The UK and Australian Authorities
148 A review of the major UK and Australian authorities on the meaning of the expression political offence bears out the observations just referred to that the courts have not found a defining characteristic or set of characteristics which identify those offences which are political offences. Rather, the courts have more or less instinctively responded to the facts of each case and assessed them within the particular historical circumstances in which the offences were committed.
149 In Castioni the citizens of the canton of Ticino in Switzerland were dissatisfied with the local government. A group of citizens, including Angelo Castioni stormed the municipal palace. That occurred in 1890 on 11 September, a day which coincidently 121 years later has a special significance for political offending. In the course of forcing their way inside the municipal palace, Castioni shot and killed Luigi Rossi, a State Councillor. The crowd then occupied the palace, imprisoned members of the government and assumed the government of the canton. Afterwards, Castioni fled to England and the Swiss government subsequently sought the extradition of Castioni from the UK. Reversing the decision of the local magistrate that Castioni's extradition was justified the Queen's Bench determined that Castioni should be discharged on the ground that the murder was a political offence. In reaching this decision, Denman J said, at 156, that to qualify as a political offence:
… it must at least be shewn that the act is done in furtherance of, done with 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, before it can be brought within the meaning of the words used in the Act.
150 Hawkins J, agreeing with the reasons of Denman J, at 165-6, adopted the meaning of political crime which was proposed by Stephen J in his then recently published A History of the Criminal Law of England, Vol II, as follows:
The third meaning which may be given to the words, and which I take to be the true meaning, is somewhat more complicated than either of those I have described. An act often falls under several different definitions. For instance, if a civil war were to take place, it would be high treason by levying war against the Queen. Every case in which a man was shot in action would be murder. Whenever a house was burnt for military purposes arson would be committed. To take cattle, &c., by requestion would be robbery. According to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. 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.
(Emphasis added)
151 Unsurprisingly Stephen J, as the author of the A History of the Criminal Law of England, the third member of the Court, agreed. Castioni is regarded as the foundation of the Anglo-American approach, often called the political incidence test, to determine whether particular offences are political. However, as discussed at [154]-[155] below, the requirement it established that there be a political uprising or two-party dispute was later modified in favour of a more liberal construction, particularly where the requesting state was a totalitarian regime.
152 In the case of In re Meunier [1894] 2 QB 415 (Meunier) the French government successfully sought the surrender of Meunier, an anarchist, for offences including wilfully causing an explosion at a military barracks. Cave J, with whom Collins J agreed, said at 419:
The last point taken is, that, so far as regards the outrage at the barracks, the offence charged is one of a political character, and therefore the accused is not liable to be surrendered under the Extradition Acts; for it is said that the outrage was an attack on Government property, and was an attempt to destroy the quarters occupied by the troops of the French Government. It appears to me that, in order to constitute an offence of a political character, there 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. In the present case there are not two parties in the State, each seeking to impose the Government of their own choice on the other; for the party with whom the accused is identified by the evidence, and by his own voluntary statement, namely, the party of anarchy, is the enemy of all Governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular Government; but anarchist offences are mainly directed against private citizens...I am of the opinion that the crime charged was not a political offence within the meaning of the Extradition Act.
(Emphasis added)
153 Kolczynski concerned a claim by Poland for the extradition of some crew members of a trawler in the Polish fleet operating in the North Sea. The evidence was that Poland was a one party communist police state. It was treason to leave Poland to go to England without permission. The political leanings of the crew members of the trawler were monitored by a party secretary on board the vessel. News was received by the crew members that Kolczynski's brother had fled to England. From the actions of the party secretary on board some of the crew members feared that they would be punished on their return to Poland. They therefore overpowered the other crew members and the captain and took the trawler to an English port. They resisted extradition on the ground that they would be tried in Poland for a political offence for fleeing to England.
154 The Court found that the crew members had established that the extradition request had been made with a view to trying or punishing them for an offence of a political character. However, the test established in Castioni for determining whether an offence was a political offence could not apply to the circumstances of this case because Kolczynski was not engaged in a civil disturbance. Castles J said, at 549:
The words "offence of a political character" must always be considered according to the circumstance existing at the time when they have to be considered. The present time is very different from 1891, when Castioni's case was decided. It was not then treason for a citizen to leave his country and start a fresh life in another. Countries were not regarded as enemy countries when no war was in progress. Now a state of totalitarianism prevails in some parts of the world and it is a crime for citizens in such places to take steps to leave. In this case the members of the crew of a small trawler engaged in fishing were under political supervision and they revolted by the only means open to them. They committed an offence of a political character, and if they were surrendered there could be no doubt that, while they would be tried for the particular offence mentioned, they would be punished as for a political crime.
(Footnote omitted)
155 Lord Goddard said, at 551:
The court in Castioni's case were careful to say that they were not giving an exhaustive definition of the words "of a "political character." They applied a formula taken from Stephen's History of the Criminal Law, Vol. II, p. 71, as sufficient for the facts of that case, and no doubt when that work was written, about 1882, no better definition could be given. No doubt the conception of what is commonly called nowadays a "police state" was not unknown in the middle years of the nineteenth century. One need only recall the vigour of Mr. Gladstone's language and some of Lord Palmerston's dispatches as to the state of affairs prevailing in Naples, then a part of the Kingdom of the Two Sicilies, under the despotic rule of a monarch usually referred to as King Bomba. But all that had passed by the time Sir James Fitzjames Stephen wrote, though no doubt political police were still very active in Czarist Russia. The evidence about the law prevalent in the Republic of Poland today shows that it is necessary, if only for reasons of humanity, to give a wider and more generous meaning to the words we are now construing, which we can do without in any way encouraging the idea that ordinary crimes which have no political significance will be thereby excused.
(Footnote omitted)
156 In Schtraks Israel sought the extradition of the appellant on charges of child stealing and perjury. The appellant was the uncle of a ten year old boy whose grandparents were concerned that he would not get a proper Jewish religious education. The appellant assisted the grandfather to keep the boy from his parents. The appellant also gave perjured evidence in proceedings brought by the boy's parents to have the boy returned. The evidence was that religion in Israel was a political issue. A well attended political meeting addressed by a member of the Knesset supported the boy being kept from his parents. The Rabbi of Jerusalem also made a public statement in support of that position. There were debates and question in the Knesset about the case.
157 Lord Reid first explained that certain limitations on the ambit of the idea of political offence could not be sustained. He said at 583 - 4:
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.
158 In rejecting the appellant's claim to the benefit of the political exception, Lord Reid said at 584:
With an expression so vague as "an offence of a political "character" there must be many borderline 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 in the 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 purpose 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.
(Emphasis added)
159 Viscount Radcliffe in Schtraks referred to the emphasis in Castioni and Meunier on the need for a disturbance to render an offence a political offence, but observed that Kolczynski could not be explained on that basis. He then ventured his view of the characteristics of a political offence at 591 - 2 as follows:
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 In re Castioni and In re Meunier 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 connection. 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 these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders.
(Footnotes omitted; emphasis added)
His Lordship then concluded that the alleged offences were committed as part of a family quarrel where the appellant acted out of allegiance to certain members of his family. The actions were not taken as a demonstration against government policy.
160 Lord Evershed also accepted that there was no disturbance or insurrection which would bring the offences within the Castioni definition. He continued at 598:
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.
161 Lord Hodson saw no reason to move beyond Castioni. He said at 612:
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 the Castioni case, judgment in which was 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, Reg v Governor of Brixton Prison, Ex parte Kolczynski, where special considerations have been taken into account. In some modern States politics 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.
(Footnotes omitted)
162 In Cheng the House of Lords considered for the first time whether the political offence had to be directed against the requesting state. Cheng was convicted of attempted murder in the US of the vice-premier of Taiwan. The US sought his extradition from the UK. The majority (Lords Hodson, Diplock and Salmon) considered that the political exception only applied where the fugitive was opposed to the requesting state. Although Cheng was opposed to the Chinese Nationalist Government in Taiwan as he had no political quarrel with the US his offence was not a political offence. Lord Simon, with whom Lord Wilberforce agreed, dissented.
163 Lord Hodson relied on the idea articulated by Viscount Radcliffe in Schtraks that an offence is a political offence where 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. A political character of an offence connotes the notion of opposition to the requesting state.
164 Lord Diplock also agreed with the view of Viscount Radcliffe in Schtraks but accepted that the precise issue raised in Cheng had not arisen in Schtraks. His Lordship relied on the bilateral nature of the extradition obligation and its provision for reciprocal rights. Thus, the reference to an offence of a political character is to the relationship of conflict between the offender and the government of the state where the offence was committed, and not to any political conflict between the offender and another state. His Lordship accepted that the offender must have a political purpose. In a passage referred to in later cases he said, at 945:
The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet "political." For politics are about government. "Political" as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. No doubt any act done with any of these objects would be a "political act," whether or not it was done within the territory of the government against whom it was aimed. But the question is not simply whether it is political qua "act" but whether it is political qua "offence."
(Emphasis added)
165 Lord Salmon broadly agreed with Lords Hodson and Diplock.
166 Lord Simon, in the dissenting view, considered that the words "of a political character" in s 3(1) of the Extradition Act 1870 (UK) had to be read in their natural, ordinary and literal sense without the addition of words such as "against the foreign state demanding such surrender" which did not appear in the section. Such a construction is also supported by the history of the provision and by reference to the mischief to which it was directed. The historical purpose of the exception was to provide protection to political fugitives. It should be construed benevolently in conformity with this purpose. This construction is also consistent with international law. Further, his Lordship gave examples of the absurdity of the construction which would follow from holding that the exception did not apply to a political fugitive opposed not to the requesting state but to another state. For example, he said, at 957:
Then take the hypothetical case of an attempted assassination, not of the vice-premier of Nationalist China, but of the Vice-President of the United States. Counsel for the respondent accepted that this would be "an offence of a political character" if committed solely in protest against United States support of Chiang Kai-Shek's government and if perpetrated on United States territory - say, at the United States end of the Niagara Bridge. But if the purporting assailant followed the Vice-President across the bridge, and made the attempt at the Canadian end of the bridge, it would in some extraordinary way cease to be an offence of a political character. Its correct characterisation if the attempt were made laterally as the Vice-President was actually crossing the frontier would, I think, strain the subtlety even of a scholastic metaphysician.
167 In T v Home Secretary the House of Lords sought to bring some clarity to the understanding of the meaning of non-political offence, a question which Lord Mustill at 764 described as then subject to "the comparatively few, and by no means consistent, decisions of the common law courts". The issue under consideration was the meaning of the phrase "serious non-political crime" in Art 1F(b) of the Refugees Convention. However, it was common ground that the words bear the same meaning as they do in extradition law.
168 The appellant was an Algerian citizen who was a member of the FIS, a fundamentalist Islamic revolutionary movement, which according to the appellant's evidence had been cheated out of success in a democratic election and had therefore resorted to violence to overthrow the ruling party. He was personally involved in the planning of a bomb attack on an airport near Algiers which killed ten people, and an abortive attempt to steal arms from an army barracks in which one person was killed.
169 The focus of the case was particularly directed to whether offences involving indiscriminate use of violence against civilians could be regarded as political offences. There were three judgments delivered by each of Lords Mustill, Slynn and Lloyd who each agreed in the outcome.
170 Lord Lloyd (with whom Lords Keith and Browne-Wilkinson agreed) examined the UK authorities earlier referred to in these reasons. Before considering some US and Canadian cases his Lordship drew attention to Lord Diplock's view in Cheng that a crime will only be regarded as a political offence if the relationship between the act and the effect on the government is sufficiently close.
171 His Lordship explained that the early US cases refused extradition of Irish Republican Army (IRA) soldiers accused of murdering British soldiers on the basis of Castioni. But then in Eain v Wilkes 641 F2d 504 (7th Cir 1981) (Eain v Wilkes), where a member of the Palestinian Liberation Organisation (PLO) planted a bomb in a crowded market place in Israel which killed two boys and injured many other people, the 7th Circuit Court of Appeals refused to apply the political offence exception and said at 521:
The exception does not make a random bombing intended to result in the cold-blooded murder of civilians incidental to a purpose of toppling a government, absent a direct link between the perpetrator, a political organization's political goals, and the specific act. Rather, the indiscriminate bombing of a civilian populace is not recognized as a protected political act even when the larger 'political' objective of the person who sets off the bomb may be to eliminate the civilian population of a country.
172 Lord Lloyd then referred to Quinn v Robinson 783 F2d 776 (9th Cir 1986) (Quinn) in which Judge Reinhardt rejected this approach saying, at 804-5:
[I]t is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that we have not experienced, and with which we can identify only with the greatest difficulty. It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal. … We believe the tactics that are used in such internal political struggles are simply irrelevant to the question whether the political offense exception is applicable.
Judge Fletcher took the same approach. However, in succeeding cases, the Eain v Wilkes approach prevailed. Thus, in McMullen v Immigration and Naturalization Service 788 F2d 591 (9th Cir 1986) (McMullen), the 9th Circuit Court of Appeals held, at 598, that the terrorist crimes of the former member of the Provisional IRA were not political because:
P.I.R.A.'s [Provisional Irish Republican Army] random acts of violence against the ordinary citizens of Northern Ireland and elsewhere … are not sufficiently linked to their political objectives and, by virtue of their primary targets, so barbarous, atrocious and disproportionate to their political objectives that they constitute 'serious non-political crimes …'
For similar reasons, in Ahmad v Wigen 910 F2d 1063 (2d Cir 1990), where a member of Abu Nidal with two associates had attacked a bus in Israel, killing the driver and injuring a passenger, the 2nd Circuit Court of Appeals rejected the argument that the political offence exception applied to the case.
173 Lord Lloyd then found particular assistance from the Canadian case Gil v Canada (Minister of Employment and Immigration) [1994] FCJ No 1559 which also concerned the construction of the phrase "serious non-political crime" in Art 1F(b) of the Refugees Convention. The appellant in that case was a citizen of Iran and opposed the regime of Ayatollah Khomeini. He was part of a group that planted a bomb in the business premises of supporters of the Ayatollah which resulted in the death of many bystanders. Hugessen JA said, at [44], that the appellant's crime was not political for the following reasons:
…the lack of nexus between the crimes and any realistic political objective, and the fact that the means employed are unacceptable as a form of political protest against any regime, no matter how repressive, totalitarian or dictatorial.
174 Lord Lloyd then relied on the definition of non-political crime in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (UN Handbook). He also referred to the European Convention on the Suppression of Terrorism (1977) (Cmnd. 7031) which sought to limit by agreement the offences which would be regarded as political. The European Convention was based on the idea that certain offences were so serious that their criminal element outweighed their possible political aspects.
175 From these sources, Lord Lloyd drew the formulation referred to in [124] of these reasons. Applying this approach, his Lordship, at 787, found that "[t]he means used were indiscriminate and therefore the link between the crime and the political object … was too remote." The offences committed by the appellant were therefore held to be serious non-political offences.
176 Lord Mustill in his judgment explained the problem which the appeal had to address. He said that the case of the appellant was straightforward. If the elections in Algeria had been finalised, the government would have been chosen by the people in a plainly political process. There was interference with that process and the appellant and his associates had no other course than a resort to violence to achieve the same political ends. The appellant accepted that his methods were not democratic and involved criminal acts however contended that acts may be criminal and yet still be political. It could not matter whether the methods were regarded as immoral or unethical. Nor would it assist to call the appellant a terrorist "since yesterday's terrorist is today's freedom fighter and perhaps tomorrow's head of state." The activities of the appellant's organisation, it was said, were as political after the abortive election as they were before.
177 In response to this straightforward case, Lord Mustill explained that the circumstances in which the meaning of political offence was developed have changed. He said at 755:
This is a powerful argument, the more so because it warns against the assumption that political action should be equated with the activities permitted to rival parties or groups seeking power under a parliamentary system of government such as exists in Europe and North America, and under other systems based on the same model. This being acknowledged, I believe that the appellant's argument goes too far, for it assumes that society, and the struggles within it, have stood still for more than a century. Those who were intended to benefit from the political exception had taken up arms, having no other means, to relieve from oppression those who could not fend for themselves. The human rights of the individual who sought refuge in fear of persecution therefore coincided with those of the oppressed, and the evil of violence could be tolerated without threat to the world order in the greater interests of making the world a better place. Whether this was sound thinking no longer matters, for the scene has changed. Those who use violence and fear to struggle against oppression may themselves be oppressors, causing as much suffering to the defenceless as those whom they seek to displace. When they flee to a foreign country the impulse to protect them from persecution remains, but it is muted. The community as a whole has a moral right to protection, which should not be compromised by offering too ready a refuge to those who, having embroiled the population in violence, find themselves on the losing side. It must be acknowledged that although the words of the exception remain the same the world has changed round it, and tests which may in the past have sufficed to settle the comparatively few cases where a criminal act required classification as political or non-political are too inflexible, now that the motives and means of destructive violence have become so greatly enlarged.
178 For those reasons, Lord Mustill rejected the straightforward logic of the appellant's argument and concluded at 755-6:
…the whole trend of the more modern decisions and writings is towards an acceptance that certain acts of violence, even if political in a narrow sense, are beyond the pale, and that they should not be condoned by offering sanctuary to those who commit them. Equally, the materials brought before the House concur in a very general ideal of where the boundary lies. The problem is to find a precise and intellectually sustainable test which will enable a line to be drawn in practice by those who are required to make decisions, often under pressure of time with meagre factual materials.
179 His Lordship then explained that the offence committed by the appellant was an incident in a political struggle between the government and an opposing group and would therefore qualify as a political offence on the authority of cases like Castioni, Meunier, Schtraks and Cheng which applied the incidence test (referred to at [150] above). But, in some of these cases, for instance in the view of Lord Diplock in Cheng, there is a further necessary element, namely, that there must be a causal element or the absence of remoteness between the political situation and the crime which has been committed. Lord Mustill rejected causation and remoteness as useful concepts on the basis that they simply replace "political" with another form of words. By way of illustration he said at 767-8:
Take the case of an insurgent group which attacks an army post, as part of a campaign to overthrow the government by force. This would plainly be a political offence, and on any ordinary understanding of causation it would be said that the desire to overthrow the government caused the attack to take place. Change the case now so that the soldiers, lacking the weapons needed for the attack, steal them from an arsenal. Would not this in ordinary language be described as a political offence, all of a piece with the subsequent attack, and would not the cause of the theft still be ascribed to the wish to bring down the government by force? If one changes the case once more, so that instead of stealing arms directly the insurgents steal from a bank the money with which to buy them, I can see that if the raiders intend to keep some of the proceeds for their own personal use it could well be held that the personal element of the crime is both non-political and serious enough to bring article 1F into play. But in the absence of such mixed motives I find it hard to see why the stealing of the money and its subsequent use to buy arms would not be a continuous causal chain of which all the links are political in nature; and if the logic is not clear I can foresee great difficulties in applying this criterion in practice.
180 He concluded at 768:
In short, to say that the political aim must cause the crime, or that the crime must not be too remote from the aim, does no more than assert that the crime must be really political in nature to fall within the exception.
181 Lord Mustill then explored whether proportionality was a reliable test. This test would ask whether the nature and degree of the crime were in proportion to its political ends. His Lordship regarded this approach as illogical and overly subjective. It is illogical, he observed, because "why should a crime which would have been political in nature be turned into one which is not political simply because the judge deems the offender to have gone too far?" His Lordship further said at 770:
…it will be hard for the judge of the receiving state to decide whether the ends justified the means without applying the notions of his own upbringing and environment in judging whether the offender has overstepped the bounds of permissible political action. To my mind this parochial approach is wrong in principle, and would yield to absurd results. In the Western democracies the use of assassination as a political instrument is anathema; yet In re Castioni… shows that it falls precisely within the political exception.
182 His Lordship then addressed what he described as "the heart of the case". This was the respondent's argument that the point at which criminal conduct which would otherwise be political loses this attribute is when it can be described as "an atrocity" or "terrorism". He rejected the description "atrocity" as an appropriate marker because the international community had not defined such a concept and the application of any such concept would depend on a subjective assessment made by the decision-maker. He did however accept that terrorism was an appropriate marker of a non-political crime. He said at 772:
I am however more persuaded by the idea of writing "terrorism" into the modern concept of the political crime. To accept this requires, as must any model which involves departure from the concept of incidence, an important step: the recognition that some characteristic of the crime can disconnect it from its political origins, using the word in its widest sense. Once this step is taken, as I believe it must be, I would prefer terrorism to atrocity as a test, because it concentrates on the method of the offence, rather than its physical manifestation. The terrorist does not strike at his opponents; those whom he kills are not the tyrants whom he opposes, but people to whom he is indifferent. They are the raw materials of a strategy, not the objectives of it. The terrorist is not even concerned to inspire terror in the victims, for to him they are ciphers. They exist only as a means to inspire terror at large, to destroy opposition by moral enfeeblement, or to create a vacuum into which the like-minded can stride. It seems to me in a real sense that a political crime, the killing of A by B to achieve an end, involves a direct relationship between the ideas of the criminal and the victim, which is absent in the depersonalised and abstract violence which kills 20, or three, or none, it matter not how many or whom, so long as the broad effect is achieved. I find it hard to believe that the human rights of the fugitive could ever have been intended to outweigh this cold indifference to the human rights of the uninvolved.
His Lordship reasoned further that terrorism has been recognised by the international community as an evil in its own right which calls for special measures to address it. Any test for the determination of a non-political crime must be capable of speedy application by decision-makers. He found the concept of terrorism to be capable of definition in a way that more subjective tests based on causation, remoteness or proportionality are not.
183 Lord Mustill concluded that the airport attack by the appellant was a terrorist attack and that the appellant's conduct was thus of a non-political nature.
184 Lord Slynn considered that the incidence theory was not a comprehensive enough test to determine whether a crime was political. A political offence may be committed even if not directed to the government of the day but directed, for instance, against the opposition. His Lordship also rejected the remoteness and proportionality tests. He referred to the approach taken by the UN Handbook which involved several elements, namely, whether the crime was due to genuine political motives, whether there was a close and direct causal link between the crime and the alleged political purpose, and whether the political elements outweighed the common law character of the crime. His Lordship said that this test might be applied easily in some cases, but in others it raised matters almost impossible to decide.
185 Lord Slynn concluded at 776 that a serious non-political crime at least included:
...acts of violence which are intended or likely to create a state of terror in the minds of persons whether particular persons or the general public and which cause, or are likely to cause, injury to persons who have no connection with the government of the state.
186 Lord Slynn used this approach to conclude that the appellant had committed a non-political crime. However, he said that this approach was not intended as a complete definition.
187 The only case in Australia in which the High Court has considered the meaning of the expression political offence in extradition legislation is Re Wilson; Ex parte Witness T (1976) 135 CLR 179; [1976] HCA 33. A special magistrate in South Australia was authorised under the Extradition (Foreign States) Act 1966 (Cth) to take evidence for the purpose of the prosecution of Albert Kruger in West Germany. Kruger was a resident of the Soviet Union and a member of the Special Police when the Nazis occupied the Territory in 1942-3. He was charged with murder and attempted murder arising out of acts he committed as part of a program of the occupying forces to terrorise the population in order to dissuade it from rebelling against them or disobeying their orders. Witness T was to be called to give evidence before the magistrate. The evidence was thought to exculpate Kruger. Witness T sought prohibition against the further proceeding by the special magistrate. He argued that the prosecution in West Germany was for a political offence and consequently the magistrate had no authority under the act to question him.
188 Barwick CJ with whom Gibbs, Stephen and Mason JJ agreed, rejected the argument that the offences were political offences. They relied on the view expressed by Viscount Radcliffe in Schtraks that a political offence exists where a person is at odds with the state that applies for his extradition. In this case West Germany was simply enforcing the criminal law in its ordinary aspect. Kruger was not acting in political opposition to West Germany.
189 Jacobs J also rejected the application but on a different basis, namely that the evidence did not disclose that the offences were of a political character. He disagreed with the application of Schtraks to this case. He said at 187-188:
The offences with which the defendant is charged are offences which were committed in territory of the Soviet Union which at the time of the commission of the alleged offences was in the occupation of Germany. He was a resident of the occupied territory and the offences are alleged to have been committed against other residents of that territory. If it were correct to assume that all the offences were committed in the course of what is described in the documents as combat operations against partisan groups and were committed in support and as part of a campaign by the occupying power against the partisans I would have difficulty in concluding that the offences were not of a political character. The views expressed by Viscount Radcliffe in Schtraks v. Government of Israel would have no application in such a case. His views were expressed in a different context.
Nevertheless, in my opinion it has not been proved by evidence that the offences in respect of which the defendant Kruger is charged and in respect of which it is proposed that evidence be taken are offences which are, or which are by reason of the circumstances in which they are alleged to have been committed, offences of a political character. A most significant feature of the present case is that the defendant himself does not claim that the alleged offences are of that character. Indeed he alleges that the witness who now seeks this writ is able to give evidence which would exonerate him "in significant respects" and thereby requires that the evidence be taken in Australia before a magistrate.
(Footnote omitted)
190 Murphy J, who also agreed in the result, said at 191:
…the applicant argued that the offences were of a political character because they were war crimes and, in particular, because the defendant Kruger acted under directions from the German Government. He relied upon a number of cases which described offences of a political character: In re Castioni; Reg. v. Governor of Pentonville Prison; Ex parte Cheng; In re Meunier and Schtraks v. Government of Israel. I am not satisfied that any of the tests in these cases should be adopted, particularly the test in Schtraks' Case which I do not regard as adequate. It excludes, in my opinion, some offences which are political and include some which are not.
(Footnotes omitted)
191 In Prevato Wilcox J set aside a decision of a magistrate that Prevato was liable to be extradited to Italy. Prevato was a member of the Ronde Armate Proletarie (Proletarian Armed Patrols) which opposed a system called the selection in schools program. He was charged with various offences involving damage to schools and threats to teachers and other officials. One issue was whether these were political offences. That in turn raised the question whether a political offence required that the offender seek a change of government or whether it is sufficient that the offender aim to change government policy. Wilcox J relied on the speech of Lord Diplock in Cheng in which his Lordship said than an offence could only be characterised as political if the object to be achieved by it was to change the government or induce it to change its policy (emphasis added). Wilcox J said at 385-6:
The evidence in the present case, emerging from the statements of all three witnesses, was that the acts in relation to which Prevato is charged occurred in the course of a long and bitter campaign to induce a change in education policy in government schools in Padua. The evidence does not show whether these schools were conducted by the national government or by a provincial or local government but it is not an essential requirement of a political offence that the relevant contest be with the national government. Castioni shows that. The early debate upon the necessity for there to be a campaign to change the government itself was decisively resolved in the negative in Schtraks; it is enough that there be a concerted campaign to change government policy. Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organized, prolonged campaign involving a number of people. The offence must be directed solely to that purpose; it must not involve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the campaign may be a political offence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be.
In the present case these requirements are all satisfied. … Once it is determined that there is no necessity for the relevant campaign to be one seeking a change in government, that it is enough that the campaigners seek a change of government policy, there is no valid distinction between this case and Castioni.
192 In Australia, the meaning of the expression serious non-political offence used in Art 1F(b) of the Refugees Convention was considered by the High Court in Singh. Singh was a member of the Khalistan Liberation Force (KLF) which was engaged in a violent struggle for an independent Sikh homeland in the Punjab. In his capacity as commander of information he gathered intelligence about a police officer who had tortured a KLF member. The KLF used the information to kill the policeman.
193 Singh claimed that the KLF was engaged in a political campaign for an independent state in order to prevent further oppression of the Sikhs. The Minister argued that the KLF was a terrorist organisation involved in revenge killings against people who were violent against Sikhs.
194 The Refugee Review Tribunal held that it was unnecessary to determine whether the KLF was engaged in a political struggle because the killing was an act of retribution, and an act of retribution could not found a political offence.
195 The majority in Singh (Gleeson CJ, Gaudron and Kirby JJ) held that the Tribunal erred in reaching this conclusion.
196 Gleeson CJ said, at [19], that whilst an unlawful killing may be regarded as political, it will not be so if the sole or dominant purpose is to satisfy a personal grudge against the victim. However, in this case there was no evidence that the police officer was killed for reasons of personal retribution. His Honour explained:
On the respondent's account, which the Tribunal evidently accepted, the police officer became a "target" because he had tortured a KLF member. That can be described as a form of vengeance or retribution, but, if it were accepted that one of the political objectives of the KLF was to resist oppression of Sikhs, it is not vengeance or retribution of a kind that is necessarily inconsistent with political action in the circumstances which the respondent claimed existed in India. For the Tribunal to say, even by reference to the facts of the case, that such retribution cannot be political, was wrong.
197 Gleeson CJ then said at [21]-[22]:
…there must be a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act. And the achievement of that objective must be the substantial purpose of the act.
198 Gaudron J rejected, at [41], an approach of limiting the expression "a political crime" by reference to descriptions such as "atrocities", "terrorist" activities, or "crimes of revenge" because they are imprecise and may, as a result, involve oversimplification. She focused on the purpose of the offence as the defining characteristic and relied on the statement to that effect of Lord Diplock in Cheng. Gaudron J considered, at [43]-[44], however that his Lordship's statement was too limited in several respects. It was not necessary, in her view, that the political purpose be the sole or even dominant purpose as long as it was a significant purpose. Further, there was no need for the act to be directed against the government of the day. Her Honour said at [45]:
Accordingly, I would consider a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed.
199 At [46]-[47] Gaudron J continued:
Once it is accepted, as in my view it must be, that political purpose is the defining feature of a political crime, references to "proportionality", "nexus" or "causal link", as made by the Tribunal, assume legal significance. A crime is unlikely to have a political purpose if it has no relevant connection with the political aims of those involved in its commission. So, too, as has been explained in other legal contexts, "proportionality" is a useful indicator of purpose. The true purpose of actions which are unnecessary or disproportionate to the end which is said to justify those actions is unlikely to be the achieving of that end but is likely to be the satisfaction of some other and different purpose.
Actions which are either unnecessary or disproportionate to the political objectives which are said to justify them are, perhaps, usefully described as "terrorist" activities. But for the purposes of Art 1F(b), that description is not, of itself, determinative. The issue is whether the actions in question were undertaken for a political purpose, in the sense that that purpose was a significant purpose.
(Footnotes omitted)
200 Kirby J summarised his approach at [141] as follows:
(4) The precise meaning of serious "non-political" crimes in Art 1F(b) of the Convention is not conclusively elaborated, for all possible cases, by the Convention itself, municipal law or judicial authority. However, some guidance can be offered:
(a) To characterise the crime as "political" or "non-political", it is necessary to consider all of the facts of the case in the context, and for the purposes, of the Convention. There is no bright line for distinguishing "non-political" from "political" crimes;
(b) "Political" crimes are not confined to crimes that fall within the purely political offences such as treason, sedition and the like. "Non-political crimes" take their meaning accordingly;
(c) Depending on the circumstances, murder may be a "political crime" if it is otherwise so characterised;
(d) The ascertainment of the object or purpose of the crime is relevant to deciding whether it is "political" or "non-political" in character. To be "political" it must, in some appropriately close way, be linked with the purpose of changing the political environment, commonly the government, by the commission of the crime;
(e) Whilst purely personal grudges or motivations for a crime may sometimes demand that the crime be classified as personal (and "non-political" for that reason), revenge and personal hatred are not, as such, inconsistent with political action. On the contrary, they may be its expression in a particular case;
(f) In deciding whether a crime is "political" or "non-political" it will sometimes be relevant to consider the weapons and means used; whether the "target" of the crime is a public official or a government agent as distinct from unarmed civilians chosen indiscriminately; and whether the crime is proportionate to the political end propounded. If it is excessive and disproportionate, it will be easier to infer that its true character is "non-political", that is, done for the satisfaction of some other and different, possibly entirely personal ("non-political") purpose. It will usually be necessary to examine the alleged objectives of any organisation involved and the applicant's connection, if any, with that organisation; and
(g) It will also be appropriate to read the exception for "serious non-political crimes" in the context of the burden that is placed by the Convention upon countries of refuge and the exceptions that are provided in the specified cases, including by Art 1F, where, in the particular case, that burden would be intolerable. The serious crimes mentioned in the exclusions in Art 1F are such that their extreme character is accepted as exempting the country of refuge from the protection obligations stated in the Convention, however much otherwise the applicant qualifies for recognition as a "refugee".
201 McHugh J would have allowed the appeal and restored the Tribunal's decision that Singh was excluded from refugee status by the operation of Art 1F(b) because the murder of the policeman was a serious non-political crime. His Honour accepted that if the Tribunal had found that a murder for revenge could never be a political offence then the Tribunal would have erred in law. But he held that the Tribunal found as a fact that this murder was motivated by revenge. Hence, his Honour did not consider the definition of the expression political crime.
202 Callinan J would have also allowed the appeal on the basis that the murder in which Singh was involved was not a political crime. He approached the issue on the basis that:
158 In a sense, violence, especially in its final and worst manifestation, killing, is the antithesis of political activity. Politics is the art or science of government. Murder can hardly be fairly characterisable as an activity in furtherance of, or part of the practice of, an art or science.
203 His Honour later explained at [165]:
A crime, in my opinion, will be a political crime if, first, it is done genuinely and honestly for political purposes, that is in order to change or influence an oppressive government or its policies, and, secondly, the means employed, although of a criminal nature according to the law of the country in which they are employed, are reasonably, in all of the circumstances, adapted to that purpose. Circumstances which will be relevant to the question of reasonableness or otherwise are the nature and extent of the persecution, discrimination or oppression suffered by an applicant or a group to which he or she belongs before the commission of the crime; the availability and efficacy of measures to redress or punish such persecution, discrimination or oppression; the extent to which the applicant sought first to invoke or use such measures before embarking on the crime; the means available to the applicant or group to avoid persecution, discrimination or oppression; the nature of the government or its policies that the applicant wishes to influence or change; the process by which that government achieved power; the aims of, and means employed by any organisation to which the applicant belonged in furtherance of which the applicant claimed to be acting; the existence or otherwise of a free press in the applicant's country; the history, so far as it can be reliably ascertained, of dissension in the applicant's country; the way in which both the polity from which the applicant has departed and the polity of the country in which the applicant has sought refuge regard and punish the crime of the applicant, and any crime of his or her "targets" said to justify the former's crime; the respective roles of the government and the group of which the applicant is a member in the perpetuation of cycles of violence; and, the risk of indiscriminate harm to members of the public. No one of these need necessarily be decisive, except perhaps the last in some cases. As to that, its absence does not mean that the crime will necessarily be a political crime, although when it is present it will almost always be decisive as a ground of exclusion.