REMEMBER-CHILE QUERIES JACK STRAW ON GENERAL PINOCHET'S FITNESS TO PLEAD
(This letter was sent to the Home Office on 2.2.00, following an earlier version on 17.1.00)
Dear Mr Straw,
(http://www.remember-chile.org.uk) has conducted its own legal
research into the current situation with regards to General
Pinochet's fitness to stand trial (or fitness to plead). We are
unclear as to why the following three points seem not to have
received much attention, and we would be grateful if you could
enlighten us as to either:
- where we have overlooked the attention which they have received, or
- why the points are not seen to be pertinent.
1. The Home Secretary's scope for discretion seems to be stated in the Extradition Act 1989 section 'Order for return':
"s.12(2) Without prejudice to his general
discretion as to the making of an order for the return of a person to
a foreign state, Commonwealth country or colony -
(a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that -
(i) by reason of its trivial nature; or
(ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(iii) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."
- What is this "general discretion" and how
is its scope limited?
- Does it not look like it would be "unjust or oppressive to return him" - the basis on which you seem to have justified your decision - only when we have a case of (i),(ii) or (iii)?
2. The Criminal Procedure (Insanity) Act 1964 s.4(4) - reiterated in the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 in a general note - states, "The question of fitness to be tried shall be determined by a jury."
- Is the Home Secretary not bound by this statutory requirement for a hearing before a jury?
3. The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Article 9, would
seem to have been violated, especially in the light of letters
obtained by the Spanish newspaper El País. In their
report of 30.1.00, these letters show that the Home Office suggested
that the results of General Pinochet's medical examination should
remain out of reach to the Crown Prosecution Service, acting on
behalf of the Spanish courts.
"1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them." [Our emphasis.]