§ Lord Mason of Barnsley
asked Her Majesty's Government:
When they will decide whether to issue an authority to proceed in response to the Spanish extradition request for Senator Pinochet. [HL266]
§ Lord Williams of Mostyn
My right honourable friend the Home Secretary signed an authority to proceed in respect of Senator Pinochet today. The Spanish request for his extradition will now be considered by the courts. The reasons for his decision were sent to all the parties concerned in a letter from a Home Office official as set out below:
"1. I am writing to inform you that the Secretary of State has today signed an authority to proceed in respect of Senator Pinochet. The authority to proceed and supporting documentation are being transmitted to Bow Street. I am notifying the Deputy Chief Clerk of this decision by fax. I enclose a copy of the authority to proceed for your information.
2. The Secretary of State is not under an obligation to provide reasons for his decision to sign an authority to proceed. However, in this case, and in the light of the matters raised by the representations, he has agreed to give his reasons at this stage.
3. The Secretary of State received notification, before the House of Lords judgment on 25 November, that he would be receiving representations for and against the issue of an authority to proceed.92WA
4. Although there is no provision in the Extradition Act (`the Act') for representations at this stage in extradition proceedings, he has taken careful account of these in making his decision; in particular representations made to him by legal representatives of Senator Pinochet, the Spanish Government, the Chilean Government and legal representatives for 'the Interveners' before the House of Lords. He also received material from the Foreign and Commonwealth Office and the Ministry of Defence.
5. The decision to issue an Authority to Proceed was taken personally by the Secretary of State.
Requests from the French and Swiss Governments
6. The Secretary of State received formal extradition requests for Senator Pinochet from the Spanish Government on 11 November 1998, from the Swiss Government later the same day, and from the French Government on 13 November 1998.
7. The Secretary of State has considered these requests, and further material made available by the Swiss Government, under section 12(5) of the Act and Article 17 of the European Convention on Extradition ('ECE'). He has given precedence to the Spanish request, and notified the French and Swiss Governments accordingly.
The Secretary of State's approach to his decision
8. He has taken his decision under section 7(4) of the Act, which provides:
(4) On receipt of any such request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.
9. The Secretary of State has taken the approach that if it already appears to him that no order for the return of Senator Pinochet to Spain could lawfully be made, or would in fact be made, then he should not issue an authority to proceed. If those conditions do not exist he has a discretion whether or not to issue an authority to proceed.
10. He has had regard to the relevant extradition arrangement, namely the ECE. The UK's obligation is to extradite Senator Pinochet to Spain consistently with the ECE. That is a consideration to which the Secretary of State gives particular weight.
11. In reaching his decision, the Secretary of State has considered the application of the Act to the Spanish request and all the general restrictions on surrender in sections 6 and 12 of the Act.
12. Section 1 of the Act provides that where, as in the case of Spain, extradition procedures under Part III of the Act are available, a person in the United Kingdom who: 'is accused in that state of the commission of an extradition crime' may be arrested and returned to that state in accordance with those procedures.93WA
13. The Secretary of State considers that Senator Pinochet is accused, in Spain, of offences equivalent to UK offences of attempted murder, conspiracy to murder, torture, conspiracy to torture, hostage taking and conspiracy to take hostages.
14. Senator Pinochet is also charged, under Spanish law, with genocide, and the CPS advised, on behalf of the Spanish Government, that murder is also disclosed by the request. The Secretary of State does not consider that the contents of the extradition request satisfied the definition of an extradition crime under section 2 of the Act in respect of these offences, and has therefore not included them in the authority to proceed.
15. The relevant test under the Act was explained by the Lord Chief Justice in the Divisional Court (with whom the other judges agreed) who said: 'What is necessary [for the definition of extradition crime in s. 2] is that at the time of the extradition request [rather than at the time of the conduct alleged; emphasis supplied] the offence should be a criminal offence here …'
16. The Secretary of State has proceeded on the basis that he is entitled, at this stage of the extradition proceedings against Senator Pinochet, to treat the Spanish request as well-founded as a matter of Spanish law.
Sovereign or diplomatic immunity
17. The Secretary of State has also proceeded on the basis that Senator Pinochet does not enjoy any immunity in relation to the offences in question. He has not accepted a representation made on behalf of Senator Pinochet that he should disregard the House of Lords judgment on the grounds of alleged bias on the part of one of the law lords. Nor does it appear to him that Senator Pinochet is entitled to diplomatic immunity or protection as the head of a special mission.
18. The Secretary of State has considered all the general restrictions on surrender in sections 6 and 12 of the Act. In particular, he has had regard to:
Political Offences (section 6(1)(a))
19. Section 24 of the Act provides that no offence to which section 1 of the Suppression of Terrorism Act applies can be regarded as an offence of a political character. Since Spain is a designated country for the purposes of section 24, the Secretary of State considers that all the offences that are to be included in the authority to proceed fall within this provision. In any event it does not appear to him that the offences charged are of a political character.
Punishment for political opinions (sections 6(1)(c) and (d))
20. The Secretary of State does not consider that there are good grounds for concluding that the request has been issued for this purpose.94WA
The passage of time (section 12(2)(a)(ii))
21. The Secretary of State has not been notified by the Spanish Government that any of the offences for which extradition is sought are time barred from prosecution, and considers that it is reasonable to proceed at this stage on the footing that no relevant time bar appears to apply.
22. Nor does the Secretary of State consider that the passage of time would render it unjust or oppressive to issue an authority to proceed in this case. It does not appear that Senator Pinochet is unfit to stand trial. The offences for which return has been sought are serious, and in the nature of those for which, domestically, passage of time would not be regarded as restricting prosecution. The case is an accusation case and, ordinarily, the reliability of witnesses' memories may properly be regarded as a matter for the court of prosecution.
Accusation not made in good faith in the interests of justice (section 12(2)(a)(iii))
23. The Secretary of State does not believe that there are good grounds for concluding that the request has been issued other than in good faith in the interests of justice.
The Secretary of State's discretion
24. The Secretary of State has considered the ambit of his discretion under section 7(4) and his residual general discretion under section 12 of the Act, which would apply in relation to the return of Senator Pinochet were he to be committed by the Bow Street magistrate under section 9 of the Act. Contrary to certain of the representations made to him, he has been advised that the discretion conferred upon him is wide, and he has therefore taken a range of factors into consideration.
25. A large number of points were raised in representations concerning the Secretary of State's discretion, including aspects of issues that fall to be considered under the general restrictions on return contained in the Act. In particular, the Secretary of State has had regard to the following:
26. Representations were made on behalf of the Senator that his age and health would render it unjust or oppressive to issue an authority to proceed. The Secretary of State has considered these carefully, but concluded that it does not appear that the Senator is unfit to stand trial and concluded that in all the circumstances it would not be unjust or oppressive for him to stand trial in relation to the offences with which he is charged. The Secretary of State also has in mind that this question, among others, can be re-examined in the light of any developments, at the stage when he comes to exercise his final discretion at the end of the extradition process, under section 12 of the Act.
Pending proceedings in Chile
27. The Chilean Government argued that Senator Pinochet should be returned to Chile where he could stand trial. However, there is no extradition request from the Chilean Government which the Secretary of 95WA State could consider under section 12(5) of the Act. Moreover, there is no provision of international law which excludes Spain's jurisdiction in this matter. The Secretary of State does not consider the possibility of a trial in Chile to be a factor which outweighs the UK's obligations under the ECE to extradite Senator Pinochet to Spain.
28. The Secretary of State has also considered other factors, under his general discretion, including:
- (i) the possible effect of extradition proceedings on the stability of Chile, and its future democracy; and
- (ii) the possible effect of extradition proceedings on the UK national interest.
29. He has concluded that the material and representations put before him do not amount to sufficient grounds not to issue an authority to proceed.
30. In the event that Senator Pinochet is committed to await the Secretary of State's decision on his return, the Secretary of State will consider the extradition request afresh under section 12 of the Act. At that stage he will be able to take into account any findings in the committal proceedings and any habeas corpus proceedings as well as any further representations which Senator Pinochet may wish to make against return.
31. If Senator Pinochet decides to apply for leave to move for judicial review of the Secretary of State's decision, he reserves the right to expand upon the reasons given in this letter in an affidavit to be sworn by one of his officials."