[QUEEN'S BENCH DIVISION]

In re EXTRADITION ACT, 1870, Ex parte

TREASURY SOLICITOR

Evidence - Foreign tribunal, for - Jurisdiction of English court - Criminal proceedings in West German court - Alleged murder of concentration camp inmates by S.S. members - Application for examination of witness in England - Whether foreign proceedings a criminal matter of "a political character" - Extradition

[Reported by Mrs. JENNIFER WINCH, Barrister-at-Law.]

Act, 1870 (33 & 34 Vict. c. 52), s. 24¹ - Foreign Tribunals Evidence Act, 1856 (19 & 20 Vict. c. 113), s. 1.²

A man living in England was requested by a West German judge to give evidence in criminal proceedings in West Germany against four men charged with the murder, and aiding and abetting the murder, of prisoners in a concentration camp in Austria in 1941 and 1942. The man was unwilling to give the evidence and the Treasury Solicitor applied ex parte for an order requiring him to give evidence before a metropolitan magistrate.

On the question whether the order could be made under section 24 of the Extradition Act, 1870, or whether the German proceedings were a "criminal matter of a political character" within the meaning of the proviso to that section and so outside its scope:

Held, granting the application, (1) that "cause" and "civil or commercial matter" in section 1 of the Foreign Tribunals Evidence Act, 1856, were general terms covering all kinds of suits, petitions, summonses and applications for orders and that, accordingly, "any criminal matter" in section 24 of the Act of 1870 must have the same or a cognate meaning, so that when considering the meaning of "any criminal matter of a political character" in the proviso to section 24, the character of the proceedings instituted and not the character of the offence charged had to be examined. (2) That the words "political character" postulated some kind of political behaviour on the part of the accused which made it desirable in the eyes of those in power that he should be rendered silent or inactive; and that there was no basis for the suggestion that the accused were being prosecuted for political reasons of that kind.

(3) That, alternatively, even if the words "criminal matter of a political character" were interpreted not in relation to the proceedings but in relation to the offences charged, the offence alleged was not of a political character.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.). considered.

The following cases are referred to in the judgment:

Castioni, In re [1891] 1 Q.B. 149, D.C.

Meunier, In re [1894] 2 Q.B. 415, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.).

1 Extradition Act, 1870, s. 24: "The testimony of any witness may be obtained in relation to any criminal matter pending in any court or tribunal in a foreign state in like manner as it may be obtained in relation to any civil matter under the Foreign Tribunals Evidence Act, 1856, and all the provisions of that Act shall be construed as if the term civil matter included a criminal matter and the term cause included a proceeding against a criminal: Provided that nothing in this section shall apply in the case of any criminal matter of a political character."

2 Foreign Tribunals Evidence Act, 1856, s. 1: "Where, upon an application for this purpose, it is made to appear to any court or judge having authority under this Act that any court or tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first mentioned court, or of the court to which such judge belongs, or of such judge, it shall be lawful for such court or judge to order the examination upon oath, upon interrogatories or otherwise, before any person or persons named in such order, of such witness or witnesses accordingly ... and any such order may be enforced in like manner as an order made by such court or judge in a cause depending in such court or before such judge."

APPLICATION.

On July 31, 1968, the Treasury Solicitor applied ex parte before Chapman J. in Chambers for an order for the examination before the Chief Metropolitan Magistrate of a witness for the purposes of criminal proceedings in West Germany. Chapman J. made the order on October 2, 1968, and gave his reasons in open court.

The facts are stated in the judgment of Chapman J.

Gordon Slynn for the Treasury Solicitor.

CHAPMAN J. read the following judgment: On the last day of last term I made an order at the instance of the Treasury Solicitor for the examination before the chief magistrate, he having expressed his willingness to act, of a witness for the purposes of criminal proceedings in West Germany pursuant to section 24 of the Extradition Act, 1870. I was asked to give the reasons for my order in open court and I thought it best that I should spend a little time putting them into shape in writing.

The proceedings in question were instituted by the director of the central office of the Land North Rhine/Westphalia for the prosecution of National Socialist massacres in concentration camps, a department, I am told, of the West German Ministry of Justice.

The persons accused, Alfons Gross, Bruno Wolfgang Heinz Jentzsch, Helmut Hermann Arthur Kluge and Wilhelm Stiegele, are alleged to have been former members of the S.S., holding positions of authority in the National Socialist concentration camp of Gusen, a branch camp of Mauthausen in Upper Austria, where Jews and other prisoners (of unindicated character) were incarcerated.

The charges against the accused are murder or aiding and abetting murder, the allegation being that in 1941 and 1942 numerous prisoners, who were sick or otherwise incapable of working, were killed by being subjected in bitterly cold weather to prolonged exposure to streams of cold water which brought about death by heart failure, shock, or plain drowning, a procedure apparently well known under the name "Totbadeaktionen."

A person whose evidence is thought to be material in relation to these charges is one S. M. (I do not think I need give his full name), who now lives in Devonshire and who is unwilling to go back to Germany for interrogation before the trial court, the Schwurgericht of Hagen or to give evidence before a German consul in Great Britain. He was an inmate of the concentration camp who is alleged to have witnessed death-bath episodes and to know about the system. Letters of request were accordingly issued by the German court for the examination of this witness in England.

The relevant legislation is as follows. By the Foreign Tribunals Evidence Act, 1856, section 1, it is provided:

"Where, upon an application for this purpose, it is made to appear to any court or judge having authority under this Act that any court or tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first mentioned court, or of the court to which such judge belongs, or of such judge, it shall be lawful for such court or judge to order the examination upon oath, upon interrogatories or otherwise, before any person or persons named in such order, of such witness or witnesses accordingly ... and any such order may be enforced in like manner as an order made by such court or judge in a cause depending in such court or before such judge."

By section 5 of this Act every person examined or required to produce documents is given the same privilege as he would have if he were a witness in a cause pending in that court or before that judge.

By the Extradition Act, 1870, section 24 it is provided:

"The testimony of any witness may be obtained in relation to any criminal matter pending in any court or tribunal in a foreign state in like manner as it may be obtained in relation to any civil matter under the Foreign Tribunals Evidence Act, 1856 and all the provisions of that Act shall be construed as if the term civil matter included a criminal matter and the term cause included a proceeding against a criminal: Provided that nothing in this section shall apply in the case of any criminal matter of a political character."

It is perhaps a bit confusing, at first sight, to have an apparent difference drawn in the Act of 1856 between, on the one hand, a civil or commercial matter and, on the other hand a cause depending (or pending) in the court or before the judge, but I think it is really quite plain what the draftsman had in mind. Any English judge asked to make an order under the Act of 1856 would know what a cause pending before him was and what his powers in relation to it were. But in relation to litigation abroad he might well have no idea what corresponded with an English "cause." So he was asked in effect to treat as an English cause any civil or commercial matter pending before a foreign court and to exercise his power accordingly. In other words, the Act of 1856 is using the word "cause" and the word "matter," qualified by the epithets "civil or commercial," in the same sense as our Supreme Court of Judicature Acts, from 1873 onwards, have talked about "cause or matter." The terms are all wide, general terms covering all kinds of suits, petitions, summonses, applications for orders, etc., of which courts are competent to take cognisance.

If this is right it seems to me that it must follow, as Mr. Gordon Slynn has submitted as his first point, that in section 24 of the Extradition Act, 1870, the phrase "any criminal matter" must have the same or a cognate meaning; in other words, the reference is to the nature of the proceedings be they by what we would call summons, charge, indictment, or what have you. If that is the meaning of the words in the body of the section, the same meaning must, I think, be given to them in the proviso. In other words, when one is considering the words in the proviso, "any criminal matter of a political character," one has to look, not at the character of the offence which is charged, but to the character of the proceedings which have been instituted.

The effect of this interpretation is that no order for the examination of a witness can be made when the "criminal matter," that is, the prosecution, is of a political character. This might well involve, even in a world less complicated than ours, quite difficult issues. It is perhaps unlikely nowadays that a State would seek the assistance of a foreign court in securing evidence to show that a person belonged to a prescribed political party, but as a possibility it cannot be ignored. In any case, there are all sorts and kinds of holding charges, sometimes of a highly technical character, which might be resorted to in order to drag in a person whose head was wanted for political reasons, that is, because he was from the point of view of his political opponents a dangerous character. I hasten to say that I can see no basis, on the evidence before me in the letters of request, for any suggestion being made under either of the foregoing heads.

It might, I imagine, be urged (and I only examine this because the proceedings before me were ex parte and I conceive it my duty to examine all

possible objections) that the proceedings are of a political character because the motive behind them was to improve the political status internationally of the government behind them. In a sense I suppose this may well be so. After what was said about war crimes trials after the first world war, I can well imagine that German governments after the second world war realised that their position in the international political field would be impossible if perpetrators of atrocities were not even prosecuted, let alone punished. Assuming all this as a motive, does it make the proceedings with which I am now concerned proceedings of a "political character"? I do not think so. I think the words must postulate some sort of political behaviour on the part of the accused which makes it in the eyes of those in power desirable that he should be rendered silent or inactive. Again I can see no basis here for any suggestion that the accused are being prosecuted for political reasons of that kind.

This brings me to Mr. Gordon Slynn's second alternative point, which is that even if the words "criminal matter of a political character" are to be interpreted, not in relation to the proceedings, but in relation to the offences charged, there is on the English authorities binding on me, no political character about the offences. This takes one back to section 3 of the Extradition Act, 1870, which provides that:

"The following restrictions shall be observed with respect to the surrender of fugitive criminals: (1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove ... that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character."

What is "an offence of a political character"? A number of distinguished jurists have written upon this question. John Stuart Mill in the House of Commons on August 3, 1866, suggested as a definition: "any offence committed in the course of or furthering of civil war, insurrection or political commotion." (In re Castioni [1891] 1 Q.B. 149, 153). Everyone is agreed that that is too wide, because something done in the course of political commotion cannot be political if in fact it is motivated by private spite. Sir J. F. Stephen in his "History of the Criminal Law," vol. 2, p. 71, suggested as the test, "if these crimes were incidental to and formed part of political disturbances." That was accepted in terms in In re Castioni, by Hawkins J., at p. 165, and, not unnaturally, by Stephen J. at p. 167. Denman J. at p. 156 gave a judgment on somewhat similar lines, though perhaps wider:

"I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder ... it must at least be shown that the act is done in furtherance of, 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 a dispute between two parties in the State as to which is to have the government in its hands, before it can be brought within the meaning of the words used in the Act."

This seems to accept that something short of "disturbances" or "commotions" may be sufficient, provided there is some sort of dispute between political parties.

This was the basis of the next decision (In re Meunier [1894] 2 Q.B. 415), in the case of an anarchist who blew up a cafe and a military barracks. It was held that the mere fact that an offence was directed against the

government or government property was not sufficient to make it political; there must be another party seeking to take over government; mere hatred, distrust of, or disbelief in, government as an institution was not enough. As Cave J. said, at page 419:

"It appears to me that, in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not."

This stress on parties may perhaps be carried too far if made the sole, or even the dominant, criterion. It may well be right to say that a murder would not be political merely because the murderer's attitude was, "I killed him because he was a politician and I hate all politicians," or even, "I killed him because I did not like his political views," but it may be ventured that a murder could properly be regarded as political if the murderer, albeit he belonged to no political party (perhaps because none were allowed apart from the governing body), was motivated by the feeling that his victim was, as a Minister, a disaster for the country. However that may be, membership of a political party was not regarded as necessary in the case of the seven Polish seamen, Reg. v. Governor of Brixton prison, Ex parte Kolczynski [1955] 1 Q.B. 540. The motive there for "the politest revolt in history" (per Sir Hartley Shawcross, at p. 544) was to get away from the intolerable sense of frustration and repression of living in a communist country with political commissars at hand, even on the high seas, to record their expressions of opinion on political matters. So the seamen overpowered the master and the other members of the crew, only one of whom resisted, and brought their trawler into an English port where they sought political asylum. Extradition was refused by Cassels J. and Lord Goddard L.C.J. Their grounds seem to be on the surface somewhat different, but not I think really in substance. Cassels J. founded himself on its being treason in a communist country to leave or attempt to leave the country. Lord Goddard L.C.J., stressed that a political officer was at sea, overhearing and recording their conversations and preparing a case against them on account of their political opinions so that "the revolt of the crew was to prevent themselves being prosecuted for a political offence." In other words, he seems to have put more emphasis on the second limb of section 3 (1) of the Act of 1870. But the substance of the matter would seem to be that, even if one is not a member of a political party, and even if one is not seeking to oust the governing body or to take over the government of the country, it may still be an offence of a political character if violent measures are taken to get away from a political ordering of society which is regarded as intolerable.

The last case I have to consider is the case of the stolen Jewish child, Ex parte Schtraks [1963] 1 Q.B. 55; [1964] A.C. 556. The speeches of Lord Reid and Lord Radcliffe are particularly important. Lord Reid said [1964] A.C., at p. 583:

"Moreover, I do not think that the application of the section can be limited to cases of open insurrection. An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to

overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee's party should have been trying to achieve power in the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it."

He then states that he does not get any assistance from the statement in some of the cases that there must be "disturbance" or "political disturbance." He summarised the matter at p. 584:

"It appears to me that the provisions of section 3 of the Act of 1870 are clearly intended to give effect to the principle that there should in this country be asylum for political refugees, and I do not think that it is possible, or that the Act evinces any intention to define the circumstances in which an offence can properly be held to be of a political character."

Viscount Radcliffe said, at p. 591:

"In my opinion the idea that lies behind the phrase 'offence of a political character' is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of 'political' in this context is with 'political' in such phrases as 'political refugee,' 'political asylum' or 'political prisoner.' It does indicate, I think, that the requesting State is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of In re Castioni [1891] 1 Q.B. 149 and In re Meunier [1894] 2 Q.B. 415 when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugitive and requesting State is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in that belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders."

Lord Evershed [1964] A.C. 556, at p. 598 agreed with Lord Reid and Lord Radcliffe "that the exception was intended for the protection of those who had sought political asylum in this country from the repressions of their own countries."

There is therefore quite a varied collection of guide lines in this matter, and they have been most helpfully collected and commented upon in an

article on the Schtraks case [1964] A.C. 556 by Mr. C. F. Amerasinghe in 1965, 28 Modern Law Review, p. 27. Whichever of the guide lines I follow, it seems to me impossible here to say that the offence alleged was of a political character. The lastest and most authoritative test - definition there is not and cannot be - is whether the fugitive, the alleged offender, could claim with any prospect of success political asylum. Quite plainly in the present case the accused persons could not. One must, I think, look at the situation at the time when the offence was alleged to be committed. At that time the accused, so far from being at odds with the State or in political opposition to the existing government, were servants or officers of the government, and, in so far as they were actuated by political motives or by a political object or a political motive or were seeking furtherance of a political cause or campaign (assuming that the epithet "political" was) apposite), it was the object, motive, cause or campaign which their own party or government was seeking to achieve. In other words, the situation here was exactly what Lord Radcliffe seems to have had in mind in the passage I have quoted as being outside the purview of the section.

In saying this I do not intend to rule out the possibility that an offence may be of a political character even if carried out by a servant of the government in power. A usurping government may well set about liquidating or silencing all who supported the previous government. If those so oppressed were in turn to achieve power and seek vengeance on their erstwhile tormentors, the latter could perhaps plead that their offences were political in character. So here, if those alleged to have been murdered were shown to be or alleged to be communists, it might be said to be part of a struggle between those in favour and those against communism as a political creed. But there is no evidence of that here. All we know about the inmates is that some were Jews.

Accordingly I came to the conclusion that the order asked for should be made, first and foremost because in section 24 of the Act of 1870 the words "criminal matter" are a synonym for "criminal proceedings," and there was no ground here for supposing that the proceedings before the District Court of Hagen were of a political character; secondly, and alternatively, if I were wrong in this view, and the words "criminal matter" in that section related to the offence charged, because the offence charged in the present case is not an offence of a political character.

Solicitor: Treasury Solictor.