SENATOR AUGUSTO PINOCHET UGARTE
Home Secretary Jack Straw today announced that he has decided not to
extradite Senator Pinochet.

The reasons for this decision are set out in the attached answer to a
written Parliamentary Question.

E.R

Thursday, 2 March 2000

Written No 8
(15.02.00)

Mr Paul Clark (Gillingham): To ask the Secretary of State for the
Home Department, if he will make a further statement on the case of
Senator Pinochet. (110637)

MR STRAW

I have today, decided that I will not order the extradition of
Senator Pinochet to Spain. I made this decision under section 12 of
the Extradition Act 1989. I have referred the case to the Director
of Public Prosecutions for consideration of a domestic prosecution,
in accordance with Article 7 of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. I have also decided not to issue Authorities to Proceed
in respect of the extradition requests from Switzerland, Belgium and
France. Full reasons for my decisions are contained in the letters
to the parties concerned from one of my officials as set out:

Letter to the Spanish Ambassador:

2. I am writing to inform you that the Secretary of State has
this morning decided pursuant to Section 12 of the Extradition Act
1989 to make no order for the return of Senator Pinochet to Spain.
This letter sets out the Secretary of State's reasons. He reserves
the right to expand on them should it become necessary to do so.

The Secretary of State's approach to his decision.

3. On 14 April 1999, the Secretary of State issued an Authority
to Proceed under Section 7 of the Act on certain of the charges made
in Spain's extradition request. On 8 October 1999, Senator Pinochet
was committed by the Bow Street Magistrate on all charges covered by
the Authority, to await the decision of the Secretary of State as to
whether he should be extradited to Spain. A habeas corpus
application was made on Senator Pinochet's behalf on 22 October 1999,
which has not yet been heard.

4. The Secretary of State is precluded by the Act from making an
order for Senator Pinochet's extradition while his habeas corpus
application is still pending. In the ordinary course the Secretary
of State would not make a decision to refuse such an order until all
proceedings arising out of the habeas corpus application had been
completed. However, he has a discretion to do so in appropriate
cases and a duty to consider whether this is such a case. In
approaching that discretion, he has proceeded on the basis that he
should not at this stage decide against making an extradition order
unless it is already clear that there is some decisive factor which
would lead him to refuse such an order at the end of the day. The
only factor militating against the extradition of Senator Pinochet
which is potentially decisive at this stage is the state of his
health, and in particular his mental fitness to stand trial.

Representations

5. On 11 January 2000, the Secretary of State informed those
acting for Senator Pinochet and the Kingdom of Spain that he had
commissioned a medical report on Senator Pinochet, which had been
delivered to the Home Office on 6 February 2000. He informed them
that the report indicated that Senator Pinochet was unfit to stand
trial, and that no significant improvement to that position could be
expected. Subject to representations to be received at the Home
Office by 5.00 p.m. on Tuesday 18 January 1999, he said that he was
minded to conclude that no purpose would be served by continuing the
current extradition proceeding arising from the Spanish request.
Similar letters were sent to representatives of Amnesty
International, Human Rights Watch, and other human rights
organisations, which invited them to make such representations if
they wished. A statement to the same effect was made to the press on
11 January 2000, and in the House of Commons on the following day.

6. The Secretary of State has received representations from most
of those who were expressly invited to make them, as well as from a
large number of other parties. He has taken careful account of them.
He has also taken account of the points in recent judicial review
proceedings in the High Court. In addition, he has reminded himself
of the representations which were made to him on the two occasions,
in December 1998 and April 1999, when he considered whether an
Authority to Proceed should issue under Section 7 of the Act in
respect of Spain's extradition request.

7. On 15 February 2000, the High Court decided that the Secretary
of State was bound to disclose copies of the medical report in
confidence to the authorities of Spain, Belgium, France and
Switzerland, all of whom have made requests for the extradition of
Senator Pinochet. Copies of the report, together with certain
ancillary material, were supplied to the Crown Prosecution Service on
behalf of Spain and to the embassies of Belgium, France and
Switzerland later on the same day. They were invited to make any
representation on the report by 5.00 p.m. on Tuesday 22 February
2000. Representations were received in response to this invitation
from all four requesting states. In the case of Spain, Belgium and
France these included opinions from medical practitioners about the
material sent to them on the Tuesday 15 February 2000. In addition,
some other representations on the medical report have been received.
The Secretary of State has carefully considered these representations
and the opinions annexed to them, with the benefit of expert advice.

Senator Pinochet's health

8. At the time when the Secretary of State was considering his
first and second Authorities to Proceed, he received representations
and a certain amount of information about Senator Pinochet's state of
health from his solicitors. The tenor of this material was that
Senator Pinochet was in some respects frail, as was to be expected in
a man of his age. It did not, however, suggest that he was either
physically or mentally unfit to stand trial. The Secretary of State
did not regard this information as justifying the refusal of either
of the Authorities to Proceed which he then issued.

9. The first sign that a serious problem about Senator Pinochet's
health might be developing came on 6 October 1999, when, two days
before judgment was given in the committal proceedings, the Bow
Street Magistrate excused him from attending the judgment in person.
This decision was based on evidence given to the court by the general
practitioner attending Senator Pinochet.

10. On 14 October 1999, shortly after the decision of the
Magistrate to commit Senator Pinochet, the Secretary of State
received through diplomatic channels representations from the Chilean
Embassy, supported by medical reports, which suggested that there had
been a recent and significant deterioration in Senator Pinochet's
health. The Secretary of State did not regard this material as
conclusive. It did, however, suggest the possibility that Senator
Pinochet might be unfit to stand trial. He therefore decided to
invite Senator Pinochet to submit to a medical examination by a team
of clinicians appointed by him. The object was to obtain an
independent, comprehensive and authoritative report on the relevant
clinical facts. Senator Pinochet consented to undergo an
examination, and the Secretary of State then selected, with the
assistance of the Chief Medical Officer's advice, a team of
clinicians to carry it out, having the required range of
specialisations and no inappropriate personal interest in the case.
They were:

Sir John Grimley Evans FRCP, Professor of Clinical Geratology at the
University of Oxford. He is a former Vice President of the Royal
College of Physicians and serves on the World Health Organisation
expert panel on the care of the elderly. The Chief Medical Officer
identified him as probably the most respected individual in British
geriatric medicine.

Dr. Michael Denham MD, FRCP (Lond., Edin.), FRSA, Consultant
Physician in Geriatric Medicine at Northwick Park Hospital, London.
He is a former President of the British Geriatrics Society and the
author of numerous papers on the care of the elderly.

Professor Andrew Lees MD, FRCP, Professor of Neurology at the
National Hospital for Neurology and Neurosurgery, London. Professor
Lees is a specialist in movement disorders and dementia. He is
medical adviser to, and Co-Director of, the Parkinson's Disease
Society.

All three are independent practitioners of outstanding national and
international reputation in their fields. On their advice and with
the agreement of the Chief Medical Officer, Maria Wyke MA, PhD,
Consultant Neuropsychologist, was added to the team. Professor Lees
and Dr Maria Wyke are fluent Spanish speakers.

11. The clinicians were instructed to undertake the examinations
and procedures which they judged desirable in order to provide the
Home Secretary with a fully comprehensive report on the state of
Senator Pinochet's health. In particular, they were asked to advise
the Secretary of State whether, in their view, there were any aspects
of Senator Pinochet's state of health which, separately or together,
suggested that he was not then fit, or was likely to become unfit, to
stand trial in Spain. They were told that the Secretary of State was
particularly interested in Senator Pinochet's ability to follow a
line of questioning, to recall events, some of which took place as
long ago as the 1970s, and to give coherent evidence. To the extent
that any of the contents of their report were influenced by
observation of Senator Pinochet's conduct and manner, they were asked
to advise the Secretary of State on the extent to which that conduct
and manner were capable of being consciously influenced by the
Senator himself.

12. It should be pointed out that the clinicians were not
expected, in reaching their conclusions, to take responsibility for
the legal test of fitness for trial, nor does the Secretary of State
consider them to have done so. Their function was to ascertain the
clinical facts. The 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 advisers.

13. The medical examination was conducted in Spanish at the
Northwick Park Hospital in London over a period of some six hours on
5 January 2000, and the report was delivered to the Home Office on
the following day. Certain information supplementing the report was
supplied afterwards. This comprised (i) a short account of the
procedures followed at the examination, which was supplied by
Professor Grimley Evans on 7 January 2000; (ii) a copy of the
neuropsychological report of Dr. Wyke, which had been summarised in
the principal report but not annexed to it; and (iii) an explanation
of neuropsychological testing by way of introduction to Dr. Wyke's
report. This material was supplied to the four requesting states
with the principal report on 15 February 2000. In addition, the
Secretary of State has referred to Professor Grimley Evans and his
colleagues the representations received on their report, and medical
opinions annexed to those representations, and he has received their
comments.

14. As the Secretary of State disclosed in his announcements on
11 and 12 January 2000, the conclusions of the medical report
indicated that Senator Pinochet was unfit to stand trial and that no
significant improvement to that position could be expected. The
Secretary of State has considered the matter afresh in the light of
all the material referred to in the preceding paragraph, and in the
light of representations which he has received on the subject.
Having done so, he is satisfied that the conclusions of the original
report were correct and that it is right to regard Senator Pinochet
as unfit to stand trial.

15. The critical facts are as follows:

(1) Senator Pinochet was born on 25 November 1915. He is
eighty-four years old. The Secretary of State does not regard
Senator Pinochet's age as being in itself a sufficient basis for his
present decision. But he has taken account of it in assessing the
significance of other aspects of his state of health.

(2) The clinicians instructed by the Secretary of State
concluded that Senator Pinochet would not at present be mentally
capable of meaningful participation in a trial. In reaching that
conclusion, they were obliged to make assumptions about what kind of
participation in a criminal trial would in law be regarded as
'meaningful' in determining the fitness of an accused. Those
assumptions are apparent from the conclusion of their report and are
considered in sub-paragraphs (3) and (4) below. So far as the
Secretary of State has attached weight to them, he is satisfied that
they are appropriate.

(3) The clinicians expressed their opinion about Senator
Pinochet's capacity for meaningful participation in a trial on the
basis of (i) Senator Pinochet's memory deficit for both recent and
remote events; (ii) his limited ability to comprehend complex
sentences and questions owing to memory impairment and a consequent
inability to process verbal information appropriately; (iii) his
impaired ability to express himself audibly, succinctly and
relevantly; and (iv) easy fatiguability. The Secretary of State
considers that all of these factors are potentially relevant to
Senator Pinochet's mental capacity to participate in a trial. In
this context, he attaches particular importance to Senator Pinochet's
memory deficit for recent events, which would affect his ability to
relate and understand items of information given to him at a trial,
and to his limited ability to comprehend complex sentences and
questions and to process verbal information. The Secretary of State
has not attached weight to the impairment of Senator Pinochet's
capacity to remember remote events, save insofar its recent
deterioration is symptomatic of brain damage having a wider
significance: see sub-paragraph (6) below.

(4) With these impediments Senator Pinochet would be unable to
follow the process of a trial sufficiently to instruct Counsel. He
would have difficulty in understanding the content and implications
of questions put to him and would have inadequate insight into this
difficulty. He would have difficulty in making himself understood in
replying to questions.

(5) In assessing the significance of the above matters, the
Secretary of State has considered the nature of the issues which
would be likely to arise in a criminal trial on the serious charges
for which Senator Pinochet has been committed. He has also assumed
that at any trial reasonable steps would be taken to mitigate Senator
Pinochet's disabilities, for example, by attending to his physical
comfort and medical needs, by adjusting the timetable of hearings,
and by endeavouring to simplify the proceedings so far as their
nature permitted. He has reminded himself that the burden of proof
at any trial would be on the prosecution. The Secretary of State
does not consider that these matters are capable of mitigating to a
significant degree the difficulties to which Senator Pinochet's
disabilities would give rise.

(6) The disabilities identified in the medical report are due
to widespread brain damage, the major episodes of which seem to have
occurred during September and October 1999 when Senator Pinochet
suffered a number of strokes. They are not due to the ordinary
processes of ageing.

(7) The examination took place on a single day, but the
clinicians had access to reports prepared by reputable British
general practitioners and specialists attending Senator Pinochet who
had examined him on a number of occasions in September and October
1999. These enabled them to cross-refer their observations on 5
January 2000 to earlier observations and to evaluate a characteristic
pattern of illness as it had evolved over a period of several months.

(8) The clinicians considered that further deterioration in
both his physical and his mental condition was likely to occur, but
were unable to express an opinion on the effect (if any) which a
trial would have on the rate of deterioration. Their view was that
although some day to day fluctuation in functional abilities was
characteristic of brain damage due to cerebrovascular disease,
further sustained functional improvement of a significant degree was
unlikely.

16. The Secretary of State has always attached great importance
to being able to satisfy himself that the results of the medical
examination were not influenced by feigning of any kind. His
instructions to the clinicians drew attention to the point and he is
satisfied that they have been conscious of it throughout. They have
advised him that there was no evidence that Senator Pinochet was
trying to fake disability. The impediments were coherent in nature
and consistent in manifestation, and the neuropsychological testing
showed none of the features of deliberate exaggeration. In
particular, those neuropsychological tests which were indicative of
original intelligence and educational level showed superior
performance. The Secretary of State is advised that there is no
practical possibility that the results of the neuropsychological
tests were influenced by coaching. He is also advised that while it
is possible to simulate with drugs the symptoms of a global
impairment of cognitive functions, (i) this is a problem with which
geriatricians are particularly familiar, and (ii) Senator Pinochet's
cognitive impairment was focal rather than global, a pattern not seen
in drug-induced impairment. It is important to point out that the
outward manner of Senator Pinochet is not necessarily a reliable
guide to his mental condition. It is characteristic of persons with
a high level of original intelligence that they are able to mask
superficially a significant impairment of cognitive functions.

17. The report of the clinicians who examined Senator Pinochet
has been criticised by a number of medical practitioners whose
opinions have been transmitted by the examining magistrates
responsible for criminal investigations of Senator Pinochet in Spain,
Belgium and France, and by certain other parties. In considering
these criticisms, the Secretary of State has borne in mind that those
who have made them have not examined Senator Pinochet, as the authors
of the report of 6 January 2000 did, nor have they had the advantage
which the clinicians enjoyed of studying records of Senator
Pinochet's recent medical history. The Secretary of State is advised
that most of the criticisms made of the report are irrelevant to its
conclusions, and certainly to the conclusions that are critical to
Senator Pinochet's fitness for trial (see paragraph 15). He is
advised that those criticisms which are relevant are medically
unjustified. The Secretary of State is satisfied that the advice he
has received on these points has been based on a careful and
objective analysis of the criticisms. He accepts that advice.

18. The medical report on Senator Pinochet of 6 January 2000 is
an entirely independent report by highly qualified specialist
practitioners on the relevant clinical facts. In commissioning it,
the Secretary of State did not set out to prove any particular point
and had no expectation of any particular outcome. He is satisfied
that the clinicians who prepared it undertook their task in the same
spirit.

19. Letters of request from the examining magistrates in Belgium
and France have been transmitted to the United Kingdom, each of which
seeks a further medical examination. In addition, Judge Garzon, the
examining magistrate in Spain, has called in his representations for
a further examination of Senator Pinochet. Senator Pinochet has
consistently declined to comply with the invitations addressed to him
by requesting states for a further medical examination. The
Secretary of State, having taken advice on the point, does not
consider that a further examination would yield further material of
significance. He does not therefore regard it as either necessary or
appropriate to commission one in order to determine whether Senator
Pinochet is fit to stand trial.

Unfitness to stand trial

20. The conclusions to which the Secretary of State has come mean
that in a criminal trial in England, Senator Pinochet would be found
unfit to stand trial, and there would not therefore be any trial of
the charges against him on their merits. If this were a peculiarity
of English criminal law, the Secretary of State would not attach as
much weight to it as he does. However, in the view of the Secretary
of State, the principle that an accused person should be mentally
capable of following the proceedings, instructing his lawyers and
giving coherent evidence is fundamental to the idea of a fair trial.
He is advised that the attempted trial of an accused in the condition
diagnosed in Senator Pinochet, on the charges which have been made
against him in this case, could not be a fair trial in any country,
and would violate Article 6 of the European Convention on Human
Rights in those countries which are party to it.

21. After receiving the initial representations of Spain, the
Secretary of State asked for further information from those
representing Spain about the principles governing these matters in
the Spanish system of criminal justice. This information has
satisfied him that while the procedure differs in significant
respects from that which would be followed in England, the underlying
principle is substantially the same. The test of fitness to stand
trial in Spain depends mainly on whether the accused is capable of
understanding and following the charges against him, answering
questions put to him, understanding the oral and documentary evidence
for the defence and the prosecution, defending himself and
instructing his lawyers. This is consistent with the
representations as to Spanish law made on behalf of Senator Pinochet
and on behalf of human rights organisations represented by Bindman &
Partners. If Senator Pinochet were to be extradited to Spain, his
fitness for trial would be assessed there by an objective process of
clinical examination and testing. There is no reason to believe that
that process would lead to conclusions any different in substance
from those of the medical report commissioned by the Secretary of
State in England. The Secretary of State is conscious that in Spain
as in England, a 'trial' may include the process of assessing the
Defendant's fitness for trial. However, on the material before him,
it is reasonable to assume that if Senator Pinochet were to be
extradited to Spain, a trial there on the merits of the charges
against him would be found impossible.

22. In considering whether to decide against extradition on
account of Senator Pinochet's unfitness to stand trial, the Secretary
of State has given careful thought to the alternative possibility of
leaving that question to be determined in accordance with Spanish
judicial procedures in Spain, in the event that there was no other
objection to extraditing him there. He has been advised and has
concluded that on the basis of English law he is bound to form a view
of his own on Senator Pinochet's fitness to stand trial, and that he
cannot refrain from reaching a concluded view on this point on the
basis that the question can be determined in Spain. In the light of
his conclusion that no improvement in Senator Pinochet's condition
can be expected, he considers that no purpose would be served by the
continuance of the current extradition proceedings in England. These
would involve the continued detention of Senator Pinochet here for a
period which, allowing for the habeas corpus proceedings and any
appeal arising out of them, might be substantial. Any order for the
extradition of Senator Pinochet which might then be made would
involve the compulsory removal to another country of a man of
eighty-four years of age who must at this stage be presumed innocent,
for the purpose of a trial which could not result in any verdict on
the charges against him, for reasons that are already apparent to the
Secretary of State as the extradition authority in the United
Kingdom. The Secretary of State considers that that course would
serve no purpose of any substantial value to the interests of justice
and that it would be oppressive to Senator Pinochet.

23. The Secretary of State would not necessarily have taken the
same view if there had been any realistic prospect that Senator
Pinochet's condition would improve, either spontaneously or as a
result of treatment. He is aware that in Spanish law the effect of a
finding that an accused is unfit to stand trial is to suspend a
prosecution for as long as that state of affairs subsists, but it is
not tantamount to an acquittal.

Section 12 of the Extradition Act 1989

24. Section 12(2)(a) of the Act provides that the Secretary of
State may not order the extradition of the accused in relation to any
alleged offence if it appears to him 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
(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.

25. The Secretary of State considers that this provision has no
application to the present question. Although it would in his view
be oppressive to order Senator Pinochet's extradition given his
unfitness to stand trial, this state of affairs has not arisen by
reason of the passage of time since he is alleged to have committed
the offences. But for the lapse of time since the alleged offence, a
decision under Section 12 might possibly have fallen to be made
before Senator Pinochet became unfit, but the cause of his unfitness
is the supervening brain damage which appears to have occurred in
September and October 1999. That damage was not itself either caused
or aggravated by the lapse of time since the alleged offences.
Neither of the other two factors identified in the sub-section is
relevant.

26. It follows that Senator Pinochet's unfitness for trial is not
an absolute bar to his extradition. It is a matter to be addressed
as part of the general discretion of the Secretary of State under
Section 12(1).

The European Convention on Extradition

27. The United Kingdom and Spain are parties to the Convention.

28. The Convention requires extradition in all cases to which it
applies, subject only to specific and limited exceptions, and to any
reservations made by particular contracting states on their
accession. In cases falling outside these exceptions and
reservations, there is no general discretion. There is no express
exception applicable to this case, nor is there any relevant
reservation of the United Kingdom or Spain. The Secretary of State
is advised that it is open to argument whether the Convention is
subject to an implicit exception for cases where the primary purpose
of any extradition, namely the trial of the charges alleged against
the accused, could not be served. In the circumstances of this case,
the Secretary of State considers it unnecessary to form a concluded
view about that. He has assumed, in reaching his decision, that the
Convention does not allow for the refusal of extradition on the
ground that the accused is and will remain unfit to stand trial in
the requesting state.

29. The Convention is not incorporated into English domestic law
save to the limited extent provided for by the European Convention on
Extradition Order 1990, SI 1990/1507. This provides simply for the
Extradition Act 1989 to apply as between the United Kingdom and other
parties to the Convention, and for it to do so on the basis
contemplated in Section 9(8)(a) of the Act that a prima facie case
need not be shown on the committal hearing. Section 12 of the Act
therefore applies, as a matter of English law, to extradition
proceedings arising out of requests from states party to the
Convention. The discretion conferred by it on the Secretary of State
must be exercised in such cases.

30. Although the Convention is not part of English 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. 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, having regard in particular to the
nature of Senator Pinochet's condition in a man of his age, to its
probable permanence, and to its impact on the possibility of a trial
of the charges against him.

31. The experience of the Home Office has been that in practice
parties to the Convention operate its provisions in a more flexible
fashion than its absolute language suggests, and in accordance with
basic principles of justice which are common to all of them. It is
consistent with this approach that Belgium should have been recorded
in the judgment of the High Court on their recent application for
judicial review as having 'clearly stated that they would support the
Secretary of State's decision if only they could be satisfied that
Senator Pinochet is indeed shown by the report to be permanently
unfit to stand trial'; and that Spain should have informed the
Secretary of State that they will respect any decision made by the
Secretary of State in the exercise of his discretionary powers. In
making his decision, the Secretary of State has not attached weight
to the matters summarised in this paragraph, but he considers it
right that they should be recorded.

Other countervailing considerations

32. The main consideration which has been urged upon the
Secretary of State in favour of allowing the current extradition
proceedings to take their course is the importance of ensuring so far
as possible that the allegations made against Senator Pinochet should
be tried. The Secretary of State agrees that this is important. The
scope of the charges against Senator Pinochet was substantially
reduced as a result of the decision of the House of Lords in R v Bow
Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No. 3)
[1999] 2 WLR 827, but the remaining charges are extremely serious.
The Secretary of State attaches great importance to the principle
that universal jurisdiction against persons charged with
international crimes should be made effective, and he is aware that
the practical consequence of refusing to extradite Senator Pinochet
to Spain on account of his unfitness to stand trial is that he will
probably not be tried anywhere. The Secretary of State is also
mindful of the sense of injury which will be felt by those who
suffered from breaches of human rights in Chile in the past, as well
as their relatives. All of these are matters of legitimate concern,
and he has had them very much in mind when considering the evidence
about Senator Pinochet's state of health. They are among the reasons
why he has required the evidence of Senator Pinochet's condition to
satisfy a high standard of expertise, thoroughness, objectivity and
cogency before he was prepared to act on it. Ultimately, however,
the reservation 'so far as possible' cannot be brushed aside. A
trial of the charges against Senator Pinochet, however desirable, is
no longer possible.

33. The Secretary of State has considered other factors,
including a wide variety of matters raised in representations
received at the Home Office. This letter has dealt in terms only
with those matters which have had a significant bearing on the
Secretary of State's decision. It is, however, right to mention the
following further points:

(1) The Secretary of State understands that if Senator
Pinochet were convicted in Spain of the offences charged against him,
victims of those offences might be entitled to recover civil damages
in proceedings ancillary to the criminal trial. The Secretary of
State doubts whether this point could be relevant to a decision
whether to extradite a person on a criminal charge, but he has
reached no concluded view on its legal relevance, because he does not
in any event feel able to attach significant weight to it. It is
right to add that the point assumes the possibility of a verdict on
the charges.

(2) The Secretary of State has not had regard to the
possibility, if indeed it is a real one, that Senator Pinochet might
be tried in Chile.

(3) The Secretary of State considers that in some
circumstances it may be appropriate for him to have regard to
political, economic or diplomatic interests of the United Kingdom in
exercising his discretions under the Extradition Act. He has not had
regard to such factors in making his present decision.

Referring the decision to the Court

34. The Secretary of State has been urged by a number of those
who have made representations to him to leave to the Courts the
question whether Senator Pinochet should be discharged on account of
unfitness to stand trial. He has considered this possibility but
does not propose to adopt it.

35. The High Court has power to discharge accused persons who are
being unlawfully detained, and such further powers as are
specifically conferred on it by the Extradition Act 1989. It has no
inherent supervisory power over extradition. Under Section 11(3) of
the Act, the High Court on the hearing of a habeas corpus application
has a duty similar to that of the Secretary of State under Section
12(2)(a) to discharge an accused if by reason of the lapse of time
since the offences are alleged to have been committed it would in all
the circumstances be unjust or oppressive to order his extradition.
If the Secretary of State had regarded these provisions as applicable
he would have been bound to refuse to extradite Senator Pinochet.
However, the facts making it oppressive to extradite Senator Pinochet
do not arise from the lapse of time since the alleged offences.
Therefore neither Section 11(3) nor Section 12(2)(a) applies. The
Secretary of State is the only authority on whom a general discretion
is conferred whether to order extradition. He has had regard in
exercising it to the principle expressed by the courts on a number of
occasions that the proper exercise of that discretion by the
Secretary of State is the principal safeguard for the accused against
oppression.

36. The Secretary of State would not, even if the Court had
concurrent jurisdiction in the circumstances of this case, have
thought it right to refrain from performing a duty or exercising a
discretion conferred on him by statute, which he was in a position to
exercise on material which he had commissioned for that purpose,
simply because at some future stage another authority might take the
decision instead.

Domestic prosecution

37. Article 7 of the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment requires the Secretary
of State, if he does not order the extradition of a person accused of
torture, to submit the case to the United Kingdom prosecuting
authorities for the purposes of a domestic prosecution. The
Secretary of State has supplied papers in advance to the Solicitor
General and the Director of Public Prosecutions for that purpose and
has this morning referred the case to them under Article 7. Their
functions in the matter are entirely independent of his.

Letters rogatory

38. The only additional matter is the application of Judge Garzon
by letters rogatory of 15 January 2000 for Senator Pinochet to be
required to appear in court to respond to a request for a statement.
The Home Secretary has decided not to give effect to this request on
the grounds that Senator Pinochet is not a compellable witness as a
matter of English law.

Letter to the Belgian Ambassador:

39. The Secretary of State has today made a final decision not to
issue an Authority to Proceed under section 7 of the Extradition Act
1989 in respect of the two requests of Belgium for Senator Pinochet's
extradition, transmitted on 15 December 1998 and 11 November 1999.
In making this decision, the Secretary of State has treated the
"Elaborative Memorandum" transmitted on 3 February 2000 as
supplementing those requests and has had regard to the full range of
offences alleged against Senator Pinochet in all three documents.

40. Under 7(4) of the Extradition Act 1989, the Secretary of
State is required to refuse an Authority to Proceed if an order for
the extradition of Senator Pinochet could not lawfully be made or
would not in fact be made in accordance with the provisions of the
Act. Under those provisions, extradition is available only in
respect of extradition crimes. The Secretary of State has directed
himself on this point in accordance with the decision of the House of
Lords in R v Bow Street Metropolitan Stipendiary Magistrate ex p.
Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the
United Kingdom is not an extradition crime unless it was punishable
in the United Kingdom at the date when it is alleged to have been
committed. Torture outside the United Kingdom and conspiracy to
torture outside the United Kingdom first became punishable in the
United Kingdom on 29 September 1988 when Section 134 of the Criminal
Justice Act 1988 came into force.

41. None of the matters set out in the two extradition requests
of Belgium and the Elaborative Memorandum disclose offences of
torture or conspiracy to torture committed after 29 September 1988.
In the Elaborative Memorandum, attention is drawn to three cases in
which persons disappeared in circumstances which have never been
disclosed to their families. It is alleged that their disappearance
constituted torture of themselves and their families, which in the
absence of news of them continued or must be treated as continuing to
the present day. It is an essential requirement of the offence of
torture in English law that the accused should by some act or
omission have intentionally inflicted severe physical or mental pain
or suffering on another person or been party to the infliction of
such pain or suffering. The Secretary of State does not regard the
two extradition requests or the Elaborative Memorandum as alleging
(i) any act or omission inflicting severe pain or suffering and
occurring on or after 29 September 1988, or (ii) that any intention
to inflict pain or suffering was continuing until 29 September 1988
or any later date, or (iii) an intention existing at any time to
inflict pain or suffering on any one other than those who
disappeared. Furthermore, the Secretary of State does not regard
any such allegations as being implicit in the facts alleged.

42. There are no offences other than torture or conspiracy to
torture disclosed in the two extradition requests or the Elaborative
Memorandum which have at any time been punishable in the United
Kingdom if committed outside the United Kingdom. The requirement
that offences alleged in an extradition request should be punishable
under the law of the requested state is of course reflected in the
European Convention on Extradition.

43. If the Secretary State had regarded the two extradition
requests and the Elaborative Memorandum as disclosing extradition
crimes, he would nevertheless have refused to issue an Authority to
Proceed in this case because he is satisfied that Senator Pinochet is
unfit to stand trial and that there is no likelihood of significant
improvement. He has today decided on that ground that he will not
order the extradition of Senator Pinochet to Spain. It appears to
him that even had the Belgian extradition requests and the
Elaborative Memorandum disclosed extradition crimes Senator
Pinochet's unfitness to stand trial would have precluded his
extradition to Belgium for the same reasons as it precluded his
extradition to Spain. The enclosed copy of my letter this morning
to the Spanish Ambassador sets those reasons out.

44. In these circumstances, the question whether Senator Pinochet
could claim state immunity in respect of the offences alleged against
him does not arise.

45. I refer to the three letters of request issued by the
examining magistrate Mr Vandermeersch and transmitted on 19 and 24
January and 22 February 2000. The first of these seeks a further
medical examination of Senator Pinochet. It has been executed in
accordance with English law by inviting Senator Pinochet to submit
voluntarily to the examination sought. He has declined to comply.
In the light of the judgment of the High Court on 15 February 2000,
the second letter of request has been executed so far as it seeks
disclosure of the medical report. The Secretary of State does not
propose to give effect to the second letter of request to any greater
extent, having regard to the terms of that judgment and to his
decision to refuse an Authority to Proceed in respect of Belgium's
extradition requests. If Senator Pinochet were at some future stage
to enter Belgium or to be extradited there from a third country, the
Secretary of State will consider what further assistance might be
appropriate. The third letter of request invites the Secretary of
State or other competent authority to carry out an assessment of the
frontal functions and of the autobiographical recall capacities of
Senator Pinochet with the latter's consent. This letter has been
executed so far as it can be by inviting Senator Pinochet's consent.
He has declined. There is accordingly nothing more by way of
execution to be done.

46. As indicated, I am enclosing a copy of the letter which I
have sent this morning to the Spanish Ambassador.

Letter to Swiss Ambassador

47. The Secretary of State has today made a final decision not to
issue an Authority to Proceed under Section 7 of the Extradition Act
1989 in respect of the request of Switzerland for Senator Pinochet's
extradition, received on 11 November 1998 and renewed on 7 October
1999.

48. Under Section 7(4) of the Extradition Act 1989, the Secretary
of State is required to refuse an Authority to Proceed if an order
for the extradition of Senator Pinochet could not lawfully be made or
would not in fact be made in accordance with the provisions of the
Act. Under those provisions, extradition is available only in
respect of extradition crimes. The Secretary of State has directed
himself on this point in accordance with the decision of the House of
Lords in R v Bow Street Metropolitan Stipendiary Magistrate ex p.
Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the United Kingdom is not an extradition crime unless it was punishable
in the United Kingdom at the date when it is alleged to have been
committed. Torture outside the United Kingdom and conspiracy to
torture outside the United Kingdom first became punishable in the
United Kingdom on 29 September 1988 when Section 134 of the Criminal
Justice Act 1988 came into force.

49. The requirement that offences alleged in an extradition
request should be punishable under the law of the requested state is
of course reflected in the European Convention on Extradition. None
of the offences alleged in the extradition requests of Switzerland
are alleged to have been committed after that date.

50. If the Secretary of State had regarded the extradition
request of Switzerland as disclosing extradition crimes, he would
nevertheless have refused to issue an Authority to Proceed in this
case because he is satisfied that Senator Pinochet is unfit to stand
trial and that there is no likelihood of significant improvement. He
has today decided on that ground that he will not order the
extradition of Senator Pinochet to Spain. It appears to him that
even had the request of Switzerland disclosed extradition crimes
Senator Pinochet's unfitness to stand trial would have precluded his
extradition to Switzerland for the same reasons as it precluded his
extradition to Spain. The enclosed copy of my letter this morning
to the Spanish Ambassador sets those reasons out.

51. In these circumstances, the question whether Senator Pinochet
could claim state immunity in respect of the offences alleged against
him does not arise.

52. As indicated, I am enclosing a copy of the letter which I
have sent this morning to the Spanish Ambassador.

Letter to French Ambassador:

53. The Secretary of State has today made a final decision not to
issue an Authority to Proceed under Section 7 of the Extradition Act
1989 in respect of the requests of France for Senator Pinochet's
extradition, transmitted on 13 November 1998 and 4 February 1999.

54. Under Section 7(4) of the Extradition Act 1989, the Secretary
of State is required to refuse an Authority to Proceed if an order
for the extradition of Senator Pinochet could not lawfully be made or
would not in fact be made in accordance with the provisions of the
Act. Under those provisions, extradition is available only in
respect of extradition crimes. The Secretary of State has directed
himself on this point in accordance with the decision of the House of
Lords in R v Bow Street Metropolitan Stipendiary Magistrate ex p.
Pinochet (No.3) [1999] 2 WLR 827. An offence committed outside the
United Kingdom is not an extradition crime unless it was punishable
in the United Kingdom at the date when it is alleged to have been
committed. Torture outside the United Kingdom and conspiracy to
torture outside the United Kingdom first became punishable in the
United Kingdom on 29 September 1988 when Section 134 of the Criminal
Justice Act 1988 came into force.

55. The requirement that offences alleged in an extradition
request should be punishable under the law of the requested state is
of course reflected in the European Convention on Extradition. None
of the offences alleged in the extradition requests of France are
alleged to have been committed after that date.

56. If the Secretary of State had regarded the extradition
requests of France as disclosing extradition crimes, he would
nevertheless have refused to issue an Authority to Proceed in this
case because he is satisfied that Senator Pinochet is unfit to stand
trial and that there is no likelihood of significant improvement. He
has today decided on that ground that he will not order the
extradition of Senator Pinochet to Spain. It appears to him that,
even had the requests of France disclosed extradition crimes, Senator
Pinochet's unfitness to stand trial would have precluded his
extradition to France for the same reasons as it precluded his
extradition to Spain. The enclosed copy of my letter this morning
to the Spanish Ambassador sets those reasons out.

57. In these circumstances, the question whether Senator Pinochet
could claim state immunity in respect of the offences alleged against
him does not arise.

58. A letter of request of 22 February from Judge Le Loire sought
a further medical examination of Senator Pinochet. That request was
fowarded to Senator Pinochet's legal representatives on 29 February.
They confirm that he does not propose to comply.

59. As indicated, I am enclosing a copy of the letter which I
have sent this morning to the Spanish Ambassador.