HC Deb 30 July 1982 vol 28 cc1481-90 11.45 am
Mr. John Ryman (Blyth)

I wish to draw attention to the problems arising in the implementation of extradition arrangements with the Irish Republic. I am glad to see that the Minister of State, Home Office is here to give the Government's views. I shall be mercifully brief. I have four points to make. In the wake of the recent IRA outrages in London, the problem has become extremely acute once again. My four points are: first, the problem; secondly, the long-term solution; thirdly, the interim period; and, fourthly, the Government's plans.

The problem can be stated very simply and has been stated on a number of occasions recently in the House and elsewhere. In the House on 26 April the Attorney-General said in reply to an oral question: I have always made it clear that the ability of terrorists to shelter behind the exception of political offenders is one of the major obstacles facing us. The Irish side is well aware of this. A number of ways of overcoming the difficulty are available and they were discussed during my previous talks. The right hon. and learned Gentleman was referring to previous talks with the Irish Attorney-General.

However, I am not prepared to go into details of what were private and confidential discussions."—[Official Report, 26 April 1982; Vol. 22, c. 607.] The background was that as long ago as 9 November 1981 the Secretary of State for Northern Ireland said in a written answer: Although the police believe that some people whom they would like to interview in connection with terrorist crimes committed in the United Kingdom are now in the Republic, it cannot be said for certain where they all are. Since 1969, arrest warrants have been forwarded by the Royal Ulster Constabulary to the Garda Siochana in relation to 82 cases connected with terrorism. As a result one person has been extradited; the suspect was returned to Northern Ireland in 1976 and was subsequently convicted of arson. The Irish courts have refused extradition on 45 occasions. The reasons given for these refusals and the outcome of the remaining warrants have been as follows: subject arrested in the Republic of Ireland but extradition refused:

(i) on the grounds that the offence was political 34
(ii) on the grounds that no comparable offence existed within the Republic 9
subject arrested in the Republic but habeas corpus granted 2
Warrants refused 45
Other warrants:
subject arrested in United Kingdom 17
subject prosecuted and imprisoned in the Republic 1
warrants later withdrawn by RUC 12
warrants not yet executed 6"
—[Official Report, 9 November 1981; Vol. 12, c. 45.] Those figures state the problem, which can be formulated in the proposition that, in the vast majority of cases, terrorists who commit serious criminal offences in the United Kingdom and elsewhere, and then leave the jurisdiction of our courts and subsequently are arrested in Ireland, successfully raise a political defence if extradition proceedings are taken. That defence has a long and respectable history in the law of extradition, but it has no place in modern times when we are dealing with professional criminals who pretend that they are achieving political ends by committing serious criminal offences in Britain.

The position of the Republic of Ireland has always been special and the reasons for that are varied. It can be summed up by quoting from "The Law and Practice of Extradition": The Republic of Ireland is treated for the purpose of extradition as a special case. Although not part of the Commonwealth, it is treated as a designated Commonwealth country by the United Kingdom dependencies for the purposes of requests made to them by the Republic for accused persons found in the dependencies. In relation to the United Kingdom the position is wholly exceptional. The physical proximity of the Republic to the United Kingdom, the ease with which its citizens have customarily been allowed to come and go and enjoy civic rights in Britain, and the common origin of most of its law with the United Kingdom, justifies special treatment for the return of accused persons one to the other. Most of the general principles of extradition law apply, however, except for the specialty rule and the need to prove a prima facie case. That general principle of law has been applied for a long time and was applied recently in the High Court of Justice when, on 13 March 1982, Mr, Justice Forbes and Mr. Justice McCulloch, in a case called In re McFadden, reported in "Times Law Reports" on 13 March 1982, in the Divisional Court of the Queen's Bench Division that the rule of international law known as the specialty rule, that no one should be prosecuted for any matter following extradition other than that for which the extradition had been requested, did not extend to the special arrangements made under the Backing of Warrants (Republic of Ireland) Act 1965 and the corresponding Irish legislation whereby, instead of extradition, matters were dealt with by mutual application of each country's warrants. Therefore, the history, as interpreted very recently, discloses that the Republic of Ireland is in a very special position. Although it is in a special legal position, the plain fact is that terrorists are committing outrages in the United Kingdom and can find safe refuges in the Republic of Ireland, confident in the belief that the Irish courts will not extradite them, because the political defence is raised successfully again and again. For that reason there has been special legislation, under the Criminal Law Jurisdiction Act 1976, under which the terrorist Tuite was recently prosecuted to conviction in the Republic of Ireland and sentenced, but that was a wholly exceptional situation. Tuite was a defendant who was awaiting trail in the United Kingdom, escaped from custody, was then rearrested in the Republic of Ireland and tried by the Irish courts under that legislation on evidence provided by the United Kingdom law enforcement agencies.

The practical problem is that it is difficult in Ireland to get convictions because it is difficult to obtain the evidence necessary to produce those convictions. The Tuite case was somewhat exceptional. We did not have to rely on the Irish to get the evidence; we got it ourselves. In those circumstances, the evidence was adduced in an Irish court before three Irish judges, who convicted the defendant and then sentenced him. It was a wholly exceptional situation and cannot in any way be of comfort to those of us in Britain who wish to see strong steps taken by the Government to ensure that fugitives from justice do not escape.

There are plans afoot in the long term to reform the law, and the Home Office has recently produced a formidable document headed "The Review of the Law and Practice of Extradition in the United Kingdom". That excellent document was prepared by a working party appointed in March 1979. If I have any criticism of the document, it is that the case references are all at the back and that terrible abbreviations are used in the body of the document. Instead of the case being cited properly in the body of the document, one has to turn to the last page but one to find the reference. Subject to that relatively minor criticism, it is an excellent document. It states the law succinctly and accurately and makes several sensible recommendations.

The recommendation which is of particular interest in regard to the Republic of Ireland is No. 22 on page 94, which says: The new law should contain a wider politicial safeguard similar to that provided in the Fugitive Offenders Act 1967. This should not extend to offences connected with a political offence". There is one other specific recommendation showing the absurdity of the Irish position. It is illustrated in the case of Bourke v. Attorney-General, reported in (1972) IR 36, and the extract from the headnote puts the point succinctly: The Irish decision —that is, in Bourke's case— which offers some interpretation of the phrase `offence connected with a political offence' was in the case of Sean Bourke. Bourke helped George Blake, who was serving a term of 42 years' imprisonment for espionage, to escape from prison. His extradition was sought from the Republic of Ireland under the Backing of Warrants (Republic of Ireland) Act 1965. The application was rejected by the Supreme Court, with one dissenting voice, the court holding that Blake's offence in escaping was a political one and that Bourke's offence in helping him was an offence connected with a political offence in terms of the Republic's Extradition Act 1965, which follows the European Convention in this respect. The Chief Justice noted that the statute did not specify that the connected offence should itself have a political complexion". That is simply one example of the operation of the rule which enables criminals—Blake was a criminal and not a political crusader—convicted by due process of law of a criminal offence, and sentenced to a long term of imprisonment, to escape justice by pleading a political defence which in all common sense and reality is totally invalid. We have to look at the reality of the position and not at the form in which things operate.

It has at last been recognised that something must be done, and must be done very quickly. Even the European Parliament, of which I am not a particular fan, has woken up to the problem, for on 10 July this year it voted for the abolition of the concept of political crime as a bar to extradition between members of the European Economic Community.

The document produced by the Home Office working party makes several recommendations about the amendment of the law of extradition in relation to European countries, but all that is no comfort to those of us in this House who wish to see terrorists, whether they be Irish terrorists, PLO terrorists or any other kind of terrorist, brought to justice, if necessary by extraditing them from abroad, trying them in our courts and sentencing them in our courts if convicted.

I should like to end my contribution to this short debate by asking the Minister to state the Government's intentions. I am sure that he recognises, as does the whole House, the gravity of the problem, which is particularly important in the context of the aftermath of the recent outrages. What are the Government's plans? It is true that the Government are in a difficult position, because extradition law, by its very nature, involves the consent of the Government of the country with which one is negotiating an extradition treaty.

There are many anomalies in the law, as the Minister will be the first to admit. It has always struck me as an extraordinary anomaly that one can extradite for the substantive offence, but not for the offence of conspiracy. That seems to fly in the face of all common sense. Whether it is a crooked financier in California, a murderer in Malta, or a terrorist in Ireland, one can seek to extradite that individual on the substantive offence, but if a criminal conspiracy of any type is alleged extradition does not apply. That seems to be an extraordinary state of affairs and should be examined as soon as possible.

I do not want to take up any more time. The hour is late, both in the Session and in the day. This is a serious subject and one to which I know the Government have given anxious consideration for a long time.

Perhaps I can finally illustrate the issue in this manner. When questions were asked about extradition in the Republic of Ireland, the Secretary of State for Northern Ireland on 13 November 1981 told journalists at a Stormont Castle press conference that he considered it `unreasonable' for the Dublin Government to refuse to extradite terrorists wanted in Northern Ireland. Pressed on the question he said: 'We feel very strongly extradition should take place. We do put pressure about it but such pressure can be counter-productive'. The Government have recognised the problem. Even the former Secretary of State, the right hon. Member for Spelthorne (Mr. Atkins), said: The Government's views on extradition are well known to the new Government in the Republic of Ireland. We consider that extradition can be the best way of bringing to justice fugitives south of the border for crimes they are alleged to have committed in Northern Ireland. In its absence, the extra-territorial legislation remains the best alternative. It is all very well for the former Secretary of State to say that, but that depends on the evidence being available to prove the charges. The Government cannot shirk their responsibility and say that they will leave it to the prosecuting authority in the Republic of Ireland, because they very rarely get cogent evidence placed before the courts which would justify the court coming to a conviction in a particular case. That is a shirking of responsibility. Responsibility is ours and we must take it.

The former Secretary of State's reply continued: As in the past, we expect the Government of the Republic to use this legislation, which permits prosecution in one jurisdiction for an offence committed in the other. In answer to a supplementary question from the right hon. Member for Mansfield (Mr. Concannon), the right hon. Gentleman said: I note what the right hon. Gentleman says. The new Government of the Republic are in the early days of office. Let us hope that the procedures agreed between us will prove to be the more effective than they sometimes seem to have been in the past."—[Official Report, 16 July 1981; Vol. 8, c. 1382–83.] That was a somewhat pious hope without any real foundation.

Apart from the Tuite case recently, my researches have disclosed that there has been no other case in which that procedure has been followed. In all the other cases the criminals have got off scot-free. Although we have known who they were, when they have been brought before the Irish courts they have laughed at British justice and escaped all punishment.

It is against that background that I ask the Minister to tell the House what the Government's attitude is and what steps they contemplate taking to deal with this serious problem.

12.4 pm

The Minister of State, Home Office (Mr. Patrick Mayhew)

This is a timely debate, and I congratulate the hon. Member for Blyth (Mr. Ryman) on his success in bringing this subject to the attention of the House. It is timely today because of the terrible and disgusting attacks that we have recently experienced in central London and the continuing outrages in Northern Ireland. They remind us of the need to ensure that the perpetrators of such offences are brought to justice wherever they may be found. This is particularly necessary when the jurisdictions of two separate countries are geographically so close, communications are easy and there is a common travel area.

All those factors are true of the relationship between the United Kingdom and the Republic of Ireland and tend to make it easy for criminals to evade justice by fleeing from one jurisdiction to another. They ought also, however, to make it easier for the neighbouring States to co-operate in the apprehension and prosecution of fugitive criminals. Moreover, measures of co-operation are further eased between the United Kingdom and the Irish Republic by the common origin and similarity of our respective legal systems. Consequently, as the House is aware, the basic arrangements for the return of fugitive criminals between the United Kingdom and the Irish Republic are much simpler, and more comprehensive, than those which exist between the United Kingdom and other States.

Return from the United Kingdom is governed by the Backing of Warrants (Republic of Ireland) Act 1965, to which the hon. Gentleman has referred, and from the Republic of Ireland by the largely reciprocal provisions of its Extradition Act 1965. Those Acts provide for the return of persons accused or convicted of indictable offences or of offences punishable on summary conviction with six months' imprisonment, and for which there is a corresponding offence under the law of the requested State.

The procedure is that a warrant issued by a judicial authority in the requesting country is submitted to the police force in the requested country in whose area the fugitive is thought to be. If the necessary supporting evidence has been produced, the warrant is endorsed. The person sought may then be arrested and brought before a court whose function it is to consider whether to order his return. This simplified procedure omits certain important features of the Extradition Act 1870 and the Fugitive Offenders Act 1967—in particular, the need to establish a prima facie case against the accused person. The requirement for a warrant to be issued for the arrest of the fugitive, before the machinery for his return can be set in motion, means that the police must have satisfied a judicial authority that there is a case to justify the arrest of that person for the alleged offence.

The system is therefore based firmly on the respect which courts throughout the United Kingdom and the Republic rightly have for each other's decisions. It is an excellent arrangement, which is fully justified by the close ties of tradition, common interest and compatibility of law between the two States, and it greatly eases the task of both in securing the return of offenders where the evidence is available. The hon. Gentleman rightly emphasised that point.

As the hon. Gentleman has forcefully reminded us, however, there is a snag. Both the United Kingdom's and the Republic of Ireland's legislation provide that a person shall not be returned for a political offence. In the Irish Extradition Act this restriction is further extended to apply to an offence connected with a political offence. In some cases involving terrorists, courts in the Republic of Ireland have held that the offence was a political offence, or connected with a political offence, and it has not therefore been possible for the Republic of Ireland authorities to return the offenders to the United Kingdom in accordance with their law. That is the problem on which we must focus. It may be helpful if I say something more about it and about the efforts that have been made to overcome it.

The principle of non-extradition for an offence of a political character, which is closely associated with the power to grant political asylum, is of long standing and is internationally recognised. It has been an essential feature of United Kingdom extradition arrangements since at least the middle of the last century, and was given statutory effect by our Extradition Act 1870. The inclusion in the Irish Extradition Act of an additional provision covering an offence connected with a political offence is not something that we have felt any need to imitate, but it is fair to say that it accords with the European convention on extradition. The Republic of Ireland is a party to that convention. The United Kingdom is not. However, the wider safeguard is included in our extradition treaties with Belgium and France. Of course, treaties almost always impose equal obligations on, and afford equal safeguards to, both parties.

There is no internationally agreed definition of what constitutes an offence of a political character, nor does our own or the Republic of Ireland's legislation define it. Moreover, our own courts have declined to bind themselves to any hard and fast definition, but they have made it clear that, in considering the safeguard contained in the Extradition Act 1870, the motives and purpose of the fugitive in committing the offence are highly relevant.

For some years now, there have been discussions between the Governments of the United Kingdom and the Republic of Ireland, as well as between like-minded States generally, on how to overcome the problems posed by terrorist criminals enjoying the benefit of the political safeguard. As to arrangements between the United Kingdom and the Republic, the problem was from our point of view one of the most significant of those discussed at the Sunningdale conference in 1973. As the House knows, it was agreed at that conference that a law enforcement commission should be appointed jointly by the Irish and the United Kingdom Governments to consider how persons committing crimes of violence, however motivated, in any part of Ireland could be brought to trial irrespective of the part of Ireland in which they were found. The commission considered different ways of approaching the problem, including the amendment of the extradition legislation. Regrettably, the members of the commission were divided in their views.

The Irish members adhered to the view previously taken by the Government of the Republic that it is a principle of international law that the extradition of a person accused of a political offence does not take place. They were also of the view that, because article 29.3 of the Irish constitution declares that Ireland accepts the generally recognised principles of international law as its rules of conduct in its relations with other States, the law of the Republic of Ireland could not be amended so as to permit extradition for a political offence.

The United Kingdom members took a different view. They concluded that sovereign States may, where their mutual interests demand it, make or contemplate exceptions to the non-extradition rule. They also concluded that, while international law recognises a general practice of refusing extradition for political offences, there is no principle of international law forbidding it.

They further concluded that sovereign States, where it is in their mutual interests to do so, make exceptions to the general rule of non-extradition and that it is the practice of States to make such an exception where that is justified by the enormity or barbarism of the crime or the threat that it poses to international law and order. A number of international conventions concluded in recent years make such an exception.

Successive United Kingdom Governments have adopted the views of the United Kingdom members of the commission. However, successive Irish Governments have hitherto felt unable to change their position. Nevertheless, I know that my right hon. and learned Friend the Attorney-General is in touch with his opposite number in the Republic and that he hopes to resume discussions with him as soon as possible.

In the consciousness that agreement on extradition was not available, the joint law enforcement commission explored the contribution which an extension of extraterritorial jurisdiction could make to solving the problem of bringing to trial those accused of crimes of violence which might be regarded by the courts as being politically motivated. The commission recognised that the efficacy of such an arrangement would depend upon witnesses, both for the prosecution and defence, being ready to cross the border to the place of trial. Nevertheless, in the absence of agreement on extradition, it was agreed between the Irish and United Kingdom Governments that this course should be followed. The Criminal Jurisdiction Act 1975 and the Republic's Criminal Law (Jurisdiction) Act 1976 gave effect to the recommendation.

The scope of these Acts is wider in relation to co-operation between Northern Ireland and the Republic than in relation to Great Britain. So far as Great Britain is concerned, courts are limited to trying a United Kingdom citizen for an offence committed in the Republic only if it is an offence involving the use of explosives. The corresponding jurisdiction of the Republic is also limited to explosive offences, giving the Irish courts jurisdiction over such offences committed by Irish citizens anywhere. It is under the provisions of the Irish legislation that Gerard Tuite was tried and convicted at the Dublin special criminal court on 3 July for possessing explosives in Greenwich between June 1978 and March 1979, and it is of course a matter of satisfaction to the British Government that the extra-territorial arrangement should have proved effective in this case. However, I entirely accept the hon. Gentleman's point that the finding and provision of the evidence in that case rested with the British Government and that that was the primary reason for the successful conclusion of that prosecution.

I referred earlier to the fact that discussions on bringing terrorist criminals to justice have taken place not only between the United Kingdom and Irish Governments but among Governments of European countries generally. Successive United Kingdom Governments have participated fully in these discussions, the most outstanding product of which, so far, is the European convention on the suppression of terrorism. The convention, drawn up under the auspices of the Council of Europe, is designed to ensure that the perpetration of acts of terrorism do not escape justice by a plea that these acts have political motives and that, if extradition cannot be granted, the requested State must consider prosecution. The passage by Parliament of the Suppression of Terrorism Act 1978 enabled the United Kingdom to ratify the convention.

The Republic of Ireland has felt unable to become a party to the convention. Its Government have explained the point about the Irish constitution to which I have referred. Nevertheless, in order to make arrangements for bringing offenders to trial as effective as possible throughout Western Europe, an agreement on the application of the convention on the suppression of terrorism was signed in Dublin by the then nine member States of the European Community in December 1979. This provides that if extradition is refused on the grounds that the offences are political offences, the requested State should submit the case to its prosecuting authorities for the purpose of prosecution. The agreement can, however, come into force only when it is ratified, and there is no immediate prospect that this can be achieved. The French, for example, have linked it with further progress on a proposed European Community convention on co-operation in criminal matters.

The Government, like their predecessors, are in no doubt about the repugnance which is felt by the overwhelming majority of British people at the notion that those who commit outrageous and indiscriminate acts of violence or barbarism such as those which we have recently witnessed should escape justice because their acts can be regarded, apparently, as political. I understand and endorse every word that the hon. Gentleman has uttered in condemnation of that result.

Whatever the merits of the political safeguard in a world-wide context, we believe that it should be possible for neighbouring States with close ties, common interests and full respect for each other's judicial systems to agree that advantage shall not be taken of it in matters so closely affecting them all. It is apparent that these sentiments are shared by the Governments and peoples of other European countries, especially those which have become parties to the European convention on the suppression of terrorism.

We remain of the view that extradition is the best way of dealing with fugitive offenders. It has been the position of successive United Kingdom Governments, in respect of terrorist criminals and in respect of all fugitive offenders, that it is proper and most effective for a person to be tried by the courts of the State within whose territory the offence has been committed. We have always been reluctant, although very ready to admit exceptions, to see any extension of extra-territorial jurisdiction. The reasons for this are well known and, as I have already mentioned, they were recognised by the joint United Kingdom-Irish law enforcement commission.

In essence, the common law tradition attaches an importance to oral witnesses and best evidence which makes it more difficult for us than for civil law countries to try or help to prosecute offenders outside their own country. In our discussions with the Government of the Irish Republic, therefore, we shall continue to draw their attention to what we see as a continuing problem of great gravity. Nevertheless, in the absence of extradition arrangements which will deal satisfactorily with terrorist offenders, we attach great value to the legislation enacted in both countries to provide for the extra-territorial treatment of offences. Mounting prosecutions under the legislation is not without its difficulties, for the reasons that the hon. Gentleman has mentioned among others, but several prosecutions have successfully been brought in the Republic recently, which represent a step forward in making effective use of the legislation. The prosecuting authorities, both in Great Britain and Northern Ireland, will continue to ask the Irish prosecuting authorities to consider prosecution when they are satisfied that there is sufficient evidence to justify proceedings.

The hon. Gentleman rightly reminded us in fairness that the essence of extradition is that it derives from a treaty, and a treaty is merely the expression of an agreement. We can reform our own extradition law but that is merely the foundation for the agreement that is necessary to get a satisfactory arrangement established between Britain and another country. However, I was grateful to the hon. Gentleman for what he had to say about the report of the working party that was produced by my Department on 22 July. I am encouraged by the comments that he has made about it, coming from someone who takes so informed an interest in this difficult subject.

We intend to pay careful attention to the comments which we shall receive in substantial numbers. We have asked the hon. Gentleman and many others who take an interest in this subject to consider the document. In the light of the comments that we receive, we shall be better equipped to know how to move forward, perhaps along the lines of the recommendations contained in the report.

I wish that I could have told the hon. Gentleman that the problems that he has raised so lucidly and compellingly permit of some easy solution that has become clear to us, but I cannot do so. I hope, however, that the hon. Gentleman and the House will accept, as second best, my assurance that the Government and the prosecuting authorities are fully aware of the importance and the gravity of the problem with which this debate has been concerned, as well as of the difficulties, and that we shall continue to do all that we can to find the best and the most just solution to them.

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