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Schtraks v. Government of Israel and Others

Publisher United Kingdom: House of Lords (Judicial Committee)
Author House of Lords
Publication Date 6 September 1962
Citation / Document Symbol [1964] AC 556, [1962] 3 All ER 529, [1962] 3 WLR 1013
Cite as Schtraks v. Government of Israel and Others, [1964] AC 556, [1962] 3 All ER 529, [1962] 3 WLR 1013, United Kingdom: House of Lords (Judicial Committee), 6 September 1962, available at: http://www.refworld.org/cases,GBR_HL,3ae6b70d8.html [accessed 19 November 2018]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

SCHTRAKS v. GOVERNMENT OF ISRAEL AND OTHERS.

HOUSE OF LORDS

[1964] AC 556, [1962] 3 All ER 529, [1962] 3 WLR 1013

Hearing Date: 25, 26, 30, 31 July, 6 September 1962

6 September 1962

Index Terms:

Extradition -- Habeas corpus -- Nature of proceedings -- Whether further evidence not before chief magistrate when making committal order admissible -- Extradition Act, 1870 (33 & 34 Vict. c. 52), s. 3 (1).

Extradition -- Political offence -- Political character of offence connotes idea of asylum in England for political fugitive -- Fugitive must be at odds with state seeking extradition on issue connected with political control of state -- Extradition Act, 1870 (33 & 34 Vict. c. 52), s. 3 (1).

Extradition -- Territory -- Alleged crime committed in part of Jerusalem occupied by Israel -- De facto, but not de jure, authority of State of Israel over that part of Jerusalem recognised by United Kingdom government -- Whether extradition treaty of 1960 applied to that part of Jerusalem -- Israel (Extradition) Order, 1960 (S.I. 1960 No. 1660).

Held:

In 1957 the parents of a boy, Joseph Schuchmacher, left him in the charge of his mother's parents, Nachman and Miriam Schtraks, in Jerusalem, owing to difficulties of the parents in making a living and obtaining a house. In September, 1959, the boy's parents asked the grandparents to return the boy to them. The grandparents refused on the ground that, if the boy were returned, he would not be given the education proper to an orthodox Jew. On Feb. 10, 1960, the grandparents were ordered by the High Court of Israel, sitting at Jerusalem, to hand over the boy to his parents by Feb. 15, 1960, but they did not do so. The parents brought contempt proceedings against the grandparents, joining the appellant as a respondent on the grounds that he was making common cause with the grandparents and was assisting them and encouraging them to withhold the boy from his parents. In these proceedings the appellant gave evidence that he had not seen the boy since Jan. 1, 1960, and he was dismissed from the suit, but the grandfather was committed to prison. On May 23, 1960, the appellant arrived in the United Kingdom. In August, 1961, the Israeli police, whilst extensively searching for the boy, arrested three persons, Shlomo Kot, his wife Rachel and his brother Reuben. All three made affirmations to the effect that some two or three weeks after Jan. 1, 1960, the appellant and the boy, both of wom they identified from photographs, had come to the Komemiyut Settlement, where the Kots lived, and had arranged for the boy to remain for a while with Shlomo Kot, as it was desirable that the boy should temporarily have asylum at the settlement. In proceedings consequent on a request for the appellant's extradition on a charge of perjury, which the appellant was alleged to have committed in giving evidence before the High Court sitting in Jerusalem, on a charge of child-stealing and on another charge (all of which charges were extraditable offences within the Israel (Extradition) Order, 1960), the appellant was, by order of the chief magistrate at Bow Street, committed to prison to await extradition to Israel. The government of Israel exercised de facto jurisdiction in that part of Jerusalem which was occupied by the State of Israel. The United Kingdom government recognised the de facto jurisdiction, but had not accorded recognition to the sovereignty of Israel over the part of Jerusalem that the state occupied. On appeal from the refusal of the Divisional Court of a writ of habeas corpus,

Held: (i) in the context of the Extradition Acts and the Israel (Extradition) Order, 1960, the territory of the State of Israel, with which the Acts and order were concerned, included territory over which the state exercised de facto jurisdiction; accordingly the word "territory" in the Order of 1960 extended to that part of Jerusalem over which the United Kingdom government recognised that the government of Israel exercised de facto authority (see p. 532, letter G, p. 537, letter G, p. 541, letter H, and p. 548, letter E, post).

(ii) the proceedings for habeas corpus, subsequent to the chief magistrate's committal order, were not an appeal or re-hearing, but the court's function in them was to see whether the prisoner was lawfully detained (e.g., whether there had been jurisdiction to make the order), and the position was analogous to that where a person was committed by justices in England for trial on indictment; thus the court was not entitled to receive in the habeas corpus proceedings further evidence tendered for the purpose contradicting testimony on which the chief magistrate had made the committal order, although the court was competent and bound to receive evidence properly tendered for the purpose of showing that the alleged crimes were "of a political character", by reason of the exception enacted for such crimes in s. 3 (1) of the Extradition Act, 1870, which rendered offences of that character non-extraditable (see p. 542, letter A, p. 543, letters C and I, p. 533, letter F, p. 534, letter D, p. 536, letter F, p. 549, letter C, and p. 552, letter E, post).

Dicta of LORD RUSSELL OF KILLOWEN, C.J., in Re Galwey ([1896] 1 Q.B. at p. 236) and of BIGHAM, J., in R. v. Governor of Holloway Prison, Ex p. Siletti ((1902), 20 Cox, C.C. at pp. 357, 358) and R. v. Governor of Brixton Prison, Ex p. Perry ([1923] All E.R. Rep. 182) applied.

Dicta in Re Castioni ([1891] 1 Q.B. 149) disapproved.

(iii) (per LORD REID, VISCOUNT RADCLIFFE, LORD EVERSHED and LORD JENKINS) the description offence of a political character in s. 3 (1) of the Extradition Act, 1870, connoted the idea of asylum in England for political refugees, and that the fugitive was at odds with the state which applied for his extradition on some issue connected with the political control of government of the country, but the court would not define, as distinct from describing, what offences were political offences; in the present case (LORD HODSON concurring) the offences with which the appellant was charged were not offences of a political character, for they were ascribable either to filial piety or to a wish to take his father's side rather than to demonstrating agaist the policy of the state (see p. 535, letter I, p. 540, letter D, p. 541, letter A, p. 544, letter F, and p. 553, letter C, post).

Re Castioni ([1891] 1 Q.B. 149) and Re Meunier ([1894] 2 Q.B. 415) considered.

(iv) the proper test to apply in determining whether the material before the magistrates had been adequate to justify committal was whether, if that evidence stood alone at the trial, a reasonable jury properly directed would accept it and find a verdict of guilty; on the evidence in the present case the chief magistrte had been justified in committing the appellant (see p. 533, leter E, p. 537, letter C, p. 545, letter F, and p. 547, letter C, post).

Per LORD REID, VISCOUNT RADCLIFFE and LORD EVERSHED: an application by a foreign state for extradition must be treated on the basis that the state seeking the extradition will not use the procedure as a means for bringing the fugitive before its courts on other charges, which are not extradition charges (see p. 534, letters A and B, p. 538, letter C, and p. 545, letter A, post).

Dictum of LORD RUSSELL OF KILLOWEN, C.J., in Re Arton (No. 1) ([1896] 1 Q.B. at p. 114) disapproved.

Observations on the meaning of the words "possession" and "fraudulently" in the offence of child-stealing enacted in s. 188 of the Israeli Criminal Code Ordinance, 1936 (see p. 547, letters B and D, p. 537, letter D, and p. 551, letter I, post).

Decision of the QUEEN'S BENCH DIVISIONAL COURT (sub nom. Re Shalom Schtraks) ([1962] 2 All E.R. 176) affirmed.

Notes:

As to prima facie proof of guilt in extradition proceedings, see 16 HALSBURY'S LAWS (3rd Edn.) 572, 573, para. 1178; and for cases on the subject, see 24 DIGEST (Repl.) 988-990, 5-20.

As to evidence admissible in extradition proceedings, see 16 HALSBURY'S LAWS (3rd Edn.) 574, paras. 1181, 1182; and for cases on the subject, see 24 DIGEST (Repl.) 1002, 94-102.

For the Extradition Act, 1870, s. 3 (1), see 9 HALSBURY'S STATUTES (2nd Edn.) 877.

Cases referred to in the Judgment:

Arton (No. 1), Re, [1896] 1 Q.B. 108; 65 L.J.M.C. 23; 73 L.T. 687; subsequent proceedings, sub nom. Re Arton (No. 2), [1896] 1 Q.B. 509; 24 Digest (Repl.) 995, 43.

Castioni, Re, [1891] 1 Q.B. 149; 60 L.J.M.C. 22; 64 L.T. 344; 55 J.P. 328; 24 Digest (Repl.) 993, 36.

Galwey, Re, [1896] 1 Q.B. 230; 65 L.J.M.C. 38; 73 L.T. 756; sub nom. R. v. Galwey, 60 J.P. 87; 24 Digest (Repl.) 989, 11.

Kolczynski, Re, [1955] 1 All E.R. 31; sub nom. R. v. Brixton Prison (Governor), Ex p. Kolczynski, [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; 119 J.P. 68; 24 Digest (Repl.) 993, 37.

Kossekechatko v. A.-G. for Trinidad, [1932] A.C. 78; 101 L.J.P.C. 17; 146 L.T. 101; 24 Digest (Repl.) 1001, 76.

Meunier, Re, [1894] 2 Q.B. 415; 63 L.J.M.C. 198; 71 L.T. 403; 24 Digest (Repl.) 994, 38.

R. v. Bellis, (1893), 62 L.J.M.C. 155; 69 L.T. 26; 57 J.P. 441; 17 Cox, C.C. 660; 15 Digest (Repl.) 1029, 10,104.

R. v. Bolton, (1841), 1 Q.B. 66; 10 L.J.M.C. 49; 5 J.P. 370; 113 E.R. 1054; 16 Digest (Repl.) 127, 104.

R. v. Brixton Prison (Governor), Ex p. Percival, [1907] 1 K.B. 696; 76 L.J.K.B. 619; 96 L.T. 545; 71 J.P. 148; 24 Digest (Repl.) 1012, 161.

R. v. Brixton Prison (Governor), Ex p. Perry, [1923] All E.R. Rep. 182; [1924] 1 K.B. 455; 93 L.J.K.B. 380; 130 LT. 731; 24 Digest (Repl.) 1001, 93. R. v. Brixton Prison (Governor), Ex p. Servini, [1914] 1 K.B. 77; 83 L.J.K.B. 212; 109 L.T. 986; 78 J.P. 47; 24 Digest (Repl.) 1000, 67. R. v. Holloway Prison (Governor), Ex p. Siletti, (1902), 71 L.J.K.B. 935; 87 L.T. 332; 20 Cox, C.C. 353; 67 J.P. 67; 24 Digest (Repl.) 1007, 133. Shuter, Re, [1959] 2 All E.R. 782; 123 J.P. 459; sub nom. R. v. Governor of Brixton Prison, Ex p. Shuter, [1960] 2 Q.B. 89; [1959] 3 W.L.R. 603; 3rd Digest Supp.

Introduction:

Appeal. This was an appeal by Shalom Schtraks from an order of the Queen's Bench Divisional Court (LORD PARKER, C.J., ASHWORTH and FENTON ATKINSON, JJ.), dated Mar. 30, 1962 (reported sub nom. Re Shalom Schtraks, [1962] 2 All E.R. 176), dismissing the appellant's application for a writ of habeas corpus following his committal to Brixton Prison by the chief magistrate sitting at Bow Street on Jan. 12, 1962, pursuant to an application by the government of Israel for an order of extradition against the appellant.

Counsel:

J. G. Foster, Q.C., and R. D. L. Du Cann for the appellant. Leonard Caplan, Q.C., and R. L. A. Goff for the government of Israel. The Solicitor-General (Sir Peter Rawlinson, Q.C.), and R. A. Barr for the Secretary of State for Home Affairs. J. H. Buxxard for the Governor of Brixton Prison.

Judgment-READ:

The House took time for consideration. Sept. 6. The following opinions were read.

PANEL: Lord Reid, Viscount Radcliffe, Lord Evershed, Lord Jenkins and Lord Hodson

Judgment One:

LORD REID: My Lords, on Sept. 3, 1961, the government of Israel requested the extradition of the appellant who is wanted in Israel for prosecution on three charges. These are child stealing in contravention of s. 188 and perjury in contravention of s. 117 of the Criminal Code Ordinance, 1936, and also a charge under s. 259 in regard to which no separate point is taken.

It is not in dispute that the parents of a boy, Yossele Schuchmacher, now ten years old, being in some temporary difficulty, agreed some time in 1957 which the boy's grandparents that he should remain with them for about a year. He remained with them until September, 1959, when the parents asked for his return. This was refused because the grandfather feared that the boy would not receive a religious education in accordance with his views. In habeas corpus proceedings the Supreme Court on Feb. 10, 1960, ordered the grandparents to hand over the boy by Feb. 15. They did not do so and the grandfather was sent to prison. The appellant is an uncle of the boy, being a son of these grandparents. The allegation against him is that he took the boy to a settlement at Komemiyut in January, 1960, and arranged with a family called Kot that they should keep the boy for some time giving false names for himself and the boy. They kept the boy for about three weeks and then the appellant took him away. If the Kots' evidence is to be accepted it shows that the accused knew that the parents desired the boy's return and was hiding him from them. The charge under s. 188 is based on this. The appellant maintains that the Kots' evidence is false and that he never took the boy to the settlement. The charge of perjury is in relation to evidence given by the appellant in the course of an application made to the High Court by the parents to obtain the return of the boy. The application was against both the grandparents and the appellant who was alleged to be making common cause with the grandparents and assisting them in their determination not to return the boy. The main evidence said to be perjured was a statement by the appellant that he had not seen the boy since Hanukka which ended on Jan. 1, 1960. The case against the appellant was dismissed after he had given this evidence.

In consequence of the request for extradition the appellant was brought before the chief magistrate at Bow Street, and, after proceedings spread over two months, he was committed on Jan. 12, 1962. He then applied for a writ of habeas corpus. This application was refused by a Divisional Court which granted leave to appeal to this House.

A number of points have been argued before your Lordships. That of most general importance is whether the offences charged are of a political character, but I shall first deal as brieflya s possible with the other points. The first is that the Israel (Extradition) Order, 1960 (S.I. 1960 No. 1660) does not apply to Jerusalem because that part of Jerusalem in which the Israel government exercises jurisdiction is not part of the territory of Israel. I need not consider whether this would be an answer to all the charges because in my view there is no substance in the point. It is true that the British government does not recognise the sovereignty of Israel in Jerusalem but it does recognise that the government of Israel exercises de facto authority in the part of the city which it occupies. In my judgment neither the Extradition Act, 1870, nor the order to which I have referred, is concerned with sovereignty; they are concerned with territory in which territorial jurisdiction is exercised. In addition to other reasons which have been given or which will be given by your Lordships I would refer to art. 2 of the agreement between the British government and the government of Israel, which is incorporated in the order. This article draws no distinction between territories over which Her Majesty exercises sovereignty and protectorates and other territories where Her Majesty is not sovereign but where authority is exercised. There is no question of these latter being merely deemed to be "territories" for certain purposes. I find nothing in the Extradition Acts or in this order to indicate that territory is used in any sense which would exclude from the territory of Israel that part of Jerusalem in regard to which the British government recognises the de facto authority of the government of Israel on the ground that that government is not recoignised as sovereign there.

The next point involves the question, what is the proper function and jurisdiction of this House in an appeal of this kind. I understand that others of your Lordships intend to deal more fully with this question and I shall only state my views in outline. There is no appeal in the ordinary sense from the decision of a magistrate to commit. Such review as is competent can only take place in one or other of two ways. The accused can apply for a writ of habeas corpus, and, whether he does so or not, the Secretary of State can decide not to grant the request for extradition, if in the exercise of his discretion he thinks that it is proper to take that course.

This House has no wider powers than the powers of a court. I do not find it necessary in this case to define precisely what those powers are. The court, and on appeal this House, can and must consider whether on the material before the magistrate a reasonable magistrate would have been entitled to commit the accused, but neither a court nor this House can re-try the case so as to substitute its discretion for that of the magistrate. In the first place the court must see what is the offence charged. In this case no question arises on the definition of perjury but there is a dispute as to the meaning of s. 188 of the Code. The accused maintains that on its true construction that section does not apply o this case, and that is a matter which we must determine. There is no question in this case of a translation because this section of the Code is in the English language; and there is no allegation that the law of Israel adopts any different method of construction from our own or that this section has received any authoritative interpretation in Israel. So in my view it must be construed in the same way as we would construe a section of a British statute. So construing it, I agree with your Lordships that it is wide enough to cover what the accused is alleged to have done in this case. Next it is necessary to determine whether the material before the magistrate was adequate to justify committal. The main objection to it is that the Kots or at least two of the three were accomplices, and that two of the Kots were in prison when their statements were taken. It is not in dispute that the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty. Again, for reasons which will be given by your Lordships, I agree that the chief magistrate was entitled to commit on the material before him.

The accused sought to adduce further evidence before your Lordships in order to show that on the whole material now available it would be improper to commit him. In my judgment, we are not entitled to look at such evidence and we have not done so. Owing to the restricted character of habeas corpus proceedings a court is not concerned with anything that comes to light after committal. This could easily lead to injustice if the accused had no other remedy: there may well be cases where new evidence throws quite a different light on the material originally before the magistrate; but that is a matter which the Secretary of State is entitled to consider, when deciding whether to grant extradition.

Different considerations apply to the question whether the offences charged were of a political character. Section 3 of the Act of 1870 provides:

"The following restrictions shall be observed with respect to the surrender of fugitive criminals: (1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character..." The interpretation of this subsection is not free from difficulty. Not only is the word "political" capable of more than one interpretation, but also the two parts of the subsection do not fit wel together. I do not know how this came about, but I would suspect that the last part may have been added by amendment without adequate consideration of the drafting. We must, I think, approach the interpretation of the subsection with two things in mind. In the first place, offences obviously of a political character are not within the scope of extradition at all: for example, there is no mention in the Schedule to the Act of 1870 or in art. 3 of the Schedule to the Israel Order of treason, sedition,

or any other offence of that kind. Secondly, s. 3 (2) of the Act requires that if extradition is granted the accused is not to be tried in the foreign country for offences other than the extradition crimes: so no foreign country could, without a breach of faith, use extradition as a means for bringing a refugee before its courts for trial on some other political charge. On this I agree with the views expressed by LORD PARKER, C.J., in the present case n(1) and by LORD GODDARD, C.J., in Re Kolczynski n(2), and I cannot agree with the views of LORD RUSSELL OF KILLOWEN, C.J., in Re Arton (No. 1) n(3).

n(1) [1962] 2 All E.R. 176.

n(2) [1955] 1 All E.R. 31; [1955] 1 Q.B. 540.

n(3) [1896] 1 Q.B. at p. 114.

It appears to me that the prpose of the latter part of s. 3 (1) is to emphasise the first part and also to provide a further opportunity of proving the political character of the offence. The purpose of the subsection as a whole is to enable an accused to show that an apparently non-political offence such as murder or arson was really of a political character, and he can try to do that by proving the circumstances in which it was committed. I have already stated my view that in the ordinary case a court cannot look beyond the material which was before the magistrate, but on this question s. 3 (1) expressly permits the accused to

"prove to the satisfaction of... the court before whom he is brought on habeas corpus... that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character." That appears to me not only to require the court to examine afresh the material which was before the magistrate, but also, in proper cases, to admit new material tendered by the accused to it. The issue before the court with regard to the political character of the offence is not, as on other matters, whether the magistrate was entitled to reach the decision which he made: it is whether on the whole material now available the court is satisfied that the offence, though normally not of a political character, was onthe facts of the particular case before it of a political character.

New material on this issue was tendered to your Lordships in this case and was admitted. Some of that material would also have been relevant on the other issues in this case, if it had been before the magistrate, but we intimated when admitting it that we would consider it only in relation to the political issue. The subsection also permits the accused to "prove...to the Secretary of State" the political character of the offence. I cannot suppose that the Secretary of State was intended to be bound by the strict rules of evidence, nor can I hold that the word "prove", which is only used once in the subsection, means something different in relation to the Secretary of State from what it means in relation to the court or the magistrate. In fact, some of the material which your Lordships have admitted could not normally have been received as evidence. No doubt such material may carry less weight than properly sworn statements, but it does not surprise me that the Parliament of 1870 intended that on this question of the political character of an offence committed by a refugee othing of any value should be excluded from consideration.

On the political issue the view of the facts most favourable to the appellant appears to me to be this. In Israel politics and religion are and have long been closely intertwined, and important political parties are based on religious views. In particular religious education is a political issue. In his case the grandfather's conduct appears to have been actuated by his religious beliefs and, although this does not clearly appear, I am prepared to assume that this also applies to the appellant. The fate of this boy attracted much political attention. At the time of the appellant's alleged offence a well-attended political meeting addressed by a member of the Knesset approved of the boy being kept away from his parents. The Rabi of Jerusalem stated that the grandfather was

"in duty bound to prevent with all his strength that [the boy] should not come to apostasy and go in evil ways and whosoever can render him help in this matter is in duty bound to help him with all his strength." Then there were questions and debates in the Knesset about this case. It can therefore be said that these alleged offences were committed in a political context, and that the action of the grandfather and the appellant received considerable political support. But in my opinion it does not follow that the offences were of a political character. In reading the Act of 1870 one is entitled to look through mid-Victorian spectacles. Many people then regarded insurgents against continental governments as heroes intolerably provoked by tyranny, who ought to have asylum here, although they might have destroyed life and property in the course of their struggles. But, although such views may have given rise to s. 3 (1) of the Act of 1870, I do not think that its scope can be limited to such cases. We cannot inquire whether a fugitive criminal was engaged in a good or a bad cause. A fugitive member of a gang who committed an offence in the course of an unsuccessful putsch is as much within the Act as the follower of a Garibaldi; but not every person who commits an offence in the course of a political struggle is entitled to protection. If a person takes advantage of his position as an insurgent to murder a man against whom he has a grudge, I would not think that that could be called a political offence. So it appears to me that the motive and purpose of the accused in committing the offence must be relevant, and may be decisive. It is one thing to commit an offence for the purpose of promoting a political cause, and quite a different thing to commit the same offence for an ordinary criminal purpose. Moreover, I do not think that the application of the section can be limited to cases of open insurrection. An underground resistance movement may be attempting to overthrow a government, and it could hardly be that an offence, committed the day before open disturbances broke out, would be treated as non-political, while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy, may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee's party should have been trying to achieve power in the state. It would be enough if they were trying to make the government concede some measure of freedom, but not attempting to supplant it.

I do not get any assistance from the statements in some of the cases that there must be disturbance or political disturbance. If this merely means that the political atmosphere must be disturbed, that may be so, but it gets one nowhere. The political atmosphere was disturbed in Israel over religious education. But if it means that there must have been some disturbance of public order, I would not agree that that is an essential element in a political offence. It is suggested that that must have been in the minds of members of

Parliament in 1870; but I feel sure that if it had been suggested to Mr. Gladstone, or any other member of the Liberal majority in 1870, that asylum should be denied to a refugee who had committed an offence, perhaps of a non-violent kind, as part of a campaign to induce or compel an autocratic government to grant a measure of civil or religious liberty, on the ground that there had been no disturbance of public order, he would have indignantly denied any such intention. And I do not find anything in the words of the Act to show that such a limitation was unwittingly inserted.

It appears to me that the provisions of s. 3 of the Act of 1870 are clearly intended to give effect to the principle that there should in this country be asylum for political refugees, and I do not think that it is possible, or that the Act evinces any intention, to define the circumstances in which an offence can properly be held to be of a political character.

With an expression so vague as "an offence of a political character" there must be many border-line cases, for example, actions against a turbulent group trying to seize power which the government is too weak to suppress; but the present case appears to me to be beyond any possible extension of that category. I am willing to assume that the accused did what he believed to be right, and that many people and even a whole political party agreed with him, but I cannot find any political character inthe alleged offences. There is nothing to indicate that he acted as he did in order to force or even promote a change of government, or even a change of government policy, or to achieve a political objective of any kind. I do not say that every act done for such purposes would necessarily be of a political character, but without any such purpoise it could only be in some exceptional case which I cannot foresee that the act could in my view be said to be of a political character.

There is one other aspect, which I must mention, although I do not think that it affects this case. It was and is still thought that some governments treat as political offences, and punish more severely, acts which we would regard as ordinary crimes, if the guilty person is a political opponent of the government, or it may be for other reasons. The last part of s. 3 (1) --

"the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character"

-- may refer to cases of that kind. But there is not the slightest suggestion in this case that anything of that kind could apply to the government or the courts of Israel.

For the reasons which I have given I am of opinion that none of the offences with which the accused is charged has been shown to be of a political character. In my judgment this appeal should be dismissed.

Judgment Two:

VISCOUNT RADCLIFFE: My Lords, several points were argued before your Lordships on the hearing of this appeal: I do not think it necessary to deal with each of them separately, because, with one or two qualifications which I will notice, I agree with the way that they were dealt with in the judgment of LORD PARKER, C.J., in the Divisional Court. I have also had the advantage of reading in advance the opinion that will be delivered by my noble and learned friend LORD EVERSHED and I agree with the reasons that he gives for rejecting the evidence tendered in the supplementary petition except so far as it bears on the issue of "political offence".

I think it clear that in habeas corpus proceedings which arise out of a committal order under the Extradition Act, 1870, the court does not re-hear the case that was before the magistrate nor does it hear an appeal from his order. Its function, apart from considering any issue raised as to the offence charged being a political one, is to see that the prisoner is lawfully detained by his gaoler. I think that the distinction was accurately drawn by LORD RUSSELL OF KILOWEN, C.J., in Re Galwey n(4) when he said:

n(4) [1896] 1 Q.B. at p. 236.

"The prisoner then, having been taken into custody under the warrant of the chief magistrate, was brought before him, and we should, after the order of committal, be entitled to review the magistrate's decision, not in the sense of entertaining an appeal from it, but in the sense of determining whether there was evidence enough to give him jurisdiction to make the order of committal.... It seems to me that the only ground on which this habeas corpus can be successfully maintained is that the committal order was made without jurisdiction and was illegal."

The issue whether the offence charged is an offence of a political character raises, I think, different considerations. Having regard to the wording of s. 3 (1) of the Extradition Act, 1870, this issue must be regarded as introduced by way of a special condition peculiar to the Act, in the sense that it has nothing to do with ordinary committal proceedings not under the Act: and it seems to be the evident intention of the statute that the issue should be considered as a substantive matter at any stage by any authority, magistrate, court, or Secretary of State, which has a duty to perform in relation to the extradition. If it is so regarded, it seems to me proper to consider on its merits any evidence that is available at the time when consideration is required. I should not treat this procedure so much as depending on the court's duty to inquire into the magistrate's jurisdiction as on the special conditions laid down by the Act for the carrying out of an extradition request. Despite what was said to the contrary in Re Kolczynski n(5), to treat the court's independent review of the "political offence" question as a review of the magistrate's jurisdiction to commit would raise just the difficulty of the court's right to hear further evidence that was not before him that we meet in dealing with the rest of the evidence tendered in the supplementary petition.

n(5) [1955] 1 All E.R. at p. 37; [1955] 1 Q.B. at p. 552.

I agree also with what is said by my noble and learned friend on the subject of the sufficiency of the evidence before the magistrate to make a valid prima facie case supporting the charges of child stealing and perjury on which extradition is sought, and I share his view that when the statute in question links "fraudulently" with "forcibly" as elements of the offence, "fraudulently" must involve the use of means of deceit just as "forcibly" involves the use of force.

That leaves me with some observations to make as to the argument that the extradition agreement between the United Kingdom and the State of Israel dated Apr. 4, 1960, does not cover an offence committed in that part of the city of Jerusalem which is in Israel's occupation and the argument that the offences charged are political offences or offences of a political character within the meaning of the Extradition Act, 1870.

The first of these two arguments is in my opinion insubstantial. In effect it amounts to saying that the words in art. 1 of the agreement "offences... committed within the territory of the one party" does not apply to offences committed within the Israeli-occupied part of Jerusalem, because the government of the United Kingdom, though recognising the de facto authority of the Israeli government in that area, does not recognise that it has sovereignty de jure. Territory, it is said, unless explicitly enlarged by sone special definition, can only refer to an area over which the contracting party concerned exercises a sovereignty which is acknowledged by the other party to the convention.

This is no more than a question of construing the word "territory" in this extradition agreement, and I do not feel any doubt that it covers the area of Jerusalem over which Israel exercises de facto authority recognised by the United Kingdom, the other contracting party. Extradition is a function of the international regard for the enforcement of law and order and, if a state is recognised by another state as having de facto authority in an area, I think that it would require clear words of exception to interpret an extradition agreement as excluding on the one hand its obligation to hand over fugitive criminals found within that area and, on the other, its right to claim the surrender of such criminals in respect of offences committed there. The difference between de facto and de jure recognition is after all essentially a difference between a provisional and a final decision: it does not bear on distinctions between the kinds of transactions in which the two states may engage. Both parties to the agreement must have known the Jerusalem situation at the time when it was made; there is no suggestion that the United Kingdom, while recognising Israeli authority de facto, acknowledges any sovereignty or any claim to sovereignty de jure over the area in any other international party; and I think that it is the inevitable conclusion that "territory" here includes whatever is under the state's effective jurisdiction. If, for instance, a British national were to suffer some outrage in the Israeli-occupied part of Jerusalem, the United Kingdom government would properly address itself to the government of Israel for investigation and, possibly, reress, because it would look to that government as responsible for the maintenance of law and order by virtue of its de facto authority. Extradition is, I think, based on similar considerations.

The remaining question is, what constitutes an offence of a political character for the purposes of the Act? I can clear the ground a little by saying that in my opinion the Act allows for no exception under this head unless it establishes the political nature of the very offence for which extradition is sought. In other words, neither the Secretary of State nor the court is entitled to inquire, under s. 3 (1), whether the requesting state is asking for extradition under one charge while really intending to try or punish the fugitive for another and different offence. The suggestion that there is this alternative ground of refusal, which was made by LORD RUSSELL OF KILLOWEN, C.J., in Re Arton (No. 1) n(6), has not been followed since and is due, in my view, to a misreading of the section. It has been pointed out that such a ground of refusal would amount to a finding that the requesting government did not intend to observe the conditions which, by virtue of s. 3 (2), it must have already accepted as binding on it, either by its municipal law or by the extradition treaty itself. That would be difficult and awkward enough: but *i think that the final argument against this construction is that it is inconceivable,

having regard to the way the legislature has tackled the questionof what I may call "colourable extradition" by inserting the requirements of sub-s. (2), that it could have intended at the same time to guard against it by authorising the very difficult and embarrassing investigation of motive which, it is suggested, the second limb of sub-s. (1) allows for. I do not think that it did. In my mind sub-s. (1) envisages two alternative ways of identifying a political offence -- one, a charge that on he face of it smakcs of the political, say, caricaturing the head of state or distributing subversive pamphlets, and the other, a charge wich, ostensibly criminal in the ordinary sense, is nevertheless shown to be political in the context in which the actual offence occurred. It is said by way of objection to this reading that none of the extraditable offences listed in Sch. 1 to the Act and introduced by s. 19 and s. 26 is political in the first sense and that therefore there would be no substance in the first suggested alternative. This objection is, I think, mistaken and arises from a misunderstanding as to the place and purpose of s. 3 in the scheme of the Act. It is designed as an introductory section, describing both for internal and external readers the basic principles onwhich extradition was to be allowed at all. It is not closely ingegrated with the sections that follow, whose function it is to provide procedure and machinery for regulating extradition in accordance with these conditions. The first limb of s. 3 (1) therefore makes it plain to all concerned that extradition is not to cover politcal offences, and in fact s. 7 gives the Secretary of State an overriding power, efore there is any question of taking evidence before a magistrate, o refuse a request for extradition if he takes the view that the offence concerned is one of a political character. Consistently with this idea, the list of extraditable offences is drawn up, when the Act comes to them, so as to exclude offences that are on their face political and as such are barred under the first limb. But the fact that the list is in this form does nothing, in my opinion, to show in what sense the opening words "offence of a political character" are used in s. 3 (1), nor for that matter does the form of the list in itself afford any guarantee that other states, applying for extradition,w ill always confine the wording of their requests to exact compliance with the contents of Sch. 1.

n(6) [1896] 1 Q.B. at p. 114.

What, then, is an offence of a political character? The courts, I am afraid, have been asking this question at intervals ever since it was first posed judicially in 1890 in Re Castioni n(7), and no definition has yet emerged or by now is ever likely to. Indeed, it has come to be regarded as something of an advantage that there is to be no definition. I am ready to agree in the advantage so long as it is recognised that the meaning of such words as "a political offence", while not to be confined within a precise definition, does nevertheless represent an idea which is capable of description and needs description if it is to form part of the apparatus of a judicial decision.

n(7) [1891] 1 Q.B. 149.

Generally speaking, the courts' reluctance to offer a definition has been due, I think, to the realisation that it is virtually impossible to find one that does not cover too wide a range. This is seen in the very full consideration that was given to the question in Re Castioni n(8) particularly when counsel for the applicant's argument n(9) in that case is set against the subsequent observations of the three judges who decided it, DENMAN, HAWKINS and STEPHEN, JJ. It was recalled that during the debate of 1866 that preceded the Extradition Act, John Stuart Mill, then a member of the House of Commons, had suggested as a definition n(8) [1891] 1 Q.B. 149.

n(9) [1891] 1 Q.B. at p. 153.

"any offence committed in the course of or furthering of civil war, insurrection, or political commotion",

STEPHEN, J., himself had offered the view in his HISTORY OF THE CRIMINAL LAW OF ENGLAND, Vol. 2, p. 71, that political offences comprised only those crimes that were "incidental to and formed a part of plitical disturbances." The court was unanimous in holding Mill's definition to be altogether too wide. The offender must be at least politically motivated. STEPHEN, J., despite his reverence for his late friend Mr. Mill, thought that in this instance Mill had made a mistake and attributed it to the philosopher being unaccustomed to use language with the degree of precision required of a parliamentary draftsman. Speaking as a war-weary veteran in that field he observed n(10) that in drafting Acts it is not enough to attain to a degree of precision which a person reading in good faith can understand: it is necessary to attain, if possible, such a degree of precision that a person reading in bad faith cannot misunderstand. Both he and HAWKINS, J., therefore adhered to the explanation that he had offered in his HISTORY, HAWKINS, J. n(11), saying that he thought it as a definition n(10) [1891] 1 Q.B. at p. 167.

n(11) [1891] 1 Q.B. at p. 166.

"... the most perfect to be found or capable of being given as to what is the meaning of the phrase which is made use of in the Extraditin Act." This was high praise, but of course it still left a considerable area open to debate as to the significance of "political" in this setting, and as to the nature of the conflict that amounts to a disturbance. Moreover, DENMAN, J., offered a reading of the words which, without affecting to be a definition, nevertheless seems to contemplate a rather larger ambit for "political offence". DENMAN, J., said n(12):

n(12) [1891] 1 Q.B. at p. 156.

"I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder..., it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the state as to which is to have the government in its hands..."

Of this at least it can be said that it does not fall into the error of confining the meaning of the statutory phrase within any rigid definition.

This idea of relating a political offence to a struggle between contending parties for control of the source of political power was adopted a year or two later by CAVE, J., when giving the judgment of the court in Re Meunier n(13). Meunier was an anarchist and suffered the misfortune of his negative creed in that he was not protected from extradition to stand trial for a bomb outrage. CAVE, J., said n(14):

n(13) [1894] 2 Q.B. 415.

n(14) [1894] 2 Q.B. at p. 419.

"It appears to me that, in order to constitute an offence of a political character, here must be two or more parties in the state, each seeking to impose the government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not."

There, in effect, the matter has rested. I do not think that anything that has been said since in other cases has thrown much additional light on the meaning of the crucial words. They came up for consideration recently in Re Kolczynski n(15), but the decision seems to me only to show that the courts are unwilling to treat what was said in Re Castioni n(16) as laying down any exhaustive definition of the meaning of "political offence." Certainly, it would have been difficult to decide in favour of the fugitive in that case, if it were always necessary to find a "disturbance" in being, reflecting an uprising, insurrection or other struggle for state power. On the other hand, if, as I think, the idea of "political offence" is not altogether remote from that of "political asylum", it is easy to regard as a political offence an offence committed by someone in furterance of his design to escape from a political regime which he has found intolerable. I have no criticism to make of the decision in Re Kolczynski n(15), but the grounds on hich it was decided are expressed too generally to offer much useful guidance for other cases in the future.

n(15) [1955] 1 All E.R. 31; [1955] 1 Q.B. 540.

n(16) [1891] 1 Q.B. 149.

In my opinion the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of Re Castioni n(16) and Re Meunier n(17) when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connexion. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugitive and requesting state is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country, and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by hese contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders.

n(16) [1891] 1 Q.B. 149.

n(17) [1894] 2 Q.B. 415.

In my opinion, the offences charged against the appellant do not come within the conception of offences of a political character. If the charges are made good, what he has done is to involve himself in a family quarrel, taking the side of his father against that of his sister and her husband. Since, at this stage at any rate, he has offered no explanation of his actions, the inference is that the child-stealing and perjury alleged were committed in order to further the purposes of his father and the beliefs to which his father is committed. Those beliefs are, it seems, concerned with religious, educational, social principles, and they are, no doubt, matters of acute controversy in the State of Israel. Moreover, parties, though not particularly political parties, divide on these issues and they have political implications. This case has evidently become to some extent a political issue; but the evidence does not suggest that the appellant's offences, if committed, were committed as a demonstration against any policy of the government of Israel itself, or that he has been abetting those who oppose the government. What he is said to have done is much more ascribable either to filial piety or to an independent wish to take his father's side in the quarrel. Indeed, from what I can learn from the evidence, which is unavoidably vague in a matter of this kind, the government of Israel is not, either currently or generally, formed on a straight division between the orthodox and the non-orthodox Jew and, as Mr. Ade Efrat said in his affidavit in the magistrate's court,

"the bringing up of children is not a matter of government policy... Part of the opposition, and also part of the government, consists of very orthodox Jewry."

Nothing in the rest of the evidence contributed by Bishop Stewart, Mr. Eden, Mr. Marmorstein and Mr. Kugler contradicts this general summary.

For the reasons that I have given I would dismiss the appeal.

Judgment Three:

LORD EVERSHED: My Lords, the submission made, naturally and logically, first on the appellant's behalf, was that the sector of the ancient city of Jerusalem which has been occupied as part of the State of Israel ought not properly to be regarded as within the territory of Israel within the meaning of art. 1 of Sch. 1 to the Israel (Extradition) Order, 1960. The submission was founded on the language of the communication made by the British Foreign Office dated Oct. 4, 1961, and recited in the judgment of LORD PARKER, C.J. (18). From this communication it appears that although His Majesty's Government accorded de jure recognition to the State of Israel on Apr. 27, 1950, that recognition was so far qualified that His Majesty's Government did not recognise

"the sovereignty of Israel over that part of Jerusalem which she occupies, though, pending a final determination of the status of the area, they recognise that Israel exercises de facto authority in it."

So it was suggested on the appellant's behalf that the relevant part of Jerusalem must be treated, for the purposes of the Order of 1960 and of the agreement therein recited between the governments of this country and of Israel, as outside the territory of the latter. My Lords, on this matter I am fully content to adopt the conclusion and the reasoning of LORD PARKER, C.J. n(19). It is not in doubt that ever since 1950 the State of Israel has exercised to the fullest extent jurisdiction for all practical purposes over this part of Jerusalem. Therein are situated Israel's seat of government and its legislature, as also its Supreme Court -- in which the appellant in fact made the statements which are the foundation of the charge of perjury against him. I agree with LORD PARKER, C.J., that in the context of the order and the agreement, and of the Extradition Acts by virtue of which the order was made, the "territory" of any state must prima facie mean the area in which the jurisdiction of that state is practically and normally exercised; a view which, as LORD PARKER, C.J. n(19) observed, finds particular support in the language of s. 25 and s. 26 of the Extradition Act, 1870. It should also be noticed that although His Majesty's Government in 1950 felt unable to recognise the de jure sovereignty of Israel over the relevant part of Jerusalem there was and is no suggestion that such sovereignty resided or resides in some country other than Israel. Moreover, as LORD PARKER, C.J., also observed n(20), a contrary conclusion would inevitably render the operation of the agreement wholly one-sided and absurd if not, indeed, entirely ineffective.

n(19) [1962] 2 All E.R. at pp. 180, 181.

n(20) [1962] 2 All E.R. at p. 181.

The next question to be considered was that presented by the appellant's supplementary petiton, namely, whether or to what extent it was competent or proper for your Lordships to look at certain further evidence, which had come into the appellant's possession since the hearing before the Divisional Court. The purpose and effect of the additional evidence was, first, to discredit the evidence on which the magistrate had reached his conclusion and, second, to supplement the evidence which was before the magistrate to the effect that the crimes of which the appellant has been charged are of a political character and therefore, by the terms of s. 3 (1) of the Extradition Act, 1870, and likewise by the terms of art. 6 of the agreement between the governments of the United Kingdom and of Israel, such as to disqualify the magistrate from making any order for committal in respect thereof.

Your Lordships were informed that the evidence under the first head consisted of other statements made by those whose affirmations had been before the magistrate, tending to contradict them; and also evidence showing that the circumstances in which the affirmations were made were such as to discredit them. On this part of his case counsel for the appellant urged before your Lordships that the government of Israel, as the requesting party for the appellant's extradition, was in the same position as the Crown in any prosecution in this country; that is to say, was bound to bring before the court any evidence or information in its possession favourable to the case of the accused. Although, therefore, it was not positively suggested that the government of Israel had withheld or concealed the fresh evidence, nevertheless it was urged that on the general principles applicable to a prosecution in this country such further evidence should be received by your Lordships.

Counsel for the government of Israel did not oppose the reception of this part of the evidence by your Lordships provided that your Lordships read also certain further sworn statements prepared on the government's behalf since the presentation of the supplemental petition. Counsel for the Governor of Brixton Prison, however, submitted that on well-established principle and authority such further evidence could not be received by your Lordships. It is not in doubt that counsel was entitled to be heard on this matter, the governor of the prison being a respondent to the appeal and having the appellant in his custody by the order of the magistrate.

In considering this question it cannot be in doubt that the jurisdiction and duties of your Lordships are by s. 1 (4) of the Administration of Justice Act, 1960, the same as those of the Divisional Court, and I think it clear that the jurisdiction and functions of the Divisional Court in such a case as the present rest on authority which has long been accepted. I am content to refer to the two cases of R. v. Governor of Holloway Prison, Ex p. Siletti n(21) and of R. v. Governor of Brixton Prison, Ex p. Perry n(22) twenty-two years later. Both were cases of fugitive ofenders under the Extradition Acts and in both the attempt was made, but rejected, to review the decision of the magistrate, on an application for habeas corpus on the part of the person committed, by reference to fresh evidence produced since the date of the committal order. In the earlier case BIGHAM, J., after observing that the right to apply by way of habeas corpus was a common law right expressly made available to the committed person by the Extradition Acts, held that the right and competence of the court to have regard to such fresh evidence were limited to cases where such evidence went to the question of the magistrate's jurisdiction at the date of the committal order; by showing, for example, that the crime charged was outside the scope of the extradition agreement as being of a political character or otherwise not comprehended in the crimes enumerated in the agreement; or by showing that there was in truth no evidence at all to justify the magistrate's exercise of his discretionary jurisdiction to commit. In the same case DARLING, J., pointed out that the principle applicable was the same as that applicable to a case of committal by justices for trial on indictment in this country and that in neither case was the function of the Divisional Court that of an appellate court from the magistrates' decision or of a court hearing an application for a new trial. In the second case (that of Ex p. Perry n(23)) the reasoning of the court in Ex p. Siletti n(24) was affirmed, the judges expressing themselves as unwilling to accept certain obiter dicta inclining to a different view in Re Castioni n(25).

n(21) 1902), 71 L.J.K.B. 935.

n(22) [1923] All E.R. Rep. 182; [1924] 1 K.B. 455.

n(23) [1923] All E.R. Rep. 182; [1924] 1 K.B. 455.

n(24) (1902), 71 L.J.K.B. 935.

n(25) [1891] 1 Q.B. 149.

My Lords, I cannot doubt that the reasoning in Ex p. Siletti n(24) and Ex p. Perry n(23) is well founded and should be accepted. As was observed by LORD PARKER, C.J., in the present case n(26), it must be assumed by the courts of this country that one who is extradited to Israel under the agreement between the governments of the United Kingdom and Israel will be in Israel fairly and properly tried on the charges made against him. It follows, therefore, in my opinion, that the analogy is a true one between a committal by a magistrate in such a case as the present and a committal by justices for trial on an indictment in this country, and it cannot be suggested that in the latter case there is in the Divisional Court, or in your Lordships' House, any competence or duty to review the exercise of the magistrate's jurisdiction, if the proceedings before him were regular in form and practice and the subject-matter was one within the magistrate's jurisdiction. The principle applicable is of long standing, and is the same and necessarily the same as that to be applied wherever final jurisdiction is conferred on the magistrate's court -- see particularly the judgment of LORD DENMAN, C.J., in R. v. Bolton n(27), a case of an application for certiorari to quash an order of justices for delivery of a house to parish officers under the statute 59 Geo. 3 c. 12.

n(23) [1923] All E.R. Rep. 182; [1924] 1 K.B. 455.

n(24) (1902), 71 L.J.K.B. 935.

n(25) [1891] 1 Q.B. 149.

n(26) [1962] 2 All E.R. 176.

n(27) (1841), 1 Q.B. at p. 71.

It may sometimes be a nice question whether the fresh evidence goes in truth to the magistrate's jurisdiction, but your Lordships have been referred to no reported case in which fresh evidence has been received for the purpose merely of impeaching the magistrate's decision on the facts which were before him. It would, therefore, in my judgment, be contrary to well-established principle for your Lordships to allow the receipt of such evidence in such a case as the present on the ground suggested by counsel for the appellant. I add that in a case such as the present it is not to be forgotten that the man charged has the additional protection of the discretion of the Secretary of State under s. 11 of the Extradition Act, 1870. Although, as I think, your Lordships have no competence to receive fresh evidence with a view to showing that the magistrate's decision might or should have been other than it was, it is no less clear that such fresh evidence may and should be weighed by the Secretary of State in whose power it is, if he thinks proper in the exercise of his discretion, to decline to order the extradition of the person charged.

I have so far confined myself to what I earlier called the first head of the appellant's submission on the supplementary petition, that is, in regard to the fresh evidence submitted otherwise than in relation to the question whether the crimes with which he has been charged are "of a political character". It will, however, follow from twhat I have said that in so far as such fresh evidence is related to the alleged political character of the crimes charged, it goes not to the question of the magistrate's exercise of his discretionary powers and duties but to his jurisdiction. It follows that your Lordships are both competent and bound to receive such fresh evidence as tends to show that the crimes here charged were of a political character and therefore altogether outside the scope of the agreement between the respective governments of the United Kingdom and Israel. To that extent, therefore, but to that extent only, I think that your Lordships were entitled and bound to receive and consider the fresh evidence and rightly allowed the supplementary petition for such purpose. Your Lordships have accordingly read, in addition to the evidence that was before the magistrate and the Divisional Court, the statement of a Mr. Kugler, but have done so only on the question whether the crimes here charged are of "a political character" as that phrase is used in the Extradition Act, 1870, and the United Kingdom and Israel extradition agreement. In the circumstances I find it convenient to express my view next on that question.

It appears not at all to be in doubt that both the appellant and his father, the grandfather of the boy Yossele, are fervent adherents of what is called Jewish orthodoxy, and that such adherence is the reason for the grandfather's sustained refusal to hand over the boy to his parents notwithstanding the orders of the Israeli High Court of Jan. 16 and Feb. 10, 1960 -- on the ground that to do so would expose the boy to the evils of apostasy and of an education not proper for an orthodox Jew. It appars also from the evidence that the orthodox Jews -- and the epithets "fanatical" and "bigoted" were used and adopted by counsel for the appellant in respect of them -- find themselves, by reason of their religious beliefs, generally opposed to the Mapai and other leading political parties in the state and, indeed, to all forms of secular government. It may, finally, be taken from Mr. Kugler's statement that the orthodox Jews are considerably organised in the promotion of their views, and (more particularly for present purposes) were so organised in the steps taken by the boy's grandfather and those co-operating with him to save the boy from apostasy; and to that end, where necessary, a defiance of the laws of the state was, in the view of those persons, justified by divine command. So it was contended by counsel for the appellant that the religious fanaticism of the orthodox Jews was so necessarily and inevitably involved with politics (that is, in resistance to the government and the laws of the land) that the crimes here charged, being expressions of the religious tenets of the orthodox Jews, were, no less necessarily and inevitably, crimes of "a political character".

My Lords, I find myself, with LORD PARKER, C.J., unable to accept the submission, even when fortified by the additional material which your Lordships have received. It is no doubt true that religious faith may at times involve defiance of the laws and of government; but in my judgment the exception with which we are concerned, and which found expression in the Extradition Act, 1870, was not and cannot have been intended to have so wide and imprecise a scope. I agree with my noble and learned friends, LORD REID and VISCOUNT RADCLIFFE, in thinking that a proper construction of the formula calls for due regard to be had to the historical circumstances in which the Act of 1870 was passed, and that the exception was intended for the protection of those who had sought political asylum in this country from the repressions of their own countries. There can be no question in the present case of the crimes with which the appellant is charged having been committed "in the course of or furthering of civil war, insurrection, or political commotion", the suggested definition of John Stuart Mill cited by counsel for the applicant in his argument, but regarded by all the judges as too wide in Re Castioni n(28). I do not myself attempt any definition. But it is at least clear from the evidence that the government of Israel, so far from having attempted a forcible suppression of the orthodox Jews, has from time to time made concessions to their tenets. I am content, therefore, to say that the formula with which we are concerned cannot extend to cover the crimes here charged which, if committed, were, at most, the expression and consequence of religious belief, and could not be called political within the meaning of the Act and the agreement merely because adherence to or pursuit of such faith might at times call for a disregard or defiance of civil law. If those alleged to have co-operated in the removal of the boy to the Komemiyut Settlement had committed a robbery, say, on a bank in order to provide themselves with funds for the boy's maintenance, it would in my opinion be no more proper or appropriate to treat the robbery as a crime "of a political character" than it would so to treat the crime with which the appellant has here been charged.

n(28) [1891] 1 Q.B. 149.

On the difference of view on the language of s. 3 (1) of the Extradition Act, 1870, between LORD RUSSELL OF KILLOWEN, C.J., in Re Arton (No. 1) n(29) and LORD GODDARD, C.J., in the so-called Polish Seamen's case n(30), I do not dissent from the opinion of my noble and learned friend VISCOUNT RADCLIFFE (30a) supporting the conclusion of LORD PARKER, C.J. But, as it seems to me, the question on which the divergence of view arose does not in truth call for determination in the present case because it has not been suggested, in any event before us, that the appellant, if extradited to Israel, would there be tried or punished for any offences other than those with which he has now been charged.

n(29) [1896] 1 Q.B. at p. 114.

n(30) Re Kolczynski, [1955] 1 All E.R. 31; [1955] 1 Q.B. 540.

n(30a) See p. 538, letter C, ante.

There remains only the question whether on the evidence before him there was justification for the magistrate's committal of the appellant on the two charges of perjury and child stealing which, if they are not crimes "of a political character", are admittedly, as crimes, within the ambit of the extradition agreement between the United Kingdom and Israel. On this question it is, I apprehend, necessary to have two things in mind; first, that your Lordships are concerned not with a conviction but with a committal; and, second, that the Divisional Court having affirmed the magistrate's order your Lordships would be slow to express a different conclusion on what are, essentially, matters of fact.

I take first the alleged perjury. If the evidence of Shlomo Kot, Rachel Kot and Reuben Kot is true, it cannot be in doubt that the appellant was actively assisting his father in withholding the boy Yossele from his parents, and that some two or three weeks after a date which is accepted as being Jan. 1, 1960, the appellant personally took the boy to the Komemiyut Settlement and saw him there afterwards on some two occasions before he was removed therefrom. But in an affidavit made before the High Court of Israel on Feb. 25, 1960, the appellant swore: "I am not assisting or encouraging my parents or one of them in any decision whatsoever concerning... the boy." Further, according to the testimony of one Sergeant Tischler which was before the magistrate, the appellant in the course of giving sworn evidence before the same High Court on May 12, 1960, stated that he had not seen the boy after Jan. 1, 1960, though he is recorded in certain notes produced by him as later adding: "I do not remember whether I spoke to the child between" dates which covered (as I understand) the month of January and the first ten days of February, 1960.

I take the proper test to be the test which was accepted by LORD PARKER, C.J., namely, that there must be before the magistrate such evidence that, if it be uncontradicted at the trial, a reasonably minded jury may convict on it. Applying this test it cannot, as it seems to me, be seriously suggested that, on the facts as I have stated them, there was not before the magistrate evidence on which in the proper exercise of his discretion he could, on the charge of perjury, commit the appellant. I leave for consideration on the charge of child-stealing the point made by counsel for the appellant that the evidence of the Kots ought to have been rejected as being that of accomplices; for, with

LORD PARKER, C.J. n(31), I find some difficulty in seeing how the Kots could in any case be regarded as accomplices on the perjury charge. And I am comforted on this part of the case by the fact that, apart from its being a political crime, counsel for the appellant did not address much argument on this charge before your Lordships. I only add that, like LORD PARKER, C.J., I cannot regard the last alleged statement of the appellant according to the notes produced by the appellant, which I have already cited, as relevantly qualifying what he had, according to Sergeant Tischler's evidence, earlier stated.

n(31) See [1962] 2 All E.R. at p. 185.

I come finally to the child-stealing charge. The offence is defined by s. 188 of the Israeli Criminal Code Ordinance, 1936, in the following terms, so far as relevant:

"Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years, of the possession of such child: -- (a) forcibly or fraudulently takes or entices away, or detains the child... is guilty of a felony."

There follows a proviso:

"It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child."

The section raises difficulties of construction on which counsel for the appellant fastened; but it will be useful first to state what, if the evidence of the Kots be true, were the relevant facts. According to that evidence the appellant at some date about two or three weeks after Jan. 1, 1960, arrived with the boy at the Komemiyut Settlement and handed him over to Shlomo Kot. The appellant then stated that there was a dispute as to the upbringing of the boy between his father and mother which rendered it desirable that the boy should for a short period have asylum at the settlement. The appellant gave the boy's name as Israel Hazan. The appellant and the boy were identified by all three Kots by means of photographs.

So much for the evidence of the Kots. It is not in doubt that on their arrival in Israel in 1957 the boy's parents, who were then without a home or occupation, handed the boy over, together with his sister, to the children's grandparents (the parents of the appellant and of the children's mother), but, having then substantially established themselves, demanded of the grandparents the return of the two children at some date in the latter part of 1959; whereupon the girl, but not the boy, was so returned. The parents then in January, 1960, took proceedings in the Israeli High Court against the grandparents, obtaining an order nisi on Jan. 16 calling on the grandparents to show cause why they should not bring the boy into court so that he might be dealt with as the court should direct. The grandparents justified their refusal to deliver the boy to the court on the religious ground already mentioned. On Feb. 10, 1960, the President of the High Court made the order nisi absolute, and in the course of his judgment stated that nothing had occurred which in the boy's interest deprived his father and mother of their natural right, as parents, to their own child. The grandparents maintained their refusal to comply with the orders of the court. Committal proceedings were accordingly instituted against the grandparents n(32), the appellant being also joined as respondent on the ground that he was actively aiding and abetting his father in disregard of the court's order. The grandfather was committed to prison, but no order was made against the appellant having regard to the evidence then given by him to which I have already alluded. But it is, in my judgment, impossible in all the circumstances to resist the conclusion on the whole of the evidence (including that of the Kots, if it be accepted) that the appellant was at least very well aware of the demands made for their son by his parents and of the parents' efforts to recover his possession.

n(32) The application against the grandmother was subsequently withdrawn; see [1962] 2 All E.R. at p. 183, letters B, C.

Counsel for the appellant submitted that the case none the less fell outside the scope and true interpretation of s. 188 of the Criminal Code. It was counsel's contention that at all relevant dates the grandparents still had -- or were at least entitled in good faith to claim that they had -- the right to possession of the child; at any rate that the boy's parents had not his lawful care and charge, so that the appellant could not be said to have had the intent to deprive them of the boy's "possession" within the meaning of the section.

My Lords, the language of the section may present some difficulties of interpretation. It may not be clear whether the phrase "who has the lawful care or charge of a child under the age of fourteen years" qualifies the word "parent". There is at least much to be said for the view that it does not. But even if it does I do not doubt that in the months of January and February, 1960, it was to the parents and not the grandparents that the "lawful care and charge" -- that is, as I understand the phrase, the right according to law to the care and charge -- of the boy belonged. In the absence of special circumstances I take it that by the law of Israel, as by the law of England, the parents of a child are regarded as prima facie entitled to his or her care and charge; and it is to be noted in this case that by the judgment of Feb. 10, 1960, the High Court of Israel had stated that nothing in the present case had occurred to deprive the boy's parents of their ordinary and natural right. It was pointed out in the course of the argument before your Lordships that the word "possession" may not be entirely apt as regards a child. But in the context of the section, including the proviso, I cannot doubt that by the phrase "to deprive any parent... of the possession of such child" is meant and intended "to deprive any parent of the right which he has at law to the custody of the child". I therefore, for my part, entirely agree with the Divisional Court in thinking that on the evidence, including that of the Kots (if accepted), there was ample justification for the magistrate's view that the appellant by his conduct had intended to deprive the boy's parents, who had at the relevant dates the lawful care or charge of him, of their "possession" of the boy, within the meaning of the section.

There remains the qualification implied by the adverb "fraudulently". I am unable to accept the view that the word means no more than "with intent to prejudice the parents' rights". In my opinion, the word inevitably involves the use of deceit whether practised on the child or on any other person. In this respect the word must have, as it seems to me, the same significance as the phrase "by fraud" in s. 56 of the (English) Offences against the Person Act, 1861, and should be construed by your Lordships in the same sense (see R. v. Bellis n(33)). But on the facts of the present case, if the evidence of the Kots is true, there can be no doubt of the appellant's deceit. He told the Kots that there was a dispute as regards the boy's upbringing between his father and mother -- a statement which, if the evidence be accepted, he must have known to be quite untrue. It is difficult to resist the conclusion that the appellant made the statement in order to lead or deceive the Kots into a ready acceptance of the boy. Again, on the same evidence, the appellant gave to the boy, deliberately, a false name. The inference I think to be no less obvious.

n(33) (1893), 17 Cox, C.C. 660.

My Lords, for the reasons which I have given I can feel no doubt that on the evidence before the magistrate there was justification for his order for committal on the charge of child stealing. There remains, however, the point most strongly pressed by counsel for the appellant, namely, that the evidence of the Kots was so tainted as evidence of accomplices that it should not have been accepted. True it is that all those witnesses had been arrested on charges in connexion with the boy Yossele, and of them only Rachel had been released on bail, when their affirmations were made; but they had not, at the date of their affirmations, been formally charged still less had they been convicted -- nor have they since been convicted. My Lords, I venture to recall what I earlier observed -- that we are here concerned with a committal not a conviction; and I know of no rule which would disable a magistrate in such a case as the present from paying regard to the evidence of the Kots in the proper exercise of his jurisdiction. It follows, in my opinion, that there was before the magistrate evidence which, on the application of the test already noticed, sufficed to justify his order and that no adequate ground has been shown on which your Lordships could reverse the conclusion of the Divisional Court in supporting that order. It remains for the Secretary of State to weigh independently all the matters to which counsel for the appellant has so forcibly alluded, and also (as I have earlier stated) to consider the fresh evidence which your Lordships have felt to be outside their powers to receive.

My Lords, I would dismiss this appeal.

Judgment Four:

LORD JENKINS: My Lords, I agree that the appeal should be dismissed.

Judgment Five:

LORD HODSON: My Lords, on this appeal from the Divisional Court the appellant, now detained in H.M. Prison at Brixton, seeks a writ of habeas corpus. He is detained in pursuance of a warrant of committal dated Jan. 12, 1962, awaiting delivery to the State of Israel pursuant to the Extradition Acts, 1870 to 1935.

The charges on which he was committed were:

"(1) Perjury for that he on May 12, 1960, during proceedings in an application in the High Court of Justice of Israel knowingly gave false evidence touching a matter material in those proceedings contrary to s. 17 of the Criminal Code Ordinance, 1936.

"(2) Child stealing: (a) on a date between Jan. 1 and Feb. 15, 1960, with intent to deprive Alter and Ida Schuchmacher of their son Joseph (born in 1952) fraudulently detained him in the house of Shlomo Zalman Kot at Komemiyut, contrary to s. 188 of the said ordinance."

A further charge of wrongfully confining Joseph knowing that he was an abducted person is no longer material. The offences are extraditable under an agreement concluded on Apr. 4, 1960, between H.M. Government in the U.K. and the Government of the State of Israel to which the Extradition Acts were made to apply by an Order in Council entitled the Israel (Extradition) Order, 1960.

A preliminary point was taken that since the perjury is alleged to have been committed in Jerusalem and the depositions in the case on all charges were taken in Jerusalem this city not being part of the territory of Israel the Extradition Acts have no application, the position being that Her Majesty's Government recognises that Israel exercises de facto (not de jure) authority in that part of the city which is occupied by the State of Israel. I agree with LORD PARKER, C.J., and with your Lordships that in its context the word "territory", where it appears, includes territory over which H.M. Government recognises that Israel exercises de facto authority, and that so far as extradition is concerned as between Israel and the United Kingdom no distinction is to be drawn between the conceptions de jure and de facto.

The facts giving rise to the charges may be summarised as follows:

Mr. and Mrs. Schuchmacher, have two children, Zina, now aged about fifteen and Yosef or Yossele, now aged about ten. About 1957 the parents left the two children in Jerusalem in charge of the mother's parents, Nachman and Miriam Schtraks. This was a temporary measure due to the difficulties the parents had in making a living and having to change their home. In due course the daughter was returned but when, about September, 1959, the mother asked for her son, the grandfather, Nachman Schtraks, refused to return him giving the reason that if he did so Yossele would not be given the education proper to an orthodox Jew. It was contended by the grandparents that it was in the interests of Yossele to remain with them, that he wished to do so and that they feared lest the parents would emigrate and take him to Russia. On Feb. 10, 1960, the grandparents were ordered to hand over Yossele to his parents by Feb. 15. The whereabouts of Yossele were not disclosed and the order was not complied with. Contempt proceedings were brought by the parents against the grandparents and in those proceedings the appellant, Shalom Schtraks, son of the grandparents and uncle of Yossele, was joined as having encouraged the grandparents to withhold the boy in defiance of the order. In those proceedings the appellant gave evidence to the effect that he had not seen Yossele since Jan. 1, 1960, and no order was made against him, but the grandfather was committed to be imprisoned until he had handed over the boy. On May 23, 1960, the appellant came to this country. Meanwhile, the police in Israel made extensive searches and inquiries and in the course of them, in August, 1961, arrested three persons who lived at Komemiyut Settlement about thirty miles from Jerusalem. These were Shlomo Kot, Rachel Kot, his wife, and Reuben Kot, his brother. All three made affirmations to the effect that after Jan. 1, 1960, a young man and a small boy whom they identified from photographs as the appellant and Yossele had come to the settlement. The effect of their evidence is that the appellant was concealing Yossele and calling him by a false name at a time when according to the appellant's sworn evidence he had not seen Yossele at all.

Before considering the two charges in detail your Lordships were asked to receive further evidence which had come into the appellant's possession since the hearing before the Divisional Court. So far as this further evidence was tendered in order to contradict or discredit the evidence given before the magistrates the evidence is clearly inadmissible. Proceedings by way of habeas corpus are not appeal proceedings and counsel for the governor of the prison rightly submitted that fresh evidence can only be received to show lack of jurisdiction in the magistrate ab initio and in some cases to cure a technical defect in the proceedings with this exception, that under s. 3 (1) of the Extradition Act, 1870, evidence is admissible to prove the political character of the crime or to prove that the requisition for the surrender of the fugitive has in fact been made to try or punish him for an offence of a political character.

Proceedings by habeas corpus are analogous to those by certiorari to remove a conviction: see SHORT AND MELLOR'S CROWN PRACTICE (1908), p. 319. Affidavits are not admissible to controvert facts found by the judgment of a court of competent jurisdiction, though they may be received to show some extrinsic collateral matter essential to jurisdiction or to show total want or excess of jurisdiction. With regard to summary committals by justices it may very well be assumed that the same principles will be applied as on seeking to quash an order by certiorari, see SHORT AND MELLOR, p. 328. The truth or falsity of the charge does not determine the jurisdiction and the decision of the inferior court cannot be questioned, see the judgment of LORD DENMAN, C.J., in R. v. Bolton n(34). Committal under the Extradition Act is on the same footing as committal for trial by a magistrate in an ordinary case and, indeed, before 1848, habeas corpus would be used in ordinary cases coming before a magistrate.

n(34) (1841), 1 Q.B. at pp. 71, 72, 73.

Re Galwey n(35) is an example of an application for habeas corpus under the Extradition Act. There LORD RUSSELL OF KILLOWEN, C.J., said:

n(35) [1896] 1 Q.B. at p. 236.

"... we should, after the order of committal, be entitled to review the magistrate's decision, not in the sense of entertaining an appeal from it, but in the sense of determining whether there was evidence enough to give him jurisdiction to make the order of committal: I mean evidence of the offence and of other necessary conditions for the application of the Act when the chief magistrate made the order of committal under which the prisoner is now in custody. It seems to me that the only ground on which this habeas corpus can be successfully maintained is that the committal order was made without jurisdiction and was illegal."

In R. v. Governor of Holloway Prison, Ex p. Siletti n(36) further evidence which might have affected the magistrate's decision was not admitted and the sense in which the word jurisdiction is used was explained by DARLING, J. BIGHAM, J., said n(37):

n(36) (1902), 20 Cox, C.C. 353.

n(37) (1902), 20 Cox, C.C. at p. 357.

"... the only question which this court can entertain is the question of jurisdiction and applying that observation to this particular Act all that the the accused person may say is that the crime with which he was charged was not a crime within the meaning of the Extradition Act, that is to say that it did not come within the class of offences contemplated or that it was an offence of a political character and therefore was outside the Act altogether. He may also say that there was absolutely no evidence upon which the magistrate could exercise his discretion as to whether he would commit or not. These things he may say: but I am clearly of opinion there is one thing he cannot say, namely that there is evidence one way and the other and that this court ought to enter into the consideration as to whether that magistrate has exercised his discretion as to it properly. That he cannot say."

The learned judge then went on to express his doubt as to some of the observations of DENMAN and HAWKINS, JJ., in Re Castioni n(38), which appeared to him, as they do to me, to be out of line with settled authority on this topic. These observations were obiter dicta and lend but slender support to the appellant's argument in this case. DARLING, J., said in the course of his judgment n(39):

n(38) [1891] 1 Q.B. 149.

n(39) (1902), 20 Cox, C.C. at pp. 357, 358.

"Jurisdiction is not quite the right word to use... It is used to cover want of jurisdiction in the magistrate -- that is, want of that which would properly be called jurisdiction. It is also used to cover the case of there being no evidence against the accused at all... in such a case as that this court would go into the matter and on ascertaining that there was no evidence would make the rule absolute for habeas corpus."

The appellant on this part of the case places reliance on a decision of the Privy Council (not strictly speaking of binding authority) in Kossekechatko v. A.-G. for Trinidad n(40), where on appeal to the Privy Council a piece of evidence was admitted in the prisoner's defence which had not been previously available. I do not know how this evidence came to be admitted. The case was argued on the footing that there was no evidence that the conviction of any of the appellants would have been possible under French law unless the crimes of which they had been convicted had in fact been committed in French territory. The appeal succeeded on this submission (which went to jurisdiction) being accepted, and in looking at an affidavit of a French lawyer as they appear to have done the Board of the Privy Council did no more than remove a doubt which had already been resolved in favour of the prisoner. The appellant also relies on certain cases wherein the Crown has been allowed to cure a technicality or fill a lacuna which, while it remained uncorrected or unfilled, would prima facie give the prisoner a right to the writ although it would avail him little since he could be re-arrested and the technicality corrected or the gap in the prosecution's case filled without difficulty. Examples of such cases are R. v. Governor of Brirton Prison, Ex p. Percival n(41), R. v. Governor of Brixton Prison, Ex p. Servini n(42) and Re Shuter n(43). These decisions are, I think, justified on the basis that habeas corpus is not granted on a mere technicality. In Ex p. Servini n(44) BAILHACHE, J., who doubted the propriety of refusing the writ, said:

n(40) [1932] A.C. 78.

n(41) [1907] 1 K.B. 696.

n(42) [1914] 1 K.B. 77.

n(43) [1959] 2 All E.R. 782; [1960] 2 Q.B. 89.

n(44) [1914] K.B. at p. 86.

"... I have no doubt that they [the other members of the court] are right in saying that the writ ought not necessarily to issue where the court is satisfied that although the applicant may not be quite regularly in custody yet substantially and on the merits he is properly in custody." The appellant naturally contends that when he asks for further evidence in this case his application ought to be favourably considered, since the demands of justice will not be met if lacunae can be filled on the application of the requesting government and not for the accused. I accept the logic of this argument but remain of the opinion that these cases do not justify any further inroad on the general rule that there cannot be in these cases a re-consideration of evidence one way and the other.

I am of the opinion that fresh evidence as to the guilt of the accused cannot properly be received.

What I have said earlier applies to the criticisms which have been levelled at the character and position of the witnesses, the three Kots. The magistrate did not exceed his jurisdiction in receiving their evidence even if the witnesses were in prison when they made their declarations, so that they may have had an inducement to give evidence against the appellant so as to secure their own release. Similarly he did not exceed his jurisdiction whether or not any of them turn out to be accomplices and for that reason witnesses whose evidence by our practice is not acceptable without a direction to the jury that they should not convict unless they think the evidence of the accomplice is corroborated. This is not to say that a case can be withdrawn from a jury for want of corroboration, or that a magistrate has no discretion whether the evidence is or is not sufficient to justify a commital: see Re Meunier n(45).

n(45) [1894] 2 Q.B. 415.

The appellant contends that, even as the matter stands, there was no evidence on which he could be committed on either of the charges, that is to say no evidence on which if uncontradicted at the trial a reasonably minded jury might commit. So far as perjury is concerned, I agree with what was said by LORD PARKER, C.J., in the Division Court n(46). There can be no question but that the alleged perjury was material to the issue being determined by the court when the evidence now said to be false was given. As to the supposed qualification of the untrue piece of evidence in that the appellant said: "I do not remember whether I spoke to the child between Hanukka and the trial", this is nothing to the point for if his first statement that he had last seen the child before Hanukka was deliberately untrue, there is no reason to assume that his second statement was any the less deliberately untrue.

n(46) [1962] 2 All E.R. at p. 186.

As to child stealing, I would refer to the words of s. 188 of the Criminal Code Ordinance which reads:

"Any person who, with intent to deprive any parent, guardian or other person who has the lawful care of charge of a child under the age of fourteen years, of the possession of such child: -- (a) forcibly or fraudulently takes or entices away, or detains the child; or (b) receives or harbours the child, knowing it to have been so taken or enticed away or detained; is guilty of a felony, and is liable to imprisonment for seven years.

"It is a defence to a charge of any of of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child or in the case of an illegitimate child is its mother or claimed to be its father."

If a defence is available to the appellant it does not arise at this stage of the proceedings but it was said that in any event there was no force or fraud. There was no question of force, but the word "fraudu-lently" is sufficiently satisfied by the evidence that the child was given a false name and concealed at the settlement at Komemiyut. It is unnecessary, and with all respect to LORD PARKER, C.J. n(47), I think wrong, to go further and say that the word fraudulently is equivalent to intending to prejudice the parents' right to possession. The appellant relies strongly on the word "possesson", saying that the child was not at any material time in the possession of his parents since he had been handed over to the grandparents in whose possession he was and against whom no offence was shown to have been committed. This contention is highly artificial and to my mind quite unacceptable. It is true that possession is not a very appropriate word to use in connexion with a child or any other person not in a condition of salavery, but it is used in corresponding Acts of Parliament in this country such as the Offences against the Person Act, 1861, and the Children and Young Persons Act, 1933, and a sensible meaning must be given to it, if possible. So far as parents are concerned possession cannot be limited to manual or physical possession. It may well be that where a person has the lawful care or charge of a child, the words "care or charge" carry the same meaning, so that a person who fraudulently detains a child with intent to deprive such person of their possession in the physical sense is aimed at by the section as well as a parent whose possession will often, if not always, be interrupted in the ordinary course of the child's life. The child may be in the care or charge of a master or tutor, servant, relation or friend, but this does not prevent the persistence of the parents' possession in reality, call it constructive possession if you will. In this case the child was placed with the grandparents by the parents as a temporary measure, and no suggestion is made that the parents sought at any time to renounce their authority over the child. To speak of the parents as having a right to possession is at the present time, perhaps, misleading for, although they have a right to assert their claim to their child's company by self help, once the courts intrvene, as they did in this case, the interests of the child are paramount and all claims based on so-called rights give way to these interests. This was clearly in the mind of the President of the High Court in Israel who in giving judgment on Feb. 10, 1960, in the custody proceedings, stated that the answer of the grandparents to the claim of the parents contained nothing calculated to satisfy the court that the interest of the child required the dismissal of the parents' claim. In my opinion there is no flaw in the charge of child stealing from the parents, since the possession of the parents was not brought to an end by the placing of their child with the grandparents.

n(47) [1962] 2 All E.R. at p. 187.

Lastly, it was argued that the offence with which the appellant is charged is of a political character. Evidence was admitted before the House to supplement that given before the magistrate in order to seek to show the political character of the offence with which the appellant is charged, at any rate so far as child stealing is concerned, it being contended that the matter has become a political issue in Israel and a symbol of importance in the contest which is taking place between the secular Jews, who form the majority of the present government, and the orthodox Jews who represent the idea of the theocratic state. The grandparents are said to be orthodox Jews and so is the appellant, and they, it is said, are taking a stand against the seculars represented by the parents who contemplated emigrating to Russia with the child and imperilling the right of the child to receive an orthodox religious education. The appellant himself gave no evidence in support of this contention, he having stoutly denied that he was guilty of any offence. Child-stealing is not on the face of it a political offence, and in my opinion it does not become so because political passions have been roused in and out of the Parliament of Israel (Knesset) in connexion with this particular incident. The additional evidence carried the matter no further than to show that these passions were strong and that members of the Knesset were concerned in them.

In Re Castioni n(48) it was pointed out in argument that Parliament in using the words "of a political character" had probably intentionally used a vague expression and that it seemed as if the legislature had purposely abstained from attempting to find an exhaustive definition, leaving it to the courts to decide in each case as it were whether the exceptions applied. The words of J. S. Mill were quoted as a suggested definition: "Any offence committed in the course of or furthering of civil war, insurrection, or political commotion". This seems to me to come near to the heart of the matter. HAWKINS, J. n(49), adopted the definition used by STEPHEN, J. (also a member of the court) in his HISTORY OF THE CRIMINAL LAW OF ENGLAND, Vol. 2, pp. 70, 71:

n(48) [1891] 1 Q.B. 149.

n(49) [1891] 1 Q.B. at pp. 165, 166.

"I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances." To the same effect is the judgment of DENMAN, J., in the same case n(50), also cited by LORD PARKER, C.J., in the Division Court.

n(50) [1891] 1 Q.B. at p. 156.

According to this test there must be either in existence or in contemplation a struggle between the state and the fugitive criminal. I prefer to adhere as closely as possible to the guidance which I find in Re Castioni n(51) in which judgments were delivered in 1890, not long after the passing of the first Extradition Act. It may be that cases will arise as in the Polish Seamen's case, Re Kolczynski n(52), where special considerations have to be taken into account. In some modern states polities and justice may be inextricably mixed, and it is not always easy, for example, to say what amounts to a revolt against the government. No special feature appears to exist in this case, and I find no substance in the contention that extradition should be refused because of the political character of the offences charged.

n(51) [1891] 1 Q.B. 149.

n(52) [1955] 1 All E.R. 31; [1955] 1 Q.B. 540.

I would dismiss the appeal.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Rubenstein, Nash & Co. (for the appellant); Herbert Oppenheimer, Nathan & Vandyk (for the government of Israel); Treasury Solicitor (for the Secretary of State for Home Affairs); Director of Public Prosecutions (for the Governor of Brixton Prison).

Copyright notice: Crown Copyright

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