Political Offences

Political Exception

Surrender arrangements have commonly provided exceptions for political offences.  The Geneva Convention protects persons who are persecuted for political opinion.

The rationale behind the political exception which dates back to the commencement of extradition, is readily apparent.  States are not willing to extradite their citizens to face prosecution for essentially political activity, which may be criminalised as treason or sedition. The position is recognised in international Conventions. Modern Conventions provide specifically for exceptions for certain types of offence.

Subject to exceptions in the Extradition Act, 1987 the general principle under the Irish  Extradition Act, is that extradition is refused where the crimes is political or connected with a political offence.

The political exception does not apply to the European arrest warrant, although there are other protections against discrimination on various grounds.  Many forms of mutual assistance under criminal justice mutual assistance legislation are subject to exceptions in the case of political offences.

Modern Conventions Restrictions

There are a number of international approaches to the political exception.  Some may focus on the nature of the act.  They may focus on the context in which the act was performed or committed. Others may look at the individual’s motive. Another approach defines political to refer to political control of the State.

Over the last 50 years, the political exception has been held not applicable to certain types of offences, at all.  It does not include

• killing of a head of state, or family member;
• offences under the Convention on Drug Trafficking;
• offences under Convention on Terrorist Bombings;
• offences under Convention on Financing Terrorism;
• offences of genocide,
• crimes against humanity
• related offences of attempts and conspiracy etc.;

The provisions in respect of extradition are repeated in the Criminal Justice (Mutual Assistance) legislation, apart from the exclusion of terrorism, drug trafficking,  organised crime, and acts of violence creating a collective danger.

Courts do not look at the merits of the cause.  Causes aimed at overthrowing governments, and opposing governmental policies are usually political in this context.  It may also include objectives of forced change to the government or sovereignty.  The political dispute must be with the requesting State who makes the extradition request.

Terrorist Offences

1977 European Convention on the Suppression of Terrorism excluded terrorist offences from the political exception under the Council of Members State’s extradition arrangements. The United Nation’s Convention on the Suppression of the Financing of Terrorism excluded the political exception for any act causing death or serious bodily injury to a civilian or any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act by its nature is as to intimidate a population or compel a government or an international organisation to do or abstain from doing an act.

The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, also excludes a range of more serious drugs related offences.

Offences under the following are excluded from the political exception

• Suppression of Terrorist Bombing Convention 1997;
• Suppression of Unlawful Acts against Safety of Fixed Platforms on Continental Shelf, 1998; Suppression of Unlawful Acts against Safety of Maritime Navigation, 1988;
• Suppression of Unlawful Acts of Violence against Airports serving International Civil Aviation, 1988.
• Physical Protection of Nuclear Material, 1980;
• Against the Taking of Hostages, 1979;
• Prosecution and Punishment of Crimes against Internationally Protected Persons, 1973;
• Suppression of Unlawful Acts against Safety of Civil Aviation, 1971;
• Suppression of Unlawful Seizure of Aircraft, 1970.

Developments in Ireland

In the context of Republic of Ireland and UK relations, during the period of the Northern Ireland “Troubles”, the question of the political exception proved very controversial. The Extradition 1965 Act, the governing legislation provides that extradition should  not be granted for an offence which is a political offence, or an offence connected with a political offence.

The exception also applies if there are substantial grounds for believing the request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, or political opinion or that the person’s position may be prejudiced by any of these reasons.  It also applies if there are substantial grounds for believing that if the request for extradition is granted, the person might be subjected to torture.

In the early 1970s and 80s, the Irish courts treated many offences arising out of Northern Ireland violence as political.  The Courts have been unwilling since the 1980s, to treat crimes or physical violence against civilians as capable of being political.  Malicious or barbarous crimes, political killings, indiscriminate murder and  rape are unlikely to be accepted as political.

Cases in the early 1980s excluded the political offence exception for violent crime, particularly against civilians. It required that the offence arose out of political activity. However, this approach was rejected by the Supreme Court in 1990 in the case of a firearms offence and also in respect of breakout from prison.  In 1990 Finucane v McMahon, the Supreme Court held that extradition arising from the escape should be refused as political overruling earlier decisions. The Supreme Courts so held notwithstanding that the action was conducted by a body illegal in the State. The events predated the 1987 Act.

Mr Justice Walsh delivered the leading judgement in the case.: “The fact that the policy or activities followed by a group of persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the Government of Ireland in relation to the unity of the country, is not in my view sufficient to equate it with a policy to overthrow the State or to subvert the Constitution of this State.”

European Convention on Terrorism

Ireland signed the European Convention on Terrorism, after the Anglo-Irish Agreement, 1985 The European Convention on Suppression of Terrorism is still applicable to certain non-EU arrest warrant States. The European Convention on the Suppression of Terrorism was given effect by legislation in 1987.  It excludes a range of offence types from the political exception.

The Extradition (European Convention on the Suppression of Terrorism) Act, 1987 excluded any “offence involving the use of an explosive or an automatic firearm, if such use endangers persons.” The purpose was, in effect to open extradition to the UK in respect of terrorist type activities in Northern Ireland.

The Convention amendments were implemented by legislation in 1994 and 2001. Where the acts concerned, if they occurred in Ireland, were within the schedule of offences listed in the Extradition (Amendment) Act, 1994, they are not political offences.  This covers

• murder,
• manslaughter,
• kidnapping,
• false imprisonment,
• assault occasioning actual bodily harm,
• explosives and firearms offences,
• criminal damage,
• burglary,
• robbery,
• offences involving vehicles and aircraft;
• serious offences against internationally protected persons;
• kidnapping,
• hostage taking,
• false imprisonment;
• offences involving the use of an explosive or automatic firearm if such use endangers persons; any serious offence involving acts of violence against life, physical integrity, or liberty of a person or involving an act against property, if the act created a collective danger for persons.

The Extradition Act political exception does not apply to offences under the

• United Nation’s Illicit Traffic in Narcotic Drugs Convention, 1988;
• Convention on Suppression of Terrorist Bombing, 1997;
• Suppression of Terrorism Financing, 1999.

EU Developments and EAW

The Convention on the Prevention of Terrorism, 2005, followed the 9/11 World Trade Centre attacks which required States to criminalise terrorist and terrorist financing activity. The EU Framework Decision on Combating Terrorism required the criminalisation of terrorism. The EU Directive on Money Laundering for Terrorist Offences further reduced the scope of the political exception.

The EU Framework Directive, 2002 And Directive, 2005 were implemented by the Criminal Justice (Terrorist Offences) Act, 2005 and the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010.  The Acts defined terrorist activity as any act which is committed inside or outside the State, that if committed in the State, would constitute a specified offence or is committed with the intention of

• seriously intimidating a population;
• unduly compelling government or an international organisation to perform or abstain from performing an act, or
• seriously disturbing or destabilising the fundamental, political, constitutional, economic or social structures of a State or of an international organisation.

The offences scheduled include, murder, manslaughter, rape, hostage taking, terrorist bombing, non-fatal offences, many assault type offences, malicious damage, explosive substances, firearms act, air transport navigation, chemical weapons, radiological protection, post office and criminal law jurisdiction act offences. Terrorist groups are declared unlawful and terrorist offences may be prosecuted whether they are committed domestically or internationally.

EU Mutual Assistance

If an offence is subject to extradition under  the Criminal Justice (Mutual Assistance) Act, it may not be refused for political reasons or on political grounds.  The exclusion does not apply to offences within the European Convention on Suppression of Terrorism, nor  to conspiracy  involving contribution to a group whose common purpose is to commit one or more of terrorism as defined by the Convention,

• drug trafficking,
• any form of organised crime;
• any other acts of violence against life, physical integrity or liberty,
• an offence punishable with at least 12 months imprisonment.

The UN Convention’s resolutions have required freezing of assets of certain groups or even individuals from time to time.  Effect is given under European Union legislation, the Criminal Justice (Terrorist Offences) Act or Financial Transfers Act.

Orders have been made in respect of particular so-called rogue States and particular groups including Al Qaeda and Osama bin Laden.