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Editorial Committee of the Cambridge Law Journal
Extradition. Offence of a Political Character. TerrorismAuthor(s): Paul O'HigginsSource: The Cambridge Law Journal, Vol. 32, No. 2 (Nov., 1973), pp. 181-183Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505667 .
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C.L.J. C.L.J. Case and Comment Case and Comment 181 181
due in this country. But it would be wrong to assume that the judgments of the House of Lords in the Sunday Times case have imposed new and further restrictions in what is already a restrictive field. What they have provided is one of t}e widest and most probing assessments of the operation of contempt of court ever attempted in an English court.
D. G. T. WILLIAMS.
EXTRAD]T10N OFFENCE OF A POL1TICAL CHARACTER-TERRORISM THE difflculties involved in determining what is a political offence, or more precisely in English terms, an oSence of a political charac- ter, are amply illustrated by the discussions in the House of Lords in R. v. Governor of Pentonville Prison, ex p. Cheng 11973] 2 W.L.R. 746. The facts were simple enough. Cheng had been convicted of the attempted murder in New York of a leading figure in the Chinese Nationalist Government in controI of the island of Taiwan. Cheng belonged to a movement dedicated to the libera- tion of the indigenous population of Taiwan and was opposed to the political relations between the U.S.A. and the Chinese Nationalists Having been convicted he fled the United States to Sweden while on bail. The Swedes agreed to his extradition to the United States, but while en route he was taken ilI, landed at Lon- don airport and was taken to a prison hospital. The American authorities requested his extradition to the United States and Cheng resisted their application by invoking sectlon 3 (1) of tlle Extradition Act 1870 which provides, inter alia,
A fugitIve criminal shall not be surrendered if the oSence in respect of which his surrender is being demanded is one of a political character, or if he prove . . . that tlle requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political cl2aracter.
No one doubted the political motivation behind Cheng's offence, but, by a majority of 3 to 2, the House of Lords decided that for an offence to qualify as an offence of a political character it must have been directed against the requesting state. In this case Cheng's crime had not been directed against the United States, the requesting State, but rather against another state in the person of a representa- tive of the Nationalist Government in Taiwan while on the territory of a third state. The basis of the majority decision (Lords Diplock, Hodson and Salmon) is not easy to follow, principaIly because it appears to be largely a policy decision. Lord Hodson was clear that to take any other view " would create an impossible situation."
due in this country. But it would be wrong to assume that the judgments of the House of Lords in the Sunday Times case have imposed new and further restrictions in what is already a restrictive field. What they have provided is one of t}e widest and most probing assessments of the operation of contempt of court ever attempted in an English court.
D. G. T. WILLIAMS.
EXTRAD]T10N OFFENCE OF A POL1TICAL CHARACTER-TERRORISM THE difflculties involved in determining what is a political offence, or more precisely in English terms, an oSence of a political charac- ter, are amply illustrated by the discussions in the House of Lords in R. v. Governor of Pentonville Prison, ex p. Cheng 11973] 2 W.L.R. 746. The facts were simple enough. Cheng had been convicted of the attempted murder in New York of a leading figure in the Chinese Nationalist Government in controI of the island of Taiwan. Cheng belonged to a movement dedicated to the libera- tion of the indigenous population of Taiwan and was opposed to the political relations between the U.S.A. and the Chinese Nationalists Having been convicted he fled the United States to Sweden while on bail. The Swedes agreed to his extradition to the United States, but while en route he was taken ilI, landed at Lon- don airport and was taken to a prison hospital. The American authorities requested his extradition to the United States and Cheng resisted their application by invoking sectlon 3 (1) of tlle Extradition Act 1870 which provides, inter alia,
A fugitIve criminal shall not be surrendered if the oSence in respect of which his surrender is being demanded is one of a political character, or if he prove . . . that tlle requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political cl2aracter.
No one doubted the political motivation behind Cheng's offence, but, by a majority of 3 to 2, the House of Lords decided that for an offence to qualify as an offence of a political character it must have been directed against the requesting state. In this case Cheng's crime had not been directed against the United States, the requesting State, but rather against another state in the person of a representa- tive of the Nationalist Government in Taiwan while on the territory of a third state. The basis of the majority decision (Lords Diplock, Hodson and Salmon) is not easy to follow, principaIly because it appears to be largely a policy decision. Lord Hodson was clear that to take any other view " would create an impossible situation."
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182 The Cambridge Law lournal [1973]
Lord Salmon said that he thought it " 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." Basic to the decision of the majority was their view of the policy underlying the exemption from surrender of persons charged or convicted of an offence of a poIitical character. Their Lordships' history was not always very good (Lord Diplock for some reason thinking that extradition treaties began in 1833, when in fact in British practice they go back at least to Norman times) but they were clear that the historical reasons for the exemption were suspicion of the motives of states seeking the surrender of fllgitive political offenders, suspicion of the quality of the administration of justice in requesting states, and unwillingness to become involved in the internal politics of the requesting state. It is extremely diflicult to be sure what are the historical roots of the exemption. Francis Hutcheson was one of the earliest pubIicists to uphold the exemption principle in these islands. In 1755 in his posthumous System of Moral Philosophs he said that political offenders were often good men who had already suffered loss of their fortunes and banishment from their native country because of their activities and accordingly it was humane not to surrender them. The Royal Commission on Extradition in 1878 gave as the reason for the rule that one state does not have sufficient interest in the particular form of government of other states to require it to make a common cause in the suppression of crimes directed at changing the form of government of other states. Today it is difficult to be sure what is the justification of the rule. One needs a modern justification to help to draw a clearer line between extra- ditable and non-extraditable offences.
A further argument strongly relied upon by Lord Diplock was that criminal jurisdiction is territorial which led him to the con- clusion that the political character of an offence must be determined by reference to the political situation in the requesting state. This seems less convincing if one considers that countries which are not wedded to the territoriality of jurisdiction have been equally vigorous upholders of the principle of non-surrender of political oSenders.
The sitllation is further complicated by the lack of any clear definition of the scope of offences of a political character. The oddity of the situation in this case was that this would clearly have been an offence of a political character had it been committed in , S .
i b alwan.
The minority (Lords Wilberforce and Simon) applied the ordinary
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C.L.J. C.L.J. Case and Comment Case and Comment 183 183
canons of construction which led inevitably to the conclusion that this was an offence of a political character. It was possible for them to refer to the refusal in 1934 of the Italian courts to permit the surrender to France of a Yugoslav charged with the assassination of the Yugoslav sovereign in France (Annual Digest, 1933-34, Case no. 158). As Lord Simon pointed out, the existence today of politically motivated offences, " political terrorism " in certain forms, created a problem, which could be dealt with only by alter- ing the existing rules. In this Lord Simon has considerable authority on his side. No publicist appears to have deliberately excIuded
offences directed against states other than the requesting state from the category of political oSences. The place of the offence has never figured as an element in the concept of a political offence. It is because of this that when international conferences harre met
to consider " terrorism," such as the kidnapping of diplomats on
the territory of third states, highjacking of aircraft, etc., they have
tended to approach the problem by establishing an exception to the
principle of non-surrender of political offenders. Thus at the recent conference of the International Institute of Criminal Sciences in
Sicily in June 1973 various proposals for a draft convention deaIing with " terrorism " provided tl2at if an offence directed against the authorities of one state took place on the territory of a thIrd states
then it should cease to be a political offence. The decision of the House of Lords seems to be unsatisfactory
largely because the location of an oSence is in days of modern high-speed communication too accidental an element to play a
decisive role in determining whether a person charged with a
politicaI offence should or shouId not be extradited. PAUL O HIGGINS.
CRIMINAL LAW-AUTOMATISM AND DRUNKENNESS
The decision in Quick [1973] 3 W.L.R. 26 cIarifies the law of non-insane automatism to some extent, but attempts to impose an illogical limitation upon it. The actual decision was that auto- matism resulting from hypoglycaemia was a defence to a charge of assault, and was not to be regarded as a defence of insanity. Quick was a diabetic who had taken insulin, as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter. His conviction was reversed on appeal because he had not been allowed to set up the defence of non-insane automatism by the trial judge.
What is the distinction between insanity (or 4'disease of the
canons of construction which led inevitably to the conclusion that this was an offence of a political character. It was possible for them to refer to the refusal in 1934 of the Italian courts to permit the surrender to France of a Yugoslav charged with the assassination of the Yugoslav sovereign in France (Annual Digest, 1933-34, Case no. 158). As Lord Simon pointed out, the existence today of politically motivated offences, " political terrorism " in certain forms, created a problem, which could be dealt with only by alter- ing the existing rules. In this Lord Simon has considerable authority on his side. No publicist appears to have deliberately excIuded
offences directed against states other than the requesting state from the category of political oSences. The place of the offence has never figured as an element in the concept of a political offence. It is because of this that when international conferences harre met
to consider " terrorism," such as the kidnapping of diplomats on
the territory of third states, highjacking of aircraft, etc., they have
tended to approach the problem by establishing an exception to the
principle of non-surrender of political offenders. Thus at the recent conference of the International Institute of Criminal Sciences in
Sicily in June 1973 various proposals for a draft convention deaIing with " terrorism " provided tl2at if an offence directed against the authorities of one state took place on the territory of a thIrd states
then it should cease to be a political offence. The decision of the House of Lords seems to be unsatisfactory
largely because the location of an oSence is in days of modern high-speed communication too accidental an element to play a
decisive role in determining whether a person charged with a
politicaI offence should or shouId not be extradited. PAUL O HIGGINS.
CRIMINAL LAW-AUTOMATISM AND DRUNKENNESS
The decision in Quick [1973] 3 W.L.R. 26 cIarifies the law of non-insane automatism to some extent, but attempts to impose an illogical limitation upon it. The actual decision was that auto- matism resulting from hypoglycaemia was a defence to a charge of assault, and was not to be regarded as a defence of insanity. Quick was a diabetic who had taken insulin, as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter. His conviction was reversed on appeal because he had not been allowed to set up the defence of non-insane automatism by the trial judge.
What is the distinction between insanity (or 4'disease of the
This content downloaded from 185.2.32.28 on Sun, 15 Jun 2014 12:45:24 PMAll use subject to JSTOR Terms and Conditions
