[HOUSE OF LORDS.]

AND

AND

Fugitive Offender - Court's jurisdiction to discharge - Political offence - Whether court entitled to take cognisance of the political character of application. for return of offender - Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69), s. 10.

Fugitive Offender - Habeas corpus - Jurisdiction - Whether court has jurisdiction under section 10 on application only for habeas corpus - Nature of relief under section 10 - Fugitive Offenders Act, 1881, ss. 5, 10.

House of Lords - Leave to appeal - Criminal cause or matter - Habeas corpus - Proceedings under section 10 of the Fugitive Offenders Act, 1881 - Refusal of leave and no grant of certificate by Divisional Court that decision under Act of 1881 involved point of law of general public importance - Whether certificate necessary - Administration of Justice Act, 1960 (8 & 9 Eliz. 2, c. 65), ss. 1 (2), 15 (3).

On September 13, 1961, at Bow Street Magistrates' Court an order was made under section 5 of the Fugitive Offenders Act, 1881, committing Z., a Cypriot, to Brixton Prison pending his return to Cyprus in respect of warrants upon which he had previously been arrested. The warrants alleged numerous offences including two murders. Z. thereupon applied to the Divisional Court of the Queen's Bench Division for a writ of habeas corpus ad subjiciendum and for relief under section 10 of the Fugitive Offenders Act, 1881.¹

1 Fugitive Offenders Act, 1881, s. 10: "Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."

Cyprus Act, 1960, s. 3 (1): "On and after the appointed day [August 16, 1960] any existing law which operates as law of, or of any part of, the United Kingdom, being a law applying in relation to Cyprus or persons or things in any way belonging thereto or connected therewith, shall, save as provided after the passing of this Act by the authority having power to amend or repeal that law or by the following provisions of this Act, continue to apply in like manner in relation to the Republic of Cyprus or persons or things in any way belonging thereto or connected therewith."

Z. claimed relief under section 10 on three grounds: (i) that the murders for which his surrender was demanded were offences of a political character. The offences were not admitted, but it was stated that the allegations against him, if true, showed that the killings were done in the course of the fight for the independence of Cyprus made by the body called E.O.K.A. (ii) That the application for his return was not made in good faith in the interests of justice. (iii) That in all the circumstances of the case it would be unjust or oppressive to return him to stand trial, in particular, in view of the fact that there had been three attempts on his life between 1957 and January, 1961, when he came to live in England.

Z. had rendered services to the British Government as an informer against E.O.K.A. members before the independence of Cyprus was declared, and there was a real danger that in the event of his return (1) of his assassination, (2) that evidence would be fabricated against him.

The Divisional Court dismissed the application under both heads and refused leave to appeal. Subsequently leave was granted by the House of Lords.

On the hearing of the appeal the question arose whether the appeal under section 10 of the Act of 1881, being in a criminal cause or matter, could be entertained by the House of Lords notwithstanding that no certificate was asked for or given by the court below pursuant to section 1 (2) of the Administration of Justice Act, 1960,² that a point of law of general public importance was involved in the decision:-

Held, (1) (Viscount Simonds and Lord Hodson dissenting), that the House of Lords had jurisdiction to hear the appeal merely on leave granted, for the court's powers to grant relief under section 10 of the Fugitive Offenders Act, 1881, were an adjunct to its power to protect by habeas corpus, and that, accordingly, where, as here, an application for the writ was joined with proceedings under section 10, the provision of section 15 (3) of the Administration of Justice Act, 1960, that struck out the statutory restriction on the grant of

2 Administration of Justice Act, 1960, s. 1: "(1) Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor, - (a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter; ... (2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."

S. 15: "(1) Subject to the provisions of this section, an appeal shall lie in any proceedings upon application for habeas corpus, whether civil or criminal, against an order for the release of the person restrained as well as against the refusal of such order ... (3) In relation to a decision of a Divisional Court on a criminal application for habeas corpus, section one of this Act shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted."

leave to appeal applied to both forms of proceedings (post, pp. 676,685).

Per Lord Devlin. On an application only for habeas corpus a superior court can exercise its powers under section 10 (post, p. 685).

Quaere, whether in any event the House of Lords had not jurisdiction to entertain the appeal so long as its own order granting leave to appeal stood (post, p. 683).

Rex v. Governor of Brixton Prison, Ex parte Savarkar [1910] 2 K.B. 1056; 26 T.L.R. 561, C.A. considered.

(2) That a court acting under section 10 of the Act of 1881 was confined to the considerations of which it was there directed to take account; and that whether the alleged offences were of a political nature was irrelevant (post, pp. 661, 666, 680, 688).

Dictum of Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed [1952] 1 All E.R. 1060, 1063; [1952] 1 T.L.R. 964, D.C. disapproved.

Per Lord Hodson and Lord Devlin. If the application for the return of the fugitive had been made for purposes of political revenge, that would have been material to show that it was not made in good faith in the interests of justice (post, pp. 681, 688).

(3) (Lord Radcliffe dissenting) that there was no ground on which it would be proper to interfere with the exercise under section 10 of the discretion of the Divisional Court; and that, accordingly, the appeal must be dismissed.

Decision of the Divisional Court affirmed.

APPEALS from the Divisional Court (Lord Parker C.J., Ashworth and Widgery JJ.).

These were two appeals by leave of the House of Lords from the decision of the Divisional Court of the Queen's Bench Division dated November 22, 1961, refusing to order that writs of habeas corpus should issue for the release of the appellants, Antonis Zacharia and Euripides Arestidou from Brixton Prison, or to order their discharge pursuant to section 10 of the Fugitive Offenders Act, 1881.

The appellants, both of whom were Cypriots, had come to the United Kingdom from Cyprus at the beginning of 1961. Under the Cyprus Act, 1960, the island of Cyprus became an independent sovereign republic within the Commonwealth. On September 13, 1961, at Bow Street Magistrates' Court, orders were made under section 5 of the Fugitive Offenders Act, 1881, committing the appellants to Brixton Prison pending their return to Cyprus in respect of warrants upon which they had previously been arrested. These warrants had been duly indorsed under section 3 of the Act of 1881 and the appellants had been apprehended accordingly. There were four warrants relating to Zacharia and

they alleged numerous offences, namely, abduction, carrying a revolver or pistol contrary to the firearms law, assault, robbery with violence, demanding money with menaces, and two murders. Only one of the warrants related to Arestidou, who was described in the evidence as a friend and bodyguard of Zacharia, namely, warrant No. 2 which concerned the offences of robbery with violence and demanding money with menaces.

The appellants applied to the Divisional Court of the Queen's Bench Division for writs of habeas corpus ad subjiciendum and for relief under section 10 of the Fugitive Offenders Act, 1881.

Jeremy Hutchinson Q.C. and J. C. Mathew for the appellants.

Edward Clarke Q.C. and John Bolland for the Republic of Cyprus.

John Leonard for the Governor of Brixton Prison.

LORD PARKER C.J. In these proceedings Mr. Hutchinson moves on behalf of one Antonis Zacharia, now detained in Her Majesty's Prison at Brixton pursuant to an order of the Bow Street Magistrates' Court under section 5 of the Fugitive Offenders Act, 1881. The motion asks for a writ of habeas corpus or, alternatively, for relief under section 10 of that Act.

The matter arises in this way: The Fugitive Offenders Act not only applied to Cyprus prior to that country becoming a Republic on August 16, 1960, but under the new constitution the Act was continued in force in regard to the Republic rather than having a separate treaty and making the Extradition Act, 1870, apply.

The Cyprus authorities forwarded to this country four warrants asking for the applicant to be returned to Cyprus under the Act of 1881. The first warrant alleged three offences, first, of abducting one Mouyias, secondly, of carrying a revolver or pistol contrary to the firearms law, and thirdly, assaulting Mouyias and occasioning him actual bodily harm. The second warrant concerned an alleged robbery with violence of one Triantifillides, secondly, of demanding £250 from him by menaces, and thirdly, again of carrying a firearm contrary to the Firearms Act. The third warrant charged the applicant with the murder of one Papachakhas, and the fourth warrant again in respect of murder alleged that he murdered one Mouzomenos. Those warrants were supported before the magistrate by depositions, and in due course the magistrate found under section 5 of the Act that

thereby there was a strong or probable presumption that the fugitive committed the offences mentioned in the warrants.

In his application to this court the applicant's case, as appears from his affidavits, is quite shortly this: He says that between 1956 and 1960, when Cyprus was in a state of disturbance and the security forces were taking action against E.O.K.A., he became an agent of the security forces. He alleges that in doing so he became branded amongst the E.O.K.A. forces as a traitor to their cause, that as early as August 27, 1957, an attempt was made on his life by E.O.K.A. and that as the result of that incident he was provided with a gun and permit by the head of the C.I.D. Cyprus police. He further alleges that on several occasions he was charged or arrested for murder, the suggestion being that those charges were instigated by E.O.K.A., and that in fact the charges were either withdrawn or he was acquitted. In September, 1960, he says that leaflets were distributed appearing to emanate from "E.O.K.A. Fighters," in which leaflet he and others with him, referred to as "Zacharia and Co.," were branded as traitors to the cause and the authors called in effect for his liquidation. Later, in November of 1960, when charged with the attempted murder of a Cypriot, an attempt was made on his life while he was in fact handcuffed to a police officer and was driving into the gates of the court, and that he only avoided death by leaping into the yard of the court, dragging the police officer with him. Not only that, but during that same trial while he was talking to a police officer outside the court another attempt was made to shoot him - he claims by a member of E.O.K.A. - but that the bullet missed him and killed the policeman who was standing beside him. As a result of this he says that he saw the Home Secretary and was afforded police protection by day and night, and that that continued until January 27, 1961, when, still under police protection, he was taken to Nicosia Airport and from there flown to this country. He further alleges that since he has been in this country his house in Cyprus has been partially destroyed by bomb attacks. He claims that if he is sent back to Cyprus he will be assassinated before he stands his trial or, if he is acquitted, after he has stood his trial. In a further affidavit he alleges that the Minister of Justice, who signed copies of the depositions in this case, is a well-known E.O.K.A. leader and that the investigating officer and the prosecuting officer are both members of E.O.K.A. The suggestion is that his recall to Cyprus is not made in good faith in the interests of justice but is made by representatives of

E.O.K.A. for purposes of revenge for the part he is alleged to have played in the disturbances.

On the other side there is a long affidavit from one Constantinides, Divisional Commander of Gendarmerie, Limassol. He paints quite a different picture. He says that the applicant in this case succeeded his father as the leader of a well-known gang who, for their own purposes and for money, had for long intimidated people in Cyprus. The affidavit concedes that he did at any rate purport to be an agent for the security forces and that he made use of his alleged connection with E.O.K.A. to kill persons out of revenge for the murder of his father and in the course of the general criminal activities of the gang. The affidavit states that it is thought that the applicant was involved in or responsible for a great number of murders; that it has been very difficult to collect the evidence; that in the cases that have been brought the evidence was not strong enough; and that quite apart from the offences alleged in these warrants there is yet another alleged case of murder in respect of which it is desired to prosecute the applicant. The affidavit further admits the distribution of the leaflets from "E.O.K.A. Fighters," but suggests that they were not true members of E.O.K.A. but were members of either a rival gang or people who desired to revenge themselves upon the applicant. Finally, the affidavit states that these proceedings are brought in good faith in the interests of justice to bring to book, to put it bluntly, a well-known thug; that it has been difficult to collect the evidence until peace has been restored to the country; but now this has been done and it is desired to bring this criminal to justice.

For my part, I find it impossible in this state of the evidence to say that this applicant, upon whom the onus lies, has satisfied me or has made it appear to me, to use the words in section 10, that the application has not been made in good faith in the interests of justice. It seems to me that when one is dealing with a friendly sovereign power and, indeed, a member of the British Commonwealth, that very strong evidence indeed would be required to justify this court in holding that such a government was not, in making such an application as this, acting in good faith and in the interests of justice. I further think that it would require very strong evidence to enable the court to hold that an applicant such as this applicant would not have a fair trial in the courts of that country. Quite apart from it being a friendly power and a member of the Commonwealth, it is well known that the police, the lawyers and the Bench in Cyprus

are at any rate modelled on the English model. I am quite unable to say in the present case that it has been made out to my satisfaction that this application is not made in good faith or in the interests of justice.

That, however, is not the end of the matter because there is little doubt that section 10 gives this court a very wide discretion. The section goes on to provide that the court may refuse to return such a fugitive if "otherwise, it would, having regard to the distance, to the facilities for communication and to all the circumstances of the case be unjust or oppressive or too severe a punishment to return the fugitive." Those words, "to all the circumstances of the case," coupled with the word "oppressive" seem to me to give this court a very wide discretion.

A number of points are conceded or, if not conceded are really clear. It seems to me, first, that this applicant did purport to assist the security forces during the disturbances in their efforts to suppress E.O.K.A. How far he did assist them is unknown, but the security forces clearly thought he was of assistance, and indeed, as I have said, he was issued with a gun and a permit. It is also clear, secondly, that persons claiming to be "E.O.K.A. Fighters," did distribute these leaflets naming the applicant as a traitor to their cause and calling for his extermination. Whether such persons were in fact E.O.K.A. representatives or merely persons bent on personal revenge, the fact does remain that they were out to have the applicant removed. Thirdly, whether by representatives of E.O.K.A. or by others prompted by a desire for personal revenge, no less than three attempts were made on his life, and two of them while he was in custody, and that after his departure some person caused his house to be partially destroyed. Fourthly, it is clear that the authorities in Cyprus clearly recognised that he was in need of protection; he was in fact given day and night protection after the third attempt on his life and until he was put on the aeroplane at Nicosia Airport on January 27. It is also clear, I think, that if he is returned to Cyprus the authorities may well bring further serious charges against him, particularly in the case of murder. Lastly, I should refer to the admitted fact that he has been, as I have said, charged with murder or attempted murder on several occasions in the past, and he has either been acquitted or the charges have been withdrawn.

Looking at those facts, which I think are clear, a number of points arise. In the first place, it seems probable that, owing to the way in which he is regarded by a number of people in Cyprus,

there is a real danger that evidence against him has been or will be fabricated. Secondly, that there is a very real danger of his being assassinated. So far as the first of those matters is concerned, as I have said there is no reason to think that so far as the courts are concerned in Cyprus that they will not give this man a fair trial, and that they can be trusted to look at the evidence with suspicion and see that it is properly tested. Indeed, Mr. Clarke, for the Government of Cyprus, has drawn our attention to the fact that the courts already have done that on the occasions when he has previously been before the courts.

As regards the second probability, namely, the real danger to his life, the position as it seems to me is this: In considering whether it would be oppressive to send this man back to stand trial, I should have thought that considerations as to the danger to his health and, a fortiori, the danger to his life, were matters which the court was entitled to take into consideration. It seems to me, however, that in every case the degree of danger to health or danger to life must be put against the degree of seriousness of the crime alleged. In other words, I can well conceive that this court might say that it was oppressive to send a man back to be tried on some comparatively small charge if the evidence was that he was almost certain to be killed. Here, the charges are of the most serious nature, two of them murder, and while there is a very real risk to his life, I do not myself feel able to say that purely for that reason it would be oppressive to send him back. After all, he will be in custody. True, in November of 1960, it availed him little to be in custody in the two attempts that were made on his life, but there is no reason to think that the police will not take even added precautions for the future. Certainly, they have shown every willingness to protect him, having protected him after the attempts on his life in November, 1960, until he left the country on January 27, 1961.

Those, as it seems to me, are the two main matters which arise for consideration once the court has held, as I do, that there is no question here of bad faith or of acting otherwise than in the interests of justice. Mr. Hutchinson, to whom the court is indebted for his very clear argument, has quite rightly emphasised that it is wrong to pick out one point rather than another and deal with that, and that one ought to look at all the circumstances and particularly the whole background of the case. I have done that to the best of my ability, giving this case very anxious consideration, but I have come to the clear conclusion in the end that this is not a case in which the court should exercise the

very special powers given to them under section 10. I should add that it is comparatively rare for the court to exercise those powers, and for the very good reason that in dealing with the Government of a friendly power it would only be in an extreme case that the court would think it right to refuse their request to have their national returned to their country for an alleged offence committed in that country.

For those reasons, which I have endeavoured to state shortly, I have come to the conclusion, though I confess with some regret, that there is no good reason why relief should be given under section 10 of the Act.

Another point was taken, namely, that in regard to warrant No. 2 alleging the robbery with violence of one Triantifillides and the offence of demanding £250 by menaces, no case appeared on the depositions which would justify the magistrate's holding that in the words of section 5 a strong or probable presumption of guilt had been made out. After going into the matter, it becomes, I think, clear that there was no sufficient evidence in regard to the first count, namely, that of robbery with violence. There was, however, in my judgment, evidence to support the charge of demanding £250 by menaces. That being so, there is enough to send the applicant back on that warrant. Whether or not in the circumstances the magistrate or this court says that the evidence does not support the first count does not seem to me to matter, because once the applicant is taken back to Cyprus it is for the Cyprus authorities to charge him, and whether they persist in that first count or whether they abandon it is for them to decide. Accordingly it does not seem to me that there is any ground for refusing his return in respect of that warrant No. 2.

There is another applicant to whom I have not yet referred, whose case has been dealt with at the same time. He is one Euripides Arestidou, who quite clearly was a friend, referred to as a bodyguard, of Antonis Zacharia. In so far as Zacharia was the leader of a gang, Arestidou was a member of that gang. He is only concerned with this warrant No. 2, to which I have referred. There is, as I have said, sufficient evidence on the depositions to support one at any rate of the counts in that warrant and, accordingly, it cannot be said that the magistrate was wrong in committing him on that warrant Everything that I have said in regard to Antonis Zacharia applies equally to this applicant, save this, that though he complains that he was before leaving the country and will be if he returns at danger and at risk of being assassinated, the case of anticipated violence against him is

nothing like so strong as in the case of Zacharia, and accordingly if there is no ground for exercising discretion in the case of Zacharia there certainly is not in the case of Arestidou. Accordingly, in my judgment, both these applications should be refused.

ASHWORTH J. I agree.

WIDGERY J. I also agree.

Hutchinson Q.C. I am instructed to ask for leave to appeal and it must be on a matter of law. On what your Lordship has said in your judgment the court could only consider the two matters you have enumerated once you have come to the conclusion that there was no bad faith, and that would appear to be a point of law.

LORD PARKER C.J. There is no question of certifying in regard to habeas corpus that there is a point of law of general public interest; that does not arise.

Hutchinson Q.C. I do not think I have anything more to say, save that I ask for leave to appeal on that and any other matters that arise.

LORD PARKER C.J. Mr. Clarke, do you want to say anything?

Clarke Q.C. In my submission, no; it is entirely a matter for your Lordships. All that your Lordships, as I understand it, have done is to refuse to exercise your discretion in a matter where your discretion is of the widest.

LORD PARKER C.J. I have a sort of feeling that if we had exercised our discretion the other way you might have desired to go higher.

Clarke Q.C. I have considered that, and may I say at once, though it is easy to be wise after the event, that I myself found great difficulty in asking to go to the House of Lords on a matter of discretion. In my submission, it would be equally difficult for both sides, whoever lost, to go to the House of Lords and argue a point on which your Lordships have exercised discretion, and I know of no case where leave has been granted or the House of Lords have considered that matter.

Hutchinson Q.C. That was why I mentioned the point, because obviously if it is a matter purely of your Lordships' exercising discretion then these considerations might apply, but it did

seem to me that there were obvious points of law that arose, though the court's decision is based on the exercise of discretion within section 10. Of course, the whole application involves the exercise of a final discretion, but as to how this court should exercise the discretion as, for instance, the court having come to a conclusion on one limb, is only able to consider certain other matters, would surely be a matter of law and be a matter whether your Lordships had exercised your discretion properly or not in law.

LORD PARKER C.J. Mr. Hutchinson, the court does not feel that it is in a position to give you leave, but of course under this procedure there is nothing to prevent you asking the Appeal Committee of the House of Lords for leave.

On December 20, 1961, the House of Lords granted both appellants leave to appeal.

Jeremy Hutchinson Q.C. and J. C. Mathew for the appellants. The alleged offences were supposed to have been committed in Cyprus during the civil war which took place before Cyprus became a republic. The appellants are content in the main to argue these appeals on the facts as found by the Divisional Court. It is submitted: (1) On the facts as found the appellants had succeeded in making it appear that it would be "unjust and oppressive" to return them to Cyprus within the meaning of section 10 of the Fugitive Offenders Act, 1881. (2) The Divisional Court in exercising its discretion applied a wrong principle in (a) weighing the degree of danger to the appellants if they were returned against the gravity of the crimes alleged; (b) in placing too great a burden on the appellants in discharging the onus in relation to the words in section 10 "where it is made to appear." (3) The Divisional Court failed to take into account or consider the first appellant's contention that the two most serious offences, if committed, were of a political nature and character and that the reason for his return was to punish him for offences of a political character. (4) The appellants had succeeded in making it appear to the court that the application for their return was "not made in good faith in the interests of justice" within the meaning of section 10. (5) The Divisional Court was wrong in finding that in the second warrant relating to the offences of

robbery with violence and demanding money with menaces there was evidence amounting to a strong or probable presumption of guilt.

The appeal of Zacharia.

The appeal raises difficult questions of law in those cases where a Commonwealth country became an independent republic within the Commonwealth and the Fugitive Offenders Act, 1881, continues to apply. It is to be noted that there is no reciprocity in the application of the Act in view of a recent decision of a Cyprus court³ that no citizen of Cyprus can be taken out of Cyprus on a demand of the Government of the United Kingdom under this Act. The Act applies to self-governing colonies and the Dominions. It is a domestic arrangement. The returnable offences are specified in section 9, but the net is cast far wider than under the Extradition Act, 1870. Further, the safeguards provided for fugitives under the Extradition Act, 1870, in particular, the political proviso, are not to be found in the Fugitive Offenders Act, 1881. It is by virtue of section 3 of the Cyprus Act, 1960, that the Act of 1881 is applicable here. In applying the Fugitive Offenders Act, 1881, to an independent republic within the Commonwealth the same principles should be applied as those applicable in the case of a British possession and not those applicable to an independent foreign state under the Extradition Act, 1870.

Section 10 of the Act of 1881 gives the court a wide discretion to do what in all the circumstances is just: Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh.⁴ [Reference was also made to In re Henderson⁵ and Rex v. Governor of Brixton Prison, Ex parte McCheyne.⁶] To return Zacharia to Cyprus in the circumstances prevailing here would be "unjust or oppressive." If under section 10 there has to be Weighed in the balance the oppression and the danger to the life of the fugitive on the one hand and the gravity of the offence on the other, then it is relevant to consider whether the evidence adduced on behalf of the application is reliable or likely to be reliable. It is said that Zacharia is a thug and that the alleged crimes were committed by him for reasons of personal revenge. But in the aftermath of every civil war allegations

3 See The Times, June 3, 1961, p. 8.

4 [1962] 1 Q.B. 211; [1961] 2 W.L.R. 980; [1961] 2 All E.R. 565, D.C.

5 [1950] 1 All E.R. 283, C.A.

6 [1951] 1 T.L.R. 1155, D.C.

are made that certain acts committed during it were done for reasons of that nature. There is nothing in the Act of 1881 to suggest that it is only in an extreme case that an English court would refuse an application to return an alleged offender. It is emphasised that it is wrong to balance the danger to the fugitive against the gravity of the alleged offence for if that were the criterion whenever the gravest crime, murder, was alleged it would be impossible to place anything on the other scale to balance it. There is no onus on the appellant to "make it appear" - to use the language of section 10 - that it would be unjust or oppressive or too severe a punishment to return him. If the opening words of section 10 were "if the fugitive can prove to the satisfaction of a superior court ..." then the onus on the fugitive would be to satisfy the court on the balance of probabilities.

As to the political nature of the alleged offences, the two alleged murders were of such a character and significance. In these circumstances the House should apply the same rules here as pertain under section 3 (1) of the Extradition Act, 1870, and the question of discretion would not arise: see per Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed.⁷ On the question how the court should approach the problem whether the alleged offences are of a political character; see Reg. v. Governor of Brixton Prison, Ex parte Kolczynski,⁸ which goes as near as may be to imputing bad faith to the applicant government even in proceedings under the Extradition Act, 1870. See also Reg. v. Governor of Brixton Prison, Ex parte Schtraks.⁹ Where a political party as the result of a disturbance succeeds in overthrowing the government and itself takes office and thereupon applies for the return of a person who is alleged to have committed an offence during such disturbance, the offence should be considered one of a political character. Thus, here, if Zacharia with the connivance of the Cyprus police under British control killed a person as alleged, in the circumstances it cannot be denied that this disclosed an offence of a political character: see In re Castioni.¹⁰ It is a pure question of fact whether there was a disturbance, namely, a rebellion, and whether the act complained of was done as part of or in

7 [1952] 1 All E.R. 1060, 1063, D.C.

8 [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31, D.C.

9 [1962] 2 W.L.R. 976; [1962] 2 All E.R. 176, D.C.

10 [1891] 1 Q.B. 149, 156, D.C.

furtherance of that disturbance. If it was, then on the principles of the Extradition Act, 1870, as propounded by Lord Goddard C.J. in the Kolczynski case,¹¹ Zacharia must not be surrendered.

On the question whether the applications were made "in good faith in the interests of justice," it is to be observed that that is the phrase as it appears in section 10 of the Act of 1881 and that it should not be read as it is found in the judgment of Lord Parker C.J.¹² as though it were "in good faith and/or in the interests of justice." These applications were made by the Government of Cyprus, acting through the Attorney-General of Cyprus, who instructed a police officer to take steps to secure the issue of the warrants. It is only necessary to impeach the good faith of the inspector of police in Cyprus who applied for the warrants. Alternatively, what is impeached is the application itself, whoever it was made by. One can impeach the application either by showing that it was made from bad motives or by showing that although made from proper motives it was not truly made in the interests of justice.

Having regard to (a) the fact that the Minister of Justice, the prosecuting officer and the investigating officer were all members of E.O.K.A.; (b) the statement of the Attorney-General of Cyprus, that attempts were made to assassinate Zacharia; (c) the facts that Zacharia was given police protection, and the police had knowledge 13 days before he left Cyprus of the details contained in an E.O.K.A. pamphlet concerning the alleged murder of Mouzomenos and (d) that Zacharia had four previous acquittals for murder, and the whole background of the case, in particular the affidavit in reply, there are grounds for querying whether the application was made in good faith in the interests of justice.

J. H. Buzzard for the Governor of Brixton Prison, intervened on a point of jurisdiction. The question arises whether this House has jurisdiction to entertain the appeals in so far as they relate to proceedings under section 10 of the Fugitive Offenders Act, 1881. It appears that they being appeals in a "criminal cause or matter" the grant of a certificate by the Divisional Court pursuant to section 1 (2) of the Administration of Justice Act, 1960, is a prerequisite to the hearing of the appeals by this House, and since this is a question of jurisdiction it cannot be waived. In so far as these appeals relate to the habeas corpus proceedings a certificate from the Divisional Court is not required: section 15

11 [1955] 1 Q.B. 540, 549 et seq.

12 Ante, p. 639.

of the Act of 1960. This House held in De Demko v. Home Secretary¹³ that an application for relief under section 10 of the Fugitive Offenders Act, 1881, lies to the Court of Appeal but not an application by way of habeas corpus. This shows that section 10 proceedings and habeas corpus proceedings are quite separate: see also Rex v. Governor of Brixton Prison, Ex parte Savarkar.¹⁴ The writ of habeas corpus goes if it is shown either that the committing magistrate had no jurisdiction or that the depositions do not disclose evidence from which a reasonable man could draw the conclusion that it was reasonable to suppose that the offence alleged had been committed. Section 10 is complete in itself; habeas corpus does not enter into it, for the section provides its own remedies.

It was thought right to raise this question as it is one of jurisdiction and because the situation here might well arise in other cases. The legislature in enacting the Administration of Justice Act, 1960, might well have thought that since a wide discretion is conferred on the Divisional Court under the provisions of section 10 of the Act of 1881 the exceptional provision that no certificate is necessary for an appeal in habeas corpus proceedings should not apply to appeals under section 10.

Edward Clarke Q.C. and John Bolland for the Republic of Cyprus. The respondents have always taken the view that this is a bad point. Once a case comes before the House on habeas corpus then the appeal is at large and section 10 is not excluded. This submission is reinforced by the fact that the Divisional Court¹⁵ considered that no certificate was necessary when application was made for leave to appeal. In any event, in the present instance any defect could be remedied by an early application to the Divisional Court for a certificate. The Government of Cyprus would prefer the appeals to be decided on their merits and not on a technicality.

Hutchinson Q.C. Section 15 of the Administration of Justice Act, 1960, provides that "subject to the provisions of this section, an appeal shall lie in any proceedings upon application for habeas corpus ..." and that in relation to a decision of a Divisional Court on a criminal application for habeas corpus there is no restriction on the right of appeal save that of obtaining leave to appeal.

The order of the Divisional Court shows that the application

13 [1959] A.C. 654; [1959] 2 W.L.R. 231; [1959] 1 All E.R. 341, H.L.

14 [1910] 2 K.B. 1056; 26 T.L.R. 561, C.A.

15 Ante, p. 643.

in each case was one application and it was the application which was dismissed, and it was the application from which it was sought to appeal. The part of the application which is made under section 10 is made in proceedings upon application for habeas corpus; accordingly, proceedings under section 10 of the Fugitive Offenders Act, 1881, come within the ambit of section 15 of the Act of 1960.

On the passing of the Fugitive Offenders Act, 1881, it must have been envisaged that the normal procedure would be, on an application to a superior court, for a writ of habeas corpus also to be laid before the superior court, who would thereupon consider the application as a whole and decide whether there was lack of jurisdiction in the magistrate or exercise the discretion vested in the court under section 10. It was said that the fact that the Court of Appeal has power to entertain an application under section 10 but not for habeas corpus is evidence of the distinctiveness of the two proceedings. But the extraordinary original jurisdiction of the Court of Appeal in proceedings under section 10 is purely fortuitous and quite artificial: see the De Demko case.¹⁶ In all modern cases relief under section 10 has been asked for in habeas corpus proceedings: see, for example, Rex v. Governor of Brixton Prison, Ex parte McCheyne.¹⁷ [Reference was made to Rex. v. Governor of Brixton Prison, Ex parte Green¹⁸ and In re Clemetson.¹⁹]

Since the legislature has thought fit by the Act of 1960 to give a right of appeal without the prerequisite of obtaining a certificate in habeas corpus proceedings, the same principal should apply to appeals to this House under section 10 of the Act of 1881 where likewise the question of the liberty of the appellant is concerned.

For the purposes of section 15 (3) of the Act of 1960 the House is now considering the "decision of a Divisional Court on a criminal application for habeas corpus" and the decision involves consideration of section 10 of the Fugitive Offenders Act, 1881. Equally, when considering the ambit of section 1 of the Act of 1960 anything which arises out of the application to the Divisional Court arises in the course of a "criminal cause or matter." [Reference was also made to section 5 of the Administration of Justice Act, 1960.]

16 [1959] A.C. 654.

17 [1951] 1 T.L.R. 1155, D.C.

18 The Times, December 16, 1954, D.C.

19 The Times, November 23, 1955, D.C.

Buzzard in reply on the question of jurisdiction. Subsection (1) of section 15 of the Administration of Justice Act, 1960, reinforces the contention that that section is confined to habeas corpus proceedings in the strict sense, for it only envisages circumstances where there has been an order for the release of the person restrained or a refusal to make such an order and is not apt to include an order made under section 10 which is wider in its terms: see the Savarkar case,²⁰ where the question was left open whether on the dismissal by the Divisional Court of an application for a writ of habeas corpus proceedings under section 10 could not be taken under the original jurisdiction of the Court of Appeal. It follows that the dismissal of an application for the writ does not mean the ipso facto dismissal of an application under section 10.

It is conceded that in the authorities there are many examples; of a confusion between the two remedies, but they are in fact very different. Reliance is placed on Ex parte Savarkar²⁰ as approved by this House in De Demko v. Home Secretary.²¹

[Their Lordships conferred.]

VISCOUNT SIMONDS. Their Lordships are of the opinion that the preliminary point of jurisdiction is not well founded.

Hutchinson Q.C. continuing on the substantive appeals.

The appeal of Arestidou.

The only offence with which Arestidou is charged is that of demanding £250 with menaces. It would be oppressive and unjust to return him to Cyprus on this one charge since it is plain on the evidence that he would have to be kept in custody pending his trial in order to protect his life.

As to the meaning of the words in section 5 of the Act of 1881 "such evidence ... as ... raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant," it was held in Rex v. Governor of Brixton Prison, Ex parte Bidwell²² that they meant such evidence as, if it remained uncontradicted at the trial, would entitle a reasonable jury to convict the alleged fugitive upon it. Contrast the language of section 25 of the Indictable Offences Act, 1848 (now section 7 of the Magistrates' Courts Act, 1952) relating to committals for trial in England, which is incorporated into section 10 of the Extradition Act, 1870, where the criterion for committal is twofold, namely, either the evidence must be sufficient in the

20 [1910] 2 K.B. 1056.

21 [1959] A.C. 654.

22 [1937] 1 K.B. 305; 53 T.L.R. 1; [1936] 3 All E.R. 1, D.C.

opinion of the magistrate to put the accused on trial, or raises a strong or probable presumption of guilt.

In Reg. v. Governor of Brixton Prison, Ex parte Mourat Mehmet²³ Lord Parker C.J. said that the Divisional Court could look at the evidence before the magistrate and consider whether any magistrate, properly applying his mind to the question, could reasonably come to the conclusion that a strong or probable presumption of guilt had been made out. Anything which emerges in evidence before the superior court which might effect its discretion should be taken into consideration under section 10 of the Act of 1881, for nothing could be wider than the terms of that section.

There is here no evidence of a demand for money made with menaces; there was in fact originally a voluntary handing over of money by the complainant for protection. If, as is submitted, the observations of Swift J. in Ex parte Bidwell²⁴ are correct, there is here no evidence on which a reasonable jury would convict this appellant.

On the question of reciprocity, it is to be observed that article 14 of the Constitution of the Republic of Cyprus, which came into force on August 10, 1960, provides that no citizen shall be banished or excluded from the republic in any circumstances. These alleged acts were done before the Constitution came into force and at a time when the appellants were British subjects residing in a British colony. [Reference was also made to Piggott on Extradition (1910), p. 299.]

Edward Clarke Q.C. The Government of Cyprus has a right of audience in these appeals merely because on the petitions the appeal was stated to be between the appellants and the Government of Cyprus. In strict law the requesting power has no right to appear before the magistrate. Further, on the fugitive's application to a superior court the matter would be headed "Reg. v. Governor of Brixton Prison, Ex parte" the fugitive, and the state concerned would not be a party.

It is to be remembered that the appellants have an additional safeguard in that after the legal process is complete the Secretary of State has power to review the whole matter: see section 6 of the Fugitive Offenders Act, 1881.

Reliance is placed on In re Arton.²⁵ It is true that that was a decision under the Extradition Act. 1870. and that there are

23 [1962] 2 Q.B. 1; [1962] 2 W.L.R. 686; [1962] 1 All E.R. 463, D.C.

24 [1937] 1 K.B. 305.

25 [1896] 1 Q.B. 108, 113, 114, 115; 12 T.L.R. 131, D.C.

important differences between that Act and the Fugitive Offenders Act, 1881, but the approach the Courts should adopt towards an application by a friendly foreign state is relevant for present purposes where the application is by an independent republic within the Commonwealth.

There are important distinctions between the principles applicable to cases under the Extradition Act, 1870, and those applicable to cases under the Fugitive Offenders Act, 1881. The latter Act was enacted to deal with fugitives from one part of Her Majesty's dominions fleeing to another part of Her dominions, both parts being equally subject to the Crown. In the present century, with the rise of independent republics within the Commonwealth, like Cyprus and India, it is not possible for such countries to put into immediate operation a new code of law, and therefore the Acts proclaiming independence provide that all laws in operation prior to the date of independence shall continue in operation. The effect, so far as the Fugitive Offenders Act is concerned, is suddenly to translate it into a form of extradition statute between two independent countries.

The important differences between the Extradition Act, 1870, and the Fugitive Offenders Act, 1881, are these: the Fugitive Offenders Act contains no provision exempting political offences from its operation, whereas the Extradition Act does; there is nothing in the Fugitive Offenders Act concerning reciprocity, in the Extradition Act there is; there is nothing in the Fugitive Offenders Act about the fugitive not being tried for any offence except that for which he is handed over, in the Extradition Act there is; in the Fugitive Offenders Act (section 10) there is a provision that the fugitive is not to be handed over where it is unjust or oppressive so to do, whereas in the Extradition Act there is no such provision.

The observations of Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed²⁶ are wrong in so far as he states that where the crime has a political character the court may take cognisance of it for the purposes of the Fugitive Offenders Act, 1881, in the manner prescribed under section 3 (1) of the Extradition Act, 1870. It is conceded that the court can consider the political character of the request for the return of the fugitive under the wide discretion conferred by section 10 of the Act of 1881, which provides that the court may discharge the fugitive where it is made to appear that the application is

26 [1952] 1 All E.R. 1060, 1062, 1063.

not being made "in good faith in the interests of justice or otherwise." Here, the Divisional Court has exercised its discretion judicially and no error of law in the exercise of that discretion has been shown. In those circumstances the House would not interfere with the decision of the Divisional Court

J. H. Buzzard. No concession is made relating to the power of the court to exempt under its general discretion the application of the Fugitive Offenders Act, 1881, to political offences. The Extradition Act, 1870, was intended to preserve the nineteenth-century principle of political asylum: see sections 3 (1), 7, 9, 24, proviso, First Schedule. Neither that Act nor any of its amending Acts includes political offences within its scope. Up to the early nineteenth century extradition was usually granted where the offence concerned was political, probably in order to prevent reprisals. For the history of political asylum, see Biron and Chalmers on Extradition (1903), pp. 7-11.

The purport of the Fugitive Offenders Act, 1881, is quite contrary to the scheme of the Extradition Act, 1870, for in section 9 of the former Act the first offence listed is treason, which is the political crime par excellence. Suppose the Republic of Cyprus sought the return of a person charged with treason, could it be said by the Divisional Court that although it is the first crime specified in section 9 nevertheless the court would exercise its discretion under section 10 and refuse the request? Such considerations are for Parliament and not for the courts. Whilst crimes of a political character do not come within the ambit of section 10, nevertheless if it appeared that a fugitive's surrender was required for purposes of political revenge that fact could be taken into consideration by the court under that section.

A request for surrender under the Extradition Act, 1870 (section 7), is made by a person of recognised diplomatic status; it is an act of state. In an application under the Fugitive Offenders Act, 1881 (section 3), on the other hand, the proceedings may be instituted by a private prosecutor. The present applications should be regarded as having been made by whoever was responsible for seeing that the warrants were issued. Assuming that it was the Attorney-General in Cyprus, then even though he acted in good faith, if he acts on information supplied, or depositions secured by his servants in bad faith, it ought to be open to the court to hold that the applications were made in bad

faith. The observations of Lord Russell C.J. in In re Arton²⁷ on the question of good faith have no application to the Act of 1881. The Extradition Act, 1870, does not confer upon the court any discretion, and for the court to have imported a discretion in dealing with applications under that Act would have laid the Government of the United Kingdom open to the charge that it was evading its treaty obligations.

The appellants are not aliens but British subjects. If the Government of Cyprus applied for the handing over of British police officers alleged to have counselled or procured the appellants to commit the murder referred to in the present proceedings, it may be that the courts would not be slow to find that there was bad faith in such applications as being brought for motives of political revenge, yet such motives are more likely to arise in a case such as the present, where the persons whose handing over is requested are said to be Cypriot traitors.

The reason for the insertion of the words "reasonable or probable presumption" in section 5 of the Fugitive Offenders Act, 1881, is that the section plainly envisages the return of fugitives for alleged summary offences and therefore it was thought inappropriate to equate proceedings under the Act of 1881 with committal proceedings before justices. Accordingly, the legislature sought by using those words to lay down a standard which could be applied throughout the Commonwealth. The statement in Piggott on Extradition, p. 300 is wrong.

Hutchinson Q.C. in reply. The statement of Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed²⁸ that in relation to political offences the principles of the Extradition Act, 1870, are applicable to the Fugitive Offenders Act, 1881, is right. In 1962 the question is one of great importance since there are now independent republics within the Commonwealth and the possibility arises of persons coming to the United Kingdom for political reasons.

As to the discretion conferred by section 10 of the Act of 1881, it is a relevant circumstance in considering whether these applications were made "in good faith in the interests of justice" that they were made by former members of E.O.K.A. On the evidence here it cannot be said that these words are satisfied.

It is true that under section 6 the Secretary of State is in a better position to deal with certain aspects of an application than is the court; nevertheless, certain duties are laid upon the court

27 [1896] 1 Q.B. 108, 115.

28 [1952] 1 All E.R. 1060, 1063.

under section 10 and those duties should be performed by the court and not left to the executive.

The question here is whether on the balance of probabilities it would be oppressive to return the applicants. To take the case of Zacharia, if there is evidence which shows that if he is returned attempts will be made on his life, and that if he is acquitted of the charges specified in the warrants further charges will be preferred against him, that would entitle the House to exercise its discretion under section 10.

At the conclusion of the argument their Lordships conferred.

VISCOUNT SIMONDS. Their Lordships will in due course report to the House that these appeals should in their opinion be dismissed. In view of the provisions of section 6 of the Fugitive Offenders Act, 1881, and the possibility of an application being made to the Home Secretary under that section, their Lordships think it right to add that the time of 15 days prescribed by that section will not run until the House itself has dealt with the Appellate Committee's report.

April 17.VISCOUNT SIMONDS. My Lords, your Lordships have to consider two appeals from orders of the Divisional Court of the Queen's Bench Division, the first entitled "In the matter of Antonis Zacharia and In the matter of an application for a writ of habeas corpus ad subjiciendum and for relief under section 10 of the Fugitive Offenders Act, 1881," the second similarly entitled with the substitution of the name of Euripides Arestidou for that of Antonis Zacharia. My reason for thus setting out the titles of the orders of the court will appear. Much that I have to say concerns both appeals, but I will for convenience deal in the first place with that of Zacharia.

On September 13, 1961, at Bow Street Magistrates' Court an order was made under section 5 of the Fugitive Offenders Act, 1881, committing Zacharia to Brixton Prison pending his return to Cyprus in respect of warrants upon which he had previously been arrested. These warrants, to which I will presently return, had been duly indorsed under section 3 of the Act and Zacharia had been apprehended accordingly. Under section 5 it is the duty of the magistrate, before whom the fugitive when apprehended is brought, to hear the case in the same manner and exercise the same jurisdiction and powers as near as may be as if the fugitive

were charged with an offence committed within his jurisdiction. And, if the indorsed warrant for the apprehension of the fugitive is duly authenticated and such evidence is produced as, subject to the provisions of the Act, according to the law administered by the magistrate, raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which that part of the Act applies, it is his duty to commit the fugitive to prison and forthwith to send a certificate and such report of the case as he may think fit to the Secretary of State. It is further his duty when he commits the fugitive to inform him that he will not be surrendered until after the expiration of 15 days, and that he has a right to apply for a writ of habeas corpus or other like process.

I refer also to section 6, because it has a bearing on the observations I shall finally make. That section provides that upon the expiration of 14 days after a fugitive has been committed to prison to await his return or, if a writ of habeas corpus or other like process is issued with reference to such fugitive by a superior court, after the final decision of the court in that case the Secretary of State may, if he thinks it just, by warrant under his hand order that fugitive to be returned to the part of Her Majesty's dominions from which he is a fugitive with the necessary ancillary directions.

I pass over sections 7 and 8 of the Act and mention section 9 only to note that treason is specifically mentioned as an offence to which the Act applies, and that it beyond all question covers the several offences charged in the warrants upon which Zacharia was arrested.

It is section 10 with which your Lordships have been mainly concerned, and since it has been closely analysed by the learned counsel for the appellants, I must set it out in full. It provides as follows: "Where it is made to appear to a superior court, that by reason of the trivial nature of the case or by reason of the application for the return of the fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive either absolutely or on bail or order that he shall not be returned until after the expiration of the period named in the order or may make such other order as to the court seems just."

The warrants to which I have referred alleged numerous offences by Zacharia, abduction, carrying a revolver or pistol contrary to the firearms law, assault, robbery with violence, demanding money with menaces, murder and again murder. They were supported by depositions upon which the magistrate came to the conclusion that they raised a strong or probable presumption that Zacharia had committed the offences named in the warrants. Some discussion took place before your Lordships as to the exact meaning and content of the words "strong or probable presumption." To me it appeared academic, for, unless the words mean nothing at all, I do not see how the magistrate could have failed to find in the depositions ample justification for the course which he took. He duly committed Zacharia to prison to await his return to Cyprus but, in further accordance with his duty, notified him of his right to apply for a writ of habeas corpus.

This right was in due course exercised by Zacharia and, in accordance with the modern practice, leave was sought of Plowman J. and granted by him that the Queen's Bench Division should in due course be moved on behalf of Zacharia that a writ of habeas corpus in the usual form should issue directed to the Cyprus Government representative in London and to the Governor of Her Majesty's Prison at Brixton.

The motion came before the Divisional Court consisting of the Lord Chief Justice of England, Ashworth and Widgery JJ. It was supported by numerous affidavits and exhibits, to which a number of affidavits were filed in answer by the Cyprus Government. It was dismissed by the court, the Lord Chief Justice delivering a long and careful judgment in which the other members of the court concurred. Leave to appeal was obtained from the Appeal Committee of this House and so the matter came before your Lordships.

It is now necessary to mention a matter which did not emerge until the hearing of the appeal had proceeded for some time. It then appeared that a serious question arose whether the appeal, being undoubtedly in a criminal cause or matter, could be entertained by this House unless a certificate had been given by the court below that a point of law of general public importance was involved in their decision. No such certificate had been asked for or obtained. Your Lordships proceeded to consider this as a preliminary point, and by a majority decided that it was not well founded. I feel constrained to express my own view that this is a

wrong decision and, I may add, my regret that it should have been reached.

Apart from the provisions of the Administration of Justice Act, 1960, the appeal would clearly have been incompetent. It is necessary then to consider the relevant sections of that Act. They are sections 1 and 15.

Section 1 (so far as relevant) provides that (1) an appeal shall lie to the House of Lords at the instance of the defendant or the prosecutor from any decision of the Divisional Court of the Queen's Bench Division in a criminal cause or matter; but (2) that no appeal shall lie under this section except with the leave of the court below or the House of Lords, and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision, and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.

So far the matter is clear. No appeal lies in a criminal cause, including an application under section 10 of the Fugitive Offenders Act, 1881, without (inter alia) the proper certificate.

Section 15, however, which comes within a fasciculus of sections headed "contempt of court, habeas corpus, and certiorari," provides by subsection (1) that, subject to the provisions of that section, an appeal shall lie in any proceedings upon application for habeas corpus, whether civil or criminal, against an order for the release of the person restrained as well as against the refusal of such an order, and by subsection (3) that in relation to a decision of a Divisional Court on a criminal application for habeas corpus, section 1 of the Act should have effect as if so much of subsection (2) as restricted the grant of leave to appeal were omitted.

Here then is the question: "When an order is ex facie made upon an application for habeas corpus and for relief under section 10 of the Fugitive Offenders Act, 1881, is an appeal from that order to be regarded as an appeal in an application for habeas corpus within the meaning of section 15, when it is directed only to relief under the Act?"

Some guidance is to be obtained from authority. In Rex v. Governor of Brixton Prison, Ex parte Savarkar¹ the distinction between an application for a writ of habeas corpus and an application for relief under section 10 of the Act of 1881 and between

1 [1910] 2 K.B. 1056; 26 T.L.R. 561, C.A.

the remedies which could be granted in regard to such applications respectively was clearly pointed out. The facts were somewhat complicated but are accurately stated in the headnote which I repeat. An order nisi for habeas corpus was obtained in the King's Bench Division on the application of a person in custody under the Fugitive Offenders Act, 1881, but was afterwards discharged. The affidavit upon which the order nisi was obtained stated (inter alia) matters material as ground for the exercise of the power given by section 10 of the Act, but the order nisi was simply in form for a habeas corpus and not in the alternative for relief under section 10. On the argument of the order nisi the matters referred to in the affidavit were discussed, and the court in giving judgment pronounced them as insufficient for the exercise of the power given by section 10. The order ultimately drawn up, however, was simply for a discharge of the order nisi for habeas corpus. An application was subsequently made to the Court of Appeal to exercise the powers given by section 10 as having original jurisdiction in that behalf under the Act concurrently with the High Court. A preliminary objection was taken to the hearing of the application on the ground that the matter had been previously adjudicated on by the King's Bench Division and was therefore res judicata. It was held unanimously by a strong court (Vaughan Williams, Fletcher Moulton and Buckley L.JJ.) that, inasmuch as the only matter adjudicated on by the order of the King's Bench Division as drawn up was that the order nisi for a habeas corpus should be discharged, the matter of the application to the Court of Appeal (that is for relief under the Act of 1881) was not res judicata. The point at issue is summed up most concisely by Fletcher Moulton L.J. in these words²: "In my opinion, the relief which the court is empowered to give under ss. 10 and 35 of the Fugitive Offenders Act, 1881, ought to be made the subject of a substantive application to the court. Such relief has in reality nothing to do with relief by habeas corpus; it can be obtained by an independent application to the court; and I think it was the intention of the statute that it should be so." Buckley L.J. puts it thus³: The question which is raised upon the application for a habeas corpus is whether the fugitive is validly imprisoned or detained, and that which is raised under ss. 10 and 35 is whether, it having been found that he is lawfully detained, he ought or ought not to be deported." This view of the law has never so far as I am aware been challenged, though, as happened in

2 [1910] 2 K.B. 1056, 1075.

3 Ibid. 1066, 1077.

the case cited, it has sometimes been found convenient to raise and discuss upon a habeas corpus application matters that are relevant only to relief under the 1881 Act. But this should not obscure the fact that (as the title to the order shows) here are two different claims (1) that the fugitive is not lawfully detained, to which alone the remedy of a writ of habeas corpus is appropriate and (2) that relief should as a matter of discretion be granted by the court under the Act of 1881. It is only if the applicant fails on the first application that he needs to urge the second. And upon that application the relief that may be granted is far different from any that a court can grant upon a successful application for habeas corpus.

Is there then any reason why in section 15 of the Administration of Justice Act, 1960, the words "a criminal application for habeas corpus" should be extended to mean an application under the Fugitive Offenders Act, 1881, which has been joined with an application for a writ of habeas corpus? Where the fugitive has been found to be lawfully detained the writ of habeas corpus is spent. The hope remains to him that he may get relief under section 10 of the Act by judicial process or as a last resort under section 6 by executive favour. I see no reason for straining the language of section 15 of the Act of 1960. It is of course clear that that Act has opened the door wider than ever before to criminal appeals to this House. There remains under section 1 the substantial safeguard from frivolous application which subsection (2) affords. It is not provided in the case of criminal applications for habeas corpus under section 15, but I see no reason for giving to those words a wider meaning than they naturally bear. Nor, though Parliament has thought fit to give to the subject whose legal rights are involved, as they necessarily are in habeas corpus, an unqualified right to appeal, do I see any reason why he should be given a similar right where the relief that he claims is prima facie a matter of judicial discretion.

Your Lordships have, however, decided otherwise and the appeal has proceeded upon the footing that no certificate was necessary and it is upon that footing that I now examine it.

My Lords, I think that the only question of law that arises on this appeal is one that is not referred to in the judgment of the Lord Chief Justice. It is whether it is relevant to the consideration of relief under section 10 of the Fugitive Offenders Act to determine whether the offences with which the fugitive is charged are "political offences" within the meaning of the Extradition Act, 1870. That question arises in this way. By

the Cyprus Act, 1960, it was provided by section 1 that on the day On which Her Majesty should by Order in Council declare that the Constitution of the Republic of Cyprus should come into force there should be established an independent sovereign Republic of Cyprus over which Her Majesty should have no sovereignty or jurisdiction. Section 3 provided that on or after that day any existing law which operated as law of, or any part of, the United Kingdom being a law applying in relation to Cyprus or persons or things in any way belonging thereto or connected therewith should (save as therein mentioned) continue to apply in like manner in relation to the Republic of Cyprus or persons or things in any way belonging thereto or connected therewith. It follows that the Fugitive Offenders Act, 1881, which before the establishment of the Republic of Cyprus applied to that island and its inhabitants, continued after the establishment and continues so to apply. But the Fugitive Offenders Act, unlike the Extradition Act, 1870, makes no exception of political offences. It would be strange if it did, since in the forefront of the offences for which a fugitive offender may be apprehended and returned to his own country is placed the offence of treason. I am therefore of opinion that it is irrelevant to consider whether the offences with which Zacharia has been charged could in another context be called "political offences," and I must respectfully dissent from a dictum of Lord Goddard in In re Government of India and Mubarak Ali Ahmed⁴ where a similar question arose upon the establishment of the Republic of India, that "in a proper case the court would apply the same rules with regard to applications under the Fugitive Offenders Act, 1881, as it does under section 3 (1) of the Extradition Act, 1870." It is proper that I should add that in any case I could not come to the conclusion that the offences with which Zacharia has been charged were political offences.

This question, which is undoubtedly of importance, having been disposed of, what remains? My Lords, the Divisional Court has exercised a discretionary jurisdiction under section 10 of the Act. Interference with such an exercise can only be justified if that court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. That is a principle upon which this House, sitting as a final Court of Appeal, has always acted and will, I hope, continue to act, not least in matters of criminal

4 [1952] 1 All E.R. 1060, 1063; [1952] 1 T.L.R. 964, D.C.

jurisdiction which have traditionally been the province of the Court of King's Bench. I should therefore be content to say that I see no possible ground in this case for substituting my own view, if I had a different one, for that of the Divisional Court.

But the earnest and persuasive argument of Mr. Hutchinson leads me to make certain observations. In the first place he challenged the good faith of the application, denying that it was in the interests of justice and asserting that it was made for the purpose of revenge. I asked in vain whose good faith was impugned. It was said that various persons who played some part in the proceedings were or had been members of the organisation known as E.O.K.A. and therefore were suspect. But in effect your Lordships were asked to say that the whole background suggested a picture of the responsible authorities in Cyprus trying by these proceedings to punish a man who had been a traitor to a patriot cause. When such a contention is put forward I recall what was said by the first Lord Russell of Killowen in In re Arton (No. 1)⁵: "I come now to the third, and last, ground upon which this rule has been moved - that the demand for extradition is not made in good faith and in the interests of justice. It has been pointed out by myself and my learned brothers during the argument that this is in itself a very grave and serious statement to put forward, and one which ought not to be put forward except upon very strong grounds; it conveys a reflection of the gravest kind, not only upon the motive and actions of the responsible Government, but also impliedly upon the judicial authorities of a neighbouring and friendly power. Is it open to us at all to consider such a suggestion? In my judgment, it is not, and I have already stated the grounds for my opinion." My Lords, I do not hesitate to apply these words to the present case. Whoever may in form be regarded as the applicant under section 10, the proceedings have been adopted by the Government of Cyprus who are a party appearing before the House. The charges made against Zacharia are supported by evidence which raises a strong or probable presumption that he has been guilty of very serious crimes. It has not been suggested that the courts of Cyprus will not try him fairly. He is, it is said, fearful lest evidence should be fabricated against him. But I do not doubt the competence of the court to discriminate between the false and the true. Why, then, should he not be tried?

5 [1896] 1 Q.B. 108, 114, 115; 12 T.L.R. 131, D.C.

It is said that, even if he returns to Cyprus under police guard, he will be in danger of assassination by revengeful members of E.O.K.A. And it is true that attempts were made on his life before he left Cyprus in January 1961, and that his peril was then recognised by the Cyprus Government. It is said that for this reason it would be in the words of the section "unjust or oppressive" to send him back. How serious this danger will be, your Lordships are in no position to judge, but it is, I think, proper to assume that, forewarned of the danger, the Cyprus authorities will take the necessary precautions for his safety before and during his trial. If he is acquitted, he will be able to invoke the provisions of section 8 of the Act and procure his return free of cost to this country.

Some criticism was directed to the fact that the Cyprus authorities assisted Zacharia to leave Cyprus and, having done so, then commenced the proceedings which have culminated in this appeal. If there is any weight in this criticism, it bears upon the question of good faith with which I have already dealt. But I see no weight in it. It is a fair conclusion that the police authorities obtained after his assisted departure evidence that was not then available. On the other hand, it would be paradoxical to suppose that they would at any time have assisted him to escape from threatening danger if, as is now alleged, they are animated by a spirit of revenge and are not acting in good faith in the interests of justice.

I would for these reasons dismiss this appeal. I have only to add that, as I have already pointed out, the appellant can still have recourse to the Secretary of State. He may have access to information more reliable than that supplied by the conflicting affidavits upon which the court must come to a judicial decision.

There remains the appeal of Euripides Arestidou. The charge against him is less serious but it is within the scope of the Act. It was urged on his behalf that the depositions did not justify the magistrate in committing him, and your Lordships thought it right, while accepting the view that the magistrate's decision in these cases is not to be lightly disturbed, to scrutinise the evidence carefully. Having done so, your Lordships thought the matter so clear that it was not necessary to call on counsel for the respondents on this point.

In other respects I see no reason for distinguishing his case from that of Zacharia. His appeal also must be dismissed.

LORD RADCLIFFE. My Lords, I have not found it easy to know what a court of law ought to do in dealing with these applications under the Fugitive Offenders Act, 1881. I do not think that their circumstances are at all usual or that there is any help to be got from what has been said by judges in the comparatively few reported cases under this Act or the Extradition Act, 1870.

There are, however, two matters upon which I do not feel any doubt. The first is that upon the appeal before us the only fairly debatable questions are those which relate to section 10 of the Act of 1881. It is true that under section 5 the magistrate before whom arrested persons are brought for committal to await return has to be satisfied on the evidence produced to him that it raises "a strong or probable presumption of guilt," and it was put to us on behalf of the appellants that no such presumption arose from the evidence adduced on the second warrant relating to the demanding of money by menaces from one Costas Triantifillides. Since the second warrant is the only one which concerns the appellant Arestidou, the point is material in his case: but I am satisfied that, as the evidence stands, it is impossible to say that there is not at any rate a probable presumption of guilt attaching to both appellants in respect of this charge.

The Divisional Court has already held that there was not sufficient evidence to support the probability on the first count covered by the second warrant, that of robbery with violence; but, even if that is kept out of the way, there is still enough to support the probability of guilt on the second count, that of demanding money with menaces. I do not think, therefore, that either of the appellants has any case to argue in this House as to the propriety of the magistrate's decision under section 5 of the Act. The whole appeal turns upon what should be the decision of a "superior court" exercising its powers and duties under section 10, having regard to the evidence that has been put before it as bearing upon that issue.

The second matter relates to the scope of the considerations of which the court is entitled to take account when it acts under section 10. It was urged before us that the evidence showed that the offences covered by the warrants were political offences or that the application made by the Republic of Cyprus for the return of the fugitives was made with a view to trying or punishing the appellants for offences of a political character. These considerations are avowedly borrowed from section 3 of the Extradition Act, 1870, and they are not referred to, expressly or by implication, in section 10 of the Act of 1881 which is the Act that we have to

apply. Is it permissible for the court exercising its jurisdiction under the Act to import them on its own authority and, having done so, to address itself to the possible political aspects of an application for the return of an offender? I know that it has been said that this importation is permissible (see In re Government of India and Mubarak Ali Ahmed⁶ but I think that the point was there assumed rather than decided and in my opinion it is quite clear that a court acting under section 10 is confined to the considerations of which it is there directed to take account and has no authority to set up a separate category formed out of political considerations to which its attention is neither directed nor invited.

Apart from the fact that parts of the procedure and machinery employed are much the same, I can see no interconnection between the Extradition Act and the Fugitive Offenders Act. The former has as its basis some arrangement or treaty made between the Crown and a foreign power and Parliament has itself prescribed what are evidently regarded as fundamental restrictions upon the operation of any such extradition arrangements. The whole Act rests upon the importance of preserving in this country the right of political asylum as then recognised. Thus the first condition of section 3 forbids the surrender of a fugitive if his offence is of a political character or the extradition demand is found to be prompted by an intention to try him for a political offence: section 3 (2) forbids his being detained for trial, once extradited, upon any offence different from that for which he was surrendered: section 7 authorises the Secretary of State to refuse a requisition for surrender from the diplomatic representative of a foreign state if he considers the offence to be of a political character and on the same ground to discharge from custody a person so accused or convicted: section 9 directs the magistrate before whom the fugitive is brought to receive any evidence tendered as to the political aspect of the offence charged: and, lastly, the offence of treason is, perhaps noticeably, omitted from the list of extraditable crimes which is set out in the First Schedule.

The Fugitive Offenders Act, on the other hand, gives no indication that it is concerned with any right of political asylum. It is intended to apply as between the various portions of Her Majesty's Dominions and has no dependence upon the making of extradition treaties or arrangements. It does not require reciprocity because the Act is intended to apply by its own force to all the territories concerned and reciprocity is therefore assumed.

6 [1952] 1 All E.R. 1060.

It operates without any of the restrictions that are a conspicuous feature of the Extradition Act. The crimes to which it is to apply are comprehensively described in section 9 and the only two which are identified by name are treason and piracy. The magistrate who hears an application for committal has no authority to consider whether the offence is of a political character; and the various considerations which are listed in section 10 as requiring the attention of a court to which application is made, though extensive and far-reaching, do not include any element that has any direct bearing upon those issues that are concerned with political asylum. For these reasons I conclude that the court, if it is to intervene at all, must find its ground for action in one of the categories listed in section 10 and that "political offence" and "political character" are not among them. It can no more introduce these considerations into its decision under the Fugitive Offenders Act than a court acting under the Extradition Act could refuse an order on the ground that the application for surrender is not made "in good faith in the interests of justice" (see In re Arton (No. 1)).⁷

Now section 10, as I have said, specifies a number of grounds for the intervention of a court where it is "made to appear" to it that certain circumstances exist. The only formula that could be relevant to the present case, as I see it, would be that "by reason of the application for the return of the fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to ... all the circumstances of the ease, be unjust or oppressive ... to return the fugitive." The Divisional Court, from which the appeal reaches us, has stated its position very clearly in the judgment of the Lord Chief Justice, and I think that it is not unfair to summarise it as saying that, while there is a real danger that evidence against the appellant Zacharia will be fabricated, if he stands trial in Cyprus, and a very real danger of his being assassinated, it has not been made to appear that the application for return is not made in good faith in the interests of justice nor, weighing the danger to life against the gravity of the offences alleged, would it be oppressive to send him back "purely for that reason." As to the other appellant, Arestidou, the evidence of danger of assassination was much slighter in his case and, if Zacharia had to be sent back, so a fortiori must he go. The court stated that it reached its conclusion that it could not intervene with some regret and I am quite sure that if I came to

7 [1896] 1 Q.B. 108.

the same conclusion I should share that feeling, for the ascertainable facts of the case, to which I will come shortly, can only leave one with a sense of deep misgiving as to where the balance of justice lies.

It was argued, however, on behalf of the Republic of Cyprus that in refusing to act under section 10 the Divisional Court had exercised a discretionary power vested in it by the Act and that this exercise could not be interfered with on appeal unless vitiated by the adoption of some principle of law which was itself incorrect. For more than one reason I do not think that this argument should succeed. A court acting under section 10 may in one sense be exercising or refusing to exercise a discretion, but when its power to act is introduced by the words "where it is made to appear," I think that it is primarily a question of law in each case whether what does appear amounts to one or more of the specified circumstances If it does, it is, I think, the court's duty to act, not its privilege to decide whether to act or not. "I hold that it is proved that the return of the fugitive would be unjust and oppressive and too severe a punishment, but nevertheless in the exercise of my discretion I shall take no action" is not in my opinion a maintainable attitude for a court faced with an application under this section.

Apart from this, however, there are other grounds which make it right to review the Divisional Court's decision. It is not, in my view, an adequate assessment of the evidence bearing on what is unjust or oppressive to allude only to the very real danger that Zacharia will be assassinated if he is taken back to Cyprus. There are several other circumstances of the case not alluded to at all in the Divisional Court judgment which have a direct bearing on the oppressive aspect of what is proposed to be done. I will mention them later, but I think that it is an error not to recognise that these factors too contribute weight to the critical balance.

Lastly, I am bound to say that in my opinion the judgment under appeal has erred in law in placing upon an applicant under section 10 an onus, or in putting him under the burden of a presumption for which neither the section nor the Act that contains it gives any authority. Briefly, it seems to have been the basis of the court's view that in considering applications made section 10 there must be imported some presumption in favour of the good faith and impartial desire for justice of a government that applies for the custody of a fugitive offender. "It seems to me that when one is dealing with a friendly sovereign power and, indeed, a member of the British Commonwealth, that very strong

evidence indeed would be required to justify this court in holding that such a government was not, in making such an application as this, acting in good faith and in the interests of justice," it is said at one point.⁸ And again, more generally,⁹ "it is comparatively rare for the court to exercise those powers, and for the very good reason that in dealing with the government of a friendly power it would only be in an extreme case that the court would think it right to refuse their request to have their national returned to their country for an alleged offence committed in that country."

I do not for one moment suppose that the learned Lord Chief Justice or his colleagues would ever be anything but scrupulous in weighing the balance of any case put before them in an application under section 10. I am quite sure that they would be. Nevertheless I think, with respect, that expressions such as those I have quoted are a bad guide to those who have to exercise this jurisdiction. To be specific, it is not a relevant consideration, nor does it give rise to any presumption, that an applicant for surrender is a friendly power or a member of the Commonwealth. The whole Fugitive Offenders Act was conceived as applicable to Her Majesty's Dominions only, just as the Extradition Act was conceived as relating only to those friendly powers with whom there had been made the appropriate extradition treaty. Yet, given the range within which the Act of 1881 can operate, Parliament has decreed in section 10 that if the facts show an application for surrender not to be made in good faith and in the interests of justice, the court must perform its duty and discharge the prisoner. This must depend on the evidence before it in each particular case: it must not be a matter that is aided or influenced by presumptions. In my opinion, the court has no right to demand a special standard of proof, such as "very strong evidence," or to decline to act except in "an extreme case" or on "comparatively rare" occasions either because the surrender is demanded by a Commonwealth government or by a friendly power, or because the good faith of such a demand is challenged on the application or because some imputation is sought to be made upon the judicial process to which the fugitive offender, if surrendered, will be subjected.

I do not doubt that in practice it will be very difficult for a fugitive offender to make good a case of this sort by any evidence that he can muster. Such cases are inherently difficult of

8 Ante, p. 639.

9 Ante, p. 642.

demonstration, and in that practical sense the occasions will probably be rare upon which a court will be entitled to intervene. But that, if anything, is a reason why it should address itself indifferently to the question what is "made to appear" by the evidence available without any preconceptions as to the probable result of its scrutiny. For these reasons I do not myself find it satisfactory to rely upon the observations of Lord Russell of Killowen C.J. in the case of In re Arton (No. 1)¹⁰ which were cited to us. While he was, if I may say so, clearly correct in ruling that the question whether a demand for extradition was made in good faith and in the interests of justice could not be entertained by the court under the Extradition Act, since it was not brought by the Act within the factors open to the court's review, the justification for that ruling lies in the frame and wording of that Act and not in the consideration that such a challenge involves a very grave and serious reflection upon the motive and actions of a responsible government. Certainly such allegations are very grave matters, but they are matters which the express wording of the Fugitive Offenders Act makes it permissible for an applicant to raise.

Having said this much I must add that, in my opinion, the evidence now before the court does not make it appear that the republic's application for return of the appellants is not made in good faith and in the interests of justice. There is no solid evidence to support the case. The most that can be said is that there is a curious inconsistency in the attitude of the government in first facilitating Zacharia's departure from the island and then seeking to reclaim him as a fugitive criminal; and that there is an uncontradicted statement by Zacharia that the Minister of Justice and the investigating and prosecuting officers in Cyprus, who are concerned with his case, are members of E.O.K.A., the terrorist organisation against which he claims to have worked for the government forces during the disturbances which preceded the setting up of the independent republic. But there is nothing in those facts which is sufficient to support the case that the present government of Cyprus is actuated by other motives than a genuine desire to execute justice when it applies to have the appellants sent back to stand trial for the crimes that it believes itself able to prove against them.

There remains then the question whether for any other reasons, "otherwise," it would be unjust or oppressive to return the appellants and this, I think, constitutes the real difficulty of the case.

10 [1896] 1 Q.B. 108, 114, 115.

The difficulty lies partly in the fact that the court has to make up its mind on the basis of affidavit evidence only, that a great many of the statements made on one side are contradicted, often in the most vague and general terms, by statements made on the other, and that not a few of those statements, some of considerable possible importance, are expressed in a form which does not present even the elements of acceptable evidence upon which a court of law could act. This is particularly noticeable in the case of the affidavit of Costas Constantinides, the Divisional Commander of Gendarmerie at Limassol, which is put in as the main reply to the appellants' application. This deponent constantly founds his statements, which are serious indeed, upon such bases as "it is suspected that ..." and "it appears that ..."; and it is not reassuring to find that in paragraph 17 of this affidavit he treats the appellant Zacharia as equally implicated in a series of very grave charges, even though he knows that in respect of some of them Zacharia was arrested and discharged or had the charge withdrawn before he ever left Cyprus.

The other difficulty lies in the fact that the four warrants for the arrest of Zacharia relate to what can only be called terrible crimes for which, it is accepted, there has been shown a probability of guilt, and the offence charged against Arestidou is at any rate a serious one. No court could refuse to return such persons for trial unless it was satisfied that to do so came fairly within the admissible idea of what would be unjust or oppressive.

I have come to the conclusion that there is no other fitting description of an order for return than that it would be oppressive. Since any conclusion on this must depend on the total impression created by a number of separate factors, I will set out briefly such of them as I think can safely be extracted from the evidence before us, though I am aware and am sorry that the conclusion arrived at by others of your Lordships does not agree with mine.

(1) During the period of terrorist or insurrectionary activity against the then Government of Cyprus which preceded the setting up of the independent republic in 1960, Zacharia assisted the Special Branch of the Cyprus Police, providing them with information. There was an E.O.K.A. attempt to murder him in 1957, in which he was wounded and, after the incident, he was provided with a gun and permit by the then head of the Cyprus Police C.I.D.

(2) In the autumn of 1960 a leaflet was circulated in his neighbourhood, purporting to be composed by persons styling themselves "E.O.K.A. fighters," in which he was accused

of having "persecuted and tortured the heroes of E.O.K.A." and is referred to as a well-known traitor and criminal. The leaflet attributes to him, with the complicity of the Special Branch, the murder of Mouzomenos which is the subject of warrant No. 4 and it plainly announces the intention of the authors, whoever they may be, to exterminate Zacharia. Constantinides says in his affidavit (paragraph 22) that this leaflet, which he evidently knows of, cannot be an official E.O.K.A. proclamation and must be attributed to persons not connected with E.O.K.A. at all or not having its authority to make such announcements. According to him E.O.K.A. "as such" ceased to function or to have connection with any activities whatsoever after March, 1959.

(3) Shortly after distribution of the leaflet Zacharia says that four of his friends and associates (he is evidently some sort of gang leader) were murdered. He and his brother were arrested and charged with these murders, but the charges were subsequently withdrawn and he was discharged. While he was on remand his partner, Makrides, was murdered by E.O.K.A. Constantinides denies that the murdered men were friends or associates of Zacharia.

(4) On November 22, 1960, Zacharia visited Archbishop Makarios to complain that his life was in danger from E.O.K.A. On returning to his home he was arrested and charged with the attempted murder of one Tryfonkafkari and, on the next day, while being driven into the court precincts handcuffed to a police officer, his assassination was attempted by five men armed with pistols. He escaped death by leaping into the yard of the court dragging the police officer with him. He was later discharged by the magistrate after preliminary hearings. Constantinides' affidavit does not accept the truth of this incident, but it is impossible to tell what it is that the deponent denies or what his knowledge of it amounts to.

(5) Zacharia's brother was sent for trial on the same charge and acquitted. During the course of the trial Zacharia was talking to a police officer outside the court when another attempt to kill him was made by a man whom he identifies as a member of E.O.K.A. called Panayotis. The bullet missed him but killed the policeman who was standing beside him, one Genethliou.

(6) After this attack Zacharia visited the Home Secretary, who advised him to stay at home and afforded him police protection by day and night.

(7) In December two more of his associates suffered violent death.

(8) In the following month, January, 1961, Zacharia left Cyprus. The incidents accompanying his departure are of considerable importance to this case and I mention them in some detail. On January 25, he was taken under police protection from Limassol to Nicosia. On the next day he had his second interview with the Home Secretary in which he spoke of the murder of his friends. On January 27, he was taken to Nicosia airport still under police protection and the Captain of Gendarmerie who accompanied him has deposed at a trial in Nicosia, which took place in April of the same year, that in doing so he was acting on the instructions of the competent Ministry. Zacharia and his family then boarded an aeroplane and flew to England. On arrival he communicated with the Home Secretary in Cyprus, as he had been instructed to do, giving his London address.

(9) There can be no doubt that the authorities in Cyprus actually sent him out of the island with his family. They evidently regarded his life as in danger. This is shown somewhat strikingly by certain facts which came to light at the April trial already referred to in which one Rodosthenos, a member of the House of Representatives and stated by Zacharia to be of high rank in E.O.K.A., was prosecuted for illegal possession of arms. During the course of the trial Mr. Talarides, the Attorney-General, produced a letter, found, he said, in the accused's safe, in which a certain Mavros was instructed to murder Zacharia by a fixed date, otherwise he would himself be killed. The letter was signed "E.O.K.A. fighters." The Attorney-General said that he desired to prove through this letter and other facts such as certain killings referred to by him, that "not only Rodosthenos' life was not in danger but, on the contrary, a number of persons of A. Zacharia's group were murdered and for that reason Antonis Zacharia was obliged to leave Cyprus." I quote from a contemporary report in the daily newspaper "Ethniki," which is an exhibit in the case.

(10) There are only one or two more further relevant facts. Since Zacharia left Cyprus a bomb attack has been made on his house and all his possessions destroyed or ruined. Persons contemplating buying business assets of his have been threatened with death by E.O.K.A. agents. According to the deponent Constantinides the attribution of these threats to E.O.K.A. agents "appears to be unfounded."

(11) When Archbishop Makarios and the Home Secretary visited London later in the year 1961, Zacharia states that he visited them both in order to discuss his difficulties in Cyprus caused by E.O.K.A.'s activities.

My Lords, the recital of these facts justifies a very brief summary of what they amount to. Here is a man who is the object of an implacable vendetta waged against his life by a number of persons in Cyprus and originating at any rate to some extent - one cannot say more - in the part that he took in assisting the police during the E.O.K.A. disturbances. There have been three attempts on his life already, two while he was in the custody or company of police officials. There are outstanding orders for his assassination and incitements to it. I cannot see that it can be safely assumed that, if he is sent back to Cyprus, these attempts will continue to be unsuccessful or that the conspirators will not find means of reaching him whatever form of protection is designed for him. Plainly, he will be in great danger of his life, and I do not think that it really matters under what precise authority his enemies are acting.

Four times already he has been arrested and charged with different murders. The charges have either been withdrawn or dismissed. I do not attach great importance to this circumstance, but it is perhaps permissible to reflect that there must be some limit to the number of occasions on which a man is arrested on one of the gravest of all charges without as yet having even been brought to trial.

Lastly, the reason that he is found in England, not in Cyprus, is that he left, with the connivance and protection of the government, because his life was in continual danger from his enemies. There is no definition of a fugitive offender in the Act of 1881, but it can hardly have been intended to apply to someone who is a fugitive not from prosecution for his offences but from a conspiracy to assassinate him. The same government that sent him out applies within a few months to have him sent back again. To send him back under those conditions presents itself to me as oppressive.

I do not think that the court has been furnished with any real explanation of this change of front. It is not possible to know what lies behind it and it is the more obscure because of the access that Zacharia apparently enjoyed both to Archbishop Makarios and to the Home Secretary. It is true that Constantinides says that the evidence supporting the present charges is, he believes, genuine evidence given only when the "atmosphere

of fear and terror of the criminal gang of Antonis Zacharia is removed," and no one can say that this may not well be true. There is some confirmation of it in the evidence filed in support of warrants 1 and 2. But what was the date when this atmosphere was dissipated? It needs a good deal more than that general statement, I think, to show how much that which is now charged against Zacharia was not known to the police authorities before the government sent him out of the country. After all, the evidence itself shows that the facts upon which the second warrant is based were communicated to the police 13 days before his departure and Constantinides seems from his affidavit to have known about the "E.O.K.A. fighters" leaflet, which deals in detail with Zacharia's alleged murder of Mouzomenos, since the end of September, 1960.

For these reasons I am of opinion that the Divisional Court should have intervened under section 10 of the 1881 Act and that the appeal of Zacharia ought to be allowed.

With regard to the second appellant Arestidou, it is difficult not to consider his case as in some sense a pendant to the other. It is necessary to remember, however, that, though the only warrant that touches him is the second, yet this involves a serious charge. There is no evidence that he left Cyprus under the same auspices as Zacharia, nor is there anything like the same direct evidence of a conspiracy against his life. Nevertheless he is put forward as a henchman of Zacharia and he is evidently one of his associates or gang. On the whole, if Zacharia were not to go back, I think that it would be unjust to send back his assistant.

I must now deal with the point as to jurisdiction raised during the course of the argument of this appeal. It is said that this House is not competent to hear an appeal under section 10 of the Fugitive Offenders Act unless the court below has certified that a point of law of general public importance is involved in the decision and either that court or this House has decided that the point is one which ought to be considered. The point is a short one of a technical nature which does not seem to have occurred to the Divisional Court when the question of an appeal to this House was raised: nor do I recall that it was present to anyone's mind when leave to appeal was granted by the Appeal Committee. In my opinion it is not a good point.

The issue depends upon the meaning of certain words which appear in section 15 of the Administration of Justice Act, 1960. That Act, as is well known, opened the House of Lords to an appeal (a) from any decision of a Divisional Court of the Queen's

Bench Division in a criminal cause or matter and (b) from any decision of the Court of Criminal Appeal on an appeal to that court, but the appeal so provided for in section 1 (1) was by section 1 (2) subjected to two conditions. One was that no appeal was to lie except with the leave of the court below or this House: the other imposed the requirement as to a point of law of general public importance being involved to which I have just alluded.

Section 15 of the Act contains certain special provisions about an appeal in habeas corpus proceedings. Subsection (3) declares that "In relation to a decision of a Divisional Court on a criminal application for habeas corpus, section 1 of this Act shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted." Plainly, therefore, it was intended that, when the court has dealt with a criminal application for habeas corpus, nothing more should be needed to give the applicant his right of appeal to this House than its leave or the leave of the court below. The right was to be there, whether a point of law of any importance was thought to be involved or not.

Is there any reason for supposing that when an application for habeas corpus has been made in relation to detention and committal under the Fugitive Offenders Act and the powers or duties of the court under section 10 are invoked in connection with that application, there should be one regime for appeals in so far as they concern what may be called the strict habeas corpus considerations and another for appeals in so far as they concern considerations relative to section 10? I cannot myself think that section 15 was ever intended to enforce such a distinction nor can I see why a point of law of general public importance should be necessary to enable this House to act, if thought proper, under section 10 when it has not been made necessary in order to give it authority to deal with allied questions relating to habeas corpus.

It is no doubt true that the jurisdiction of a court to act under section 10 is not the same thing as its jurisdiction to act on habeas corpus. That is the point which is made very plain in the judgments of the Court of Appeal in Rex v. Governor of Brixton Prison, Ex parte Savarkar¹¹ and I do not see how a study of the Fugitive Offenders Act could lead to any other conclusion. Theoretically at any rate, an application under section 10 could be made independently of a motion for a writ of habeas corpus; the considerations which the court must take into account are

11 [1910] 2 K.B. 1056.

those prescribed by the section and no others; and the relief which the court can give under the section is more flexible than that which is available on habeas corpus. But with all respect it seems to me highly unreal to say, as Fletcher-Moulton and Buckley L.JJ. did in that case, that these statutory rights have "nothing to do with habeas corpus." In reality they have a great deal to do with it. Both concern the power of the court to discharge a person who is detained under the Act. In practice, as I understand, the applications for discharge are made together and relief is asked for in the alternative, sometimes the writ of habeas corpus being asked for under section 10. A magistrate committing a fugitive under section 5 is directed to inform him that he has "a right to apply for a writ of habeas corpus or other like process" and I can hardly suppose that this provision was intended to mean that the magistrate was to refer specifically to habeas corpus but need not mention the wider jurisdiction of the court under section 10. In sum, I think that the court's powers under section 10 were from the first regarded as an adjunct to its power to protect by habeas corpus, and consequently, where, as here, an application for the writ is joined with proceedings under section 10, the provision of section 15 (3) of the Administration of Justice Act, 1960, that strikes out the section 1 (2) restriction on the grant of leave to appeal applies to both forms of proceedings.

In my opinion therefore this House had jurisdiction to hear the appeal merely on leave granted.

My noble and learned friend Lord Reid, who is unable to be present today, and was unable to complete the hearing of the appeal to this House, but was present at the decision taken by the committee with regard to this point of jurisdiction, has asked me to say that he has read what I have said on this point and agrees with it.

LORD HODSON. My Lords, both the appellants applied to the Divisional Court of the Queen's Bench Division, each seeking a writ of habeas corpus ad subjiciendum and praying for relief under section 10 of the Fugitive Offenders Act, 1881.

In each case the appellant was refused the writ of habeas corpus and also relief under section 10 of the Fugitive Offenders Act.

In each case an application for leave to present a petition of appeal to this House was dismissed, but by an order of this House

of December 20, 1961, both appellants were granted leave to appeal.

Appeals to this House in criminal cases are governed by the Administration of Justice Act, 1960, which by section 1 (2) provides that no appeal shall lie under that section except with the leave of the court below or of the House of Lords, and that "such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."

By section 15 (3) of the Act, in relation to a decision of a Divisional Court on a criminal application for habeas corpus the restrictions imposed by section 1 (2) have no application. Thus, so far as habeas corpus is concerned, there is no necessity for a certificate to be given as a prerequisite to an appeal, but the question remains whether there is jurisdiction to entertain an application under section 10 of the Fugitive Offenders Act without such a certificate. No certificate was sought in this case nor was the attention of the House drawn to the absence of a certificate when leave to appeal was given, but counsel on behalf of the Governor of Brixton Prison has now submitted that the appeal is incompetent except in so far as it relates to habeas corpus. In my opinion the submission is well founded.

It is true that an application under section 10 is often combined with an application for leave to issue a writ of habeas corpus, but the two are not the same, and I find myself unable to accept the view that, in truth, there is but one application before the House and not two or that, to put it another way, once the application for habeas corpus is before this House the way is open to the appellants to obtain relief under section 10. This section enables a superior court in the exercise of its discretion to "... discharge the fugitive either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or ... make such other order in the premises as to the court seems just."

It seems to me, as it did to Fletcher Moulton L.J. in Rex v. Governor of Brixton Prison, Ex parte Savarkar,¹² that the question of relief under section 10 has nothing in truth to do with the issue of the writ of habeas corpus, notwithstanding that it is convenient to hear applications for the writ and for the discretionary relief at the same time. The actual decision in Savarkar's

12 [1910] 2 K.B. 1056, 1075.

case,¹³ approved by your Lordships' House in De Demko v. The Home Secretary,¹⁴ was that inasmuch as the only matter adjudicated upon by the order of the King's Bench Division was "habeas corpus" the application which had been made by the same person under section 10 of the Fugitive Offenders Act was not res judicata. Stress was, however, laid on the feature of the case that the Act of 1881 gave to fugitive offenders statutory rights which had nothing to do with habeas corpus. The right to habeas corpus is absolute and the remedy provided by section 10 is discretionary and more extensive, and I am unable to accept the contention now put forward that the application for habeas corpus is all embracing, so that there is jurisdiction to hear the appeal against the discretionary order under the Act of 1881.

Since the majority of your Lordships are of a different opinion it is necessary to consider the appeal as a whole. So far as the application for habeas corpus is concerned, only the warrant No. 2 is in question alleging robbery with violence of one Triantafillides and the offence of demanding £250 by menaces. This warrant involves both applicants. The Divisional Court held that there was insufficient evidence of robbery with violence but that in the words of section 5 of the Act the evidence raised "a strong or probable presumption" against both fugitives that they had committed the second offence mentioned in the warrant. It was argued that there was insufficient evidence of any demand, of any intent to steal or of any menaces. So far from there being a demand for money or an intent to steal it was said the evidence was that Triantafillides was offering protection money and that, although a weapon was produced when the payment of money was discussed, it was not used as a threat.

I am unable to accept any of these submissions and arrive at the same conclusion as the Divisional Court.

On a plain reading of the evidence of the two witnesses for the prosecution, what happened at the material time was that money was being demanded from Triantafillides, first £500 - a figure subsequently reduced to £250 - under the threat of a weapon taken to be what Triantafillides called a .45 pistol (sic) pointed out by Zacharia and drawn by Arestidou from his waist.

This must be evidence on which, if it be uncontradicted at the trial, a reasonably minded jury might convict, and so would raise

13 [1910] 2 K.B. 1056.

14 [1959] A.C. 654, 661; [1959] 2 W.L.R. 231; [1959] 1 All E.R. 341, H.L.

the necessary strong and probable presumption: cf. Rex v. Governor of Brixton Prison, Ex parte Bidwell.¹⁵

The application under section 10 of the Act of 1881 is on a different footing, in that the Divisional Court has exercised its discretion against both applicants, and it must be shown that this discretion has been wrongly exercised before this House can interfere with the order made.

It has been urged on behalf of both applicants that (1) the court applied a wrong principle in weighing the danger to them if they are returned to Cyprus against the degree of gravity of the crimes alleged; (2) too great a burden has been placed upon the applicants, having regard to the words in section 10: "Where it is made to appear to a superior court ..."; (3) the court failed to take into account the appellants' contention that the crimes with which they were charged were political, and that the application for the return of Zacharia had been made with a view to punishing him for offences of a political character; (4) the court failed to appreciate that the applications were not made in good faith in the interests of justice.

As to the first submission, I think the court was right upon the evidence before it in coming to the conclusion that in the case of Zacharia, and to a lesser degree in the case of Arestidou, there is a real danger of violence or assassination, seeing that both are marked men and have enemies in Cyprus who have declared in no uncertain language that they regard the applicants as traitors by reason of the services they rendered to the British Government as informers against E.O.K.A. members before the independence of Cyprus was declared. The court also recognised that even if. as will certainly be the case, the applicants are kept in custody while awaiting trial, this will not necessarily avail to protect them, as past experience has shown. The court also felt that presumably by reason of the hatred of their enemies there was a real danger of evidence being fabricated against them.

Nevertheless, taking all these things into account, having regard to the fact that in the case of Zacharia, at any rate, the charges against him were serious, in two cases charges of murder, and that the Cyprus authorities had shown in the past every willingness to protect him, and that in the case of Arestidou, though the charge was less serious, the risk of violence against him was also less, the court refused the application.

15 [1937] 1 K.B. 305; 53 T.L.R. 1; [1936] 3 All E.R. 1, D.C.

I do not find anything to criticise in the way in which the court acted, nor do I understand upon what ground it was argued that the gravity of the charges should not be put in the balance against the danger to the appellants if they are returned, for the gravity of the charges must be material to the exercise of discretion under section 10.

Similarly, with regard to the second ground, I do not accept that too great a burden was put upon the appellants to make it appear that it would be unjust or oppressive to return them. The evidence of the applicants was given upon affidavit, and their sworn statements are subject to correction which appeared manifestly necessary when the affidavit evidence in answer had been read. For example, the applicants put themselves forward as men of good character, but their records when disclosed showed that they had previous convictions, including convictions for violence, although neither had served sentences of imprisonment, so that their representations that they were men of good character were destroyed, without taking into account that they were alleged to be notorious as members of a gang of violent criminals of which Zacharia was the leader while Arestidou was his bodyguard.

As to the third submission based on the supposed political nature of some of the crimes alleged, this is based upon the proposition that under the Fugitive Offenders Act, as under the Extradition Act, 1870, crimes of a political nature are excluded. The reverse is the case and, indeed, crimes of a political nature are expressly included in paragraph 9 of the former Act, which refers to treason. This submission was based on a dictum of Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed¹⁶ to the effect that in crimes of a political nature the rules of the Extradition Act should be applied to applications under the Fugitive Offenders Act, 1881, but with respect I do not think this dictum can be supported in view of the plain language of the Fugitive Offenders Act itself. The Extradition Act recognises the policy of giving political asylum in cases where application is made by foreign states for the return of political offenders. The Fugitive Offenders Act is by contrast a domestic Act to amend the law with respect to fugitive offenders in Her Majesty's Dominions which has been applied to Cyprus since the independence of Cyprus was established and concerns applications for the return of fugitive offenders whatever the nature of the offences charged against them.

16 [1952] 1 All E.R. 1060.

That is not to say that the court in exercising its discretion could not take into account evidence that application was being made for the return of a fugitive as an act of revenge whether actuated by political motives or not, but I see no reason why this application for return should not be treated as what on the face of it it is, namely, an application by the Cyprus Government acting responsibly in the interests of justice. The past history of Zacharia, against whom several prosecutions have failed, shows that in his case no suggestion that he was unlikely to have a fair trial could properly be made, nor was any such suggestion made on behalf of either applicant.

Lastly, on behalf of Zacharia it was pointed out that he left Cyprus for this country on January 27, 1961, with the assistance of the Cyprus Government, although 14 days earlier the authorities had information as to the robbery which is the subject of one of the charges against him. It is said that, in these circumstances it would be unjust and oppressive to return him to Cyprus. The fact is that the other three charges, including the most serious, came to light after Zacharia had departed, the explanation given being that the witnesses against him were afraid to make any complaint until he had left the country. I see no reason in these circumstances to question the bona fides of the Home Secretary or of the Cyprus Government on this account.

I would dismiss the appeals.

LORD DEVLIN. My Lords, this is an appeal from an order made by the Divisional Court on November 22, 1961, whereby the court refused to order that a writ of habeas corpus should issue for the release of the appellant, now confined at Brixton Prison, or to order his discharge pursuant to the Fugitive Offenders Act, 1881, section 10.

The appellant [Zacharia] is a Cypriot who left Cyprus on January 27, 1961, and has since then been residing in this country. On April 15, 1961, criminal proceedings, including two charges of murder, were begun against him in the District Court of Limassol in Cyprus. Under the Cyprus Act, 1960, the island of Cyprus has been established as an independent sovereign republic. Under this Act the Fugitive Offenders Act, 1881, which makes provision for the arrest in one part of Her Majesty's Dominions of a person who is accused of having committed an offence in another part, continues to apply. On August 17, 1961, the four warrants in this case were endorsed under section 3 of the Act by a magistrate at Bow Street and the appellant was

arrested and brought before him. Section 5 of the Act provides that if such evidence is produced before the magistrate as "raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant," the magistrate shall commit him to prison to await his return and shall inform him that "he has a right to apply for a writ of habeas corpus or other like process." On September 13, 1961, the magistrate committed the appellant to prison under this section.

On September 29, 1961, the appellant gave notice of motion for a writ of habeas corpus. Upon such a motion the court has by virtue of section 10 of the Act wider powers than it ordinarily exercises upon an application for the writ. Section 10 is as follows: "10. Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice, or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."

The Divisional Court, as I have stated, refused the application. By the Administration of Justice Act, 1960, a right of appeal was for the first time given from a decision of a Divisional Court in a criminal cause or matter. The appeal lies only with the leave of the Divisional Court or of this House and section 1 (2) provides that such leave shall not be granted unless it is certified by the Divisional Court that a point of law of general public importance is involved. But it is specially provided by section 15 (3) that this latter restriction shall not apply in relation to a decision of the Divisional Court on a criminal application for habeas corpus. An application for leave to appeal was made to the Divisional Court. The Lord Chief Justice observed that no question of the certificate arose and the court was not asked to certify. The court refused to give leave.

An application for leave to appeal was then made to this House on December 20, 1961, and leave was given. It was not on the hearing of this petition suggested that a certificate by the Divisional Court was needed.

On the hearing of this appeal a preliminary point was taken

by the Governor of Brixton Prison, the second respondent, but not by the Republic of Cyprus. Mr. Buzzard on behalf of the Governor argued that the House had no jurisdiction to review the refusal by the Divisional Court to exercise its powers under section 10. His argument was based upon the assertion that there were brought before the Divisional Court two distinct applications - an application for a writ of habeas corpus pursuant to section 5 and an application for an order for discharge under section 10. He contended that an order refusing the latter application was not covered by section 15 (3) of the Act of 1960. Accordingly, he contended that in the absence of a certificate by the Divisional Court, the House had no jurisdiction to give leave to appeal from that order and therefore no jurisdiction now to entertain that appeal. Since the only effective grounds of appeal relate to section 15, there would be nothing left for the House to discuss.

This point was argued on the assumption that in the absence of a certificate the House not only would have no jurisdiction to grant leave but would now be without jurisdiction to hear this appeal. On reflection I doubt whether this assumption is correct. The jurisdiction of this House now to entertain this appeal is founded upon its own order of December 20, 1961. So long as that order stands, the House has jurisdiction. It may be that that order ought not to have been made because an essential condition for making it was not fulfilled, but that does not mean necessarily that the order, when it is made, can be disregarded as a nullity. That is so in the case of an inferior court when it exceeds its jurisdiction. But the House of Lords and all superior courts have power to determine the extent of their own jurisdiction and so their orders cannot be questioned for want of jurisdiction except on appeal, where there is a right of appeal, or by the court itself by virtue of its inherent power to set aside its own orders where the interests of justice so require. I am therefore disposed to think that Mr. Buzzard's point should have been taken by way of an application to the House to set aside its order of December 20, 1961, giving leave to appeal. It is unnecessary to consider whether the House would have entertained such an application at this stage. I do not seek to make any pronouncement on a matter that was not argued; but I am at the same time anxious that it should not hereafter be inferred from the manner in which the House deals with this point that the assumption on which it was made is well founded.

The construction of the Act of 1881 is not at all easy. The

question which the House has to determine depends upon the relationship between section 5, which provides for the fugitive making an application for the writ of habeas corpus, and section 10, which is described in the marginal note as "Powers of superior court to discharge fugitive when case frivolous or return unjust." Section 39 provides that the expression "superior court" includes the Court of Appeal. But for section 39, I should feel little doubt about the relationship between sections 5 and 10. The natural construction of section 10 appears to me to be that it enlarges the powers of the court, so that upon the application for habeas corpus under section 5 the court can make orders of a class that it would not ordinarily have made and its orders can be based on grounds that would not ordinarily have been sufficient. But it appears that the only meaning that can be given to the reference in section 39 to the Court of Appeal is to treat it as being a superior court within section 10. Accordingly, the opening words of section 10 can be read as: "Where it is made to appear to the Court of Appeal." How can the matter reach the Court of Appeal? Is section 10 giving a right of appeal to the Court of Appeal from a decision of the High Court in a criminal matter? It would be very surprising to find that done without express words. But the only alternative would appear to be to treat the Court of Appeal as having original jurisdiction to grant relief under section 10. If that is so, there must be a process, presumably comprised within the term "like process" in section 5, whereby the Court of Appeal can be applied to directly.

The position is now governed by authority. In Rex v. Governor of Brixton Prison, Ex parte Savarkar¹⁷ the Court of Appeal, Vaughan Williams and Fletcher-Moulton L.JJ., with Buckley L.J., held that it had an original jurisdiction to grant relief under section 10. This decision was approved by the House in De Demko v. Home Secretary.¹⁸

Accordingly it is not possible now to argue that the powers granted by section 10 can be exercised only on a habeas corpus application. That leaves two possible constructions of the Act. The first is that sections 5 and 10 are entirely dissociated and that the powers given by section 10 can be exercised only on a separate application made under section 10. If this construction is right Mr. Buzzard's contention succeeds. The other construction is that section 10 can be used in two ways. It does not follow from the fact there can be two applications that there

17 [1910] 2 K.B. 1056.

18 [1959] A.C. 654.

must be. On this argument the section can be used either to enlarge the powers of the court on a habeas corpus application or to permit an independent application to be made by any person who is prepared to concede that the exercise of the power under section 10 affords the only good ground for an order for his release. On this alternative construction Mr. Buzzard's point fails. It is only if the two things are entirely dissociated that the appellant can be prevented from relying upon section 10 in the habeas corpus proceedings that it is admitted are properly before the House.

The former construction is supported by the judgment of Fletcher-Moulton L.J. in Rex v. Governor of Brixton Prison, Ex parte Savarkar.¹⁹ The Court of Appeal in that case, having decided that it had original jurisdiction under section 10, had next to consider whether it was precluded from exercising its jurisdiction because the matter had already been heard and determined by a court of concurrent jurisdiction, namely, the Divisional Court. The court decided that it was not so precluded. Fletcher-Moulton L.J. held that section 10 could not be invoked by an application for habeas corpus but only by a separate application which was not before the Divisional Court. Vaughan Williams and Buckley L.JJ. did not go so far as that. They did not hold that the Divisional Court could not adjudicate under section 10 on an application for habeas corpus but that in the particular case before them it had not so adjudicated. They said for this purpose they could not look at the proceedings generally - the affidavits, the argument and the judicial utterance - but only at the formal order made which contained no reference to section 10. This point did not arise for consideration at all in De Demko v. Home Secretary.²⁰

My Lords, I cannot, with great respect, accept the reasoning of Fletcher-Moulton L.J. or the contention of Mr. Buzzard. The introductory words to section 10 lay down no special procedure. They do not insist upon any particular mode of application. It does not appear to me that the Act requires or even contemplates that two applications should invariably be made in the same matter, one by way of habeas corpus and the other by way of "a like process." If an application for habeas corpus only is before a superior court, it is natural to suppose that that court is intended to exercise the powers given by the Act which itself makes provision for the application; and in the absence of express words debarring the court from so doing, I hold that it can.

19 [1910] 2 K.B. 1056.

20 [1959] A.C. 654.

That disposes of the preliminary point. But to avoid any misunderstanding in the future I should like to make it clear that my disagreement with the reasoning of Fletcher-Moulton L.J. does not necessarily involve an acceptance of the reasoning of Vaughan Williams and Buckley L.JJ. There are certainly difficulties about the application of the doctrine of res judicata to matters in which there are no pleadings and where the issues are not formally defined. It seems at first sight to be taking rather a narrow view of it to say that the effect of the order made cannot be determined in the light of the points argued. I express no opinion on this since it does not arise for consideration here. It has been the practice since then for the order of the Divisional Court to make it clear in terms, as was done in the present case, that relief under section 10 has been sought and refused. No doubt that practice will continue until Parliament removes from the Fugitive Offenders Act what everyone believes to be the unintended effect of section 39. I am concerned only to say that there is nothing in the judgments of Vaughan Williams and Buckley L.JJ. which says, either expressly or by implication, that on an application to the Divisional Court for habeas corpus only, the applicant would not be free to ask for relief under section 10 or the Divisional Court not free to adjudicate upon it; and that if any such thing had been said, I should have felt at liberty to disagree with it, for certainly that point was not considered in De Demko v. Home Secretary.²¹

I turn now to the merits of the case. The appellant claims relief under section 10 on three grounds. First, he submits that the murders for which his surrender is demanded were offences of a political character. He does not admit that he committed them; but he says that the allegations against him, if true, show that the killings were done in the course of the fight for independence made by the body called E.O.K.A. He relies upon the principle expressed in In re Castioni²² in which it was held that homicide committed during an insurrection came within the restriction on the surrender of criminals provided by the Extradition Act, 1870, section 3. Secondly, he submits that the application for his return is not made in good faith in the interests of justice. Thirdly, he submits that in all the circumstances of the case it would be unjust or oppressive to return him to stand his trial. I do not think that he has made out any case on the second ground and I have nothing to add under this

21 [1959] A C. 654.

22 [1891] 1 Q.B. 149; 7 T.L.R. 50, D.C.

head to what has already been said in the House. The first submission involves a point of law which requires a little consideration; and the second submission gives rise to a difficult question of fact, and also to matters of policy.

There cannot be cited in support of the first submission any provision in the Fugitive Offenders Act, such as there is in section 3 of the Extradition Act. In that Act, which gives effect to treaties negotiated with foreign countries, Parliament contemplates that there may be fugitives from oppression as well as fugitives from justice and excludes the former. In the Fugitive Offenders Act it is assumed that within the Commonwealth any fugitive on a criminal charge will be a fugitive from justice. I think it is assumed also that countries within the Commonwealth will have the same standards of freedom and justice and good order and will secure them by substantially the same safeguards. Mr. Hutchinson submits that this assumption is no longer true. He does not, I must say at once, impute any particular deficiencies to the Republic of Cyprus. His argument is the general one that with the rise of so many new and independent sovereign states within the Commonwealth, similarity of thought on fundamental questions is no longer to be expected: so it now becomes generally relevant to consider whether the offence for which the return of the fugitive is demanded is an offence of a political character. He submits that the wide discretion given to the court under section 10 should now be exercised in a way that treats the application for the return of the fugitive as if it were an application for extradition and subject to the same sort of restrictions. In this contention he is supported by a dictum of Lord Goddard C.J. in In re Government of India and Mubarak Ali Ahmed.²³ The Lord Chief Justice said that in a proper case under the Fugitive Offenders Act the court would apply the rules in the Extradition Act.

In my opinion this argument is unsound. In the course of it it became clear that Mr. Hutchinson was not prepared to advance it without what appeared to me to be destructive qualifications. Treason is always an offence of a political character, yet it is expressly mentioned in section 9 of the Fugitive Offenders Act as one of the offences to which the Act applies. Mr. Hutchinson conceded that an application for the return of a fugitive on a charge of treason said to have been committed in one of the great dominions could not be refused simply on the ground that treason is a political offence. He conceded also that

23 [1952] 1 All E.R. 1060.

neither in 1881 nor at the present day could it be intended that rebels in a colony could obtain immunity by taking refuge in Great Britain. He sought to argue that the position was different if the rebellion was successful but I think that to be quite illogical.

Alternatively, Mr. Hutchinson argued, if the court was not bound to exercise its discretion so as to refuse to return a political offender, the political nature of the offence was a factor to be taken into account. I cannot agree. The court could not exercise its discretion in that way without trespassing Upon matters of policy. It does not exercise any discretion under the Extradition Act. Once it is established that the offence is of a political character, as, for example, homicide in the course of rebellion, it does not matter whether the court approves or disapproves the political views of the offender or whether or not it sympathises with the desire to punish him. But it would inevitably involve itself in the merits of the individual case if it were to exercise its discretion so as to release some political offenders and not others.

I appreciate the force of the general considerations with which Mr. Hutchinson prefaced his submission. But if changing conditions within the Commonwealth are thought to require some modification of the law, it must be made by Parliament. I respectfully disagree with the dictum of Lord Goddard C.J. which I have cited.

To avoid misunderstanding on the facts of this particular case I must note that it was suggested that the return of the appellant was being demanded for the purposes of political revenge. If that suggestion had been made good (which in my opinion it was not), it would certainly have been material to show that the application was not being made in good faith in the interests of justice. But that would not have been because it was for political revenge but because simply it was for revenge.

On the third point, I cannot add very much to what your Lordships have already said. I recognise that there are passages in the judgment of the Lord Chief Justice which, taken by themselves, are open to the criticism which my noble and learned friend Lord Radcliffe has directed against them. But looked at as a whole I can find no ground upon which I think it would be proper to interfere with the exercise of the discretion by the Divisional Court. Since, however, this matter is so grave, I think it right to say that on the material before the House I should not have been drawn to a different conclusion.

I do not attach overriding importance to the fact that the appellant has already been charged unsuccessfully three times with murder - one charge withdrawn, one lacking the evidence needed

for committal and one not proved beyond reasonable doubt. If in truth he has been for years a gangster who used his work for the security forces as a cover for his crimes - and this is the very point in issue - it is not surprising that he should be charged with many murders and that some should be difficult to prove. It is not suggested that he will not have a fair trial; three failures by the prosecution stand as an eloquent testimony to the contrary. Maybe these further charges are only concoctions made up by those who are seeking to use the law as a means for achieving their own wicked ends. A fair trial will bring that matter to the test. It cannot be determined by affidavits.

The decisive factor to my mind is the danger to the appellant's life from men who are resolved to defy the law and murder him if they can. But your Lordships must approach this third point from the footing that it has been established that, as matters stand, the appellant must be presumed at this stage of the proceedings to be probably guilty of two murders and that his return is requested in good faith so that he can stand his trial. It cannot be that a mere apprehension of harm should be allowed to secure his immunity from justice on charges such as that. On the other hand, if I thought that there was a near certainty or even a high probability that the legal process would itself be defeated by those who were determined that, guilty or not, the appellant should die, I should refuse to be a party to his return. How am I to assess the chances?

There is the matter that three attempts to assassinate him. one in 1957 during the troubles and two since the creation of the Republic, have been made. Whether the men who desire his death are moved to kill him because of the work he did for what was then the lawful government of Cyprus Or because he is in truth a murderer whom they think might otherwise escape justice is not at all to the point. The one motive is as wrong as the other. The fact remains that for one reason or the other he is in danger of his life. It is the fact also that it cannot be said without question that while in custody and awaiting trial he is secure. There is evidence, which for this purpose I accept, that one attempt was made when he was actually in charge of the police on his way to court and another while he was awaiting trial and before he had police protection. But after these attempts he was given police protection, which kept him safe for two months, and under police protection he was put on the aeroplane which brought him to London.

The whole question is whether on his return he will be safe from his enemies. I do not see how one can answer that without first inquiring what measures will be taken to protect him. I should also want to know what steps would be taken, if he is acquitted, to secure for him the benefits contemplated by section 8 of the Act and to ensure his safe return to this country. These are not matters that can be gone into on habeas corpus proceedings or under section 10. Oral evidence would on such an issue be no better than affidavit evidence. It is unreasonable to expect the competent authorities of a sovereign independent republic to submit to cross-examination on such matters in the courts of another country; and if they were to state in public and on oath what precautions they intended to take, that in itself might defeat the object of their plans. These are matters which must be the subject of governmental and not of judicial investigation.

Section 6 of the Act provides that within 15 days after the court has decided, if it does, not to release the fugitive, the Secretary of State may, if he thinks it just, order the return of the fugitive. I have put these words in italics because they make it plain that the discretion given to the Secretary of State is as wide as that given to the court under section 10; the phrase corresponds to the words "unjust or oppressive or too severe a punishment" in that section. There is a concurrent jurisdiction conferred on the Secretary of State. I cannot suppose that it is intended that he should act as a second tribunal to consider only those matters which a superior court has already pronounced upon. It is plain to me that one reason at least why the provision is there is because there may be considerations of a political or administrative character which go to the justice of the fugitive's return and are better inquired into by the executive.

The evidence put before the Divisional Court and contained in the affidavits which your Lordships have read is insufficient to make it appear to me more probable than not that, if the appellant is returned, the competent authorities in Cyprus will fail to see that he is kept safe to stand a fair trial and safely returned if he is acquitted. It follows that in my judgment the appeal must be dismissed. The House is not shirking its responsibilities but is carrying out the intent of the Act if it declines to grant relief under section 10 except upon such proof as is acceptable in a court of law and if it leaves matters which of their nature are not susceptible of proof of that character to be considered by the executive.

In the case of Arestidou I agree that the appeal should be dismissed for the reasons given by my noble and learned friends Viscount Simonds and Lord Hodson.

Solicitors: Sampson & Co.; Tuck & Mann; Geffen & Co.; Director of Public Prosecutions.

J. A. G.