The Gazette 1971

was in turn based. Extraditable offences were now defined by the severity of punishment that might be imposed consequently a different principle of exclusion had to be adopted, and the formula adopted in the Convention and in the Irish Act was to say that surrender should not be granted for any offence "which is a political offence or an offence connected with a political offence". The Supreme Court in Bourke's case therefore had to decide whether the offence charged against Bourke of aiding a prisoner, George Blake, to escape was a poli- tical offence or an offence of a political character. It was conceded that the offence, espionage, for which Blake was imprisoned was a political offence. It was not argued for Bourke that his own offence of aiding a prisoner to escape was a political offence. Indeed this would have been difficult in the light of the reasons given by Bourke for his action (1) that he looked upon Blake as a political prisoner who had sacrificed a great deal for his Communist sympathies; (2) he con- sidered that Blake's forty-two year sentence was savage; (3) that he felt compassion for Blake, and (4) that he had come to the conclusion that Blake's ideas and his own as to what constituted a just society were then very similar. Bourke denied explicitly any sympathy with Communism or the policies of the Soviet government. It was. argued for Bourke, however, that he had aided a political prisoner to escape; that Bourke's offence was connected with a political offence, that is to say with the offences for which Blake had originally been impris- oned, and lastly that Blake's offence in escaping was itself a political offence and that therefore Bourke's assistance in the escape was itself an offence connected with a political offence. The Chief Justice, with whom the other members of the Supreme Court (save Fitz- gerald J.) agreed, reached the conclusion that Blake's offence of escaping to the Soviet Union "was as political as if in war he had deserted to the enemy lines and changed his uniform". It is difficult to dissent from this. (In any case of course the original offence charged against Blake was political.) The offence of Bourke in aiding him to escape was an offence connected with a political offence. Therefore since the terms of Section 50 were to be regarded as mandatory [may not be surrend- ered was to be interpreted as shall not be surrendered] Bourke was entitled not to be surrendered and the decision of the High Court was upheld. A number of points of interest arise. First of all the Backing of Warrants (Republic of Ireland) Act, 1965, which is the British counterpart of the special Anglo- Irish arrangement for mutual extradition provides for the non-surrender of persons charged with offences of a political character , so that if the case had been the other way round, and if the Irish Republic had been seeking Bourke's surrender by the United Kingdom it is highly likely that he would have been surrendered, because his offence would be regarded as not having itself a political character. This is an odd consequence of establishing an international arrangement by simul- taneous pieces of municipal legislation, which although probably identical in intent, do not use the same terminology. Secondly the Supreme Court was prepared to resort to the travaux preparatoires to the European Conven- tion as an aid to the interpretation of the Irish statute. Looking at these the Chief Justice concluded that the phrase "offence connected with a political offence" was to be given a wide interpretation and did not require that the connected offence should itself have been com- mitted from a political motive or that it should in any way be directed to aiding or procuring or be prepara-

tory to the commission of the political offence. But he then added : "I would reach the same conclusion on a consideration of the terms of Section 50 of the Extra- dition Act, 1965, without reference to the travaux preparatoires of the Convention". One welcomes the liberal attitude adopted by the Supreme Court to the invocation of relevant aids to the interpretation of an Irish statute, specially where such statute was speci- fically passed with the objective of implementing the terms of an international treaty. However, there may be certain dangers in this, if invocation of the travaux préparatoires is resorted to in circumstances where the rules of international law would not justify such invo- cation. The Vienna Convention on the Law of Treaties, 1969, may be regarded in this respect as probably embodying proper customary rules of international law in relation to the use of travaux preparatoires. Article 32 of the Convention provides as follows : "Recourse may be had to supplementary means of interpretation including the preparatory work ot the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 [which embodies the general principles of interpretation of treaties], or to determine the meaning when the interpretation according to Article 31 (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." The broad literal interpretation of the phrase "offence connected with a political offence' was not ambiguous or obscure, nor was it manifestly absurd or unreasonable, therefore the only circumstance justifying resort to the preparatory work to the treaty would be to confirm the meaning already attributed to it after applying the ordinary principles of treaty interpretation. I think we can regard the Supreme Court's use of the preparatory work as an example of their use for confirmatory pur- poses, and no more. There is, however, a caveat; if one is going to follow international law in invoking the aid of preparatory work when interpreting a phrase in a statute taken from a treaty to give effect to which the statute has been passed, the initial interpretation of the sometimes over-literal principles of Irisn municipal interpretation ought to be disregarded but ought instead to follow the more flexible and liberal principles of treaty interpretation, such as for example are laid down in Article 31 of the Vienna Convention, the basic one of which is that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". The Supreme Court's willingness to consider travaux preparatoires is a departure from the British traditional reluctance to go behind the text of an act of Parliament embodying a treaty, and is more in accordance with US practice where the courts are by no means averse from examining the preparatory work. Another point of interest in the Supreme Court's decision was that the Court, following the same approach as the House of Lords R. v Armah [1963] 3 All E.R., 177, expressed disapproval of the idea of taking account in its deliberation of undertakings given on behalf of the law officers of a foreign country regarding the ques- tion whether, if surrendered, the person concerned would be tried for another offence, possibly a political offence. Paradoxically the British House of Lords in Keane v Governor of Brixton Prison (The Times, 2nd April 1971), has now expressed the view that such assur- ances are properly admissible and can be taken into account by the Court, although they should not be regarded as conclusive.

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