[DIVISIONAL COURT]

REGINA v. GOVERNOR OF BRIXTON PRISON.

Ex parte KOLCZYNSKI AND OTHERS.

Extradition - Offence of a political character - Jurisdiction of magistrate - Jurisdiction to review decision of magistrate - Offences committed to escape from political tyranny - Extradition Act, 1870 (33 & 34 Vict. c. 52), ss. 3 (1), 9 - Poland (Extradition) Order in Council, 1934 (S.R. & O. 1934, No. 209).

In September, 1954, seven Polish nationals who were serving as members of the crew of a small trawler fishing in the North Sea as part of a Polish fishing fleet, decided to seek political asylum in England. In order to accomplish their purpose they overpowered

the captain of the vessel and the other members of the crew, only one of whom offered any resistance, and thereupon they brought the ship into an English port where they were placed under arrest.

The Polish Government, pursuant to the terms of a Treaty of Extradition dated January 11, 1932, made between Great Britain and Poland, and the Poland (Extradition) Order in Council, 1934,¹ sought the extradition of the prisoners on the ground that each of them had committed various extraditable crimes.

The magistrate before whom the prisoners appeared accepted as being true evidence showing that while at sea a political officer overheard and recorded the prisoners' conversations with a view to preparing a case against them on account of their political opinions. The magistrate came to the conclusion that the only object the prisoners had in mind in seizing the trawler was to leave their native country in which they suffered an intolerable sense of frustration and repression, and that they achieved their object with the minimum amount of injury to persons and property. He left the question of law whether in those circumstances the prisoners were entitled to the protection afforded by section 3 (1) of the Extradition Act, 1870,² to the High Court through the prisoners' application for a writ of habeas corpus:-

1 Poland (Extradition) Order in Council, 1934, sets out the terms of the Treaty, including: "Art. 1. The High Contracting Parties engage to deliver up to each other ... those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party."

"Art. 3. Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties. ... 7. Kidnapping or false imprisonment. ... 12. Maliciously wounding or inflicting grievous bodily harm. ... 25. Piracy. 26. Wrongfully sinking or destroying a vessel at sea or attempting to do so. 27. Assault on a person on board a ship on the high seas with intent to inflict death or do grievous bodily harm. 28. Revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas, against the authority of the master. ..."

"Art. 7. A fugitive criminal shall not be surrendered if the crime in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offence of a political character.

Art. 8. A person surrendered can in no case be kept in custody or be brought to trial in the State to which the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place. ..."

2 Extradition Act, 1870, s. 2: "Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that such Act shall apply in the case of such foreign state."

S. 3: "The following restrictions shall be observed with respect to the surrender of fugitive criminals: (1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary

Held, (1) that the applicants were entitled to the protection afforded by section 3 (1) of the Act of 1870, in that they had proved to the satisfaction of the court that the requisition had in fact been made with a view to trying or punishing them for an offence of a political character;

(2) that it was the duty of a magistrate hearing proceedings brought under the Act to determine upon the whole of the evidence whether or not the offence was of a political character and also whether it was an extraditable crime.

Opinion of Hawkins J. in In re Castioni [1891] 1 Q.B. 149, 163; 7 T.L.R. 50, as to duties of magistrates, not followed.

Per Lord Goddard C.J. The true construction of section 3 (1) is that if in proving the facts necessary to obtain extradition the evidence adduced in support shows that the offence has a political character the application for extradition must be refused; but even though the evidence in support appears to disclose merely one of the scheduled offences, the prisoner may show that in fact the offence is of a political character.

APPLICATION for writ of habeas corpus.

In September, 1954, the applicants, seven Polish nationals, were serving as members of the crew of a small trawler fishing in the North Sea as part of a Polish fishing fleet. The captain of the trawler was only in charge of navigation, for the crew were in the charge of an officer known as the political commissar who exercised control over the fleet. On board each of the trawlers was a person known as the party secretary; the political commissar and the party secretaries exercised supervision over

of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character. (2) A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded."

S. 9: "When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.

"The police magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

Sch. I lists among the extradition crimes: "Assaults on board a ship on the high seas with intent to destroy life or to do grievous bodily harm. Revolt or conspiracy to revolt by two or more persons on board a ship on the high seas against the authority of the master."

the crews' political leanings and it was observed that they noted the conversations of the men.

One of the applicants, a fisherman, by name Kolczynski, had a brother serving in another trawler in the fleet. News came over the wireless of the trawler in which Kolczynski was serving that his brother had escaped to England, and from that moment it was noted that Kolczynski was kept under special observation by the party secretary.

The activities of the party secretary caused the applicants to come to the conclusion that if they remained on the trawler until it returned to Poland they would be dealt with according to the constitution of the Polish People's Republic and the severity of Polish law would be applied to them. They therefore decided to take charge of the trawler and bring her into an English port. In order to accomplish this purpose they barred the door of the water closet where the captain had gone for refuse (it was said without much resistance), they directed an assistant engineer to work the engines, and they put the other members of the crew, about six in number, under restraint. The party secretary showed fight when awakened in his cabin, but he was overpowered, and in the process he was slightly cut on the hand by a fisher man's knife wielded by Kolczynski.

The applicants brought the trawler into Whitby, where they left the ship and asked for political asylum. They were imprisoned.

The Polish Government, pursuant to the terms of a Treaty of Extradition dated January 11, 1932, made between Great Britain and Poland, and the Poland (Extradition) Order in Council, 1934, which directed that the Extradition Act, 1870,² should apply in the case of the Republic of Poland, sought the extradition of the prisoners, alleging the commission by each of them of the following offences: use of force; depriving his superiors and other members of the crew of their freedom; wounding one member of the crew (the party secretary); damaging the trawler's wireless installation; and preventing the captain of the trawler from directing her, thus exposing the vessel to the danger of calamity at sea and the entire crew to a loss of life.

The application came before the chief metropolitan magistrate at Bow Street on November 3, 10 and 23, 1954, when the following points emerged from the evidence: Between 1945 and 1947 Poland became a police state ruled by terrorism. The

2 See note on p. 541.

Communist Party became the only party in the State with complete control with the help of the security police. Persons opposed to the communist regime were arrested and some disappeared; and it was an offence to leave the country without permission. Ninety per cent. of the population was opposed to the communist rŽgime. Political agents spied on the people and made reports. England was regarded as an enemy country, and to go to a western country without permission was treason.

On November 24, 1954, the magistrate, after considering the evidence, came to the conclusion that the only object which the applicants had in mind was to leave their native country in which they suffered an intolerable sense of frustration and repression and to seek a fresh life somewhere else, and that they achieved their object with the smallest amount of injury to persons and property. He left the declaration of the law to the High Court through the prisoners' application for a writ of habeas corpus.

Sir Hartley Shawcross Q.C. and W. Glanville Brown for the applicants. This was probably the politest revolt in history. The applicants used the minimum of force to achieve their ends, and on the facts they are plainly entitled to the protection afforded by section 3 (1) of the Extradition Act, 1870. The authorities which are relevant in considering this question were decided in the nineteenth century when the political climate was very different from that prevailing at the present time; the political philosophy of the day was that of John Stuart Mill. They are analogous to the cases on public policy, in that by their very nature they must depend on the circumstances of the time when they come before the courts; definitions cannot be laid down which will stand for all time. In re Castioni³ and In re Meunier⁴ appear to proceed on the assumption that for an act to constitute a political crime it must have been done in furtherance of a conflict between different parties contending for power in a state. It is a misconception to suppose that what was laid down in those decisions was meant to be a rule of law exhaustive for all occasions.

Tho evidence is that at the present time there is no active political opposition to the Communist Party in Poland. If In re Castioni⁵ and In re Meunier⁶ were applied rigidly to the facts

3 [1891] 1 Q.B. 149.

4 [1894] 2 Q.B. 415.

5 [1891] 1 Q.B. 149.

6 [1894] 2 Q.B. 415.

of the present case the surprising consequence would be that it would be held that the actions of the applicants in seizing the ship and seeking asylum in Britain were not of a political character and that, therefore, they would have to be extradited to Poland, where they would be tried for what in that country is regarded as treason, namely, going to a Western country without permission.

If the court were concerned solely with the construction of the first limb of section 3 (1) of the Act of 1870, it might not be sufficient to say that in Poland the actions of these men would be regarded as an offence of a political character, but that is all that the second limb of the subsection is concerned with, and it is plain on the evidence that the reason for the request by the Polish Government for the return of the applicants to Poland is so that they can there be tried and punished for a political offence.

The present case is In re Castioni⁷ on a smaller scale. As in that case, so here there was a political unit, albeit it consisted of only some 15 persons - the master and crew of the ship. There was a rebellion against the political head of that political unit. The actions of the applicants were done in furtherance of opposition to tyrannical government. They rebelled against their political officer who symbolized the Polish Government. The Polish Government itself, by the letters which it has allowed relatives of the applicants to write to them, has shown the political nature and the light in which the acts of the applicants are regarded in Poland.

The case for the applicants may be summarized thus: "(1) When we were on board this ship we thought that if we had returned to Poland in her we would all have been punished for political unreliability. (2) We chose to escape by the only means open to us, and the revolt was incidental to the escape. (3) If we are now sent back to Poland we shall be punished for what is called treason to the party. On that evidence it is submitted: (1) the revolt itself was of a political character - rebellion against the political head of the ship and rebellion by the only means open to the applicants. Accordingly, their acts fall within the first limb of Section 3 (1) of the Act. (2) Alternatively, whether or not the acts of the applicants are or are not considered in this country as having a political character, in the event of their being sent back to Poland they will there be punished on the basis that what they did had a political complexion. This brings

7 [1891] 1 Q.B. 149.

their case within the ambit of the second limb of section 3 (1) and, accordingly, in any event they are entitled to the protection afforded by that section.

Sir Reginald Manningham-Buller Q.C., A.-G., and Maxwell Turner for the Governor of Brixton Prison. It is the proud tradition of this country that we are willing to offer asylum where a person's life is in danger because of his race, religion, nationality or political opinions. That proud tradition would be defeated if we were bound to surrender a refugee if, in order to obtain asylum, he had committed an extraditable offence. That could not have been the intention of the Act. All these men were imbued with the fear of what would happen to them if they returned to Poland. That fear governed their actions. The present application involves the construction of section 3 (1) of the Act of 1870. In re Arton⁸ is the only decision in which the second limb of section 3 (1) has been considered. [Reference was made to Piggott, Extradition, A Treatise on the Law Relating to Fugitive Criminals, 1910, pp. 47-49.]

The phrase offences of a political character is to be found in sections 3 (1), 7 and 9 of the Act. It would be difficult to give a meaning to that expression which would not be open to strong objection, which went beyond the definition in In re Castioni.⁹

It would be of assistance if the court would rule on the correctness or otherwise of the opinion of Hawkins J. in In re Castioni¹⁰ as to the extent of the jurisdiction of a magistrate hearing proceedings brought under the Act. [Reference was also made to sections 10, 11 and 12 of the Act, and to Piggott on Extradition, 1910, p. 101.]

Sir Hartley Shawcross Q.C. replied.

LORD GODDARD C.J., on the conclusion of the argument and after a short recess, said that the court would order the writs to issue and on their return the prisoners would be discharged. That was to say that they would not be surrendered to the applying Power, but the order was subject to the prisoners liability to be detained under the Aliens Act, as persons entering the country without permission, until the decision of the Secretary of State was made known. The court would give its reasons at a later date as the point was of considerable importance.

8 [1896] 1 Q.B. 108, 110, 113.

9 [1891] 1 Q.B. 149.

10 Ibid. 163.

1954, December 13. LORD GODDARD C.J. I will ask Cassels J. to read the first judgment.

CASSELS J. The court has already directed the writ of habeas corpus to issue in each of these seven cases. That meant that these seven men were entitled to release, and they have been released, from custody in these extradition proceedings. They have also been given permission by the Secretary of State to stay in this country.

[His Lordship stated the facts as set out above and continued:] The Extradition Act, 1870, s. 3 (1), states that a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character or if he prove to the satisfaction of the police magistrate or of the court before whom he is brought on habeas corpus, or of the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character. The treaty between this country and Poland makes a similar provision.

According to paragraph 2 of article 79, chapter 7, entitled "Citizens' Rights and Duties," of the Constitution of the Polish People's Republic voted by the legislature on July 22, 1952, "Treason of the country consists of spying, weakening of the armed forces; going over to the enemy, being the gravest crime, will be punished with all the severity of the law." Treason is an offence of a political character, and is not included in the offences mentioned either in the First Schedule to the Act of 1870 or in the treaty, but in both these assaults and revolt or conspiracy to revolt on board a ship are included.

During their imprisonment letters from relatives were handed to all seven men. Some of the men say that they are not genuine letters, that the language used is not the language of the writers, and one of them says that a letter from his brother must have been dictated by a member of the security force. One brother's letter uses the phrase, "I condemn with scorn your action of having sold yourself to the American Imperialists," and refers to "repaying education and advantages with treason." A family letter talks of the "influence of the Imperialistic propaganda." A brother writes, "You have betrayed your brothers and your own country." Another brother writes, "You have left your sisters and brothers in the country and followed the capitalists." A cousin writes, "You are a traitor to the country and a traitor

you will remain until your death. You have abandoned and betrayed your country. You have escaped to our enemies."

There is an indication in the letters that some of the relatives of these men had been removed from their homes in the early days of October, for some of the letters are dated prior to the taking of the evidence of the captain and other witnesses in Poland on October 8 after the trawler had arrived back.

It is submitted on behalf of the men that if they should be extradited they may well only be tried for the offences for which their extradition is requested, but they will be punished as for an offence of a political character, and that offence is treason in going over to the capitalistic enemies. Everything in the case points that way and for that reason I agree that the writ of habeas corpus should issue.

As to the meaning of the phrase "an offence of a political character," definitions were considered in In re Castioni.¹ John Stuart Mill's definition, "Any offence committed in the course of or furthering civil war, insurrection or political commotion," was rejected as too narrow, and Stephen J.'s definition in his History of the Criminal Law, in volume II, page 70, "Fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed part of political disturbances," was preferred.

Hawkins J., who cited this passage with approval, also expressed the view that it was not for the magistrate to decide whether the requisition for the surrender of the fugitive criminal has in fact been made with a view to try or punish him for an offence of a political character, but that under section 9 of the Act of 1870 all he had to do was to hear the case in the same manner and have the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence committed in England, and merely to receive evidence which might be tendered to show that the crime of which the prisoner was accused was an offence of a political character and not an extradition crime. To interpret that Act in such a way seems to me to ignore the words of section 3 (1): "... if he prove to the satisfaction of the police magistrate. ..."

In the present case the chief magistrate has left the decision to this court, being the court before whom the prisoners are brought on habeas corpus.

1 [1891] 1 Q.B. 149; 7 T.L.R. 50.

The words "offence of a political character" must always be considered according to the circumstances existing at the time when they have to be considered. The present time is very different from 1891, when Castioni's case² was decided. It was not then treason for a citizen to leave his country and start a fresh life in another. Countries were not regarded as enemy countries when no war was in progress. Now a state of totalitarianism prevails in some parts of the world and it is a crime for citizens in such places to take steps to leave. In this case the members of the crew of a small trawler engaged in fishing were under political supervision and they revolted by the only means open to them. They committed un offence of a political character, and if they were surrendered there could be no doubt that, while they would be tried for the particular offence mentioned, they would be punished as for a political crime. Thus they have brought themselves within section 3 (1) and made good their claim to have the restrictions referred to observed.

LORD GODDARD C.J. The questions that arise under section 3 (1) of the Extradition Act, 1870, are: (1) whether the offence for which extradition is sought is an offence of a political character, or (2) have the applicants proved to the satisfaction of this court before whom they are brought on habeas corpus that the requisition has in fact been made with a view to trying or punishing them for an offence of a political character.

This section is somewhat obscure, especially when it is remembered that by subsection (2) a criminal is not to be surrendered to a foreign state unless provision is made by the law of that state or by an arrangement, which must mean by treaty, that he shall not be tried by the foreign state for any offence committed prior to his surrender other than that for which the surrender is granted. This arrangement has been made by a treaty signed on January 11, 1932, between His late Majesty King George V and the President of the Republic of Poland and will be found in the Poland (Extradition) Order in Council, No. 209 of 1934. The court must not assume that the foreign state will not observe the terms of the treaty: see In re Arton.³ The second limb of the section cannot, therefore, in my opinion, mean that the court can say that if extradition is sought for crime A we believe that if surrendered he will be tried or punished for crime B. None of the offences in the schedule to

2 [1891] 1 Q.B. 149.

3 [1896] 1 Q.B. 108; 12 T.L.R. 131.

the Act are prima facie political. The precise meaning of this difficult section has not yet been made the subject of judicial decision and textwriters have found it difficult of explanation, but in my opinion the meaning is this: if in proving the facts necessary to obtain extradition the evidence adduced in support shows that the offence has a political character the application must be refused, but although the evidence in support appears to disclose merely one of the scheduled offences, the prisoner may show that in fact the offence is of a political character. Let me try to illustrate this by taking a charge of murder. The evidence adduced by the requisitioning state shows that the killing was committed in the course of a rebellion. This at once shows the offence to be political; but if the evidence merely shows that the prisoner killed another person by shooting him on a certain day, evidence may be given, and under section 9 the magistrate is bound to receive it, to show that the shooting took place in the course of a rebellion. Then if either the magistrate or the High Court on habeas corpus or the Secretary of State is satisfied by that evidence that the offence is of a political character, surrender is to be refused. In other words, the political character of the offence may emerge either from the evidence in support of the requisition or from the evidence adduced in answer.

The present case, in my opinion, comes within the second limb. Prima facie the evidence in support of the requisition merely shows a revolt by two or more of the persons charged on board a ship on the high seas against the authority of the master, and this is a scheduled offence. The evidence, the truth of which the magistrate accepted, showed that these men while at sea found that a political officer was overhearing and recording their conversations and keeping observation upon them for the purpose of preparing a case against them on account of their political opinions, presumably in order that they might be punished for holding or at least expressing, them. A resultant prosecution would thus have been a political prosecution. The revolt of the crew was to prevent themselves being prosecuted for a political offence and in my opinion, therefore, the offence had a political character. I would emphasize that although the requisitioning power is diplomatically represented in this country no attempt was made to controvert or displace the evidence of the applicants or of the witnesses called on their behalf. The Polish Government were not represented before the magistrate

or this court and cannot therefore complain if the court accepts the evidence given on this matter by or on behalf of the applicants.

The chief magistrate, while accepting the evidence, thought that as the only decision on what constituted a political offence was that to be found in In re Castioni,⁴ he was bound to commit and to leave it to this court to say whether that decision was conclusive or whether the words "of a political character" could be extended to the facts he found. I desire to say that in my opinion in the circumstances of this case the course he took was entirely proper. It is clear from his careful judgment that had he thought it open to him he would have held the offence to be political.

The court in Castioni's case⁴ were careful to say that they were not giving an exhaustive definition of the words "of a political character." They applied a formula taken from Stephen's History of the Criminal Law, Vol. II, p. 71, as sufficient for the facts of that case, and no doubt when that work was written, about 1882, no better definition could be given. No doubt the conception of what is commonly called nowadays a "police state" was not unknown in the middle years of the nineteenth century. One need only recall the vigour of Mr. Gladstone's language and some of Lord Palmerston's dispatches as to the state of affairs prevailing in Naples, then a part of the Kingdom of the Two Sicilies, under the despotic rule of a monarch usually referred to as King Bomba. But all that had passed by the time Sir James Fitzjames Stephen wrote, though no doubt political police were still very active in Czarist Russia. The evidence about the law prevalent in the Republic of Poland today shows that it is necessary, if only for reasons of humanity, to give a wider and more generous meaning to the words we are now construing, which we can do without in any way encouraging the idea that ordinary crimes which have no political significance will be thereby excused.

This is enough to dispose of the case, but we have been pressed by the Attorney-General to consider the opinion of Hawkins J. in In re Castioni,⁵ where he appears to hold that the magistrate cannot decide the question whether or not the offence is political, though he concedes that it is open to this court to do so on a motion for a habeas corpus. Castioni's case⁵ was in

4 [1891] 1 Q.B. 149.

5 [1891] 1 Q.B. 149, 163.

some respects adversely criticized in In re Siletti.⁶ The court (Bigham and Darling JJ.) were both of opinion that the observations in Castioni's case⁷ that the court could revise the decision of the magistrate on the evidence were obiter and inconsistent with the decisions in Ex parte Huguet,⁸ Regina v. Maurer,⁹ and In re Arton (No. 2).¹⁰ In the last case Lord Russell C.J. said¹¹: "We are not a Court of Appeal on questions of fact from [the magistrate]. We have only to see that he had such evidence before him as gave him authority and jurisdiction to commit." In Siletti's case¹² Bigham J. said: "... the only question that this court can entertain is the question of jurisdiction. Applying the observation to this particular Act, the accused may say that the crime with which he is charged was not a crime within the meaning of the Act - that is to say that it did not come within the class of offences contemplated, or that it was an offence of a political character, and therefore was outside the Act altogether."

This appears to me to lay down the true rule. The effect of section 3 (1) is to prevent a crime of a political character coming within the purview of the Act. If the crime is of that character the magistrate has no jurisdiction to commit. If the magistrate wrongly gives himself jurisdiction by holding that a crime is not of a political character when it is, this court can and must interfere, and both In re Castioni¹³ and In re Siletti¹⁴ affirm this. Moreover, apart from authority this is what in my opinion the statute provides. Clearly the second limb of section 3 (1) contemplates a decision of the magistrate on the subject; the first limb, as I have said above, concerns an offence which the evidence called to support extradition shows is political. The second limb contemplates a charge which on its face appears to be one of those set out in the schedule but which on examination of the evidence tendered is shown to be really of a political character. The magistrate must give a decision on this matter and his decision is open to review on habeas corpus. In support of this view I would refer to the statutory form of the warrant of committal. It recites "and forasmuch as no sufficient cause has been shown to me why he should not be surrendered." If

6 (1902) 71 L.J.K.B. 935; 18 T.L.R. 771.

7 [1891] 1 Q.B. 149.

8 (1873) 29 L.T. 41.

9 (1883) 10 Q.B.D. 513.

10 [1896] 1 Q.B. 509, 518; 12 T.L.R. 189.

11 [1896] 1 Q.B. 518.

12 71 L.J.K.B. 935, 937.

13 [1891] 1 Q.B. 149.

14 71 L.J.K.B. 935.

the magistrate can decide that there is no sufficient cause for refusing to surrender the prisoner, it must follow that he can also find that there is. Section 9 requires the magistrate to hear the case in the same manner and with the same jurisdiction and powers as if the prisoner was before him charged with an indictable offence and to receive any evidence which may be tendered to show that the crime of which the prisoner is charged is of a political character and not an extradition crime. Hawkins J., in Castioni's case,¹⁵ seems to have thought that this required the magistrate merely to take the evidence of witnesses for the defence so that it could be considered either by this court or by the Secretary of State, and he referred¹⁶ to Russell Gurney's Act (30 & 31 Vict. c. 35). With all respect to the opinion of one who was a great authority on criminal law, the provision in that Act to which he was referring was, I think, intended to fill a gap in the Indictable Offences Act, 1848. The latter Act did not appear expressly to contemplate taking the depositions of and binding over witnesses for the defence, and this was remedied by section 3 of Russell Gurney's Act. But however that may have been, the position is now clarified by section 12 (8) of the Criminal Justice Act, 1925, which provides that before determining whether or not to commit for trial any statement by the accused and any evidence given by him or his witnesses must be taken into consideration.

Accordingly I am of opinion that it is the duty of the magistrate to determine upon the whole of the evidence whether or not the offence is of a political character and also whether it is an extraditable crime. He cannot determine this finally against the prisoner because the latter can question the decision on habeas corpus. This does not mean that this court will review the magistrate's findings of fact, but they will and must consider the result of those findings.

DEVLIN J. I agree.

J. A. G.

Solicitors: Chancellor, Jaxa & Partners; Director of Public Prosecutions.

15 [1891] 1 Q.B. 149.

16 Ibid. 163.