1911 Encyclopædia Britannica/Extradition
EXTRADITION (Lat. ex, out, and traditio, handing over), the surrender of an alleged criminal for trial by a foreign state where he has taken refuge, to the state against which the alleged offence has been committed. When a person who has committed an offence in one country escapes to another, what is the duty of the latter with regard to him? Should the country of refuge try him in its own courts according to its own laws, or deliver him up to the country whose laws he has broken? To the general question international law gives no certain answer. Some jurists, Grotius among them, incline to hold that a state is bound to give up fugitive criminals, but the majority appear to deny the obligation as a matter of right, and prefer to put it on the ground of comity. And the universal practice of nations is to surrender criminals only in consequence of some special treaty with the country which demands them.
There are two practical difficulties about extradition which have probably prevented the growth of any uniform rule on the subject. One is the variation in the definitions of crime adopted by different countries. The second is the possibility of the process of extradition being employed to get hold of a person who is wanted by his country, not really for a criminal, but for a political offence. In modern states, and more particularly in England, offences of a political character have always been carefully excluded from the operation of the law of extradition.
1. United Kingdom.—The Extradition Acts 1870–1873 (33 & 34 Vict. cc. 62, and 36 & 37 Vict. c. 60) and the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69) deal with different branches of the same subject, the recovery and surrender of fugitive criminals. The Extradition Acts apply in the case of countries with which Great Britain has extradition treaties. The Fugitive Offenders Act applies—(1) as between the United Kingdom and any British possession, (2) as between any two British possessions, and (3) as between the United Kingdom or a British possession and certain foreign countries, such as Turkey and China, in which the crown exercises foreign jurisdiction.
Conditions of Surrender.—In spite of some earlier authorities it has long been settled that in English law there is no power to surrender fugitive criminals to a foreign country without express statutory authority. Such authority is now given by the Extradition Acts 1870–1873, but only in the case of the offences therein specified, and with regard to countries with which an arrangement has been entered into, and to which the acts have been applied by order in council. The acts are further to be applied, subject to such “conditions, exceptions and qualifications as may be deemed expedient” (s. 2); and these conditions, &c., are invariably to be found in the extradition treaty which is set out in the order in council applying the Extradition Acts to a particular country. To support a demand for extradition from Great Britain it is therefore necessary to show that the offence is one of those enumerated in the Extradition Acts, and also in the particular treaty, and that the acts charged amount to the offence according to the laws both of Great Britain and of the state demanding the surrender.
Surrender of Subjects.—A further question arises where a state is called on to surrender one of its own subjects. Some of the treaties, such as those with France and Germany, stipulate that neither contracting party shall surrender its own subjects, and in such cases a British subject cannot be surrendered by his own country. The treaties with Spain, Switzerland and Luxemburg provide for the surrender by Great Britain of her own subjects, but there is no reciprocity. Other treaties, such as those with Austria, Belgium, Russia and the Netherlands, give each party the option of surrendering or refusing to surrender its own subjects in each particular case. Under such treaties British subjects are surrendered unless the secretary of state intervenes to forbid it. Lastly, some treaties, such as that with the United States, contain no restriction of this kind, and the subjects of each power are freely surrendered to the other. Surrender by Great Britain is also subject to the following restrictions contained in s. 3 of the Extradition Act 1870:—(1) that the offence is not of a political character, and the requisition has not been made with a view to try and punish for an offence of a political character; (2) that the prisoner shall not be liable to be tried for any but the specified extradition offences; (3) that he shall not be surrendered until he has been tried and served his sentence for offences committed in Great Britain; and (4) that he shall not be actually given up until fifteen days after his committal for extradition, so as to allow of an application to the courts.
Political Offences.—The question as to what constitutes a political offence is one of some nicety. It was discussed in In re Castioni (1890, 1 Q.B. 149), where it was held, following the opinion of Mr Justice Stephen in his History of the Criminal Law, that to give an offence a political character it must be “incidental to and form part of political disturbances.” Extradition was accordingly refused for homicide committed in the course of an armed rising against the constituted authorities. In the more recent case of In re Meunier (1894, 2 Q.B. 415), an Anarchist was charged with causing two explosions in Paris—one at the Café Véry resulting in the death of two persons, and the other at certain barracks. It was not contended that the outrage at the cafe was a political crime, but it was argued that the explosion at the barracks came within the description. The court, however, held that to constitute a political offence there must be two or more parties in the state, each seeking to impose a government of its own choice on the other, which was not the case with regard to Anarchist crimes. The party of anarchy was the enemy of all governments, and its effects were directed primarily against the general body of citizens. The test applied in the earlier case is perhaps the more satisfactory of the two.
With regard to the provision that surrender shall not be granted if the requisition has in fact been made with a view to try and punish for an offence of a political character, it, was decided in the case of Arton (1896, 1 Q.B. 108) that a mere suggestion, that after his surrender for a non-political crime, the prisoner would be interrogated on political matters (his alleged complicity in the Panama scandal), and punished for his refusal to answer, was not enough to bring him within the provision. The court also held that it had no jurisdiction to entertain a suggestion that the request of the French government for his extradition was not made in good faith and in the interests of justice.
Extradition Offences.—The following is a list of crimes in respect of which extradition may be provided for under the Extradition Acts 1870–1873, and the Slave Trade Act 1873. Extradition Act 1870:—(1) Murder; (2) Attempt to murder; (3) Conspiracy to murder; (4) Manslaughter; (5) Counterfeiting and altering money, uttering counterfeit or altered money; (6) Forgery, counterfeiting, and altering and uttering what is forged or counterfeited or altered; (7) Embezzlement and larceny; (8) Obtaining money or goods by false pretences; (9) Crimes by bankrupts against bankruptcy law; (10) Fraud by a bailee, banker, agent, factor, trustee or director, or member or public officer of any company made criminal by any law for the time being in force; (11) Rape; (12) Abduction; (13) Child-stealing; (14) Burglary and housebreaking; (15) Arson; (16) Robbery with violence; (17) Threats by letter or otherwise with intent to extort; (18) Crimes committed at sea: (a) Piracy by the law of nations; (b) Sinking or destroying a vessel at sea, or attempting or conspiring to do so; (c) Assault on a ship on the high seas, with intent to destroy life or to do grievous bodily harm; (d) Revolt, or conspiring to revolt, by two or more persons on board a ship on the high seas against the authority of the master; (19) Bribery. Extradition Act 1873:–(20) Kidnapping and false imprisonment; (21) Perjury and subornation of perjury. This act also extends to indictable offences under 24 & 25 Vict. cc. 96, 97, 98, 99, 100, and amending and substituted acts. Among such offences included in various extradition treaties are the following:—(22) Obtaining valuable securities by false pretences; (23) Receiving any money, valuable security or other property, knowing the same to have been stolen or unlawfully obtained; (24) Falsification of accounts (see In re Arton, 1896, 1 Q.B. 509); (25) Malicious injury to property, if such offence be indictable;. (26) Knowingly making, without lawful authority, any instrument, tool or engine adapted and intended for the counterfeiting of coin of the realm; (27) Abandoning children; exposing or unlawfully detaining them; (28) Any malicious act done with intent to endanger the safety of any person in a railway train; (29) Wounding or inflicting grievous bodily harm; (30) Assault occasioning actual bodily harm; (31) Assaulting a magistrate or peace or public officer; (32) Indecent assault; (33) Unlawful carnal knowledge, or any attempt to have unlawful carnal knowledge, of a girl under age; (34) Bigamy; (35) Administering drugs or using instruments with intent to procure the miscarriage of women; (36) Any indictable offence under the laws for the time being in force in relation to bankruptcy. Slave Trade Act 1873 (36 & 37 Vict. c. 88, s. 27):—(37) Dealing in slaves in such manner as to constitute a criminal offence against the laws of both states.
The United Kingdom has extradition treaties with practically all civilized foreign countries; and though it is not practicable to state which of the statutory extradition offences are included in each, it may be said generally that crimes 1 to 17 inclusive are covered in all, though Rumania has reserved the right to refuse, and Portugal does refuse, to surrender for a crime punishable with death.
The act of 1873 provides for the surrender of accessories before and after the fact to extradition crimes, and most of the treaties contain a clause by which extradition is to be granted for participation in any of the crimes specified in the treaty, provided that such participation is punishable by the laws of both countries. Several of the treaties also contain clauses, providing for optional surrender in respect of any crime not expressly mentioned for which extradition can be granted by the laws of both countries.
It is further to be noted that the restrictions on surrender in the Extradition Acts apply only to surrenders by Great Britain. Foreign countries may surrender fugitives to Great Britain without any treaty, if they are willing to do so and their law allows of it, and such surrenders have not infrequently been made. But when surrendered for an extradition crime, the prisoner cannot be tried in England for any other crime committed before such surrender, until he has been restored, or has had an opportunity of returning, to the foreign state from which he was extradited.
Procedure.—To obtain from a foreign country the extradition of a fugitive from the United Kingdom, it is necessary to procure a warrant for his arrest, and to send it, or a certified copy, to the home secretary together with such further evidence as is required by the treaty with the country in question. In most, cases an information or deposition containing evidence which would justify a committal for trial in Great Britain will be required. The home secretary will then communicate through the foreign secretary and the proper diplomatic channels with the foreign authorities, and in case of urgency will ask them by telegraph for a provisional arrest. For the arrest in the United Kingdom of fugitive criminals whose extradition is requested by a foreign state, two procedures are provided in ss. 7 and 8 of the act of 1870:—(1) On a diplomatic requisition supported by the warrant of arrest and documentary evidence, the home secretary, if he thinks the crime is not of a political character, will order the chief magistrate at Bow Street to proceed; and such magistrate will then issue a warrant of arrest on such evidence as would be required if the offence had been committed in the United Kingdom. (2) More summarily, any magistrate or justice of the peace may issue a provisional warrant of arrest on evidence which would support such a warrant if the crime had been committed within his jurisdiction. In practice a sworn information is required, but this may be based on a telegram from the foreign authorities. The magistrate or justice must then report the issue of the warrant to the home secretary, who may cancel it and discharge the prisoner. When arrested on the provisional warrant, the prisoner will be brought up before a magistrate and remanded to Bow Street, and will then be further remanded until the magistrate at Bow Street is notified that a formal requisition for surrender has been made; and unless such requisition is made in reasonable time the prisoner is entitled to be discharged. The examination of the prisoner prior to his committal for extradition ordinarily takes place at Bow Street. The magistrate is required to hear evidence that the alleged offence is of a political character or is not an extradition crime. If satisfied in these respects, and if the foreign warrant of arrest is duly authenticated, and evidence is given which according to English law would justify a committal for trial, if the prisoner has not yet been tried, or would prove a conviction if he has already been convicted, the magistrate will commit him for extradition. Under the Extradition Act, 1895 the home secretary, if of opinion that removal to Bow Street would be dangerous to the prisoner’s life, or prejudicial to his health, may order the case to be taken by a magistrate at the place where the prisoner was apprehended, or then is, and the magistrate may order the prisoner to be detained in such place. After committal for extradition, every prisoner has fifteen days in which to apply for habeas corpus, and after such period, or at the close of the habeas corpus proceedings if they are unsuccessful, the home secretary issues his warrant for surrender, and the prisoner is handed over to the officers of the foreign government.
The Extradition Acts apply to the British colonies, the governor being substituted for the secretary of state. Their operation may, however, be suspended by order in council, as in the case of Canada, where the colony has passed an Extradition Act of its own (see Statutory Rules and Orders).
Fugitive Offenders Act.—There are no extradition treaties with certain countries in which the crown exercises foreign jurisdiction, such as Cyprus, Turkey, Egypt, China, Japan, Corea, Zanzibar, Morocco, Siam, Persia, Somali, &c. In these countries the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69) has been applied, pursuant to s. 36 of that statute, and the measures for obtaining surrender of a fugitive criminal are the same as in a British colony. The act, however, only applies to persons over whom the crown has jurisdiction in these territories, and generally is expressly restricted to British subjects.
Under this act a fugitive from one part of the king’s dominions to another, or to a country where the crown exercises foreign jurisdiction, may be brought back by a procedure analogous to extradition, but applicable only to treason, piracy and offences punishable with twelve months’ imprisonment with hard labour or more. The original warrant of arrest must be endorsed by one of several authorities where the offenders happen to be,—in practice by the home secretary in the United Kingdom and by the governor in a colony. Pending the arrival of the original warrant a provisional arrest may be made, as under the Extradition Acts. The fugitive must then be brought up for examination before a local magistrate, who, if the endorsed warrant is duly authenticated, and evidence is produced “which, according to the law administered by the magistrate, raises a strong or probable presumption that the offender committed the offence, and that the act applies to it,” may commit him for return. An interval of fifteen days is allowed for habeas corpus proceedings, and (s. 10) the court has a large discretion to discharge the prisoner, or impose terms, if it thinks the case frivolous, or that the return would be unjust or oppressive, or too severe a punishment. The next step is for the home secretary in the United Kingdom, and the governor in a colony, to issue a warrant for the return of the prisoner. He must be removed within a month, in the absence of reasonable cause to the contrary. If not prosecuted within six months after arrival, or if acquitted, he is entitled to be sent back free of cost.
In the case of fugitive offenders from one part of the United Kingdom to another, it is enough to get the warrant of arrest backed by a magistrate having jurisdiction in that part of the United Kingdom where the offender happens to be. A warrant issued by a metropolitan police magistrate may be executed, without backing, by a metropolitan police officer anywhere, and there are certain other exceptions, but as a rule a warrant cannot be executed without being backed by a local magistrate. (J. E. P. W.)
2. United States.—Foreign extradition is purely an affair of the United States, and not for the individual states themselves. Upon a demand upon the United States for extradition, there is a preliminary examination before a commissioner or judge before there can be a surrender to the foreign government (Revised Statutes, Title LXVI.; 22 Statutes at Large, 215). It is enough to show probable guilt (Ornelas v. Ruiz, 161 United States Reports, 502). An extradition treaty covers crimes previously committed. If a Power, with which the United States have such a treaty, surrenders a fugitive charged with a crime not included in the treaty, he may be tried in the United States for such crime. Inter-state extradition is regulated by act of Congress under the Constitution of the United States (Article IV. s. 2; United States Revised Statutes, s. 5278). A surrender may be demanded of one properly charged with an act which constitutes a crime under the laws of the demanding state, although it be no crime in the other state. A party improperly surrendered may be released by writ of habeas corpus, either from a state or United States court (Robb v. Conolly, 111 U.S. Reports, 624). On his return to the state from which he fled, he is subject to prosecution for any crime, though on a foreign extradition the law is otherwise (Lascelles v. Georgia, 148 U.S. Reports, 537). (S. E. B.)
See Sir E. Clarke, Treatise upon the Law of Extradition (4th ed., 1904); Biron and Chalmers, Law and Practice of Extradition (1903).