15 April 1999
Letter from Jack Straw about the Extradition of Pinochet
"IN deciding to issue the new Authority to Proceed, the Secretary of State has proceeded as if no previous Authority was in existence and has considered the matter entirely afresh. He has limited himself to taking account only of considerations relevant to the question whether the new Authority should be issued or not.
Although there is no provision in the Extradition Act for representations at this stage in extradition proceedings, the Secretary of State has taken careful account of these in making his decision: in particular, representations made to him by legal representatives of Senator Pinochet; the Spanish Government; the Chilean Government and legal representatives for the "Interveners" before the House of Lords. He also received material from the Foreign and Commonwealth Office and the Ministry of Defence. To the extent that he has considered previously submitted representations, he has done so having regard to the latest judgment of the House of Lords and only in so far as they had relevance to the question whether a new Authority should be issued.
The decision to issue the new Authority to Proceed was taken personally by the Secretary of State, who was satisfied that he took this decision with an open mind.
The House of Lords ruling March 24
Six of the seven members of the Appellate Committee of the House of Lords stated their view that the Secretary of State should reconsider his decision of Dec 9, 1998, in the light of the very considerable reduction in the number of extraditable charges from those identified by their ruling on Nov 25.
The Secretary of State invited the assistance of the Divisional Court in finding a means to quash the first Authority of Dec 9 in order to comply with the recommendation of the Appellate Committee of the House of Lords in their latest decision. The Divisional Court indicated on Monday, March 29, that the court could quash the first Authority with the consent of all parties to the proceedings at a hearing shortly after the Secretary of State had taken his decision whether a new Authority should be issued. The necessary procedural stops will be taken in consultation with Senator Pinochet's legal representatives and the CPS on behalf of Spain.
The Secretary of State's approach to his decision
The Secretary of State has taken a fresh decision whether to issue a new Authority under Section 7(4) of the Act, which provides:
"On receipt of any such request, the Secretary of State may issue an authority to proceed unless it appears to him that an order of the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act."
The Secretary of State has taken the approach that if it appears to him at this stage that no order for the return of Senator Pinochet to Spain could lawfully be made, or would in fact be made, then he should not issue a new Authority. If those conditions do not exist, he has a discretion whether or not to issue a new Authority.
He has had regard to the relevant extradition arrangement, namely the European Convention on Extradition (ECE). The UK's obligation is to extradite Senator Pinochet to Spain consistent with the ECE. That is a consideration to which the Secretary of State gives particular weight.
The Secretary of State has taken his decision having taken account of, in particular, the judgment of the House of Lords of March 24 and the appropriate and separate roles of the courts and himself in the scheme of the Act. There are various matters which the Secretary of State has considered at this stage which can be the subject of far closer and more satisfactory examination during the court stages of the extradition process (committal and habeas corpus) than is possible at this preliminary stage.
In relation to such matters, the Secretary of State considers that it is appropriate for them to be explored in full detail in the court proceedings, after notice of all points has been given to each party to permit argument by that party, and (as necessary) the adducing of formal evidence and evidence in answer.
In reaching his decision, the Secretary of State has considered the application of the Act to the Spanish request and all the general restrictions on surrender in Sections 6 and 12 of the Act.
The Secretary of State has had well in mind the latest ruling of the House of Lords, to the effect that under United Kingdom law the only extraditable offences referred to in the Spanish request are offences after Dec 8, 1988.
Section 1 of the Act provides that where, as in the case of Spain, extradition procedures under Part III of the Act are available, a person in the United Kingdom who "is accused in that state of the commission of an extradition crime" may be arrested and returned to that state in accordance with those procedures.
The Secretary of State considers that Senator Pinochet is accused, in Spain, of offences in the relevant period equivalent to United Kingdom offences of conspiracy to torture and torture, and that these are extradition crimes.
The Secretary of State has taken account of Section 9(8) of the Act and the terms; of paragraph 3 of the European Convention on Extradition Order 1990, which provides:
"Where an extradition request is made by a Convention State in respect of a person accused of an offence it shall not be necessary:
a, for that State to furnish the court of committal with evidence sufficient to warrant the trial of that person if the extradition crime had taken place within the jurisdiction of that court; or
b, for the court of committal to be satisfied that there is evidence sufficient to warrant the trial of that person."
The Secretary of State has proceeded on the basis that he is entitled, at this stage of the extradition proceedings against Senator Pinochet, to treat the Spanish request as well-founded as a matter of Spanish law.
Sovereign or diplomatic immunity
In light of the latest decision of the House of Lords, the Secretary of State has proceeded on the basis that, in relation to extraditable offences, Senator Pinochet does not enjoy any immunity, save in respect of offences of murder and conspiracy to murder of which he is accused. Senator Pinochet does not enjoy immunity in relation to the extradition crimes of conspiracy to torture and torture referred to above.
The Secretary of State has had regard to what is alleged in the request to have happened before Dec 8, 1988, but only in so far as it is relevant to the criminality of what is alleged to have happened after that date - i e in relation to the question whether acts of torture after that date were done in the course of a conspiracy begun before, such as to amount to an accusation of a conspiracy to torture continuing after that date for the purposes of Section 7(5) of the Act.
The Secretary of State does not accept the argument, put on behalf of Senator Pinochet, that he should be treated as immune unless there is evidence before him to show that Senator Pinochet had actually committed the relevant offences of which he is accused.
Nor does the Secretary of State understand the majority of the House of Lords to have ruled (as Senator Pinochet contends) that immunity in respect of torture or conspiracy to torture only ceases to apply where torture is widespread or systematic.
It does not appear to the Secretary of State that Senator Pinochet is entitled to diplomatic immunity as the head of a special mission.
Additional Spanish material
The Secretary of State was invited by the CPS on behalf of Spain, to consider fresh material issued by the fifth Central Magistrate's Court of Madrid, dated Dec 10, 1998, Dec 24, 1998, March 26, 1999 and April 5, 1999, subsequent to the formal request received in the Home Office on Nov 11, 1998.
He does not regard the material to be "supplementary material" under Article 13 of the ECE since, as the requested Party in that article, he has not considered it necessary to request such material from Spain in order to make his decision. The Secretary of State has, however, had regard to this material as part of the representations put before him in the context of considering whether (as Senator Pinochet contends) the Spanish accusations are not made and maintained in good faith.
The Secretary of State has considered all the general restrictions on surrender in Sections 6 and 12 of the Act. In particular, he has had regard to:
Political Offences Section 6 (1)(a)
Section 24 of the Act provides that no offence to which Section 1 of the Suppression of Terrorism Act applies can be regarded as an offence of a political character. Since Spain is a designated country for the purposes of Section 24, the Secretary of State considers that all the offences that are to be included in the Authority fall within this provision. In any event it does not appear to him that the offences charged are of a political character.
Punishment for political opinions Sections 6(1)c and d
The Secretary of State does not consider that there are good grounds for concluding that the request has been issued for this purpose.
The passage of time Section 12(2)(a)(ii)
The Secretary of State has not been notified by the Spanish Government that any of the offences for which extradition is sought are time barred from prosecution and considers that it is reasonable to proceed at this stage on the footing that no relevant time bar appears to apply.
Nor does the Secretary of State consider that the passage of time would render it unjust or oppressive to issue an Authority in this case. It does not appear that Senator Pinochet is unfit to stand trial.
Although the Secretary of State has had regard to the effect of the latest House of Lords judgment in reducing the number and extent of potential charges, the remaining offences for which return has been sought are serious, and in the nature of those for which, domestically, passage of time would not be regarded as restricting prosecution. The case is an accusation case and, ordinarily, the reliability of witnesses' memories may properly be regarded as a matter for the court of prosecution.
Accusation not made in good faith in the interests of justice Section 12 (2)(a)(iii)
The Secretary of State does not believe that there are sufficient grounds for concluding the surviving accusations have been made other than in good faith in the interests of justice.
The Secretary of State has in mind that this issue can be addressed by the courts under Section 11(3)(c) of the Act and that it is a question, among others, which can be re-examined in the light of any developments at the stage when he comes to exercise his final discretion at the end of the extradition process, under Section 12 of the Act.
The Secretary of State's discretion
The Secretary of State has considered the ambit of his discretion under Section 7(4) and his residual general discretion under Section 12 of the Act, which would apply in relation to the return of Senator Pinochet were he to be committed by the Bow Street magistrate under Section 9 of the Act. The Secretary of State has been advised that the discretion conferred upon him is wide and he has, therefore, taken a range of factors into consideration.
A large number of points were raised in representations concerning the Secretary of State's discretion, including aspects of issues that fall to be considered under the general restrictions on return contained in the Act. In particular, the Secretary of State has had regard to the following:
The change in the ambit of the case against Senator Pinochet
The Secretary of State has considered the latest judgment of the House of Lords and its impact upon the number and extent of the offences for which extradition may be sought, and concluded that the formal request from Spain appears to him to disclose the extradition crimes of torture and conspiracy to torture.
He has considered the representations made on behalf of Senator Pinochet alleging that the manner in which the Senator's extradition has been sought constitutes an abuse of the extradition process. The Secretary of State does not consider that, at this stage, these allegations amount to a sufficient ground not to issue an Authority.
Pending proceedings in Chile
Senator Pinochet's legal representatives, and the Chilean Government, argued that the Senator should be returned to Chile where he could stand trial, and that it was artificial to require an extradition request from Chile where such return would be voluntary. However, in the absence of such a request, there is no extradition request from the Chilean Government, which the Secretary of State would consider under Section 12(5) of the Act. Moreover, there is no provision of international law which excludes Spain's jurisdiction in this matter.
The Secretary of State does not consider the possibility of a trial in Chile to be a factor that outweighs the United Kingdom's obligations under the ECE to extradite Senator Pinochet to Spain.
Representations were made on behalf of the Senator that his age and health would render it unjust or oppressive to issue an Authority to Proceed. The Secretary of State has considered these carefully but concluded that it does not appear that the Senator is unfit to stand trial and concluded that, in all the circumstances, it would not be unjust or oppressive for him to stand trial in relation to the remaining extraditable offences with which he is charged.
The Secretary of State also has in mind that this question, among others, can be re-examined in the light of any developments, at the stage when he comes to exercise his final discretion at the end of the extradition process under Section 12 of the Act.
The Secretary of State has also considered other factors under his general discretion including:
I, the possible effect of extradition proceedings on the stability of Chile and its future democracy, and
II, the possible effect of extradition proceedings on the UK national interest.
He has concluded that the material and representations put before him do not amount to sufficient grounds not to issue an Authority.
In the event that Senator Pinochet is committed to await the Secretary of State's decision on his return, the Secretary of State will consider the extradition request afresh under Section 12 of the Act. At that stage, he will be able to take into account any findings in the committal proceedings and any habeas corpus proceedings as well as any representations which Senator Pinochet may wish to make against return.
If Senator Pinochet decides to apply for leave to move for judicial review of the Secretary of State's decision, he reserves the right to expand upon the reasons given in this letter in an affidavit to be sworn by one of his officials.
Proceedings against Pinochet
Published online by Equipo Nizkor & Derechos Human Rights