Remember-Chile, August 2002.

Remember-Chile has been trying to establish the truth behind British Home Secretary Jack Straw's executive decision to release General Pinochet.

We have asked Amnesty International and Bindman & Partners Solicitors whether they had, at the time, considered 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 - which states,

The question of fitness to be tried shall be determined by a jury.

On 23 July 2002, Claudio Cordone, Amnesty International's Project Coordinator for the Pinochet case, responded to our queries, saying, "I am sorry I have not been able to reach the various parties involved in the legal advice regarding Jack Straw's decision to allow Pinochet to return to Chile." Failing to provide any further explanatory detail, he added, "at the time it was clear to our advisers that we would not have been successful.  Basically, we recognized the wide discretion provided by law to the Home Secretary on extradition matters and the fact that we had gone as far as we could in testing it in court."

However, on 17 July 2002, we had finally been able to elicit a response from Geoffrey Bindman. He agreed with our speculation that, most likely, Jack Straw "took the view that the statutory requirement for a hearing before a jury to determine fitness to be tried did not apply in this case." Mr Bindman did not state his own view on the matter, or whether he and the Amnesty legal team had considered this legal point at the time.

Unfortunately, the Home Secretary similarly made no mention of this statutory requirement during his twelve-page 'justification' of his exercise of executive discretion. What he does state, however, is that whereas on the one hand it was the clinicians' responsibility to establish "the clinical facts", on the other hand,

"[t]he test of fitness for trial which has been applied, both in framing their instructions and in assessing their report, is the responsibility of the Secretary of State, who in turn has drawn extensively upon the opinions of his legal advisors." (2 Mar 2000, Column 360W, 12; p.3.) [My emphasis]

This raises the question of the Home Secretary's legitimate scope for discretion. The Home Secretary's scope for discretion seems to be stated in the Extradition Act 1989 section 'Order for return':

s.12(1) ... the Secretary of State may by warrant order [the accused] to be returned unless ... the Secretary of State decides under this section to make no such order in his case.
s.12(2) Without prejudice to his general discretion as to the making of an order for the return of a person... [My emphasis]

Within the text of the 1989 Act, this is the only mention of "discretion". Thus, is it not somewhat an open question what "general" means here? We can turn to the General Note accompanying s.12, which elaborates:

[I]t is a general discretion in the sense that the Secretary of State may refuse to return a fugitive even though he is otherwise entitled to do so by the Act. The exercise of his discretion in this way will be extremely rare, entailing, as it almost certainly would if the extradition arrangements were based on treaty, a breach of international law. Nonetheless, it is possible to imagine circumstances of severe disorder in the requesting state, say where a minister would feel justified in not returning a fugitive; see Working Party Report, para. 8.5. [My emphasis]

Now, Jack Straw made clear that although the European Convention on Extradition had not been incorporated into UK domestic law,

the Secretary of State attaches great importance to the international obligations of the United Kingdom, and in the exercise of his discretions under the Extradition Act he regards those obligations as both relevant and entitled to considerable weight. In most cases to which the Convention applies they will be decisive. (Column 365W, 30; p.8.)

He continues, however,

the Secretary of State recognises that given the breadth of his discretion under section 12 of the Act there may be some occasions on which the requirements of the Convention are outweighed by other compelling considerations peculiar to particular cases. The Secretary of State considers that they are outweighed by such considerations in this case… (ibid.)

Is there not at least an arguable case that Jack Straw was over-stating his scope for discretion? The General Note to s.12 of the 1989 Act would suggest extreme situations when there is nothing to be done but place a discretionary block on extradition, when no formal legal process exists. This was not the case here. The question was of Pinochet's mental fitness to stand trial; for such a scenario, there existed a perfectly normal, legal process: a deliberation by a jury, as set out in Criminal Procedure (Insanity) Act 1964 s.4(4) and reiterated in the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 in a General Note.

Thus, it can quite clearly be argued that Jack Straw, by claiming that "[t]he test of fitness for trial which has been applied… is the responsibility of the Secretary of State," had stepped beyond his legitimate scope for discretion, in this particular instance by usurping the power of the jury.

The upshot of this, it would seem, is that there were grounds for a judicial review of the Home Secretary's decision to block the extradition of Pinochet to Spain, the grounds being illegality (substantive ultra vires) and procedural impropriety (procedural ultra vires).

Thus, the medical evidence concerning Pinochet's mental capacity to stand trial could, perhaps, have been subjected to open scrutiny before a jury. The result of such deliberation would not have been a foregone conclusion. Before Jack Straw's final decision, a member of the Royal College of Psychiatrists - an NHS consultant in Old Age Psychiatry who had previously provided expert witness evidence in cases of fitness to stand trial - produced a report denying that the available evidence demonstrated in Pinochet a mental incapacity to stand trial. On 20 February 2000, this report was sent to the Home Secretary, to Bindman & Partners, to Amnesty International and to many media outlets. A legal case for hearing the evidence before a jury had similarly been sent out. Jack Straw may have looked at these but, apart from this possibility, they were universally ignored.

We have now presented Mr Bindman with the following questions:

1. a) Did you consider this argument at the time of the Home Secretary's decision to release Pinochet?
b) If so, why did you believe the argument to be insufficient to justify applying for a judicial review?
c) Did you bring this legal argument to the attention of Amnesty International?
2. a) Did you believe that the medical report on Pinochet's psychological condition demonstrated that he was mentally unfit to stand trial?
b) If so, on the basis of who's expert opinion did you arrive at this belief?
3. Did you, or Amnesty International, come to an agreement with government officials not to press this case any further?

We ask the final question in view of the fact that, in December 2001, Geoffrey Bindman was fined £12,000 at a disciplinary hearing of the Office for the Supervision of Solicitors over two charges of conflict of interest and one of "improperly passing on confidential information".[1]  Reportedly "the Labour Party's favourite lawyer", Bindman, chairman of the Society for Labour Lawyers, had previously been looked to for legal assistance by Jack Straw. Thus, might there not have been a conflict of interest here? Might not the closeness of the connection between Geoffrey Bindman and the Home Secretary Jack Straw - against whom Bindman was acting for Amnesty International - have mitigated against Bindman pursuing the case against General Pinochet with the necessary vigour?

By Keith Fisher, August 2002.
keith@flyingfish.org.uk