Cheng v Governor of Pentonville Prison

For an offence to be of a political character under section 3(1) of the Extradition Act 1870, the offender’s political purpose must be directed against the government or governmental policy of the state seeking extradition. A political motive directed solely against another state does not convert an ordinary crime committed within the requesting state into a political offence.

The inquiry concerns the relationship of political conflict between the fugitive and the requesting state. The offender’s wider purpose may be relevant, but it must be sufficiently immediate and directed towards changing that state’s government or policy, or escaping its jurisdiction for political reasons.

The appellant, a Taiwanese independence activist resident in the United States, was convicted there of attempted murder after assisting an attempt to shoot a visiting Taiwanese political figure. He fled before sentence and was later detained in England. The United States sought his extradition under the applicable bilateral arrangements.

The chief metropolitan stipendiary magistrate ordered his detention pending extradition. The Divisional Court refused habeas corpus: [1973] 1 All ER 935. The issue before the House was whether the attempted murder was an offence of a political character under section 3(1) of the Extradition Act 1870, although the appellant’s political struggle was directed against Taiwan rather than the requesting state.

1. By a majority of three to two, the appeal was dismissed. Lord Hodson, Lord Diplock and Lord Salmon held that the attempted murder was not an offence of a political character within section 3(1) of the Extradition Act 1870. Lord Simon of Glaisdale dissented, with Lord Wilberforce agreeing.

2. Per Lord Hodson, political character in the extradition context connotes opposition between the fugitive and the requesting state. The appellant was not acting politically against the United States. Its request sought the ordinary enforcement of its criminal law, rather than action against a political opponent.

3. Per Lord Diplock, a crime is an offence against the state in whose territory the prohibited act was committed. A political purpose may form part of the relevant mental element even though it exceeds the intent required for the ordinary crime. The purpose must, however, be sufficiently immediate. It must be directed towards overthrowing or changing the requesting state’s government, inducing a change in its policy, or enabling escape from its politically objectionable jurisdiction.

4. Lord Diplock further held that Parliament did not intend immunity for every ordinary offence inspired by opposition to a foreign government. Section 3(1) was intended to avoid British involvement in the requesting state’s internal political conflicts and to protect fugitives from trials or punishments susceptible to political influence. Those concerns do not ordinarily arise where the fugitive opposes only a third state.

5. Per Lord Salmon, the bilateral and reciprocal character of extradition supported the same construction. The second limb of section 3(1) addresses an apparent request for an ordinary crime whose true purpose is to punish the fugitive for political action against the requesting regime. The expression should bear the same requesting-state focus in the first limb.

6. Lord Simon of Glaisdale would have allowed the appeal. He considered that the statutory language imposed no requesting-state limitation. In his view, the offence was political in its ordinary meaning because it was committed from a political motive and for a political purpose. Lord Wilberforce agreed with that opinion.

• House of Lords: By a majority of three to two, dismissed the appeal and upheld the refusal of habeas corpus.
• Divisional Court of the Queen’s Bench Division: Refused the application for habeas corpus and granted leave to appeal: [1973] 1 All ER 935.
• Chief metropolitan stipendiary magistrate: Ordered the appellant to be detained pending extradition to the United States.