The Gazette 1971

the Irish philosopher Francis Hutcheson, who wrote of this question in his posthumous System of Moral Phil- osophy published in 1755 as follows: "As to state-criminals : as frequently good men are on both sides in civil wars and state-factions, as well as in solemn wars, the general custom is very humane, that they should universally find protection in foreign states; and the refusal of delivering them up, or of allowing them to be pursued and taken, is never deemed a just cause of war, if, while they reside abroad they are forming no new conspiracies or hostile attempts against the present governors of their country; who should be satisfied with their banishment, and loss of their for- tunes, and of the hopes they had in their native land." Later authorities took the view that political offenders should not be surrendered because one State does not have any stake in preserving the political system in operation in any other State. This was a nineteenth- century view which is no longer tenable in the light of alliances like NATO and SEATO which are specifically designed to preserve the political systems in existence within their member States. Another justification for the exclusion from surrender of political offenders would be to protect freedom of thought and expression, freedom to oppose any government with which one is in disagree- ment. However at the end of the day although there is general acceptance of the principle of non-surrender of political offenders, there is no clear definition of who is or who is not to be surrendered, because there is no clear modern rationale underlying the principle. In essence therefore the position is that, despite apparent agreement on the principle, in practice what occurs is that it is left to each State, either its adminis- trative or judicial organs or sometimes both, to rule upon the question, who, for the purposes of the appli- cation of the principle of non-surrender by that State, is a member of the class of persons who are not to be surrendered. Until 1965 the old imperial Extradition Act, 1870, was in force in the Republic. This provided for the surrender of any person charged with any one of a list of scheduled offences, all of them being ordinary offences, prima facie involving no political element (treason, espionage, etc., are not scheduled). Section 3 of the Extradition Act, 1870, then provided that sur- render was not to take place if the person requested could show that his surrender was requested in respect of an offence of a political character (i.e. an ordinary scheduled offence, but which because of the motive from which it was perpetrated or owing to the surround- ing circumstances, acquired an ádditionai element, giving it a political character). British courts consistently refused to enunciate any definitive principle to establish whether an offence was of a political character, although it was clear that an ordinary offence committed with a political end in view in the course of a political distur- bance was probably an offence of a political character provided that the means adopted were not dispropor- tionate to the end and provided also that the end involved a conflict as to which of two contending groups should control the State. Other activities were not precluded from acquiring a political character, but where the line was to be drawn was for the Gourts in the first instance although the relevant Minister had a separate discretion to decide the issue for himself. Other countries did not adopt the enumerative method of defining extraditable offences but instead made all offences punishable with a penalty above a certain minimum in principal extraditable offences. It was on this system that a draft convention produced by the Council of Europe was based, and upon this Euro- pean draft convention the Irish Extradition Act, 1965. 5

THE BOURKE EXTRADITION CASE by DR. PAUL O'HIGGINS Fellow, Christ's College, Cambridge In 1961 George Blake was sentenced to forty-two years in prison having been convicted of spying for the Soviet Union contrary to the Official Secrets Act, 1911. This sentence imposed by an English court and upheld on appeal was regarded by many as unusually severe. While serving his sentence in Wormwood Scrubs, Blake be- came acquainted with a fellow prisoner, an Irishman, Seán Bourke. As counsel for Bourke was later to explain "during an extra-mural course in English literature which was then being organised by London University" the two became friendly. The acquaintance ripened and Bourke agreed to arrange Blake's escape, which he did after he himself was released from prison. In 1966 with Bourke's aid Blake escaped, and eventually found his way, with Bourke's further assistance, to the Soviet Union, where Bourke later followed him. In 1968 Bourke returned to Ireland from Moscow, and was arrested in Dublin on foot of a British warrant which had been endorsed for execution in Ireland under the terms of the Irish Extradition Act, 1965, Part III. In Janitary 1969 proceedings were issued on Bourke's behalf under Section 50 of the Extradition Act before the President of the High Court, Mr. Justice O'Keeffe. Section 50 provides that a person may not be surren- dered if the offence with which he was charged "is a political offence or an offence connected with a political offence". The offence with which Bourke was charged was aiding a prisoner to escape contrary to the British Prisons Act, 1959, Section 39. Proceedings before the President of the High Court were marked by an able presentatioh of his case by Bourke's counsel, Mr. D. Costello, S.G., despite an unusual number of interruptions from the bench, and a somewhat futile discussion over the admissibility of the report by Harvard Research on Extradition, a sem- inal work which has been constantly referred to by numerous municipal courts, including the Irish Supreme Court, in cases involving an interpretation of the prin- ciples governing international extradition. At the end of proceedings in the High Court the President decided that the offence committed by George Blake, espionage, had been a political offence. The President further decided that "although I am by no means satisfied that my decision is right, I think that the offence of helping him to escape can be classed as being an offence connected with a political offence and that for the purpose of this legislation it ought to be so classed". Accordingly under Section 50 of the Extra- dition Act the President directed the release of Seán Bourke, the offence with which he was charged under the English warrant as being an offence connected with a political offence. The Attorney General and the Com- missioner of the Gárda Síochána appealed against the President's order to the Supreme Court. The appeal was dismissed on 31 July 1969 and after one year's delay, the Supreme Court gave the reasons for its deci- sion on 31 July 1970. The background of the legal problem facing the Supreme Court lies in the loose but generally accepted notion that political offenders should be exempted from surrender by one state to another. There has never been a satisfactory definition either of a "political offence" or of a "political offender" because the raison d'etre of the principle of non-surrender has never been clearly established. The first publicist in these islands to argue for the non-surrender of political offenders was