.K.A. at all or not having its authority to make such announcements. According to him E.O.K.A. "as such" ceased to function or to have connexion with any activities whatsoever after March, 1959.
(3) Shortly after distribution of the leaflet Zacharia says that four of his friends and associates (he is evidently some sort of gang leader) were murdered. He and his brother were arrested and charged with these murders, but the charges were subsequently withdrawn and he was discharged. While he was on remand his partner, Makrides, was murdered by E.O.K.A. Constantinides denies that the murdered men were friends or associates of Zacharia.
(4) On Nov. 22, 1960, Zacharia visited Archbishop Makarios to complain that his life was in danger from E.O.K.A. On returning to his home he was arrested and charged with the attempted murder of one Tryfonkafkari and on the next day, while being driven into the court precincts handcuffed to a police officer, his assassination was attempted by five men armed with pistols. He escaped death by leaping into the yard of the court dragging the police officer with him. He was later discharged by the magistrate after preliminary bearings. Constantinides' affidavit does not accept the truth of this incident but it is impossible to tell what it is that the deponent denies or what his knowledge of it amounts to.
(5) Zacharia's brother was sent for trial on the same charge and acquitted. During the course of the trial Zacharia was talking to a police officer outside the court when another attempt to kill him was made by a man whom he identifies as a member of E.O.K.A. called Panayotis. The bullet missed him but killed the policeman who was standing beside him, one Genethliou.
(6) After this attack Zacharia visited the Home Secretary, who advised him to stay at home and afforded him police protection by day and night.
(7) In December two more of his associates suffered violent death.
(8) In the following month, January, 1961, Zacharia left Cyprus. The incidents accompanying his departure are of considerable importance of this case and I mention them in some detail. On Jan. 25 he was taken under police protection from Limassol to Nicosia. On the next day he had his second interview with the Home Secretary in which he spoke of the murder of his friends. On Jan. 27 he was taken to Nicosia airport still under police protection and the captain of gendarmerie who accompanied him has deposed at a trial in Nicosia, which took place in April of the same year, that in doing so he was acting on the instructions of the competent ministry. Zacharia and his family then boarded an aeroplane and flew to England. On arrival he communicated with the Home Secretary in Cyprus, as he had been instructed to do, giving his London address.
(9) There can be no doubt that the authorities in Cyprus actually sent him out of the island with his family. They evidently regarded his life as in danger. This is shown somewhat strikingly by certain facts which came to light at the April trial already referred to in which one, Rodosthenos, a member of the House of Representatives and stated by Zacharia to be of high rank in E.O.K.A., was prosecuted for illegal possession of arms. During the course of the trial Mr. Talarides, the Attorney-General, produced a letter, found, he said, in the accused safe, in which a certain Mavros was instructed to murder Zacharia by a fixed date, otherwise he would himself be killed. The letter was signed "E.O.K.A. fighters". The Attorney-General said that he desired to prove through this letter and other facts such as certain killings referred to by him, that
"not only Rodosthenos' life was not in danger but, on the contrary, a number of persons of A. Zacharia's group were murdered and for that reason Antonio Zacharia was obliged to leave Cyprus."
I quote from a contemporary report in the daily newspaper "Ethniki", which is an exhibit in the case.
(10) There are only one or two more further relevant facts. Since Zacharia left Cyprus a bomb attack has been made on his house and all his possessions destroyed or ruined. Persons contemplating buying business assets of his have been threatened with death by E.O.K.A. agents. According to the deponent Constantinides the attribution of these threats to E.O.K.A. agents "appears to be unfounded".
(11) When Archbishop Makarios and the Home Secretary visited London later in the year 1961 Zacharia states that he visited them both in order to discuss his difficulties in Cyprus caused by E.O.K.A.'s activities.
My Lords, the recital of these facts justifies a very brief summary of what they amount to. Here is a man who is the object of an implacable vendetta waged against his life by a number of persons in Cyprus and originating at any rate to some extent-one cannot say more-in the part that he took in assisting the police during the E.O.K.A. disturbances. There have been three attempts on his life already, two while he was in the custody or company of police officials. There are outstanding orders for his assassination and incitements to it. I cannot see that it can be safely assumed that, if he is sent back to Cyprus, these attempts will continue to be unsuccessful or that the conspirators will not find means of reaching him, whatever form of protection is designed for him. Plainly, he will be in great danger of his life, and I do not think that it really matters under what precise authority his enemies are acting.
Four times already he has been arrested and charged with different murders. The charges have either been withdrawn or dismissed. I do not attach great importance to this circumstance, but it is perhaps permissible to reflect that there must be some limit to the number of occasions on which a man is arrested on one of the gravest of all charges without as yet having oven been brought to trial.
Lastly, the reason that he is found in England, not in Cyprus, is that he left, with the connivance and protection of the government, because his life was in continual danger from his enemies. There is no definition of a fugitive offender in the Act of 1881, but it can hardly have been intended to apply to someone who is a fugitive not from prosecution for his offences but from a conspiracy to assassinate him. The same government that sent him out applies within a few months to have him sent back again. To send him back under those conditions presents itself to me as oppressive.
I do not think that the court has been furnished with any real explanation of this change of front. It is not possible to know what lies behind it and it is the more obscure because of the access that Zacharia apparently enjoyed both to Archbishop Makarios and to the Home Secretary. It is true that Constantinides says that the evidence supporting the present charges is, he believes, genuine evidence given only when the "atmosphere of fear and terror of the criminal gang of Antonis Zacharia is removed", and no one can say that this may not well be true. There is some confirmation of it in the evidence filed in support of warrants 1 and 2. But what was the date when this atmosphere was dissipated? It needs a good deal more than that general statement, I think, to show how much that is now charged against Zacharia was not known to the police authorities before the government sent him out of the country. After all, the evidence itself shows that the facts on which the second warrant is based were communicated to the police thirteen days before his departure arid Constantinides seems from his affidavit to have known about the "E.O.K.A. fighters" leaflet, which deals in detail with Zacharia's alleged murder of Mouzomenos, since the end of September, 1960.
For these reasons I am of opinion that the Divisional Court should have intervened under s. 10 of the Act of 1881 and that the appeal of Zacharia ought to be allowed.
With regard to the second appellant Arestidou, it is difficult not to consider his case as in some sense a pendant to the other. It is necessary to remember however that, though the only warrant that touches him is the second, yet this involves a serious charge. There is no evidence that he left Cyprus under the same auspices as Zacharia, nor is there anything like the same direct evidence of a conspiracy against his life. Nevertheless he is put forward as a henchman of Zacharia and he is evidently one of his associates or gang. On the whole, if Zacharia were not to go back, I think that it would be unjust to send back his assistant.
I must now deal with the point as to jurisdiction raised during the course of the argument of this appeal. It is said that this House is not competent to hear an appeal under s. 10 of the Fugitive Offenders Act unless the court below has certified that a point of law of general public importance is involved in the decision and either that court or this House has decided that the point is one which ought to be considered. The point is a short one of a technical nature which does not seem to have occurred to the Divisional Court when the question of an appeal to this House was raised: nor do I recall that it was present to anyone's mind when leave to appeal was granted by the Appeal Committee. In my opinion it is not a good point.
The issue depends on the meaning of certain words which appear in s. 15 of the Administration of Justice Act, 1960. That Act, as is well known, opened the House of Lords to an appeal (a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter and (b) from any decision of the Court of Criminal Appeal on an appeal to that court; but the appeal so provided for in s. 1 (1) was by s. 1 (2) subjected to two conditions. One was that no appeal was to lie except with the leave of the court below or this House: the other imposed the requirement as to a point of law of general public importance being involved to which I have just alluded.
Section 15 of the Act contains certain special provisions about an appeal in habeas corpus proceedings. Subsection (3) declares that:
"In relation to a decision of a Divisional Court on a criminal application for habeas corpus, s. 1 of this Act shall have effect as if so much of sub-s. (2) as restricts the grant of leave to appeal were omitted."
Plainly therefore it was intended that, when the court has dealt with a criminal application for habeas corpus, nothing more should be needed to give the applicant his right of appeal to this House than its leave or the leave of the court below. The right was to be there whether a point of law of any importance was thought to be involved or not.
Is there any reason for supposing that when an application for habeas corpus has been made in relation to detention and committal under the Fugitive Offenders Act, 1881, and the powers or duties of the court under s. 10 are invoked in connexion with that application, there should be one régime for appeals in so far as they concern what may be called the strict habeas corpus considerations and another for appeals in so far as they concern considerations relative to s. 10? I cannot myself think that s. 15 was ever intended to enforce such a distinction nor can I see why a point of law of general public importance should be necessary to enable this House to act, if thought proper, under s. 10 when it has not been made necessary in order to give it authority to deal with allied questions relating to habeas corpus.
It is no doubt true that the jurisdiction of a court to act under s. 10 is not the same thing as its jurisdiction to act on habeas corpus. That is the point which is made very plain in the judgments of the Court of Appeal in R. v. Governor of Brixton Prison, Ex p. Savarkar and I do not see how a study of the Fugitive Offenders Act, 1881, could lead to any other conclusion. Theoretically at any rate an application under s. 10 could be made independently of a motion for a writ of habeas corpus; the considerations which the court must take into account are those proscribed by the section and no others; and the relief which the court can give under the section is more flexible than that which is available on habeas corpus. But with all respect it seems to me highly unreal to say, as FLETCHER MOULTON and BUCKLEY, L.JJ., did in that case, that these statutory rights have "nothing to do with habeas corpus". In reality they have a great deal to do with it. Both concern the power of the court to discharge a person who is detained under the Act. In practice, as I understand, the applications for discharge are made together and relief is asked for in the alternative, sometimes the writ of habeas corpus being asked for under s. 10. A magistrate committing a fugitive under s. 5 is directed to inform him that he has "a right to apply for a writ of habeas corpus, or other like process" and I can hardly suppose that this provision was intended to mean that the magistrate was to refer specifically to habeas corpus but need not mention the wider jurisdiction of the court under s.10. In sum I think that the court's powers under s. 10 were from the first regarded as an adjunct to its power to protect by habeas corpus, and consequently, where, as here, an application for the writ is joined with proceedings under s. 10, the provision of s. 15 (3) of the Administration of Justice Act, 1960, that strikes out the s. 1 (2) restriction on the grant of leave to appeal applies to both forms of proceedings.
In my opinion therefore this House had jurisdiction to hear the appeal merely on leave granted.
My noble and learned friend LORD REID who is unable to be present today and was unable to complete the hearing of the appeal to this House but was present at the decision taken by the committee with regard to this point of jurisdiction has asked me to say that he has read what I have said on this point and agrees with it.
LORD HODSON: My Lords, both the appellants applied to the Divisional Court of the Queen's Bench Division each seeking a writ of habeas corpus ad subjiciendum and praying for relief under s. 10 of the Fugitive Offenders Act, 1881. In each case the appellant was refused the writ of habeas corpus and also relief under s. 10 of the Fugitive Offenders Act, 1881. In each case an application for leave to present a petition of appeal to this House was dismissed but by an order of this House of Dec. 20,1961, both appellants were granted leave to appeal.
Appeals to this House in criminal cases are governed by the Administration of Justice Act, 1960, which by s. 1 (2) provides that no appeal shall lie under that section except with the leave of the court below or of the House of Lords and that
"such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."
By s. 15 (3) of the Act, in relation to a decision of a Divisional Court on a Criminal application for habeas corpus, the restrictions imposed by s. 1 (2) have no application. Thus so far as habeas corpus is concerned there is no necessity for a certificate to be given as a prerequisite to an appeal but the question remains whether there is jurisdiction to entertain an application under s. 10 of the Fugitive Offenders Act, 1881, without such certificate. No certificate was sought in this case nor was the attention of the House drawn to the absence of a certificate when leave to appeal was given but counsel on behalf of the Governor of Brixton Prison has now submitted that the appeal is incompetent except in so far as it relates to habeas corpus. In my opinion the submission is well founded.
It is true that an application under s. 10 is often combined with an application for leave to issue a writ of habeas corpus but the two are not the same and I find myself unable to accept the view that in truth there is but one application before the House and not two or that, to put it another way, once the application for habeas corpus is before this House the way is open to the appellants to obtain relief under s. 10. This section enables a superior court in the exercise of its discretion to
"discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or ... make such other order in the premises as to the court seems just."
It seems to me, as it did to FLETCHER MOULTON, L.J., in B. v. Governor of Brixton Prison, Ex p. Savarkar that the question of relief under s. 10 has nothing in truth to do with the issue of the writ of habeas corpus notwithstanding that it is convenient to hear applications for the writ and for the discretionary relief at the same time. The actual decision in Savarkar's case approved by your Lordships' House in De Demko v. Home Secretary was that inasmuch as the only matter adjudicated on by the order of the King's Bench Division was "habeas corpus" the application which had been made by the same person under s. 10 of the Fugitive Offenders Act, 1881, was not res judicata. Stress was, however, laid on the feature of the case that the Act of 1881 gave to fugitive offenders statutory rights which had nothing to do with habeas corpus. The right to habeas corpus is absolute and the remedy provided by s. 10 is discretionary and more extensive and I am unable to accept the contention now put forward that the application for habeas corpus is all embracing so that there is jurisdiction to hear the appeal against the discretionary order under the Act of 1881.
Since the majority of your Lordships are of a different opinion it is necessary to consider the appeal as a whole. So far as the application for habeas corpus is concerned only the warrant No. 2 is in question alleging robbery with violence of one Triantafillides and the offence of demanding £250 by menaces. This warrant involves both appellants. The Divisional Court held that there was insufficient evidence of robbery with violence but that in the words of s. 5 of the Act the evidence raised "a strong or probable presumption" against both appellants that they had committed the second offence mentioned in the warrant. It was argued that there was insufficient evidence of any demand, of any intent to steal or of any menaces. So far from there being a demand for money or an intent to steal it was said the evidence was that Triantafillides was offering protection money and that although a weapon was produced when the payment of money was discussed it was not used as a threat. I am unable to accept any of these submissions and arrive at the same conclusion as the Divisional Court.
On a plain reading of the evidence of the two witnesses for the prosecution what happened at the material time was that money was being demanded from Triantafillides-at first £500-a figure which was subsequently reduced to £250-under the threat of a weapon taken to be what Triantafillides called a .45 pistol (sic) pointed out by Zacharia and drawn by Arestidou from his waist. This must be evidence on which, if it be uncontradicted at the trial a reasonably minded jury might convict and so would raise the necessary strong or probable presumption; of. R. v. Governor of Brixton Prison, Ex p. Bidwell.
The application under s. 10 of the Act of 1881 is on a different footing in that the Divisional Court has exercised its discretion against both appellants and it must be shown that this discretion has been wrongly exercised before this House can interfere with the order made. It has been urged on behalf of both appellants that -
(1) the court applied a wrong principle in weighing the danger to them if they are returned to Cyprus against the degree of gravity of the crimes alleged: (2) too great a burden has been placed on the appellants having regard to the words in s. 10 "Where it is made to appear to a superior court ..."; (3) the court failed to take into account the appellants' contention that the crimes with which they were charged were political and that the application for the return of Zacharia had been made with a view to punishing him for offences of a political character, and (4) the court failed to appreciate that the applications were not made in good faith in the interests of justice.
As to the first submission, I think that the court was right on the evidence before it in coming to the conclusion that in the case of Zacharia and to a lesser degree in the case of Arestidou there is a real danger of violence or assassination seeing that both are marked men and have enemies in Cyprus who have declared in no uncertain language that they regard the appellants as traitors by reason of the services they rendered to the British government as informers against E.O.K.A. members before the independence of Cyprus was declared. The court also recognised that even if, as will certainly be the case, the appellants are kept in custody while awaiting trial this will not necessarily avail to protect them, as past experience has shown. The court also felt that presumably by reason of the hatred of their enemies there was a real danger of evidence being fabricated against them.
Nevertheless, taking all these things into account, having regard to the fact that in the case of Zacharia at any rate the charges against him were serious, in two cases charges of murder, and that the Cyprus authorities had shown in the past every willingness to protect him, and that in the case of Arestidou, though the charge was less serious the risk of violence against him was also less, the court refused the application.
I do not find anything to criticise in the way in which the court acted nor do I understand on what ground it was argued that the gravity of the charges should not be put in the balance against the danger to the appellants if they are returned for the gravity of the charges must be material to the exercise of discretion under s. 10.
Similarly, with regard to the second ground, I do not accept that too great a burden was put on the appellants to make it appear that it would be unjust or oppressive to return them. The evidence of the appellants was given on affidavit and their sworn statements are subject to correction which appeared manifestly necessary when the affidavit evidence in answer had been read. For example, the appellants, put themselves forward as men of good character but their records when disclosed showed that they had previous convictions including convictions for violence although neither had served sentences of imprisonment, so that their representations that they were men of good character were destroyed, without taking into account that they were alleged to be notorious as members of a gang of violent criminals of which Zacharia was the leader while Arestidou was his bodyguard.
As to the third submission based on the supposed political nature of some of the crimes alleged, this is based on the proposition that under the Fugitive Offenders Act, 1881, as under the Extradition Act, 1870, crimes of a political nature are excluded. The reverse is the case and indeed crimes of a political nature are expressly included in s. 9 of the former Act, which refers to treason. This submission was based on a dictum of LORD GODDARD, C.J., in Re Government of India and Mubarak Ali Ahmed to the effect that in crimes of a political nature the rules of the Extradition Act, 1870, should be applied to applications under the Fugitive Offenders Act, 1881, but with respect I do not think this dictum can be supported in view of the plain language of the Fugitive Act, 1881, itself. The Extradition Act, 1870, recognises the policy of giving political asylum in cases where application is made by foreign states for the return of political offenders. The Fugitive Offenders Act, 1881, is by contrast a domestic Act to amend the law with respect to fugitive offenders in Her Majesty's Dominions which has been applied to Cyprus since the independence of Cyprus was established and concerns applications for the return of fugitive offenders whatever the nature of the offences charged against them.
This is not to say that the court in exercising its discretion could not take into account evidence that application was being made for the return of a fugitive as an act of revenge whether actuated by political motives or not, but I see no reason why this application for return should not be treated as what on the face of it is, namely, an application by the Cyprus government acting responsibly in the interests of justice. The past history of Zacharia, against whom several prosecutions have failed, shows that in his case no suggestion that he was unlikely to have a fair trial could properly be made nor was any such suggestion made on behalf of either applicant.
Lastly, on behalf of Zacharia it was pointed out that he left Cyprus for this country on Jan. 27, 1961, with the assistance of the Cyprus government although fourteen clays earlier the authorities had information as to the robbery which is the subject of one of the charges against him. It is said that in these circumstances it would be unjust and oppressive to return him to Cyprus. The fact is that the other three charges, including the most serious, came to light after Zacharia had departed, the explanation given being that the witnesses against him were afraid to make any complaint until he had left the country. I see no reason in these circumstances to question the bona fides of the Home Secretary or of the Cyprus government on this account.
I would dismiss the appeals.
LORD DEVLIN: My Lords, the first appeal is from an order made by the Divisional Court on Nov. 22, 1961, whereby the court refused to order that a writ of habeas corpus should issue for the release of the appellant, now confined at Brixton Prison, or to order his discharge pursuant to the Fugitive Offenders Act, 1881, s. 10.
The appellant is a Cypriot who left Cyprus on Jan. 27, 1961, and has since then been residing in this country. On Apr. 15, 1961, criminal proceedings, including two charges of murder, were begun against him in the district court of Limassol in Cyprus. Under the Cyprus Act, 1960, the island of Cyprus has been established as an independent sovereign republic. Under this Act the Fugitive Offenders Act, 1881, which makes provision for the arrest in one part of Her Majesty's Dominions of a person who is accused of having committed an offence in another part, continues to apply. On Aug. 17, 1961, the four warrants in this case were indorsed under s. 3 of the Act by a magistrate at Bow Street and the appellant was arrested and brought before him. Section 5 of the Act provides that if such evidence is produced before the magistrate as "raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant", the magistrate shall commit him to prison to await his return and shall inform him that "he has a right to apply for a writ of habeas corpus, or other like process." On Sept. 13, 1961, the magistrate committed the appellant to prison under this section.
On Sept. 29, 1961, the appellant gave notice of motion for a writ of habeas corpus. On such a motion the court has by virtue of s. 10 of the Act wider powers than it ordinarily exercises on an application for the writ. Section 10 is as follows:
"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."
The Divisional Court, as I have stated, refused the application. By the Administration of Justice Act, 1960, a right of appeal was for the first time given from a decision of a Divisional Court in a criminal cause or matter. The appeal lies only with the leave of the Divisional Court or of this House and s. 1 (2) provides that such leave shall not be granted unless it is certified by the Divisional Court that a point of law of general public importance is involved. But it is specially provided by s. 15 (3) that this latter restriction shall not apply in relation to a decision of the Divisional Court on a criminal application for habeas corpus. An application for leave to appeal was made to the Divisional Court. The Lord Chief Justice observed that no question of the certificate arose and the court was not asked to certify. The court refused to give leave.
An application for leave to appeal was then made to this House on Dec. 20, 1961, and leave was given. It was not on the hearing of this petition suggested that a certificate by the Divisional Court was needed.
On the hearing of this Appeal a preliminary point was taken by the Governor of Brixton Prison, the second respondent, but not by the Republic of Cyprus. Counsel on behalf of the governor argued that the House had no jurisdiction to review the refusal by the Divisional Court to exercise its powers under s. 10. His argument was based on the assertion that there were brought before the Divisional Court two distinct applications,-an application for a writ of habeas corpus pursuant to s. 5 and an application for an order for discharge under s. 10. He contended that an order refusing the latter application was not covered by s. 15 (3) of the Act of 1960. Accordingly, he contended that in the absence of a certificate by the Divisional Court, the House had no jurisdiction to give leave to appeal from that order and therefore no jurisdiction now to entertain that appeal. Since the only effective grounds of appeal relate to s. 10 there would be nothing left for the House to discuss.
This point was argued on the assumption that in the absence of a certificate the House not only would have no jurisdiction to grant leave but would now be without jurisdiction to hear this appeal. On reflection I doubt whether this assumption is correct. The jurisdiction of this House now to entertain this appeal is founded on its own order of Dec. 20, 1961. So long as that order stands, the House has jurisdiction. It may be that that order ought not to have been made because an essential condition for making it was not fulfilled, but that does not mean necessarily that the order, when it is made, can be disregarded as a nullity. That is so in the case of an inferior court when it exceeds its jurisdiction. But the House of Lords and all superior courts have power to determine the extent of their own jurisdiction and so their orders cannot be questioned for want of jurisdiction except on appeal, where there is a right of appeal, or by the court itself by virtue of its inherent power to set aside its own orders where the interests of justice so require. I am therefore disposed to think that counsel for the governor's point should have been taken by way of an application to the House to set aside its order of Dec. 20, 1961, giving leave to appeal. It is unnecessary to consider whether the House would have entertained such an application at this stage. I do not seek to make any pronouncement on a matter that was not argued; but I am at the same time anxious that it should not hereafter be inferred from the manner in which the House deals with this point that the assumption on which it was made is well founded.
The construction of the Act of 1881 is not at all easy. The question which the House has to determine depends on the relationship between s. 5, which provides for the fugitive making an application for the writ of habeas corpus, and s. 10, which is described in the marginal note as "Powers of superior court to discharge fugitive when case frivolous or return unjust". Section 39 provides that the expression "superior court" includes the Court of Appeal. But for s. 39 I should feel little doubt about the relationship between s. 5 and s. 10. The natural construction of s. 10 appears to me to be that it enlarges the powers of the court, so that on the application for habeas corpus under s. 5 the court can make orders of a class that it would not ordinarily have made and its orders can be based on grounds that would not ordinarily have been sufficient. But it appears that the only meaning that can be given to the reference in s. 39 to the Court of Appeal is to treat it as being a superior court within s. 10. Accordingly, the opening words of s. 10 can be read as: "Where it is made to appear to the Court of Appeal". How can the matter reach the Court of Appeal? Is s. 10 giving a right of appeal to the Court of Appeal from a decision of the High Court in a criminal matter? It would be very surprising to find that done without express words. But the only alternative would appear to be to treat the Court of Appeal as having original jurisdiction to grant relief under s. 10. If that is so, there must be a process, presumably comprised within the term "like process" in s. 5, whereby the Court of Appeal can be applied to directly.
The position is now governed by authority. In R. v. Governor of Brixton Prison, Ex p. Savarkar the Court of Appeal (VAUGHAN WILLIAMS and FLETCHER MOULTON, L.JJ., with BUCKLEY, L.J., dubitante), held that it had an original jurisdiction to grant relief under s. 10. This decision was approved by the House in De Demko v. Home Secretary.
Accordingly it is not possible now to argue that the powers granted by s. 10 of the Fugitive Offenders Act, 1881, can be exercised only on a habeas corpus application. That leaves two possible constructions of the Act. The first is that s. 5 and s. 10 are entirely dissociated and that the powers given by s. 10 can be exercised only on a separate application made under s. 10. If this construction is right counsel for the governor's contention succeeds. The other construction is that s. 10 can be used in two ways. It does not follow from the fact that there can be two applications that there must be. On this argument the section can be used either to enlarge the powers of the court on a habeas corpus application or to permit an independent application to be made by any person who is prepared to concede that the exercise of the power under s. 10 affords the only good ground for an order for his release. On this alternative construction counsel's point fails. It is only if the two things are entirely dissociated that the appellant can be prevented from relying on s. 10 in the habeas corpus proceedings that it is admitted are properly before the House.
The former construction is supported by the judgment of FLETCHER MOULTON, L.J., in Ex p. Savarkar. The Court of Appeal in that case, having decided that it had original jurisdiction under s. 10, had next to consider whether it was precluded from exercising its jurisdiction because the matter had already been heard and determined by a court of concurrent jurisdiction, namely, the Divisional Court. The court decided that it was not so precluded. FLETCHER MOULTON, L.J., held that s. 10 could not be invoked by an application for habeas corpus but only by a separate application which was not before the Divisional Court. VAUGHAN WILLIAMS and BUCKLEY, L.JJ., did not go so far as that. They did not hold that the Divisional Court could not adjudicate under s. 10 on an application for habeas corpus but that in the particular case before them it had not so adjudicated. They said that for this purpose they could not look at the proceedings generally, - the affidavits, the argument and the judicial utterance, - but only at the formal order made which contained no reference to s. 10. This point did not arise for consideration at all in De Demko v. Home Secretary.
My Lords, I cannot, with great respect, accept the reasoning of FLETCHER MOULTON, L.J., or the contention of counsel for the Governor of Brixton Prison. The Introductory words to s. 10 lay down no special procedure. They do not insist on any particular mode of application. It does not appear to me that the Act requires or even contemplates that two applications should invariably be made in the same matter, one by way of habeas corpus and the other by way of "a like process". If an application for habeas corpus only is before a superior court, it is natural to suppose that that court is intended to exercise the powers given by the Act which itself makes provision for the application; and in the absence of express words debarring the court from so doing. I hold that it can.
That disposes of the preliminary point. But to avoid any misunderstanding in the future I should like to make it clear that my disagreement with the reasoning of FLETCHER MOULTON, L.J., does not necessarily involve an acceptance of the reasoning of VAUGHAN WILLIAMS and BUCKLEY, L.JJ. There are certainly difficulties about the application of the doctrine of res judicata to matters in which there are no pleadings and where the issues are not formally defined. It seems at first sight to be taking rather a narrow review of it to say that the effect of the order made cannot be determined in the light of the points argued. I express no opinion on this since it does not arise for consideration here. It was been the practice since then for the order of the Divisional Court to make it clear in terms, as was done in the present case, that relief under s. 10 has been sought and refused. No doubt that practice will continue until Parliament removes from the Fugitive Offenders Act, 1881, what everyone believes to be the unintended effect of s. 39. I am concerned only to say that there is nothing in the judgments of VAUGHAN WILLIAMS and BUCKLEY, L.JJ., which says, either expressly or by implication, that on an application to the Divisional Court for habeas corpus only, the applicant would not be free to ask for relief under s. 10 or the Divisional Court not free to adjudicate on it; and that if any such thing had been said, I should have felt at liberty to disagree with it, for certainly that point was not considered in De Demko v. Home Secretary.
I turn now to the merits of the case. The appellant claims relief under s. 10 of the Fugitive Offenders Act, 1881, on three grounds. First, he submits that the murders for which his surrender is demanded were offences of a political character. He does not admit that he committed them; but he says that the allegations against him, if true, show that the killings were done in the course of the fight for independence made by the body called E.O.K.A. He relies on the principle expressed in Re Castioni in which it was held that homicide committed during an insurrection came within the restriction on the surrender of criminals provided by the Extradition Act, 1870, s. 3. Secondly, he submits that the application for his return is not made in good faith in the interests of justice. Thirdly, he submits that in all the circumstances of the case it would be unjust or oppressive to return him to stand his trial. I do not think that he has made out any case on the second ground and I have nothing to add under this head to what has already been said in the House. The first submission involves a point of law which requires a little consideration; and the second submission gives rise to a difficult question of fact, and also to matters of policy.
There cannot be cited in support of the first submission any provision in the Fugitive Offenders Act, 1881, such as there is in s. 3 of the Extradition Act, 1870. In that Act, which gives effect to treaties negotiated with foreign countries, Parliament contemplates that there may be fugitives from oppression as well as fugitives from justice and excludes the former. In the Fugitive Offenders Act, 1881, it is assumed that within the Commonwealth any fugitive on a criminal charge will be a fugitive from justice. I think it is assumed also that countries within the Commonwealth will have the same standards of freedom and justice and good order and will secure them by substantially the same safeguards. Counsel for the appellants submits that this assumption is no longer true. He does not, I must say at once, impute any particular deficiencies to the Republic of Cyprus. His argument is the general one that with the rise of so many new and independent sovereign states within the Commonwealth, similarity of thought on fundamental questions is no longer to be expected: so it now becomes generally relevant to consider whether the offence for which the return of the fugitive is demanded is an offence of a political character. He submits that the wide discretion given to the court under s. 10 should now be exercised in a way that treats the application for the return of the fugitive as if it were an application for extradition and subject to the same sort of restrictions. In this contention he is supported by a dictum of LORD GODDARD, C.J., in Re Government of India and Mubarak Ali Ahmed. The Lord Chief Justice said that in a proper case under the Fugitive Offenders Act, 1881, the court would apply the rules in the Extradition Act, 1870.
In my opinion this argument is unsound. In the course of it it became clear that counsel for the appellants was not prepared to advance it without what appeared to me to be destructive qualifications. Treason is always an offence of a political character, yet it is expressly mentioned in s. 9 of the Fugitive Offenders Act, 1881, as one of the offences to which the Act applies. Counsel conceded that an application for the return of a fugitive on a charge of treason said to have been committed in one of the great dominions could not be refused simply on the ground that treason is a political offence. He conceded also that neither in 1881 nor at the present day could it be intended that rebels in a colony could obtain immunity by taking refuge in Great Britain. He sought to argue that the position was different if the rebellion was successful but I think that to be quite illogical.
Alternatively, counsel for the appellants argued, if the court was not bound to exercise its discretion so as to refuse to return a political offender, the political nature of the offence was a factor to be taken into account. I cannot agree. The court could not exercise its discretion in that way without trespassing on matters of policy. It does not exercise any discretion under the Extradition Act, 1870. Once it is established that the offence is of a political character, as, for example, homicide in the course of rebellion, it does not matter whether the court approves or disapproves the political views of the offender or whether or not it sympathises with the desire to punish him. It would inevitably involve itself in the merits of the individual case if it were to exercise its discretion so as to release some political offenders and not others.
I appreciate the force of the general considerations with which counsel for the appellants prefaced his submission. But if changing conditions within the Commonwealth are thought to require some modification of the law, it must be made by Parliament. I respectfully disagree with the dictum of LORD GODDARD, C.J., which I have cited.
To avoid misunderstanding on the facts of this particular case I must note that it was suggested that the return of the appellant was being demanded for the purposes of political revenge. If that suggestion had been made good (which in my opinion it was not), it would certainly have been material to show that the application was not being made in good faith in the interests of justice. But that would not have been because it was for political revenge but because simply it was for revenge.
On the third point, I cannot add very much to what your Lordships have already said. I recognise that there are passages in the judgment of LORD PARKER, C.J., which, taken by themselves are open to the criticism which my noble and learned friend LORD RADCLIFFE has directed against them. But looked at as a whole I can find no ground on which I think it would be proper to interfere with the exercise of the discretion by the Divisional Court. Since however this matter is so grave, I think it right to say that on the material before the House I should not have been drawn to a different conclusion.
I do not attach overriding importance to the fact that the appellant has already been charged unsuccessfully three times with murder - one charge withdrawn, one lacking the evidence needed for committed and one not proved beyond reasonable doubt. If in truth he has been for years a gangster who used his work for the security forces as a cover for his crimes - and this is the very point in issue - it is not surprising that he should be charged with many murders and that some should be difficult to prove. It is not suggested that he will not have a fair trial; three failures by the prosecution stand as an eloquent testimony to the contrary. Maybe these further charges are only concoctions made up by those who are seeking to use the law as a means for achieving their own wicked ends. A fair trial will bring that matter to the test. It cannot be determined by affidavits.
The decisive factor to my mind is the danger to the appellant's life from men who are resolved to defy the law and murder him if they can. But your Lordships must approach this third point from the footing that it has been established that, as matters stand, the appellant must be presumed at this stage of the proceedings to be probably guilty of two murders and that his return is requested in good faith so that he can stand his trial. It cannot be that a mere apprehension of harm should be allowed to secure his immunity from justice on charges such as that. On the other hand, if I thought that there was a near certainty or even a high probability that the legal process would itself be defeated by those who were determined that, guilty or not, the appellant should die, I should refuse to be a party to his return. How am I to assess the xxx.
There is the matter that three attempts to assassinate him, one in 1957 during the troubles and two since the creation of the republic, have been made. Whether the men who desire his death are moved to kill him because of the work he did for what was then the lawful government of Cyprus or because he is in truth a murderer whom they think might otherwise escape justice is not at all to the point. The one motive is as wrong as the other. The fact remains that for one reason or the other he is in danger of his life. It is the fact also that it cannot be said without question that while in custody and awaiting trial he is secure. There is evidence, which for this purpose I accept, that one attempt was made when he was actually in charge of the police on his way to court and another while he was awaiting trial and before he had police protection. But after these attempts he was given police protection, which kept him safe for two months, and under police protection he was put on the aeroplane which brought him to London.
The whole question is whether on his return he will be safe from to London. I do not see how one can answer that without first inquiring what measures will be taken to protect him. I should also want to know what steps would be taken, if he is acquitted, to secure for him the benefits contemplated by s. 8 of the Fugitive Offenders Act, 1881, and to ensure his safe return of this country. These are not matters that can be gone into on habeas corpus proceedings or under s. 10. Oral evidence would on such an issue be no better than affidavit evidence. It is unreasonable to expect the competent authorities of a sovereign independent republic to submit to cross-examination on such matters in the courts of another country; and if they were to state in public and on oath what precautions they intended to take, that in itself might defeat the object of their plans. These are matters which must be the subject of governmental and not of judicial investigation.
Section 6 of the Act provides that within fifteen days after the court has decided, if it does, not to release the fugitive, a Secretary of State may, if he thinks it just, order the return of the fugitive. I have put these words in italics because they make it plain that the discretion given to the Secretary of State is as wide as that given to the court under s. 10; the phrase corresponds to the words "unjust or oppressive or too severe a punishment" in that section. There is a concurrent jurisdiction conferred on the Secretary of State. I cannot suppose that it is intended that he should act as a second tribunal to consider only those matters which a superior court has already pronounced on. It is plain to me that one reason at least why the provision is there is because there may be considerations of a political or administrative character which go to the justice of the fugitive's return and are better inquired into by the executive.
The evidence put before the Divisional Court and contained in the affidavits which your Lordships have read is insufficient to make it appear to me more probable than not that, if the appellant is returned, the competent authorities in Cyprus will fail to see that he is kept safe to stand a fair trial and safely returned if he is acquitted. It follows that in my judgment the appeal must be dismissed. The House is not shirking its responsibilities but is carrying out the intent of the Act if it declines to grant relief under s. 10 except on such proof as is acceptable in a court of law and if it leaves maters which of their nature are not susceptible of proof of that character to be considered by the executive.
In the case of Arestidou I agree that the appeal should be dismissed for the reasons given by my noble and learned friends VISCOUNT SIMONDS and LORD HODSON.
 Dated Nov. 22, 1961.
 See s. 5 of the Fugitive, Offenders Act. 1881.
 On Sept. 26, 1961.
 On Nov. 21, 1961.
 On Nov. 22, 1961.
  2 K.B. at p. 1075.
  2 K.B. at p. 1076.
 See s. 3 (1) of the Extradition Act, 1870, which provides that a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one "of a political character"; or if it is proved that the requisition for his surrender has been made with a view to try or punish him for "an offence of a political character".
  1 All E.R. at p. 1063.
  1 Q.B. at p. 114.
 Viz., under s. 6 of the Fugitive Offenders Act., 1881.
  1 All E.R. at p. 1063.
 See "The Times", Nov. 23, 1961.
 Per LORD PARKER,C.J.
 Viz., the powers under s. 10 of the Fugitive Offenders Act, 1881.
  1 Q. B. at p. 114.
  2 K.B. at p. 1075.
  1 All E.R. at p. 344;  A.C. at p. 660.
  3 All E.R. 1;  K.B. 305.
  1 All E.R. at p. 1063.
  1 All E.R. 341;  A.C. 644.
  1 All E.R. 341;  A.C. 654.
  1 All E.R. 341;  A.C. 654.
  1 All E.R. at p. 1063.