HC Deb 02 March 2000 vol 345 cc357-71W
Mr. Paul Clark

To ask the Secretary of State for the Home Department if he will make a further statement on the case of Senator Pinochet. [110637]

Mr. Straw

I have today decided that I will not order the extradition of Senator Pinochet to Spain. I made this decision under section 12 of the Extradition Act 1989. I have referred the case to the Director of Public Prosecutions for consideration of a domestic prosecution, in accordance with Article 7 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I have also decided not to issue Authorities to Proceed in respect of the extradition requests from Switzerland, Belgium and France. Full reasons for my decisions are contained in the letters to the parties concerned from one of my officials as set out:

Letter to the Spanish Ambassador:

2. I am writing to inform you that the Secretary of State has this morning decided pursuant to section 12 of the Extradition Act 1989, to make no order for the return of Senator Pinochet to Spain. This letter sets out the Secretary of State's reasons. He reserves the right to expand on them should it become necessary to do so.

The Secretary of State's approach to his decision

3. On 14 April 1999, the Secretary of State issued an Authority to Proceed under section 7 of the Act on certain of the charges made in Spain's extradition request. On 8 October 1999, Senator Pinochet was committed by the Bow Street Magistrate on all charges covered by the Authority, to await the decision of the Secretary of State as to whether he should be extradited to Spain. A habeas corpus application was made on Senator Pinochet's behalf on 22 October 1999, which has not yet been heard.

4. The Secretary of State is precluded by the Act from making an order for Senator Pinochet's extradition while his habeas corpus application is still pending. In the ordinary course, the Secretary of State would not make a decision to refuse such an order until all proceedings arising out of the habeas corpus application had been completed. However, he has a discretion to do so in appropriate cases and a duty to consider whether this is such a case. In approaching that discretion, he has proceeded on the basis that he should not at this stage decide against making an extradition order unless it is already clear that there is some decisive factor which would lead him to refuse such an order at the end of the day. The only factor militating against the extradition of Senator Pinochet which is potentially decisive at this stage is the state of his health, and in particular his mental fitness to stand trial.

Representations

5. On 11 January 2000, the Secretary of State informed those acting for Senator Pinochet and the Kingdom of Spain that he had commissioned a medical report on Senator Pinochet, which had been delivered to the Home Office on 6 February 2000. He informed them that the report indicated that Senator Pinochet was unfit to stand trial, and that no significant improvement to that position could be expected. Subject to representations to be received at the Home Office by 5 pm on Tuesday 18 January 1999, he said that he was minded to conclude that no purpose would be served by continuing the current extradition proceeding arising from the Spanish request. Similar letters were sent to representatives of Amnesty International, Human Rights Watch, and other human rights organisations, which invited them to make such representations if they wished. A statement to the same effect was made to the press on 11 January 2000, and in the House of Commons on the following day.

6. The Secretary of State has received representations from most of those who were expressly invited to make them, as well as from a large number of other parties. He has taken careful account of them. He has also taken account of the points in recent judicial review proceedings in the High Court. In addition, he has reminded himself of the representations which were made to him on the two occasions, in December 1998 and April 1999, when he considered whether an Authority to Proceed should issue under section 7 of the Act in respect of Spain's extradition request.

7. On 15 February 2000, the High Court decided that the Secretary of State was bound to disclose copies of the medical report in confidence to the authorities of Spain, Belgium, France and Switzerland, all of whom have made requests for the extradition of Senator Pinochet. Copies of the report, together with certain ancillary material, were supplied to the Crown Prosecution Service on behalf of Spain and to the embassies of Belgium, France and Switzerland later on the same day. They were invited to make any representation on the report by 5 pm on Tuesday 22 February 2000. Representations were received in response to this invitation from all four requesting states. In the case of Spain, Belgium and France these included opinions from medical practitioners about the material sent to them on Tuesday 15 February 2000. In addition, some other representations on the medical report have been received. The Secretary of State has carefully considered these representations and the opinions annexed to them, with the benefit of expert advice.

Senator Pinochet's health

8. At the time when the Secretary of State was considering his first and second Authorities to Proceed, he received representations and a certain amount of information about Senator Pinochet's state of health from his solicitors. The tenor of this material was that Senator Pinochet was in some respects frail, as was to be expected in a man of his age. It did not, however, suggest that he was either physically or mentally unfit to stand trial. The Secretary of State did not regard this information as justifying the refusal of either of the Authorities to Proceed which he then issued.

9. The first sign that a serious problem about Senator Pinochet's health might be developing came on 6 October 1999, when, two days before judgment was given in the committal proceedings, the Bow Street Magistrate excused him from attending the judgment in person. This decision was based on evidence given to the court by the general practitioner attending Senator Pinochet.

10. On 14 October 1999, shortly after the decision of the Magistrate to commit Senator Pinochet, the Secretary of State received through diplomatic channels representations from the Chilean Embassy, supported by medical reports, which suggested that there had been a recent and significant deterioration in Senator Pinochet's health. The Secretary of State did not regard this material as conclusive. It did, however, suggest the possibility that Senator Pinochet might be unfit to stand trial. He therefore decided to invite Senator Pinochet to submit to a medical examination by a team of clinicians appointed by him. The object was to obtain an independent, comprehensive and authoritative report on the relevant clinical facts. Senator Pinochet consented to undergo an examination, and the Secretary of State then selected, with the assistance of the Chief Medical Officer's advice, a team of clinicians to carry it out, having the required range of specialisations and no inappropriate personal interest in the case. They were: Sir John Grimley Evans FRCP, Professor of Clinical Geratology at the University of Oxford. He is a former Vice President of the Royal College of Physicians and serves on the World Health Organisation expert panel on the care of the elderly. The Chief Medical Officer identified him as probably the most respected individual in British geriatric medicine. Dr. Michael Denham MD, FRCP (Lond., Edin.), FRSA, Consultant Physician in Geriatric Medicine at Northwick Park Hospital, London. He is a former President of the British Geriatrics Society and the author of numerous papers on the care of the elderly. Professor Andrew Lees MD, FRCP, Professor of Neurology at the National Hospital for Neurology and Neurosurgery, London. Professor Lees is a specialist in movement disorders and dementia. He is medical adviser to, and Co-Director of, the Parkinson's Disease Society.

All three are independent practitioners of outstanding national and international reputation in their fields. On their advice and with the agreement of the Chief Medical Officer, Maria Wyke MA, PhD, Consultant Neuropsychologist, was added to the team. Professor Lees and Dr. Maria Wyke are fluent Spanish speakers.

11. The clinicians were instructed to undertake the examinations and procedures which they judged desirable in order to provide the Home Secretary with a fully comprehensive report on the state of Senator Pinochet's health. In particular, they were asked to advise the Secretary of State whether, in their view, there were any aspects of Senator Pinochet's state of health which, separately or together, suggested that he was not then fit, or was likely to become unfit, to stand trial in Spain. They were told that the Secretary of State was particularly interested in Senator Pinochet's ability to follow a line of questioning, to recall events, some of which took place as long ago as the 1970s, and to give coherent evidence. To the extent that any of the contents of their report were influenced by observation of Senator Pinochet's conduct and manner, they were asked to advise the Secretary of State on the extent to which that conduct and manner were capable of being consciously influenced by the Senator himself.

12. It should be pointed out that the clinicians were not expected, in reaching their conclusions, to take responsibility for the legal test of fitness for trial, nor does the Secretary of State consider them to have done so. Their function was to ascertain the clinical facts. The test of fitness for trial which has been applied, both in framing their instructions and in assessing their report, is the responsibility of the Secretary of State, who in turn has drawn extensively upon the opinions of his legal advisers.

13. The medical examination was conducted in Spanish at the Northwick Park Hospital in London over a period of some six hours on 5 January 2000, and the report was delivered to the Home Office on the following day. Certain information supplementing the report was supplied afterwards. This comprised (i) a short account of the procedures followed at the examination, which was supplied by Professor Grimley Evans on 7 January 2000; (ii) a copy of the neuropsychological report of Dr. Wyke, which had been summarised in the principal report but not annexed to it; and (iii) an explanation of neuropsychological testing by way of introduction to Dr. Wyke's report. This material was supplied to the four requesting states with the principal report on 15 February 2000. In addition, the Secretary of State has referred to Professor Grimley Evans and his colleagues the representations received on their report, and medical opinions annexed to those representations, and he has received their comments.

14. As the Secretary of State disclosed in his announcements on 11 and 12 January 2000, the conclusions of the medical report indicated that Senator Pinochet was unfit to stand trial and that no significant improvement to that position could be expected. The Secretary of State has considered the matter afresh in the light of all the material referred to in the preceding paragraph, and in the light of representations which he has received on the subject. Having done so, he is satisfied that the conclusions of the original report were correct and that it is right to regard Senator Pinochet as unfit to stand trial.

15. The critical facts are as follows:

  1. (1) Senator Pinochet was born on 25 November 1915. He is 84 years old. The Secretary of State does not regard Senator Pinochet's age as being in itself a sufficient basis for his present decision. But he has taken account of it in assessing the significance of other aspects of his state of health.
  2. (2) The clinicians instructed by the Secretary of State concluded that Senator Pinochet would not at present be mentally capable of meaningful participation in a trial. In reaching that conclusion, they were obliged to make assumptions about what kind of participation in a criminal trial would in law be regarded as "meaningful" in determining the fitness of an accused. Those assumptions are apparent from the conclusion of their report and are considered in sub-paragraphs (3) and (4) below. So far as the Secretary of State has attached weight to them, he is satisfied that they are appropriate.
  3. (3) The clinicians expressed their opinion about Senator Pinochet's capacity for meaningful participation in a trial on the basis of (i) Senator Pinochet's memory deficit for both recent and remote events; (ii) his limited ability to comprehend complex sentences and questions 361W owing to memory impairment and a consequent inability to process verbal information appropriately; (iii) his impaired ability to express himself audibly, succinctly and relevantly; and (iv) easy fatiguability. The Secretary of State considers that all of these factors are potentially relevant to Senator Pinochet's mental capacity to participate in a trial. In this context, he attaches particular importance to Senator Pinochet's memory deficit for recent events, which would affect his ability to relate and understand items of information given to him at a trial, and to his limited ability to comprehend complex sentences and questions and to process verbal information. The Secretary of State has not attached weight to the impairment of Senator Pinochet's capacity to remember remote events, save in so far its recent deterioration is symptomatic of brain damage having a wider significance: see sub-paragraph (6) below.
  4. (4) With these impediments Senator Pinochet would be unable to follow the process of a trial sufficiently to instruct Counsel. He would have difficulty in understanding the content and implications of questions put to him and would have inadequate insight into this difficulty. He would have difficulty in making himself understood in replying to questions.
  5. (5) In assessing the significance of the above matters, the Secretary of State has considered the nature of the issues which would be likely to arise in a criminal trial on the serious charges for which Senator Pinochet has been committed. He has also assumed that at any trial reasonable steps would be taken to mitigate Senator Pinochet's disabilities, for example, by attending to his physical comfort and medical needs, by adjusting the timetable of hearings, and by endeavouring to simplify the proceedings so far as their nature permitted. He has reminded himself that the burden of proof at any trial would be on the prosecution. The Secretary of State does not consider that these matters are capable of mitigating to a significant degree the difficulties to which Senator Pinochet's disabilities would give rise.
  6. (6) The disabilities identified in the medical report are due to widespread brain damage, the major episodes of which seem to have occurred during September and October 1999 when Senator Pinochet suffered a number of strokes. They are not due to the ordinary processes of ageing.
  7. (7) The examination took place on a single day, but the clinicians had access to reports prepared by reputable British general practitioners and specialists attending Senator Pinochet who had examined him on a number of occasions in September and October 1999. These enabled them to cross-refer their observations on 5 January 2000 to earlier observations and to evaluate a characteristic pattern of illness as it had evolved over a period of several months.
  8. (8) The clinicians considered that further deterioration in both his physical and his mental condition was likely to occur, but were unable to express an opinion on the effect (if any) which a trial would have on the rate of deterioration. Their view was that although some day-to-day fluctuation in functional abilities was characteristic of brain damage due to cerebrovascular disease, further sustained functional improvement of a significant degree was unlikely.

16. The Secretary of State has always attached great importance to being able to satisfy himself that the results of the medical examination were not influenced by feigning of any kind. His instructions to the clinicians drew attention to the point and he is satisfied that they have been conscious of it throughout. They have advised him that there was no evidence that Senator Pinochet was trying to fake disability. The impediments were coherent in nature and consistent in manifestation, and the neuropsychological testing showed none of the features of deliberate exaggeration. In particular, those neuropsychological tests which were indicative of original intelligence and educational level showed superior performance. The Secretary of State is advised that there is no practical possibility that the results of the neuropsychological tests were influenced by coaching. He is also advised that while it is possible to simulate with drugs the symptoms of a global impairment of cognitive functions, (i) this is a problem with which geriatricians are particularly familiar, and (ii) Senator Pinochet's cognitive impairment was focal rather than global, a pattern not seen in drug-induced impairment. It is important to point out that the outward manner of Senator Pinochet is not necessarily a reliable guide to his mental condition. It is characteristic of persons with a high level of original intelligence that they are able to mask superficially a significant impairment of cognitive functions.

17. The report of the clinicians who examined Senator Pinochet has been criticised by a number of medical practitioners whose opinions have been transmitted by the examining magistrates responsible for criminal investigations of Senator Pinochet in Spain, Belgium and France, and by certain other parties. In considering these criticisms, the Secretary of State has borne in mind that those who have made them have not examined Senator Pinochet, as the authors of the report of 6 January 2000 did, nor have they had the advantage which the clinicians enjoyed of studying records of Senator Pinochet's recent medical history. The Secretary of State is advised that most of the criticisms made of the report are irrelevant to its conclusions, and certainly to the conclusions that are critical to Senator Pinochet's fitness for trial (see paragraph 15). He is advised that those criticisms which are relevant are medically unjustified. The Secretary of State is satisfied that the advice he has received on these points has been based on a careful and objective analysis of the criticisms. He accepts that advice.

18. The medical report on Senator Pinochet of 6 January 2000 is an entirely independent report by highly qualified specialist practitioners on the relevant clinical facts. In commissioning it, the Secretary of State did not set out to prove any particular point and had no expectation of any particular outcome. He is satisfied that the clinicians who prepared it undertook their task in the same spirit.

19. Letters of request from the examining magistrates in Belgium and France have been transmitted to the United Kingdom, each of which seeks a further medical examination. In addition, Judge Garzon, the examining magistrate in Spain, has called in his representations for a further examination of Senator Pinochet. Senator Pinochet has consistently declined to comply with the invitations addressed to him by requesting states for a further medical examination. The Secretary of State, having taken advice on the point, does not consider that a further examination would yield further material of significance. He does not therefore regard it as either necessary or appropriate to commission one in order to determine whether Senator Pinochet is fit to stand trial.

Unfitness to stand trial

20. The conclusions to which the Secretary of State has come mean that in a criminal trial in England, Senator Pinochet would be found unfit to stand trial, and there would not therefore be any trial of the charges against him on their merits. If this were a peculiarity of English criminal law, the Secretary of State would not attach as much weight to it as he does. However, in the view of the Secretary of State, the principle that an accused person should be mentally capable of following the proceedings, instructing his lawyers and giving coherent evidence is fundamental to the idea of a fair trial. He is advised that the attempted trial of an accused in the condition diagnosed in Senator Pinochet, on the charges which have been made against him in this case, could not be a fair trial in any country, and would violate Article 6 of the European Convention on Human Rights in those countries which are party to it.

21. After receiving the initial representations of Spain, the Secretary of State asked for further information from those representing Spain about the principles governing these matters in the Spanish system of criminal justice. This information has satisfied him that while the procedure differs in significant respects from that which would be followed in England, the underlying principle is substantially the same. The test of fitness to stand trial in Spain depends mainly on whether the accused is capable of understanding and following the charges against him, answering questions put to him, understanding the oral and documentary evidence for the defence and the prosecution, defending himself and instructing his lawyers. This is consistent with the representations as to Spanish law made on behalf of Senator Pinochet and on behalf of human rights organisations represented by Bindman & Partners. If Senator Pinochet were to be extradited to Spain, his fitness for trial would be assessed there by an objective process of clinical examination and testing. There is no reason to believe that that process would lead to conclusions any different in substance from those of the medical report commissioned by the Secretary of State in England. The Secretary of State is conscious that in Spain as in England, a "trial" may include the process of assessing the Defendant's fitness for trial. However, on the material before him, it is reasonable to assume that if Senator Pinochet were to be extradited to Spain, a trial there on the merits of the charges against him would be found impossible.

22. In considering whether to decide against extradition on account of Senator Pinochet's unfitness to stand trial, the Secretary of State has given careful thought to the alternative possibility of leaving that question to be determined in accordance with Spanish judicial procedures in Spain, in the event that there was no other objection to extraditing him there. He has been advised and has concluded that on the basis of English law he is bound to form a view of his own on Senator Pinochet's fitness to stand trial, and that he cannot refrain from reaching a concluded view on this point on the basis that the question can be determined in Spain. In the light of his conclusion that no improvement in Senator Pinochet's condition can be expected, he considers that no purpose would be served by the continuance of the current extradition proceedings in England. These would involve the continued detention of Senator Pinochet here for a period which, allowing for the habeas corpus proceedings and any appeal arising out of them, might be substantial. Any order for the extradition of Senator Pinochet which might then be made would involve the compulsory removal to another country of a man of 84 years of age who must at this stage be presumed innocent, for the purpose of a trial which could not result in any verdict on the charges against him, for reasons that are already apparent to the Secretary of State as the extradition authority in the United Kingdom. The Secretary of State considers that that course would serve no purpose of any substantial value to the interests of justice and that it would be oppressive to Senator Pinochet.

23. The Secretary of State would not necessarily have taken the same view if there had been any realistic prospect that Senator Pinochet's condition would improve, either spontaneously or as a result of treatment. He is aware that in Spanish law the effect of a finding that an accused is unfit to stand trial is to suspend a prosecution for as long as that state of affairs subsists, but it is not tantamount to an acquittal.

Section 12 of the Extradition Act 1989

24. Section 12(2)(a) of the Act provides that the Secretary of State may not order the extradition of the accused in relation to any alleged offence if it appears to him that: (i) by reason of its trivial nature; or (ii) by reason of the passage of time since he is alleged to have committed it … or (iii) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.

25. The Secretary of State considers that this provision has no application to the present question. Although it would in his view be oppressive to order Senator Pinochet's extradition given his unfitness to stand trial, this state of affairs has not arisen by reason of the passage of time since he is alleged to have committed the offences. But for the lapse of time since the alleged offence, a decision under section 12 might possibly have fallen to be made before Senator Pinochet became unfit, but the cause of his unfitness is the supervening brain damage which appears to have occurred in September and October 1999. That damage was not itself either caused or aggravated by the lapse of time since the alleged offences. Neither of the other two factors identified in the sub-section is relevant.

26. It follows that Senator Pinochet's unfitness for trial is not an absolute bar to his extradition. It is a matter to be addressed as part of the general discretion of the Secretary of State under section 12(1).

The European Convention on Extradition

27. The United Kingdom and Spain are parties to the Convention.

28. The Convention requires extradition in all cases to which it applies, subject only to specific and limited exceptions, and to any reservations made by particular contracting states on their accession. In cases falling outside these exceptions and reservations, there is no general discretion. There is no express exception applicable to this case, nor is there any relevant reservation of the United Kingdom or Spain. The Secretary of State is advised that it is open to argument whether the Convention is subject to an implicit exception for cases where the primary purpose of any extradition, namely the trial of the charges alleged against the accused, could not be served. In the circumstances of this case, the Secretary of State considers it unnecessary to form a concluded view about that. He has assumed, in reaching his decision, that the Convention does not allow for the refusal of extradition on the ground that the accused is and will remain unfit to stand trial in the requesting state.

29. The Convention is not incorporated into English domestic law save to the limited extent provided for by the European Convention on Extradition Order 1990, SI 1990/1507. This provides simply for the Extradition Act 1989 to apply as between the United Kingdom and other parties to the Convention, and for it to do so on the basis contemplated in section 9(8)(a) of the Act that a prima facie case need not be shown on the committal hearing. Section 12 of the Act therefore applies, as a matter of English law, to extradition proceedings arising out of requests from states party to the Convention. The discretion conferred by it on the Secretary of State must be exercised in such cases.

30. Although the Convention is not part of English domestic law, the Secretary of State attaches great importance to the international obligations of the United Kingdom, and in the exercise of his discretions under the Extradition Act he regards those obligations as both relevant and entitled to considerable weight. In most cases to which the Convention applies they will be decisive. However, the Secretary of State recognises that given the breadth of his discretion under section 12 of the Act there may be some occasions on which the requirements of the Convention are outweighed by other compelling considerations peculiar to particular cases. The Secretary of State considers that they are outweighed by such considerations in this case, having regard in particular to the nature of Senator Pinochet's condition in a man of his age, to its probable permanence, and to its impact on the possibility of a trial of the charges against him.

31. The experience of the Home Office has been that in practice parties to the Convention operate its provisions in a more flexible fashion than its absolute language suggests, and in accordance with basic principles of justice which are common to all of them. It is consistent with this approach that Belgium should have been recorded in the judgment of the High Court on their recent application for judicial review as having clearly stated that they would support the Secretary of State's decision if only they could be satisfied that Senator Pinochet is indeed shown by the report to be permanently unfit to stand trial;

and that Spain should have informed the Secretary of State that they will respect any decision made by the Secretary of State in the exercise of his discretionary powers. In making his decision, the Secretary of State has not attached weight to the matters summarised in this paragraph, but he considers it right that they should be recorded.

Other countervailing considerations

32. The main consideration which has been urged upon the Secretary of State in favour of allowing the current extradition proceedings to take their course is the importance of ensuring so far as possible that the allegations made against Senator Pinochet should be tried. The Secretary of State agrees that this is important. The scope of the charges against Senator Pinochet was substantially reduced as a result of the decision of the House of Lords in R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No. 3) [1999] 2 WLR 827, but the remaining charges are extremely serious. The Secretary of State attaches great importance to the principle that universal jurisdiction against persons charged with international crimes should be made effective, and he is aware that the practical consequence of refusing to extradite Senator Pinochet to Spain on account of his unfitness to stand trial is that he will probably not be tried anywhere. The Secretary of State is also mindful of the sense of injury which will be felt by those who suffered from breaches of human rights in Chile in the past, as well as their relatives. All of these are matters of legitimate concern, and he has had them very much in mind when considering the evidence about Senator Pinochet's state of health. They are among the reasons why he has required the evidence of Senator Pinochet's condition to satisfy a high standard of expertise, thoroughness, objectivity and cogency before he was prepared to act on it. Ultimately, however, the reservation "so far as possible" cannot be brushed aside. A trial of the charges against Senator Pinochet, however desirable, is no longer possible.

33. The Secretary of State has considered other factors, including a wide variety of matters raised in representations received at the Home Office. This letter has dealt in terms only with those matters which have had a significant bearing on the Secretary of State's decision. It is, however, right to mention the following further points:

  1. (1) The Secretary of State understands that if Senator Pinochet were convicted in Spain of the offences charged against him, victims of those offences might be entitled to recover civil damages in proceedings ancillary to the criminal trial. The Secretary of State doubts whether this point could be relevant to a decision whether to extradite a person on a criminal charge, but he has reached no concluded view on its legal relevance, because he does not in any event feel able to attach significant weight to it. It is right to add that the point assumes the possibility of a verdict on the charges.
  2. (2) The Secretary of State has not had regard to the possibility, if indeed it is a real one, that Senator Pinochet might be tried in Chile.
  3. (3) The Secretary of State considers that in some circumstances it may be appropriate for him to have regard to political, economic or diplomatic interests of the United Kingdom in exercising his discretions under the Extradition Act. He has not had regard to such factors in making his present decision.

Referring the decision to the Court

34. The Secretary of State has been urged by a number of those who have made representations to him to leave to the Courts the question whether Senator Pinochet should be discharged on account of unfitness to stand trial. He has considered this possibility but does not propose to adopt it.

35. The High Court has power to discharge accused persons who are being unlawfully detained, and such further powers as are specifically conferred on it by the Extradition Act 1989. It has no inherent supervisory power over extradition. Under section 11(3) of the Act, the High Court on the hearing of a habeas corpus application has a duty similar to that of the Secretary of State under section 12(2)(a) to discharge an accused if by reason of the lapse of time since the offences are alleged to have been committed it would in all the circumstances be unjust or oppressive to order his extradition. If the Secretary of State had regarded these provisions as applicable he would have been bound to refuse to extradite Senator Pinochet. However, the facts making it oppressive to extradite Senator Pinochet do not arise from the lapse of time since the alleged offences. Therefore neither section 11(3) nor section 12(2)(a) applies. The Secretary of State is the only authority on whom a general discretion is conferred whether to order extradition. He has had regard in exercising it to the principle expressed by the courts on a number of occasions that the proper exercise of that discretion by the Secretary of State is the principal safeguard for the accused against oppression.

36. The Secretary of State would not, even if the Court had concurrent jurisdiction in the circumstances of this case, have thought it right to refrain from performing a duty or exercising a discretion conferred on him by statute, which he was in a position to exercise on material which he had commissioned for that purpose, simply because at some future stage another authority might take the decision instead.

Domestic prosecution

37. Article 7 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires the Secretary of State, if he does not order the extradition of a person accused of torture, to submit the case to the United Kingdom prosecuting authorities for the purposes of a domestic prosecution. The Secretary of State has supplied papers in advance to the Solicitor General and the Director of Public Prosecutions for that purpose and has this morning referred the case to them under Article 7. Their functions in the matter are entirely independent of his.

Letters rogatory

38. The only additional matter is the application of Judge Garzon by letters rogatory of 15 January 2000 for Senator Pinochet to be required to appear in court to respond to a request for a statement. The Home Secretary has decided not to give effect to this request on the grounds that Senator Pinochet is not a compellable witness as a matter of English law.

Letter to the Belgian Ambassador:

39. The Secretary of State has today made a final decision not to issue an Authority to Proceed under section 7 of the Extradition Act 1989 in respect of the two requests of Belgium for Senator Pinochet's extradition, transmitted on 15 December 1998 and 11 November 1999. In making this decision, the Secretary of State has treated the "Elaborative Memorandum" transmitted on 3 February 2000 as supplementing those requests and has had regard to the full range of offences alleged against Senator Pinochet in all three documents.

40. Under 7(4) of the Extradition Act 1989, the Secretary of State is required to refuse an Authority to Proceed if an order for the extradition of Senator Pinochet could not lawfully be made or would not in fact be made in accordance with the provisions of the Act. Under those provisions, extradition is available only in respect of extradition crimes. The Secretary of State has directed himself on this point in accordance with the decision of the House of Lords in R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the United Kingdom is not an extradition crime unless it was punishable in the United Kingdom at the date when it is alleged to have been committed. Torture outside the United Kingdom and conspiracy to torture outside the United Kingdom first became punishable in the United Kingdom on 29 September 1988 when section 134 of the Criminal Justice Act 1988 came into force.

41. None of the matters set out in the two extradition requests of Belgium and the Elaborative Memorandum disclose offences of torture or conspiracy to torture committed after 29 September 1988. In the Elaborative Memorandum, attention is drawn to three cases in which persons disappeared in circumstances which have never been disclosed to their families. It is alleged that their disappearance constituted torture of themselves and their families, which in the absence of news of them continued, or must be treated as continuing, to the present day. It is an essential requirement of the offence of torture in English law that the accused should, by some act or omission, have intentionally inflicted severe physical or mental pain or suffering on another person or been party to the infliction of such pain or suffering. The Secretary of State does not regard the two extradition requests or the Elaborative Memorandum as alleging (i) any act or omission inflicting severe pain or suffering and occurring on or after 29 September 1988, or (ii) that any intention to inflict pain or suffering was continuing until 29 September 1988 or any later date, or (iii) an intention existing at any time to inflict pain or suffering on any one other than those who disappeared. Furthermore, the Secretary of State does not regard any such allegations as being implicit in the facts alleged.

42. There are no offences other than torture or conspiracy to torture disclosed in the two extradition requests or the Elaborative Memorandum which have at any time been punishable in the United Kingdom if committed outside the United Kingdom. The requirement that offences alleged in an extradition request should be punishable under the law of the requested state is of course reflected in the European Convention on Extradition.

43. If the Secretary State had regarded the two extradition requests and the Elaborative Memorandum as disclosing extradition crimes, he would nevertheless have refused to issue an Authority to Proceed in this case because he is satisfied that Senator Pinochet is unfit to stand trial and that there is no likelihood of significant improvement. He has today decided on that ground that he will not order the extradition of Senator Pinochet to Spain. It appears to him that even had the Belgian extradition requests and the Elaborative Memorandum disclosed extradition crimes Senator Pinochet's unfitness to stand trial would have precluded his extradition to Belgium for the same reasons as it precluded his extradition to Spain. The enclosed copy of my letter this morning to the Spanish Ambassador sets those reasons out.

44. In these circumstances, the question whether Senator Pinochet could claim state immunity in respect of the offences alleged against him does not arise.

45. I refer to the three letters of request issued by the examining magistrate Mr. Vandermeersch and transmitted on 19 and 24 January and 22 February 2000. The first of these seeks a further medical examination of Senator Pinochet. It has been executed in accordance with English law by inviting Senator Pinochet to submit voluntarily to the examination sought. He has declined to comply. In the light of the judgment of the High Court on 15 February 2000, the second letter of request has been executed so far as it seeks disclosure of the medical report. The Secretary of State does not propose to give effect to the second letter of request to any greater extent, having regard to the terms of that judgment and to his decision to refuse an Authority to Proceed in respect of Belgium's extradition requests. If Senator Pinochet were at some future stage to enter Belgium or to be extradited there from a third country, the Secretary of State will consider what further assistance might be appropriate. The third letter of request invites the Secretary of State or other competent authority to carry out an assessment of the frontal functions and of the autobiographical recall capacities of Senator Pinochet with the latter's consent. This letter has been executed so far as it can be by inviting Senator Pinochet's consent. He has declined. There is accordingly nothing more by way of execution to be done.

46. As indicated, I am enclosing a copy of the letter which I have sent this morning to the Spanish Ambassador.

Letter to Swiss Ambassador:

47. The Secretary of State has today made a final decision not to issue an Authority to Proceed under section 7 of the Extradition Act 1989 in respect of the request of Switzerland for Senator Pinochet's extradition, received on 11 November 1998 and renewed on 7 October 1999.

48. Under section 7(4) of the Extradition Act 1989, the Secretary of State is required to refuse an Authority to Proceed if an order for the extradition of Senator Pinochet could not lawfully be made or would not in fact be made in accordance with the provisions of the Act. Under those provisions, extradition is available only in respect of extradition crimes. The Secretary of State has directed himself on this point in accordance with the decision of the House of Lords in R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the United Kingdom is not an extradition crime unless it was punishable in the United Kingdom at the date when it is alleged to have been committed. Torture outside the United Kingdom and conspiracy to torture outside the United Kingdom first became punishable in the United Kingdom on 29 September 1988 when section 134 of the Criminal Justice Act 1988 came into force.

49. The requirement that offences alleged in an extradition request should be punishable under the law of the requested state is of course reflected in the European Convention on Extradition. None of the offences alleged in the extradition requests of Switzerland are alleged to have been committed after that date.

50. If the Secretary of State had regarded the extradition request of Switzerland as disclosing extradition crimes, he would nevertheless have refused to issue an Authority to Proceed in this case because he is satisfied that Senator Pinochet is unfit to stand trial and that there is no likelihood of significant improvement. He has today decided on that ground that he will not order the extradition of Senator Pinochet to Spain. It appears to him that even had the request of Switzerland disclosed extradition crimes Senator Pinochet's unfitness to stand trial would have precluded his extradition to Switzerland for the same reasons as it precluded his extradition to Spain. The enclosed copy of my letter this morning to the Spanish Ambassador sets those reasons out.

51. In these circumstances, the question whether Senator Pinochet could claim state immunity in respect of the offences alleged against him does not arise.

52. As indicated, I am enclosing a copy of the letter which I have sent this morning to the Spanish Ambassador.

Letter to French Ambassador:

53. The Secretary of State has today made a final decision not to issue an Authority to Proceed under section 7 of the Extradition Act 1989 in respect of the requests of France for Senator Pinochet's extradition, transmitted on 13 November 1998 and 4 February 1999.

54. Under section 7(4) of the Extradition Act 1989, the Secretary of State is required to refuse an Authority to Proceed if an order for the extradition of Senator Pinochet could not lawfully be made or would not in fact be made in accordance with the provisions of the Act. Under those provisions, extradition is available only in respect of extradition crimes. The Secretary of State has directed himself on this point in accordance with the decision of the House of Lords in R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the United Kingdom is not an extradition crime unless it was punishable in the United Kingdom at the date when it is alleged to have been committed. Torture outside the United Kingdom and conspiracy to torture outside the United Kingdom first became punishable in the United Kingdom on 29 September 1988 when section 134 of the Criminal Justice Act 1988 came into force.

55. The requirement that offences alleged in an extradition request should be punishable under the law of the requested state is of course reflected in the European Convention on Extradition. None of the offences alleged in the extradition requests of France are alleged to have been committed after that date.

56. If the Secretary of State had regarded the extradition requests of France as disclosing extradition crimes, he would nevertheless have refused to issue an Authority to Proceed in this case because he is satisfied that Senator Pinochet is unfit to stand trial and that there is no likelihood of significant improvement. He has today decided on that ground that he will not order the extradition of Senator Pinochet to Spain. It appears to him that, even had the requests of France disclosed extradition crimes, Senator Pinochet's unfitness to stand trial would have precluded his extradition to France for the same reasons as it precluded his extradition to Spain. The enclosed copy of my letter this morning to the Spanish Ambassador sets those reasons out.

57. In these circumstances, the question whether Senator Pinochet could claim state immunity in respect of the offences alleged against him does not arise.

58. A letter of request of 22 February from Judge Le Loire sought a further medical examination of Senator Pinochet. That request was forwarded to Senator Pinochet's legal representatives on 29 February. They confirm that he does not propose to comply.

59. As indicated, I am enclosing a copy of the letter which I have sent this morning to the Spanish Ambassador.

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