R v Governor of Brixton Prison, ex parte Schtraks

JurisdictionEngland & Wales
Judgment Date06 September 1962
Date06 September 1962
CourtHouse of Lords
England, Divisional Court, Queen's Bench Division.
House of Lords.

(Lord Parker C.J., Ashworth and Atkinson JJ.)

(Viscount Radcliffe; Lords Reid, Evershed, Jenkins and Hodson.)

Governor of Brixton Prison, Ex parte Schtraks.

State territory — In general — Nature of territorial sovereignty — Meaning of “territory” in extradition agreement — Whether equivalent to area under jurisdiction of Government — Relevance of de facto recognition of jurisdiction and control by requested State — Extradition Treaty between Israel and United Kingdom — Whether Jerusalem within “territory” of Israel for purposes of Treaty.

Extradition — In general — Interpretation of extradition treaties — Meaning of “territory” of contracting State — Whether confined to areas over which that State is de jure sovereign — Whether exercise of de facto authority and jurisdiction sufficient — Status of Jerusalem in relation to Israel — Whether offence committed in Jerusalem comes within Extradition Treaty referring to “territory” of Israel.

Extradition — Conditions of — Evidence required in support of request for extradition — The law of England.

Extradition — Political crimes — Meaning of “offence of a political character”— Offences of perjury and child stealing — Relevance of political and religious background to offences — Relevance of fact that religious education a political issue in requesting State — Criteria for determining whether offence is political — The law of England.

The applicant appealed to the House of Lords. The arguments of the parties are summarized in the judgments.

Held (by the House of Lords): that the appeal must be dismissed.

“Territory” in the context of the extradition agreement included any area over which a contracting party exercised effective jurisdiction. Since the Government of Israel had de facto authority and exercised jurisdiction over Jerusalem, and no other State was recognized as having de jure sovereignty, Jerusalem was within the “territory” of Israel within the meaning of the agreement.

While no precise definition could or ought to be laid down of the phrase “offence of a political character”, it was plain that the offences charged against the applicant did not come within the ambit of that phrase as used in the Extradition Acts. The fact that the offences had become a political issue did not make them offences of a political character.

Lord Reid, after stating the facts, said: “In consequence of the request for extradition the appellant was brought before the chief magistrate at Bow Street and after proceedings spread over two months he was committed on January 12, 1962. He then applied for a writ of habeas corpus. This application was refused by a Divisional Court which granted leave to appeal to this House.

“A number of points have been argued before your Lordships. That of most general importance is whether the offences charged are of a political character, but I shall first deal as briefly as possible with the other points. The first is that the Israel (Extradition) Order, 1960 (S.I. 1960 No. 1660), does not apply to Jerusalem because that part of Jerusalem in which the Israel Government exercises jurisdiction is not part of the ‘territory’ of Israel. I need not consider whether this would be an answer to all the charges because in my view there is no substance in the point. It is true that the British Government does not recognise the sovereignty of Israel in Jerusalem but it does recognise that the Government of Israel exercises de facto authority in the part of the city which it occupies. In my judgment neither the Extradition Act, 1870, nor the Order to which I have referred is concerned with sovereignty; they are concerned with territory in which territorial jurisdiction is exercised. In addition to other reasons which have been given or which will be given by your Lordships I would refer to Article 2 of the Agreement between the British Government and the Government of Israel which is incorporated in the Order. This article draws no distinction between territories over which Her Majesty exercises sovereignty and Protectorates and other territories where Her Majesty is not sovereign but where her authority is exercised. There is no question of these latter being merely deemed to be ‘territories’ for certain purposes. I find nothing in the Extradition Acts or in this Order to indicate that territory is used in any sense which would exclude from the ‘territory’ of Israel that part of Jerusalem in regard to which the British Government recognises the de facto authority of the Government of Israel on the ground that that Government is not recognised as sovereign there.

“The next point involves the question: what is the proper function and jurisdiction of this House in an appeal of this kind. I understand that others of your Lordships intend to deal more fully with this question and I shall only state my views in outline. There is no appeal in the ordinary sense from the decision of a magistrate to commit. Such review as is competent can only take place in one or other of two ways. The accused can apply for a writ of habeas corpus, and, whether he does so or not, the Secretary of State can decide not to grant the request for extradition if in the exercise of his discretion he thinks that it is proper to take that course.

“This House has no wider powers than the powers of a court. I do not find it necessary in this case to define precisely what those powers are. The court, and on appeal this House, can and must consider whether on the material before the magistrate a reasonable magistrate would have been entitled to commit the accused, but neither a court nor this House can retry the case so as to substitute its discretion for that of the magistrate.

“In the first place the court must see what is the offence charged. In this case no question arises on the definition of perjury, but there is a dispute as to the meaning of section 188 of the Code. The accused maintained that on its true construction that section does not apply to this case and that is a matter which we must determine. There is no question in this case of a translation because this section of the Code is in the English language. And there is no allegation that the law of Israel adopts any different method of construction from our own or that this section has received any authoritative interpretation in Israel. So in my view it must be construed in the same way as we would construe a section of a British statute. So construing it, I agree with your Lordships that it is wide enough to cover what the accused is alleged to have done in this case.

“Next it is necessary to determine whether the material before the magistrate was adequate to justify committal. The main objection to it is that the Kots or at least two of the three were accomplices and that two of the Kots were in prison when their statements were taken. It is not in dispute that the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty. Again, for reasons which will be given by your Lordships, I agree that the chief magistrate was entitled to commit on the material before him.

“The accused sought to adduce further evidence before your Lordships in order to show that on the whole material now available it would be improper to commit him. In my judgment we are not entitled to look at such evidence and we have not done so. Owing to the restricted character of habeas corpus proceedings a court is not concerned with anything that comes to light after committal. This could easily lead to injustice if the accused had no other remedy: there may well be cases where new evidence throws quite a different light on the material originally before the magistrate. But that is a matter which the Secretary of State is entitled to consider when deciding whether to grant extradition.

“Different considerations apply to the question whether the offences charged were of a political character. Section 3 of the Act provides:

‘The following restrictions shall be observed with respect to the surrender of fugitive criminals: (1) 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 interpretation of this subsection is not free from difficulty. Not only is the word ‘political’ capable of more than one interpretation but the two parts of the subsection do not fit well together. I do not know how this came about but I would suspect that the last part may have been added by amendment without adequate consideration of the drafting. We must, I think, approach the interpretation of the subsection with two things in mind. In the first place, offences obviously of a political character are not within the scope of extradition at all: for example, there is no mention in the Schedule to the Act of 1870 or in Article 3 of the Schedule to the Israel Order of treason, sedition, or any other offence of that kind. And, secondly, section 3 (2) of the Act requires that if extradition is granted the accused is not to be tried in the foreign country for offences other than the extradition crimes: so no foreign country could without a breach of faith use extradition as a means for bringing a refugee before its courts for trial on some other political charge. On this I agree with the views expressed by Lord Parker C.J. in the present case1 and by Lord Goddard C.J. in Reg. v. Governor of Brixton Prison, Ex parte KolczynskiELRWLRUNKELR,2 and I cannot agree with Lord Russell of Killowen's view in In re ArtonELRUNK.3

“It appears to me...

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