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Wednesday, December 9, 1998 Published at 18:09 GMT


Q & A: Jack Straw's decision explained

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From: Joshua Rozenberg, BBC Legal Affairs Correspondent

To: BBC News Online

Subject: The Home Secretary Jack Straw's decision to allow extradition proceedings against General Pinochet to go ahead.

The pinochet File

What happens now the Home Secretary has given his authority to proceed with the extradition of General Pinochet?

Clearly, General Pinochet must remain in the UK while the extradition proceedings continue, presumably on bail as before. His lawyers will almost certainly seek to challenge the home secretary's decision by asking the High Court for judicial review, delaying the extradition process.

On what criteria has Mr Straw based his decision?

Mr Straw made it clear he would act in a quasi-judicial' manner - as if he were a judge. That meant he would have to weigh up the competing arguments before reaching his decision. He should have taken account of all the representations he received to avoid the risk of his decision being overturned by the courts.

The section of the Extradition Act dealing with granting the authority to proceed does not specify any criteria on which the Home Secretary must base such decisions. That left him with a very broad discretion. However, Mr Straw listed some of the issues he would consider when he answered a parliamentary question on 22 October. These were:

  • Whether the offences are extradition crimes.
  • Whether the request is properly authenticated.
  • Whether the offences are of a political character.
  • Are there any compassionate circumstances to take into account?

    It follows from the Law Lords' decision that at least some of the offences alleged are extradition crimes. It is likely that the Spanish authorities will have made sure their formal request was properly authenticated. It was never argued that the offences were of a political character and the Law Lords rejected the claim that they were within the official duties of a head of state.

    The question of compassion is a difficult one. But it is worth noting that that the Crown Prosecution Service works on the basis that the more serious the offence, the more likely it is that a prosecution will be needed in the public interest. Prosecutors also take less account of a defendant's age if he is facing serious charges, such as murder.

    Is it just a legal decision or do politics come into it?

    In the parliamentary answer Mr Straw gave on 22 October, he added: 'this will not be a political decision: I am exercising my statutory responsibilities'. On the other hand, if parliament has given a discretion to a politician it can hardly expect that politician to ignore political issues.

    Mr Straw had to decide whether someone whose extradition is sought should be sent to the country which wants to try him. On this issue, Lord Nicholls - one of the law lords in the case - said: 'Arguments about the effect on this country's diplomatic relations with Chile if extradition were allowed to proceed, or with Spain if refused, are not matters for the court. These are, par excellence, political matters for consideration by the secretary of state in the exercise of his discretion under section 12 of the Extradition Act.'

    Is it just the Spanish request that has been considered here - other countries have lodged similar charges?

    Jack Straw's decision deals with Spain's request for extradition, which is more advanced than any of the others.

    What will happen if General Pinochet's lawyers apply for judicial review?

    If applications are made for leave for judicial review in the High Court this will delay the normal extradition process. The losing side in the High Court could appeal again to the Law Lords. A different panel of Law Lords would be expected to hear the appeal.

    What would follow an application for judicial review?

    Eventually, when the legal process has concluded, a decision will be taken by the magistrate on whether Pinochet should be extradited. If he decides not to do so, the Spanish government can bring a further challenge in the High Court and the House of Lords. If he decides to let the extradition go ahead, Pinochet has two weeks to decide whether to challenge the decision in the High Court and then again in the House of Lords.

    Will the Home Secretary have to be consulted again?

    If the courts finally decide Pinochet cannot be extradited, that is the end of the matter. If the answer is yes, it is then back in the hands of the Home Secretary. Only he can issue what's called the "order to return" - which actually means the order to surrender him to the Spanish authorities. At this stage Mr Straw again has wide discretion. The Extradition Act 1989 says the Home Secretary must not make an order if it appears that:

  • the offences alleged are trivial, or
  • because of the passage of time since the offences were committed, or
  • because the accusation against Pinochet is not made in good faith and in the interests of justice, it would "having regard to all the circumstances" be "unjust or oppressive" to do so.

    All this could take months, even years. Lorrain Osman, wanted in Hong Kong on fraud charges, was arrested in London in 1985 and finally surrendered to Hong Kong in 1992.

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