R v Governor of Brixton Prison, ex parte Schtraks
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1962 |
| Year | 1962 |
| Court | House of Lords |
| Date | 1962 |
Extradition - Extent of treaty - “Territory” - Israel - Non-recognition of Israel's sovereignty over Jerusalem - De facto authority recognised - Whether Jerusalem “territory” of Israel Government -
In September, 1959, in Israel, the grandfather of a boy, Yossele, aged seven, refused to return the boy to his parents because he feared that the child would not be given the religious education of an orthodox Jew. The parents brought proceedings in the High Court of Israel, in Jerusalem, and on February 10, 1960, the court ordered the return of Yossele to his parents by February 15, 1960. That order was not complied with. The parents brought proceedings against both grandparents and the appellant, the uncle of Yossele, for contempt of court. At the hearing the appellant, having affirmed, said that he had not seen Yossele since the feast of Hanukka which, that year, was from December 25, 1959, to January 1, 1960, at Rishon Le-Zion. On May 12, 1960, the court ordered that the grandfather be imprisoned but made no order against the appellant, who, shortly afterwards, came to live in England.
The boy was not found and in August, 1961, in the course of their inquiries, the police arrested Shlomo Kot, his wife and his brother Reuben. They were all imprisoned and the men were not released until after they had made their declarations. In those declarations all three alleged that the appellant and Yossele had come to the settlement after the Feast of Hanukka and Yossele had stayed with Shlomo and his wife. Shlomo also stated that the appellant had told him that the boy had to be kept from his father who desired his conversion to another religion and asked that the boy should remain in the settlement until after the dispute was over. Shlomo's wife gave evidence of the boy staying with them until the appellant came for him three weeks later. On that evidence, the Government of Israel asked for the extradition of the appellant in pursuance of an agreement dated April 4, 1960, between the two Governments that the Extradition Act, 1870,F1 should apply subject to the terms of the Israel (Extradition) Order, 1960.F2 The charges against the appellant were for perjury and child stealing. On January 12, 1962, the appellant was committed to prison by order of the chief magistrate to await extradition to Israel.
The appellant applied for a writ of habeas corpus on the grounds, inter alia, that (1) Jerusalem was not “territory” of Israel within the meaning of the agreement since the United Kindom Government did not recognise the Israel Government as having de jure sovereignty in Jerusalem, but only de facto authority, so that, there was no power to order his extradition on a charge of perjury committed in Jerusalem, nor, in that the declarations were made in that city was there jurisdiction to extradite him on any of the charges; and (2) that the offences were of a political character.
The Divisional Court dismissed the application.
On appeal to the House of Lords the appellant sought to adduce additional evidence in order (a) to discredit the evidence on which the magistrate had reached his conclusion, and (b) to supplement the evidence which was before the magistrate to the effect that the crimes with which the appellant had been charged were “of a political character” within the meaning of section 3 (1) of the Extradition Act, 1870:—
Held, (1) that “territory” in the context of the agreement of April 4, 1960, included any area over which a contracting party exercised effective jurisdiction; and that, accordingly, since the Israeli Government had de facto authority and exercised jurisdiction over Jerusalem, and no other State was recognised as having de jure sovereignty, Jerusalem was within the “territory” of Israel within the meaning of the agreement (post, pp. 1022, 1029, 1034, 1044).
(2) That in habeas corpus proceedings which arose out of a committal order under the Extradition Act, 1870, the court did not rehear the case that was before the magistrate or hear an appeal from his order, but its function, apart from considering any issue raised as to the offence charged being a political one, was to see that the prisoner was lawfully detained by his gaoler. Further, that the House of Lords had in this respect no wider powers than that of the lower courts. Thus, the court, and on appeal therefrom the House of Lords, could and must consider whether on the material before the magistrate a reasonable magistrate would have been entitled to commit the prisoner, but neither a court nor the House of Lords could retry the case so as to substitute its discretion for that of the magistrate (post, pp. 1023, 1027, 1037).
(3) That, accordingly, the right and competence of the court to take cognisance of additional evidence was limited to cases where such evidence went to the question of the magistrate's jurisdiction at the date of the committal order. That in so far as the additional evidence here related to the political character of the crimes charged, it went not to the question of the exercise by the magistrate of his discretionary powers and duties, but to his jurisdiction; and that, accordingly, the House was both competent and bound to receive that part of it, but only that part, which tended to show that the crimes charged were altogether outside the scope of the agreement (post, pp. 1024, 1025, 1037, 1045).
Per Viscount Radcliffe. On the issue whether the offence charged is an offence of a political character, it seems to be the evident intention of the Extradition Act, 1870, that the issue should be considered as a substantive matter at any stage by any authority, magistrate, court or Secretary of State, which has a duty to perform in relation to the extradition. If it is so regarded, it seems to me proper to consider on its merits any evidence that is available at the time when consideration is required. I should not treat this procedure so much as depending upon the court's duty to inquire into the magistrate's jurisdiction as upon the special conditions laid down by the Act for the carrying out of an extradition request (post, p. 1028).
(4) That whilst no precise definition could or ought to be laid down of the phrase “offence of a political character” in section 3 (1) of the Extradition Act, 1870, nevertheless it was plain that the offences charged against the appellant did not come within the ambit of that phrase as used in that subsection, since the charges if made good showed no more than that the appellant had involved himself in a family quarrel. The fact that his offences had become a political issue did not make them offences of a political character.
Per Lord Reid. It appears to me that the provisions of section 3 of the Act of 1870 are clearly intended to give effect to the principle that there should in this country be asylum for political refugees, and I do not think that it is possible, or that the Act evinces any intention to define the circumstances in which an offence can properly be held to be of a political character (post, p. 1026).
Per Viscount Radcliffe. 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 (post, pp. 1032, 1033).
APPEAL from the Divisional Court (Lord Parker C.J., Ashworth and Atkinson JJ.).
This was an appeal by leave of the Divisional Court of the Queen's Bench Division by the appellant, Shalom Schtraks, from the dismissal by the Divisional Court of the appellant's application for a writ of habeas corpus ad subjiciendum.
The facts giving rise to the proceedings were as follows: Ida and Alter Schuchmacher emigrated from Russia to Israel with their two children, a daughter, Zina, and their son, Yosef, known as Yossele, who was born on March 2, 1952. The parents had difficulty in finding work and accommodation and therefore, early in 1959, they left their children with the grandparents, the wife's parents, Nachman and Miriam Schtraks. The parents had no difficulty in getting their daughter back but when they asked for the return of Yossele, in about September, 1959, the grandfather refused to return him because he thought that the parents would not give Yossele the religious education of an orthodox Jew.
The parents began proceedings in the High Court of Israel, in Jerusalem, and on January 16, 1960, obtained an order nisi addressed to the grandparents to show cause why they should not bring the boy to the court so that he might be dealt with as the court ordered. On January 28, 1960, the...
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