T v. Secretary of State for the Home Department
| Publisher | United Kingdom: House of Lords (Judicial Committee) |
| Author | House of Lords |
| Publication Date | 22 May 1996 |
| Citation / Document Symbol | [1996] 2 All ER 865 |
| Cite as | T v. Secretary of State for the Home Department, [1996] 2 All ER 865, United Kingdom: House of Lords (Judicial Committee), 22 May 1996, available at: https://www.refworld.org/cases,GBR_HL,3ae6b70f4.html [accessed 21 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
T v Secretary of State for the Home Department
HOUSE OF LORDS
[1996] 2 All ER 865
Hearing Date: 16, 20, 21 November 1995, 22 May 1996
22 May 1996
Index Terms:
Immigration - Leave to enter - Refugee - Asylum - Applicant for asylum entering country illegally on false documents - Applicant fearing threat to life or freedom in home country - Applicant a member of illegal political organisation carrying out terrorist activities in home country - Application for asylum refused on grounds of applicant's involvement in 'serious non-political crimes' - Circumstances in which crimes to be characterised as 'political' - Convention relating to the Status of Refugees 1951, art 1F.
Held:
T was an Algerian citizen who entered the United Kingdom as an illegal entrant and later claimed political asylum. The Secretary of State refused his application. T appealed to a special adjudicator on the ground that his removal would be contrary to the United Kingdom's obligations under art 33(1)a of the Geneva Convention relating to the Status of Refugees 1951 in view of the fact that his life or freedom would be threatened on account of his political opinions if he were returned to Algeria. The special adjudicator accepted that T was a member of an illegal political organisation (the FIS), which sought to secure power in Algeria by any means including violence and that he had been involved in the planning of an explosion at Algiers Airport (in which ten people had been killed) and a raid on a military depot (in which one person had died). He accordingly dismissed the appeal on the ground that T's involvement in those incidents brought him within the scope of art 1Fb of the 1951 convention as a person with respect to whom 'there were serious reasons for considering' that he had committed a 'serious non-political crime' before being admitted to the United Kingdom as a refugee and was thereby not entitled to the protection of the convention. T's subsequent appeal to the Immigration Appeal Tribunal was dismissed on the ground that the terrorist offences could not be characterised as political crimes. T appealed further to the Court of Appeal, which held that it would be inappropriate to characterise indiscriminate bombings which led to the deaths of innocent people as political crimes and dismissed the appeal. T appealed to the House of Lords.Held - The appeal would be dismissed for the following reasons --
(1) (Per Lord Keith, Lord Browne-Wilkinson and Lord Lloyd) A crime was a political crime for the purposes of art 1F of the 1951 convention if it was committed for a political purpose and there was a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link existed, the court would consider the means used to achieve the political end and, in particular, whether the crime was aimed at a military or governmental target, or a civilian target, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public. Although it was clear that the FIS was a political organisation and that T's motive in becoming involved in the airport bombing was to overthrow the government, the crime, as carried out, was almost bound to involve the indiscriminate killing of members of the public; the link between the crime and the political object which T was seeking to achieve was therefore too remote. (2) (Per Lord Mustill and Lord Slynn) Acts of violence which were likely to cause indiscriminate injury to innocent persons who had no connection with the government of the state did not constitute political crimes for the purposes of the 1951 convention and consequently the attacks on the airport and the barracks had been correctly characterised by the appeal tribunal as terrorist offences. (3) It followed that the appeal tribunal and the Court of Appeal had been entitled to hold that there were serious reasons for considering that T had committed a serious non-political crime outside the United Kingdom and was therefore excluded from the protection of art 33(1) of the convention by virtue of art 1F(b). Decision of the Court of Appeal [1995] 2 All ER 1042 affirmed.Notes:
For control of immigration with respect to political asylum and refugees, see 4(2) Halsbury's Laws (4th edn reissue) para 82.Cases referred to in the Judgment:
Atta (Mahmoud Abed), Re (1989) 706 F Supp 1032, US Dist Ct, affd sub nom Ahmed (Mahmoud Abed) v Wigen (1990) 910 F 2d 1063, US Ct of Apps (2nd Cir). Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940, [1987] AC 514, [1987] 1 WLR 155, HL. Carron v McMahon, Carron v Governor of Portlaoise Prison [1990] IR 265, Ir SC. Castioni, Re [1891] 1 QB 149, [1886-90] All ER Rep 640, DC. Cheng (Tzu-Tsai) v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931, [1973] 2 WLR 746, HL. Doherty, Re (1984) 599 F Supp 270, US Dist Ct; affd sub nom US v Doherty [1986] F 2d 491, US Ct of Apps (2nd Cir). Eain v Wilkes (1981) 641 F 2d 504, US Ct of Apps (7th Cir). Ellis v O'Dea [1991] ILRM 346 Ir SC. Folkerts v Public Prosecutor (1978) 74 ILR 498, Netherlands SC. Gil and Minister of Employment and Immigration, Re (1994) 119 DLR (4th) 497, Can Fed CA. Gross, Re, ex p Treasury Solicitor [1968] 3 All ER 804, sub nom Re Extradition Act 1870, ex p Treasury Solicitor [1969] 1 WLR 12. Kolczynski, Re [1955] 1 All ER 31, sub nom R v Governor of Brixton Prison, ex p Kolzynski [1955] 1 QB 540, [1955] 2 WLR 116, DC. McGlinchey v Wren [1982] IR 154, SC. Mackin, Re (1981) 668 F 2d 122, US Ct of Apps (2nd Cir). McMullen v Immigration and Naturalization Service (1981) 658 F 2d 1312, US Ct of Apps (9th Cir); subsequent proceedings (1986) 788 F 2d 591, US Ct of Apps (9th Cir). Meunier, Re [1894] 2 QB 415, DC. Ornelas v Ruiz (1896) 161 US 502, US SC. Quinn v Robinson (1986) 783 F 2d 776, US Ct of Apps (9th Cir). R v Governor of Pentonville Prison, ex p Budlong [1980] 1 All ER 701, [1980] 1 WLR 1110, DC. R v Governor of Winson Green Prison, Birmingham, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR 893, DC. R v Secretary of State for the Home Dept, ex p Chahal [1995] 1 All ER 658, [1995] 1 WLR 526, CA. Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556, [1962] 3 WLR 1013, HL. Wisconsin (State of ) and Armstrong, Re (1973) 32 DLR (3d) 265, Can Fed CA.Introduction:
Appeal T, an Algerian citizen who was an illegal entrant, appealed with leave from the decision of the Court of Appeal (Nourse, Glidewell and Simon Brown LJJ) ([1995] 2 All ER 1042, [1995] 1 WLR 545) delivered on 3 November 1994 dismissing T's appeal from the determination of the Immigration Appeal Tribunal made on 11 May 1994 dismissing his appeal from the determination of the special adjudicator promulgated on 29 March 1994, whereby the special adjudicator upheld the decision of the Secretary of State for the Home Department refusing his application for asylum. The facts are set out in the opinion of Lord Mustill.Counsel:
Nicholas Blake QC and Richard Scannell for T; David Pannick QC and Neil Garnham for the Secretary of State.Judgment-READ:
Their Lordships took time for consideration. 22 May 1996. The following opinions were delivered. PANEL: LORD KEITH OF KINDEL, LORD BROWNE-WILKINSON, LORD MUSTILL, LORD SLYNN OF HADLEY AND LORD LLOYD OF BERWICKLORD KEITH OF KINKEL.
My Lords, for the reasons given in the speech to be delivered by my noble and learned friend Lord Lloyd of Berwick, which I have read in draft and with which I agree, I would dismiss this appeal.LORD BROWNE-WILKINSON.
My Lords, for the reasons given by my noble and learned friend Lord Lloyd of Berwick I too would dismiss the appeal.LORD MUSTILL.
My Lords, during the nineteenth century those who used violence to challenge despotic regimes often occupied the high moral ground, and were welcomed in foreign countries as true patriots and democrats. Now, much has changed. The authors of violence are more ruthless, their methods more destructive and undiscriminating; their targets are no longer ministers and heads of state but the populace at large; and their aims and ideals are frequently no more congenial to the countries in which they take refuge than those of the regimes whom they seek to displace. The unsympathetic call them terrorists, and their presence is seen as both an affront and a danger. These fundamental changes in method and perception have not been matched by changes in the parallel, although not identical, laws of extradition and asylum. These laws were conceived at a time when political struggles could be painted in clear primary colours largely inappropriate today; and the so-called 'political exception' which forms part of these laws, and which is the subject of this appeal, was a product of Western European and North American liberal democratic ideals which no longer give a full account of political struggles in the modern world. What I regard as the exceptional difficulty of this appeal is that the courts here, as in other legal systems, must struggle to apply a concept which is out of date. The appeal arises as follows. The appellant, identified throughout as T, is an illegal immigrant, having entered the United Kingdom under a false name and papers. He is a national of Algeria, and a member of a group named the Front Islamique du Salut (the FIS) which, according to the account given in evidence on his behalf, was cheated of success in a democratic election and had recourse to violent means aimed at displacing the ruling powers. Amongst the activities of this group in which the appellant played a part was the detonation of a bomb at an airport in Algeria. Ten people were killed, none of them having, so far as is known, any connection with the opponents of the appellant's group, or with the struggle in which the group was engaged. Unfortunately, the way in which this apparently random violence might have served the ends of the group was not explored in these proceedings. We have little more than one or two statements by the appellant in evidence that the objective of the bomb was to hit the national economy, rather than to kill people. He also admitted to some degree of involvement in an attack on an army barracks. These were the circumstances in which the appellant, having been arrested and served by the Secretary of State with a notice that he would be returned to Algiers, appealed to a special adjudicator, and thence to the Immigration Appeal Tribunal and the Court of Appeal. He has failed at each stage, and now appeals to your Lordships' House.I. PRELIMINARY
Four points of cardinal importance must at once be made. The first is that the appeal is concerned with asylum, not with extradition. Algeria does not demand the return of the appellant. There is no treaty of extradition which would permit such a demand, and the United Kingdom would be in breach of no international obligation owed to Algeria if it allowed the appellant to remain within its territories, or sent him somewhere else. Secondly, and this is a most unusual feature, there is here no dispute, of the kind which has become a common feature of the present flood of applications for asylum, about the treatment which the asylum-seeker can expect if removed to another country. It is no longer questioned that if the appellant is returned to Algeria his life or freedom would be threatened 'on account of his . . . membership of a particular social group or political opinion' (art 33(1) of the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171). Thirdly, although it is easy to assume that the appellant invokes a 'right of asylum', no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries. Under the law of asylum the United Kingdom can choose to allow the appellant to reside here, rather than return him to Algeria to face the consequences of his admitted crimes. Conversely, it can expel him and cause him to be transported to whatever country is willing to accept him. The Secretary of State has made it plain that if the appellant can find a country other than Algeria which will accept the appellant he will be sent there. No such country has been suggested by the appellant. The Secretary of State does notwish to send the appellant back to Algeria, but as things now stand there is nowhere else for him to go. Fourthly, although a refugee has no direct right to insist on asylum, there are certain statutory restrictions on the Secretary of State's freedom of choice as to the destination to which a person refused permission to remain may be sent, which may in practice achieve the same result. I will presently come to the statutory provisions in detail. For the moment it is sufficient to say that the United Kingdom is under an international and municipal duty derived from art 33(1) of the 1951 convention not to return a fugitive to a place (like Algeria in the present instance) where he is liable to be persecuted. This duty (to which effect is given in English municipal law by r 334(ii) of the Statement of Changes in Immigration Rules (1980) (HC Paper (1994) No 395)), is subject to an exception, whereby the protection against 'refoulement' (as it is called) is disapplied where the fugitive has, before coming to this country, committed a 'serious non-political crime', within the meaning of art 1F(b) of the 1951 convention. This expression is the source of the present appeal. That the bombing at the airport was a serious crime, and that the appellant took part in it, is beyond doubt. The question is whether the crime was 'political' in character. If it was, the appellant must be given leave to remain. If not the Secretary of State may return him to Algeria, if all else fails.II. THE APPELLANT'S CASE
On these simple facts the appellant founds a simple argument. If the elections had been allowed to run their course, the incoming government would have been chosen by a contest between two or more parties or factions, plainly a political process. The undemocratic interference with this process left the appellant's associates with no choice but to adopt radically new methods to achieve the same political ends. True, these methods did not resemble those of the Western democracies, but Algeria is not a democracy, and the Western model is not, and never has been, the only way of conducting politics. True also, that the methods were criminal, but an act may be none the less political for being criminal, as the expression 'non-political crime' itself recognises. And the degree of criminality is material only to the 'serious' element of the description 'serious non-political'. For the latter purpose it can logically make no difference how many people suffered, or who they were. No doubt this bears on the acceptability of the fugitive's conduct to the ethical and social ideals of the receiving nation, but the test is not moral, and in any event is not to be judged by conditions and concepts remote from those of the place where the offence took place. Nor does it help to characterise the appellant as a terrorist, since, as is often remarked, yesterday's terrorist is today's freedom fighter and perhaps tomorrow's head of state. In reality, so the argument concludes, the general character of the activities of the FIS was unchanged. It was as political after the abortive election as it had been before, and this character invests crimes committed under the aegis of the FIS with a character different from that which they would have had if committed, for example, in the course of criminal gang warfare. This is a powerful argument, the more so because it warns against the assumption that political action should be equated with the activities permitted to rival parties or groups seeking power under a parliamentary system of government such as exists in Europe and North America, and under other systems based on the same model. This being acknowledged, I believe that the appellant's argument goes too far, for it assumes that society, and the struggles within it, have stood still for more than a century. Those who were intended to benefit from the political exception had taken up arms, having no other means, to relieve from oppression those who could not fend for themselves. The human rights of the individual who sought refuge in fear of persecution therefore coincided with those of the oppressed, and the evil of violence could be tolerated without threat to the world order in the greater interests of making the world a better place. Whether this was sound thinking no longer matters, for the scene has changed. Those who use violence and fear to struggle against oppression may themselves be oppressors, causing as much suffering to the defenceless as those whom they seek to displace. When they flee to a foreign country the impulse to protect them from persecution remains, but it is muted. The community as a whole has a moral right to protection, which should not be compromised by offering too ready a refuge to those who, having embroiled the population in violence, find themselves on the losing side. It must be acknowledged that although the words of the exception remain the same, the world has changed round it, and tests which may in the past have sufficed to settle the comparatively few cases where a criminal act required classification as political or non-political are too inflexible, now that the motives and means of destructive violence have become so greatly enlarged. For this reason, I would reject the simple logic of the appellant's primary argument, and also its exclusive reliance on the earlier authorities, to which I shall come in due course. To my mind, the whole trend of the more modern decisions and writings is towards an acceptance that certain acts of violence, even if political in a narrow sense, are beyond the pale, and that they should not be condoned by offering sanctuary to those who commit them. Equally, the materials brought before the House concur in a very general ideal of where the boundary lies. The problem is to find a precise and intellectually sustainable test which will enable a line to be drawn in practice by those who are required to make decisions, often under pressure of time with meagre factual materials. For this purpose I will examine the legislative background on the comparatively few authorities brought forward in argument, but must first set out the evidence and the proceedings leading to this appeal.III. PROCEEDINGS AND EVIDENCE
When the Secretary of State first came to consider the appellant's application for asylum, attention was concentrated on a number of issues no longer material, such as the questions whether the appellant had been in real peril before leaving Algeria; whether as he claimed he was concerned in the organisation of the FIS; why he had not claimed asylum in Italy and France on leaving Algeria; why he had not claimed asylum immediately on arrival in England if he was a genuine asylum-seeker; whether he had been arrested in Algeria for a conspiracy to cause explosions; and whether he would be in danger if returned to Algeria. The scepticism of the Secretary of State on all these questions led him to decide that the appellant did not qualify for asylum, quite apart from whether he forfeited any protection which he might otherwise have enjoyed because the attacks of which he had spoken were serious non-political crimes. Consequently this point was mentioned only in passing by the Immigration and Nationality Department of the Home Office in its letter dated 3 September 1993 giving the Secretary of State's reasons for refusing asylum. It is not surprising therefore that the appellant had comparatively little to say about it in his grounds of appeal to the special adjudicator. According to this document, when the explosion took place the appellant had been present at the airport. He did not give any orders for the bombing to be carried out, but was simply the political organiser of the group. He was aware that the bombing was to take place, but was unaware of its exact details. The original plan had been for the bomb to be placed outside and simply cause damage to the airport building, with the aim of causing economic damage to the government. But he became aware on the evening before that the group had been infiltrated by the government, with the result that the FIS would be classed as a terrorist organisation and exposed. It was too late for him to prevent the explosion from taking place. As regards the attempt to get arms from the army barracks, the appellant planned the operation. One person was killed. Another was captured and gave the name of the appellant's cousin, who was arrested. The appellant gave a further account in his oral evidence before the special adjudicator. The note of evidence is not verbatim, and may have suffered from difficulties of interpretation. At all events, it is very difficult to follow. The gist seems to have been that although the appellant knew in advance that a bomb would be set off and that people would be injured he was not 'fully aware it was to be'. He was not involved in the planning of the explosion, and did not know where it was to be, except at the airport. By the time he reached the airport, where he was 'only passing by', the bomb had already been set off. The target for the bomb was the economy of the state, since:'After the anti constitutional dissolution of the FIS 80% of the population lost its voice. The council of FIS noticed the only way was to hit the State economy in a way to disturb it.'The infiltration of the group by the security services caused the FIS to be regarded as a terrorist group.
The hearing before the special adjudicator concluded on 14 March 1993. His conclusions were as follows. He did not find the appellant to be a credible witness. Nevertheless, on balance of probabilities he accepted that the appellant was a member of the FIS. Also, on balance of probabilities, the appellant 'was involved in the planning of the bombing at the airport and the raid to obtain arms.' If the account of the appellant was to be believed, he was aware of the planning of the bombing at the airport and he knew that the group had been infiltrated. If the special adjudicator accepted that account, the matter fell within art 1F of the 1951 convention. Similarly, the appellant had said in his grounds of appeal that he was involved in the arms raid on the military establishment; one person was killed and another arrested. On this account the appellant again fell within art 1F. Accordingly, the appeal was dismissed. The appellant appealed to the Immigration Appeal Tribunal. By this time the Secretary of State had accepted that apart from the exclusion in art 1F(b) the appellant had a valid claim to asylum. Most of the issues of fact which had preoccupied the immigration officials, the special adjudicator and the appellant's advisers thereupon ceased to matter. The tribunal looked again at the facts which were now crucial, and made the following findings:'We find as a fact, on the basis of that evidence that [T] was involved directly in the planning of an attack that led to the death of one person, andhe was involved in, and had prior knowledge of, a bomb attack in which ten people were killed. We do not accept [his counsel's] submission that his degree of involvement was such that he was not personally and knowingly involved. We conclude that [T], in common parlance was actively involved in a terrorist organisation, one that was prepared to advance its aims by random killings, and [T] was closely associated with one such incident.'After a brief discussion of the relationship between terrorism and the 1951 convention the tribunal concluded that it would be against common sense and right reason to characterise indiscriminate bombings which led to the deaths of innocent people as political crimes so as to remove them from the exclusion clause, and that it could not have been the intention of the 1951 convention to accord protection to those who engaged in the 'terrorist activities' in which the appellant engaged. The appeal was therefore dismissed.
The appellant appealed to the Court of Appeal (Nourse, Glidewell and Simon Brown LJJ) ([1995] 2 All ER 1042, [1995] 1 WLR 545). After anxious consideration and not without some initial hesitation the court dismissed the appeal. The thoughtful judgment, to which all members of the court contributed, examined the authorities and in the light of them found the reasoning of the tribunal unsatisfactory because it proceeded simply on the basis that this was a case of 'terrorism' and as such must be outwith the political exception (a proposition which the court did not accept), and gave no consideration to whether the relevant offences were too remote from their alleged objective or otherwise disproportionate to it. The court considered, however, that it was unnecessary to remit the matter to the tribunal, since the findings of fact were sufficient to lead to a conclusion. This, the court expressed as follows:'We too think it inappropriate "to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes". Our reason is not that all terrorist acts fall outside the protection of the convention. It is that it cannot properly be said that these particular offences qualify as political. In our judgment the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose. It offends common sense to suppose that the FIS's cause of supplanting the government could be directly advanced by such an offence. Indeed, on the facts, T himself appears implicitly to recognise this when he claims that the FIS group was infiltrated by the security services (ie the government) and seeks to dissociate himself from the yet graver offence which he acknowledges (indeed asserts) resulted from the infiltration -- the particular atrocity that led here to the deaths of ten innocent people. Despite therefore the deficient reasoning contained in the tribunal's own decision and the real possibility that they asked themselves the wrong questions in deciding whether the supposed offences were or were not political, we accordingly dismiss this appeal.' (See [1995] 2 All ER 1042 at 1056, [1995] 1 WLR 545 at 559-560.
IV. NATIONAL AND INTERNATIONAL LEGISLATION
That being the state of the dispute, I turn next to the international and national legislation, which is relevant directly because it is the source of the problem, and indirectly because it demonstrates to my mind a shift in the perceptions of theinternational community about the degree of protection which should be given to refugees who have committed violent crimes to the harm of the public at large. It is convenient to arrange this material under the headings of asylum, extradition, the 'depoliticising' of offences and the prosecution in one country of crimes committed elsewhere.(1) Asylum
The legislation must be viewed against the background of a complete absence of any common law right, either national or international, for a refugee to insist on being admitted to a foreign country. For present purposes the starting point is the 1951 convention, which provides:'Article 1 Definition of the term "Refugee"
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(1)Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization . . .
(2) . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . .
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations . . .
Article 33 Prohibition of expulsion or return ("refoulement")1No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.'
It is evident from the literature, which I need not cite, that the rather puzzling expression 'un crime de droit commun', often rendered as 'common crime', has nothing to do with the common law, but is equivalent to 'ordinary crime', or conduct recognised as criminal by the common consent of nations. Murder is a common crime; treason is not. Turning to the United Kingdom legislation, effect is given to the 1951 convention by the Asylum and Immigration Appeals Act 1993, which provides, so far as material:'1. Interpretation. -- In this Act -- "the 1971 Act" means the Immigration Act 1971; "claim for asylum" means a claim made by a person . . . that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom; and "the Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention. 2 . . . Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention . . .
6 . . . During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom . . .
8 . . . (4) Where directions are given as mentioned in section 16(1)(a) or (b) of the 1971 Act for a person's removal from the United Kingdom, the person may apply to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention . . .' The 1993 Act operates by way of qualification to the Immigration Act 1971, paras 8 and 9 of Sch 2 to which provide:'8. -- (1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may . . . (c) give [to the owners or agents of the ship or aircraft in which he arrives] directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the direction to a country or territory so specified, being either -- (i) a country of which he is a national or citizen; or (ii) a country or territory in which he has obtained a passport or other document of identity; or (iii) a country or territory in which he embarked for the United Kingdom; or (iv) a country or territory to which there is reason to believe that he will be admitted . . .9. Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1).'
Finally, practical effect is given to the 1951 convention by Pt I of the 1993 immigration rules, set out in the Statement of Changes in Immigration Rules, laid before Parliament on 23 May 1994 (HC Paper 1994 No 395). The relevant provisions are:'328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees . . . 329. Until an asylum application has been determined by the Secretary of State, no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom . . .
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by the Convention and Protocol; and (iii) refusing his application would result in his being required to go . . . in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
335. If the Secretary of State decides to grant asylum to a person who has . . . entered without leave, the Secretary of State will . . . grant limited leave to remain . . .336. An application which does not meet the criteria set out in paragraph 334 will be refused.'
From what has already been said it will be plain that the appellant prima facie meets the criteria for non-refoulement to Algeria, and that in the absence of anywhere else to go he is entitled under r 334 to be given limited leave to enter the United Kingdom. But if his crime was not political he is not protected against refoulement, his removal to Algeria would not be contrary to the United Kingdom's obligations under the convention, and he may be so removed under para 8(1)(a) of Sch 2 to the 1971 Act.(2) Extradition
There is no need to prolong this opinion by setting out the history in detail, for it is comprehensively described in the speech of Lord Simon of Glaisdale in Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931 (dissenting, but not on this aspect). As I see it, the history discloses a series of oscillations. In earliest times one sovereign was most likely to ask that another should render up an offender when the offence was directed at the sovereign and his apparatus of state; and the interests of comity made it most likely that a favourable response would be given when the offence was of that character. The changing face of political life in Europe, and later in the United States, brought about a reversal, so that whilst 'common crimes' now became the staple of formal extradition, there was a need for certain of such crimes to be exempt, when impressed with a political character. The result was a broad division, established by a series of bilateral treaties and a handful of decisions, into (a) 'common' crimes, (b) purely political crimes such as treason, and (c) 'relative' political crimes which are common crimes with a political overlay. This endured for a century with little strain. Conceptually, it defied the commentators, but for so long as the only societies where in practice these questions were determined subscribed to the same broad principles of liberal democracy, there were few instances where the demand for extradition came close enough to the line to call for accurate judicial analysis. In course of time this imprecision ceased to answer. A group of conflicting impulses began to take effect. The first was the humanitarian impulse of hospitality to refugees, fuelled by the revealed horrors of totalitarian excess and by the acute political tensions of the post-war years. This impulse was repeatedly acknowledged by the United Nations in its early days, and was put into practice by the 1951 convention. The second impulse was to the contrary. Not all refugees were worthy of compassion and support. As art 1F of the convention recognised, war criminals and offenders against the law of nations could properly be sent home to answer for their crimes, and there were others whose criminal habits made it unreasonable for them to be forced on to a host nation against its will. Such persons could not claim to be protected against refoulement, even where their lives or freedom were at risk. Significantly, they are referred to in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the Protocol relating to the Status of Refugees (1979) published by the office of the UN High Commissioner for Refugees (hereafter 'the UNHCR Handbook') as 'persons who are not considered to be deserving of international protection' (2nd edn, 1988) para 140. Another, and rather different, impulse was also opposed to the universal reception of refugees: namely the acknowledgement that terror as a means of gaining what might be loosely described as political ends posed a danger not only to individual states, but also to the community of nations. Thus, as long ago as 1937 the promoters of a League of Nations Convention for the Prevention and Punishment of Terrorism made a concerted attempt to reconcile the conflicting humanitarian impulses, calling on states to collaborate in the punishment of what were called acts of terrorism. This convention was unusual, and perhaps unique, in containing a useful definition. It was as follows:'"acts of terrorism" means criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.' (See art 1.2). The 1937 convention never came into force, but in the post-war years advances in technology and transportation have made the image of the lone assassin, with pistol arm outstretched, hurling himself at the tyrant in defiance of an angry crowd, seem out of date. The weapons have become more destructive, and less discriminating; the targets, such as passenger aircraft, nuclear plants and off-shore rigs, are more vulnerable; and the risks to the perpetrator are more easily evaded. Furthermore, the simple world of the bad tyrants and the good patriots has vanished. Those who struggle against odious regimes have now come to seem, by their aims and methods, scarcely less odious than their oppressors. Yet it was (and still is) hard to see why their crimes, however distasteful and heartless, are any the less 'political' than those of the heroes of the Risorgimento. International terrorism must be fought, but the vague outlines of the political exception are of no help. Something more clear-cut is needed.
(3) The depoliticising of crimes
The first response to the problem was to define the boundaries of the political exception by ignoring its intellectual basis and by listing those offences which, without any regard to the factors which would otherwise be material, were not for the purposes of extradition to be exempt. In the language of the text-writers, these offences would be 'de-politicised'. A series of international conventions has steadily enlarged this list, so that it embraces genocide, torture, the taking of hostages, crimes against internationally protected persons and attacks on and acts compromising the safety of aircraft, aerodromes, ships and marine installations; and these specific instances have been the subject of legislation in the United Kingdom which it is unnecessary to rehearse. Of particular importance, however, is the European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977; TS 93 (1978) Cmnd 7390), to which effect was given in the United Kingdom by the Suppression of Terrorism Act 1978, now re-enacted with enlargements by the Extradition Act 1989. The former Act not only extended (as between the states party to the convention) the list of extradition crimes, but also contained in Sch 1 a list (now carried into the 1989 Act) of offences which were not to count as political. These offences currently include murder, manslaughter, offences against the person, and causing explosions likely to endanger life or property. Thus, if the appellant's activities had taken place within the territory of a European participating state (or in the United States, to which the convention and the statute have been extended), the anxious and difficult questions raised by this appeal would not have arisen.(4) Extra-territorial jurisdiction
Another weapon in the fight against terrorism has been the revival of the doctrine, propounded by Hugo Grotius (De Jure Belli ac Pacis lib 2, c 21, ss 3 and 4), 'aut dedere aut punire', that states are under an international obligation either to return criminals (or at least certain types of criminal) to the place where their crimes were committed, or to prosecute and if appropriate punish them locally. This idea was to a limited extent a feature of the 1937 League of Nations Convention (arts 9 and 10), and has now been given a more general effect by international and national legislation. Thus, by s 4(1) of the 1978 Act the United Kingdom has assumed extra-territorial jurisdiction over the long list of crimes contained in Sch 1: a list which, as already observed, is amply wide enough to cover the crimes of which the appellant is said to be guilty. The assumption of extra-territorial jurisdiction goes further. In relation to a much smaller group of activities, directed at particularly vulnerable targets, the United Kingdom has by statute assumed jurisdiction over criminal acts irrespective both of the offender's nationality and of the place where the acts are done. For present purposes the most conspicuous of these is the Aviation and Maritime Security Act 1990, s 1 of which makes it an offence triable in the United Kingdom --'for any person by means of any device . . . to commit at an aerodrome serving international civil aviation any act of violence [defined in such a manner as to include murder, manslaughter, offences against the person and the use of explosive devices] which -- (a) causes or is likely to cause death or serious personal injury and (b) endangers . . . the safe operation of the aerodrome or the safety of persons at the aerodrome.'This appeal does not arise from a request for extradition by Algeria, and still less with any prosecution by the authorities under the 1990 Act; and it would be wrong to found any conclusion directly on a statute not examined in argument. Nevertheless the 1990 Act does serve to emphasise, in relation to activities resembling those of the appellant, the changed international perception of the relationship between sanctuary and acts of violence committed abroad.
V. THE AUTHORITIES
(1) Materials
Although arising in the domestic context, this is essentially a case on public international law, a field in which the writings of scholars have always exerted great authority. Given both the intellectual difficulty of the present subject and the practical and moral problems which it presents, it was no surprise that a superficial survey after the close of the arguments disclosed an extensive literature, in which for more than 50 years writers have explored the political exceptions in depth, often with particular reference to issues arising on the present appeal. Some of this material was indeed brought forward, but the scale of citation was modest. Since it was neither practical to explore the writings in any depth, nor proper (in the context of an adversarial process) to rely upon them, I have with regret left them out of account; with regret, because I believe that they would have enabled a more systematic analysis than can be founded on the comparatively few, and by no means consistent, decisions of common law courts relied upon before the House. Nevertheless, that is how the matter stands, and to those decisions I now turn. I include among them cases on extradition as well as asylum. There are significant differences between the two doctrines; I have already mentioned one, and an account of several others may be found in the valuable judgment of Hugesson J in Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4th) 497 in the Canadian Federal Court of Appeal. Nevertheless, the reference to the 'serious non-political crime' in the 1951 convention must surely be an echo of the political exception which had been a feature of extradition treaties for nearly a century, and one may hope that decisions on the political exception would provide a comprehensive framework for the few and scattered decisions on asylum.(2) Two categories of decision
I have been unable to deduce from the cases and the literature any theory which accounts for all the decisions and dicta. It does, however, appear that the authorities may be arranged in two groups. First, those which look to the connection between the motive and political content of the crime and the criminal act itself; and second those where attention is directed to the nature and degree of the offence. These categories are not exclusive, and indeed one can see both strands of reasoning in the passages quoted from the judgment of the Court of Appeal in the present case.(3) Context and motive
This group includes all the English cases. It establishes one general proposition, and a number of qualifications. The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the 'incidence' theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle. Two cases in this House are in point. First, Schtraks v Government of Israel [1962] 3 All ER 529 at 540, [1964] AC 556 at 591, in which Viscount Radcliffe said:'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 second case, Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 at 209, [1973] AC 931 at 945, where Lord Diplock said --
'even apart from authority, I would hold that prima facie an act committed in a foreign state was not "an offence of a political character" unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there.' (Lord Diplock's emphasis.
This principle underlies the major English decisions on extradition law. Thus, in Re Meunier [1894] 2 QB 415 an anarchist who had detonated a bomb in a cafi was refused the political exception because the essence of the anarchist philosophy is a denial of legitimacy to all forms of government and politics. An anti-political gesture could not be political in nature. By contrast, in Re Castioni [1891] 1 QB 149, [1886-90] All ER Rep 640 extradition was refused where in the heat of an attack on an arsenal and the municipal palace of a Swiss canton by persons dissatisfied with the government the fugitive had shot and killed a member of the state council. It is notable that Hawkins J observed that things --'may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.' (See [1891] 1 QB 149 at 167, [1886-90] All ER Rep 640 at 649-650.
In Schtraks, extradition was sought against the appellant by the State of Israel on charges of perjury and child-stealing. The evidence showed that the appellant had been concerned that his grandchild aged seven would not receive a religious education as an orthodox Jew if returned to his parents, and therefore refused to comply with an order for return made by the High Court of Israel. Although there was a measure of difference between Lord Reid and Lord Radcliffe about the boundaries of the exception, all were agreed that this family quarrel was not within it, even though one political faction had taken up the appellant's cause. The principle of incidence received emphatic indorsement in Cheng. The appellant was a member of a Formosan group opposed to the current regime in Taiwan. The son of the head of state visited the United States, and lodged in an hotel, outside which there was a demonstration in which the appellant took part. In the course of the demonstration a pistol was discharged by another man who, together with the appellant, was indicted for attempted murder. The assailant pleaded guilty and the appellant was convicted. He absconded from bail whilst awaiting sentence, and was apprehended in this country. The United States requested extradition, and the appellant raised the political exception. By a majority the House held that the exception did not apply. The principal ground was that a political offence must be an incident in a political struggle taking place in the country which requests the extradition: and the appellant had no aim to bring about any changes in the government of the United States. This reasoning does not apply in an asylum case such as the present where there is no requesting state, and indeed the decision illustrates very well that the word 'political' does not have an identical meaning in the contexts of extradition and asylum. Nevertheless, the logic of the decision obviously demands that there cannot be a political crime in the absence of a struggle for power of which the crime is an element. To a similar effect is the decision of the Divisional Court in R v Governor of Pentonville Prison, ex p Budlong [1980] 1 All ER 701, [1980] 1 WLR 1110, and the American cases cited in McMullen v Immigration and Naturalization Service (1986) 788 F 2d 591 at 595. That the incidence test as applied in these authorities is not necessarily a complete account of the word 'political' is, however, shown by Re Kolczynski [1955] 1 All ER 31, [1955] 1 QB 540. Seven Polish seamen seized their vessel and sought refuge in an English port. The Polish government requested extradition for crimes of assault, malicious damage, and revolt on the high seas. The court refused to grant extradition, notwithstanding that there was at the time no political disturbance in Poland and that the seamen were not supporters of one party at odds with another, Poland being a one-party state. The court was, I believe, treating the situation as different from that which had prevailed when Re Castioni was decided 60 years before (see [1955] 1 All ER 31 at 35, [1955] 1 QB 540 at 549 per Cassels J). In the words of Chapman J in Re Gross, ex p Treasury Solicitor [1968] 3 All ER 804 at 809, [1969] 1 WLR 12 at 17 --'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.'With hindsight it may be thought that the decision could more convincingly have been arrived at by holding that the offences for which extradition was claimed were in reality 'pure' political offences, such as sedition, and that the totalitarian regimes existing in Eastern Europe during the 1950s were not really different in kind from those which had prompted the creation of the political exception. However this may be, there is no suggestion in either Schtraks or Cheng that Kolczynski was wrongly decided, and it must be taken to be the English law that an offence may be political even where the possibility of struggle is excluded by the presence of an overwhelmingly authoritative power, if the crime which they commit is, in the words of Lord Goddard CJ, 'the only means open to them' (see [1955] 1 All ER 31 at 36, [1955] 1 QB 540 at 541).
Thus far, the decided cases appear to lend support to an argument on the following lines. There was at the material time a struggle for power in Algeria which satisfied the requirements of Schtraks and Cheng. Unlike the crime in Meunier the appellant's criminal act was part of this struggle. True, it involved regrettable violence and loss of life, but this (as in Castioni) will often feature in a fight against repression. The FIS would have adopted democratic means if the ruling power had allowed it to do so, but (like the seamen in Kolczynski) had no choice except to use the only available methods. This is a powerful argument, but the cases show that it may be too simple. It may be that another requirement for perhaps two others, if they are not aspects of the same concept must be taken into account: namely that there must be a causal link, and an absence of 'remoteness,' between the political situation of which the refugee forms part and the crime which he has committed. This conception draws its authority, if not its origin, from a passage in the speech of Lord Diplock in Cheng [1973] 2 All ER 204 at 208-209, [1973] AC 931 at 944-945:'My Lords, the noun that is qualified by the adjectival phrase "of a political character", is "offence". One must, therefore, consider what are the juristic elements in an offence, particularly one which is an extradition crime, to which the epithet "political" can apply. I would accept that it applies to the mental element: the state of mind of the accused when he did the act which constitutes the physical element in the offence with which he is charged. I would accept, too, that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged; for, in the case of none of the extradition crimes, can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet "political". For politics are about government. "Political" as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. No doubt any act done with any of these objects would be a "political act", whether or not it was done within the territory of the government against whom it was aimed. But the question is not simply whether it is political qua "act" but whether it is political qua "offence".'This principle was applied in R v Governor of Winson Green Prison, Birmingham, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR 893; it is one of a battery of tests proposed in the UNHCR Handbook; and it has been adopted (at least as a theory) in North America. Yet I must own to serious problems. Historically, it seems unlikely that common law concepts such as remoteness, which even today are a well-recognised stumbling-block for lawyers from other traditions, should have been intended to play a part in the operation of an exception designed decades before these concepts began to be explored even in England. More importantly, the analysis seems to do no more than replace 'political' with another form of words. Leaving aside the trifling cases where the actor is moved only by malice, greed or a simple pathological desire to cause harm, how is the test of causation to be applied? Take the case of an insurgent group which attacks an army post, as part of a campaign to overthrow the government by force. This would plainly be a political offence, and on any ordinary understanding of causation it would be said that the desire to overthrow the government caused the attack to take place. Change the case now so that the soldiers, lacking the weapons needed for the attack, steal them from an arsenal. Would not this in ordinary language be described as a political offence, all of a piece with the subsequent attack, and would not the cause of the theft still be ascribed to the wish to bring down the government by force? If one changes the case once more, so that instead of stealing arms directly the insurgents steal from a bank the money with which to buy them, I can see that if the raiders intend to keep some of the proceeds for their own personal use it could well be held that the personal element of the crime is both non-political and serious enough to bring art 1F into play. But in the absence of such mixed motives I find it hard to see why the stealing of the money and its subsequent use to buy arms would not be a continuous causal chain of which all the links are political in nature; and if the logic is not clear I can foresee great difficulties in applying this criterion in practice. All the same, one must recognise that Schtraks and Littlejohn do recognise a test of causation; and the UNHCR Handbook, which, although without binding force in domestic or international law (see Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940, [1987] AC 514), is a useful recourse on doubtful questions, treats causation as one of the material factors (see the UNHCR Handbook para 152). To a similar effect are statements in McMullen v Immigration and Naturalization Service (1986) 788 F 2d 591 and Eain v Wilkes (1981) 641 F 2d 504. Reference may also be made to Re State of Wisconsin and Armstrong (1973) 32 DLR (3d) 265 at 286, where Thurlow J assumed that the hypothetical bank robbery would not be a political offence. All this being said however, the difficult decision on whether there is a sufficient discontinuity between the political aim and the crime to mean that the crime is to be treated as 'common' is not in my judgment made any easier by using the word 'causation' in a very special sense. I think it safer to rely on the words of the 1951 convention.
So also with 'remoteness.' I can see that even where the actor has no motive other than to further his cause, the chain of events between the act and the achievement of the political goal may be so long that the two are disconnected. But to introduce into the international law of asylum and extradition a test derived from the specialist English law of damages seems to me to take the inquiry nowhere, except back to the central issue. In short, to say that the political aim must cause the crime, or that the crime must not be too remote from the aim, does no more than assert that the crime must be really political in nature to fall within the exception. This is the point which I understand Lord Diplock to have stressed. But to prescribe causation or remoteness as tests which must as a matter of law be applied, even though the political exception was conceived long before these notions became part even of English law, only multiplies the problems. I prefer to do without them. This negative opinion still leaves open the necessary connection between the subjective impulsion of the offender and the mental element of the offence. In recent years new criteria have been proposed. The first is one of 'proportionality'. Whilst there is substantial support for this test, on closer examination it is seen that the decisions and commentaries use the term in more than one sense. The first, relied upon by the appellant, is that a crime cannot be political if the adverse consequences for the fugitive of using it as a basis for extradition or refoulement would be out of proportion to the gravity of the offence. I see no substance in this, and if R v Secretary of State for the Home Dept, ex p Chahal [1995] 1 All ER 658, [1995] 1 WLR 526 supports it, I must disagree. The gravity of the offence is relevant to the question whether it is 'serious' for the purposes of art 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned. Another meaning of proportionality is more sound, but does not apply here. There are indications in the literature that the concept originally applied to what are called 'dilits complexes', where the same crime is impelled by more than one motive. So understood, the doctrine propounds only that the dominant motive determines the political character of the offence. This is rational, but of no help here, since it has not been suggested that the appellant had any motive for his acts other than to advance the cause of the FIS. At all events, the House has not had the benefit of considering the relevant Swiss decisions and the matter cannot be pursued. A different meaning of proportionality is also said to be relevant: namely that an offence will not qualify as political unless its nature and degree are in proportion to its political ends. This theory has academic support, is cited in the UNHCR Handbook as one of the factors to be considered, and forms the centre-piece of the judgment given by the American Court of Appeals in McMullen v Immigration and Naturalization Service (1986) 788 F 2d 591 at 596-597:'It appears to us that the [Board of Immigration Appeals'] interpretation of the statute is consistent with the [Geneva] Convention, and thus consistent with congressional intent. A balancing approach including consideration of the offense's "proportionality" to its objective and its degree of atrocity make good sense . . . Moreover, this approach better recognizes the type of crime involved in this and most such cases. There is a distinction between "pure" political crimes, such as sedition, treason, and espionage, and "relative" political crimes, crimes that have both common law criminal aspects and political aspects . . . An approach that considers the proportionality and atrocity of a particular course of conduct is better suited to the analysis of "relative" political offenses under the Convention and Protocol.'Notwithstanding its powerful support, I must own to real difficulty with this doctrine. In the first place, I do not understand its logic. If the apparent disproportion between ends and means is used simply as evidence that the political motive has been fuelled by some other element, such as personal malice, misanthropy, sadism, or mental unbalance, this is no more than a version of the different proportionality doctrine to which I have already referred, which requires a comparison between the political and non-political elements of the motivation. Yet the proponents seem to advance a different theory, which proceeds directly to an evaluation by the judge in the receiving country of whether the fugitive has used more drastic methods than were necessary to achieve his aim. I do not follow this. Provided that the extrinsic factors of malice, etc, are absent, why should a crime which would have been political in nature be turned into one which is not political, simply because the judge deems the offender to have gone too far?
This leads to a second objection, that it will be hard for the judge of the receiving state to decide whether the ends justified the means without applying the notions of his own upbringing and environment in judging whether the offender has overstepped the bounds of permissible political action. To my mind this parochial approach is wrong in principle, and would yield absurd results. In the Western democracies the use of assassination as a political instrument is anathema; yet Re Castioni [1891] 1 QB 149, [1886-90] All ER Rep 640 shows that it falls precisely within the political exception. In Re Atta (Mahmoud Abed) (1989) 706 F Supp 1032 at 1040 District Judge Korman stated:'Providing refuge for those who seek political change is one thing, making the United States a haven for those who engage in conduct that "violates our own notion of civilized strife" is quite another matter.'It may be that this and similar pronouncements can be explained by the additional requirement in the United States-Israel extradition treaty that the offence should be 'regarded by the requested party' as one of a political character (see 706 F Supp 1032 at 1038). If not, I must respectfully disagree.
Finally, I can envisage great difficulty in putting this theory into practice. To strike a balance the official or adjudicator in the receiving state would have to evaluate, amongst other facts: (i) the unacceptableness of the state of affairs which the crime is designed to improve; (ii) the extent to which the crime would, or at least might, bring about an improvement; (iii) the conformity or otherwise of the crime with local conceptions of the way in which, if need be, political change can be brought about; (iv) the practicability of achieving the same result by other and less drastic means. Admittedly, there may be extreme cases where the disproportion, or lack of it, is obvious; and others where the foreign state is so close in geography and culture that the judge can make an assessment in the light of his own general knowledge. But it is likely that in other instances an accurate appraisal would be possible, if possible at all, only to a specialist with years of experience. These decisions have to be made with speed, and in the light of the most fragmentary information. Algeria is far from being the most remote of the countries in respect of which questions of asylum may arise, and yet the special adjudicator and the Immigration Appeal Tribunal have had to make do with the evidence of the appellant's own account of the circumstances, events and motives; which the tribunal has found to be unreliable. A reasoned judgment on proportionality in such circumstances is surely out of the question. Rejecting therefore the test of proportionality, I turn to another theme, which has appealed to judges in the United States and Canada, namely that those who have committed unpleasant crimes are unwelcome. This was put robustly in Eain v Wilkes (1981) 641 F 2d 504 at 520:'We do not need [terrorists] in our society. We have enough of our own domestic criminal violence with which to contend without importing and harboring with open arms the worst that other countries have to export. We recognize the validity and usefulness of the political offense exception, but it should be applied with great care lest our country become a social jungle and an encouragement to terrorists everywhere.'My Lords, many would agree with these responses, which may be relevant where the executive branch has an unfettered discretion on whether to allow an asylum-seeker to remain, but the present appeal is concerned with something altogether different: a decision on a mixed question of fact and law on whether the antecedent crime had a political character when and where committed. I am quite unable to see how the fact, if it is a fact, that the foreign crime shows the asylum seeker to be a wicked man of whom the country of refuge would be well rid can have any bearing on this question. Indeed the shape of the legislation shows that this is not so, for art 1F(b) of the 1951 convention assumes that a person who has committed a serious crime, which might make him just as unwelcome in the country of refuge, is immune from refoulement so long as his offence can be characterised as political.
Moreover, the argument overlooks art 33.2 of the 1951 convention, which it is timely to repeat:'The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is . . .'The state of refuge has sufficient means to protect itself against harbouring dangerous criminals without forcing on an offence, which either is or is not a political crime when and where committed, a different character according to the opinions of those in the receiving state about whether the refugee is an undesirable alien: opinions which may be shaped by considerations which have nothing to do with the political nature of the offence committed elsewhere.
Setting this argument aside, we arrive at what I believe to be the heart of the case. The Secretary of State contends, with much support from decided cases and texts, that the point at which criminal conduct which would otherwise be political loses this attribute is when it can be described as 'an atrocity' or 'terrorism'. The terminology is inexact. The words 'atrocity' and 'terrorism' reflect a similar impulse of revulsion from inhumanity, and there has for long been a tendency to treat them as interchangeable. But they are not. The murders at Katyn Forest were atrocities by any standard, but they were not terrorism, for they were kept secret, and secret terrorism is a contradiction in terms. In the absence of any clear consensus in the texts and cases, and indeed any firm choice in the contentions of the Secretary of State, about which word more accurately describes the further exception impliedly superimposed on the political exception, both must be examined. I begin with 'atrocity'. This word reflects an impulse of revulsion which all must share from allowing the perpetrator of a repellent crime to insist on the hospitality and protection of any nation whose borders he can manage to penetrate. By way of illustration only (for they were not examined in argument) one may instance McGlinchey v Wren [1982] IR 154 and Carron v McMahon, Carron v Governor of Portlaoise Prison [1990] IR 265. In the former, a group claiming affiliation to the self-styled Provisional Irish Republican Army fired Armalite weapons at a house from a moving car. Some occupants escaped death, but an old lady was, as the judgment put it, riddled with bullets. This crime, aptly described as revolting, was held to lie outside the political exception on the ground that it was contrary to the basic requirements of political activity. In the later case, Finlay CJ described it as an illustration of the 'type of atrocity' which is outside any concept of a political offence. Whilst I respect this impulse, it is hard to accept as a reliable basis on which to apply the exception, for it posits that the community of nations has found it so clear that conduct which is political in the ordinary sense of the word may be deprived of that character by its atrocious nature, that international legislation needs no express provision and no attempt to define what an atrocity entails. Can this really be so? When in the years since the 1939-45 war the international community had to grapple with war crimes, genocide and international terrorism it set out to do so explicitly by the exclusions contained in art 1F and in the conventions regarding depoliticisation and extra-territorial jurisdiction to which I have referred. The respondents invite the House to accept that in addition there is a tacit qualification, the boundaries of which depend entirely on the personal reaction of the official or judge in the receiving state as to whether the act is 'atrocious' enough to merit special treatment. In a field which touches not only the life and liberty of the fugitive, but also the social order of the two states and indirectly of the international community as a whole, one must surely look for a test more reliable than this. I am, however, more persuaded by the idea of writing 'terrorism' into the modern concept of the political crime. To accept this requires, as must any model which involves departure from the concept of incidence, an important step: the recognition that some characteristic of the crime can disconnect it from its political origins, using the word in its widest sense. Once this step is taken, as I believe it must be, I would prefer terrorism to atrocity as a test, because it concentrates on the method of the offence, rather than its physical manifestation. The terrorist does not strike at his opponents; those whom he kills are not the tyrants whom he opposes, but people to whom he is indifferent. They are the raw materials of a strategy, not the objectives of it. The terrorist is not even concerned to inspire terror in the victims, for to him they are cyphers. They exist only as a means to inspire terror at large, to destroy opposition by moral enfeeblement, or to create a vacuum into which the like-minded can stride. It seems to me in a real sense that a political crime, the killing of A by B to achieve an end, involves a direct relationship between the ideas of the criminal and the victim, which is absent in the depersonalised and abstract violence which kills twenty, or three, or none, it matters not how many or whom, so long as the broad effect is achieved. I find it hard to believe that the human rights of the fugitive could ever have been intended to outweigh this cold indifference to the human rights of the uninvolved. There are two further reasons to think that this is the right answer. First, there is detectable in the international legislation and the debates surrounding it a recognition that terrorism is an evil in its own right, distinct from endemic violence, and calling for special measures of containment. Secondly, the law of asylum fundamentally affects the lives of human beings, and yet must be applied at speed. Whether employed individually or as parts of a battery of tests, criteria such as remoteness, causation, atrociousness and proportionality seem too subjective to found the consistency of decision which must surely be essential in a jurisdiction of this kind. By contrast, once it is made clear that terrorism is not simply a label for violent conduct of which the speaker deeply disapproves, the term is capable of definition and objective application. I quote again from the 1937 League of Nations Convention:'"acts" of terrorism mean criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.'The convention never came into force, but the definition is serviceable, and I am content to adopt it.
VI. CONCLUSION
I return to the present appeal. A substantial point of difference between extradition and asylum is that where the former is in issue the political nature of the offence is an exception to a general duty to return the fugitive, whereas in relation to asylum there is a general duty not to perform a refoulement unless the crime is non-political. This distinction may be of great practical importance where reliable information is at a discount. In the present instance, however, I am persuaded, whilst sharing the hesitations of the Court of Appeal, that the material does show the bombing at the airport to have been a terrorist offence, and that there were grounds on which the tribunal could properly find that the same conclusion applied to the attack on the barracks. Both offences therefore are within the scope of art 1F, and the prohibition of refoulement does not apply. Accordingly, although I would prefer the test applied by the tribunal to that laid down by the Court of Appeal, I arrive at the same conclusion and would dismiss the appeal.LORD SLYNN OF HADLEY.
My Lords, the Immigration Appeal Tribunal said in this case:'We find as a fact, on the basis of that evidence that [T] was involved directly in the planning of an attack that led to the death of one person, and he was involved in, and had prior knowledge of, a bomb attack in which ten people were killed. We do not accept [counsel's] submission that his degree of involvement was such that he was not personally and knowingly involved. We conclude that [T], in common parlance was actively involved in a terrorist organisation, one that was prepared to advance its aims by random killings and [T] was closely associated with one such incident.'Nevertheless it is clear that the Front Islamique du Salut (the FIS) was a political organisation seeking to set up a fundamentalist Islamic regime in Algeria and that, since the second round of elections which was due to follow the first round (in which the FIS had gained a majority) was not held, the FIS was not able to pursue its aims through democratic election processes. T's activities were carried out against this background and in an effort to undermine the existing government; there is no challenge to his claim that if he returns to Algeria he will be prosecuted.
Is he entitled to say that he is a refugee in the sense of one who --'owing to well-founded fear of being persecuted for reasons of : membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . .' (art 1 of the Convention relating to the Status of Refugees (Geneva 28 July 1951; TS 39 (1954) Cmd 9171), or he is a person to whom the provisions of the 1951 convention do not apply since, pursuant to art 1F thereof --'there are serious reasons for considering that . . . (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.'These provisions of the 1951 convention are given effect to by para 334 of the Statement of Changes in Immigration Rules (HC Paper (1994) No 395) laid before Parliament on the 23 May 1994.
The meaning of 'serious non-political crime' has been considered in relation both to extradition and to asylum (different though they are) in many cases in the courts of this country and in those of other countries, in particular of the United States and Canada. These cases have been analysed and considered in depth in the speeches of my noble and learned friends Lord Mustill and Lord Lloyd of Berwick, which I have had the advantage of reading. It is not necessary for me to repeat that analysis and it is sufficient to indicate the conclusions which I have reached. It is clear that the events of recent years having produced violent acts which in number, in extent and in character go far beyond the sort of cases which were considered in the nineteenth century when the concept of treating political acts, albeit criminal, differently from ordinary crimes was developed. It seems that in consequence the international community has been striving to avoid giving the benefit of political asylum to those who can truly be categorised as terrorists. See, for example, the League of Nations Convention for the Prevention and Punishment of Terrorism, the European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977; TS 93 (1978) Cmnd 7390), given effect to in the United Kingdom by the Suppression of Terrorism Act 1978 and now by the Extradition Act 1989. These provisions are also applicable to the United States. I say 'striving to', because no convention has yet been adopted which deals with this situation on a universal basis (or even in respect of states which are members of the United Nations), and a complete definition of 'terrorist act' which takes such acts outside the range of political crime may be very difficult to achieve and even more to obtain agreement to on the part of states. In the course of argument a number of tests have been suggested to indicate whether a crime is or is not a political crime. Decisions of this House in Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556 and Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931 show that in order to be political an act must be an incident of a dispute existing in a member state. As Viscount Radcliffe ([1962] 3 All ER 529 at 540, [1964] AC 556 at 591) said in the former case, 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'; in the latter, Lord Diplock ([1973] 2 All ER 204 at 209, [1973] AC 931 at 945) says that the offence could not be political --'unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there.'I am, for my part, not satisfied that in order to be a political offence the act has to be directed against the government of the day; it is in a democratic society no less an attack on the state if the attacker seeks to destroy or to pressurise the opposition party. In any event, on either of the ways of expressing the test which I have quoted, the present appellant would seem to satisfy them.
I have doubts as to whether the test of remoteness which has been propounded as a means of excluding some crimes from being 'political crimes' is satisfactory in itself. Whether there is a sufficiently direct link between the criminal act and a political objective may pose an extremely difficult question to resolve and risks fine lines being drawn. I am not, for example, at all certain that for a terrorist group to rob a bank for the express and sole purpose of buying Semtex or guns to achieve political ends, is clearly too remote or indirect to be regarded as a political crime, as has been said in earlier cases. Nor do I find 'proportionality' in this context a suitable test. It may involve the consideration of a situation which is wholly different from any experienced in this country and imports inevitably a subjective element in the task of, and imposes a difficult burden on, the official, tribunal or court considering the matter. Paragraph 152 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention relating to the Status of Refugees (1979) published by the Office of the UN High Commissioner for Refugees, however, indicates that a number of tests should be considered in each case -- ie is the crime due to genuine political motives, was there a close and direct cause or link between the crime and its alleged political purpose, and do the political elements outweigh the common law character of the crime? This is very much in accord with the judgment of the Court of Appeal in the present case, and there may well be cases where it is possible to apply these tests without difficulty. There are, however, likely to be other cases where the test raises issues which it virtually impossible to decide and it must be remembered that decisions as to asylum often have to be taken quickly. I do not wish to do anything to undermine the importance of genuine political fugitives, even those who have committed serious crimes, from being granted asylum here. I consider, however, that without resort to tests like remoteness and proportionality 'serious non-political crime' as a matter of interpretation of the convention and of the rules, includes acts of violence which are intended or likely to create a state of terror in the minds of persons whether particular persons or the general public and which cause, or are likely to cause, injury to persons who have no connection with the government of the state. This is not intended to be a complete definition. There may be other acts which constitute terrorism which are far outside the concept of political crime, but in the present case the Immigration Appeal Tribunal was in my view entitled to conclude that --'to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause [art 1F(b) of the convention] would be against commonsense and right reason. It cannot have been the intention of the Convention to accord protection to those who engage in such activities, and we would not so conclude unless bound by high authority.'Such bombing at the airport killing innocent citizens was 'totally beyond the pale' and outside the protection afforded by the 1951 convention. Although the attack on the barracks was more debatable, I conclude that the Immigration Appeal Tribunal was entitled to find that this was yet another 'random killing'.
I too would dismiss this appeal. This does not mean that the appellant must be returned to Algeria; the Secretary of State has already made it plain that if he can find another state which will accept him he may go there. The Secretary of State was, however, entitled to say that he may not stay here.LORD LLOYD OF BERWICK.
My Lords, in this appeal your Lordships are concerned with the meaning of the words 'serious non-political crime' in art 1F(b) of the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171). Article 1 of the 1951 convention contains a definition of the term 'refugee.' Article 1F provides:'The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity . . . (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.'The facts are that T, an Algerian national, arrived in the United Kingdom on 14 March 1993, using a false French identity card. On 8 April he was arrested for theft. He was interviewed the following day by an immigration officer. In the course of the interview he claimed asylum. Thereafter he was interviewed on four occasions between 21 April and 13 August. On 3 September the Secretary of State rejected his asylum claim, and on 17 September he gave directions for his removal to Algeria. On 23 September T appealed to a special adjudicator, as he was entitled to do, under s 8(4) of the Asylum and Immigration Appeals Act 1993. The special adjudicator, Mr John Fox, found on the balance of probabilities that T was a member of the Front Islamique du Salut (the FIS), a revolutionary fundamentalist movement, and that he had been involved in the planning of two terrorist incidents.
The first incident was the planting of a bomb at Btne Airport, some 40 kilometres from Algiers, on 26 August 1992. Ten people were killed in the explosion. The second incident was an abortive attempt to steal arms from an army barracks, in the course of which one person was killed. It is not clear whether the casualty was a soldier, or a member of the FIS; probably the latter. Mr Fox held in relation to both incidents that there were 'serious reasons for considering' that Mr T had committed a serious non-political crime outside the United Kingdom prior to his admission, so as to deprive him of the protection of the convention. T appealed to the Immigration Appeal Tribunal. At the hearing the Secretary of State conceded that if the 1951 convention applied, then T had a valid claim for asylum under r 334 of the Statement of Changes in Immigration Rules (HC Paper (1994) No 395), on the ground that he had a well-founded fear of persecution if he were to be returned to Algeria. The sole remaining issue for consideration was whether the convention applied, or whether T was excluded by art 1F(b). The Immigration Appeal Tribunal (Mr Maddison, Mr Froome and Mrs Abrahams JP), found as a fact that T was directly involved in planning the attack on the barracks, and that he was involved in and had prior knowledge of the bomb attack at the airport. The tribunal did not accept a submission on his behalf that his degree of involvement was such that he was not personally and knowingly involved. The tribunal stated its conclusion as follows:'We have to ask ourselves whether the terrorist activities in which we have found as a fact he was involved were, in the terms of the Convention, non-political crimes. There is a difficulty there because the only definition of terrorism of which we are aware is that contained in the Prevention of Terrorism (Temporary Provisions) Act 1989, in which it is defined as "the use of violence for political ends" [s 20(1)]. That might at first sight suggest that a terrorist crime was indeed a political crime. It seems to us however, that to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause would be against commonsense and right reason. It cannot have been the intention of theConvention to accord protection to those who engage in such activities, and we would not so conclude unless bound by high authority.'
From the decision of the Immigration Appeal Tribunal there is an appeal to the Court of Appeal with leave, but only on a question of law. The question of law is not very clearly identified. But the principal ground relied on, both on the application for leave to appeal and in the notice of appeal itself, was that the special adjudicator applied the wrong standard of proof. However, there was a further ground of appeal. The Immigration Appeal Tribunal is said to have concluded, wrongly, that because T was actively involved in a terrorist organisation, and because the two incidents in which T was involved would ordinarily be described as terrorist activities, it necessarily followed that the crimes were non-political within the meaning of art 1F(b). The Court of Appeal (Nourse, Glidewell and Simon Brown LJJ) ([1995] 2 All ER 1042, [1995] 1 WLR 545) dismissed the appeal in a judgment of the court delivered by Glidewell LJ. While criticising the lack of satisfactory reasoning in the decision of the Immigration Appeal Tribunal, the court, nevertheless, reached the same conclusion. I quote from the judgment.'We too think it inappropriate "to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes". Our reason is not that all terrorist acts fall outside the protection of the convention. It is that it cannot properly said that these particular offences qualify as political. In our judgment the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose. It offends common sense to suppose that the FIS's cause of supplanting the government could be directly advanced by such an offence. Indeed, on the facts, T himself appears implicitly to recognise this when he claims that the FIS group was infiltrated by the security services (ie the government) and seeks to dissociate himself from the yet graver offence which he acknowledges (indeed asserts) resulted from the infiltration -- the particular atrocity that led here to the deaths of ten innocent people.' (See [1995] 2 All ER 1042 at 1056, [1995] 1 WLR 545 at 559-560.
I find myself in agreement with the reasoning of the Court of Appeal. There is no English authority on the meaning of 'non-political crime' in the 1951 convention. But it was common ground that the words must bear the same meaning as they do in extradition law. Indeed, it appears from the travaux priparatoires that the framers of the convention had extradition law in mind when drafting the convention, and intended to make use of the same concept, although the application of the concept would, of course, be for a different purpose. So far as English law is concerned the phrase 'offence : of a political character' goes back to s 3(1) of the Extradition Act 1870, and is now to be found in s 6(1)(a) of the Extradition Act 1989. The most helpful English authorities are Re Castioni [1891] 1 QB 149, [1886-90] All ER Rep 640, Re Meunier [1894] 2 QB 415, Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556 per Lord Reid and Viscount Radcliffe and Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931 per Lord Diplock. Re Meunier is particularly helpful, since it was the first case in which the court had to consider whether a prisoner charged with indiscriminate violence aimed at members of the public could claim the protection of the political offence exception. It was held that he could not. The case is important since it concerned a type of terrorist offence which was still relatively uncommon in the nineteenth century, but has regrettably become more widespread in recent years. It has thus been much discussed in the numerous recent decisions in the United States and Canada. In a case concerning an international convention it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other. In the United States, recent cases include Eain v Wilkes (1981) 641 F 2d 504, Quinn v Robinson (1986) 783 F 2d 776, McMullen v Immigration and Naturalization Service (1986) 788 F 2d 591 and Re Atta (Mahmoud Abed) (1989) 706 F Supp 1032. In Canada the most recent decision is Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4th) 497, a decision of the Federal Court of Appeal in Quebec. The Canadian case and McMullen (a decision of the United States Ninth Circuit Court of Appeals), are especially valuable since they are both refugee cases, and are therefore concerned with a similar background to the present case, and identical language. I return to the English cases. In Re Meunier [1894] 2 QB 415 the defendant was charged in France with causing two explosions. The first was at a cafi. Two members of the public were killed. The second was at a military barracks. The French authorities requested extradition. The defendant was committed by the Bow Street magistrate with a view to his surrender under the Extradition Act 1870. He applied for a writ of habeas corpus. One of the grounds was that the crimes with which he was charged were offences of a political character within the meaning of s 3 of the 1870 Act. It was conceded that the explosion at the cafi could not be regarded as a political offence. But it was argued that the explosion at the barracks was on a different footing, since it was aimed at soldiers of the French government, and designed to destroy government property. The Divisional Court refused the application. The defendant was not seeking to impose his choice of government on the French. He was a member of the Anarchist movement, and therefore the enemy of all governments. Cave J said (at 419):'Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular Government; but anarchist offences are mainly directed against private citizens.'Although the offences in Re Meunier bear a strong resemblance to the offences in the present case, the difference is that T is not an anarchist. His case is that he was seeking to change the government of Algeria. To that extent his motive was clearly political. The question, as will be seen later, is whether this is enough to bring him within the political exception.
Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556 arose out of a dispute concerning the education of a seven-year-old boy in Israel. There were proceedings in the High Court of Israel brought by the boy's parents against his uncle, the appellant, and his grandparents, seeking an order for the boy's return. The uncle gave evidence in the proceedings. He was subsequently charged in Israel with offences of child-stealing and perjury. Meanwhile he had come to England. The Israeli government sought his extradition. One of the questions was whether the offences with which he was charged were political offences. There was evidence that in Israel the religious education of children is a political issue. The boy's future was the subject of questions and debates in the Knesset, where the uncle's actions received considerable political support. So the offences were committed in a political context. Nevertheless, it was held that the offences were not political offences. Lord Reid said ([1962] 3 All ER 529 at 536, [1964] AC 556 at 584):'I am willing to assume that the accused did what he believed to be right, and that many people and even a whole political party agreed with him, but I cannot find any political character in the alleged offences. There is nothing to indicate that he acted as he did in order to force or even promote a change of government, or even a change of government policy, or to achieve a political objective of any kind. I do not say that every act done for such purposes would necessarily be of a political character, but without any such purpose it could only be in some exceptional case which I cannot foresee that the act could in my view be said to be of a political character.'Viscount Radcliffe said ([1962] 3 All ER 529 at 540, [1964] AC 556 at 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 essential idea, in Lord Radcliffe's view, was that of political opposition between the fugitive and the requesting state. That idea would be lost sight of --
'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 the 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.' (See [1962] 3 All ER 529 at 540, [1964] AC 556 at 591-592.
On the facts, the case had become to some extent a political issue, as Lord Radcliffe accepted. But the offences were not committed as part of a demonstration against government policy. They were more in the nature of incidents in a family quarrel. In Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931 the appellant was a resident of the United States. He had been convicted of the attempted murder in the United States of the Vice-Premier of Formosa. The United States government sought his extradition from the United Kingdom. His case was that he was a member of an organisation known as the World United for Formosan Independence, and that his crime was therefore a political offence. The argument was rejected. Although the appellant was opposed to the regime in Formosa, he was not opposed to the government of the United States, where the offence was committed. To extend the concept of a political offence to crimes committed in a third country would, in the words of Lord Hodson be to 'create an impossible situation' (see [1973] 2 All ER 204 at 207, [1973] AC 931 at 943). Lord Diplock, while accepting that the crime in question was a political act, held that it was not a political offence:'I would not hold that an act constituted an "offence of a political character" in the ordinary meaning of that phrase appearing in a statute dealing with the trial and punishment of crimes committed in a foreign state if the only "political" purpose which the offender sought to achieve by it was not directed against the government or governmental policies of that state within whose territory the offence is committed and which is the only other party to the trial and punishment of the offence.' (See [1973] 2 All ER 204 at 209, [1973] AC 931 at 945; Lord Diplock's emphasis.
The importance of the case for present purposes lies in Lord Diplock's discussion of the word 'political'. If the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet 'political'. For politics are about government. But if the accused had robbed a bank in order to obtain funds to support a political party, the object would be too remote to constitute a political offence. In other words, a crime will only be regarded as a political offence if the relationship between the act and the effect on the government is sufficiently close. This principle was applied in R v Governor of Winson Green Prison, Birmingham, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR 893. The government of the Republic of Ireland sought the extradition of a member of the IRA on a charge of armed robbery at a bank. There was an application for a writ of habeas corpus. Lord Widgery CJ, giving judgment in the Divisional Court, held that despite the applicant's connection with the IRA and despite the fact that the purpose of those taking part in the robbery was to obtain money for the IRA and not for themselves, the crime was nevertheless a non-political offence. I come now to some of the United States cases. The early decisions owed much to the English decision in Re Castioni [1891] 1 QB 149, [1886-90] All ER Rep 640. An offence was treated as being of a political character if, but only if, it was incidental to a political uprising. Applying this test, the US courts at first refused extradition of members of the IRA accused of murdering British soldiers (see McMullen v Immigration and Naturalization Service (1981) 658 F 2d 1312 and Re Mackin (1981) 668 F 2d 122. But by the beginning of the 1980s the traditional and over-rigid approach of the US courts was beginning to break down. In Eain v Wilkes (1981) 641 F 2d 504, a member of the Palestine Liberation Organisation was accused of planting a bomb in a crowded market place in Israel, killing two boys and injuring many others. The State of Israel applied for extradition. The accused relied on the political exception. The Seventh Circuit Court of Appeals dismissed his appeal. The court was prepared to accept that there was a state of conflict in Israel sufficient to lay the foundation for the political exception. But the court went on to hold that the crime was not 'reasonably "incidental to"' the state of conflict because of the indiscriminate nature of the attack (see 641 F 2d 504 at 520). The court said (at 521):'The exception does not make a random bombing intended to result in the cold-blooded murder of civilians incidental to a purpose of toppling a government, absent a direct link between the perpetrator, a political organization's political goals, and the specific act. Rather, the indiscriminate bombing of a civilian populace is not recognized as a protected political act even when the larger "political" objective of the person who sets off the bomb may be to eliminate the civilian population of a country.'The court then drew an important distinction between the political structure of a state, and its social fabric, quoting the English decision in Re Meunier [1894] 2 QB 415. The court commented (at 521-522):
'Anarchy presents the extreme situation of violent political activity directed at civilians and serves to highlight the considerations appropriate for this country's judiciary in construing the requirements of our extradition laws and treaties. But we emphasize that in this case, even assuming some measure of PLO involvement, we are presented with a situation that solely implicates anarchist-like activity, i.e., the destruction of a political system by undermining the social foundation of the government. The record in this case does not indicate that petitioner's alleged acts were anarchist-inspired. Yet the bombing, standing detached as it is from any substantial tie to political activity (and even if tied, as petitioner insists, to certain aspects of the PLO's strategy to achieve its goals), is so closely analogous to anarchist doctrine considered in cases like Re Meunier ([1894] 2 QB 415) as to be almost indistinguishable.'Since the bombing was directed at the civilian population, 'without regard for political affiliation or governmental or military status of the victims', the accused was not entitled to the benefit of the political exception.
Eain v Wilkes was followed by the District Court of the Southern District of New York in Re Doherty (1984) 599 F Supp 270, which concerned an attack by a member of the Provisional IRA on a convoy of British soldiers in Northern Ireland. The court rejected the United Kingdom's request for extradition. But it stated firmly that the political exception would not protect bombings in public places (see 599 F Supp 270 at 275). The next important case was Quinn v Robinson (1986) 783 F 2d 776, a decision of the Ninth Circuit Court of Appeals. There is a very long and learned judgment of Judge Reinhardt, in which he traces the origin and development of the political exception in the English, French, Swiss and US legal systems. The case arose out of the activities of the so-called 'Balcombe Street Four,' who were responsible for a series of terrorist incidents in 1974, directed at civilian targets in Great Britain, culminating in the shooting of PC Tibble in February 1975. Judge Reinhardt upheld the United Kingdom's request for extradition, but only on the narrow ground that, although there was an uprising in Northern Ireland, the uprising did not extend to England, and so the terrorist incidents were not 'incidental' to any relevant uprising. This surprising conclusion was rejected by the other two members of the court. However, Judge Fletcher concurred in the result on other grounds. It is the other grounds which are relevant to the present purposes. The thrust of Judge Reinhardt's judgment, with which Judge Fletcher agreed, was to reverse the trend started by Eain v Wilkes. He did not accept that there was any distinction between military and civil targets. Nor did he attach any importance to the means used, whether discriminate or indiscriminate. He said (at 804-805, 810):'. . . it is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that we have not experienced, and which we can identify only with the greatest difficulty. It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal . . . We believe the tactics that are used in such internal political struggles are simply irrelevant to the question whether the political offense exception is applicable . . . It is for the revolutionaries, not the courts, to determine what tactics may help further their chances of bringing down or changing the government.'Judge Fletcher said (at 819):
'The new limitations imposed by the courts in Eain v. Wilkes ((1981) 641 F 2d 504) and in In Re Doherty ((1984) 599 F Supp 270) unnecessarily break from the traditional test by inquiring into [and] evaluating the legitimacy of given political objectives and the conduct of internal political struggles.'Not surprisingly, Mr Blake counsel for the appellant, set much store by Quinn v Robinson. But the minority judge, Judge Duniway, said that he could not concur in the 'lengthy opinion of Judge Reinhardt, or the very extensive dicta that it expounds'. He much preferred the rationale of Seventh Circuit Court of Appeals in Eain v Wilkes, where the court held that the political character of the offence provision did not apply to 'the indiscriminate bombing' of a civilian populace. It is the minority view that has found favour in subsequent cases.
In Re Atta (Mahmoud Abed) (1989) 706 F Supp 1032 the US District Court for the Eastern District of New York was concerned with an attack by three members of the Abu Nidal Organisation on a bus in Israel. The driver was killed, and one of the passengers en route for Tel Aviv was injured. One of the attackers escaped to Venezuela, and thence to the United States. The government of Israel requested extradition. District Judge Korman certified accordingly. He summarised the case law as sustaining the proposition that 'the United States does not regard the indiscriminate use of violence against civilians as a political offense' (see 706 F Supp 1032 at 1039). He dealt in short order with Judge Reinhardt's judgment in Quinn v Robinson. He said (at 1040):'Setting aside the fact that the qualifications of the rule as set forth by Judge Reinhardt cannot be reconciled with the sweeping rhetoric of his opinion, his analysis is flawed for a number of reasons . . . The decision to extradite involves principally a decision regarding who may have refuge here. Whether or not it is "our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries," it is plainly our place to decide who may obtain safe harbor in, or passage through, the United States. Providing refuge for those who seek political change is one thing, making the United States a haven for those who engage in conduct that "violates our own notions of civilized strife" is quite another matter.'When the case reached the Second Circuit Court of Appeals ((1990) 910 F 2d 1063) Judge Van Graafeiland agreed with District Judge Korman. He said (at 1066):
'We agree that an attack on a commercial bus carrying civilian passengers on a regular route is not a political offense. Political motivation does not convert every crime into a political offense.'All the US decisions so far considered have been extradition cases. I now come to a refugee case. In McMullen v Immigration and Naturalization Service (1986) 788 F 2d 591 (a follow-up of the case referred to above) the Ninth Circuit Court of Appeals were concerned with an application for deportation of a former member of the Provisional IRA, who had committed numerous terrorist crimes between 1972 and 1974 in Northern Ireland and on the mainland. He relied on s 243(h)(2)(C) of the Immigration and Nationalisation Act which corresponds exactly to art 1F(b) of the 1951 convention. In giving the leading judgment of the court, Judge Wallace (at 595) quoted with approval the test stated in Goodwin- Gill The Refugee in International Law (1983) pp 60-61:
'The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.'The court held that there was a distinction between terrorist acts directed at military or official agencies of the state, and random acts of violence against ordinary citizens that are intended only '"to promote social chaos"' (Eain v Wilkes (1981) 641 F 2d 504 at 519), and citing Re Meunier. The court distinguished its own previous decision in Quinn v Robinson 783 F 2d 776 on the unsatisfactory ground that the case was concerned with extradition (and as 'a distinction without a difference' (see 788 F 2d 591 at 598, 600 per Judge Goodwin)). There is then an extensive quotation from Eain v Wilkes 641 F 2d 504 at 520. The court concluded:
'the PIRA's random acts of violence against the ordinary citizens of Northern Ireland and elsewhere . . . are not sufficiently linked to their political objective and, by virtue of their primary targets, so barbarous, atrocious and disproportionate to their political objectives that they constitute "serious non-political crimes" . . .' (See 788 F 2d 591 at 598.
There have, so far as I know, been no decisions of the Supreme Court of the United States since Ornelas v Ruiz (1896) 161 US 502. But the recent decisions of the Second, Seventh and Ninth Circuit Courts of Appeals to which I have referred are a sufficient indication that in US law any definition of 'serious non-political offence' would necessarily include the indiscriminate bombing of the civilian population. The contrary view stated by the divided court in Quinn v Robinson, on which Mr Blake relied so strongly, can no longer be regarded as authoritative. I come last, in this review of the authorities, to the Canadian case, Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4th) 497 from which I have derived the greatest help. There is a full account of all the English and American authorities, to which I have myself referred. There is, in addition, a reference to Folkerts v Public Prosecutor (1978) 74 ILR 498 at 501, a decision of the Supreme Court of the Netherlands, emphasising the objective nature of one aspect of the test:'"In judging whether the political aspect of the offences concerned is of predominant importance, the court has at all times applied the following criterion: could the offenders reasonably have expected that the offences -- separately or combined -- would yield any result directly related to the ultimate political goal described above?"' (See 119 DLR (4th) 497 at 512).There is also a useful reference to Ellis v O'Dea [1991] ILRM 346, in which the President of the High Court of Ireland echoed the prevailing American view as to indiscriminate violence. All these cases, except Quinn v Robinson, point in the same direction. The facts of Gil's case were that the appellant, an Iranian citizen, came from a family which had supported the Shah. After the Ayatollah Khomeini came to power, he became a member of a group which planted bombs on the business premises of Khomeini's supporters in the bazaar, which resulted in the death of many innocent bystanders. Hugessen J rejected the appellant's application for asylum. He said (119 DLR (4th) 497 at 515-516):
'There is, in my view, simply no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies.'At the end of his judgment, he drew a contrast between the plot against Hitler in 1943 and the assassination of John F Kennedy. He then concluded (at 517-518):
'These considerations, however, do not come into play in the present case for, although there is no doubt as to the extremely repressive nature of the regime in Iran, the appellant's claim fails for other reasons: notably, the lack of nexus between the crimes and any realistic political objective, and the fact that the means employed are unacceptable as a form of political protest against any regime, no matter how repressive, totalitarian or dictatorial.'The reasoning in Gil's case is in line with the recent authorities in the United States. Your Lordships should, I think, hesitate long before rejecting this view of the law.
Another important source of law (though it does not have the force of law itself) is the UN Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention relating to the Status of Refugees (1979) published by the Office of the UN High Commissioner for Refugees. Paragraph 152 states:'In determining whether an offence is "non-political" or is, on the contrary, a "political" crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.'Finally, mention should be made of the European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977; TS 93 (1978) Cmnd 7390). The convention is not, of course, directly relevant in the present case. But it represents an attempt to limit by agreement among member states the availability of the political exception in extradition cases. Under art 1, a number of offences are not to be regarded as political offences, including any offence involving the use of a bomb. Under art 13.1, member states were entitled to enter a reservation at the time of signing or depositing its instrument of ratification; and a number of states, including France, did so. But such states undertook to take into due consideration, when evaluating the character of an offence, any particularly serious aspects of the offence, including:
'(a) that it created a collective danger to the life, physical integrity or liberty of persons; or (b) that it affected persons foreign to the motives behind it; or (c) that cruel or vicious means have been used in the commission of the offence.'Paragraph 21 of the Explanatory Report states:
'The Convention applies only to particularly odious and serious acts often affecting persons foreign to the motives behind them. The seriousness of these acts and their consequences are such that their criminal element outweighs their possible political aspects.'Taking these various sources of law into account one can arrive at the following definition. A crime is a political crime for the purposes of art 1F(b) of the 1951 convention if, and only if; (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.
Although I have referred to the above statement as a definition, I bear in mind Lord Radcliffe's warning in Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556, that a question which was first posed judicially more than 100 years ago in Re Castioni [1891] 1 QB 149, [1886-90] All ER Rep 640 is unlikely now to receive a definitive answer. The most that can be attempted is a description of an idea. But to fall short of a description would, in Lord Radcliffe's words, be to abdicate a necessary responsibility, if the idea of a political crime is to continue to form part of the apparatus of judicial decision-making. I now turn to apply the above 'definition' to the facts of the present case. As already briefly mentioned, the FIS is a political organisation which seeks to secure power in Algeria, in order to establish a fundamentalist Islamic regime in that country. In June 1991 the then government of Algeria declared a state of siege. Many people were detained, and some ill-treated. In September 1991 it was announced that elections would be held. In December 1991 the FIS secured a majority in the first round of the elections, and looked virtually certain to win the second and final round, and so form the next government. But the second round of elections never took place. A military clique was formed, and a new President appointed. This was followed by rioting and protests, in the course of which many members of the FIS were arrested. In March 1992 the FIS was declared an illegal organisation. In the light of those facts it is clear that FIS is a political organisation which was thwarted in an attempt to become the government of Algeria by democratic means. T's motive in becoming involved in the bombing of the airport is not in doubt. He was attempting to overthrow the government by what he regarded as the only remaining available means. He therefore satisfies the first, or subjective, condition. But does he satisfy the second, or objective, condition? On the findings of the Immigration Appeal Tribunal, T was an active member of a terrorist organisation which was prepared to advance its aims by random killing. He was closely associated with the attack on the airport. Although the airport itself could be regarded as a governmental target, the crime as carried out was almost bound to involve the killing of members of the public. The means used were indiscriminate, and therefore the link between the crime and the political object which T was seeking to achieve was too remote. In the light of the above considerations, the Immigration Appeal Tribunal was entitled to hold that there were 'serious reasons for considering' that T had committed a serious non-political crime outside the United Kingdom. I can find no error of law in the conclusion at which they arrived, nor any error in the reasoning of the Court of Appeal, with which I agree. It is unnecessary to consider whether the attack on the barracks was a serious non-political crime, and I say nothing on that issue. I would dismiss the appeal.