R v Governor of Brixton Prison, Ex parte Schtraks (Schtraks, Ex parte, R v Governor of Brixton Prison, Schtraks v Government of Israel)

On habeas corpus following an extradition committal, the court determines whether the prisoner is lawfully detained. It does not hear an appeal or retry the evidential merits. Fresh evidence contradicting the committal evidence is therefore inadmissible.

The statutory political-offence exception is different. The court must determine that issue substantively on all material properly available to it, including new material. An offence has a political character where the fugitive is at odds with the requesting state on an issue connected with political control or government. A political or religious context, motive or controversy does not alone suffice.

In an extradition agreement, a state's territory may include an area over which it exercises effective jurisdiction recognised de facto, although its sovereignty is not recognised de jure.

The Government of Israel sought the appellant's extradition for perjury, child-stealing and a further offence. The allegations arose from his alleged assistance in concealing his nephew from the child's parents and from evidence subsequently given to the High Court of Israel.

The chief magistrate at Bow Street committed the appellant to prison to await extradition. The Queen's Bench Divisional Court dismissed his application for habeas corpus: [1962] 2 All ER 176. He appealed to the House of Lords.

The issues were whether the Israeli-occupied part of Jerusalem was within Israel's “territory” for the extradition arrangements; whether further evidence could be admitted on habeas corpus; whether the alleged offences were of a political character; whether the evidence justified committal; and whether the alleged conduct fell within the Israeli offence of child-stealing.

1. Disposition. The House unanimously dismissed the appeal and affirmed the refusal of habeas corpus.
2. Territory. Per Lord Reid, Viscount Radcliffe, Lord Evershed and Lord Hodson, “territory” in the Israel (Extradition) Order 1960 and the incorporated agreement included the part of Jerusalem in which Israel exercised effective jurisdiction. Recognition by the United Kingdom of Israel's de facto authority was sufficient. Recognition of de jure sovereignty was unnecessary in this context.
3. Nature of habeas corpus. Per Lord Reid, Viscount Radcliffe, Lord Evershed and Lord Hodson, proceedings following an extradition committal are neither an appeal nor a rehearing. The court asks whether the detention is lawful, including whether the magistrate had evidence giving jurisdiction to commit. It may not receive new evidence merely to contradict or discredit the evidence on which the magistrate acted. Such later evidence may instead be considered by the Secretary of State when exercising the discretion whether to order surrender.
4. Political-offence issue. Section 3(1) of the Extradition Act 1870 creates a special condition of extradition. On that issue the court determines the matter substantively and may consider material not before the magistrate. Per Lord Reid, Viscount Radcliffe, Lord Evershed and Lord Jenkins, the expression “offence of a political character” reflects the protection of political refugees and asylum. It requires a material connection between the fugitive's offence and opposition to the requesting state concerning political control or government. The court should describe, rather than exhaustively define, the category. A political motive or politically controversial setting is insufficient by itself. Lord Hodson reached the same conclusion while adhering more closely to the requirement of an existing or contemplated struggle between the state and the fugitive.
5. Application. The alleged offences arose from a family and religious dispute. Political and parliamentary controversy surrounding the child's upbringing did not turn the offences into acts opposing the Israeli Government or pursuing a relevant political objective. They were not offences of a political character.
6. Evidence and offences. The committal test was whether evidence standing alone at trial could be accepted by a reasonable jury properly directed and support a guilty verdict. That test was satisfied. Section 188 of the Israeli Criminal Code Ordinance 1936 extended to depriving parents of their lawful custody or possession of a child. “Fraudulently” required deceit, which the evidence of concealment, a false name and a false account was capable of establishing.

1. House of Lords: Appeal dismissed unanimously; the refusal of habeas corpus was affirmed: [1964] AC 556.
2. Queen's Bench Divisional Court: The court dismissed the appellant's application for a writ of habeas corpus following his committal for extradition: [1962] 2 All ER 176.
3. Chief magistrate at Bow Street: The appellant was committed to Brixton Prison to await extradition to Israel.