NOTES OF CASES
| Date | 01 July 1955 |
| Author | William E. Denny |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00310.x |
| Published date | 01 July 1955 |
NOTES
OF
CASES
“
AN OFFENCE
OF
A
POLITICAL
CHARACTER
”
POLITICAL
conditions behind the Iron Curtain were vividly brought
to light when, in
Ex
p.
Kolczynski
[1955]
2
W.L.R.
116; [1955]
1
All E.R.
31,
the Queen’s Bench Divisional Court heard the appli-
cation of seven Polish sailors for writs of habeas corpus. The seven,
who had been members of a trawler in a Polish fishing fleet, had,
while at sea, expressed opinions not in conformity with the official
Communist Party line. The party political secretary
on
board their
trawler was observed, between periods of acting as engineman, to be
noting their conversations and, perhaps not unnaturally, the seven
sailors entertained fears for their safety on returning to Poland.
Their apprehensions were increased in that a brother of Kolczynski,
one of the seven, had escaped from another trawler to England.
In
these circumstances, the seven sailors resolved to take over the
trawler and steer to an English port, there to seek political asylum.
Little opposition was offered to their seizure of control, the political
secretary alone actively resisting and suffering a cut in the hand
from Kolczynski’s knife as a consequence
:
the captain was safely
and easily secured in the water-closet whither he had repaired,
perhaps with more prudence than dignity. Arriving at Whitby,
the men sought political asylum and were detained under the Aliens
Order,
1953.
Warrants were issued in Warsaw for the arrest of each of the
seven men on charges including unlawful wounding, false imprison-
ment and revolt against the master on the high seas-all extradition
offences. The chief magistrate at Bow Street, who heard the Polish
Government’s application for extradition, held that a prima facie
case had been established against all of the prisoners as to the revolt
on the high seas and against Kolczynski as to the unlawful wound-
ing, but further held that the only object the prisoners had in mind
was to leave Poland because of the oppression they suffered there.
It
was proved that England was an enemy country in the eyes
of the Polish Government and that under Polish law treason was
committed in leaving Poland and “going over to the enemy.”
The magistrate left the question of whether the offence was of a
political character within section
3
(1)
of the Extradition Act,
1870,
to be decided by the High Court on the prisoners’ applications
for writs of habeas corpus.
The Divisional Court (Lord Goddard
C.J.,
Cassels and Devlin
JJ.)
was therefore required to consider
(1)
the proper construction
of section
3
(1);
and
(2)
whether magistrates should themselves
determine that an offence is
or
is not within section
3 (1)
of the Act.
380
JULY
1966
NOTES
OF
CASES
881
Section
3
(1)
reads
:
“
A
fugitive criminal shall not be sur-
rendered
if
the offence
.
. .
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.”
Upon the face of
it,
the subsection contains two limbs, intended
to deal with different sets of circumstances. The first limb prevents
the surrender of a fugitive
if
the evidence shows the crime to have
been committed in circumstances clothing
it
with a political
character; the second prevents his surrender, although the offence
is not of a political character,
if
the fugitive can establish to the
court that the requisitioning State really
(“
in fact
”)
requires his
surrender
so
that it may try him for another offence which is of a
political character,
or
at least punish him on his conviction of the
non-political offence as though he had been tried for the political
offence.
Cassels
J.
obviously adopted this construction holding that the
offences here were of a political character within the first limb of
the subsection: further that even
if
the seven men were tried in
Poland
for
the extradition offences alone, they would be punished
for an offence of a political character,
Le.,
treason in
“
gcing over
to
the enemy,” thus bringing the case within the second limb of
section
3
(1).
Lord Goddard
C.J.
construed the subsection in an entirely
different manner holding, in effect, that the two limbs merely
reflected the ways in which the evidence might show the offence
to be of a political character.
“If
in proving the facts necessary
to obtain extradition the evidence adduced in support [of the
requisition] shows that the offence has a political character, the
application must be refused
”
(the first limb),
“
but although the
evidence in support appears to disclose merely one of the scheduled
[extradition] offences, the prisoner may show that in fact the
offence is of a political character
’)
(the second limb). “In other
words, the political character of the offence may emerge either from
the evidence in support of the requisition
or
from the evidence
adduced in answer.” The Lord Chief Justice accordingly held that,
inasmuch as the evidence tendered in support of the requisition
merely showed a revolt on the high seas,
a
scheduled offence, and
the political character of that offence emerged only from the
prisoners’ evidence, the case fell within the second limb of the sub-
section as he construed
it.
In support of his construction Lord
Goddard relied upon the provisions of section
3
(2)
which, in effect,
prohibit the surrender of a fugitive criminal unless there is provision
either in the law of the requisitioning State
or
in a treaty concluded
with it, that the accused person shall not be detained
or
punished
by the requisitioning State for any offence committed prior to his
882
THE
MODERN
LAW REVIEW
VOL.
IS
surrender other than the extradition crime. Such a treaty was
made with Poland in
1982.
Relying upon
Re
Arton
(No.
1)
[lSQS]
1
Q.B.
108,
the Lord Chief Justice declared that
“
the
court
must
not assume that the foreign State will not observe the terms of the
treaty
”
and that therefore
‘‘
the second limb of the section cannot
mean that the
court
can say that
if
extradition is sought for crime
A we believe that
if
surrendered he will be tried
or
punished for
crime B.”
With respect,
it
is
submitted that the provisions of section
3
(2).
in
no
way compel the strained interpretation
of
section
3
(1)
which
would deprive a fugitive criminal of an important additional pro-
tection against political persecution.
In
subsection
(2)
the legis-
lature obviously intended that some safeguard should operate
against abuse of surrender-the solemn investigation in this
country into the nature of the offence would be rendered farcical
if
no
steps were taken to require the foreign State to refrain from
dealing with the fugitive
011
whatever grounds
it
thought
fit.
But
it is
not
inconsistent with this proposition that the fugitive should
none the less be at liberty to satisfy the authorities in this country
that
“
in fact
”
(Le.,
despite the treaty) he will,
if
surrendered, be
tried
or
punished for an offence of a political character. Although
the courts will not assume that the foreign State will not observe
the treaty (as the Lord Chief Justice said),
Re
Arton
does not,
it
is
submitted, preclude the reception of evidence and a finding by
the court to that effect (as the argument of the Lord Chief
Justice inferred and required).
It
is true that in
Re
Arton
Lord
Russell
C.J.
stopped counsel from arguing that the French Govern-
ment
(“
a friendly State
”)
was not acting in good faith
in
making
its application, holding that the courts had no power to entertain
that question, but
it
is apparent that both he and Wills
J.
in
argument and in their judgments were considering not the second
limb of section
3
(1)
(the fourth ground relied upon by the prisoner)
but the specific charge of lack of good faith in making the applica-
tion (the prisoner’s third ground). Indeed Lord Russell put the
matter plainly in the argument regarding the second limb
of
section
3
(1)
when he declared:
“
the statute clearly contemplates
that a political offence has been already committed and that under
cover of trying the accused for a crime the foreign tribunal will
punish him for that past political offence.”
His
construction of the
subsection is clearly reiterated
in
his judgment dealing with this
(the fourth) ground of the prisoner’s case:
“
Can
it
be said that
the application for extradition has been made with a view to try
or
punish the prisoner for an offence of a political character?
It
is
clear what this suggestion means:
it
means that a person having
committed an offence of a political character, another and wholly
different charge (which does come both within the Extradition Act
and the treaty) is resorted to as a pretence and excuse for
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