CASE WHERE PERSON HAS BEEN CONVICTED (Hansard, 13 November 2003)

§ Caroline Flint
I beg to move, That this House disagrees with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to take Government amendment (a) in lieu thereof, Lords amendment No. 111, Government motion to disagree thereto and Government amendment (a) in lieu thereof.

§ Caroline Flint
I invite the House to disagree with the amendments made in another place, and to agree to the amendments in lieu tabled in the name of my right hon. Friend the Home Secretary. I shall seek to demonstrate that we have accepted the substance of the amendments made in another place.
The Bill contains detailed provisions to cover a situation in which we receive an extradition request for a person convicted in absentia. They reflect the approach that the UK has always adopted, although I should add the rider that in absentia cases are very rare. The Bill provides that, where we receive a request in respect of a person who has been convicted in absentia, the judge, after considering all the main bars to extradition, must decide whether the person deliberately 438 absented himself from his trial. Clearly, if the person deliberately absented himself by not turning up for the trial or escaping from custody, he should not be entitled to any special treatment. However, if the judge concludes that the person did not deliberately absent himself, he can order extradition only if the person will be entitled to a retrial or a review amounting to a retrial. The reference to a review is intended simply to reflect the fact that not every other EU country uses the same terminology as we do. However, a review has to have the same features as a retrial in order for extradition to be permissible in those circumstances. A retrial differs from an appeal. An appeal starts from the basis that the original verdict stands unless the court finds to the contrary. A retrial, by contrast, begins with a blank sheet of paper with the case against the person having to be proved afresh.
That is the background. Let me now say more about the amendments. In another place, the clauses dealing with in absentia convictions were amended to specify more precisely the features that a retrial or a review should include. Three particular features were specified—the right to be present at the trial, the right to call and cross-examine witnesses, and the right to legal aid. There can clearly be no objection of principle to those important features of any fair trial. We think, however, that some improvement could be made to the wording. That is hardly surprising, since the Government, unlike opposition parties, are able to call on the services of our expert parliamentary counsel, who are always there to serve us.
Accordingly, the Government amendments achieve broadly the same results—but they do so in a slightly different way. They provide that the judge cannot conclude that that which is on offer amounts to a retrial or a review, and therefore cannot order extradition, unless the person has the right to legal assistance or legal aid—if he lacks means—and the right to cross-examine witnesses and call his own witnesses. The wording that we adopted is drawn straight from article 6.3 of the European convention on human rights, so it has an impeccable pedigree.
On the third right that was dealt with in the amendment passed in another place—the right to be present at the retrial or review we simply do not believe that we can create an absolute right of that kind. As hon. Members will be aware, no such absolute right exists in this country. A judge at a trial has the power to order a person to be removed from the court if he is being abusive or disruptive. Exactly the same is true in other countries. We have to respect that, which is why the Government amendments in lieu do not refer to the right to be present.
With that explanation, I hope that hon. Members will feel that the Government have gone as far as possible to meet the concerns that were expressed in another place. I therefore invite this House to agree to the Government amendments in lieu of those that were made in another place.

§ Mr. Hawkins
Once again, the Government have responded to a defeat that was inflicted on them in another place by my noble Friends, those of the hon. Member for Orkney and Shetland (Mr. Carmichael) and one or two Cross Benchers. I agree with the hon. 439 Member for Orkney and Shetland that given that the Bill is pretty much a year old—we debated it in Committee as long ago as January—it is a great shame that we finally have these last-minute concessions only because the Government were worried about fighting on too many fronts in the last few days of the Session and did not want a kind of ping-pong between the two Houses on several Bills at once. Nevertheless, the concessions are of course welcome.
We defeated the Government on these matters in another place on 27 October—the debate starts at column 32 of that day's Hansard. We were seeking to provide further vital protection for UK citizens who may face extradition to countries with legal procedures that are very different from our own. We debated that at length in Committee back in January. Many organisations on both sides of politics—whether Liberty and Justice on one side, or the Freedom Association and the Democracy Movement on the other—expressed great concern about the provisions on the European arrest warrant. Organisations such as Fair Trials Abroad pointed out that because procedures in other countries are so different, the Bill needs to provide extra protection, especially in cases involving extradition for the purposes of retrial after conviction in absentia. As recently as yesterday, my noble Friends Baroness Anelay of St. Johns, Lord Lamont of Lerwick and Lord Pearson of Rannoch and Baroness Carnegy, among others, expressed concern about legal procedures in countries such as Italy. My hon. Friend the Member for Stratford-on-Avon (Mr. Maples), who had hoped to speak in this debate but sadly cannot be with us because of other parliamentary commitments, has done likewise in respect of other countries, including Spain and France. I am very pleased that the Government have agreed, albeit at the last minute, to deal with that.
The Minister has now finally agreed that there must be a right to legal aid and to recall and cross-examine witnesses. A great deal of discussion took place yesterday and on 27 October about the examples cited by organisations such as Fair Trials Abroad to the effect that legal aid, as we understand it, is sometimes unavailable even in major European countries such as Spain, Portugal and France. My noble Friend Lord Lamont, in particular, referred to that.
The Government have made it clear that all UK citizens who are extradited must have the benefit of their rights under the European convention on human rights. We understand their wish, as reflected in their amendments, not to create any loophole that might enable someone to escape a deserved extradition simply by not being present in court. That was the basis of the discussions between the Minister's noble Friend Baroness Scotland and my noble Friend Baroness Anelay on Tuesday afternoon. Our intention, as the Government recognise, was to avoid an overseas country being able to hold an improper retrial, or trial in absentia, of a UK citizen.
We are glad that the Government have accepted with good grace the defeat that we inflicted on them in another place, and we are reasonably content with their compromise version of our amendment. We wish, however, that it had not been necessary to keep pressing them—on three or four occasions, as the hon. Member 440 for Orkney and Shetland said. In all the previous debates, we were told that they had no plans whatsoever to give way; only at the very last minute, faced with the danger of ping-pong between the two Houses at the end of the Session, do we get some common sense. It would surely be better had the Government conceded this vital point at a much earlier stage, as they could have done.

§ Mr. Carmichael
The hon. Member for Surrey Heath (Mr. Hawkins) made repeated reference to his noble Friend Lord Lamont of Lerwick. I may represent one of the smaller constituencies, but we in the northern isles punch above our weight in terms of our contribution to proceedings in both Houses.
The Minister said that in absentia trials are relatively uncommon in this country. Indeed, they are extremely rare. I can think of only a small range of very minor offences, such as those under the vehicle excise duties legislation, where trials can be held in the absence of the accused. The situation is very different in other continental jurisdictions—in France, for example, one can be tried in absentia on a charge of murder. This is an important protection, and I am delighted that, albeit at this late stage in the proceedings, the Government have been persuaded of the merits of the arguments that were put to them in Committee and in the other place.
The availability of state-funded legal assistance is important. The hon. Member for Surrey Heath speaks with justifiable pride of the practice in United Kingdom jurisdictions in that regard. Although I understand that that is a 20th-century phenomenon south of the border, the Minister may know that an Act of the Scots Parliament some time in the 15th century first provided for that north of the border. I am therefore delighted that those south of the border have been able to catch up with us over time.
The right to be present at a retrial or review and to cross-examine witnesses is also important. I commend parliamentary draftsmen and counsel for their elegant re-expression of the provision, and the Minister for reintroducing the amendment in a way that does not significantly disturb the sense of the Lords amendment. Liberal Democrat Members have no difficulty with the amendments in lieu.

§ Caroline Flint
Again, I thank hon. Members for supporting the Government amendment. It is designed to deal with those who commit crimes while ensuring that they have the protection that they deserve.