7 / 196
was in turn based. Extraditable offences were now defined
by the severity of punishment that might be imposed
consequently a different principle of exclusion had to be
adopted, and the formula adopted in the Convention
and in the Irish Act was to say that surrender should
not be granted for any offence "which is a political
offence or an offence connected with a political offence".
The Supreme Court in
Bourke's case
therefore had to
decide whether the offence charged against Bourke of
aiding a prisoner, George Blake, to escape was a poli-
tical offence or an offence of a political character.
It was conceded that the offence, espionage, for
which Blake was imprisoned was a political offence. It
was not argued for Bourke that his own offence of
aiding a prisoner to escape was a political offence.
Indeed this would have been difficult in the light of the
reasons given by Bourke for his action (1) that he looked
upon Blake as a political prisoner who had sacrificed
a great deal for his Communist sympathies; (2) he con-
sidered that Blake's forty-two year sentence was savage;
(3) that he felt compassion for Blake, and (4) that he
had come to the conclusion that Blake's ideas and his
own as to what constituted a just society were then very
similar. Bourke denied explicitly any sympathy with
Communism or the policies of the Soviet government.
It was. argued for Bourke, however, that he had aided
a political prisoner to escape; that Bourke's offence was
connected with a political offence, that is to say with
the offences for which Blake had originally been impris-
oned, and lastly that Blake's offence in escaping was
itself a political offence and that therefore Bourke's
assistance in the escape was itself an offence connected
with a political offence. The Chief Justice, with whom
the other members of the Supreme Court (save Fitz-
gerald J.) agreed, reached the conclusion that Blake's
offence of escaping to the Soviet Union "was as political
as if in war he had deserted to the enemy lines and
changed his uniform". It is difficult to dissent from this.
(In any case of course the original offence charged
against Blake was political.) The offence of Bourke in
aiding him to escape was an offence connected with a
political offence. Therefore since the terms of Section 50
were to be regarded as mandatory
[may not be
surrend-
ered was to be interpreted as
shall not be
surrendered]
Bourke was entitled not to be surrendered and the
decision of the High Court was upheld.
A number of points of interest arise. First of all the
Backing of Warrants (Republic of Ireland) Act, 1965,
which is the British counterpart of the special Anglo-
Irish arrangement for mutual extradition provides for
the non-surrender of persons charged with offences
of a political character
, so that if the case had been the
other way round, and if the Irish Republic had been
seeking Bourke's surrender by the United Kingdom it
is highly likely that he would have been surrendered,
because his offence would be regarded as not having
itself a political character. This is an odd consequence
of establishing an international arrangement by simul-
taneous pieces of municipal legislation, which although
probably identical in intent, do not use the same
terminology.
Secondly the Supreme Court was prepared to resort
to the
travaux preparatoires
to the European Conven-
tion as an aid to the interpretation of the Irish statute.
Looking at these the Chief Justice concluded that the
phrase "offence connected with a political offence" was
to be given a wide interpretation and did not require
that the connected offence should itself have been com-
mitted from a political motive or that it should in any
way be directed to aiding or procuring or be prepara-
tory to the commission of the political offence. But he
then added : "I would reach the same conclusion on a
consideration of the terms of Section 50 of the Extra-
dition Act, 1965, without reference to the
travaux
preparatoires
of the Convention". One welcomes the
liberal attitude adopted by the Supreme Court to the
invocation of relevant aids to the interpretation of an
Irish statute, specially where such statute was speci-
fically passed with the objective of implementing the
terms of an international treaty. However, there may
be certain dangers in this, if invocation of the
travaux
préparatoires
is resorted to in circumstances where the
rules of international law would not justify such invo-
cation. The Vienna Convention on the Law of Treaties,
1969, may be regarded in this respect as probably
embodying proper customary rules of international law
in relation to the use of
travaux preparatoires.
Article
32 of the Convention provides as follows :
"Recourse may be had to supplementary means of
interpretation including the preparatory work ot the
treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application
of Article 31 [which embodies the general principles of
interpretation of treaties], or to determine the meaning
when the interpretation according to Article 31 (a)
leaves the meaning ambiguous or obscure; or (b) leads
to a result which is manifestly absurd or unreasonable."
The broad literal interpretation of the phrase "offence
connected with a political offence' was not ambiguous
or obscure, nor was it manifestly absurd or unreasonable,
therefore the only circumstance justifying resort to the
preparatory work to the treaty would be to confirm the
meaning already attributed to it
after
applying the
ordinary principles of treaty interpretation. I think we
can regard the Supreme Court's use of the preparatory
work as an example of their use for confirmatory pur-
poses, and no more. There is, however, a
caveat;
if one
is going to follow international law in invoking the aid
of preparatory work when interpreting a phrase in a
statute taken from a treaty to give effect to which the
statute has been passed, the initial interpretation of
the sometimes over-literal principles of Irisn municipal
interpretation ought to be disregarded but ought
instead to follow the more flexible and liberal principles
of treaty interpretation, such as for example are laid
down in Article 31 of the Vienna Convention, the basic
one of which is that "a treaty shall be interpreted in
good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and
in the light of its object and purpose".
The Supreme Court's willingness to consider
travaux
preparatoires
is a departure from the British traditional
reluctance to go behind the text of an act of Parliament
embodying a treaty, and is more in accordance with
US practice where the courts are by no means averse
from examining the preparatory work.
Another point of interest in the Supreme Court's
decision was that the Court, following the same approach
as the House of Lords
R. v Armah
[1963] 3 All E.R.,
177, expressed disapproval of the idea of taking account
in its deliberation of undertakings given on behalf of
the law officers of a foreign country regarding the ques-
tion whether, if surrendered, the person concerned
would be tried for another offence, possibly a political
offence. Paradoxically the British House of Lords in
Keane v Governor of Brixton Prison (The Times,
2nd
April 1971), has now expressed the view that such assur-
ances are properly admissible and can be taken into
account by the Court, although they should not be
regarded as conclusive.
6