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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Tzu-Tsai Cheng v. Governor of Pentonville Prison [1973] UKHL 8 (16 April 1973)
URL: http://www.bailii.org/uk/cases/UKHL/1973/8.html
Cite as: [1973] AC 931, [1973] 2 WLR 746, [1973] UKHL 8, [1973] 2 All ER 204, [1973] Crim LR 362
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Tzu-Tsai Cheng v. Governor of Pentonville Prison
LORD WILBERFORCE. I have had the benefit of reading in advance the opinion prepared by my noble and learned friend, Lord Simon of Glaisdale.
I agree with it, and would allow the appeal.
LORD HODSON. The question before your Lordships is whether an offence committed within the jurisdiction of a state requesting extradition of an offender is one of a political character' within the meaning of those words in the Extradition Act 1870, s 3(1), so as to stop the offender from being surrendered, his offence having been committed in the course of a dispute with the governing party of a state other than the requesting state. The requesting state is the United States of America which by treaty embodied in a statutory rule and order[1], agreed with His Majesty to make more adequate provision for the reciprocal extradition of criminals.
The appellant was, on 17th May 1970, convicted of attempted murder, an offence named in the list of crimes contained in Sch 1 to the 1870 Act. These are referred to in the Act as extradition crimes. They are normal crimes, not crimes such as treason or sedition which might well be of a political character. After conviction the appellant failed to surrender to his bail and left for Sweden which acceded to the request of the United States for his extradition from that country. In the course of his journey he fell ill and landed at London airport in September 1972. He is now detained in Her Majesty's Prison at Pentonville pursuant to an order of the chief metropolitan magistrate and is awaiting delivery to the United States. The Divisional Court[2] rejected his application for habeas corpus and from that refusal this appeal is taken on the ground that his offence is 'one of a political character.'
The appellant is an architect and a permanent resident, not a citizen, of the United States where he has lived for several years. He is a Formosan and a member of an organisation known as World United for Formosan Independence ('WUFI') of which he is the executive secretary. The purpose of WUFI as stated by him is to try and expose the corruption and oppressiveness of the Chiang Kai-Shek regime to the public, especially the American public, and to overthrow the regime and establish a government based on the principle of self-determination. The WUFI has affiliated organisations in Japan, France and Canada and one underground organisation in Taiwan. On 24th April 1970 Chiang Ching-Kuo, the son of the ageing General Chiang Kai-Shek and said to be his heir apparent and head of the Taiwan secret police, was on a visit to New York. The WUFI knew of the intended visit and planned a demonstration of protest.
The demonstration took place outside the hotel which Chiang Ching-Kuo was visiting. A pistol was drawn and a shot was fired in the course of the demonstration. The appellant was arrested. He had been concerned with the acquisition of the pistol and instructions as to its operation but did not actually fire the shot himself, he being engaged in a diversionary campaign shouting and waving papers in the neighbourhood.
The contention that the offence of which he was convicted was of a political character can only be supported by giving the word 'political' a wider meaning than has hitherto been given to it in this connection. The appellant was not engaged in any political activity directed against the United States. His extradition is requested on the footing that his is an ordinary case contemplated by the treaty to which have referred. I emphasise the adjective reciprocal which is used to qualify extradition and points to criminals who have committed crimes against each of the parties to the treaty.
The object of the WUFI movement was stated by the applicant to be wholly directed to the overthrow of Chiang Kai-Shek's regime and to establish a free and democratic Republic of Taiwan. The objective was not hostile to the United States although the movement sought to persuade the American government to change its policy towards Taiwan. There is no authority which supports the argument of the appellant that his political activity vis-à-vis the Taiwan regime gives the crime committed in the United States which is an offence against that state a political character so as to prevent an extradition order being made.
His argument must I think be based on the undoubted fact that the words 'of a political character' have so far defied precise definition. As Viscount Radcliffe said in Schtraks v Government of Israel[3]:
'Generally speaking, the courts' reluctance to offer a definition has been due I think, to the realisation that it is virtually impossible to find one that does not cover too wide a range. This is seen in the very full consideration which was given to the question in Re Castioni[4] '
I pass on to the passage in the same speech which reads as follows[5]:
'In my opinion the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international aspect.'
I respectfully agree with this expression of opinion and in effect said so in my speech in the same case. My noble and learned friend, Lord Reid, said, I think, nothing inconsistent with it in his speech.
To take the wide view contended for by the appellant, losing sight of the idea of political opposition as between fugitive and requesting state, would create an impossible situation. As Viscount Radcliffe pointed out, members of political organisations may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends, but these crimes do not automatically become offences of a political character within the meaning of the Extradition Act 1870. Political character in its context, in my opinion, connotes the notion of opposition to the requesting state. The appellant was not taking political action vis-à-vis the American government and the American government is not concerned' with the relations between America and Taiwan in asking for extradition but is concerned only with enforcing the criminal law. I would dismiss the appeal.
LORD DIPLOMATIC. The appellant committed in the United States of America the crime of attempted murder. He was duly convicted there by a court of competent jurisdiction. It is conceded, on the one hand, that his sole purpose in committing this offence was to promote the downfall of the government of Taiwan and, on the other hand, that it was no part of his purpose to influence the policy of the government of the United States. He is a fugitive criminal from the United States, not from Taiwan. It is the government of the United States, not the government of Taiwan, that seeks his extradition under the Extradition Treaty of 22nd December 1931, between the United Kingdom and the United States of America. The short question in this appeal is whether the appellant's offence was one 'of a political character' within the meaning of the Extradition Act 1870.
In public international law there is no general obligation on any state to surrender to another state persons who have taken refuge in its territory to avoid trial or punishment for crimes which they have committed within the territorial jurisdiction of the courts of that other state. The extradition of a fugitive criminal is a bilateral translation between the state where he has taken refuge and the state where he has committed the crime. It takes place pursuant to the terms of an extradition treaty made between the two states and providing for reciprocal rights to requisition the surrender of fugitive criminals and reciprocal obligations to surrender them.
The practice of making extradition treaties was pioneered by Belgium in 1833, three years after it had itself achieved independence - a fact which may have influenced its exclusion of extradition for offences of a political character. The government of the United Kingdom was slow to follow this example, but nevertheless in 1842 and 1843 extradition treaties dealing with a limited number of serious crimes were made with the United States of America and France. Crimes which were on the face of them political offences, such as treason and sedition, were not included. A similar treaty was made with Denmark in 1862. Compliance with the obligations assumed by the government under these treaties involved the arrest and detention in the United Kingdom of the fugitive criminal whose surrender was applied for. For this the authority of an Act of Parliament was required. Separate Acts of Parliament were passed to give effect to the provisions of the treaties with the USA, France and Denmark. Despite the precedent set by Belgium in 1833, none of these treaties or Acts of Parliament contained any exclusion of offences which, though falling within the description of offences for which extradition was to be granted, were nevertheless 'of a political character'.
Such was the state of the law of extradition in this country when the Extradition Act 1870 was passed. It is relevant to recall that during the preceding 50 years new independent states had emerged in Europe and in Latin America as a result of throwing off the yoke of foreign powers and that in the immediately preceding years the risorgimento had been successful in Italy. It had attracted the enthusiastic sympathy of the public in the United Kingdom and of the Liberal Party which formed the government in power at the time the Act was passed.
The Extradition Act 1870 did two things. First, it provided machinery for giving effect in the law of the United Kingdom to any extradition treaties into which the government might thereafter enter with other sovereign states. Secondly, it restricted the discretion of the government as to the terms of extradition treaties entered into with foreign states, since effect could not be given to such a treaty in this Act and in particular with the restrictions on the surrender of fugitive criminals contained in this Act'.
The restriction which governs the instant appeal is that contained in s 3 (1) of the Act:
'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 he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.'
The list of 'extradition crimes' contained in Sch 1 to the Act in respect of which alone surrender may be demanded is to be construed according to the law existing in England. It comprises ordinary serious crimes in English law but like the earlier treaties includes none which on the face of it is of a political character as respects the requistioning state, such as treason or sedition. It is evident, therefore, that the draftsman contemplated that there might be circumstances in which an ordinary crime, such as murder or attempted murder, might be 'an offence of a political character'. From the second part of the restriction it is also evident, to put it bluntly, that the draftsman contemplated that a foreign government in its eagerness to revenge itself on a political opponent might attempt to misuse an extradition treaty for this purpose.
My Lords, the noun that is qualified by the adjectival phrase 'of a political character' is 'offence'. One must, therefore, consider what are the juristic elements in an offence, particularly one which is an extradition crime, to which the epithet 'political' can apply. I would accept that it applies to the mental element: the state of mind of the accused when he did the act which constitutes the physical element in the offence with which he is charged. I would accept, too, that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged; for, in the case of none of the extradition crimes, can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet 'political'. For politics are about government. 'Political' as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. No doubt any act done with any of these objects would be a 'political act', whether or not it was done within the territory of the government against whom it was aimed But the question is not simply whether it is political qua 'act' but whether it is political qua offence'.
Criminal jurisdiction is territorial. A crime is an offence against the state within whose territory the prohibited act has been committed. To the trial and punishment of a criminal offence there are two parties only: the offender and that state. In the context of the trial and punishment of a criminal offence committed outside the United Kingdom, one would suppose that any description of the offence as being of 'a political character' had reference to a relationship of political conflict between the offender and the government of the state within whose territory the offence was committed and not to any political conflict between the offender and the government of any other state. So, even apart from authority, I would hold that prima facie an act committed in a foreign state was not 'an offence of a political character' unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there. I would not hold that an act constituted an 'offence of a political character' in the ordinary meaning of that phrase appearing in a statute dealing with the trial and punishment of crimes committed in a foreign state if the only 'political' purpose which the offender sought to achieve by it was not directed against the government or governmental policies of that state within whose territory the offence is committed and which is the only other party to the trial and punishment of the offence.
This prima facie view of the meaning of the expression of offence of a political character' derived from a consideration of the juristic nature of a criminal offence is, in my view, confirmed by a consideration of the purpose for which Parliament in 1870 imposed this restriction on the surrender of fugitive criminals. Ex hypothesi the restriction only applies to an offender against whom a prima facie case has been proved that he has committed an act in a foreign state which would have been a serious crime if it had been committed in the United Kingdom, the offender would have been convicted and punished for it irrespective of any political motive directed against the government of any foreign state which inspired the offender to do it. It therefore cannot be supposed that the purpose of Parliament in imposing the restriction was to provide complete immunity for offences committed for political motives directed against the government of a foreign state, wherever those offences happened to be committed. The immunity intended to be provided was at most a qualified immunity depending on where the offence was committed.
The purpose of the restriction, as it seems to me, was two-fold. First, to avoid involving the United Kingdom in the internal political conflicts of foreign states. Today's Garibaldi may well form tomorrow's government. And, secondly, the humanitarian purpose of preventing the offender being surrendered to a jurisdiction in which there was a risk that his trial or punishment might be unfairly influenced by political considerations. As indicated by the inclusion of the second part of the restriction it was suspicion of the motives of requisitioning states in seeking the surrender of fugitive criminals who were political opponents of the government of that state which underlay both the requirements of s 2 (1) of the Act. Such suspicion was understandable in 1870 in the light of the recent history of the struggle for the unification of Italy. But there could be no similar grounds for suspicion of the motives of a requisitioning state in seeking the surrender of a fugitive criminal who, though a political opponent of the government of some other state, was not a political opponent of the state demanding his surrender. Nor would there appear to be any greater risk that his trial or punishment for the offence in such a state might be unfairly influenced by political considerations than if he had committed the same offence in the United Kingdom and been tried and punished for it here. So if a purposive construction of the Act is adopted this, too, leads to the conclusion that an offence of a political character for the purposes of the restriction was intended to be confined to offences in which the political purpose sought to be achieved by the offender was directed against the government of the state seeking his surrender.
My Lords, as respects the authorities I am content to express my agreement with what has been said about them in the speech of my noble and learned friend, Lord Hodson. The speeches in this House in Schtraks v Government of Israel[6] and in particular that of Viscount Raddiffe[7] are in accord with the conclusion which I have reached as to the construction of the Act. I can discern no significant difference in this respect between the meaning ascribed to the phrase 'an offence of a political character' by Viscount Radcliffe and that ascribed to it by my noble and learned friends, Lord Reid and Lord Hodson.
In Schtraks's case6 the only political purpose which it was alleged the fugitive criminal sought to achieve was directed against the government of the requisitioning state. The precise question for determination in the present appeal did not arise, and in expressing their views as to the meaning of the restriction in s 3 (1) of the Act their Lordships' minds were not directed to it. But though the reasoning in Schtraks's case6 does not compel your Lordships to dismiss this appeal, it is persuasive authority of the highest order in support of the construction which I, in agreement with the majority of your Lordships, would place on the restriction on the surrender of fugitive criminals contained in s 3 (1) of the Extradition Act 1870.
So I, too, would dismiss this appeal.
LORD SIMON OF GLAISDALE. My Lords,
The facts
Taiwan (formerly called by its Portuguese name of Formosa) is a large island off the mainland of China. Its population is of mixed origin; but it was principally settled from mainland China after the Ming Empire was overrun by the Manchus in the 17th century. In 1683 the island fell to the Ch'ing (Manchu) Empire and became part of Fukien Province; in 1886 it became a separate province of China. In 1895 China ceded Taiwan to Japan; but after the Japanese defeat in 1945 Taiwan was handed over to the Chinese Nationalist government (under generalissimo Chiang Kai-Shek), pursuant to the Cairo Agreement of 1943. The Nationalist government thereafter suffered a succession of defeats by Chinese Communist armies on the mainland; and during 1949-50 a stream of Nationalist troops, government officials and other refugees, numbering some two million persons, poured into Taiwan, which, indeed, became thereafter the main effective territory of the Nationalist government; though, according to the evidence filed in this case, that government claims to be the rightful government of all China and to be perpetually at war with the Communist government on the mainland. It has maintained martial law in Taiwan continuously since 1949. Today Taiwan contains two major populations - 12 million of native Taiwanese origin and about two million of recent mainland origin. An independence movement arose during the 1960s claiming to represent the native Taiwanese majority; it is now called the World United for Formosan Independence ('WUFI'). This resistance movement does not apparently have a common political ideology; but it is united in asserting that the Nationalist government is unrepresentative of its sole authentic body of subjects (the Taiwanese) and that it is oppressive and corrupt. The independence movement is at one in seeking the overthrow of the Nationalist government. The evidence contains allegations of a massacre of about 20,000 Taiwanese in 1947, and of continuing summary imprisonments and suppression of civil liberties. Your Lordships have no means of knowing how far such allegations are justified, nor is such knowledge necessary for the decision of this appeal; the mere fact that there is a large organised party making such allegations and agitating against a hated regime constitutes the classic situation in which offences of a political character are committed. It appears that resistance to the regime takes the form of a partisan movement in Taiwan itself and of organised groups of exiles. They claim that the detested government is only able to maintain itself in power owing to the political, military, diplomatic and economic support of the government of the United States. By 1970 Chiang Kai-Shek's son, Chiang Ching-Kuo, was 'Vice-Premier' of the Nationalist government in Taiwan, and was regarded as his aged, father's 'heir apparent'. In his evidence before the chief metropolitan stipendiary magistrate the appellant described Chiang Ching-Kuo as, in addition, 'head of the secret police and also responsible for the execution of about 200 political prisoners each year in Taiwan' He added: 'I regarded him as the symbol of the regime oppressive to the Taiwanese.' In 1970 Chiang Ching-Kuo visited the United States: his opponents regarded this visit as being for the purpose of strengthening United States support for his regime.
The appellant was born in Taiwan in about 1937. It appears that during his teens he became opposed to the Chiang Kai-Shek regime. After some military incident which is left obscure he decided to go into exile. He went to the United States, where he had a distinguished academic career, culminating in his qualification and practice as an architect. There are about 10,000 Taiwanese in the United States; and, from his arrival, the appellant became politically active in the United States branch of WUFI; by 1970 he had become its executive secretary. In evidence before the chief metropolitan stipendiary magistrate the appellant described the organisation's long-term objective as to overthrow Chiang Kai-Shek's regime and to establish a free and democratic Republic of Taiwan'. A secondary, short-term, immediate, objective was to try to change the American government's policy towards Taiwan.
On 24th April 1970 the appellant took part in a demonstration outside the hotel where Chiang Ching-Kuo was staying during his visit to the United States. The appellant had leaflets for distribution. These denounced both the Nationalist government and Chiang Ching-Kuo personally; but they also included passages protesting against United States support for the Taiwan regime - for example:
'It is our urgent plea that the United States discontinue its support of the Chiang regime and refrain from providing the Chinese Nationalists with weapons of terror ... These weapons are ultimately aimed at suppressing the legitimate aspirations of the people of Taiwan '
The question of attempting to assassinate Chiang Ching-Kuo during his visit had been discussed in the executive committee of the United States branch of WUFI, but rejected. However, during the demonstration the appellant's brother-in-law, Peter Huang, drew a pistol and fired, though without causing injury. The appellant was observed to be conducting a diversionary campaign: and it was later given in evidence in the United States that he was implicated in procuring the pistol which Peter Huang had used. Both the appellant and Peter Huang were indicted for attempted murder. Peter Huang pleaded 'Guilty'. The appellant pleaded 'Not Guilty, but was convicted. He was remanded for sentence on bail, but failed to appear, having fled the country He was extradited from Sweden in the summer of 1972; but, having fallen ill during the journey to the United States, he was landed in this country, where he was ultimately detained pursuant to the Aliens Order 1953[8]. The United States requested his extradition, and on 30th November 1972 the chief metropolitan stipendiary magistrate ordered him to be detained pending extradition. The appellant then applied in the Queen's Bench Division for a writ of habeas corpus, which was refused. The Divisional Court[9] gave leave to appeal to your Lordships' House, the question of law being whether the appellant's extradition crime was an offence of a political character within the meaning of s 3 (1) of the Extradition Act, 1870. Counsel for the respondent contends that it was not - on the grounds that the appellants offence was against the criminal code of the United States, whereas his political dispute was not with the United States but with Chiang Kai-Shek's government. The appeal therefore depends on the meaning of the words 'offence of a political character' in s 3 (1) of the Extradition Act 1870.
The Extradition Act 1870
Section 3 (1) reads as follows:
'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 he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.'
It is significant that the phrase 'offence ... of a political character', which recurs almost obsessively through the Act, is not defined. Fugitive criminal' is defined by s 26 to mean 'any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty's dominions'. Parliament therefore contemplated the escape of a person who, like the appellant, had been actually convicted of an extradition crime; though providing that he should not be extradited if the offence in respect of which his surrender is demanded was one of a political character. 'Extradition crime' is defined as 'a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule' to the Act. Schedule 1 sets out the list of extradition crimes. They include attempt to murder, and other serious crimes. They do not include such crimes as treason, sedition or lèse majestè; this indicates that offence...of a political character' does not mean merely the type of political offence which is necessarily committed against the state seeking extradition, since such offences are in any event unscheduled crimes. Here is an important internal linguistic guide to interpretation.
The first or 'golden' rule of construction
English law provides a number of guides to statutory interpretation, or 'canons of construction'. A difficulty arises that various canons could return conflicting answers; since English law has not yet authoritatively established any complete hierarchy among the canons. Fortunately, this presents no difficulty in the instant case; because all the many relevant canons of statutory construction in question here return the same answer - in favour of the appellant's construction.
What Maxwell[10] calls 'The first and most elementary rule of construction' is that (except in technical legislation) it is to be assumed the words and phrases are used in their ordinary and natural meaning. Moreover[11]:
'It is a corollary to the general rule of literal construction that nothing is to be added to...a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.'
'It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do.' (Lord Mersey in Thompson v Goold xx Co[12].) If Parliament had intended to say 'offence...of a political character against (or in respect of) the foreign state demanding such surrender', nothing would have been easier than to have inserted such words. Since they are not there, it is not for the courts to supply them.
This primary rule of construction is so fundamental that it is sometimes called 'the golden rule'[13]. It was so stated by Parke B in Becke v Smith[14]:
'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used...unless that is at variance with the intention of the legislature, to be collected from the statute itself, or tends to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.'
The primary or golden canon of construction, always potent, is particularly so in two sets of circumstance. First, if Parliament is likely to have envisaged the actual forensic situation, she will use plain words in the expectation that the courts will, in pursuance of the primary canon of construction, apply them to that situation in the way that Parliament intended. Secondly, if Parliament considers that it is difficult to frame a definition which may not either go too far or fall too short in various situations (whether envisaged or merely hypothetical), Parliament will use plain words in the expectation that the courts will apply them in their natural sense (without omissions or additions) to various forensic situations as they occur.
Did Parliament in 1870 envisage the situation that, say, an attempt on the life of a ruling figure of state A might be made in the territory of state B? It seems highly likely. In the third quarter of the last century various movements, liable to use violent methods to overturn established authority were notoriously operating internationally from Mazzini's republican nationalists to the anarchists. There had been a number of recent attempts to assassinate heads of state, members of their families or prominent ministers, many successful (see e g Oppenheim[15]). Such persons were frequently at risk abroad, either on business in diplomatic congress, or on holiday at the watering places which they frequented.
It is not to be thought that the British Parliament in 1870 approved political violence, whether committed in the assassin's home country or abroad. Nevertheless, the privilege of asylum for offences, however atrocious, of a political character was paramount; and this country never included in any extradition treaty the so-called 'attentat' clause pioneered by Belgium in 1856.
But, even if Parliament or her draftsman did not have the instant forensic situation in contemplation, the primary rule of construction that plain words should be given their ordinary, literal and natural meaning, without addition or omission, is still of even more than ordinary potency. In advisedly refraining from defining a crucial phrase in the statute, Parliament left it to the courts to apply the statutory words to forensic situations as they arose, in the expectation that they would be so applied in their ordinary, natural and literal sense, without addition' or omission. The difficulty of providing a definition of crimes which were to be non-extraditable because they were of a political character was already notorious. By 1870 France had entered into 53 extradition treaties, as compared with this country's three, All the French treaties (including those entered into during the dictatorship of Napoleon III, against whose life several attempts had been made) contained an exception for political offences (crimes ou delits politiques'); and in none was the concept defined, France leaving it entirely to the state to whom the extradition request was made to decide whether the offence was of a political character (see the evidence of Sir Thomas Henry, chief metropolitan magistrate, to the Select Committee on Extradition 1868[16]): such evidence is available to show the facts which must be assumed to have been within the contemplation of the legislature when the statute was passed: Halsbury's Laws of England[17]. (For the difficulty of definition see also the Appendix, 'Notes on Political Offences', to Clarke on Extradition[18], dealing with the English political history and citing some of the French provisions; and Sir Charles Russell QC arguendo in Re Castioni[19].)
By reason of this primary and golden rule, therefore the words 'offence of a political character' must be read in their natural ordinary and literal sense, without the addition of the words 'against (or, in respect of) the foreign state demanding such surrender', which are not in the Act. Asked whether the appellant's crime was an offence of a political character even the most harassed commuter from Clapham would, I think, undoubtedly answer, 'Of course'. Indeed, I cannot conceive that it would occur to anyone except a lawyer that the appellant's offence could possibly be described as other than of a political character.
But this is too harsh a reflection on the law. Legal analysis, in fact, returns the same answer as common sense. Oppenheim's International Law[20] has a chapter significantly entitled 'Principle of Non-Extradition of Political Criminals'. In § 334 Oppenheim wrote[21]:
'Although the principle became, and is, generally recognised that political criminals should not be extradited, serious difficulties exist concerning the conception of "political crime" ... many writers consider a crime "political" [i] if committed from a political motive, others call "political" [ii] any crime committed for a political purpose; again, others recognise such a crime only as "political" [iii] as was committed both from a political motive and at the same time for a political purpose; and, thirdly, some writers confine the term "political crime" to [iv] certain offences against the State only, such as high treason, lèse majesté, and the like,'
So far as the 1870 Act is concerned, [iv] cannot be the meaning, since these are not scheduled extradition crimes at all. Such crimes may be included in 'offence of a political character', especially for the purpose of the second limb of s 3 (1) of the 1870 Act" see Re KoIczynski[22]. But offence ... of a political character' cannot be confined to such crimes. Therefore, except for those who favour this fourth (excluded) category, no jurist stipulates that the political character of the crime must be judged vis-à-vis the state seeking extradition. The appellant satisfies the most exacting relevant test, namely [iii] - his crime was committed both from a political motive and for a political purpose. So the leading jurists in this field would concur with the man in the street that the appellant's crime was 'an offence ... of a political character'.
Construction according to historical setting and the 'mischief' rule
A second leading canon of statutory construction reinforces here the primary or golden rule that words of a statute are to be read in their natural and ordinary sense, without omission or addition, unless some secondary meaning must be preferred, or some omission or addition must be made, in order to make sense of the provision. This second canon of construction consists in ascertaining, first, the general situation in which Parliament was legislating and, secondly, the particular situation for which Parliament was providing a remedy. These are really different aspects of the same canon of construction; though the former is sometimes called construction according to historical setting'[23], the latter 'the mischief rule'[24].
Historical examination can leave no doubt what was Parliament's object and attitude in enacting s 3 (1). In other than exceptional cases, criminal law operates territorially only. A foreigner who commits an extradition crime abroad does not infringe the English criminal code. Nevertheless, the 1870 Act conferred on the Crown the right to implement by order in council treaties stipulating that persons who had committed crimes abroad and taken refuge here might be handed over to the state where the crime was committed, in return for that state reciprocally engaging to hand over to Her Majesty's government persons who had committed crimes in this country and taken refuge in the territory of that other power. The general purpose of the Act is therefore not difficult to discern: it was to enable states to co-operate in the suppression of crime. But from the general power of extradition and in derogation from this purpose of international co-operation in the suppression of crime, Parliament, in conformity with general international law, made an exception. Perpetrators of extradition crimes were nevertheless not to be extradited if their offence was of a political character. Why should Parliament have made such an exception? The explanation was given by my noble and learned friend, Lord Reid, in Schtraks v Government of Israel[25]:
'In reading the Act of 1870 one is entitled to look through mid-Victorian spectacles. Many people then regarded insurgents against continental governments as heroes intolerably provoked by tyranny, who ought to have asylum here, although they might have destroyed life and property in the course of their struggles. But, although such views may have given rise to s. 3 (1) of the Act of 1870, I do not think that its scope can be limited to such cases. We cannot inquire whether a fugitive criminal was engaged in a good or a bad cause. A fugitive member of a gang who committed an offence in the course of an unsuccessful putsch is as much within the Act as the follower of a Garibaldi; but not every person who commits an offence in the course of a political struggle is entitled to protection. If a person takes advantage of his position as an insurgent to murder a man against whom he has a grudge, I would not think that that could be called a political offence. So it appears to me that the motive and purpose of the accused in committing the offence must be relevant, and may be decisive. It is one thing to commit an offence for the purpose of promoting a political cause, and quite a different thing to commit the same offence for an ordinary criminal purpose.'
If, as Lord Reid says, the motive and purpose of the offence is relevant and may be decisive, the appellant's was certainly an offence of a political character.
The insight of my noble and learned friend is fully borne out by an examination of the preceding history. Even Lord Castlereagh, no friend of subversives, denounced in 1816 the practice of handing over political refugees (Wheaton's International Law[26], where it is also stated to be 'an almost universal rule that no State will surrender political refugees'). Garibaldi and Kossuth, criminals in the eyes of the absolute governments of Europe, had been subjects of wild enthusiasm on their visits to London; and it is inconceivable that this country would have handed the former over to King Bomba on the ground that he had been responsible for the death; not of a Neapolitan, but of an Austrian, soldier or official in the Kingdom of the two Sicilies. Only a few years before the 1870 Act there had occurred the Orsini affair. Orsini was an Italian republican follower of Mazzini. He had thrown a bomb at Napoleon III. He was discovered to have had links with some Italian refugees in London and the explosives had been made in England. In response to French protests Palmerston proposed to introduce a Conspiracy to Murder Bill to make it a felony, instead of merely a misdemeanour, to plot in England to murder someone abroad. This aroused such indignation that Palmerston, normally a highly popular and powerful minister, suffered parliamentary defeat, and his government fell. (See Jasper Ridley, Lord Palmerston.[27].)
Then again, the reason why Great Britain had only three extradition treaties by 1870, as against France's 53, was because of the difficulty of getting the necessary enabling bill through Parliament, in view of that body's jealousy of any infringement of this country's traditional freedom of political asylum. None of the three treaties or enabling Acts contained any express reservation relating to political crimes. This was because Parliament took it for granted that the government would not hand over criminals whose offence was of a political character or who were liable to be tried or punished for such an offence if handed over for some other extradition crime; and that was the way the treaties were in fact operated (see Sir Thomas, Henry's evidence[28]:
the question no doubt would be, whether there was a motive that showed it was a political offence ... it is so well understood abroad now that anything savouring of the political is not to be the subject of surrender ... if there were no clause whatever, it is left to each Government to determine ... They have nothing to do but say, 'We consider this political, we will not give him up"'
Similarly the legal adviser to the Colonial Office[29]: 'Surrender was refused on the ground that the acts [murder, robbery, etc] ... were done by him in a political capacity if there was any political character in the offence he would not be surrendered a very slight political character would prevent the surrender.').
Against such an historical background it is impossible to suppose that Parliament intended s 3 (1) to be construed other than benevolently in favour of the fugitive offender: certainly an artificially narrow construction is quite inadmissible it was suggested on behalf of the respondent that the intention behind s 3 (1) was the fear that a fugitive offender might not get a fair trial if he were handed over to the very government against whom he had offended politically. I cannot accept this. First, the intention of Parliament must be deduced from the language used' (Capper v Baldwin[30] per, Lord Parker CJ). Secondly, by international law a fugitive offender was not to be handed over if he would not get a fair trial in the country seeking extradition, whether his offence was political or not (see Sir Thomas Henry[31] on French practice; legal adviser to the Colonial Office[32] on judicial torture). Thirdly, it is absurd to suppose the legislature contemplated that, though someone in the position of the appellant would get a fair trial in the United States, President Lincoln's assassin, say, would not.
Presumption against changes in the common law
Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. "It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness.' (Maxwell[33].)
International lawyers were not unanimous whether comity required a state to extradite offenders against the criminal law of a foreign state, Grotius and Pufendorf being ranged on opposite sides of the argument; but the overwhelming modern view is that any international obligation to extradite is imperfect, needing treaty to perfect it (Wheaton[34]). There can be no question, though, what answer the English common law returned: no English authority had the right to extradite (Clarke on Extradition[35], citing Coke[36]; Wheaton[37] citing Lord Denman[38] speaking in your Lordships' House). This was indeed the inevitable result of the following fundamental principles of English common law: (1) no one can be deprived of his liberty except for an offence against English law; (2) this liberty is vindicated by the writ of habeas corpus, statute in this respect merely emboding the common law; (3) criminal law being (other than exceptionally) territorial, an offence against a foreign criminal code is no offence against English law; (4) therefore anyone taken into custody for the purpose of delivery to a foreign state in respect of an offence against the criminal code of that foreign state could secure his release by habeas corpus proceedings.
A fugitive offender against the criminal law of a foreign state being thus protected by the common law from arrest for the purpose of extradition, the Extradition Act 1870 and the orders in council implementing it were necessarily in derogation from the common law. It follows that the positive powers under the Act should be given a restrictive construction and the exceptions from those positive powers a liberal construction. Even if it were otherwise permissible to read s 3 (1) as allowing the implication that 'offence . of a political character' refers only to an offence which is of a political character as regards the state seeking extradition, the presumption against changes in the common law would preclude such an implication and demand the construction proposed by the appellant. The construction proposed by the respondent cannot possibly be said to be a 'necessary' implication from the language of the statute, nor can it possibly be said that Parliament has expressed 'with irresistible clearness' the intention that the political character of the offence should be limited to the politics of the state seeking extradition.
Since the common law, as so often, favours the freedom of the individual, the rules enjoining strict construction of a penal statute or of a provision in derogation of liberty (MaxweI[39]) merely reinforce the presumption against change in the common law.
Presumption in favour of conformity with international law
. every statute is interpreted, so far as its language permits, so as not to be inconsistent with . the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language.' (Maxwells[40].)
I have already cited Oppenheim[41] and Wheaton[42] as showing the general consensus that political crimes are not the subjects of extradition, though both indicate the difficulties of definition. But there is no need to rely on abstract statements of the principles of international law. A case has occurred which is indistinguishable from the instant. In 1934 two Croatians named Pavelic and Kwaternik were alleged to be implicated in the murder of King Alexander of Yugoslavia and M Barthou, the French Foreign Minister, in Marseilles while the King was on a state visit to France. There were other, incidental victims (see Foro Italiano[43]). The alleged assailants fled to Italy, and the French government requested their extradition. The extradition treaty between France and Italy of 1870 excluded political crimes from the category of extraditable offences; and the accused pleaded before the Court of Appeal of Turin that the alleged crimes were of a political nature. This plea was upheld.
The report of the case to which your Lordships were referred (Annual Digest of Public International Law[44]) might be susceptible of the suggestion that the case depended purely on the provision in the Italian Criminal Code defining 'political crime'. But the original report in the Foro Italiano makes it clear that this was not so; the headnote[45] reads in translation:
(1) In Italy extradition is regulated by Italian penal law, by treaty, and by international usage; (2) and in this field international treaties should be applied in so far as they are not abrogated or modified by Italian penal law; (3) therefore, extradition should not be allowed for a political crime if the treaty between Italy and the State requiring extradition excludes political crimes; (4) the assassination of a sovereign (soverano) is a political crime if it is prompted by political motives [moventi; the body of the report uses motivo or motivi] and offends against a political interest of a foreign State; so [also] are political [those] crimes committed or attempted in the course of the said regicide.'
(In other words, the principal motive of the crime, especially the 'regicide', not the murder of M Barthou, being political, the offences constituted by the incidental injuries to the other victims were deemed to be also of a political character[46]) If the respondent were right in his construction of the English Act, Pavelic's alleged complicity in the murder of M Barthou was an 'offence of a political character', but not his alleged complicity in the murder of King Alexander. Yet extradition was refused unconditionally by the Italian court and not conceded on condition that proceedings should only be taken in respect of King Alexander's death.
That the case has relevance to public international law, and was not merely a matter of Italian municipal law, is also shown by its subsequent repercussions, which. are treated in Oppenheim[47]:
the Council of the League of Nations, in pursuance of a proposal made by France, took steps to bring about an international convention for the prevention and punishment of crimes of a political character described as acts of political terrorism';
though the consequent convention only had limited adherence. But unless the decision of the Court of Appeal of Turin were in accord with general international law there was no need of the suggested international convention at all.
Just as international law precluded Pavelic's extradition for the alleged murder of King Alexander in France, so it also precludes the appellant's extradition for the attempted murder of Chiang Ching-Kuo in the United States; and the 1870 Act should be construed accordingly, in the absence of contrary indication.
Presumption against anomaly or absurdity
This presumption is an application of the canon of statutory construction enjoining an interpretation most agreeable to justice and reason (Maxwell[48]). 'An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available (Danckwerts LJ in Artemiou v Procopiou[49]). This is, it is true, a secondary canon of construction, subordinate to the 'golden' rule that the words of a statute should prima facie be read in their ordinary, natural and literal sense, without addition or omission; but in the instant case the presumption against anomaly and absurdity reinforces the 'golden' rule, and precludes the interpretation advocated by the respondent, whereby the political character of the offence must be as regards the state seeking extradition.
Take the Pavelic case[50], and suppose the suspects had fled to England and not Italy. On the respondent's construction of the 1870 Act King Alexander's murder would have been an extraditable offence, but not that of M Barthou; though the acts were virtually simultaneous, their common motives and purposes were political, and 'their political character was only distinguishable in that Barthou symbolised French support for the Yugoslav regime whereas King Alexander symbolised that regime itself. If it could be ascertained which assassin killed-which victim, one would be extradited and the other not.
Then take the hypothetical case of an attempted assassination, not of the Vice Premier of Nationalist China, but of the Vice-President of the United States. Counsel for the respondent accepted that this would be 'an offence of a political character' if committed solely in protest against United States support of Chiang Kai-Shek's government and if perpetrated on United States territory - say, at the United States end of the Niagara Bridge. But if the purporting assailant followed the Vice-President across the bridge, and made the attempt at the Canadian end of the bridge, it would in some extraordinary way cease to be 'an offence ... of a political character'. Its correct characterisation if the attempt were made laterally as the Vice-President was actually crossing the frontier would, I think, strain the subtlety even of a scholastic metaphysician.
Take, finally, two other actual assassinations, and apply the respondent's argument. In 1898 an Italian anarchist, Lucheni, murdered the Empress Elizabeth of Austria at Geneva. Asked why, he replied, 'As part of the war on the rich and great It will be Humbert's turn next.' In 1900 another Italian anarchist, Bresci, duly murdered King Humbert of Italy near Milan. Between these two events, at an international conference in Rome, Great Britain (together with Beligum and Switzerland) refused to give up her traditional privilege of asylum or to agree to surrender suspected anarchists on demand of their native countries.[51] Yet, if both assassins had taken refuge in England, on the respondent's argument Bresci's crime would have been an offence of a political character under s 3 (1) and non-extraditable, while Lucheni's, similar in all respects except the fortuitous and temporary location of the victim, was not an offence of a political character and was therefore extraditable. (Like the Divisional Court, I consider that the criterion laid down in Re Meunier[52] that -
'there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is political offence, otherwise not'
- so that the offences of anarchists, whose quarrel is with established society at large, are excluded - is too narrow in the light of Re Kolczynski[53], and that the later authority is to be preferred.)
Such anomalies and absurdities would pose a serious problem of interpretation even if the phrase 'in respect of the state seeking extradition' were actually found in the statute following the words 'offence...of a political character'. Certainly they preclude such a phrase being merely implied, even if other canons of construction did not do so.
The cases
None of the judicial authorities cited to your Lordships had the instant situation in contemplation, except for the Italian case of Pavelic[54]. I accept that the passage which I cited from the speech of my noble and learned friend, Lord Reid, in Schtraks v Government of Israel[55] must be read with those of my noble and learned friends, Lord Radcliffe and Lord Hodson; and that none of my noble and learned friends was addressing his mind to the problem confronting your Lordships.
There is, however, one case which is of particular value: Re Castioni[56]. Its importance is that the decision turned on the meaning of 'offence of a politic al character', and that the Divisional Court adopted the meaning suggested in Sir James Stephen's History of the Criminal Law[57] (see especially Hawkins J[58] and Stephen J[59], who adopted his previously suggested meaning on the ground that it did not give' too wide an explanation'). Stephen was not only a great institutional writer; he was a particular exert on the subject of extradition, having been a member of the powerful Royal Commission on Extradition headed by Sir Alexander Cockburn CJ which reported in 1878. Stephen's History was published in 1883, and it contains a full discussion of the meaning of the expression 'an offence...of a political character[60]' He did not discuss the specific situation which arose in Pavelic's case54 and here; although, in view of his powers of juristic speculation and his experience, it is at least possible that he had envisaged it. Certainly his preferred meaning of the phrase 'an offence... of a political character', which was that adopted in Castioni's case56, is apt to cover the Pavelic54 and the instant situation. It was as follows[61]:
'I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances.'
It could hardly be gainsaid that the crime of which the appellant was convicted was incidental to and formed a part of a political disturbance, even if this were an essential criterion (cf Re Kolczynski[62]).
Denman J in Castioni's case[63], though referring approvingly to the passage from Stephen's History, gave his own explanation as follows:
'...it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter...'
That also neatly covers the instant case.
Moreover, your Lordships will recollect from the passages of the evidence to which referred at the beginning of this speech that the political disturbance to which the appellant's offence was incidental and of which it was part, that the political matter which the appellant's offence furthered and was intended to assist, were to some extent directed against or involved with the policy of the United States.
Conclusion
My Lords, it must be rare for so many canons of statutory construction and an authoritative treatise, forensically approved in this regard, to concur in pointing to a particular interpretation.
It is unlikely that the world will ever be free of political crime: subjects will always tend to feel grievance against their governors, there will always be conflicts of ideology, and some people seem to have a natural propensity to express themselves in violence. But there is the less excuse for, and therefore will be the less public condonation of, political violence if there is institutional power to influence the decisions of government and is substantial freedom of expression is safeguarded by the law. This country prides itself on its tradition of constitutional government and freedom under the law. Our tradition of asylum for political criminals is closely associated with to cherishing of our own rights.
I am, my Lords, naturally conscious that this instant appeal takes place at a time when horrifying acts of political terrorism are much in the public mind. Although it is, perhaps, more acute today, the problem how to reconcile a policy of asylum for political criminals with the curbing of terrorism is not new, as can be seen from the discussion in Wheaton[64] and Oppenheim[65], and it has so far defied a generally acceptable solution. Oppenheim himself proposed a way of dealing with the matter[66]. Although these paragraphs have been omitted from recent editions, Oppenhelm's distinguished editor has this to say of the proposed Convention against Terrorism consequent on the assassination of King Alexander of Yugoslavia[67]:
'It is doubtful whether States wedded by their law and tradition to the principle of non-extradition of political offenders will acquiesce in any conventional regulation impairing the asylum hitherto granted to political offenders. Such acquiescence on their part is unlikely at a time when the suppression of individual freedom and the ruthless persecution of opponents in many countries tend to provoke violent reactions of a treasonable character against the Governments concerned.'
Bashi-bazouks had nothing to teach the SS or the NKVD, nor is the world yet emancipated from tyranny. In view of the increase in power of weapons of destruction and the greater likelihood of innocent persons suffering, it may well be that the time has come to seek once again a solution to the problem. But this will be for governments in international conclave: there is no advantage in marginal and anomalous judicial erosion of traditional immunities.
I would allow the appeal.
LORD SALMON. My Lords, I agree with my noble and learned friends, Lord Hodson and Lord Diplock, that this appeal should be dismissed broadly for the reasons which they give and I desire to add only a few observations of my own.
The 1870 Act is based on the assumption of a bilateral treaty between the holding state and the requesting state. With certain immaterial exceptions the criminal law of each state is territorial only. A crime committed in state A cannot be tried in state B. Yet it is in the international interest that criminals shall, be brought to justice wherever their crimes may be committed. Hence the treaties relating to extradition and the consequent legislation enacted to give them the force of law in the courts of each of the contracting states.
If a crime listed in the extradition treaty between state A and state B is committed in one or other of these states, the treaty will ensure that, subject to certain restrictions, the criminal shall, as a rule, be surrendered by the state to which he has fled at the request of the state in which he has committed the crime. As my noble and learned friend, Lord Diplock, points out, the Extradition Act 1870,s 3 (1), in effect imposes certain restrictions on the treaty-making powers of the executive and the circumstances in which a fugitive criminal may be surrendered. This appeal raises an important question about the nature of these restriction This question turns on whether the words 'offence ... of a political character' in s 3 (1) of the Extradition Act 1870 mean offences 'of a political character' quoad the requesting state only or quoad any other state also. To my mind the words as used in the second limb of s 3 (1) clearly have the former and not the latter meaning. The second limb is designed to cover a case in which the requesting state is seeking surrender of a fugitive by tendering what seems to be prima facie evidence of some crime without any political flavour whereas there is evidence which establishes that in reality the true purpose of the requesting state is to lay its hands on the fugitive in order to punish him for some political act against its own régime: see Re Kolczynki[68]. I can see no reason for giving the words of a political character' in the first limb of s 3 (1) any wider meaning than that which they bear in the second limb of that section. The historical reason for their introduction in 1870 was not primarily fear that the fugitive would not get a fair trial in the requesting state but because as my noble and learned friend Lord Reid pointed out in Schtraks v Governmettt of Israel[69]:
'Many people then regarded insurgents against continental governments as heroes intolerably provoked by tyranny, who ought to have asylum here, although they might have destroyed life and property in the course of their struggles.'
No doubt the Act offered asylum to fugitives from oppression, real as well as imagined and to blackguards as well as to heroes. It is not for the courts of this country to inquire into the merits of those who have committed crimes against the requesting state to pass judgment on the political acts or policy of the government of that state.
Section 3 (1) was, in my view, introduced into the 1870 Act solely to ensure that anyone who had committed a crime in some foreign state designed to overthrow its régime, could not be surrendered to that state after he had escaped to England and found asylum here. The idea of surrendering a fugitive in such circumstances was abhorrent not only to England but to many other countries who imposed the same restrictions on extradition as we did. No exhaustive definition of an offence of political character is possible and none has been attempted. I do not believe that in 1870 or before or afterwards this country nor indeed any other country contemplated that a fugitive criminal should be immune from extradition unless his crime was a political offence directed against the requesting state. Many such cases are to be found in the books. This, however, is certainly the first time when the contrary has been argued in our courts nor, save in Pavelic's case[70] with which I will presently deal, has the point so far as I can discover ever been considered in the courts of any other country. Certainly the well-known textbooks on international law do not refer to any such cases; nor do any of the learned authors express any opinions bearing directly on the point.
It seems to me to be entirely unrealistic to suppose that any civilised state would ever have lent its support to a rule which would make its task of protecting visiting foreign rulers or statesmen even greater than it is. The violent political opponents and potential murderers of such visitors might be greatly encouraged by the knowledge that after murdering their victim they had only to escape abroad to avoid all risk of punishment. I cannot think that there is any valid reason for construing the 1870 Act as offering asylum to anyone other than a man who has committed a crime directed against the regime of the requesting state and which, in that sense, was a crime of a political character.
In the present case the appellant had found asylum in the United States of America against the tyranny to which he bad been subjected in Formosa. His crime was, admittedly, in no way directed against the United States or its politics or policy towards Formosa. The crime was an abuse of the asylum which he had enjoyed. In defiance of law and order in the country which had afforded him protection, he had there attempted murder. The fact that the motive for this murder was to overthrow a despotic regime elsewhere is, in my opinion, irrelevant.
It seems to me that the benevolence with which it is said that the 1870 Act should be construed in favour of a fugitive offender must surely have some rational limits. Otherwise, persons could, e g, bomb buildings or destroy civilian aircraft or murder visiting foreign politicians in, say, the United States or any other country with which we have an extradition treaty with the motive of obtaining some political end in a far off land, knowing that they could escape trial and punishment by escaping to England. This would act as an encouragement for the commission of crimes which would greatly endanger the lives of those who could be in no way concerned with or have any connection with the political ends for which the crimes were perpetrated. It would also mean that such crimes could be committed in this country with exactly similar results should the criminals escape to the United States or any other country which was party to an extradition treaty with the United Kingdom. Extradition is never granted except in a reciprocal basis. Accordingly, if such crimes were committed here and the criminals escaped abroad, there is no chance of them being surrendered if the 1870 Act really bears the construction for which the appellant contends.
I can hardly regard that construction as favouring the liberty of the individual under the common law, but only as something totally different, namely, a licence to in a foreign state to the great peril of its citizens when neither they nor their government have any connection with the political motive or ends for which the crime was committed.
We have been referred to the case concerning the murder in France in 1934 of King Alexander of Jugo-Slavia and M Barthou, the French Foreign Minister by two Croats named Pavelic and Kwaternik who did not approve of the Jugo-Slav régime or of its support by France. The murder was intended as a political blow at that regime and at France of supporting it. The two Croats escaped to Italy. France requested their extradition which the Italian courts refused on the ground that their crime was of a political character. It is not for me to express any view about the correctness of that decision. If Italian law is the same as ours, the murder of M Barthou was clearly an offence of a political character within the meaning of those words in the treaty and the relevant Italian legislative enactment, but the murder of King Alexander was not. It is not plain from the somewhat attenuated reports of this case what were the precise grounds for the Italian court's decision. It seems, however, that the court may have considered that any crime incidental to or arising out of an offence of a political character is deemed also to be such an offence and that therefore the assassins of King Alexander were entitled to the same immunity from extradition as they were in respect of the murder of M Barthou. This point has never been considered by our courts. But if it is a valid point, it underlines the necessity for construing the words 'of a political character' strictly in their context in the 1870 Act.
I do not consider that any light is thrown on the present case by Re Castioni[71]. That case concerned a request for extradition by Switzerland of a man who had escaped to England from that country having committed a murder there in the course and in furtherance of an insurrection to overthrow the Swiss government. On any view, that must have been an offence of a political character. The point arising in the instant case did not arise in Re Castioni1 and none of the observations of the Divisional Court[72] throws any light on it.
Nor did the point with which we are faced arise in Schtraks v Government of Israel[73] but there are passages in that case which are of more general application particularly the passage cited by my noble and learned friend, Lord Hodson, from the speech of Viscount Radcliffe[74] with which none of the other noble and learned Lords in case disagreed. In my opinion, Lord Radcliffe's analysis extracts the principle underlying s 3 (1) of the 1870 Act. This passage from his speech and also the terms of the Act itself inherently presuppose and require that the political direction of the offence must be against the requesting state if a refusal of extradition is to be held justifiable. To hold otherwise would be to introduce a new and dangerous principle which the Act does not warrant.
I cannot agree that this conclusion leads to any absurdity or offends any rule of the common law. On the contrary, it is, in my opinion, dictated alike by reason, principle and justice.
My Lords, I would dismiss the appeal.
[1] United States of America (Extradition) Order in Council 1935 (SR & O 1935 No 574)
[2] [1973] 1 All ER 935
[3][1962] 3 AII ER 529 at 539, [1964] AC 556 at 589
[4] [1891] 1 QB 149, [1886-90] AIl ER Rep 640
[5] [1962] 3 All ER at 540 [1964] AC at 591
[6] [1962] 3 All ER 529, [1964] AC 556
[7] [1962] 3 All ER at 540, [1964] AC at 591
[8] SI 1953 No 1671, as amended
[9] [1973] 1 All ER 935
[10] Interpretation of Statutes(12th Edn,1969), p 28
[11] Ibid, p 33
[12] [1910] AC 409 at 420
[13] Maxwell, op cit, p 43
[14] (1836) 2 M & W 191 at 195
[15] International Law (3rd Edn, 1920), vol 1, p 518
[16] See the Report from the Select Committee on Extradition (1868) HC Paper 393, Minutes of Evidence, pp 31, 33, qq 577, 578, 623, 640
[17] 3rd Edn, vol 56, p 411, para 622 and cases cited at note (d)
[18] 4th Edn (1903)
[19] [1891] 1 QB 149 at 153
[20] 8th Edn (1955), by Lauterpacht, vol 1, Part II ch 3 (x), p 704
[21] Ibid, p 707
[22] [1955] 1 All ER 31 at 34, 36, [1955] 1 QB 540 at 548, 550
[23] Maxwell, op cit, p 47
[24] Ibid, p 40
[25] [1962]3 All ER 529 at 535, [1964] AC 556 at 582, 583
[26] 6th Edn (1929), vol 1, p 217
[27] (1970), pp 479-482
[28] See the Report from the Select Committee on Extradition (1868), HC Paper 391, Minutes of Evidence, pp 27, 30, 38, 39, qq 489, 559, 714, 732
[29] Ibid, pp 45, 49, qq 884, 887, 901, 902, 980
[30] [1965] 1 All ER 787 at 791, [1965] 2 QB 53 at 61
[31] Loc cit, p 31, q 577
[32] Ibid, p 49, q 980
[33] Interpretation of Statutes (12th Edn 1969), p 116
[34] International Law (6th Edn, 1929), vol 1, p 212
[35] 4th Edn (1903) pp 6, 7
[36] 3 Co Inst (1644), ch 84, p 180
[37] Op cit pp 213, 214
[38] See Forsyth, Cases and Opinions on Constitutional Law (1869), p 369
[39] Op cit, p 238
[40] Op cit, p 183
[41] International Law (8th Edn, 1955), vol 1, ch 3 (x), p 704
[42] International Law (6th Edn, 1929), vol 1, p 217
[43] (1935), Part II, col 21
[44] (1934) Annual Digest, 1933-1934, Case no 158
[45] (1935), Part II, cols 20, 21
[46] Ibid col 21
[47] Op cit, vol 1, p 710, §§ 338-340a
[48] Op cit, ch 10, p 199
[49] [1965] 3 All ER 539 at 544, [1966] 1 QB 878 at 888
[50] (1934) Annual Digest, 1933-1934, Case no 158
[51] See Barbara Tuchman, The Proud Tower (1966), pp 100-104
[52] [1894] 2 QB 415 at 419, per Cave J
[53] [1955] 1 All ER 31 [1955] 1 QR 540
[54] (1934) Annual Digest 1933-1934, Case no 158
[55] [1962] 3 All ER at 535, [1964] AC at 582, 583
[56] [1891] 1 QB 149, [1886-90] All ER Rep 640
[57] (1883), vol 2, p 71
[58] [1891] 1 QB at 165, [1886-90] All ER Rep at 648, 649
[59] [1891] 1 QB at 167, [1886-90] All ER Rep at 650
[60] Vol 2, pp 70-72
[61] Ibid, p 71
[62] [1955] 1 All ER at 36, [1955] 1 QB at 551
[63] [1891] 1 QB at 156, [1886-90] All ER Rep at 643, 644
[64] International Law (6th Edn, 1929)
[65] International Law (8th Edn, 1955)
[66] 3rd Edn (1920), vol 1, pp 521-523, §§ 339, 340
[67] 8th Edn (1955), vol 1, 710
[68] [1955] 1 All ER 31,1195311 QB 540
[69] [1962] 3 All ER 529 at 535, [1964] AC 556 at 582, 583
[70] [1934] Annual Digest, 1933-1934, Case no 158
[71] [1891] 1 QB 149 [1886-90] All ER Rep 640.
[72] [1973] 1 All ER 935
[73] [1962] 3 All ER 529, [1964] AC 556
[74] [1962] 3 All ER at 539, [1964] AC at 589