§ 3.40 p.m.
§ THE LORD CHANCELLOR
My Lords, with your Lordships' permission I should like, in answer to the first part of my noble friend's Question, to make a statement in similar terms to that which my right honourable friend the Home Secretary has just made in another place about the case of Chief Anthony Enahoro. I will, if I may, use his own words. It is rather a long statement.
"The facts of this difficult case are that Chief Enahoro, who is accused in 869 Nigeria of treasonable felony and related offences, was arrested in Britain under the Fugitive Offenders Act, 1881, on a warrant issued by a metropolitan magistrate, following an application made on behalf of the Nigerian Federal Government. The Act requires a magistrate, before committing the fugitive for surrender, to be satisfied that the evidence raises a strong or probable presumption that he committed the offence mentioned in the warrant. The magistrate at Bow Street was so satisfied, and on his order Enahoro was committed to Brixton prison with a view to being returned to Nigeria to stand his trial.
"Enahoro then applied for a writ of habeas corpus. The application was heard by the Divisional Court presided over by the Lord Chief Justice, who dismissed it. In his judgment the Lord Chief Justice said that he found it quite impossible to say that the magistrate was wrong in holding that a strong or probable presumption of guilt was made out. The Divisional Court also dismissed an application from Enahoro under Section 10 of the Act for relief on the ground that it would he unjust or oppressive or too severe a punishment to return him.
"He then applied for leave to appeal to the House of Lords, but this was refused by the Appeal Committee of the House of Lords.
"It now falls to me, in accordance with Section 6 of the Act, to order Enahoro's return, if I think it just.
"In considering this question, I feel bound to take into account what took place in the Divisional Court and before the Appeal Committee of the House of Lords. If the Divisional Court had thought that Enahoro's return would be unjust, they would have ordered his release; if the Appeal Committee had thought that it would be unjust, they no doubt would have granted leave to appeal.
"On the information before me, I have no reason to think that Enahoro, if he is returned, will not be given a fair trial. There is, however, one matter to which I thought it right to give particular attention. Before the Divisional Court, counsel for the Nigerian Government gave an undertaking that, if Enahoro chose a counsel from England who according to 870 the law of Nigeria was entitled to appear in the Nigerian Court, the Government of Nigeria would not refuse that counsel permission to land merely because he was going to represent Enahoro. I should explain that under Nigerian law no barrister who is not a citizen of Nigeria is entitled to appear in a Nigerian court without a certificate from the Chief Justice of Nigeria.
"The word 'merely' in this undertaking was inserted, I understand, not at the request of the Nigerian Government but at the suggestion of the Divisional Court. From the discussion which took place before the Divisional Court and before the Appeal Committee the courts clearly took this undertaking to mean, and to be intended to mean, that, if the Chief Justice of Nigeria gave his certificate for a named English barrister to appear for Enahoro, the Nigerian Government would not refuse that barrister entry to Nigeria merely because he was going to represent Enahoro, and that they would not refuse him entry unless in his particular case there were other and good reasons. In the light of this undertaking the Lord Chief Justice expressed himself as satisfied that there would be no oppressive action in Chief Enahoro's case to deprive him of the legal representation of his choice.
"I thought it essential to ensure that there should be no misunderstanding between Her Majesty's Government in the United Kingdom and the Nigerian Government with regard to the meaning of the undertaking given on that Government's instructions. I have therefore been in touch, through our High Commissioner in Lagos, with the Prime Minister of the Federation of Nigeria, and I am assured by the Prime Minister that the undertaking has, and was intended to have, the meaning I have stated.
"I have given most careful consideration to all aspects of this difficult case and to all the representations which have been made to me by Chief Enahoro and on his behalf. After weighing everything up I have reached the same conclusion as the courts, and I think it just that I should order his return to Nigeria."
871 In reply to the second part of my noble friend's Question, the Fugitive Offenders Act, which deals with the surrender of offenders within the Commonwealth, does not, as do the Extradition Acts and treaties which regulate our arrangements with foreign countries, exclude political offences from its scope: and treason is specifically mentioned in the list of offences for which the return of a fugitive may be sought under Section 9 of the Fugitive Offenders Act. My right honourable friend recognises that the evolution of the Commonwealth may make it desirable to re-examine this aspect of the 1881 Act. This question has wide implications and he is proposing to consider it further, in consultation with my right honourable friend the Commonwealth and Colonial Secretary. The House will appreciate, however, that it would not be right for the United Kingdom to act unilaterally and that we should have to consult our Commonwealth partners. Meanwhile, it is my right honourable friend's duty to administer the law as it stands.
§ 3.47 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, I thank the noble and learned Lord for his statement. Regarding his answer to the first part of my Question, I should think surely it rests on whether, in fact, Chief Enahoro has committed treason. There are some people in this country who say that he has not committed treason. I have seen evidence that would appear to show that in fact he has not committed treason, and it would seem that the Nigerian Government are persecuting this man because he has been an active member of the Opposition in Nigeria. I fear that if Chief Enahoro is returned he will not have a fair trial and may be liquidated. I quite understand that Her Majesty's Government do not want to displease the Nigerian Government in this extremely ticklish question, but I feel that a principle of justice is here involved, and an extremely important one, because it would be fatal for the Commonwealth in general if a British Government took sides in Party politics in the countries of the Commonwealth. I am extremely frightened that if Chief Enahoro is returned there are people who may produce other evidence that will be deplorable. Regarding the Answer to the 872 second part of my Question, I am very pleased to hear that Her Majesty's Government are to examine the Fugitive Offenders Act as regards the Commonwealth.
§ 3.49 p.m.
§ THE LORD CHANCELLOR
My Lords, my noble friend's supplementary question somewhat resembled a speech, but there are two or three points which he has raised to which I should like to reply. First of all, I would say that there is no question whatsoever of my right honourable friend seeking to take sides in the Party politics of the Commonwealth. Secondly, I regret that my noble friend felt it justifiable for him to make any reflection upon the administration of justice in the courts of Nigeria. I have no reason at all to suppose that if Chief Enahoro is returned he will not receive a fair trial; and to suggest that he will be liquidated implies, I think, that justice is not properly administered in that country. I would tell my noble friend that if after the prosecution's case against him and his defence have been heard he is convicted, he will then have the right to appeal to the Judicial Committee of the Privy Council.
I said in my original Answer that it is not a question of the Government's being satisfied or otherwise that he has committed treason. The question is first of all for the courts of this country to be satisfied, before a warrant is issued for his return, that there is a strong or probable presumption of his guilt. The magistrate was so satisfied, and the Divisional Court and the Appeal Committee of your Lordships' House must have been so satisfied in refusing leave to appeal. Therefore there is, so far as this Government and my right honourable friend are concerned, no question whatsoever of persecuting this man.
§ EARL ALEXANDER OF HILLSBOROUGH
My Lords I am obliged to the noble and learned Lord on the Woolsack for the statement he has made to the House. This is undoubtedly a very difficult case, as the noble Lord has said. We have a great deal of sympathy with the Home Secretary in his task in dealing with the matter. There is no Statute operating on this later than the Act of 1881. What a vast number of changes have taken place within the constitution of members of the Commonwealth since 873 then! There is no general legislation between us on any extraditable matter, so far as I can see. Obviously, the remarks of the Home Secretary need to be carefully considered as a whole in relation to future action.
With regard to this particular case, it seems to me, from the Home Secretary's statement, that very great care has been exercised in examining the case from every point of view. The only matter I was a little doubtful about was the formula which apparently had to be adopted by our High Court in giving judgment as to a reasonable question of law. I should have thought that if they could have said there may have been a prima facie case, it would have been a little more fair to a man who may have to return to his own country for trial. I myself would say that the Home Secretary has taken the steps he has in order to make secure the right of the man concerned when he returns to have the lawyer of his choice. I think that that is a very important thing indeed.
The only other point is that, whilst all this examination must go on now as to what must be the future course of procedure in cases of this kind in the Commonwealth, I am very anxious, if there should be the necessity for an appeal to the Privy Council, that some arrangement should be made by which it would be possible for the man to be able to proceed on such a course without finding that he has not the means to have the case conducted for him.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Earl for the views he has expressed with regard to the Act of 1881, and I will draw my right honourable friend's attention to what he has said. With regard to the formula, he raised the question of whether there was a prima facie case. In fact the Act lays down the formula, and the words I quoted were the words from the Act: "a strong or probable presumption". That is one of the matters which might be taken into account when the Act is being reviewed. On the other hand, as I am sure the noble Earl will appreciate, the requirement of "a strong or probable presumption" puts a heavier burden on the prosecution and so is a greater safeguard for the fugitive than if it merely required the establishment of a prima facie case. It 874 requires a greater burden of proof to entitle the courts here to grant the warrant. That is a matter we need not debate here to-day, but it might have to be borne in mind.
In his next point the noble Earl made reference to the lawyer of the man's choice. I think I need not repeat what I said on that matter. The words were very carefully chosen in the High Court. The meaning to be attached to them is perfectly clear. It is not a completely unqualified undertaking, and I am sure that that is also clear.
§ LORD MORRISON OF LAMBETH
My Lords, one point arises from what the noble and learned Lord the Lord Chancellor has said, and that is in regard to this question of "a strong or probable presumption" of his guilt. What worries me is that the man is not being tried in this country for the substance of the offence which he is alleged to have committed in another country. I should have thought that this is going rather far. I do not see how our courts can try the substance of the offence to the extent of being satisfied in the language of the Act of 1881 quoted by the Lord Chancellor.
As I say, I think this is going rather far, and it would need almost a first-class trial on the merits of the case, with counsel for the prosecution and counsel for the defence. I hope the Lord Chancellor will encourage some alteration in the law in that respect, because this might prejudice the man's trial when he gets home. I admit that there are arguments against what my noble friend has suggested as to a prima facie case, but as the man is not being tried on the substance of the charge in the United Kingdom, a prima facie case—that is to say, by a court which thinks there is something to try—is about as far as could be gone.
§ THE LORD CHANCELLOR
In answer to the noble Lord, I should like to make this reply. First of all, it is quite true that our courts here are not trying the charge of treason and the other two serious charges in this case, but before the magistrate can act and grant a warrant for the man's return the courts here have to be satisfied that there is a strong or probable presumption of his guilt. The noble Lord seems 875 to be under the impression that the finding of the courts of this country on that point, which would authorise his return, might prejudice his trial when he gets back to Nigeria. I do not believe that evidence in relation to that matter will be allowed to be led before the court. But I would make the point to him that if you reduce the burden of proof resting on the prosecution who are seeking a man's extradition, if you alter the Act to say that all they have to do is to produce a prima facie case, then it means that people can be more readily extradited to other countries to stand their trial.
§ LORD JESSEL
My Lords, could I ask the Leader of the House for his guidance on a question of procedure? When a Question is answered by a statement, is it to be treated as an Answer to a Question or as a statement?
§ THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM)
My Lords, for this purpose I should think that my noble and learned friend on the Woolsack was in fact answering a Question on the Order Paper by repeating a statement made in the House of Commons. The House is, of course, the master of its own procedure, but I think that it would ordinarily be desirable that the same kind of latitude should be given to it as would be given to any other statement made at this hour. I feel quite certain that had the Question not appeared on the Order Paper, my noble and learned friend would have repeated the Statement made by, the Home Secretary in another place.