EXTRADITION
The Political Offence Exception to Extradition – The Irish Experience
CATHERINE COSGRAVE*
Introduction
Extradition has always been an essential component of international co-operation in the field of criminal law. As the practice renders an individual liable to be delivered out of the jurisdiction for the purpose of standing trial or serving a sentence, requested states consider carefully the circum-stances of the case before them and the consequences that may ensue if extradition is granted. Certain norms are generally followed but despite the obvious international dimension there are no binding rules and extra-dition is very much a matter of state practice.
This article examines the law relating to the controversial practice of states traditionally declining to extradite in cases concerning political offenders. Whilst the issue has recently been the focus of much attention in other jurisdictions, 1 there are also developments occurring nationally and this article will focus particularly on the Irish state practice. A brief look is taken at the principle in general international law before turning attention to the jurisprudence of the Irish courts. The influence of European devel-opments, particularly in relation to terrorism, are also considered. It con-cludes by speculating on the impact on state practice of the European Convention Relating to Extradition between the Member States of the European Union, 1996, which Ireland is expected to ratify in due course. Extradition and the Political Offence Exception in International Law
Extradition is the formal surrender of a person by a state to another state for prosecution or punishment 2 and is viewed as an important aspect of mutual legal assistance in criminal matters between states. Under interna-tional law there is neither a duty to extradite nor an obligation to prosecute if extradition is refused. Similarly, there are no constraints upon a state's freedom to extradite. 3 Extradition is therefore considered to be solely a matter of agreed treaty practice and procedure worked out between states in their relations with one another. 4 Any agreed duty to extradite is usu-ally subject to a number of exceptions, the most controversial of which is the ' political offence exception' , which refers to the practice, adopted by most states, of refusing to extradite individuals for political crimes. 5 It must be noted that general acceptance of this principle is limited to mere recognition of the principle in international law, for there are no common standards as to the practical application of the rule and there is no univer-sally agreed definition of the term ' political offence. ' 6
The history of the political offence exception to extradition has been well documented and the modern concept of the exception has been traced to the early nineteenth century. Prior to then, extradition arrangements were largely intended to ensure that perpetrators of offences against the state were surrendered. However, following the rise of liberal ideology and in-creased public opposition to the extradition of political offenders, newly emerging democracies felt compelled to protect political dissidents and rebels. Belgium gave legislative expression to this idea by their Extradi-tion Act, 1933 7 and the exception soon became the norm in western extra-dition treaties.
Throughout the development of politico-legal theory, various rationales for the political offence exception have been expounded. In particular, two objectives have featured strongly: to protect the interests of the of-fender and also to protect the interests of the states concerned. 8 First, ex-tradition raises humanitarian concerns that the offender may be exposed to an unfair trial in the requesting state upon return, either through inad-equate safeguards being utilised or by being exposed to ' victor's justice. ' Secondly, there is the desire of states to remain politically neutral regard-ing the internal affairs of the requesting state. In addition, owing to the local character of political crimes there is no mutual interest in their sup-pression given the absence of threat to the international public order.
However, a shift in outlook during the latter half of the twentieth century has increasingly called into question the apparent logic of these rationales and Van den Wijngaert pertinently asks:
" Are political offenders always likely to be subjected to an unfair and partial trial? Is the non-extradition of political offenders always to be considered as an act of neutrality, or on the contrary, is it an effective support to political adversaries of the requested state? Is the relative anti-social character of political crimes to be taken for granted?" 9
The conditions of modern society are thought to have altered dramatically since the political offence exception emerged. In an effort to avoid a rep-etition of the atrocities of World War II, some states, particularly in Eu-rope, resolved to create an ' ever closer union' 10 and co-operate in all matters of mutual concern. The issue of crime has been placed on this agenda; given the similarity between, and the sharing of, political institutions, the increasingly transnational nature of criminal activity is thought to pose a threat to the community as a whole and is not just the concern of the state against which political activity may be directed. 11 Furthermore, some states pride themselves on guaranteeing respect for human rights 12 and there-fore the issue of unfair trial should, in theory, not arise. This respect for human rights also displays concern for the rights of individuals who are the victims of indiscriminate violence. In addition, the exception was for-mulated during an era which identified the political offender with the lib-eral revolutionary and was designed to protect those committed to the cause of democracy. Yet the exception as incorporated in law was of general scope and failed to take into account the fact that it would also afford protection to those intent on destroying democracy.
This combination of factors has led to an increasing reluctance on the part of some states to afford protection to political offenders who do not work within the democratic framework to express their differences and achieve change. What follows is an examination of the Irish governmental and judicial approach to the ' political offence exception' in extradition law.
The History of Extradition in Ireland
13 Prior to 1964, extradition in Ireland was based on the system which had prevailed before the establishment of the Irish Free State, namely the back-ing of warrants procedure, 14 whereby suspected criminals were taken into custody and handed over to the requesting authorities. This practice was denounced by the Supreme Court in The State (Quinn) v. Ryan 15 where it was held that section 29 of the Petty Sessions (Ireland) Act, 1851 was unconstitutional because it provided for the transfer of suspects out of the jurisdiction without an opportunity to challenge the validity of the war-rant. As a result, new legislation providing adequate safeguards was re-quired and the Extradition Act, 1965 was introduced. 16 Part II of the Act deals with extradition to all countries other than the U. K. and is modelled on the European Convention on Extradition, 1957 (E. C. E.). 17 Part III deals with extradition to the U. K. and, following the pre-1922 practice, pro-vides for more informal arrangements. Both parts incorporate an excep-tion in respect of political offences. The constitutional issues raised by the Ryan case in relation to the pre-1965 procedure were addressed by sec-tions 47-50 of the Act. A person, the subject of an extradition request, must be brought before the Irish courts where he will be informed of his right to apply for a writ of habeas corpus or an order directing his release if the offence mentioned in the warrant is a political offence or an offence connected with a political offence. 18 A similar provision applies to other countries under section 11. 19
Defining Political Offences: Fluctuating Governmental and Judicial Attitudes
The Act provides no definition of what constitutes a ' political offence' 20 and it thus falls to the courts to decide on the precise meaning. In particu-lar, the question of whether acts of ' terrorism' are to be considered as political crimes for the purposes of extradition has posed a fundamental legal problem for the Irish courts. The extradition of political offenders in Ireland has demonstrated itself to be highly controversial for, with the exception of Bourke v. Attorney General, 21 all the Irish cases concerning the political offence exception have involved offences arising out of the conflict in Northern Ireland. 22 A fundamental characteristic of the Irish case law is that there has been little consistency in the approach taken by the judiciary.
(a) The 1970s: judicial endorsement of the political offence exception Section 11 of the 1965 Act was first interpreted in The State (Magee) v. O' Rourke. 23 The case involved the issuing of a warrant in Northern Ire-land in respect of various offences, including housebreaking, driving with-out insurance and assault. In his application for an order of habeas corpus the defendant confessed to the court that he had been involved in an I. R. A. raid on a military barracks and he feared that it was for this offence he would be prosecuted. O' Dálaigh C. J. held:
" there can be little room for doubt that his action falls either within the category of ' political offence' or of ' offence connected with a political offence' . . . . Magee has clearly brought himself within the terms of s. 50( 2)( b)." 24
This was followed by Burns v. Attorney General, 25 where the question arouse as to whether knowingly storing explosives for use by the I. R. A. could be classified as a political offence. Having noted that the phrase ' political offence' is not defined in the 1965 Act, Finlay J. considered and applied the test laid down in the early English case of Re Castioni, 26 as to whether the act was done " in furtherance or done with the intention of assistance as a sort of overt act in the course of acting in a political matter, a political rising, or dispute between two parties in the state as to which is to have the government in its hands." He concluded: " It is undoubtedly true that the safekeeping of these explosives in the circumstances . . . was connected with their ultimate use and could be said to be connected with either murder or sabotage. . . . Applying that test . . . if either murder or sabotage by an organisa-tion such as the I. R. A. is to be a political offence, it seems to me to inevitably follow that the safekeeping of explosives for an organisa-tion attempting to overthrow the state by violence is . . . an offence of a political character." 27
In McLoughlin v. Attorney General 28 Finlay P. again reached the same conclusion in respect of a woman who had allegedly lured a number of army personnel to their death:
" There can be no doubt that even murder, and even such a dastardly murder as this . . . if carried out by or on behalf of an organisation which seeks to overthrow the Government of its country by force is a political offence." 29
Motivation was clearly a key element in politicising activity which ordi-narily would have been considered to be common crime. The interpreta-tion of the political offence exception in this way was accepted for the following decade and nearly every request thereafter concerning persons involved in paramilitary offences failed, 30 despite the voicing of some doubt that section 50 had been intended to give immunity to terrorist ac-tivity. 31 (b) Constitutional concerns: a binding rule of international law? Not surprisingly, in the context of intensifying violence in Northern Ire-land these decisions gave rise to increased governmental concern in the U. K. and indeed embarrassment in Ireland. 32 These concerns were ex-pressed in a joint communiqué following the Sunningdale Conference in 1973, where it was agreed that problems of considerable legal complexity were involved and that, as a matter of extreme urgency, the most effective means of dealing with political offenders would have to be addressed.
Thus the U. K. and Irish governments jointly set up a Law Enforcement Commission 33 to suggest possible solutions to the problem. Having con-sidered various options, including the establishment of an all-Ireland court or mixed courts, agreement was reached on the need for increased extra-territorial jurisdiction in respect of certain terrorist-type offences. Both governments introduced legislation 34 to confer jurisdiction on the courts in Northern Ireland and the Republic of Ireland to try offenders accused of committing serious crimes of violence outside the jurisdiction in which they are apprehended.
However, agreement could not be reached on the more pressing issue of extradition or, rather, non-extradition. It was proposed to amend the exist-ing law in such a way that certain crimes of violence would no longer be regarded as ' political' for the purposes of extradition. The Irish members of the Commission opposed limiting the scope of the political exception in this way. In their view non-extradition of political offenders was a gen-erally recognised principle of international law and departure from this rule would be both contrary to Article 29( 3) of the Constitution 35 and a breach of Ireland's obligations under the E. C. E. The U. K. members ac-knowledged that the political offence exception is generally accepted in extradition acts and treaties but rejected the proposition that it was an absolute restriction on legislative competence or even a principle of inter-national law. Ironically, the Irish case of The State (Duggan) v. Tapley 36 was cited in support of their position.
The question as to whether the political offence exception is a binding rule under international law and the soundness of the views expressed by the members of the Commission have both been the subject of much com-ment. Most commentators 37 and cases 38 suggest that the political offence question is a matter of state practice and not a general principle of interna-tional law.
" From a legal point of view there is no rule of international law prohibiting extradition of political offenders. . . . Consequently there is no legal objection to the formulation of exceptions to the political offence exception, as contemplated in the framework of the British-Irish Law Enforcement Commission . . . with respect to the suppres-sion of political terrorism." 39
This would seem to suggest that the U. K. had the stronger argument. How-ever, the Irish government accepted the views of its delegation. When the European Convention on the Suppression of Terrorism, 1977 was intro-duced, significantly qualifying the scope of the political offence exception, Ireland was one of only two western European states to refuse to sign, citing constitutional difficulties as the reason. 40 It could be argued that the failure to agree reflected the complexity of the issue but it is more widely believed that the Irish objections were more of a political, as op-posed to a legal, nature. 41
(c) The 1980s: a shift in attitude Up to this point we have seen that all politically motivated offenders were deemed to be entitled to claim the benefit of the political offence excep-tion. However, with growing concern over the increased used of indis-criminate violence against civilian targets, the 1980s saw a change in judicial attitude to extradition cases, particularly with regard to the defini-tion and scope of the political offence exception. Whilst the outcome of more recent cases are similar, the reasoning behind the decisions has often been inconsistent. Factors influencing the courts' decisions have included, inter alia, the reasonableness of the activity, the proximity of the offence to the alleged political aim, the proportionality of the means to the desired end and constitutional concerns. 42
Initial signs of a change in opinion became apparent in the case of Hanlon v. Fleming. 43 The applicant, charged with the theft of explosives, resisted extradition claiming that the offence was political in nature. Henchy J. was of the opinion that that even if the explosive material had been in-tended for use by the I. R. A. it did not necessarily follow that the accused would be exempt from extradition on the ground that the offence charged was a political offence. The question was reserved for re-consideration in an " appropriate case." 44 In the case of McGlinchey v. Wren, 45 involving an extradition request in respect of the person charged with the murder of an elderly postmistress, the High Court rejected the claim that the offence was political in nature. Whilst this claim was abandoned on appeal, the Supreme Court availed of the opportunity to express an opinion. O' Higgins C. J. commented:
" . . . the judicial authorities on the scope of [political] offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations, or by individuals or groups of individuals, is often the antithesis of what could be reasonably be regarded as political, ei-ther in itself or its concessions." 46
In what would appear to be a remarkable turn-around of opinion from the earlier cases of the 1970s which emphasised the motivation of the offender, the test now became " what reasonable, civilised people would regard as political activity." This would depend on the particular circumstances of each case, which O' Higgins C. J. was of the firm opinion did not arise in the case before him. Rejecting concerns that, if extradited, the applicant would be prosecuted in respect of other offences which were political in nature he stated:
" . . . the court is invited to assume that because of the widespread violence organised by paramilitary groups in Northern Ireland, any charge associated with terrorist activity should be regarded as a charge in respect of a political offence or an offence connected with a po-litical offence. I am not prepared to make any such assumption. The excusing per se of murder and of offences involving vio-lence, and the infliction of human suffering by, or at the behest of, self-ordained arbiters, are the very antithesis of the ordinances of Christianity and civilisation and of the basic requirements of politi-cal activity." 47
Whilst many would undoubtedly agree with the views expressed by the Chief Justice, Campbell observes that from a legal point of view the terms ' political offence' and ' terrorist activity' were used without adequate or, indeed, any definition. He concludes that " if what was being attempted was the formulation of a test for separating the two forms of activity, fur-ther clarification was necessary." 48 Furthermore, O' Higgins C. J. couched the test in terms of the objective " reasonable" standard; yet, the definition of politics is inherently subjective 49 and there is a danger that the outcome of a case could depend on the member of the Bench who happens to be sitting on a particular day.
In Shannon v. Fanning 50 the issues again arose for consideration and the idea that terrorist crime is not political in nature was repeated. O' Higgins C. J. stated:
" Apart from the fact that . . . the Provisional IRA have abjured nor-mal political activity in favour of violence and terrorism, the cir-cumstances disclosed as to the murders in question here were so brutal, cowardly and callous that it would be a distortion of lan-guage if they were to be accorded the status of political offence." 51
McCarthy and Hederman JJ. delivered concurring judgments, although their reasoning seemed to be based more on the motivation of the offender than the reasonableness or the proportionality of the offence in question. Since the applicant had denied participation in the alleged crimes it seemed logical to conclude that it was not possible to establish that his motives were political. Thus, whilst all members of the Bench had curtailed the scope of the exception, they failed to agree on a uniform test.
Another change of direction became apparent in Quinn v. Wren 52 where the Supreme Court formulated the ' unconstitutional' test. Quinn had been charged with fraudulently obtaining £600. Resisting an extradition order, he asserted that the money had been raised with the aim of securing arms and explosives for the I. N. L. A. In determining whether the offence was political as claimed, the court looked both at the circumstances of the crime and the objectives of the I. N. L. A. campaign. The aims of the organisation were described as including the establishment of a thirty-two county re-public by force of arms, the achievement of which was held:
" . . . to necessarily involve the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it: see Articles 15.6 and 39. To interpret the words ' political offence' con-tained in s. 50 of the Act of 1965 so as to grant immunity or protec-tion to a person charged with an offence directly intended to further that objective would be to give the section a patently unconstitu-tional construction." 53
Finlay C. J. thus concluded that immunity from extradition could not be granted to an individual intent on overthrowing the Constitution and the organs of the state which established it. This was certainly a novel ap-proach to the political offence; indeed, it directly contradicted the views which had been expressed just a decade earlier by the Irish representatives of the Law Enforcement Commission. However, it is generally believed that the reasoning in the case is questionable. As Gilbert observes, the mere fact that the offender may also have some cause for dispute with the asylum state, does not necessarily mean that the offence in question is not political regarding the requesting state. 54 Nonetheless, the case was fol-lowed in Russell v. Fanning 55 where the applicant, convicted of the at-tempted murder of an R. U. C. officer, had escaped from the Maze prison during a mass breakout. It was claimed that the various offences arising out of the escape were political as he participated for the purpose of assist-ing in the I. R. A. campaign to end British rule in the North and thereby reintegrate the territory of Ireland. Finlay C. J. reiterated his views in Quinn that an interpretation of section 50 which conferred immunity from extra-dition on a person in relation to an offence intended to further an unconsti-tutional objective was not one which the Oireachtas could be presumed to have intended:
" Article 6 . . . makes quite clear that, subject to the provisions of the Constitution, decisions as to the method by which the national terri-tory is to be reintegrated are matters for the Government subject to the control of Dáil Éireann, . . . Any person or group of persons is, of course entitled to advocate a particular policy of reintegration, whether that is or is not consistent with the existing government policy from time to time. For a person or group of persons, however, to take over or seek to take over the carrying out of a policy of reintegration decided upon by himself or themselves . . . is to sub-vert the Constitution." 56
These cases represent the high water mark of judicial commitment to lim-iting the scope of the exception but the more recent case of Finucane v. McMahon 57 effectively signalled the end to this.
Finucane had been convicted in Northern Ireland of possession of fire-arms and ammunition with intent to endanger life or property. He subse-quently escaped prison and was re-arrested in the Republic. He sought release on the basis that the warrants were for offences which were politi-cal or connected with political offences, having been committed on behalf of the I. R. A. The High Court held that the offences could not be so classi-fied on the basis of the recent authorities. Despite the almost identical factual situation in Russell the Supreme Court, 58 on appeal, refused to follow its earlier decision and directed the prisoner's release. Walsh J. delivered the leading judgment. Whilst affirming that section 50 could not be construed as granting exemption from extradition for any offence as-serted to be political if the purpose of the offence was to subvert the Con-stitution, 59 he held that in determining whether the offence was governed by the political exemption of section 50( 2) the courts must have regard to all the facts and circumstances of a case before them. He conducted an in depth review of the political and historical background of extradition in Ireland, 60 and concluded:
" . . . the Court cannot draw the inference that it was the intention of the Oireachtas that the provisions relating to the political exemption of the Act of 1965 should not apply to persons charged with politi-cally motivated offences of violence when the objective of such of-fences was to secure the ultimate unity of the country. It is, of course, true that it has always been the policy of succes-sive Irish Governments to endeavour to ensure that reunification is brought about by peaceful means. . . . The fact that the policy or activities followed by persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the Govern-ment of Ireland is not in my view sufficient to equate it to a policy to overthrow this State or to subvert the Constitution of the State . . . [nor] to deprive anybody . . . of the benefit of the statutory provi-sions dealing with the political offence exception." 61
In the course of his judgment Walsh J. referred to the Extradition (Euro-pean Convention on the Suppression of Terrorism) Act, 1987 62 – which considerably diminished the scope of the political offence exception – in order to draw a distinction between terrorism and politically motivated offences. Relying on the explanatory report accompanying the Conven-tion he formed the view that one of the underlying purposes of the Con-vention is to enable derogation from the traditional principle of refusing to extradite political offenders in respect of certain acts of violence. Use of violence therefore would not necessarily take an act out of the political offence exception but certain forms of indiscriminate violence might. At the time commentators felt that his judgment had " gone a considerable way to restoring the judicial attitude which had prevailed in the 1970s" . 63 However the continuing validity of this view must be questioned in light of recent developments at the national level and within the regional con-text of Europe. Political Offences in a Regional Context: Impact of European Devel-opments on Irish Law and Policy
Traditionally, European experience relating to the political offence excep-tion was based on Article 3 of the European Convention on Extradition, 1957. 64 However, since its drafting there is evidence in international law, reflected in national practice, of a willingness to confine the absolutist nature of the exception as originally proposed. Responding in particular to transnational criminal activities that threaten the international community as a whole, the gist of judicial and political reaction has been to curb the scope of the exception and it has come to be accepted that there are certain types of behaviour for which individuals should not be allowed to escape justice by merely crossing a border. Van den Wijngaert writes:
" The political offence exception has appeared overly broad because it is . . . applicable to very serious crimes which, although commit-ted for political reasons, are so dangerous to international public order that extradition should not be excluded, simply because of their being politically motivated." 65
There is now a clearly established trend to exclude, by way of ' negative definitions' , certain behaviours from the category of political offences. It is believed that this technique has the merit of imposing the clarity which was lacking in this field, 66 given the widely diverging state practices. The clearest example of these developments in Europe concerns international terrorism.
(a) The Council of Europe Convention on the Suppression of Terrorism, 1977
This Convention seeks to harmonise the national response to crime in Europe. Article 1 places a duty on states to render non-political a specified list of offences thought to be typically used by terrorists, such as kidnap-ping, the taking of hostages or unlawful detention.*B. C. L.( N. U. I.), LL. M.( Edin.), Degree I Student at the King's Inns. 1 See, for example, T. v. Home Secretary [1996] 2 W. L. R. 766. 2 Art. 1( a), Harvard Draft Convention on Extradition, 1935; Rutherford and Bone (eds.), Osborn's Concise Law Dictionary (8th ed., London, 1993) p. 140. 3 Stein, Extradition, Encyclopaedia of International Law (Vol. 8) p. 222. 4 infra. 5 For greater detail see Van den Wijngaert C., The Political Offence Exception to Extradi-tion (The Netherlands, 1980). An extensive list of those countries which have incorpo-rated the principle into national legislation is provided at p. 1. 6 ibid. 7 Art. 6. 8 Gilbert G. S., Aspects of Extradition Law (London, 1991) p. 113; Van den Wijngaert C., op. cit., pp. 2– 3. 9 op. cit., p. 4. 10 See Preamble of the Treaty of Rome, 1957 and objectives of Treaty of Rome, 1992. 11 See generally Vermeulen G. and Vander Beken T., 'New Conventions on Extradition: Analysis and Evaluation' (1997) 15 Dick. J. Int' l. L. 265. 12 See, for example, The Universal Declaration of Human Rights, 1948; The European Convention on Human Rights, 1950. 13 See generally Hogan G. and Walker C., Political Violence and the Law in Ireland (Man-chester, 1989) pp. 280– 281. 14 ss. 12– 14 of the Indictable Offences Act, 1848 and ss. 27– 30 of the Petty Sessions (Ire-land) Act, 1851. 15 [1965] I. R. 70. 16 See generally O'Higgins P., 'The Irish Extradition Act 1965' (1966) 15 I. C. L. Q. 369. 17 The enactment of the 1965 Act facilitated Ireland's accession to the European Convention on Extradition, 1957 (E. C. E.) that was signed in Paris, December 13, 1956 and entered into force April 18, 1960. The Convention was not signed and ratified by Ireland until May 2, 1966. 18 The pertinent element of s. 50 provides: "( 1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section. "( 2) A direction under this section may be given by the High Court where the Court is of the opinion that:(a) the offence to which the warrant relates is – (i) a political offence or an offence connected with a political offence, or . . . (b) there are substantial grounds for believing that the person specified in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence. . . ." 19 Section 11( 1) provides, in terms that are identical to Art. 3( 1) of the E. C. E, that extradi-tion shall not be granted for an offence which is a political offence or an offence con-nected with a political offence. 20 The Act provides a 'negative definition' in s. 3( 1): "[ a] political offence does not in-clude the taking or attempted taking of the life of a Head of State or a member of his family". 21 [1972] I. R. 36. 22 For greater detail see Forde M., Extradition Law in Ireland (2nd ed., Dublin, 1995) Chap. 9. 23 [1971] I. R. 205. 24 ibid., p. 211. 25 Burns v. Attorney General unreported, High Court, Finlay J., February 4, 1974. 26 [1891] 1 Q. B. 149, 159. 27 p. 5. 28 unreported, High Court, Finlay P., December 5, 1974. 29 p. 5. 30 See for example, O' Neill v. Attorney General, The Times, July 30, 1974, Mullholland v. Attorney General, Daily Telegraph, February 4, 1975, McCarry and Clarke v. Attorney General, The Irish Times, January 15, 1976, Gilhooley v. Attorney General, The Irish Times, June 4, 1976, Swords v. A. G., The Irish Times, December 22, 1977, O' Hagan and Herron v. Attorney General, The Irish Times, July 18, 1978, Quigley v. Attorney General, The Irish Times, July 22, 1980. Brief details of these cases are outlined in Hogan G. and Walker C., Political Violence and the Law in Ireland, op. cit., pp. 284– 5 and 303. 31 per Murnaghan J. in Manus and Doherty v. Attorney General, The Irish Times, March 23, 1977. 32 "I feel there is well nigh universal embarrassment in this country at the predicament at which our judges find themselves, being constrained as they are in extradition applica-tions to release persons accused of most serious crimes. The widespread embarrassment is compounded by the fact that the release of these fugitives is a matter of grave scandal in Northern Ireland where our fellow Irishmen have suffered so much in their persons and properties at the hand of these people." Patrick Cooney T. D., Minister for Justice speaking in Dáil Éireann, April 24, 1975. 33 Report of the Law Enforcement Commission, Cmnd. 5627; Prl. 3832. 34 Criminal Jurisdiction Act, 1975 (Britain); Criminal Law (Jurisdiction) Act, 1976 (Ire-land). 35 Art. 29( 3) provides that "Ireland accepts the generally recognised principles of interna-tional law as its rule of conduct in its relations with other States."36 (1951) 85 I. L. T. R. 22; 18 Int. L. Rep. 343. The Supreme Court held: "The attempt therefore to establish that the non-surrender of political refugees is a generally recog-nised principle of international law fails. The farthest that the matter can be put is that international law permits and favours the refusal of extradition of persons accused or convicted of offences of a political character but allows it to each State to exercise its own judgement as to whether it will grant or refuse extradition in such case and also as to the limitations which it will impose upon such provisions as exempt from extradi-tion." 37 Gilbert G. S., op cit., p. 117; Van den Wijngaert C., op. cit., pp. 42-48; Connolly A. M., 'Non-Extradition for Political Offences: A Matter of Legal Obligation or Simply A Policy Choice? ' (1982) 17 Ir. Jur. (n. s.) 59. 38 In the Trial of F. E. Steiner (1971) 74 Int'l. L. Rep. 478; The Spanish-German Extradi-tion Treaty Case [1925– 26] Ann. Dig. 308; The State (Duggan) v. Tapley, supra. 39 Van den Wijngaert C., op. cit., p. 46– 7.40 Hogan G. and Walker C., op. cit., p. 287. 41 McCall-Smith A. and Magee P., 'The Anglo-Irish Law Enforcement Report in Histori-cal and Political Context' [1975] Crim. L. Rev. 200, 211. 42 For a detailed discussion of the various approaches see Gilbert G. S., 'The Irish Interpre-tation of the Political Offence Exemption' (1992) 41 I. C. L. Q. 66. 43 [1981] I. R. 489. 44 ibid., p. 495. 45 [1982] I. R. 154. 46 [1982] I. R. 154, 159. 47 ibid., p. 160. 48 Campbell C., 'Extradition to Northern Ireland: Prospects and Problems' (1989) 52 M. L. R. 585. 49 Gilbert G. S., supra, p. 114, makes the point that for every ten people there will be at least ten different definitions of politics. 50 [1984] I. R. 569. 51 ibid., p. 581. 52 [1985] I. R. 322.53 [1985] I. R. 322, 337. 54 Gilbert G. S., supra, p. 77. 55 [1988] I. R. 505. 56 [1988] I. R. 505, 530. 57 [1990] 1 I. R. 165. 58 It is significant that the case came before a differently constituted Supreme Court. The retired Henchy J. had been replaced by Walsh J. and it is felt that "the importance of this change in personnel should not be underestimated": Delany H. and Hogan G., 'Anglo-Irish Extradition Viewed from an Irish Perspective' (1993) Public Law 93, 100 at n. 33. The authors interestingly note that Walsh J. when a Senior Counsel had been an Irish member of the Law Enforcement Commission which argued against limiting the scope of the political offence exception. 59 Quinn v. Wren, supra. 60 pp. 207– 215. 61 p. 216. 62 This Act was not applied in the case since the proceedings began prior to its coming into force. 63 Delany H. and Hogan G., op. cit., p. 101.64 supra. 65 op. cit., p. 197. 66 Connolly A. M., 'Ireland and the Political Offence: Exception to Extradition' (1985) 12 Journal of Law and Society 153, 162.
CATHERINE COSGRAVE*
Introduction
Extradition has always been an essential component of international co-operation in the field of criminal law. As the practice renders an individual liable to be delivered out of the jurisdiction for the purpose of standing trial or serving a sentence, requested states consider carefully the circum-stances of the case before them and the consequences that may ensue if extradition is granted. Certain norms are generally followed but despite the obvious international dimension there are no binding rules and extra-dition is very much a matter of state practice.
This article examines the law relating to the controversial practice of states traditionally declining to extradite in cases concerning political offenders. Whilst the issue has recently been the focus of much attention in other jurisdictions, 1 there are also developments occurring nationally and this article will focus particularly on the Irish state practice. A brief look is taken at the principle in general international law before turning attention to the jurisprudence of the Irish courts. The influence of European devel-opments, particularly in relation to terrorism, are also considered. It con-cludes by speculating on the impact on state practice of the European Convention Relating to Extradition between the Member States of the European Union, 1996, which Ireland is expected to ratify in due course. Extradition and the Political Offence Exception in International Law
Extradition is the formal surrender of a person by a state to another state for prosecution or punishment 2 and is viewed as an important aspect of mutual legal assistance in criminal matters between states. Under interna-tional law there is neither a duty to extradite nor an obligation to prosecute if extradition is refused. Similarly, there are no constraints upon a state's freedom to extradite. 3 Extradition is therefore considered to be solely a matter of agreed treaty practice and procedure worked out between states in their relations with one another. 4 Any agreed duty to extradite is usu-ally subject to a number of exceptions, the most controversial of which is the ' political offence exception' , which refers to the practice, adopted by most states, of refusing to extradite individuals for political crimes. 5 It must be noted that general acceptance of this principle is limited to mere recognition of the principle in international law, for there are no common standards as to the practical application of the rule and there is no univer-sally agreed definition of the term ' political offence. ' 6
The history of the political offence exception to extradition has been well documented and the modern concept of the exception has been traced to the early nineteenth century. Prior to then, extradition arrangements were largely intended to ensure that perpetrators of offences against the state were surrendered. However, following the rise of liberal ideology and in-creased public opposition to the extradition of political offenders, newly emerging democracies felt compelled to protect political dissidents and rebels. Belgium gave legislative expression to this idea by their Extradi-tion Act, 1933 7 and the exception soon became the norm in western extra-dition treaties.
Throughout the development of politico-legal theory, various rationales for the political offence exception have been expounded. In particular, two objectives have featured strongly: to protect the interests of the of-fender and also to protect the interests of the states concerned. 8 First, ex-tradition raises humanitarian concerns that the offender may be exposed to an unfair trial in the requesting state upon return, either through inad-equate safeguards being utilised or by being exposed to ' victor's justice. ' Secondly, there is the desire of states to remain politically neutral regard-ing the internal affairs of the requesting state. In addition, owing to the local character of political crimes there is no mutual interest in their sup-pression given the absence of threat to the international public order.
However, a shift in outlook during the latter half of the twentieth century has increasingly called into question the apparent logic of these rationales and Van den Wijngaert pertinently asks:
" Are political offenders always likely to be subjected to an unfair and partial trial? Is the non-extradition of political offenders always to be considered as an act of neutrality, or on the contrary, is it an effective support to political adversaries of the requested state? Is the relative anti-social character of political crimes to be taken for granted?" 9
The conditions of modern society are thought to have altered dramatically since the political offence exception emerged. In an effort to avoid a rep-etition of the atrocities of World War II, some states, particularly in Eu-rope, resolved to create an ' ever closer union' 10 and co-operate in all matters of mutual concern. The issue of crime has been placed on this agenda; given the similarity between, and the sharing of, political institutions, the increasingly transnational nature of criminal activity is thought to pose a threat to the community as a whole and is not just the concern of the state against which political activity may be directed. 11 Furthermore, some states pride themselves on guaranteeing respect for human rights 12 and there-fore the issue of unfair trial should, in theory, not arise. This respect for human rights also displays concern for the rights of individuals who are the victims of indiscriminate violence. In addition, the exception was for-mulated during an era which identified the political offender with the lib-eral revolutionary and was designed to protect those committed to the cause of democracy. Yet the exception as incorporated in law was of general scope and failed to take into account the fact that it would also afford protection to those intent on destroying democracy.
This combination of factors has led to an increasing reluctance on the part of some states to afford protection to political offenders who do not work within the democratic framework to express their differences and achieve change. What follows is an examination of the Irish governmental and judicial approach to the ' political offence exception' in extradition law.
The History of Extradition in Ireland
13 Prior to 1964, extradition in Ireland was based on the system which had prevailed before the establishment of the Irish Free State, namely the back-ing of warrants procedure, 14 whereby suspected criminals were taken into custody and handed over to the requesting authorities. This practice was denounced by the Supreme Court in The State (Quinn) v. Ryan 15 where it was held that section 29 of the Petty Sessions (Ireland) Act, 1851 was unconstitutional because it provided for the transfer of suspects out of the jurisdiction without an opportunity to challenge the validity of the war-rant. As a result, new legislation providing adequate safeguards was re-quired and the Extradition Act, 1965 was introduced. 16 Part II of the Act deals with extradition to all countries other than the U. K. and is modelled on the European Convention on Extradition, 1957 (E. C. E.). 17 Part III deals with extradition to the U. K. and, following the pre-1922 practice, pro-vides for more informal arrangements. Both parts incorporate an excep-tion in respect of political offences. The constitutional issues raised by the Ryan case in relation to the pre-1965 procedure were addressed by sec-tions 47-50 of the Act. A person, the subject of an extradition request, must be brought before the Irish courts where he will be informed of his right to apply for a writ of habeas corpus or an order directing his release if the offence mentioned in the warrant is a political offence or an offence connected with a political offence. 18 A similar provision applies to other countries under section 11. 19
Defining Political Offences: Fluctuating Governmental and Judicial Attitudes
The Act provides no definition of what constitutes a ' political offence' 20 and it thus falls to the courts to decide on the precise meaning. In particu-lar, the question of whether acts of ' terrorism' are to be considered as political crimes for the purposes of extradition has posed a fundamental legal problem for the Irish courts. The extradition of political offenders in Ireland has demonstrated itself to be highly controversial for, with the exception of Bourke v. Attorney General, 21 all the Irish cases concerning the political offence exception have involved offences arising out of the conflict in Northern Ireland. 22 A fundamental characteristic of the Irish case law is that there has been little consistency in the approach taken by the judiciary.
(a) The 1970s: judicial endorsement of the political offence exception Section 11 of the 1965 Act was first interpreted in The State (Magee) v. O' Rourke. 23 The case involved the issuing of a warrant in Northern Ire-land in respect of various offences, including housebreaking, driving with-out insurance and assault. In his application for an order of habeas corpus the defendant confessed to the court that he had been involved in an I. R. A. raid on a military barracks and he feared that it was for this offence he would be prosecuted. O' Dálaigh C. J. held:
" there can be little room for doubt that his action falls either within the category of ' political offence' or of ' offence connected with a political offence' . . . . Magee has clearly brought himself within the terms of s. 50( 2)( b)." 24
This was followed by Burns v. Attorney General, 25 where the question arouse as to whether knowingly storing explosives for use by the I. R. A. could be classified as a political offence. Having noted that the phrase ' political offence' is not defined in the 1965 Act, Finlay J. considered and applied the test laid down in the early English case of Re Castioni, 26 as to whether the act was done " in furtherance or done with the intention of assistance as a sort of overt act in the course of acting in a political matter, a political rising, or dispute between two parties in the state as to which is to have the government in its hands." He concluded: " It is undoubtedly true that the safekeeping of these explosives in the circumstances . . . was connected with their ultimate use and could be said to be connected with either murder or sabotage. . . . Applying that test . . . if either murder or sabotage by an organisa-tion such as the I. R. A. is to be a political offence, it seems to me to inevitably follow that the safekeeping of explosives for an organisa-tion attempting to overthrow the state by violence is . . . an offence of a political character." 27
In McLoughlin v. Attorney General 28 Finlay P. again reached the same conclusion in respect of a woman who had allegedly lured a number of army personnel to their death:
" There can be no doubt that even murder, and even such a dastardly murder as this . . . if carried out by or on behalf of an organisation which seeks to overthrow the Government of its country by force is a political offence." 29
Motivation was clearly a key element in politicising activity which ordi-narily would have been considered to be common crime. The interpreta-tion of the political offence exception in this way was accepted for the following decade and nearly every request thereafter concerning persons involved in paramilitary offences failed, 30 despite the voicing of some doubt that section 50 had been intended to give immunity to terrorist ac-tivity. 31 (b) Constitutional concerns: a binding rule of international law? Not surprisingly, in the context of intensifying violence in Northern Ire-land these decisions gave rise to increased governmental concern in the U. K. and indeed embarrassment in Ireland. 32 These concerns were ex-pressed in a joint communiqué following the Sunningdale Conference in 1973, where it was agreed that problems of considerable legal complexity were involved and that, as a matter of extreme urgency, the most effective means of dealing with political offenders would have to be addressed.
Thus the U. K. and Irish governments jointly set up a Law Enforcement Commission 33 to suggest possible solutions to the problem. Having con-sidered various options, including the establishment of an all-Ireland court or mixed courts, agreement was reached on the need for increased extra-territorial jurisdiction in respect of certain terrorist-type offences. Both governments introduced legislation 34 to confer jurisdiction on the courts in Northern Ireland and the Republic of Ireland to try offenders accused of committing serious crimes of violence outside the jurisdiction in which they are apprehended.
However, agreement could not be reached on the more pressing issue of extradition or, rather, non-extradition. It was proposed to amend the exist-ing law in such a way that certain crimes of violence would no longer be regarded as ' political' for the purposes of extradition. The Irish members of the Commission opposed limiting the scope of the political exception in this way. In their view non-extradition of political offenders was a gen-erally recognised principle of international law and departure from this rule would be both contrary to Article 29( 3) of the Constitution 35 and a breach of Ireland's obligations under the E. C. E. The U. K. members ac-knowledged that the political offence exception is generally accepted in extradition acts and treaties but rejected the proposition that it was an absolute restriction on legislative competence or even a principle of inter-national law. Ironically, the Irish case of The State (Duggan) v. Tapley 36 was cited in support of their position.
The question as to whether the political offence exception is a binding rule under international law and the soundness of the views expressed by the members of the Commission have both been the subject of much com-ment. Most commentators 37 and cases 38 suggest that the political offence question is a matter of state practice and not a general principle of interna-tional law.
" From a legal point of view there is no rule of international law prohibiting extradition of political offenders. . . . Consequently there is no legal objection to the formulation of exceptions to the political offence exception, as contemplated in the framework of the British-Irish Law Enforcement Commission . . . with respect to the suppres-sion of political terrorism." 39
This would seem to suggest that the U. K. had the stronger argument. How-ever, the Irish government accepted the views of its delegation. When the European Convention on the Suppression of Terrorism, 1977 was intro-duced, significantly qualifying the scope of the political offence exception, Ireland was one of only two western European states to refuse to sign, citing constitutional difficulties as the reason. 40 It could be argued that the failure to agree reflected the complexity of the issue but it is more widely believed that the Irish objections were more of a political, as op-posed to a legal, nature. 41
(c) The 1980s: a shift in attitude Up to this point we have seen that all politically motivated offenders were deemed to be entitled to claim the benefit of the political offence excep-tion. However, with growing concern over the increased used of indis-criminate violence against civilian targets, the 1980s saw a change in judicial attitude to extradition cases, particularly with regard to the defini-tion and scope of the political offence exception. Whilst the outcome of more recent cases are similar, the reasoning behind the decisions has often been inconsistent. Factors influencing the courts' decisions have included, inter alia, the reasonableness of the activity, the proximity of the offence to the alleged political aim, the proportionality of the means to the desired end and constitutional concerns. 42
Initial signs of a change in opinion became apparent in the case of Hanlon v. Fleming. 43 The applicant, charged with the theft of explosives, resisted extradition claiming that the offence was political in nature. Henchy J. was of the opinion that that even if the explosive material had been in-tended for use by the I. R. A. it did not necessarily follow that the accused would be exempt from extradition on the ground that the offence charged was a political offence. The question was reserved for re-consideration in an " appropriate case." 44 In the case of McGlinchey v. Wren, 45 involving an extradition request in respect of the person charged with the murder of an elderly postmistress, the High Court rejected the claim that the offence was political in nature. Whilst this claim was abandoned on appeal, the Supreme Court availed of the opportunity to express an opinion. O' Higgins C. J. commented:
" . . . the judicial authorities on the scope of [political] offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations, or by individuals or groups of individuals, is often the antithesis of what could be reasonably be regarded as political, ei-ther in itself or its concessions." 46
In what would appear to be a remarkable turn-around of opinion from the earlier cases of the 1970s which emphasised the motivation of the offender, the test now became " what reasonable, civilised people would regard as political activity." This would depend on the particular circumstances of each case, which O' Higgins C. J. was of the firm opinion did not arise in the case before him. Rejecting concerns that, if extradited, the applicant would be prosecuted in respect of other offences which were political in nature he stated:
" . . . the court is invited to assume that because of the widespread violence organised by paramilitary groups in Northern Ireland, any charge associated with terrorist activity should be regarded as a charge in respect of a political offence or an offence connected with a po-litical offence. I am not prepared to make any such assumption. The excusing per se of murder and of offences involving vio-lence, and the infliction of human suffering by, or at the behest of, self-ordained arbiters, are the very antithesis of the ordinances of Christianity and civilisation and of the basic requirements of politi-cal activity." 47
Whilst many would undoubtedly agree with the views expressed by the Chief Justice, Campbell observes that from a legal point of view the terms ' political offence' and ' terrorist activity' were used without adequate or, indeed, any definition. He concludes that " if what was being attempted was the formulation of a test for separating the two forms of activity, fur-ther clarification was necessary." 48 Furthermore, O' Higgins C. J. couched the test in terms of the objective " reasonable" standard; yet, the definition of politics is inherently subjective 49 and there is a danger that the outcome of a case could depend on the member of the Bench who happens to be sitting on a particular day.
In Shannon v. Fanning 50 the issues again arose for consideration and the idea that terrorist crime is not political in nature was repeated. O' Higgins C. J. stated:
" Apart from the fact that . . . the Provisional IRA have abjured nor-mal political activity in favour of violence and terrorism, the cir-cumstances disclosed as to the murders in question here were so brutal, cowardly and callous that it would be a distortion of lan-guage if they were to be accorded the status of political offence." 51
McCarthy and Hederman JJ. delivered concurring judgments, although their reasoning seemed to be based more on the motivation of the offender than the reasonableness or the proportionality of the offence in question. Since the applicant had denied participation in the alleged crimes it seemed logical to conclude that it was not possible to establish that his motives were political. Thus, whilst all members of the Bench had curtailed the scope of the exception, they failed to agree on a uniform test.
Another change of direction became apparent in Quinn v. Wren 52 where the Supreme Court formulated the ' unconstitutional' test. Quinn had been charged with fraudulently obtaining £600. Resisting an extradition order, he asserted that the money had been raised with the aim of securing arms and explosives for the I. N. L. A. In determining whether the offence was political as claimed, the court looked both at the circumstances of the crime and the objectives of the I. N. L. A. campaign. The aims of the organisation were described as including the establishment of a thirty-two county re-public by force of arms, the achievement of which was held:
" . . . to necessarily involve the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it: see Articles 15.6 and 39. To interpret the words ' political offence' con-tained in s. 50 of the Act of 1965 so as to grant immunity or protec-tion to a person charged with an offence directly intended to further that objective would be to give the section a patently unconstitu-tional construction." 53
Finlay C. J. thus concluded that immunity from extradition could not be granted to an individual intent on overthrowing the Constitution and the organs of the state which established it. This was certainly a novel ap-proach to the political offence; indeed, it directly contradicted the views which had been expressed just a decade earlier by the Irish representatives of the Law Enforcement Commission. However, it is generally believed that the reasoning in the case is questionable. As Gilbert observes, the mere fact that the offender may also have some cause for dispute with the asylum state, does not necessarily mean that the offence in question is not political regarding the requesting state. 54 Nonetheless, the case was fol-lowed in Russell v. Fanning 55 where the applicant, convicted of the at-tempted murder of an R. U. C. officer, had escaped from the Maze prison during a mass breakout. It was claimed that the various offences arising out of the escape were political as he participated for the purpose of assist-ing in the I. R. A. campaign to end British rule in the North and thereby reintegrate the territory of Ireland. Finlay C. J. reiterated his views in Quinn that an interpretation of section 50 which conferred immunity from extra-dition on a person in relation to an offence intended to further an unconsti-tutional objective was not one which the Oireachtas could be presumed to have intended:
" Article 6 . . . makes quite clear that, subject to the provisions of the Constitution, decisions as to the method by which the national terri-tory is to be reintegrated are matters for the Government subject to the control of Dáil Éireann, . . . Any person or group of persons is, of course entitled to advocate a particular policy of reintegration, whether that is or is not consistent with the existing government policy from time to time. For a person or group of persons, however, to take over or seek to take over the carrying out of a policy of reintegration decided upon by himself or themselves . . . is to sub-vert the Constitution." 56
These cases represent the high water mark of judicial commitment to lim-iting the scope of the exception but the more recent case of Finucane v. McMahon 57 effectively signalled the end to this.
Finucane had been convicted in Northern Ireland of possession of fire-arms and ammunition with intent to endanger life or property. He subse-quently escaped prison and was re-arrested in the Republic. He sought release on the basis that the warrants were for offences which were politi-cal or connected with political offences, having been committed on behalf of the I. R. A. The High Court held that the offences could not be so classi-fied on the basis of the recent authorities. Despite the almost identical factual situation in Russell the Supreme Court, 58 on appeal, refused to follow its earlier decision and directed the prisoner's release. Walsh J. delivered the leading judgment. Whilst affirming that section 50 could not be construed as granting exemption from extradition for any offence as-serted to be political if the purpose of the offence was to subvert the Con-stitution, 59 he held that in determining whether the offence was governed by the political exemption of section 50( 2) the courts must have regard to all the facts and circumstances of a case before them. He conducted an in depth review of the political and historical background of extradition in Ireland, 60 and concluded:
" . . . the Court cannot draw the inference that it was the intention of the Oireachtas that the provisions relating to the political exemption of the Act of 1965 should not apply to persons charged with politi-cally motivated offences of violence when the objective of such of-fences was to secure the ultimate unity of the country. It is, of course, true that it has always been the policy of succes-sive Irish Governments to endeavour to ensure that reunification is brought about by peaceful means. . . . The fact that the policy or activities followed by persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the Govern-ment of Ireland is not in my view sufficient to equate it to a policy to overthrow this State or to subvert the Constitution of the State . . . [nor] to deprive anybody . . . of the benefit of the statutory provi-sions dealing with the political offence exception." 61
In the course of his judgment Walsh J. referred to the Extradition (Euro-pean Convention on the Suppression of Terrorism) Act, 1987 62 – which considerably diminished the scope of the political offence exception – in order to draw a distinction between terrorism and politically motivated offences. Relying on the explanatory report accompanying the Conven-tion he formed the view that one of the underlying purposes of the Con-vention is to enable derogation from the traditional principle of refusing to extradite political offenders in respect of certain acts of violence. Use of violence therefore would not necessarily take an act out of the political offence exception but certain forms of indiscriminate violence might. At the time commentators felt that his judgment had " gone a considerable way to restoring the judicial attitude which had prevailed in the 1970s" . 63 However the continuing validity of this view must be questioned in light of recent developments at the national level and within the regional con-text of Europe. Political Offences in a Regional Context: Impact of European Devel-opments on Irish Law and Policy
Traditionally, European experience relating to the political offence excep-tion was based on Article 3 of the European Convention on Extradition, 1957. 64 However, since its drafting there is evidence in international law, reflected in national practice, of a willingness to confine the absolutist nature of the exception as originally proposed. Responding in particular to transnational criminal activities that threaten the international community as a whole, the gist of judicial and political reaction has been to curb the scope of the exception and it has come to be accepted that there are certain types of behaviour for which individuals should not be allowed to escape justice by merely crossing a border. Van den Wijngaert writes:
" The political offence exception has appeared overly broad because it is . . . applicable to very serious crimes which, although commit-ted for political reasons, are so dangerous to international public order that extradition should not be excluded, simply because of their being politically motivated." 65
There is now a clearly established trend to exclude, by way of ' negative definitions' , certain behaviours from the category of political offences. It is believed that this technique has the merit of imposing the clarity which was lacking in this field, 66 given the widely diverging state practices. The clearest example of these developments in Europe concerns international terrorism.
(a) The Council of Europe Convention on the Suppression of Terrorism, 1977
This Convention seeks to harmonise the national response to crime in Europe. Article 1 places a duty on states to render non-political a specified list of offences thought to be typically used by terrorists, such as kidnap-ping, the taking of hostages or unlawful detention.*B. C. L.( N. U. I.), LL. M.( Edin.), Degree I Student at the King's Inns. 1 See, for example, T. v. Home Secretary [1996] 2 W. L. R. 766. 2 Art. 1( a), Harvard Draft Convention on Extradition, 1935; Rutherford and Bone (eds.), Osborn's Concise Law Dictionary (8th ed., London, 1993) p. 140. 3 Stein, Extradition, Encyclopaedia of International Law (Vol. 8) p. 222. 4 infra. 5 For greater detail see Van den Wijngaert C., The Political Offence Exception to Extradi-tion (The Netherlands, 1980). An extensive list of those countries which have incorpo-rated the principle into national legislation is provided at p. 1. 6 ibid. 7 Art. 6. 8 Gilbert G. S., Aspects of Extradition Law (London, 1991) p. 113; Van den Wijngaert C., op. cit., pp. 2– 3. 9 op. cit., p. 4. 10 See Preamble of the Treaty of Rome, 1957 and objectives of Treaty of Rome, 1992. 11 See generally Vermeulen G. and Vander Beken T., 'New Conventions on Extradition: Analysis and Evaluation' (1997) 15 Dick. J. Int' l. L. 265. 12 See, for example, The Universal Declaration of Human Rights, 1948; The European Convention on Human Rights, 1950. 13 See generally Hogan G. and Walker C., Political Violence and the Law in Ireland (Man-chester, 1989) pp. 280– 281. 14 ss. 12– 14 of the Indictable Offences Act, 1848 and ss. 27– 30 of the Petty Sessions (Ire-land) Act, 1851. 15 [1965] I. R. 70. 16 See generally O'Higgins P., 'The Irish Extradition Act 1965' (1966) 15 I. C. L. Q. 369. 17 The enactment of the 1965 Act facilitated Ireland's accession to the European Convention on Extradition, 1957 (E. C. E.) that was signed in Paris, December 13, 1956 and entered into force April 18, 1960. The Convention was not signed and ratified by Ireland until May 2, 1966. 18 The pertinent element of s. 50 provides: "( 1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section. "( 2) A direction under this section may be given by the High Court where the Court is of the opinion that:(a) the offence to which the warrant relates is – (i) a political offence or an offence connected with a political offence, or . . . (b) there are substantial grounds for believing that the person specified in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence. . . ." 19 Section 11( 1) provides, in terms that are identical to Art. 3( 1) of the E. C. E, that extradi-tion shall not be granted for an offence which is a political offence or an offence con-nected with a political offence. 20 The Act provides a 'negative definition' in s. 3( 1): "[ a] political offence does not in-clude the taking or attempted taking of the life of a Head of State or a member of his family". 21 [1972] I. R. 36. 22 For greater detail see Forde M., Extradition Law in Ireland (2nd ed., Dublin, 1995) Chap. 9. 23 [1971] I. R. 205. 24 ibid., p. 211. 25 Burns v. Attorney General unreported, High Court, Finlay J., February 4, 1974. 26 [1891] 1 Q. B. 149, 159. 27 p. 5. 28 unreported, High Court, Finlay P., December 5, 1974. 29 p. 5. 30 See for example, O' Neill v. Attorney General, The Times, July 30, 1974, Mullholland v. Attorney General, Daily Telegraph, February 4, 1975, McCarry and Clarke v. Attorney General, The Irish Times, January 15, 1976, Gilhooley v. Attorney General, The Irish Times, June 4, 1976, Swords v. A. G., The Irish Times, December 22, 1977, O' Hagan and Herron v. Attorney General, The Irish Times, July 18, 1978, Quigley v. Attorney General, The Irish Times, July 22, 1980. Brief details of these cases are outlined in Hogan G. and Walker C., Political Violence and the Law in Ireland, op. cit., pp. 284– 5 and 303. 31 per Murnaghan J. in Manus and Doherty v. Attorney General, The Irish Times, March 23, 1977. 32 "I feel there is well nigh universal embarrassment in this country at the predicament at which our judges find themselves, being constrained as they are in extradition applica-tions to release persons accused of most serious crimes. The widespread embarrassment is compounded by the fact that the release of these fugitives is a matter of grave scandal in Northern Ireland where our fellow Irishmen have suffered so much in their persons and properties at the hand of these people." Patrick Cooney T. D., Minister for Justice speaking in Dáil Éireann, April 24, 1975. 33 Report of the Law Enforcement Commission, Cmnd. 5627; Prl. 3832. 34 Criminal Jurisdiction Act, 1975 (Britain); Criminal Law (Jurisdiction) Act, 1976 (Ire-land). 35 Art. 29( 3) provides that "Ireland accepts the generally recognised principles of interna-tional law as its rule of conduct in its relations with other States."36 (1951) 85 I. L. T. R. 22; 18 Int. L. Rep. 343. The Supreme Court held: "The attempt therefore to establish that the non-surrender of political refugees is a generally recog-nised principle of international law fails. The farthest that the matter can be put is that international law permits and favours the refusal of extradition of persons accused or convicted of offences of a political character but allows it to each State to exercise its own judgement as to whether it will grant or refuse extradition in such case and also as to the limitations which it will impose upon such provisions as exempt from extradi-tion." 37 Gilbert G. S., op cit., p. 117; Van den Wijngaert C., op. cit., pp. 42-48; Connolly A. M., 'Non-Extradition for Political Offences: A Matter of Legal Obligation or Simply A Policy Choice? ' (1982) 17 Ir. Jur. (n. s.) 59. 38 In the Trial of F. E. Steiner (1971) 74 Int'l. L. Rep. 478; The Spanish-German Extradi-tion Treaty Case [1925– 26] Ann. Dig. 308; The State (Duggan) v. Tapley, supra. 39 Van den Wijngaert C., op. cit., p. 46– 7.40 Hogan G. and Walker C., op. cit., p. 287. 41 McCall-Smith A. and Magee P., 'The Anglo-Irish Law Enforcement Report in Histori-cal and Political Context' [1975] Crim. L. Rev. 200, 211. 42 For a detailed discussion of the various approaches see Gilbert G. S., 'The Irish Interpre-tation of the Political Offence Exemption' (1992) 41 I. C. L. Q. 66. 43 [1981] I. R. 489. 44 ibid., p. 495. 45 [1982] I. R. 154. 46 [1982] I. R. 154, 159. 47 ibid., p. 160. 48 Campbell C., 'Extradition to Northern Ireland: Prospects and Problems' (1989) 52 M. L. R. 585. 49 Gilbert G. S., supra, p. 114, makes the point that for every ten people there will be at least ten different definitions of politics. 50 [1984] I. R. 569. 51 ibid., p. 581. 52 [1985] I. R. 322.53 [1985] I. R. 322, 337. 54 Gilbert G. S., supra, p. 77. 55 [1988] I. R. 505. 56 [1988] I. R. 505, 530. 57 [1990] 1 I. R. 165. 58 It is significant that the case came before a differently constituted Supreme Court. The retired Henchy J. had been replaced by Walsh J. and it is felt that "the importance of this change in personnel should not be underestimated": Delany H. and Hogan G., 'Anglo-Irish Extradition Viewed from an Irish Perspective' (1993) Public Law 93, 100 at n. 33. The authors interestingly note that Walsh J. when a Senior Counsel had been an Irish member of the Law Enforcement Commission which argued against limiting the scope of the political offence exception. 59 Quinn v. Wren, supra. 60 pp. 207– 215. 61 p. 216. 62 This Act was not applied in the case since the proceedings began prior to its coming into force. 63 Delany H. and Hogan G., op. cit., p. 101.64 supra. 65 op. cit., p. 197. 66 Connolly A. M., 'Ireland and the Political Offence: Exception to Extradition' (1985) 12 Journal of Law and Society 153, 162.
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