HC Deb 09 April 1963 vol 675 cc1097-104
The Attorney-General (Sir John Hobson)

With permission, I will make a statement about the penalties to which Chief Enahoro would be liable if he were returned to Nigeria to stand trial.

On 26th March the right hon. Member for Belper (Mr. G. Brown) raised without prior notice a point of Nigerian law. He alleged that the second of the three charges preferred attracted the death penalty, and at that time he received some support in that allegation from the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice).

Both the right hon. Gentlemen quoted from and relied on the affidavit which was read to the magistrates' court and which stated that the offence of treason under Section 37 (1) of the Nigerian Criminal Code is punishable with death. That is quite true. But Chief Enahoro is not charged with treason. He is charged, under a quite distinct section of the Code, Section 516, with conspiring to commit treason and the maximum penalty under that section is seven years' imprisonment.

The right hon. Gentleman's point was, therefore, not good in law. The House will no doubt find confirmation for this view in the fact that this point was never taken by learned counsel who appeared for the Chief either before the Divisional Court of the Queen's Bench Division; or before the Appeal Committee of the House of Lords. It would certainly have been material, because our courts have power to refuse the return of a fugitive offender if it would be "unjust or oppressive or too severe a punishment". If there had been substance in the suggestion that the Chief is liable to the death penalty on any of the charges preferred, I have no doubt the point would have been raised by leading counsel who argued the case on his behalf in our courts.

Subsequent to the debate on 26th March, the right hon. and learned Member for Newport has raised a further point on this matter in the course of conversations with members of the Government, namely, that although Chief Enahoro had been charged with an offence against one section of the Criminal Code, he is liable, if convicted under that section, to be sentenced as if he had been convicted under another section—namely, Section 37(2)—which attracts the death penalty.

My hon. Friend the Member for Brentford and Chiswick (Mr. D. Smith) also mentioned this point when he referred to another affidavit in a supplementary question to my right hon. Friend the Home Secretary last Thursday. If this proposition of law were correct, it would certainly be remarkable, namely, that although charged under one section, he is liable, if convicted under that section, to be sentenced to a punishment provided under another section.

It is absolutely clear that the Nigerian prosecuting authorities certainly had no intention of producing that result. This is demonstrated by the form of the charges preferred against all these alleged conspirators, in which the first and principal charge is of an offence punishable not with death, but with life imprisonment. The same view of the effect of the relevant sections appears to have been taken also by the defence in those proceedings, who made an application for bail under a provision of the Nigerian Code which applies only in the case of felonies not punishable with death.

The Nigerian courts themselves must also have taken the same view when the proceedings opened, because a capital charge laid in Lagos must be tried by jury and the proceedings in the case now in progress are being tried by a judge alone.

I thought it right to mention these matters, but there is in truth no need to speculate about the legal questions involved. On 14th February the very point raised by the right hon. and learned Member for Newport was put in the form of a submission to the High Court of Nigeria by counsel appearing for the accused. On 15th February the court decisively and unhesitatingly rejected it.

The Nigerian courts have, therefore, proceeded upon the basis that these charges do not carry the death penalty and have rejected after argument the new point which has been raised. These questions are essentially a matter of Nigerian law for interpretation by the courts of Nigeria, who, as I have shown, have taken the view that these very charges do not carry the death penalty.

I can, however, say, if it will assist the House, that I have come to the firm and clear conclusion that there is no substance of any kind in either of the points which have been raised and, in particular, that there is nothing in the Nigerian Criminal Code which enables a court trying a man charged, as Chief Enahoro is charged, with an offence against Section 516 of the Code to impose upon him any sentence greater than seven years' imprisonment or to sentence him as if he had been convicted of an offence against another section of the Code and I therefore advise the House that the charges preferred against Chief Enahoro do not carry the death penalty.

Sir F. Soskice

Does not the circumstance that the very point I put to the hon. and learned Gentleman the Attorney-General was argued fully by counsel for the defence before the courts in Nigeria, and apparently decided after full argument by those courts, indicate pretty clearly that there was considerable doubt about this? Without arguing the question now, and making it perfectly clear that I do not quite assent to the view which the Attorney-General has put, was it not, in those circumstances, incumbent on the Ministers responsible for this decision to make absolutely certain whether the death penalty was provided before they came to their decision?

Was not it perfectly obvious, to say the least, that Ministers had clearly not taken that properly into consideration? Had the Home Secretary asked the opinion of the Attorney-General, as the Home Secretary obviously thought this a matter of importance in arriving at his decision, a matter on which, so far as the legal aspect is concerned, he should have been absolutely certain, and should have fortified himself with the opinion of the hon. and learned Gentleman, if he did not obtain it?

The Attorney-General

I do not think that it can be said that because a point is argued in a court of law it must necessarily raise a doubt. If that were so, the law would be in a very doubtful state. I can only say that not only the Nigerian courts but I myself have come to the clear conclusion that while it is a matter that required careful consideration, when carefully considered there is no doubt that this second count does not carry the death penalty.

As to the second point, it is incumbent on my right hon. Friend and myself to make sure, and we assured ourselves, that none of these counts carried the death penalty. Without notice, the right hon. Member for Belper raised an entirely new point which had not been argued at any stage before and had never been drawn to our attention. While I thought, and said at the tune that I thought, that it was a bad point, that it was a point which did not bear consideration, nevertheless, in my duty to advise the House properly and carefully, particularly in a case of Nigerian law and particularly in a case which did involve a question of life and death, I did think it was right to consider a point which I thought was bad, and which has turned out to be bad in the end. I am sorry if I did not, "off the cuff", give an answer but reserved the position, so that I should make quite certain that an important question of this sort was properly considered.

Mr. G. Brown

I do not know what point the Attorney-General thinks there is in his repeated reference to my having raised this matter without notice. This was a fundamental consideration which the Home Secretary assured us he had taken into account in making up his mind. It is not incumbent upon us to give the Government in advance a written statement of matters which are to be raised in the House.

In any case the Attorney-General has told us that it was fully argued in court over a month before, and that being so, the hon. and learned Gentleman must have had prior notice because of the argument in court.

The hon. and learned Gentleman, in answer to my right hon. and learned Friend the Member for Newport (Sir F. Soskice), made a great point, that if the matter was argued in court it did not make it a matter of doubt. May I ask whether it is not true that a large part of his statement, on pages 2 and 3, is directed to saying that because this point was not argued in court by the defence counsel it is a matter in doubt? The hon. and learned Gentleman cannot have it both ways.

Are not there still a number of very loose ends in his statement? At the beginning he tells us that we were wrong to raise the question of Section 37 (1) because he said that Chief Enahoro is charged under a quite distinct section of the Code, Section 516, with conspiracy to commit treason and the maximum penalty under that section is seven years' imprisonment There the hon. and learned Gentleman stopped. But that is not a quotation from the law. What the law says is: if no other penalty is elsewhere provided. Why did the Attorney-General leave that out of the statement that he has made to the House this afternoon? This is fundamental. The maximum penalty would be seven years if no other penalty is elsewhere provided. I ask the Attorney-General to deal with the submission made by the Senior Crown Counsel of Nigeria to the Bow Street Magistrate's Court that other penalties were provided.

It was not the Opposition which drew attention to Section 37(1), but the deposition made by the Senior Crown Counsel in the name of his Government, who were asking for extradition. Why does the Attorney-General think that Nigeria went to the trouble of calling the attention of the magistrate's court to the fact that the man was subject to the death penalty under Section 37(1)? In the words of the affidavit, the charge made under Section 516 is, in fact, a charge which induces the penalty provided under Section 37(1). The Attorney-General did not mention the affidavit today. Why does he think that that affidavit was sworn? Why does he think the magistrates had their attention called to this if it did not apply?

Sir K. Pickthorn

On a point of order, Mr. Speaker. May I inquire what are the limits of order on this debate and whether the abuse of them hitherto does not raise the question of the propriety of giving written copies of Ministerial statements to some hon. Members before the House in general has seen or heard them?

Mr. Speaker

It is important that the House should bear in mind what its rules are and that the Chair is allowed to permit only a few questions on Ministerial statements, because one might very soon slide into a debate that was conducted by speeches on one side or the other. Of course, the Chair is very much aware of these matters, because the more time that is consumed in that manner the more the Chair is blamed for allowing the debate to go on and thereby preventing other hon. Members from taking part in the ensuing debate. If we remember that, we shall probably be all right.

Mr. Brown

I am entirely in your hands, Mr. Speaker. The questions I ask today might help in tomorrow's debate, but if I have to ask them tomorrow we might get into a more difficult situation.

The Attorney-General made a great deal of my right hon. and learned Friend the Member for Newport having referred to Section 37(2). He waved that aside by saying that it would be a novel thing if a man charged under one subsection should be convicted under another, but Section 516 brings into play both Section 37(1) and Section 37(2). The issue of whether it is a treason or conspiring to commit a treason affects which Section he is punished under, but either involves the death sentence. Therefore, it is relevant to what we are saying.

The Attorney-General did not tell us in what form the Nigerian courts decisively rejected the point put by my right hon. and learned Friend. He merely said that they decisively rejected it. I ask to be furnished, either now or between now and tomorrow's debate, with the actual decision taken, because I would like to see whether it is wholly relevant to the point being answered, or whether there is some doubt about it. I should be much obliged, and it would help the debate, if the right hon. and learned Gentleman could deal with these points.

The Attorney-General

First, I do not regret that, even though it was a bad point, I thought it right to take time to consider it. I thought it right in a matter of life and death that one should consider it. Secondly, it is not right to say that the point that the right hon. Gentleman raised on 26th March in this House had previously been raised in the courts in Nigeria. The point raised in the courts in Nigeria was the point I mentioned in my statement, which was raised by the right hon. and learned Member for Newport. I observed that today the right hon. and learned Gentleman was not asserting that the point which was raised on 26th March is a good one, but that his new point is the only one which he thinks may be doubtful.

The question about the interpretation of Section 516 and whether it does or does not import by the words: if no other punishment is provided a penalty which is set out in neither Section 37(1) or Section 37(2), can be answered in three ways. First, Section 516, in my view, confers no power to impose a sentence greater than seven years' imprisonment. The second is that Chief Enahoro is charged with conspiring to commit a felony under the Nigerian criminal code and conspiracy dealt with in Section 37(1) and Section 37(2) is quite distinct and has not the same ingredients. This is an entirely separate offence and the punishment provided for it is wholly irrelevant to a charge under Section 516. This very point was dealt with by the Nigerian courts. It may well be that the facts alleged against Chief Enahoro would, if proved, support that charge under Section 37(2), but the fact that an alternative charge might have been made does not entitle the court to sentence him as if it had been made.

Turning to the last question, what about the affidavit he relied on on 26th March sworn by the Senior Crown Counsel in the Bow Street proceedings, it was necessary for the Bow Street Magistrate to know the maximum sentence for conspiracy to commit a felony in order to assure himself that Chief Enahoro was returnable on the second count. That could only be determined under Section 516 after reference to the maximum penalty for the felony itself.

The affidavit, therefore, was quite correct in setting out the penalty for the treason and so showing that sentence for that particular felony in order that the magistrates could see what was the sentence for conspiracy to commit a felony and that that was greater than one year, because, if it were not greater than one year, there is no power to return under the Fugitive Offenders Act. In paragraph 7 of the affidavit the offender referred to means quite clearly the person committing the felony mentioned in count two, and not the person convicted under count two of conspiring to commit that felony.

Mr. Turton

Would my right hon. and learned Friend agree that the issue which confronts the Home Secretary in this case is not whether the accused will or will not have a fair trial—everyone has complete confidence in the Nigerian judiciary on that point—nor whether the offence carries the death penalty? The issue under Section 6 is whether the Home Secretary will deny to a Commonwealth citizen a right of political asylum which a man would enjoy if he were an alien whose return was asked for by a foreign country.

In this case, also, has he not to consider whether a Home Office official, no doubt unwittingly, misled Chief Enahoro into coming to this country to visit his oculist, thinking it would be quite safe, yet within three days he was arrested and has been under arrest for the remaining four months? Are not these the issues to be decided?

The Attorney-General

I was endeavouring, in my statement today, to deal with the legal position over the death penalty. These issues will no doubt be discussed in the debate tomorrow.

Several Hon. Members


Mr. Speaker

Time has been given to this matter and no doubt it can be further debated tomorrow.