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THE BOURKE EXTRADITION CASE
by DR. PAUL O'HIGGINS
Fellow, Christ's College, Cambridge
In 1961 George Blake was sentenced to forty-two years
in prison having been convicted of spying for the Soviet
Union contrary to the Official Secrets Act, 1911. This
sentence imposed by an English court and upheld on
appeal was regarded by many as unusually severe. While
serving his sentence in Wormwood Scrubs, Blake be-
came acquainted with a fellow prisoner, an Irishman,
Seán Bourke. As counsel for Bourke was later to explain
"during an extra-mural course in English literature
which was then being organised by London University"
the two became friendly. The acquaintance ripened and
Bourke agreed to arrange Blake's escape, which he did
after he himself was released from prison. In 1966 with
Bourke's aid Blake escaped, and eventually found his
way, with Bourke's further assistance, to the Soviet
Union, where Bourke later followed him. In 1968
Bourke returned to Ireland from Moscow, and was
arrested in Dublin on foot of a British warrant which
had been endorsed for execution in Ireland under the
terms of the Irish Extradition Act, 1965, Part III. In
Janitary 1969 proceedings were issued on Bourke's behalf
under Section 50 of the Extradition Act before the
President of the High Court, Mr. Justice O'Keeffe.
Section 50 provides that a person
may not
be surren-
dered if the offence with which he was charged "is a
political offence or an offence connected with a political
offence". The offence with which Bourke was charged
was aiding a prisoner to escape contrary to the British
Prisons Act, 1959, Section 39.
Proceedings before the President of the High Court
were marked by an able presentatioh of his case by
Bourke's counsel, Mr. D. Costello, S.G., despite an
unusual number of interruptions from the bench, and
a somewhat futile discussion over the admissibility of
the report by Harvard Research on Extradition, a sem-
inal work which has been constantly referred to by
numerous municipal courts, including the Irish Supreme
Court, in cases involving an interpretation of the prin-
ciples governing international extradition.
At the end of proceedings in the High Court the
President decided that the offence committed by George
Blake, espionage, had been a political offence. The
President further decided that "although I am by no
means satisfied that my decision is right, I think that
the offence of helping him to escape can be classed as
being an offence connected with a political offence and
that for the purpose of this legislation it ought to be so
classed". Accordingly under Section 50 of the Extra-
dition Act the President directed the release of Seán
Bourke, the offence with which he was charged under
the English warrant as being an offence connected with
a political offence. The Attorney General and the Com-
missioner of the Gárda Síochána appealed against the
President's order to the Supreme Court. The appeal
was dismissed on 31 July 1969 and after one year's
delay, the Supreme Court gave the reasons for its deci-
sion on 31 July 1970.
The background of the legal problem facing the
Supreme Court lies in the loose but generally accepted
notion that political offenders should be exempted from
surrender by one state to another. There has never
been a satisfactory definition either of a "political
offence" or of a "political offender" because the
raison
d'etre
of the principle of non-surrender has never been
clearly established. The first publicist in these islands to
argue for the non-surrender of political offenders was
the Irish philosopher Francis Hutcheson, who wrote of
this question in his posthumous
System of Moral Phil-
osophy
published in 1755 as follows:
"As to state-criminals : as frequently good men are on
both sides in civil wars and state-factions, as well as in
solemn wars, the general custom is very humane, that
they should universally find protection in foreign states;
and the refusal of delivering them up, or of allowing
them to be pursued and taken, is never deemed a just
cause of war, if, while they reside abroad they are
forming no new conspiracies or hostile attempts against
the present governors of their country; who should be
satisfied with their banishment, and loss of their for-
tunes, and of the hopes they had in their native land."
Later authorities took the view that political offenders
should not be surrendered because one State does not
have any stake in preserving the political system in
operation in any other State. This was a nineteenth-
century view which is no longer tenable in the light of
alliances like NATO and SEATO which are specifically
designed to preserve the political systems in existence
within their member States. Another justification for the
exclusion from surrender of political offenders would be
to protect freedom of thought and expression, freedom
to oppose any government with which one is in disagree-
ment. However at the end of the day although there is
general acceptance of the principle of non-surrender of
political offenders, there is no clear definition of who is
or who is not to be surrendered, because there is no
clear modern rationale underlying the principle.
In essence therefore the position is that, despite
apparent agreement on the principle, in practice what
occurs is that it is left to each State, either its adminis-
trative or judicial organs or sometimes both, to rule
upon the question, who, for the purposes of the appli-
cation of the principle of non-surrender by that State,
is a member of the class of persons who are not to be
surrendered. Until 1965 the old imperial Extradition
Act, 1870, was in force in the Republic. This provided
for the surrender of any person charged with any one of
a list of scheduled offences, all of them being ordinary
offences,
prima facie
involving no political element
(treason, espionage, etc., are not scheduled). Section 3
of the Extradition Act, 1870, then provided that sur-
render was not to take place if the person requested
could show that his surrender was requested in respect
of an offence of a political character (i.e. an ordinary
scheduled offence, but which because of the motive
from which it was perpetrated or owing to the surround-
ing circumstances, acquired an ádditionai element,
giving it a political character). British courts consistently
refused to enunciate any definitive principle to establish
whether an offence was of a political character, although
it was clear that an ordinary offence committed with a
political end in view in the course of a political distur-
bance was probably an offence of a political character
provided that the means adopted were not dispropor-
tionate to the end and provided also that the end
involved a conflict as to which of two contending
groups should control the State. Other activities were
not precluded from acquiring a political character, but
where the line was to be drawn was for the Gourts in the
first instance although the relevant Minister had a
separate discretion to decide the issue for himself.
Other countries did not adopt the enumerative
method of defining extraditable offences but instead
made
all
offences punishable with a penalty above a
certain minimum in principal extraditable offences. It
was on this system that a draft convention produced by
the Council of Europe was based, and upon this Euro-
pean draft convention the Irish Extradition Act, 1965.
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