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Common Law Review
 
Domů arrow Články arrow Issue 1 - The British Constitution arrow 07: Tomáš Karásek & Kevin Gibbons - Jack Straw versus Pinochet
07: Tomáš Karásek & Kevin Gibbons - Jack Straw versus Pinochet PDF Tisk E-mail

Jack Straw versus Pinochet

The Role of the British Home Secretary in the Extradition Process of General Pinochet

 

A drama in four acts by Tomáš Karásek and Kevin Gibbons

 

 

Few events in British legal history have given rise to such intense controversy and international interest as the arrest of General Pinochet on British soil in 1998. Pinochet had been arrested in order to extradite him to face prosecution in the Spanish courts on charges of having committed crimes against humanity during the period of his dictatorship in Chile. Public attention was naturally focused on the critical questions of whether Britain and Spain's actions constituted a violation of Chile's national sovereignty and on the question of whether a former head of state enjoyed legal immunity from prosecution and extradition for the public acts carried out during his term of office. Yet there are two further aspects of the case which deserve consideration, namely:

 

1) How did it come about that a member of the British government (the Home Secretary) was responsible for making many of the key decisions relating to this case (including the decision to abandon the extradition process), decisions which in most countries would be made by a judge or court, not a politician? and

 

2) Is this situation acceptable in a modern democracy and consistent also with the doctrine of the "Separation of Powers"?

 

According to the British Home Office extradition can be defined as "the return of a wanted criminal from a country where he or she is found, to the country where he or she is accused of, or has been convicted of, a criminal offence". It deals with a highly sensitive area of the law where considerations such as the desire to control serious crime are finely balanced against concerns to protect national sovereignty and the rights of the defendant. Extradition procedure in Britain is largely governed by the Extradition Act 1989, and it is in this act the attempt to balance the competing interests in the extradition process takes place. To ensure this balance is maintained, the Act insists that the extradition process be subject to certain general restrictions, including one which prevents the extradition of a person if it appears "that the offence of which that person is accused or was convicted is an offence of a political character" (s6(1)(a)).

 

According to the Act this balancing role is to be carried out by the Home Secretary (Mr Jack Straw), whose permission to proceed is required at practically all stages of the extradition process. To perform this role effectively Parliament has granted him an extensive discretion, allowing him to take into consideration any matter he considers relevant, including presumably considerations of national interest which might be affected by a particular extradition, in making his decision. Like all ministerial discretion conferred by an Act of Parliament, however, the Home Secretary is obliged to exercise his power in good faith. Allowing his personal political views to influence his decision, for instance, would definitely be a clear breach of his authority. His discretion, therefore, although extensive, is not unlimited and must be exercised in an objective manner and in the spirit of the law. Mr Straw himself has described his discretion as being "quasi-judicial one".

 

Act 1 - "General Pinochet, you're under arrest!"

 

General Augusto Pinochet was arrested by the London Metropolitan Police on 16 October 1998. The police had been ordered to do this after receiving a Provisional Warrant issued by a local magistrate (the lowest rank of British judge) who in turn was acting on an Extradition Request he had just received from the government of Spain for the arrest of the General. Normally if a judge receives such a request he must at once seek the permission of the Home Secretary in the form of an Authorisation to Proceed before ordering the arrest. However, in case of urgency, i.e., where the magistrate has reason to believe the accused will attempt to flee before the arrest can be made, the magistrate can issue a provisional warrant. The magistrate, however, must subsequently seek the earliest possible opportunity to obtain an authorisation to proceed from the Home Secretary in order for the extradition process to continue.

 

General Pinochet was the highest-ranking official so far to be arrested on the grounds of crimes against humanity. His arrest was celebrated by human rights activists all over the world as well as victims of Pinochet's regime, but vigorously condemned in Britain by the opposition Conservative Party and of course abroad by the government of Chile and others. It immediately placed Britain and especially the Home Secretary Jack Straw in an extremely difficult position. On the one hand, he had to respect the law, including Britain's international treaty obligations (in this case to Spain) concerning extradition. On the other hand he could not ignore the diplomatic and political consequences that the extradition of General Pinochet would bring. And although it would be for the courts to decide the legal validity of the Spain's extradition request, i.e., whether the offence in question was an extradition offence, whether there was sufficient evidence against Pinochet to justify it, and whether he enjoyed immunity from prosecution, the final decision about whether to extradite would to be made by Mr Straw himself.

 

Act 2 - Mr Straw declares: "Let the extradition commence"

 

Mr Straw's first important decision was made on 9 December when he rejected Pinochet's solicitors' plea to cancel the provisional arrest, and thus set the extradition procedure in motion. In making this decision Mr Straw did not consider it necessary to take into account Pinochet's health, age or status. The Home Secretary's decision was hailed by human rights groups and Amnesty International spokesman Richard Bunting stated that "Jack Straw should be congratulated for not bowing to political pressure", somewhat forgetting that the pressure did not come exclusively from Pinochet's supporters. On the other side of the barricade stood the Conservatives who called the decision "cowardly" (William Hague) and a "grave mistake" (Margaret Thatcher). The act of Mr Straw also instigated a British - Chilean diplomatic crisis with the Chilean ambassador, Mario Artaza, leaving Britain within hours of the decision.

 

Interlude - "You can't prosecute a former head of state"

 

The case now left the hands of the Home Secretary and went into those of the courts. General Pinochet's lawyers decided to question the legality of the decision to extradite on the grounds that as a former head of state General Pinochet enjoyed immunity against prosecution for all his public acts carried out during his term of office. An initial success by the General's lawyers in the High Court was overturned by the House of Lords, where it was held instead that the traditional immunity of a former head of state did not extend to crimes against humanity. This decision was then set aside in extraordinary circumstances when it transpired that one of the judges (Lord Hoffmann) had close connections with the organisation Amnesty International, one of the parties to the case, thereby creating an unacceptable appearance of bias. The whole question was again retried before the House of Lords, who once more held that General Pinochet enjoyed no immunity against prosecution - and therefore against extradition - and returned the case to the magistrate's court where the extradition procedure could be resumed.

 

Act 3 - Mr Straw says: "Full steam ahead!"

 

This preliminary objection to extradition having been disposed of by the House of Lords, the spotlight now fell again on the Home Secretary. In order for the process to continue it would be necessary for Mr Straw to issue a second Authorisation to Proceed. General Pinochet's lawyers therefore increasingly turned from legal to political arguments in order to persuade the Home Secretary to exercise his discretion to stop the extradition process. It was pointed out that any decision to extradite Pinochet to Spain would severely damage Britain's relations with Chile and might possibly undermine that country's efforts to overcome the effects of years of dictatorship. Chilean society was still deeply divided, and the extradition threatened to re-open old wounds and destabilise the infant democracy. It was also pointed out that Chile had almost certainly avoided bloodshed when General Pinochet had stepped down from power in 1990 voluntarily and many Chileans, including his former opponents, were grateful to him for this. Hence even the Chilean government, which was strongly hostile to Pinochet, found it necessary to fight for Pinochet's return home. However none of these reasons succeeded in persuading the Home Secretary and on the 14th April 1999 Mr Straw issued the second Authorisation enabling the extradition proceedings to continue. The drama was now fast moving towards its finale.

 

Act 4 - Performance Cancelled, Permanently.

 

On 15 October 1999, Mr Straw received a formal petition from Chile asking to return Pinochet on the grounds of his deteriorating health, supported with medical records. No matter how much the Labour government tried to display themselves as defenders of human rights, they were well aware that the international consequences of Pinochet's extradition would be grave. Cynics can therefore argue that the General's health problems gave them - and especially the Home Secretary - a good excuse for stopping the extradition. A medical examination undertaken by Mr Straw's department stated in convincing language that the General's mental health had dramatically deteriorated during his imprisonment in Britain, apparently as the result of having suffered a series of stress-related strokes, so that he could now no longer concentrate, remember clearly, talk coherently or follow what was going on around him. The argument was therefore made that because of his illness General Pinochet would be unable to obtain a fair trial, since he would be unable to understand court proceedings sufficiently in order to instruct his lawyers properly. Opponents were unconvinced and reasoned that it should be for the Spanish judiciary to make this determination about Pinochet's mental fitness to stand trial. The Home Secretary, however, decided to accept his medical team's recommendations. Thus, on 2 March 2000 Mr Straw made his last and possibly the most controversial decision in the case when he stopped the extradition procedure and let Augusto Pinochet go back to Chile after more than seventeen months of involuntary stay in Britain.

 

Critics' Review: the Performance of the Home Secretary

 

The role of the Home Secretary Jack Straw in this case was, as was said before, critical, and, in the view of many, he handled it both tactically well and without loss of face. He took a truly historic step when he allowed the procedure to start in 1998, thus warning former dictators that they could not escape the reach of the law for their crimes. At the same time, it can be argued, his ultimate decision to release Pinochet showed a firm grasp of political reality and an awareness of the serious diplomatic problems which would have been caused for Britain had extradition continued. Maybe it was not time yet to go so far. It was also ironic that the whole case was instigated by Spain whose history of peaceful handover of power from a dictator to democratic government was so similar to that of Chile.

 

But turning to the legal aspects of the procedure there is surely much that is unsatisfactory about substituting the opinion of a politician for that of a judge in the British extradition procedure. It remains unclear whether Mr Straw acted throughout in good faith (although there is no proof that he did not) or whether in the end General Pinochet's health was simply used as an excuse by Mr Straw to free himself of this most difficult and unwelcome guest. Such uncertainty fits ill with concepts such as the separation of powers or the rule of law. Moreover, why should considerations of "Britain's national interests" play any part in what is essentially a legal process? Surely an ordinary judge is equally able to guarantee the integrity of the extradition process, including application of the "extradition restrictions" imposed by the 1989 Act, as the Home Secretary and less likely to be suspected of following a secret political subtext. It is high time that Britain's extradition procedure is reformed and that the Home Secretary is returned to the world of politics where he belongs.

 

Bibliography:

Bradley, A.W. & Ewing, K.D., Wade and Bradley Constitutional Law, 11th ed., 1993

The Guardian Newspaper Archive on the Pinochet Case - www.guardianlimited.co.uk/Archive (16 March 2000)

 

Tomáš Karásek

N/A

 

Kevin Gibbons

Kevin Gibbons teaches history of the English Common Law at the Charles University Law Faculty. He is the Academic Advisor of the Common Law Review.

 
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