Grand Committee Report of 10 July 2003

Official Report of the Grand Committee on the

  Extradition Bill
  (Eighth Day)
  Thursday 10th July 2003.
  The Committee met at a quarter before four of the clock.
  [The Deputy Chairman of Committees (Baroness Thomas of Walliswood) in the Chair.]
  Clause 78 [Bars to extradition]:
  Lord Goodhart Lord Goodhart moved Amendment No. 191:
  Page 42, line 36, leave out paragraph (c) and insert—
  "(c) injustice and oppression;"
  The noble Lord said: The purpose of the amendments is to bring back into Part 2 of the Bill a defence to extradition that is present in the Extradition Act 1989 and was present, as I understand it, in all earlier extradition Acts. The issue was raised by the organisation Liberty, and the defence that is to be brought back is that the extradition is unjust and oppressive.
  Amendments Nos. 191 and 194 are based on Section 11(3)(c) of the 1989 Act, which provides for extradition to be refused, if the accusation that is the subject of the charge leading to the application for extradition was not made,
  "in good faith in the interests of justice",
  and if the extradition would cause injustice and oppression. We are, of course, dealing with Part 2 of the Bill; Part 1 is based on the assumption that we can trust the legal systems of the category 1 states. There is no such assumption in relation to category 2 states. There have been two recent cases involving states that are not intended for inclusion in category 1, in which extradition has been refused by the court on the grounds that the accusation was not made in good faith. Those are the cases known by the names of Saifi, from India, and Murat Callis, in which the person concerned was from Turkey.
  Without the amendment, the judge will not be able to refuse extradition, and the case would have to go for a decision by the Home Secretary. If the judge is satisfied, after hearing the evidence, that the accusation was not made in good faith, he should be able to refuse extradition. In the Commons, the Government said that the judge could reach such a conclusion on human rights grounds, relying on Clause 86. I believe that that is not true, arid that is how I am advised by experts on extradition. The European Convention on Human Rights would apply only if the court hearing the extradition application believed that the person would not get a fair trial. That is a different question. If the court believes that the accusation was
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  not made in good faith, it should be able to discharge the person, whether or not it believes that that person will get a fair trial, without having to send him or her back by making an extradition order subject to the final decision of the Home Secretary. I beg to move.
  Baroness Anelay of St Johns: It might be appropriate if I spoke next, as I have my name to the amendment and I can be brief. I support the amendment fully. It picks up on a proposal that was brought to us by Liberty. As the noble Lord, Lord Goodhart, mentioned, Liberty briefed him too, as it does with all groups in the House. The importance of the issue was also emphasised to us by Mr Clive Nicholls QC, who is one of the most famous practitioners in the field in the world. In his opinion, failure to make the amendment could lead to some serious miscarriages of justice.
  Lord Clinton-Davis: I also support the amendment. What have the Government got to fear from it? If Clause 86 were to apply—there is some ambiguity about that—a provision of this kind in the Bill would do nothing to subtract from the purpose that the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay of St Johns, outlined, which I support. What have the Government got to fear? Would there be any conflict between the amended section and Clause 86? I see no reason to think that.
  Lord Carlisle of Bucklow: Like other noble Lords, I support the amendment. It is right that there should be power to refuse to extradite, if the judge feels that the application will lead to injustice and oppression. Like the noble Lord, Lord Clinton-Davis, I cannot see why there should be any objection to putting it in terms in the Bill at this stage.
  I have one question. I had assumed that the matter could be covered by the words "extraneous considerations". What are "extraneous considerations"? Would the fact that it was felt that the application was oppressive or unjust amount to an extraneous consideration?
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I thank all noble Lords who spoke in the debate—
  Lord Carlisle of Bucklow: I apologise. It has been pointed out to me that there is a definition. I had better read it.
  Lord Filkin: The amendment gives the Committee a good opportunity to test, in a sense, whether the protections that we have put into the Bill are, as we believe, full and adequate. I shall start by giving an overarching view. The way that we have constructed the protections—all members of the Committee recognise that they are important—is different from the way in which they were constructed for the 1989 Act. I shall explain why and, in doing so, address the question asked by my noble friend Lord Clinton-Davis, who wondered why we could not make the amendment.

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  In this part of the Bill, the protections relate to the double jeopardy test, the extraneous considerations, the passage of time and hostage-taking considerations. The extraneous considerations are particularly important in this regard. As the noble Lord, Lord Carlisle of Bucklow, suggested, they cover a situation in which a request has been made for improper motives or a trial may be prejudiced for those reasons. They are added to the further provisions concerning convictions in absentia, the death penalty, speciality and, in particular, as the noble Lord, Lord Goodhart, signalled, ECHR compliance in terms of the right to a fair trial. That adds up to a substantial package of protection for the individual against any form of illegitimate extradition. In a sense, the purpose of the discussion on the clause, in Committee and later, if needed, is to see whether there is any chink in what we believe to be the adequate and comprehensive armour against inappropriate extradition.
  As the noble Lord, Lord Goodhart, said, the wording of the amendment comes from Section 11(3) of the Extradition Act 1989. On the face of it, it is a reasonable challenge to the Government: if it was good enough in 1989, why not now? Our response is twofold. First, the 1989 Act was, essentially, a consolidation of legislation dating back to 1870. Not only does it reflect the wording of that era, it conveys the spirit of that time—revolution in many countries, suspicion and mistrust between neighbours, infrequency of international travel and so forth. Obviously, the 1989 Act was passed before the Human Rights Act was passed, and ECHR legislation came into force. Both were more than 80 years after the Extradition Act 1870. For those reasons, we feel that the world has moved on since 1989.
  The Extradition Act 1989 is all about generalities and discretion. It includes a section—Section 6—headed "General restrictions on return", and Section 1 I invites judges to take decisions,
  "having regard to all the circumstances".
  Our experience is that it is that scheme of generalities that has allowed the system of extradition law to be abused and choked up by lengthy and, at heart, spurious delay as a means of delaying or obstructing the return of a person to face trial when he ought to do so.
  The current Bill does not approach those matters in the same way. It is clear to the judge what decision he is to take and the factors on which he is to base it. It is clear to him that extradition should be barred in specified circumstances but not in others. The bars and protections provide significant and appropriate protection against any abuse of the extradition process. As they are set out in such detail and with clarity, there is no need for a general, catch-all provision.
  I should draw attention to two provisions in the Bill, both of which I have already touched on. The first is Clause 80, which provides that extradition is barred, if the extradition request has been made for the purpose of prosecuting or punishing the person on the grounds
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  of his race, religion, nationality or political opinions, or if he will be prejudiced at his trial for those reasons. Those are strong safeguards—necessarily so. Then, there is Clause 86, which prevents extradition if it would be contrary to the person's human rights. At an earlier stage of our proceedings, my noble friend Lady Scotland of Asthal read the details verbatim. I shall not repeat them now.
  Article 6 provides a clear guarantee of a fair trial. We discussed that on a previous day in Committee. If the district judge takes the view that the person will not receive a fair trial, he will not order extradition. It is as clear, as strong and as simple as that. The district judge has total discretion. If he is not convinced that there will be a fair trial, he will say, "No". So he should.
  We cannot easily see what circumstances the amendments would deal with that are not already covered by the Bill. In other words, given the protections in the Bill, is there any chink in the armour? I invite officials to consider the Saifi and Murat Callis cases to see whether we have specific and direct responses to the concerns that they raise. We can point to chapter and verse in the Bill that says that extradition would be blocked in such cases. Without signalling for a second that we are conceding, I am happy to use that test to see whether we have an adequate and comprehensive set of protections against inappropriate and wrongful extradition.
  At an earlier stage, we considered examples of countries, such as Singapore and Malaysia—perhaps I should not mention them—that might seek to abuse the extradition system to deal with political opponents of the current regime. Such cases would fall foul of Clause 80, as such requests would be politically motivated. Extradition would not be possible. If a judge in a requesting state had a personal animus against a person and sought to use the extradition process to take him back, there would be significant doubt as to whether that person, if extradited, would experience a fair trial. That, again, would be caught by the ECHR provision.
  My noble friend Lord Clinton-Davis asked what was the harm in making the amendment. I think that I have signalled why we see harm in it. Such a broad and, apparently, open-ended provision would invite fugitives to seek to invoke it in just about every case. If I were suspected of a major crime that was likely to lead to incarceration, I would expect my barrister to act in that way and do everything possible to delay, prevent or frustrate my extradition. For those reasons, we think that the current Act has, in practice, proven to be defective in that respect and has led to frustration and excessive delays in extradition requests.
  I shall not go on at any more length. I have sought to set out why we have approached the protection regime in a different way and why we believe that the range of mechanisms is adequate and satisfactory. The door is open to any specific examples in past practice or future about which members of the Committee would like to say, "What about X or Y?". If a chink in our armour is exposed, we shall examine it.
  4 p.m.
  Lord Clinton-Davis: Words might perhaps be included under paragraph (b), referring to,
  "extraneous considerations including injustice and oppression".
  The words "injustice and oppression" are highly significant. When my noble friend the Minister suggested that his officials would consider the whole situation, I hope that they will look benevolently at the amendments that have been proposed. A strong case has been made for not including the amendment in the paragraph under "the passage of time". However, the words may well fit in to another part of the clause.
  I referred to a particular situation that could apply, by including it under paragraph (b). In any event, I ask my noble friend the Minister to examine carefully what has been said in the debate. It is not as though any of us want to weaken the situation—we want to see it strengthened, and we want the judge to be under no sort of inhibition. The wording in the amendment is highly germane, so I hope that the Minister will be rather more forthcoming when we return to consider this point. He has already been slightly forthcoming, but I hope that he will be rather more forthcoming on Report.
  Baroness Carnegy of Lour: We all want Part 2 to work well. This is a legal matter, and I am not a lawyer, but I am very interested in the point. Clearly, the House of Commons took the Government's view on it, with advice. I noticed that the noble Lord, Lord Goodhart, based his argument on the human rights provisions on which he is something of an expert. I do not believe that the Minister actually picked that up in his reply—although he may have done so, and I may have missed it. When the noble Lord replies, I would be interested to know whether he feels that the answer is satisfactory or whether the point that he made about the human rights position is still valid.
  Lord Goodhart: I am grateful to the Minister for giving a thoughtful reply to the amendment. However, I cannot accept his answer. This is certainly a point that concerns the experts on extradition. I am not an expert—it was never part of my practice at the Bar—but I know that Clive Nicholls feels strongly on the matter. I went to a conference last Saturday on the subject of the European arrest warrant where another QC, Mr Paul Garlick, spoke strongly on the subject.
  If one could be absolutely certain that the defendant would receive a fair trial, there would be something to be said for stating that the accusation looked unfounded and not made in good faith. I mentioned two cases. In one of them, there was a lot of evidence to suggest that the person had been framed by the people who actually committed the offence. In the other, there was strong evidence that the person concerned was being blackmailed over an offence that he had not committed. If one could be absolutely certain that there would be a fair trial, one might perhaps consider that it was certain that the court would consider the evidence, that the person would get a fair trial and that, if things were as they appeared to be, he would be acquitted.
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  The problem is twofold, however. First, in the case of some category 2 countries, there must be doubt about the quality of justice that will be delivered at the other end, even if those doubts are not sufficient to satisfy the courts that the person would not get a fair trial. Secondly, there is a hardship involved in someone being sent back to face a trial, even if it is assumed that the trial will be fair, if it appears to the judge hearing the application that there will be injustice and oppression and that the accusation is not made in good faith. There are significant advantages in allowing that defence to be raised.
  Lord Clinton-Davis: I take it from what the noble Lord says that he has no objection to the words being inserted in paragraph (b), so that the clause reads,
  "extraneous considerations including injustice and oppression".
  Lord Goodhart: The noble Lord is absolutely correct, although the words might be included in paragraph (a) rather than paragraph (b). I was making a note on my Marshalled List that if we brought the amendment back, that might be a way in which to do it.
  The matter of injustice and oppression is just as much a legitimate extraneous consideration as those that the court must already consider. The issue will require further discussion. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 78 agreed to.
  Clause 79 [Rule against double jeopardy]:
  [Amendment No. 192 not moved.]
  Clause 79 agreed to.
  Clause 80 [Extraneous considerations]:
  On Question, Whether Clause 80 shall stand part of the Bill?
  Lord Carlisle of Bucklow: I raised the question whether "extraneous considerations" might cover the point made, in the earlier debate. Surely the Minister, having seen the definition of "extraneous considerations", which is limited using the specific terms in the clause, would have to agree that the words "injustice and oppression" would go much wider and would deal with circumstances other than those arising from,
  "race, religion, nationality or political opinions".
  Lord Filkin: As I signalled when we had the discussion on the amendment moved by the noble Lord, Lord Goodhart, I am seeking to set out a broad approach. I want to put in place specific bars to extradition without opening up the legislation to the defects that we have experienced with the current Act. We have already agreed to extend the clause to add on gender and sexual orientation as further measures, as a result of some good representations made at an earlier point.
  In good faith, I believe that the Committee generally recognises that we do not want to go in a circle and come back to where we are, with the current defects of

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  the system. We all share a view that the Bill should have adequate protections. Without wanting to trail a coat too adventurously, I was signalling that I was open to specific examples of where the Bill as currently drafted would not provide adequate protection. That was a genuine statement, and I am sure that there will be ways of communicating on that matter in the summer, so that we can consider it. I implied that if we were convinced that there was a hole in the legislation, we would investigate it, but that if we were not, we would not, for the reasons I gave.
  Clause 80 agreed to.
  Clause 81 [Passage of time]:
  [Amendments Nos. 193 and 194 not moved.]
  Clause 81 agreed to.
  Clause 82 agreed to.
  Clause 83 [Case where person has not been convicted]:
  Lord Filkin Lord Filkin moved Amendment No. 194A:
  Page 44, line 11, at end insert—
  "(2A) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—

  (a) to the nature and source of the document;

  (b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;

  (c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;

  (d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);

  (e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings."

  The noble Lord said: While moving Amendment No. 194A in the name of my noble friend Lady Scotland I should like to speak to Amendment No. 202A, which is for all practical purposes identical to Amendment No. 194A. It might be convenient if I said something about the amendments in this group tabled by the Official Opposition—Amendments Nos. 195, 196, 203 and 204.
  All the amendments are concerned with evidence given in written and summary form. The Government believe that this is a necessary provision, though we recognise the importance of proper safeguards which is what our amendments seek to put in place. We need to be clear about what we are dealing with here. The Bill—and Clauses 83(2) and 85(2) in particular—allows for written evidence to be admitted in particular circumstances. Those circumstances are limited, so we are only talking about evidence originally given to a police officer or other person responsible for investigating crimes.
  Where a police officer or other person responsible for investigating crimes has taken a statement from a witness, that statement is admissible as evidence for the hearing, provided that, were the person who made the statement to come to the UK and give evidence in person, that oral evidence would be admissible. A written witness statement made to a police officer will be admissible for the extradition hearing, rather than requiring the witness to come to Britain to give evidence in person.
  Given that the purpose of requiring prima facie evidence from certain Part 2 countries is to establish that a sufficient case exists against the person rather than to hold a complete mini-trial, I hope that Members of the Committee will see that this is a worthwhile and necessary process. It really is not in anyone's interest to devote the time and cost of bringing over foreign witnesses to this country, particularly when they will be obliged to give their evidence at the actual trial when that occurs. Another fact to bear in mind is that the particular witness statement may not be contested or challenged by the fugitive.
  I should describe the safeguards that already exist to make sure that the use of documentary evidence does not result in injustice, even at a hearing that is about establishing whether there is a prima facie case, not about whether a person is guilty or not. The first and most obvious one is that the district judge always has discretion not to admit evidence where he has doubts about its authenticity or reliability. That discretion is with the judge, and it should be. He will be best placed in each case to determine where the interests of justice lie and to ensure that the fugitive is not disadvantaged.
  Secondly, nothing in the Bill obliges the person whose extradition has been sought to give evidence in written or summary form, nor will it prevent the person from challenging evidence given in such form on behalf of the requesting state. However, following concerns raised in another place, we amended the Bill on Report to make it even clearer that the judge was not obliged to accept evidence in that form. We recognise that concerns still exist, as evidenced by the amendments that have been tabled by the Opposition. Accordingly, we have looked at what further safeguards might be possible. In doing so we have turned our attention to domestic legislation.
  Part II of the Criminal Justice Act 1988 is concerned with documentary evidence in criminal proceedings. Section 25 of that Act sets down principles to guide the court as to whether it should admit such documentary evidence. We believe that such provisions have worked well and accordingly Amendments Nos. 194A and 202A in the Government's name very largely replicate Section 25 of the 1988 Act.
  These amendments will provide very specific guidance to district judges in deciding whether to admit written evidence. The fifth point is one to which I would like to draw the Committee's particular attention since it will require the district judge to pay special attention to the possibility of any risk of unfairness to the person whose extradition has been

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  sought. I very much hope that that extra clarification in the Bill will be helpful to the Committee. As promised, let me say something briefly about the Opposition amendments.
  This leads me to the related area of Clauses 83(3) and 85(3). I have already explained that Clauses 83(2) and 85(2) allow for written evidence to be admitted. Clauses 83(3) and 85(3) go on to say that evidence in summary form can be admitted. Let me explain why this is desirable and necessary. One can imagine a case of complicated financial fraud. Several accountants may have studied the books in question and produced statements attesting to their opinion that those books have been, to use the colloquialism, "cooked". These statements may go into minute detail and run to several hundred pages which is more than the district judge may need or want. We are not dealing here with a full trial: rather, the district judge needs to be satisfied that sufficient case exists against the person to send him for trial to answer the charges. In this case the fact that several qualified accountants have confirmed that in their opinion fraud has taken place and that the person before the judge is believed to be responsible is more use to the judge than the content of what could he extremely detailed statements explaining exactly how the fraud has been committed. Accordingly, Clauses 83(3) and 85(3) allow for summaries of written evidence to be admitted for the purpose of establishing whether a prima facie case exists against the person.
  These provisions might be similarly useful where there are many witnesses all giving broadly the same evidence, for example, telephone company employees who produce itemised bills. Again, in many cases this evidence may be uncontested.
  It will, of course, be open to the fugitive and his lawyers to challenge the summaries at the extradition hearing and the detail of the statements at the trial itself, if the person is extradited. We would not expect this facility to he used often. In most cases we would expect the full written witness statement to be put before the court. However, I am sure the Committee will see why, in the circumstances which I have described, Clauses 83(3) and 85(3) are useful and necessary.
  4.15 p.m.
  Lord Clinton-Davis: Before my noble friend departs from this part of his remarks, has the possibility been expunged, by reason of the amendment which is proposed, for the defence and prosecution to come to some agreement before the trial—before the matter reaches the judge? In my experience the prosecution and the defence almost invariably act very honourably in this regard. In fact, I cannot think of an occasion when the possibility of agreement is overlooked.
  Lord Filkin: I am advised that nothing stops that happening in these circumstances. If defence counsel and the CPS are in agreement on certain points, they can signal that and therefore save the court and the judge time on those issues.
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  I return to my speech. I regret wearying the Committee with the length of it. I hope that I have explained why Clauses 83(3) and 85(3) are useful and necessary.
  Amendments Nos. 195 and 203 seek to remove the facility for summary evidence altogether. As I described with regard to a prima facie case, we believe that that provision assists justice rather than frustrates it.
  Amendments Nos. 196 and 204 seek to change the conditions on which summary evidence may be admitted. In particular the word "must" is changed to "may" and there is a requirement for corroboration. I support the principle of what is being attempted there but we believe that it is already provided for. If the Committee looks at Clauses 83(3) and 85(3), it will see that they operate for the purposes of 83(2) and 85(2) respectively. In other words, they are governed by the general provisions of those earlier subsections. In the opening lines of 83(2) and 85(2) the word "may" appears. Therefore, the admissibility of any document in summary form is governed by "may". The discretion exists in the legislation, which is exactly what is being sought by the amendment.
  If the Committee looks at the government amendments, it will see that subsection (c) of each of them deals with corroboration and requires the judges to have regard to corroboration or otherwise in deciding whether to admit written and summary evidence.
  I emphasise that nothing in the Bill obliges the person whose extradition has been sought to give evidence in written form nor will it prevent the person from challenging evidence given in written form on behalf of the requesting state. As I signalled earlier, the judge will always retain full discretion in deciding what to admit. The judge will always be mindful of the interests of the fugitive and of justice.
  I believe that we should allow for the possibility of documentary evidence at what is effectively a prima facie hearing just as we do in limited circumstances in domestic cases. Strict controls apply to domestic cases and we believe that adopting those strict controls is the best way forward.
  I hope that explanation is helpful and I invite Members of the Committee to withdraw their amendments. I beg to move.
  Baroness Anelay of St Johns: I wish to speak to my Amendments Nos. 195, 196, 203 and 204. The noble Lord, Lord Goodhart, has added his name to Amendments Nos. 195 and 203.
  As the Minister said, concerns remained after discussions in another place. Consequently, we tabled these amendments with the encouragement of the Law Society and Liberty which remained unconvinced by the arguments put forward in another place. As the noble Lord said, the argument revolves around what should comprise the summary statement. Concerns remained that that was a way of reducing the threshold of quality that one would expect of prima facie evidence.

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  I hear what the Minister says about the Government not wanting there to be too much pressure on witnesses in the production of statements whereby they have to come here twice for the initial hearing and subsequently for the trial. I certainly understand the Government's intention to try to reduce bureaucracy without in any way reducing the power of the judge to make the right decision at the right time. We are working within the same parameters as the Government in tabling these amendments.
  We thought that we should table Amendments Nos. 196 and 204 to reflect the fact that the Law Society of Scotland took a slightly different approach from others in this respect. We tried to cover all the bases.
  I am delighted to see the Government's response in the form of their Amendments Nos. 194A and 202A. We certainly accept that they are an improvement on our Amendments Nos. 196 and 204. Therefore, we shall not press those amendments.
  Between now and Report I certainly undertake to go back to the Law Society and Liberty to see whether they are now content with the Government's redrafting through their amendments or whether they still have concerns. At first blush when I saw the Government's amendments I thought that we would not have to take the matter any further. However, I cannot give that commitment until I have taken advice from those organisations.
  Baroness Carnegy of Lour: When the noble Lord spoke to his amendment I believe he said that the wording of Amendments Nos. 194A and 202A was taken from an Act. I am not sure what Act he mentioned but I believe that it was an English Act. I wonder whether the Bill will be satisfactory within Scots law as a result of those amendments. I may have misunderstood the noble Lord but I wanted to check that point.
  Lord Filkin: I referred to Part 2 of the Criminal Justice Act 1988. The amendments have been crafted from Section 25 of that Act.
  With regard to the point on Scotland, we have checked with Scots colleagues who, I am advised, are content with the matter.
  Baroness Carnegy of Lour: I thank the noble Lord for those comments.
  Lord Goodhart: My name is added to Amendments Nos. 195 and 203. I certainly strongly welcome the Government's Amendments Nos. 194A and 202A which are of considerable assistance. As regards Amendments Nos. 195 and 203, I certainly accept that there may be a case in very long fraud cases, for example, for having some sort of executive summary which the judge can read. However, it seems to me essential that the judge having read the summary should always be able to say, "So far, so good, but I should like to see what the defendant actually said". The Minister indicated that in his view that would be possible by virtue of Clause 83(2). I am not entirely
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  convinced of that. Like the noble Baroness, Lady Anelay, I would like to see what those who briefed us on these amendments have to say about the new position before a decision is taken as to whether to bring this amendment back.
  Lord Clinton-Davis: I, too, have added my name to Amendment No. 195. What was suggested by the noble Baroness, Lady Anelay, is eminently appropriate. The amendment was suggested by very reputable organisations. The noble Baroness was entirely right to suggest that those organisations should be further consulted on the matter. I am sure that my noble friend will agree that that is entirely appropriate.
  I pointed out in my intervention that in practice what happens—I am sure that the noble Lord, Lord Carlisle, agrees with this—is that the prosecution says to the defence, "Have a look at what is agreed". The defence can make suggestions for something to be included or for something to be omitted. Invariably, that suggestion is complied with. I am not very worried about the practice. But, on the other hand, my noble friend put forward a proposal which the Committee should consider. So far as I am concerned, the proposal which he advanced is entirely appropriate.
  Lord Filkin: I thank all who spoke to the group of amendments. I thank particularly the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, for welcoming the two amendments introduced in response to the debate in another place, and for the conditional interest expressed in my remarks, albeit they did not, quite rightly at this stage, say that everything was perfect.
  I also thank my noble friend Lord Clinton-Davis for his comments. The noble Lord, Lord Goodhart, brought forward a new point. Clearly we recognise that the judge has discretion to accept summary evidence if he thinks that serves the interests of justice. He has the discretion to say "No". A third option, rather than those two extreme options, is whether he is in a position to say that he would like to see the full evidence. That is a good question as there may be circumstances where one would not want the judge to adopt either of the first two options as that might frustrate the course of justice. I am advised—we shall certainly double-check that this is the case—that the judge has that discretion. It is important that he has it. It avoids him perhaps inappropriately saying "No" to an extradition case that otherwise might have had merit and gone forward. I put that on the record. We shall seek to demonstrate that that is the case.
  On Question, amendment agreed to.
  [Amendments Nos. 195 to 198 not moved.]
  Clause 83, as amended, agreed to.
  Clause 84 [Case where person has been convicted]:
  [Amendments Nos. 199 to 202 not moved.]
  Clause 84 agreed to.
  Clause 85 [conviction in person's absence]:
  Lord Filkin Lord Filkin moved Amendment No. 202A:
  Page 45, line 18, at end insert—
  "(2A) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—

  (a) to the nature and source of the document;

  (b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;

  (c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;

  (d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);

  (e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings."

  On Question, amendment agreed to.
  [Amendments Nos. 203 to 205 not moved.]
  4.30 p.m.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 206:
  Page 45, line 33, leave out from "person" to ""for" in line 34.
  The noble Baroness said: This amendment has an English base but a Scottish question attached to it. It focuses on Clause 85(7) and was tabled on the advice of the Law Society of Scotland to probe the issue of uncorroborated evidence. I suspect that we will have a very clear reassurance from the Government—at least, I hope so.
  When we looked at the Explanatory Notes to find out why Subsection (7), which provides for a different form of wording in Subsection (1) in relation to Scotland was necessary, we found that it was not even mentioned at all. This particular clause was mentioned by the Minister in the helpful briefing that was sent out after our meeting dealing with the special provisions for Scotland. He explained in this letter that Subsection (7) would provide that,
  "in Scotland, the Sheriff is required to decide the question of sufficiency of evidence requiring an answer as if the proceedings were summary proceedings in respect of an alleged offence by the person, on the basis of a single source of evidence. Normally in Scotland corroboration would be required in criminal proceedings but this would not be consistent with the evidential standard for the rest of the UK".
  Our understanding of this explanation is that the subsection is necessary to ensure consistency in the treatment of evidence in extradition cases in England and in Scotland. However, we are advised that it could create inconsistency in the treatment of evidence in Scottish law and in Scottish extradition law.
  Our amendment would ensure that there must be sufficient corroborated evidence before the judge can proceed under this section. If the person has already
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  been convicted in absentia, then corroborated evidence of the offence should be capable of being exhibited. In these circumstances, the Law Society of Scotland can see no reason for departing from the standard principles of sufficiency of evidence and believes that evidence from two sources should be available before the judge can proceed. I beg to move.
  The Earl of Mar and Kellie: I will say but one sentence in support of this amendment. I believe that the Bill is attempting to continue an unsatisfactory precedent, and I would very much like corroborated evidence to he required.
  Lord Davies of Oldham: I thank noble Lords for the way in which the amendment has been presented. The noble Baroness has stolen a good deal of my speech by describing our response to the Law Society of Scotland.
  Let me make the obvious point that the issue relates to a request from a Part 2 territory for the extradition of a fugitive in circumstances where he has been tried for and convicted of the offence for which his return is sought in his absence.
  I understand that the Committee has discussed in absentia cases at some length when Part 1 was considered, so I do not intend to spend too much time on the general issues. Clause 85 is concerned with cases where the person has been convicted in absentia but is guaranteed a retrial or a review amounting to a retrial.
  As the Bill stands, Clause 85(7) provides that when the judge in Scotland is deciding whether the evidence supplied to him is sufficient to make a case requiring an answer, he proceeds as if the proceedings in Scotland were summary proceedings in respect of an offence alleged to have been committed by the person, but may do so on the basis of a single source of evidence, which is the bone of contention between us. The amendment would remove the provision about evidence from a single source.
  I have the greatest respect for Scottish law and its traditions, and I recognise the important point of principle which the noble Earl, Lord Mar and Kellie, has introduced into the debate. But it is a rule of Scots law that evidence from two separate sources, or corroboration, is necessary before there is legally sufficient evidence to convict, which is a very important consideration.
  If the amendment were accepted, it would mean that since the proceedings are, in effect, ordinary summary proceedings, the normal rules of law in relation to evidence would apply. The judge in Scotland would therefore have to have evidence from two separate sources before there was sufficient evidence to make a case requiring an answer. I know that that is what the noble Earl wants, and it is an issue to which the noble Baroness has alluded.
  Our aim with this legislation is to ensure that so far as is possible, the same regime for extradition applies across the three jurisdictions in the UK. We do not want a fugitive to be subject to different evidential standards in different parts of the United Kingdom. When the judge in England and Wales or Northern

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  Ireland is considering the sufficiency of evidence in similar circumstances, he may do so on the basis of a single source of evidence. The effect of the amendment is that a judge in Scotland would require to consider the issue of sufficiency of evidence to a different and higher standard of evidence. In the Government's view, that would be undesirable.
  Most of our extradition partners do not require corroborated evidence for a conviction, but this amendment would effectively require them to seek out evidence that they would not need for their own domestic conviction.
  The Scots rule of law requiring corroborated evidence is a safeguard against a miscarriage of justice. We all recognise its value and there is much merit in that provision. But the fugitive is not on trial in Scotland and will enjoy the safeguard of being entitled to a retrial or a review amounting to a retrial on his return to the country that sought his extradition.
  For these reasons of consistency across the jurisdictions of the United Kingdom and because the countries to which we would extradite an individual would have a single basis for their judgments on these matters, we hope the Committee will recognise that consistency suggests that the amendment should be withdrawn.
  The Earl of Mar and Kellie: If I might respond with another single sentence, this is an example of the tiresome way in which United Kingdom law ends up in the Scottish courts. I will say no more about that at this moment.
  Baroness Anelay of St Johns: I am grateful to the Minister for his exposition. We on these Benches are so used to hearing the Government wax lyrical about flexibility, yet suddenly here they want consistency. We are going from one extreme to the other.
  I appreciate entirely the basis of the Minister's argument. I will go back to the Law Society of Scotland and see if it wishes to take the matter further. The Minister has highlighted the most important point—the person will not then be on trial on Scotland so the evidential standards cannot there be undermined because that person will be tried overseas. Therefore, when we return to the issues of retrial throughout the Bill's proceedings, it is even more important to ensure that retrial has as high a standard as is possible within the context of the Bill. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 85, as amended, agreed to.
  Clause 86 agreed to.
  [Amendment No. 207 not moved.]
  Clauses 87 to 89 agreed to.
  [Amendment No. 207A not moved.]
  Clause 90 [Physical or mental condition]:
  [Amendment No. 208 not moved.]
  Clause 90 agreed to.
  Clause 91 [Case sent to Secretary of State]:
  [Amendment No. 209 not moved.]
  Clause 91 agreed to.
  Clause 92 agreed to.
  Clause 93 [Death penalty]:
  Lord Goodhart Lord Goodhart moved Amendment No. 209A:
  Page 48, line 8, at end insert "or if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release"
  The noble Lord said: This brief amendment raises a point which is a matter of some concern to us. Clause 93 provides that a person must not be extradited to a category 2 territory if he could be sentenced to death unless the Secretary of State has received a written assurance that the sentence of death will not be imposed or not be carried out.
  There may, however, be a sentence of life imprisonment with no possibility of release. There are, of course, some crimes of murder which are so dreadful that it is apparent that the murderer must never be released during their natural life. In this country there is power to direct a whole life tariff, but that is not mandatory—it can be decided upon the basis of the facts of the individual case. But there is at least the possibility that in some jurisdictions there may be crimes which carry a mandatory life sentence with no possibility of release. That would concern us greatly because it could be described as a sentence to a kind of living death. We do not think it is appropriate that that should ever be mandatory and that no person, neither the judge nor any outside authority, could have power to review the case.
  This is a fairly modest amendment. It does not require that no sentence of life imprisonment without the possibility of release should ever be imposed. It merely requires that that sentence should not be mandatory because we think that it is, in some senses, so close to a death sentence that it should never be applied unless the cases make it overwhelmingly clear that nothing short of that will do. I beg to move.
  4.45 p.m.
  Lord Clinton-Davis: I support what has been said by the noble Lord, Lord Goodhart. I have little to add, save that the idea of a mandatory sentence of life imprisonment signals the failure of the sentencing authority. I do not want any provision in the Bill that would achieve that purpose. For that reason and others I support the amendment.
  Lord Carlisle of Bucklow: I do not know whether the Minister is about to say that he has sympathy with this proposal, but is this not exactly what the Home Secretary is trying to achieve in the Criminal Justice Bill at the moment?
  Lord Filkin: I am very grateful indeed that, where there had been any risk that I should find myself out of step with my right honourable friend the Home Secretary, that was not in fact the case. For reasons

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  that I shall seek to explain, we believe that Clause 93 is essential, but we are not persuaded that an amendment seeking to take it substantially further is right.
  I believe that the Committee will be aware of why we have included Clause 93 in the Bill. In short, that has been our practice: we have not extradited people anywhere in the world without a clear assurance that we believed we could trust that the death penalty would not be imposed in the case of someone extradited who was then found guilty of an offence which potentially carried the death sentence. Therefore, we have put that beyond doubt by formalising it in legislation in this respect.
  We believe that to go further and to bar extradition in the circumstances proposed by the noble Lord goes too far. For a start, there is nothing in the Extradition Act 1989 which bars extradition in these circumstances. That is not a knock-down argument, but we are talking about the status quo: that is currently the situation and nothing has been brought to our attention that makes us feel that the provision is defective in that respect.
  The 1989 Act operates under the European Convention on Human Rights, and therefore in certain circumstances arguments can be made that that might engage in certain situations—and, of course, the ECHR will still apply in the future in all these circumstances as a defence.
  In practice, situations where there is no possibility of appeal seem to be extremely rare. I will not say that it never happens, but there is usually some form of appeal for clemency that can be invoked in other jurisdictions.
  To take the example of a convicted war criminal, we believe that it should be the prerogative of a convicting country to decide whether a mandatory life sentence without the possibility of release should be imposed. However, as I have indicated and for reasons that I do not need to rehearse as I am sure they are well known to all Members of the Committee, we believe that the death penalty is a different matter. We believe that it should never be used as a punishment for a criminal offence.
  We do not believe that there is the same matter of principle in the case of mandatory life sentences. Indeed, we have life sentences in the UK, but "life" means a period of time which is not necessarily until the end of the convicted person's days. We may discuss these issues in the future.
  There is a further reason why I do not believe that we can go down this route. Without talking about this at length, justice requires that people who flee from justice in our country or someone else's can be brought to trial.
  At heart there are two options for establishing a system of international law which we have discussed in relation to other Bills. One either goes down the route of mutual recognition, or one goes down the route of effectively seeking to harmonise fully judicial procedures and sentences. As we have indicated previously, we do not believe that that latter route makes sense. We believe that there are very strong
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  reasons why our own legal traditions and sentences should be respected. The corollary, however, is that we have to respect those of other states.
  That is not a statement at large. We are talking here about states with which we choose to make a specific extradition agreement. The decision to make such an agreement with country X, as we have previously indicated, will come before the House as an affirmative resolution. Therefore, there will be the possibility quite properly to inquire into whether that state is a suitable partner for extradition in the circumstances that we are advancing. So designation orders will be subject to the affirmative resolution.
  With a moment's thought, one can see where this proposal might lead. If we went down this avenue, it would be open to someone else to say, "We will extradite to you in Britain only if your sentencing system or even your judicial procedures match ours exactly". That is a route that would lead to the collapse of effective international extradition. We believe that that would frustrate justice. We make an exception for the death penalty, for reasons that I need not set out at length. But for these reasons, it is not possible to agree to this amendment.
  Lord Goodhart: On the Minister's final point about the question of mutuality, I point out that Article 5 of the European framework decision states:
  "The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions".
  Paragraph 2 then states that,
  "if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure".
  As regards category 1 states, it is clear that other members of the European Union may impose such a condition on extradition to this country under the terms of the European framework decision. So I do not regard that argument as a particularly serious one.
  The amendment, which applies to category 2 territories, is less far-reaching than that which would be permitted under Article 5 of the European framework decision. Therefore, I do not believe that it is unreasonable on the grounds that other countries might take a different view. However, I shall consider what the Minister has said on the subject and decide whether I wish to bring the matter back for further debate. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Goodhart Lord Goodhart moved Amendment No. 210:
  Page 48, line 13, leave out subsection (3).
  The noble Lord said: The amendment seeks to remove subsection (3) from Clause 93 of the Bill, which states that subsection (1)—that is, the ban on extradition to a country where the death penalty might be imposed—

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  "does not apply if the person has consented to his extradition under section 125".
  I believe that, in principle, the United Kingdom should never assist in the sending of someone to face a trial that might result in the death penalty. It is clear that if a person is determined to go home to face trial there is nothing that this country could, or should, do to stop him doing so. That is both his decision and his action in removing himself to that country. I therefore believe that subsection (3) is, first, unnecessary and, secondly, inappropriate—because one would have to consider the nature of the consent that had been given. As I said, I believe that, as a matter of principle, the Government of the United Kingdom should not assist a person who has consented to being extradited to face the death penalty and should leave that decision and its implementation to that person himself or herself. I beg to move.
  Baroness Anelay of St Johns: My noble friend Lord Bridgeman has added his name to the amendment. He is not present because he is bravely taking the Unstarred Question on the Floor of the House and is preparing for that. That is one of the problems that we have when a Grand Committee clashes with other business.
  I can be brief. I support the proposition advanced by the noble Lord, Lord Goodhart. I am always concerned when there is a question of consent, because consent can be given for many reasons. It may be that the person has not arrived at the decision in the proper or most advisable manner. As the noble Lord, Lord Goodhart, said, we should not in this Bill be assisting people to be removed in those circumstances. If it is entirely their decision, then obviously they have to face that; however, I believe that subsection (3) should be removed from the Bill as currently drafted.
  Lord Filkin: As I signalled privately to one or two Members of the Committee previously, in discussions and preparation for today's debates we were considering the potential mischief and the potential benefits of removing the provision. Such matters are never black and white. I was minded to see a situation in which someone might consent to his removal while still being of sound mind. People could, for example, be in a situation where they were so depressed that they thought that it was not worth pursuing the matter any further. We had a debate with ourselves as to whether in that situation the state should support such a process. We then considered the reverse—circumstances in which guarantees might not be given and where the person himself wanted to go. It is possible to construct an argument where there might be some such person, but it is a fairly remote set of circumstances.
  Therefore, I have signalled that we are minded to take the amendment away and to reflect positively on it. We will examine the situation further to see whether there would be any significant mischief as a consequence of the removal of the subsection. There
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  are many arguments which, if I had not signalled them, would have been made in fuller detail as to why there are risks with the proposal as it stands.
  I hope that, given what I have said in good faith, the three noble Lords who have put their names to the amendment will be minded to withdraw it at this point.
  Lord Carlisle of Bucklow: Before the noble Lord sits down, if he is to reconsider this matter, I do not know whether it might be helpful to remind him of what is in some ways almost an analogy; namely, when we had the death penalty in this country a prisoner could not consent to his own death by pleading guilty unless the judge was satisfied. In other words, the judge had the power to overrule a guilty plea and say no, he must be tried. If there was a doubt, a prisoner could not consent to his own death.
  Lord Clinton-Davis: I added my name to this amendment, but my noble friend has been very fair as regards the Committee. He said, without any obligation, that his civil servants—I assume that he, too—will look very carefully at the position. I do not think that anything divides members of the Government or the Opposition as far as the intention is concerned. I thank my noble friend for what he said. He is being entirely fair with this Committee.
  5 p.m.
  Lord Goodhart: I am most grateful to the Minister for what he said. We welcome his undertaking to look at this matter again with a likelihood of taking some action. Therefore, in due course I hope that this amendment will be replaced by a government amendment. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 93 agreed to.
  Clauses 94 to 97 agreed to.
  Clause 98 [Time limit for order for extradition or discharge]:
  [Amendments Nos. 211 and 212 not moved.]
  Clause 98 agreed to.
  Clause 99 [Information]:
  [Amendment No. 213 not moved.]
  Clause 99 agreed to.
  Clauses 100 and 101 agreed to.
  Clause 102 [Court's powers on appeal under section 101]:
  [Amendments Nos. 214 and 215 not moved.]
  Clause 102 agreed to.
  Clauses 103 to 123 agreed to.
  Clause 124 [Competing extradition requests]:
  The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 216:
  Page 64, line 2, at end insert—
  "( ) the date on which each offence was committed (or was alleged to have been committed);"
  The noble Earl said: Amendment No. 216 was inspired by the Law Society of Scotland, yet again. Simply, it extends the consideration of the Secretary of State when completing an extradition request by one extra factor; namely, the question "when". The Bill calls for consideration of how serious, where, the date of the request and whether the person is being convicted in absentia or merely stands accused. The amendment adds a fifth consideration; that is, when was the offence, or the alleged offence, committed? As there are limits, that seems to be a relevant consideration. The limits are, of course, both statutory and common sense.
  When at school I was taught to answer history questions with the formula: who, what, when, where, why, how and results. The Minister will recognise why I am attracted therefore to this amendment. I beg to move.
  Baroness Carnegy of Lour: I shall be very interested to hear what the Minister has to say about this amendment. It seems that the Law Society of Scotland may have a point, although it is not a specifically Scots point. The quality of evidence that can be received may grow less with time. For that reason, it may be important, if there are competing requests for extradition, to go for the oldest first. Alternatively, it could operate the other way around. A second or further offence, committed after a person has been charged for a first offence, could be more heinous. It would he more extraordinary to be committing a second or third offence if a first has already been committed. There seems to be some sense in putting the date of each competing offence before the Secretary of State when he makes his decision. I shall be very interested to hear what the Minister has to say.
  Lord Davies of Oldham: I am grateful for this short debate on an interesting concept. I was an historian too, but I cannot remember being able to answer any of the question which the noble Earl, Lord Mar and Kellie, so correctly identified as key issues for the historian. Of course, I recognise that the question of time is important in certain contexts. With regard to this issue, I shall try to establish that nothing precludes the judge, if it is Part 1, or the Secretary of State, if it is Part 2, or a combination, from taking any relevant factors into account. In fact, it is quite 'the opposite. We would expect all relevant factors to be taken into account. Within the framework of the Bill, we have sought to specify four factors. I should like to identify why they are there, as well as to indicate why it is quite difficult to see how the concept of time can be put foursquare with existing factors and adds to the Bill.
  Competing requests—where we receive two extradition requests for the same individual—are, mercifully, relatively rare. None the less, we need to be able to deal with such circumstances. That is why the Bill contains provisions in this respect. Where two Part 1 requests are received, the district judge deals with those. Where two competing Part 2 requests are received, the Secretary of State makes the adjudication. If one request is under Part 1 and the other under Part 2, the Secretary of State adjudicates.
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  In each case the Bill specifies the factors that have to be borne in mind. But I reiterate that other relevant factors can and should be taken into account.
  The four factors identified can be readily understood. I do not need to detain Members of the Committee a great deal on them. Surely, the single most important factor is whether one offence is significantly more serious than another. That is bound to be the most important consideration in competing cases. Similarly, there is a good reason why the place where the offences took place should be considered. The United Kingdom preference always has been that people should be tried in the place where they committed the crime. Again, that is a good reason, which is why the UK has always been willing—unlike some EU countries—to extradite its nationals.
  If there is a choice between a territorial request and an extra-territorial request, we believe the territorial one—the place where the crime took place—should take priority. That is particularly important if, as is theoretically possible, both requests could relate to the same person. Imagine that a German commits a serious offence while on holiday in France and then comes to Britain. France might request the person's extradition, but equally so might Germany, as it takes extra-territorial jurisdiction over the acts of its citizens. In such circumstances, we would give preference to the French request because we prefer people to be put on trial where the crime has been committed.
  The third factor to be taken into account when deciding competing requests is when the respective requests are received. That is important because one request might be well advanced in procedures before the second is received. One case already might have had its full extradition hearing and even possibly the appeal hearing at the High Court before the second request is received. All things being equal, the request which is well advanced along the judicial system should take precedence, rather than starting the whole process from scratch for the new request. Finally, the fourth factor to be taken into account is whether the requests are accusation cases or conviction cases. I am sure that Members of the Committee will understand why that should be so.
  Extradition is a significant step which has profound consequences for the person who is subject to it. It is preferable to extradite in a case where the person has already been tried and found guilty in a court of law than in a case where the person has yet to be put on trial and, perhaps, may be found not guilty. That is what the Bill currently states.
  The amendment would add another factor to he considered in every case where there were competing requests—the date on which the offences in question are alleged to have taken place. There may be some circumstances in which it would be entirely irrelevant, but the amendment would make it obligatory in every case. I have some difficulties on this. I am not sure how the dates for the offences should be taken into account. Should priority be given to the most recent offence, or to the less recent offence? On the one hand, it could be

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  argued that the most recent offence should take priority because those responsible for the other requests might have been dilatory in their proceedings. On the other hand, it could be argued that the less recent offence should take priority because there is a greater danger that the memories of witnesses to the crime will fade unless the person is brought rapidly to justice.
  When faced with two requests which are otherwise roughly equal, one of which relates to conduct two years ago and one which relates to conduct six months ago, which should be given priority? I do not think that there is an easy answer to that question. But unless we are prepared to answer it and put instructions clearly on the face of the Bill, I do not think that we can support the amendment because that is what the amendment actually requests. It puts this concept foursquare with the existing four specifications in the Bill.
  The list of factors which I have just gone through is not exhaustive. Of course, if it is appropriate, the concept which the noble Earl introduces in his amendment could and should be taken into account. In a case where the dates of the respective offences clearly point to one or other of them being given priority, the person concerned can take that into account. But, for the reason I have given, I do not see that we should require the person making the judgment, in every case of competing requests, to have regard to this factor foursquare with the ones listed in the Bill. That is the reason why there is some merit in the proposal made by the noble Earl, which, on some occasions, would be relevant and should be considered. But we do not think that it fits foursquare with the four major considerations in the Bill
  The Earl of Mar and Kellie: I have tried to listen to the argument made by the noble Lord—I always have a problem listening to other people's arguments. At times, I thought that he was making my point for me. I would have preferred him to like this amendment. I do not think that it would have harmed the process at all. However, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 124 agreed to.
  Clause 125 [Consent to extradition: general]:
  [Amendment No. 217 not moved.]
  Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 218:
  Page 64, line 42. at end insert—
  "( ) In the application of this section to Scotland, "counsel" includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980 (c. 46) (rights of audience in various courts including the High Court of Justiciary)."
  The noble Baroness said: With the permission of Members of the Committee, I should like to speak briefly to Amendment No. 218, although it has been discussed previously. This amendment relates to a question of whether in Scotland a solicitor advocate is
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  able, under the Bill, to appear in the High Court of Justiciary when someone is appealing against extradition. The Minister must not be too frightened that I am speaking to this amendment and I shall have one question at the end.
  I was slightly confused when the noble Lord, Lord Bassam, replied to this amendment. He kindly wrote a very helpful letter to explain that the Bill allows the solicitor advocate to appear in the High Court of Justiciary. I am grateful for that. That was the point of the amendment. The noble Lord, Lord Bassam, also pointed out that in this clause the Scottish court in question is the sheriff court, where a solicitor and not an advocate appears. So the amendment is actually misplaced. I accept that.
  Having said that, I should like to ask the Government one question. In Clause 125(9), the English court, about which we are speaking, is the magistrates' court. I wonder why counsel is mentioned at all. The noble Lord might like to write if he cannot obtain advice about that. It is a small point, and perhaps a rather naughty one. but the point does not fit with the letter written by the noble Lord, Lord Bassam. I beg to move.
  5.15 p.m.
  Lord Davies of Oldham: I do not think that there is anything naughty about moving the amendment: the naughtiness may lie in the inadequacy of the reply. As the noble Baroness indicated, my noble friend Lord Bassam hoped to clear up the matter.
  We think that the amendment is misplaced. My major task is to defend the Bill against amendments. I understand that the noble Baroness may not press her amendment so far. On the technical question of whether the reference in this crucial clause is accurate. the noble Baroness may not be quite foursquare with the Scottish experience. A barrister in England can appear in the magistrates' court: therefore, we can refer to "counsel" quite accurately.
  Baroness Carnegy of Lour: I confess to have had great ignorance on that matter. I thank the noble Lord very much. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 125 agreed to.
  Clause 126 agreed to.
  Clause 127 [Consent to other offence being dealt with]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 219:
  Page 65, line 31, leave out "section 93" and insert "sections 78, 93, 94 and 95"
  The noble Baroness said: This group of amendments—Amendments Nos. 219, 220 and 223—focuses on Clause 127, which covers consent to other offence being dealt with. When making a decision under the clause, the Secretary of State must decide whether the offence is an extradition offence. If it is, he must then decide whether extradition would be barred by virtue of Clause 93, which deals with the death

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  penalty. We have tabled the amendments to probe why, at this stage, that is the only bar to extradition which the Secretary of State should take into consideration.
  Amendment No. 219 ensures that the Secretary of State must also take into account the other bars to extradition contained in the Bill—for example, the rule against double jeopardy; extraneous considerations; the passage of time and hostage-taking considerations—before giving consent to another offence being dealt with in a category 2 territory.
  The amendment was brought to our attention by the Law Society of England, which believes that in the interests of parity and fairness the other factors should be considered for the purposes of Clause 127. I emphasise that the amendment is tabled as a probing matter and would be so even on the Floor of the House. It is simply a matter of asking why there is different treatment. I beg to move.
  Lord Goodhart: Amendment No. 220 is tabled in my name. It is in the same form as that which has just been moved by the noble Baroness, Lady Anelay, with one exception: it adds to the grounds on which the Secretary of State must refuse consent on speciality grounds the fact that a trial for the second offence would be rejected on an application for extradition from the United Kingdom on grounds that a trial would he in breach of the human rights of the defendant. It therefore adds Section 86 to Sections 78, 93, 94 and 95 as a section that bars the consent of the Secretary of State to the trial of the defendant in the country to which he or she has already been extradited for a second offence.
  Lord Davies of Oldham: I am grateful for the way in which Members of the Committee moved their amendments. Quite rightly, the amendments have been identified as probing. For once, I suggest that such probes have been accurately deployed, so I may be able to offer considerable sympathy with the issues raised. We may need to look at the matters further. We are certainly willing to reconsider whether Clauses 127 and 128 could be redrafted to make clearer the matters that the Secretary of State must consider.
  Clauses 127 and 128 are concerned with what happens after a person has been extradited from the UK to a category 2 country. Clause 127 is concerned with requests for waivers of speciality; that is, where the country to which the person was extradited wants to prosecute the person for an offence other than the one for which he was extradited. Clause 128 is concerned with onward extradition from the country to which he was originally extradited to another category 2 country.
  The Bill provides that, where we get such requests, the matter goes to the Secretary of State for him to consider whether they should be acceded to. The Committee will recall that the Government have already indicated that we are happy to consider whether it would he possible to include some form of provision to ensure that the person concerned is made aware of all such requests so that he can make such representations as he wishes.
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  The provisions in Part 2 of the Bill are somewhat different from those in Part 1. Part 1 sets out clearly each and every bar that the district judge must consider. The reason for that distinction can he found in Clauses 54(6) and 56(6). In such cases. if none of the bars to extradition apply, the district judge must give his consent. By contrast, in Clauses 127(7) and 128(7). the Secretary of State may give his consent. That is the key point.
  As under current legislation, the Secretary of State has almost complete discretion in those matters. It follows that he can take account of every relevant factor in reaching his decision without the need to spell it out in the Bill. If, for example, further extradition would infringe the fugitive's human rights—the noble Lord, Lord Goodhart, made that point—or the further offence for which the other country wants to put him on trial is one for which he has already been tried, the Secretary of State can take those matters into account when deciding whether to give consent. One can probably go further and say that if, in such circumstances, the Secretary of State failed to take account of those factors, he would he subject to challenge very quickly.
  Having said that, it follows that, if it is our expectation in Part 2 cases that the Secretary of State should consider all the normal bars to extradition, there is likely to be no great harm in making that explicit in the Bill. That is why I am prepared to give an undertaking to look again at Clauses 127 and 128 to see whether we can make them more explicit to take account of the points made by Members of the Committee.
  Baroness Anelay of St Johns: I am very grateful to the Minister for that offer to look at Clauses 127 and 128 again. It was our intention to ensure that it was clear that we were not trying to fetter the work of the Secretary of State and the decision to which he or she may come. I am grateful that the Minister will reconsider whether there is no harm in being able to direct the Secretary of State's attention to the variety of bars that might apply in a particular case. At this stage, I beg leave to withdraw the amendment.
  Amendment, by leave,withdrawn.
  [Amendments Nos. 220 to 222 not moved.]
  Clause 127 agreed to.
  Clause 128 [Consent to further extradition to category 2 territory]:
  [Amendments Nos. 223 to 225 not moved.]
  Clause 128 agreed to.
  Clause 129 [Consent to further extradition to category 1 territory]:
  [Amendments Nos. 226 and 227 not moved.]
  Clause 129 agreed to.
  Clause 130 [Return of person to serve remainder of sentence]:
  [Amendments Nos. 228 and 229 not moved.]
  Clause 130 agreed to.
  Clause 131 agreed to.
  Clause 132 [Costs where discharge ordered]:
  [Amenthnent No. 230 not moved.]
  Clause 132 agreed to.
  Clause 133 agreed to.
  Clause 134 [Documents sent by facsimile]:
  Lord Filkin Lord Filkin moved Amendment No. 230A:
  Page 69, line 6, leave out subsections (1) and (2) and insert—

  "(1) This section applies if a document to be sent in connection with proceedings under this Part is sent by facsimile transmission.

  (2) This Act has effect as if the document received by facsimile transmission were the document used to make the transmission.

  (3) The document received by facsimile transmission may be received in evidence accordingly."

  On Question, amendment agreed to.
  [Amendment No. 231 not moved.]
  Clause 134, as amended, agreed to.
  Clause 135 agreed to.
  Clause 136 [Persons serving sentences outside territory where convicted]:
  Lord Filkin Lord Filkin moved Amendments Nos. 231A, 231B and 231C:
  Page 69, line 31, after "is" insert "alleged to be"
  Page 69, line 33, after "offence" insert "specified in the request"
  Page 70, line 14, at end insert—

  "(e) section 84 has effect as if, in subsections (1)(c), (2)(c) and (3)(c), after "entitled" there were inserted "in the convicting territory";

  (f) section 1 17(4) has effect as if "a category 2 territory" read "the convicting territory" and as if "the category 2 territory" in both places read "the convicting territory";

  (g) section 138( I ) has effect as if "a category 2 territory" read "the convicting territory";

  (h) in section 138, subsections (2), (3), (4), (5) and (7) have effect as if "the category 2 territory" read "the convicting territory"."

  On Question, amendments agreed to.
  Clause 136, as amended, agreed to.
  Clauses 137 and 138 agreed to.
  Clause 139 [The appropriate judge]:
  [Amendments Nos. 232 and 233 not moved.]
  Clause 139 agreed to.
  Clauses 140 to 145 agreed to.
  Clause 146 [Dealing with person Jar other offences]:
  Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 234:
  Page 77, line 9. leave out paragraph (d).
  The noble Lord said: Part 3 of the Bill concerns extradition to the United Kingdom. Amendment No. 234 focuses on Clause 146, dealing with persons for other offences. As I understand it, the clause deals with the speciality issue as regards Part 3 of the Bill; that is to say, the United Kingdom's obligations under the speciality issue as regards persons extradited to this country. Clause 146(2) provides that a person may be dealt with for an offence committed before his extradition only if the offence falls under subsection
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  (3) or the condition in subsection (4) is met. Under subsection (3), there is a list of seven categories of offences.
  As we move to the detail of the amendment. I ask the Minister whether he could clear up the confusion on paragraph (b). I apologise that it is at short notice, so I shall understand if he wishes to write about the matter afterwards. As a non-lawyer, I find the ramifications of speciality difficult to think through. particularly given the intertwined and overlapping nature of much modern crime.
  As I understand it, speciality rules are designed to prevent a country extraditing a person for one offence and then charging him for another, or possibly passing him on to a third country having obtained him. The example that I have in mind of where paragraphs (b) and (d) overlap is as follows: Mr X robs a bank in this country and goes to France. He is sought, detained and his extradition begins. But, to provide background information to their decision to grant extradition, the French authorities gain access to his bank account, which reveals that he had been trading in drugs before the bank robbery. Taking into account Clause 143(b), can he then be charged for the drug-related offences? On the one hand, they are very different offences from the bank robbery and occurred before the offence for which his extradition took place. But, as stated in paragraph (b), it would be,
  "an offence disclosed by the information provided to the category 1 territory in respect of that offence".
  That will be an increasingly common problem as we deal with modern crimes where there is such an overlapping and intertwining of various offences. I would be grateful if the Minister could talk about the matter, as it is relevant to paragraph (d).
  Paragraph (d) refers to,
  "an extradition offence in respect of which consent to the person being dealt with is treated as given on behalf of that territory".
  The words "treated as given" have given us quite a lot of cause for concern. I find it difficult to see why it is "treated as given". It is either given or not given. Perhaps the Minister could give us an example of where "treated as given" would be different from "given". We believe that it may be a drafting error, left over from the former provisions for speciality that were removed on Report in another place. They allowed prior blanket statements of "presumed consent" to remove the speciality rule in respect of a territory.
  The Government's amendments on Report in another place removed paragraph (d) from Clause 17, the speciality clause in Part 1. It had read:
  "an extradition offence in respect of which the appropriate judge is treated by section 53 as giving his consent to the person being dealt with".
  That paragraph is almost identical to the paragraph (d) that our amendment would remove from Clause 146.
  In the other place, the Minister, Mr Ainsworth, explaining why the Government wished to make the amendment to Clause 17 said:

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  "Government amendments Nos. 49, 51, 52 and 74 relate to the speciality waiver and further extradition to a category 1 territory. Under the Bill as drafted, the UK was able to adopt a higher position on speciality, which means that we could agree on a reciprocal basis with a part 1 extradition partner that they, and we, can, after extradition, presume our consent to the person being prosecuted for offences committed before extradition took place. However, grave concerns were expressed about this issue, and we listened to the worries expressed by members of the Standing Committee and of the Home Affairs Select Committee. We have therefore decided that the reference to the use of the higher position on speciality and re-extradition should be removed from the Bill, and these amendments achieve that aim".—[Official Report, Commons, 25/3/03; col. 186.]
  We welcome that significant concession. However, we feel that the "presumed consent" concept will not have been completely removed from the Bill, unless the relevant change is made to Clause 146—the removal of paragraph (d)—and we get some idea of how subsection (3)(b) will operate. Our amendment would simply remove one paragraph from the clause. If the Government subscribe to the removal of paragraph (d) from Clause 17, they should support our attempts to finish off the job and remove paragraph (d) from Clause 146. I beg to move.
  5.30 p.m.
  Lord Davies of Oldham: As I shall explain in a moment, I shall be all sweetness and light with regard to paragraph (d), but, unfortunately, before that, I must say that the noble Lord has introduced a problem with paragraph (b) on which I can be neither sweet nor light. "Light" would suggest that I knew what I was talking about. and I cannot be "sweet" unless I understand the issue sufficiently.
  We are not sure that paragraph (b) covers the case that the noble Lord gave in his illustration. We know that paragraph (h) is concerned, for example, with a case in which a person is extradited for murder and the charge is then reduced to manslaughter. It is a different offence, but it is covered by the same facts. That is what paragraph (b) is there for. I will have to write to the noble Lord on the other matter that he raised. I have not got the wit to interpret it and produce a satisfactory answer at the moment.
  I can give a satisfactory answer to the issue to which the amendment refers—paragraph (d). In common parlance, the noble Lord has got us bang to rights. We have made an error, as he has rightly and generously acknowledged. We made concessions in the other place, and we re-drafted the Bill. We got it right throughout the Bill and interpreted the concessions and that change accurately. In that one instance, we did not, so I congratulate the noble Lord on spotting it with his eagle eye. He will save the Government considerable embarrassment. I am not sure that that was intentional, but we both gain. I thank him for that and, accordingly, will consider the amendment and re-draft the Bill bearing in mind his point. I shall write to the noble Lord on the specific matter raised in respect of paragraph (b).
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister. I understand that the point on Clause 146(3)(b) was a fast ball slightly short of a length. I
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  look forward to receiving the Minister's letter in due course. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 146 agreed to.
  Clause 147 agreed to.
  Clause 148 [Extradition offences]:
  Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 235:
  Page 78. line 24. at end insert "or, if the conduct constituted an offence under the Female Genital Mutilation Act 2003, any sentence of imprisonment or detention has been imposed in the United Kingdom in respect of that conduct"
  The noble Lord said: Amendments Nos. 235 and 236 stand in my name, that of my noble friend Lady Anelay of St Johns and that of the noble Baroness, Lady Gould of Potternewton, who will speak to the amendment in a minute or two. It is a subject about which the noble Baroness has a great deal of experience.
  We tabled the amendments to get clarification from the Government of their attitude to the extradition of persons who have committed offences under the Female Genital Mutilation Bill, if it is enacted. The Bill is a Private Member's Bill and is currently in the other place. I understand that it has the support of the Government and is due for consideration on Report in another place tomorrow, Friday 11th July.
  The Female Genital Mutilation Bill relates to some truly awful conduct. The House of Commons Library has produced a long research paper, but I cart do no better than to quote from the Explanatory Notes prepared by the Home Office, with the consent of the Member in charge of the Bill in another place, Ann Clwyd:
  "Female genital mutilation (FGM) involves procedures which include the partial or total removal of the external female genital organs for cultural or other non-therapeutic reasons. The practice is medically unnecessary, extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life. FGM is a criminal offence in the UK under the Prohibition of Female Circumcision Act 1985. The Female Genital Mutilation (FGM) Bill repeals and re-enacts the provisions of the 1985 Act and gives them extra-territorial effect as was recommended by an All Party Parliamentary Group on Population, Development and Reproductive Health reporting in 2000. It also increases the maximum penalty, on conviction on indictment, for FGM from 5 to 14 years' imprisonment".
  I shall not elaborate on the Bill's provisions, but I commend to the Committee the speeches that were made in another place on 21st March, when the Bill received an unopposed Second Reading and support from all parts of that House. I trust that, when it reaches your Lordships' House, it will receive a similar level of support.
  The House of Commons research paper reveals that FGM is most frequently practised among the populations of Djibouti, Eritrea, Ethiopia, Sierra Leone, Somalia, Sudan and Nigeria. There are two important facts that bring us to the Extradition Bill. First, there are believed to he between 3,000 and 4,000 new cases each year in this country, involving families who may or may not remain here. Secondly, there is a

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  tendency for families to travel to their country of origin to inflict FGM on their daughters. Those two facts explain the relevance of the matter to this Committee.
  The amendments explore the issue of extradition back to the United Kingdom—hence the discussion in Part 3—under the provisions of the Extradition Bill of persons who will have been convicted of crimes under the Female Genital Mutilation Bill, assuming that it is enacted. The FGM Bill as I said, would confer extraterritorial jurisdiction on the UK courts in relation to acts of female genital mutilation done abroad by United Kingdom nationals or permanent United Kingdom residents. That would mean that, under Clause 148(2) of the Extradition Bill, persons who took part in acts of female genital mutilation abroad could be extradited to face trial in this country. It would be interesting to hear from the Minister how the Government intend to approach the provisions in practice. Do they envisage making extradition requests in such circumstances?
  Finally, I ought to say something about the effect of the amendments. They would create an exception to the requirement under subsections (4) and (5) of Clause 148 that, for conduct to constitute an extradition offence for which a person could be extradited back to the United Kingdom, a sentence of at least four months' imprisonment must have been imposed. The amendments would allow a person convicted of an offence under the Female Genital Mutilation Bill to be extradited if any custodial sentence had been imposed. Do the Government expect that, with the increase in the maximum penalty under the FGM Bill from five to 14 years' imprisonment, sentences of less than four months will routinely be imposed by the courts for such offences? In that case, the changes proposed by the amendments might need to be re-considered.
  We accept that it would not be right to create such an exception for one category of offence only. To that extent. the amendments are before the Committee today simply so that the Government's position on the matter can be made clear. I would be grateful for the Minister's comments on how the Government intend to proceed on the extradition of persons who have committed such appalling acts. I beg to move.
  Baroness Gould of Potternewton: Before speaking to the amendment, I must declare an interest as a patron of FORWARD, the Foundation for Women's Health Research and Development. For that reason and because of the debates that we have had in your Lordships' House on the subject, I was pleased to add my name to the amendment tabled by the noble Lord. Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns.
  The noble Lord has outlined the purpose of the amendment, which, as he said, is a probing amendment. It would allow extradition back to the UK after conviction, if a sentence has been imposed for a crime in the UK under the Female Genital Mutilation Bill. The amendment specifies that FGM
  GC 136
  should be a specific offence and should be classified as conduct that constitutes an extradition offence, if it occurs in the UK. If the conduct—FGM, in this instance—occurs outside the country, it would still amount to an extradition offence. if it constituted an extraterritorial offence and was, therefore, punishable in the same way. We had hoped that Ann Clwyd's Private Member's Bill would have completed its passage through the other place by now. However, it is encouraging to know that it will be completed, we hope, this Friday and that it has government support.
  As the noble Lord, Lord Hodgson of Astley Abbotts, said, FGM is already a criminal offence in the UK, under the Prohibition of Female Circumcision Act 1985. Legal action against FGM is also possible under the Children Act 1989. Even now, a court could take steps to prevent the removal of a child from the UK for the purposes of carrying out the mutilation abroad. To date, however, there have been no prosecutions under the Prohibition of Female Circumcision Act. I appreciate that it is difficult to obtain evidence to support prosecutions, but another reason for the lack of convictions may be that the law can be so easily evaded. People can circumvent the law by taking girls out of the country.
  The FGM Bill would repeal and re-enact the provisions of the 1985 Act and give it extraterritorial reach. The specific clauses of that Bill are Clause 3, which makes it an offence for a person in the UK to aid, abet, counsel or procure the performance outside the UK of a relevant FGM operation, and Clause 4, which provides that any of the prohibited acts done outside the UK by a UK national and permanent UK resident will be an offence under domestic law and will be triable in the courts of England, Wales and Northern Ireland. Unfortunately, the Bill does not apply to Scotland.
  Full credit must be given to the Government for their support for this important Bill. I know that long discussions have gone on, in order to make the Bill complete and workable in the UK. In a letter on the subject in April 2002, it was made clear to me that the Home Secretary was determined to make the taking of girls abroad for FGM illegal. The amendments would give added strength to that commitment.
  The Committee may wonder why FGM has been singled out as a subject for cross-party amendments. There are two reasons: first. it is a serious crime: and, secondly, if the practice is to be stopped, we must send out constant messages to the practitioners that it will no longer be tolerated. I do not intend to delay the Committee, but it is important that there be a clear understanding of what female genital mutilation means. I introduced a debate on the subject in the House on 10th November, 1998. I did so because, as I said then,
  "The realities of FGM are grim. Reading about it makes you shudder; watching videos of the practice makes you sense the horror".—[Official Report, 10/11/98: col. 731.]
  The noble Lord, Lord Hodgson of Astley Abbotts, outlined a little of the procedure. I shall elaborate a little, but not too much, as I do not want to horrify the Committee. There are three related, distinct

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  procedures. The first is the removal of the clitoris; the second is a partial removal; and the third is the removal of all of a woman's external genitalia, followed by the stitching-up of the tissue over the wound. One can imagine the consequences of doing that. How would a woman lead a normal sexual life in those circumstances?
  It is an unnecessary and very painful mutilation of the body—a horror that can affect the girl for the rest of her life. The long-term consequences can be particularly severe. There can be difficulties in pregnancy and childbirth. Women who have been mutilated are twice as likely to die in childbirth and three or four times more likely to have a stillborn child.
  It is estimated that between 130 million and 150 million women have undergone FGM worldwide. With the increasing movement of people in Europe to countries where the practice is endemic, such customs and practices often travel with them. It is difficult to be accurate about the extent of practice in this country. Forward estimates that 74,000 first generation African immigrant women in the UK have undergone the operation, with as many as 7,000 girls under the age of 16 still at risk.
  These amendments have been tabled to register what I hope is the cross-party support for the need to take the matter very seriously indeed. We await the Bill's passage to your Lordships' House, where it will be sponsored by my noble friend Lady Rendell. We hope that when it comes to this place it will receive full support from the Government as it has done in the other place.
  We must repeatedly stress that such practices must cease or the consequences will be severe on those who inflict such horror on a young and innocent girl. That is why FGM has been singled out to be included as conduct that can result in extradition.
  5.45 p.m.
  Lord Filkin: I am very happy to place on the record that the Government are glad that the amendments have been tabled, and to explain why. Female genital mutilation is a sickening crime, and it is absolutely right that we have the appropriate legislation to enable us to combat it. The Government fully support the Private Member's Bill being considered in another place. My right honourable friend the Home Secretary has gone further and said that, had the Private Member's Bill not been brought forward, he would have looked to introduce a government. Bill for the same purpose when and if a suitable opportunity presented itself.
  The case has been made clearly as to why it matters, and why extra-territoriality is necessary in those circumstances. I therefore pay tribute to the two people who are championing the Bill, Ann Clywd in the other place and, in due course, the noble Baroness, Lady Gould of Potternewton, in your Lordships' House.
  As a result of discussions on a cross-party basis on the issue, we also thought that it was convenient and useful to seek to use the opportunity of discussing an
  GC 138
  amendment on the Extradition Bill. The noble Lord, Lord Hodgson, spoke clearly as to why it was relevant rather than a mere procedural device. But there is a purpose for that also. As I am sure Members of the Committee know, if the Private Member's Bill were amended in your Lordships' House, it would go to the bottom of the list when it returned to the other place and its chances of survival would be slim or remote.
  The happy opportunity to debate the issue today therefore gives Members of the Committee the chance to raise any concerns of detail—one hopes not of principle—about the issue. That would allow those discussing the Bill in another place to consider those concerns, and, if they were minded to do so, to consider whether any points of detail needed to be addressed. That would reduce the risk that an amendment in this place—however well intentioned—might have the unintended consequence of effectively destroying the Bill. There have been some discussions and understanding about the matter around the House.
  For those reasons, I reiterate the Government's view that it is an important issue. We strongly support the measure and think that extra-territorial powers are needed. The noble Lord, Lord Hodgson, asked whether we would use the powers in practice. Undoubtedly, we would seek to use them if we felt that there was evidence to support it. We hope that the police would pursue such matters vigorously. As with any extradition case, there can be no guarantee that the request will be successful. However, that is not a reason not to have the power in statute to allow us to pursue it. The penalties that FGM already attracts mean that it is already extraditable, as I have indicated.
  In response to the noble Lord's second question. we very much doubt that there would be cases where a person is given a custodial sentence of fewer than four months. So, in our view, there is no risk in that respect. For those reasons we support the Bill, but I understand that the amendment is likely to be withdrawn later in our discussions on this clause.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his comments and his support for the prohibition and discouragement of this terrible practice. I am particularly grateful for his reassurance that the Government are prepared to use the extra-territorial powers—assuming the Private Member's Bill is enacted—and the powers in this Bill in support of the work to try to stamp out FGM. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 236 not moved.]
  On Question, Whether Clause 148 shall stand part of the Bill?
  Lord Hodgson of Astley Abbotts: It would be a mistake to let Part 3 of the Bill pass without opportunity for comments from all sides of the Committee. Clause 148 defines extradition offences for Part 3. It is perhaps, therefore, the easiest clause in Part 3 on which to have a general discussion about extradition to the United Kingdom and the offences

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  for which we would request extradition. We had a long, interesting debate on the corresponding clause in Part 1—Clause 63—and the appropriate thresholds. There is still some juice in the subject to be extracted at Part 3 in looking at the threshold for extradition offences for those being extradited to, rather than from, the United Kingdom.
  It will not have escaped the notice of all noble Lords who have been involved in the Bill for some time that 90 per cent of the briefing and input to amendments from outside organisations has concerned Part 1. Perhaps 8 per cent of such briefing related to Part 2 and a small proportion concerned Parts 4 and 5. For my part, I have not had a single comment from any outside group on provisions in Part 3. That is perhaps not surprising, but it is slightly concerning, because we welcome any proposals to make extradition to the United Kingdom as quick and efficient as possible so that those who have committed crimes here and then escaped overseas can be brought back to face justice.
  Obviously, we do not have the same concerns as we would do under Parts 1 or 2, because the eventual prosecution resulting from extradition will take place in this country within a criminal justice system with which we are familiar and that, for the most part, we trust. The lack of amendments to this part of the Bill is therefore no reflection on the lack of scrutiny from our Benches or those elsewhere in the Committee. But the concern is that we may inadvertently overlook some aspect that, although non-contentious to us, is none the less considered highly controversial elsewhere.
  The Minister has frequently reminded us at previous sittings of the Committee that we must not assume our superiority in matters judicial, and that each country believes that it has the best judicial system.
  "O wad some Power the giftie gie us To see oursels as ithers see us!"
  One wonders whether, when the practical implications of Part 3 are faced, it will run as smoothly as planned.
  Having expressed general support for the Government on the proposals outlined in Part 3, I wish to probe the Minister further on one area. Clause 148 defines an extradition offence for the purposes of Clauses 142 to 147—that is, extradition from category 1 territories. The question that I wish to raise is similar to that posed by the Liberal Democrat amendment, Amendment No. 115, which we discussed several Committee sittings ago. On Part 1, we argued that the threshold for extradition offences should be three years and not 12 months. That argument, the Committee will recall, was based on two points. The first was that we should follow the threshold of three years, as set out in the framework decision. The second was that we should provide further protection for our citizens from extradition for minor offences that fall within the framework and, therefore, are not subject to the dual criminality requirement.
  The Government's only response was to say that the 12-month threshold is currently employed and there is no reason to change it. We are now looking at the other
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  side of the coin; that is, the threshold for offences for which we want to extradite people back here to the United Kingdom to face trial. I was particularly struck by the argument that the noble Viscount, Lord Bledisloe, put forward when we discussed thresholds in Clause 63 under Amendment No. 115. He remarked in Grand Committee on 1st July:
  "Those who have promoted the desirability of this whole system have done so on the basis that, 'Well, you must not think only of our people being taken there, you must think of the desirability of us getting people back here'. Surely, in that case, we should go below the three years but only for countries that have done the same for us. There is an argument for saying that the three years could be reduced to a lesser period by Order in Council where the requesting state in question had also reduced similarly. It would be very wrong if we sent people back to a country for 12-month offences when that country would not return people to us except for three-year offences".—[Official Report, 1/7/03; cols. GC 210–211.]
  The question here is one of reciprocity. The Minister has argued that to have a three-year threshold for Part 1 and a 12-month threshold for Part 2 would lead to complications and a lack of consistency. I think that more confusion and lack of consistency will be created by some countries sticking to the three-year threshold of the framework document while we downgrade to 12 months. What will happen if we request the extradition of someone from France to be prosecuted for an offence which warrants 14 months but France has followed the framework decision and enacted that, in its equivalent to our Part 1 procedures it cannot extradite someone to face prosecution for anything less than a three-year offence? How does that lack of reciprocal arrangements fit with the spirit of mutual recognition and harmonisation which, as I understand it, the European arrest warrant was designed to produce?
  I, therefore, want briefly to return to what I believe is the essential crux of this argument. Extradition requests between category 1 countries follow a procedure which is meant to implement the framework decision of the European arrest warrant. However much we may dislike the provisions of the arrest warrant, it is a decision which, as the noble Lord, Lord Stoddart, pointed out, was agreed under the intergovernmental pillar and therefore with unanimity. Will the Government seek to cause more problems by altering the threshold which was agreed at that time? We have not yet had a satisfactory answer to the gold-plating issue that the noble Lord, Lord Goodhart, raised before.
  The noble Baroness, Lady Scotland of Asthal, said in reply:
  "The Government remain of the view that there is no reason why in implementing the European measures the United Kingdom should always do the bare minimum and only that. Our positive approach to implementing the European arrest warrant will, we hope, set an example to other member states to take a similarly constructive attitude".—[Official Report, 1/7/03; col. GC 211.]
  I accept what the noble Baroness said but the words "the bare minimum" constitute an emotive phrase. It is not the bare minimum; it is what is laid down in the European arrest warrant. I am sure that the Minister travels round the country and finds that the issue of gold-plating comes up again and again and again. In

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  industry and commerce and in farming people feel that we in an effort to be "good Europeans" run far ahead of what the other EU countries do. While one can perhaps admire the sentiments put forward by the noble Baroness, I as yet have not heard from her—perhaps I shall hear from the Minister this afternoon—that her approach will in any way be rewarded.
  Expressing hope that something may happen among our European partners when we are going to impose extra stringent regulations on our own citizens seems to me to be a mistake. What we need to know is where is the beef? Where is something definite that we arc going to get back for this country in return for our gold-plating this particular piece of European legislation?
  On the grounds of justice being done, do we set the threshold at three years and provide protection for our citizens against unfair extradition but accept that that may result in allowing others to escape being extradited for offences which fall between 12 months and three years? Or, conversely, as the Government argue, do we expose our citizens to what may often be unfair trial proceedings overseas where their civil liberties may well be infringed for trivial offences which we might not regard as crimes?
  It is important for us to have a further debate at this stage on thresholds because in Clause 148 we are looking at the problem from a different angle—that is, from the point of view of extraditing people to the United Kingdom. We need to ensure that that important aspect has full discussion and scrutiny before we pass on to consider Part 4 of the Bill.
  6 p.m.
  Lord Filkin: I thank the noble Lord, Lord Hodgson, for explaining clearly the issues that he wished to raise. He took us back to some earlier debates. There is no harm in that as these are important issues.
  I wish to make a few remarks initially about the Part 3 warrant and then I shall seek to address the specifics of some of the points that the noble Lord made. As the Committee will know, Part 3 warrants are to be used only when making requests to Part 1 countries. For all other extradition, partners' requests will, as now, be made under the Royal Prerogative. Because we have traditionally relied on the Royal Prerogative for all outgoing cases there has never previously been a provision of this kind in our law. As the Committee can see, the definitions in this clause are quite clear. They provide that the offence must be one over which the UK takes jurisdiction and attract a maximum penalty of 12 months' imprisonment or more. That is the traditional extradition threshold and the one that features in all of our bilateral treaties. There is nothing new. There is also nothing new about it as regards the European Convention on Extradition.
  Where we are making a departure is by providing that in cases where the person has already been convicted and sentenced, a sentence of four months' imprisonment or longer must have been imposed by the court. Let me explain why we have done that. The Government believe that where a court of trial has
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  considered a case and passed a sentence, that should be the bench-mark used to determine the seriousness of the case. Traditionally in UK extradition law the threshold for extradition has been whether the conduct attracts a maximum penalty of 12 months' imprisonment or more in the requesting state, and that it would attract the same maximum sentence it' it had occurred in the United Kingdom. That threshold has applied in both accusation cases and conviction cases.
  The effect of that has been that it has been theoretically possible for us to extradite or seek the extradition of a person who was sentenced to a week's imprisonment provided that the court could have sentenced him to a year or more in prison. That does not seem very sensible and the Bill seeks to rectify it. Clearly, in an accusation case, the only measure of how serious the crime is and, therefore, whether it justifies extradition, is the sentence that will be available to the court if the person is convicted. For that reason the Bill retains the traditional threshold in accusation cases.
  However, the situation is different in conviction cases. In these cases the case has gone before a court and all the facts of the case have been properly examined. In these cases we can form a judgment of the seriousness of the offence on the basis of the sentence that has been imposed. Accordingly, the Bill provides that in conviction cases the threshold is determined not by the theoretical maximum sentence that could be imposed in the requesting state but by the sentence that the court which has considered the case has actually seen fit to impose. That is why the Bill provides that the threshold in a conviction case is that a sentence of four months' imprisonment must have been imposed.
  I should point out that Clause 148 says nothing about dual criminality because for the purpose of extradition to the United Kingdom the conduct in question must clearly be an offence in our law. Whether it is an offence in the law of the requesting state and what difference that might make is a matter for that other country over which we have no direct control.
  I appreciate that some Members of the Committee may not want Part 1 in the Bill or, alternatively, may want it solely for terrorist offences. But if the Final decision of Parliament is that Part 1 should remain and be of general application, as I hope, I am sure the Committee will recognise that we need to set thresholds for outgoing requests and that these, we believe, are the appropriate ones.
  I turn to some of the specific points raised by the noble Lord, Lord Hodgson. The threshold of the framework decision is one year. It is only three years for the removal of dual criminality. The framework decision provides for extradition in the one to three year bracket provided the dual criminality requirement is met.
  The noble Lord made a number of general remarks about the Government's stance on Europe. I do not wish to excite or provoke a long debate but just to speak briefly from my own experience of being a combined interior and justice Minister, as it were, at the Justice and Home Affairs Council. The stance that

  GC 143
  I and other Ministers took was to have an open mind to the possibility that collective action in Europe could he beneficial to the United Kingdom, but not to take the view that automatically moving towards harmonisation was necessarily a good thing unless there was clear evidence that a specific measure was likely to be of benefit, either directly or indirectly, to British citizens. That was the test that I frequently put to officials and to other justice and interior Ministers when we debated those issues; that is, where is the benefit that would apply to our citizens and, conversely, to their citizens? The view that harmonisation in itself is good is an argument that I and others frequently challenged as being specious and without foundation. From my biased viewpoint it had to be justifiable on the specific evidence that it would be of benefit to citizens of the United Kingdom.
  I shall not respond to the argumentation about unfair trial procedure as it will weary the Committee to rerun that debate. All I would say in response to why we have taken a view of retaining our current practice of one year—that is in a sense a discussion around minimalism—is to amplify what my noble friend Lady Scotland said. Measures which seem to us to be in the interests of promoting justice, whether in this country or abroad, aim to bring people who have committed an offence to trial and then to sentence after a proper process of law. That seems to the Government to be in the interests of British citizens. I refer to measures which increase, domestically and internationally, our means of bringing people who have committed crimes to trial and sentence. That is in the direct and indirect interests of British citizens, which is why we believe it is right to set the limit at the level that we have.
  I do not wish to weary the Committee. I am certain that I shall not convince the noble Lord, Lord Hodgson, on those points but I wish to put them on record.
  Clause 148 agreed to.
  Clause 149 [The appropriate judge]:
  [Amendments Nos. 237 and 238 not moved.]
  Clause 149 agreed to.
  Clauses 150, 151 and 152 agreed to.
  Clause 153 [Return of person acquitted or not tried]:
  Lord Filkin Lord Filkin moved Amendment No. 238A:
  Page 80, line 32, after "from" insert "—

  (i) a category I territory under law of the territory corresponding to Part I of this Act, or

  (ii) "

  The noble Lord said: I shall be brief in speaking to the amendment as I hope that no Member of the Committee will object to what we are trying to do. As the Bill is currently drafted, a person who is extradited to the United Kingdom from a category 2 country and then not put on trial or acquitted is entitled to be returned to the country from which he was extradited at public expense. This is very similar to Section 20 of the Extradition Act 1989. However, Clause 153 applies only to people who have been extradited from Part 2 countries. There is no corresponding provision in
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  respect of extradition from Part 1 countries. One can speculate about what might have been the historical reasons for that in terms of the relative cost of travel, but we can see no good reason in principle why there should not be parity of treatment. We do not believe that the distinction between Part 1 and Part 2 countries in this respect can be justified. Accordingly, these amendments allow for people to be returned to Part 1 countries when they have been acquitted or not charged, at public expense. I hope that Members of the Committee will welcome this proposal.
  Lord Lamont of Lerwick: If a person had been in a third country but was extradited, would he be returned to his home country—that is, this country? Supposing he was in Norway and was extradited to Germany, would he be returned to this country?
  Lord Filkin: What an interesting question; I think I would be wise to reflect on it. My off-the-cuff response is that one would return him to whichever of the two he requested in those circumstances. However, it would be better if I reflected further on this point to see whether there is an underlying principle to guide us in those circumstances. I will write to the noble Lord accordingly.
  Lord Hodgson of Astley Abbotts: We support the amendments for the reasons the Minister has given. The only conceivable justification for treating Part 1 countries differently from Part 2 countries was geography. It was not so far away. By the time the Minister had added Iceland, it was going to be more expensive to get back from there. So we are quite happy with these amendments.
  On Question, amendment agreed to.
  Lord Filkin Lord Filkin moved Amendment No. 238B:
  Page 81. line 4, leave out from "back" to end of line and insert ", free of charge and with as little delay as possible. to the territory from which he was extradited to the United Kingdom in respect of the offence."
  On Question, amendment agreed to.
  Clause 153, as amended, agreed to.
  Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 238C:
  Before Clause 154. insert the following new clause—
  "RESTRICTION ON BAIL WHERE UNDERTAKING GIVEN BY SECRETARY OF STATE
  (1) This section applies in relation to a person if—

  (a) the Secretary of State has given an undertaking in connection with the person's extradition to the United Kingdom. And

  (b) the undertaking includes terms that the person be kept in custody until the conclusion of any proceedings against him in the United Kingdom for an offence.

  (2) A court, judge or justice of the peace may grant bail to the person in the proceedings only if the court, judge or justice of the peace considers that there are exceptional circumstances which justify it."
  The noble Lord said: In moving Amendment No. 238C I shall also speak to Amendment No. 267ZA. I can be brief, as I think the Committee will see merit in them.

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  As will be recalled from previous discussions, the Bill will allow us temporarily to extradite serving UK prisoners in order to stand trial abroad. One of the conditions we can impose is that the other country keeps the person in custody for the duration of his trial. Clearly, it would be quite unsatisfactory if we were temporarily to extradite someone who had been convicted of a very serious offence in the United Kingdom courts and been given a long sentence, only to see him granted bail abroad and then abscond.
  However, that cuts both ways. If we are temporarily to extradite our serving prisoners, we may also want to seek the temporary extradition of those serving sentences in other countries. For exactly the same reasons, the countries concerned may want an assurance that we will keep the person in custody—
  [The Sitting was suspended for a Division in the House from 6.13 to 6.23 p.m.]
  Lord Davies of Oldham: The issue cuts both ways. If we are to extradite our prisoners temporarily, we may also want the temporary extradition of those serving in other countries. For the same reason, the countries concerned may want an assurance that we will keep the person in custody for the duration of his stay.
  The Bill enables the Secretary of State to make the necessary undertakings to the country concerned, and the amendments are designed to give those undertakings some teeth. The amendments recognise that the questions of bail or remand in custody are the prerogative of the court, taking into account the individual circumstances of the case. The amendments provide that the person should not be given bail unless the court considers that there are exceptional circumstances that justify it.
  I suggest that the provisions apply only to those who serve sentences abroad who have been temporarily extradited to the UK. In every other case, the normal hail rules apply. I remind Members of the Committee that, for the first time, we are creating a presumption in favour of bail in extradition cases. I commend the amendments to the Committee. I beg to move.
  Lord Hodgson of Astley Abbotts: We find these sensible amendments, but there are a few issues on which we would appreciate a little more detail. There appears to be no mention in the framework decision of any provision for withholding bail at the request of the issuing country in circumstances involving the extradition of someone already serving a sentence. In fact, there is not much about bail anywhere in the framework decision. Perhaps the Minister could explain how that would fit in, as it presumably provided the basis on which the Government decided to include the provision in the Bill.
  Do other countries have similar provisions in their domestic legislation? Otherwise, we are in another one-way street, where they are doing the bare minimum and we are not doing the bare minimum but rushing ahead of our colleagues to provide them with things that we will not get back. Will the Minister explain
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  whether there is anything in the present extradition procedure under the existing Act that provides for these situations? I presume that there is not.
  The noble Baroness, Lady Scotland, wrote a very helpful letter, but it contained a strange anomaly. It said in one paragraph that the Secretary of State could give an undertaking that a person would be detained. Later on it said that, as the Minister pointed out, the courts decide about bail and not the Secretary of State. I am not sure how the Secretary of State is going to give an undertaking when it is not in his power to enforce it.
  Bearing in mind that exceptional circumstances exist, it would be helpful for the Minister to give the Committee an example of the Government's intentions. I hate vague words such as "exceptional circumstances", and it would be helpful to have an example.
  As the noble Lord, Lord Filkin, will be aware, we are struggling our way through the Criminal Justice Bill. We are finishing Part 2 dealing with hail, so it would be interesting to see how that ties in with the Government's intentions, given that the provisions for the granting of bail are being quite radically changed.
  In principle, we believe the amendments to be sensible, but it would be helpful to have some background information before we reach a final conclusion.
  Lord Goodhart: We also believe the amendments to be sensible, and we are happy to support them.
  6.30 p.m.
  Lord Davies of Oldham: I am grateful to Members of the Committee for the broad measure of support, although the noble Lord, Lord Hodgson, has asked me some precise questions on which I may have to write to him in due course, if I cannot think on my feet sufficiently.
  The noble Lord will recognise that the principle on which we are working is quite clear. We want 10 ensure that when we are involved in the issue of extradition we can expect certain undertakings to be met with regard to the category in question—namely, those serving sentences. We therefore expect and anticipate that we need to meet the same requirements for people who are from other countries in our prisons.
  The issue is not covered by the framework decision, so we are free to make our own decisions. The noble Lord referred to other aspects of the criminal justice system and the other Bill. We are in a position to make our decisions according to our own judgments. Other countries have different bail rules, and not all of them have the same presumption in bail as us, so there are discrepancies. The noble Lord is right to point out that we cannot achieve in every circumstance the concept of total reciprocity. There is nothing in existing legislation about temporary surrender so there is no equivalent of these provisions at present.
  As regards whether the Secretary of State can give an undertaking which may not prove to be 100 per cent valid, that would be for the Government to decide, but

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  the amendments should ensure that the undertaking is normally honoured. Under the Part 2 framework the Secretary of State has a crucial role to play.
  The question of exceptional circumstances would be a matter for the court to decide. I suppose the most obvious example is a prisoner falling seriously ill and the place in which he is detained not being adequate to meet his needs. In a spirit of humanity we would have to ensure that different arrangements were made. That would be an exceptional circumstance. It would not happen very often. Therefore, we need to make provision for exceptional circumstances. If we made the matter absolutely cut and dried, we could find ourselves applying the law in a way which conflicted with basic concepts of humanity. I hope that the noble Lord is satisfied with that explanation.
  On Question, amendment agreed to.
  The Chairman of Committees (Lord Brabazon of Tara): The Question is that Clause 154 stand part of the Bill.
  Lord Hodgson of Astley Abbotts: Did the noble Lord say Clause 154?
  The Chairman of Committees: Clause 154, I said. Does the noble Lord wish to speak to Clause 154? No notice has been given.
  On Question, Whether Clause 154 shall stand part of the Bill?
  Lord Hodgson of Astley Abbotts: No notice has been given that I wish to oppose the Question that Clause 154 shall stand part of the Bill, for which I apologise. However, I want to ask the Minister about service personnel. The clause is very widely drawn. The Secretary of State may by order provide for the part to have effect in relation to those who are subject to military law.
  Bearing in mind that we are talking about extradition to the United Kingdom, in what circumstances will the measure have effect and what kind of cases do the Government have in mind? As the noble Lord the Chairman of Committees pointed out, we did not give notice of the matter. Therefore, I understand that the noble Lord may wish to reply in writing.
  Lord Davies of Oldham: The essential reason that we want Clause 154 in the Bill is that it is already possible under the 1989 Act for the UK services to make extradition requests for those who have committed military offences. As the clause clearly states, those requests can be made only for those who are subject to military law, air force law or the Naval Discipline Act 1957. Extradition requests for military offences have rarely been made.
  Any such arrangements would require the Secretary of State to make an order to provide that Part 3 provisions of the Bill should apply. As has been said, outgoing requests to category 2 territories would be
  GC 148
  made only via the Royal Prerogative. So we are talking about a very limited number of cases. I hope that explains Clause 154.
  Clause 154 agreed to.
  Clause 155 [Search and seizure warrants]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 239:
  Page 81, line 27, at end insert "and that there are reasonable grounds for believing that the material is located in the premises specified in the application"
  The noble Baroness said: I rise to speak to Amendment No. 239 and to have a general debate on Clause 155, with which it is grouped. Amendment No. 239 seeks to add extra detail and clarification to the specifications for an application for a search and seizure warrant. At the moment an application must state that the extradition of a specific person is sought, that the warrant is sought in relation to specific premises and that the warrant is sought in relation to specific material.
  Our amendment extends this to add extra detail. We feel that for a warrant for search and seizure to be legitimate it must be stated on the application for the warrant that there are reasonable grounds for believing that the material sought is in the premises specified in the application.
  This amendment was suggested to us by the Law Society of Scotland and we believe it has some merit. Police used to apply to me, as a magistrate, for a warrant in the ordinary course of straightforward criminal proceedings in this country. One of the questions one asked was: what were the reasonable grounds for believing that the items concerned were in the relevant premises? The application for the search warrant would include information concerning why the police thought that particular items or particular persons were on the relevant premises. Therefore, I considered it appropriate to table the amendment.
  When I looked more closely at the Bill, I noticed that it might contain other provisions which covered the point in full or in part. I seek clarification on the matter. I note that subsection (8)(d) of Clause 155 may cover the point in terms of requiring a reasonable belief that there is material on the premises which is specified in the application. That is also mentioned in paragraph 2.7(f) on page 31 of the draft codes of practice. This is a probing amendment. As I say. I hope that the Minister can clarify the matter.
  I wish to speak also to the Question. Whether Clause 155 shall stand part of the Bill as I have a few questions about the police powers as outlined in Part 4 of the Bill. I must say that I found the Minister's comments on this clause in another place extremely helpful. It was made clear that Part 4 of the Bill is modelled on certain sections of PACE and of the Proceeds of Crime Act 2002 after the Rottman case cast doubt on the power of the police to carry out a search for evidence under PACE or using their common law powers where the offence was committed abroad. The Minister in another place explained that to include the necessary provisions in Part 4 of the Bill for extradition proceedings was the simplest way of putting the matter

  GC 149
  beyond doubt so that police from the UK could exercise their power to search for evidence in extradition cases.
  On that basis we welcome the proposals set out in Part 4 of the Bill which should ensure that the police have legitimate powers to search for evidence in cases involving extradition. This is an important provision which is in the interests of justice and co-operation with our extradition partners.
  I do, however, have a few queries. How, if at all, do these provisions fit in with the changes in PACE which are being proposed in the Criminal Justice Bill? Is there any synchronicity? Does there need to be? Does Part 4 give to police all the powers they have in relation to search and seizure in domestic law; that is, all that PACE provides them with, or just some essential powers for evidence gathering alone?
  Is there any view on whether these extra powers for police will need extra funding? If so, how has that been addressed? I beg to move.
  Lord Goodhart: The name of my noble friend Lord Mar and Kellie is added to Amendment No. 239. I hope that I may speak in his place as he has returned to Scotland.
  I have no points to make on Amendment No. 239 but I should like to ask a couple of questions about Clause 155 and the following clauses. I am afraid that they are to a large extent due to my ignorance and to the fact that I have not, unfortunately, been able to do the necessary research. I should like to know a little about the background to this part. Is it new in relation to extradition or is it a power that already exists in some form or other under the Extradition Act 1989? If it is new, the powers themselves seem to be quite similar to powers that I have seen before, for example, in the Crime (International Co-operation) Bill. But where there is a request from an overseas country for the search and seizure of evidence, that request comes from the overseas country which wants the evidence. In this case, evidence is being seized by the police for use in a trial which will take place in a foreign country following the extradition. However, Part 4 says nothing about the evidence having been requested by the country which is requesting the extradition. If there is no such requirement of a request from the foreign country, what is the basis on which it is decided what evidence is being looked for and what is to be done with the evidence?
  I may have missed something, but I should simply like to know more about the background to the measure. I would be somewhat concerned if it turned out that there was no need for any request from the country that sought the extradition.
  Lord Davies of Oldham: As regards Amendment No. 139, the noble Baroness is pushing at an open door. We cannot quite see our way to accepting the amendment but we recognise the thinking behind it. We certainly want to make sure that there is no ambiguity in the clause or any potential for abuse. We regard the amendment as not making any great difference of substance, but we certainly see the value in spelling out
  GC 150
  more explicitly what an application should contain. As the noble Baroness rightly indicated, it is hard to see how a Justice of the Peace could issue a warrant to search for material which granted access to premises other than those where the material in question was believed to be. The noble Baroness mentioned her own experience as a magistrate in that regard.
  The Bill makes clear that a search and seizure warrant can be issued only if there are reasonable grounds for believing that the requisite material will be found on the premises specified in the application. I assure the noble Baroness that we have taken on board the message that it might be advantageous to be more explicit with regard to what an application should contain. As I say, we cannot accept the amendment but we shall reconsider the matter and produce a suitable amendment.
  The noble Baroness asked a number of questions on Clause 155, as did the noble Lord, Lord Goodhart. I shall do my best to respond to them as adequately as I can. We are, indeed, mindful of the changes in the Criminal Justice Bill to which the noble Baroness referred, but we do not believe that they will require changes to this Bill. However, we shall, of course, keep the situation under the closest possible review.
  The powers in this Bill are the same as in domestic cases in respect of search and seizure warrants. Therefore, we are foursquare with the way in which normal search and seizure warrants are sought and applied domestically.
  The noble Baroness asked about the financial implications for the police. All we are doing is making the police's job in extradition cases explicit. I am not quite sure where the additional costs come in, although there would certainly be additional costs if there was a vast increase in police work because of the number of such cases. I am happy to assure her that this falls within the framework of normal police work.
  The noble Lord, Lord Goodhart, asked about the background to the clause. It was believed that the Police and Criminal Evidence Act applied to extradition cases. The case of Rottman cast some doubt on that—it held that the offence could not mean an offence committed abroad. So we have been obliged to clarify the position in this Bill by giving some specific police powers for extradition cases. Our new clauses are mostly modelled on the equivalent provisions of the Police and Criminal Evidence Act, but because of the Rottman case, which cast doubt on the powers exercised through that Act, we have felt obliged to make Clause 155 and associated provisions in this Bill quite explicit regarding powers for extradition.
  6.45 p.m.
  Lord Goodhart: I am a bit concerned about this. While I understand why it is necessary to introduce provisions corresponding to those which are already in PACE, I worry whether it is desirable to have something of this kind, which is not triggered by a request from the country which is also seeking the extradition. Otherwise, there is something of a lacuna

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  as to who decides that it is desirable to look for the evidence and what evidence should be looked for. In practice, I daresay, the requesting country would pass the information on to the British Government, but I wonder whether something should be put in the Bill to give legal standing to the provision of that information.
  Lord Davies of Oldham: The problem thrown up by the Rottman case was that the investigating officers on extradition matters would not be investigating the offence in question—they would be bent on another objective. As a consequence, the Police and Criminal Evidence Act does not look as if it provides for that. That is why we have sought to be specific with regard to this Bill. However, I understand the noble Lord's anxieties.
  Baroness Anelay of St Johns: I am grateful to the Minister for saying that the Government will look again at the issue raised by Amendment No. 239. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Filkin Lord Filkin moved Amendment No. 239A:
  Page 82, line 13, leave out "judge" and insert "justice of the peace"
  The noble Lord said: In moving the amendment, I shall also speak briefly to Amendment No. 239B. They clear up minor drafting errors. By virtue of Clause 155(1), any justice of the peace may issue a search and seizure warrant. The reference to "judge" in Clause 155(7) is therefore wrong and needs to be corrected, which is what these amendments do. I beg to move.
  On Question, amendment agreed to.
  Lord Filkin Lord Filkin moved Amendment No. 239B:
  Page 82, line 40, leave out "subsection (1)" and insert "subsections (1) and (7)"
  On Question, amendment agreed to.
  Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 239C:
  Page 82, line 44, at end insert—
  "(e) subsections (8)(e) and (9) are omitted."
  The noble Lord said: This is a purely technical amendment to take account of established Scottish practice. Clause 155 deals with search and seizure warrants and under subsection 8(e), one of the conditions in subsection (9) must be fulfilled before a search and seizure warrant can be obtained in England and Wales. Thus the provisions of subsection (9) reflect procedure for obtaining warrants under English law, as provided by the Police and Criminal Evidence Act 1984. That procedure does not normally apply in Scotland, and this amendment would disapply the relevant subsections in Clause 155 to bring search and seizure warrant procedure into line with established practice in Scotland. I beg to move.
  On Question, amendment agreed to.
  Clause 155 agreed to.
  Clauses 156 and 157 agreed to.
  Clause 158 [Computer information]:
  On Question, Whether Clause 158 shall stand part of the Bill?
  Baroness Anelay of St Johns: I have put down my objection to Clause 158 standing part to tease out one or two details which might be minor but are important to those whom they might affect.
  The clause deals with computer information. Subsection (2)(b) provides that if the order requires a person to produce the material to a constable for him to take away, the material has to be produced in a form,
  "in which it is visible and legible or from which it can readily be produced in a visible and legible form".
  Subsection (2)(a) refers to the material being produced in a form in which it can be taken away by a constable.
  What kind of format are we talking about? Are we talking about floppy disks, for example, or a print-out? A CD-ROM or floppy disks are more easily portable and the information might run to many volumes if one was talking about international fraud or swindling, or whatever one might call it in other European countries.
  I appreciate that there is a problem about volume and accessibility. However, the words "visible and legible" always throw up a query in my mind. If the information is on a CD-ROM or a floppy, will it be in such a format that, when it is printed out to be visible and legible, it is accessible to those who use Braille? Otherwise, it could be meaningless. What language is this information to be in? Or is it intended for a legal adviser rather than the individual concerned?
  I know that these are rather narrow questions but this issue was not covered in another place. As the Minister will know from the Crime (International Cooperation) Bill, I always think about accessibility to information by individuals.
  Lord Filkin: That certainly wins the prize today for the question that we were least expecting. I will do my best.
  Clause 158 applies if material specified in an application for a production order is held in electronic form, and says how it is to be presented. In such circumstances, the material must be produced or a constable given access to it, depending on the nature of the order, in a visible or legible form or a form in which it can be readily produced as such. This could mean that information is printed out in comprehensible form for the constable to take away or it could be provided on a CD-ROM disk which could be taken away for analysis, and so forth.
  Clauses 156 and 157 concern the application for and making of production orders concerning special procedures and excluded material. Production orders follow on from the search and seizure warrants we touched on when debating Amendment No. 239. Such an order would be made by a judge, assuming that the relevant criteria had been met and where it would be in the public interest that this kind of material should be produced.

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  Clause 158 echoes paragraphs 4 and 5 of Schedule 1 to the Police and Criminal Evidence Act 1984. It applies if material specified in an application for a production order is held in electronic form. As I indicated, in such circumstances, it must be produced in a form which can be taken away—if appropriate, depending on the order—and seen and read. It could be printed or produced from a CD-ROM. In that sense, it is exactly the same as current PACE processes.
  With regard to Braille, we have referred on a number of occasions to documents being produced before the court. These will normally be in printed English which is legible or readable by a person with sight. I am ignorant of exactly what the convention is in our courts for the translation of documentation in English into Braille, if a defendant or perhaps a defence counsel wishes to have access to that material. It is a good question and, rather than attempt to speculate on what should happen, I will take it away. In the interests of justice, both a defendant and a defence lawyer need to be able to know what is written if they are to be in a position to respond.
  Let me come back on this point when I have reflected further. I hope that what I have said more generally on the clause is of help.
  Baroness Anelay of St Johns: I am grateful to the Minister. It is a question which pops into my mind whenever I see terminology such as "visible and legible". I am interested in the Minister's comment that it has to be comprehensible—that is not what I understood by the clause. I am reassured by him that the material is also intended to be comprehensible. The clause does not provide that reassurance.
  Lord Filkin: I hesitate to risk deflating the noble Baroness's optimism, but I was thinking on my feet. We will have to test whether what I said has the full impact that was inferred.
  Baroness Anelay of St Johns: I of course accept that this was an unexpected series of questions.
  The Minister referred to current PACE practice being reflected in the clause. It is appropriate to look more carefully at the drafting and I am glad that he has said he will do that. He referred to current practice in the courts. My experience has been in the magistrates' court; I was aware that the last Lord Chancellor—the previous Lord Chancellor, I should say—was the first person to appoint lay magistrates who have sight difficulties. Therefore, the process of producing material in Braille may be in its infancy, but we need to consider it carefully. I am grateful for the noble Lord's offer.
  Clause 158 agreed to.
  Clause 159 agreed to.
  Clause 160 [Entry and search of Premises for purposes of arrest]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 240:
  Page 86, line 11, after "anything" insert "(other than items subject to legal privilege)"
  The noble Baroness said: For convenience, I have grouped Clause 160 stand part with Amendment No. 240 to save time.
  My amendment would ensure that items subject to legal privilege cannot be seized or retained under Clause 160. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law protects the relationship between a solicitor, or a lawyer, generally, and his or her client and has made provision for the doctrine of legal professional privilege. To preserve that relationship and ensure that information and communications are privileged, provision should be made in the Bill to the effect that powers of search and seizure under Clause 160 should not extend to information subject to legal privilege.
  I note that government Amendments Nos. 240B and 241B include the phrase,
  "other than items subject to legal privilege".
  That suggests that the Government are abiding by the principle of legal privilege and might therefore look more kindly on Amendment No. 240.
  I note that paragraph 2.7, on page 20, of the draft code of practice, in relation to legal privilege, states:
  "Nothing under the Act entitles police officers to seize material that is subject to legal privilege. The principle of legal privilege applies equally to material that has originated or been sent from abroad".
  That satisfies me to some extent. However, it would he an additional and welcome safeguard to insert the amendment on the face of the Bill.
  For completeness, I had intended to oppose the Question whether Clause 160 shall stand part of the Bill, but I should merely like some extra clarity. The clause provides for entry and search of premises for the purpose of arrest without a warrant for search and seizure.
  As I understand it, normal practice would involve the police officer being in possession of a Part 1 or Part 2 arrest warrant and a search and seizure warrant before entering a premises for the purpose of search and arrest. The only instance where the provisions of this clause would be used would be when it was impossible to obtain a warrant before entering premises to arrest someone who was wanted for extradition, if, for example, that person were doing his level best to avoid arrest and simply to scarper—for want of a better expression. I should like some clarification since, on consulting the draft code of practice, I have found no mention on page 45 of the powers under Clause 160 being used only when a normal arrest, as detailed in Parts 1 and 2 of the Bill, followed by a warrant for search and seizure under Clause 155 cannot be carried out. I beg to move.
  7 p.m.
  Lord Filkin: Although the amendment is superficially attractive, we do not believe that it is appropriate. I shall seek to explain why.
  The need to preserve the confidentiality of communications between people and their legal advisers is crucial. Accordingly, the Bill, like all the other relevant legislation, makes it clear that no search

  GC 155
  of premises can be made for the express purpose of searching for items subject to legal privilege. Therefore, provisions to make that explicit are contained in subsections (2) and (4) of Clause 161 and subsections (2) and (4) of Clause 163. However, the amendment deals with something rather different. What we are concerned with here is material which the searching officer happens to come across.
  The Bill provides that where a police officer is conducting a search for the purposes of arrest, on arrest or following arrest, comes across material that he believes has been obtained as a consequence of an offence or is evidence of an offence and believes that it is necessary to seize it to prevent it from becoming lost or damaged, he may do so. In such cases, Clauses 161 and 163 do not impose any restriction in relation to items subject to legal privilege, and I am not sure why we should do so in Clause 160.
  Equally importantly, the Police and Criminal Evidence Act 1984, on which Part 4 of the Bill is closely modelled, does not prevent a police officer who happens across material in the course of a search, where he believes it is connected to an offence and may otherwise be lost or damaged, from seizing such material unless he has reason to believe it is a legal privilege item. There are obvious good reasons why we would not want to prevent that happening. Section 19 of PACE uses wording that is virtually identical to that in the Bill.
  There is good reason why that should be so. A police officer conducting a search may not know that the material he finds is subject to legal privilege. It may be clear that it relates to an offence and he may have reason to believe that, unless he takes it there and then, it could be destroyed, but he may not know that—for example, a letter on plain paper that has come from the person's lawyer.
  Section 19(6) of PACE provides that if a constable has reasonable grounds for believing that any material he comes across is subject to legal privilege, he must not seize it, and that particular provision will apply to extradition powers as well, and in these circumstances—which I hope provides one of the assurances that the noble Baroness, Lady Anelay, seeks.
  So we are talking only about cases where the police officer is genuinely unaware that the material is subject to legal privilege. In such circumstances a blanket ban on seizing such material seems oppressive, particularly when there is nothing equivalent in domestic legislation and it could lead to a situation where, out of caution, a police constable does not seize anything, when it should be seized as part of the sensible pursuit of evidence of criminality.
  I repeat: we are talking only about material that is connected with an offence and which is in danger of being lost or damaged. The Bill makes clear that no search can be conducted for the purpose of seeking material protected by legal privilege; nor can a police officer who knows what he has found seize items subject to legal privilege.
  GC 156
  We hope that Clause 163 is quite clear. I am happy to add to it the code of practice if that would make it clearer. We shall refer to the code of practice later, but we have sent it to the noble Baroness, Lady Anelay. I suspect that, like me, she has not read every word of it as yet, but it is there before us.
  If it later transpires that in the circumstances referred to a police officer had taken an item that was legally privileged, it cannot be used—as it should not be. That position is categoric. I hope that that is helpful.
  Baroness Anelay of St Johns: That has been helpful. In introducing this and the previous amendment, I should have placed on record the fact that we recognise that the Government have fulfilled their commitment given in another place to my honourable friend Nick Hawkins that the codes of practice would be produced so that they could be considered in Committee in this place. The Minister is right: the codes arrived just before Committee, and I have not read each and every word in detail, but I am getting there, slowly.
  I will consider the issue of whether the code of practice should be more clearly on the face of the Bill. The Minister's response has satisfied me with regard to the amendment, and I shall not be returning to the matter in this particular form on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 160 agreed to.
  Clause 161 [Entry and search of premises on arrest]:
  Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 240A:
  Page 86, line 30, after "believing" insert "—
  (a) if the person has not been convicted of the relevant offence,"
  The noble Lord said: In moving this amendment, I shall speak to the other amendments in the group. I shall be brief. The amendments set out to ensure that the Bill does exactly what we want it to do, and no more.
  As the Bill currently stands, the police are empowered to search for evidence in both accusation cases—that is, cases where the person has not yet been put on trial—and also in conviction cases, where the person has been convicted but has escaped from custody.
  I am sure that the Committee will recognise why that might be necessary in cases where the person has yet to be put on trial. There should be no need for this power in cases where the person has already been put on trial and convicted. These amendments simply remove the power to search for evidence in conviction cases and tidy up the Bill. I hope that the Committee will agree that this is a sensible group of amendments. I beg to move.
  On Question, amendment agreed to.
  Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 240B:
  Page 86, line 31, leave out "or" and insert";
  (b) in any case, that there is on the premises evidence (other than items subject to legal privilege) relating"
  On Question, amendment agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 241:
  Page 86, line 35, leave out paragraph (b).
  The noble Baroness said: This amendment focuses again on situations where there is no warrant for search and seizure but the police still have the power to enter and search premises on arrest. Our concerns here are with paragraph (b) of subsection (3). It states that a relevant offence for which a constable may legitimately search for evidence could be an offence,
  "in respect of which the constable has reason to believe that a Part I warrant has been or will be issued, if the arrest was under section 5".
  We return here to the issue raised by my noble friend Lord Hodgson on one of the earlier days in Committee when speaking to an amendment about provisional warrants. He commented that,
  "it seems reckless to say that someone may take a subjective decision about a future warrant, possibly hypothetical, and on that basis arrest a British citizen".—[Official Report, 18/6/03; col. GC 344.]
  The same principle underlies our concern with paragraph (b) of subsection (3). A policeman can enter premises on arrest and search if he believes that a warrant "will be" issued. That is very close, I am sure, to infringing someone's right to privacy, especially if the police constable in question were wrong in his belief that a Part 1 warrant would be issued at some stage in the future.
  The noble Lord, Lord Bassam, said in reference to Clause 5 that the provision will "hardly ever be used". We do not know that as yet. It still may be used and therefore one still has to be concerned about its use. I believe that it is important to flag up the issue when it recurs in Part 4 of the Bill. I beg to move.
  Lord Filkin: I shall be relatively brief. The police powers have been added into the Bill following the case of Rottman, as my noble friend Lord Davies indicated earlier, which cast doubt on whether the provisions of PACE and police common powers extended to cases where the offence was committed abroad. The ruling in that case initially held that the police had no powers to search premises for evidence. Although that was partly overturned on appeal, it was decided that the Bill should set down in law the police powers which are available in extradition cases.
  Entry and search powers were pivotal in that case. The Bill therefore ensures that in the interests of law and justice the police have the power to enter and search in extradition cases. Clause 161 allows for entry and search of premises in which the person is at the time of, or immediately before, his arrest. The constable may search such premises if he has reasonable grounds for believing that he will find evidence relating to the offence or the identity of the person. That power is available in both full order cases and provisional cases—that is, cases where arrest takes place prior to receipt of the full paperwork.
  GC 158
  The Bill, like the legislation it replaces, allows for arrest in both full order and provisional cases. But, clearly, if the police are allowed to arrest, they must be able to carry out searches for evidence at the same time. If they were able to arrest a person in a provisional arrest case but then not search the premises where the arrest took place, even though they had reason to believe that there was relevant evidence on the premises, there would clearly be consequent dangers.
  With the power of entry and search in provisional cases, vital and valuable evidence could be hidden, tampered with or lost. The amendment would remove the ability of the police to carry out a search of premises on arrest in a Part 1 provisional arrest case. For that reason, we do not believe it would be sensible.
  We are dealing with a rather more narrow point here. It is the removal of the words,
  "warrant has been or will be issued",
  that causes concern. Indeed, as the noble Baroness indicated, it is the same wording as features in Clause 5(1)(a), which we discussed at considerable length earlier. Clause 161 has been drafted to match Clause 5.
  In earlier discussions, concerns were expressed on the power to arrest on an expected future warrant. My noble friend Lord Bassam said that we would look again at the point, and I am happy to repeat that commitment. Clearly, if we do conclude that it is necessary in some way to change Clause 5, the clause that we are now discussing will need consequential amendment, since the power of search on arrest needs to reflect closely the power of arrest.
  Given that commitment, I hope that my remarks have been helpful and that the noble Baroness, Lady Anelay, will be minded to withdraw the amendment.
  Baroness Anelay of St Johns: I am grateful for that response. I undertake to ensure that, on Report, this proposal will be grouped with earlier amendments which, if the Government have not tabled their own amendments, may prompt an explanation of why they do not think it necessary to come back on this point. That will cover the matter and, next time round, we may be able to have just one debate. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham Lord Davies of Oldham moved Amendments Nos. 241A and 241B:
  Page 86, line 39, leave out "or has been convicted"
  Page 86, line 42, leave out paragraphs (a) and (b) and insert "—

  (a) if the person has not been convicted of the relevant offence, is a power to search for evidence (other than items subject to legal privilege) relating to the relevant offence;

  (b) in any case, is a power to search for evidence (other than items subject to legal privilege) relating to the identity of the person.

  (4A) The power to search conferred by subsection (2) is exercisable only to the extent that it is reasonably required for the purpose of discovering evidence in respect of which the power is available by virtue of subsection (4)."
  On Question, amendments agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 242:
  Page 87, line 2, at end insert—
  "( ) is exercisable only if there are reasonable grounds for believing that it is necessary to seize the item in order to prevent it being concealed, lost, damaged, altered or destroyed."
  The noble Baroness said: This is another of the amendments suggested to us by the Law Society of Scotland. It seeks to insert a further criterion which must be in place before the power to search under Clause 161(2) can be exercised.
  Under the Bill it is possible for an application to be made for a warrant to search premises. The Law Society of Scotland believes that these additional powers under Clause 161 should be exercised only in specified circumstances and where urgency demands swift action. The amendment seeks to reflect the circumstances in which the society believes the power should be used.
  I have to say, in advance of any adverse criticism by the Minister of the drafting, that we are not trying in any way to jeopardise the full recovery of any relevant evidence which could be useful for the prosecution of someone legitimately arrested for an offence abroad. That is certainly not what the Law Society of Scotland is encouraging us to do. It is in the nature of a probing amendment. I beg to move.
  7.15 p.m.
  Lord Filkin: I could be wrong but I do not recollect ever having criticised the drafting of any amendments proposed by the noble Baroness, Lady Anelay. That is both because they usually are well drafted and because one is mindful of the resources that the Opposition Front Bench has in this respect. But be that as it may. However, that does not mean that we shall concur with the amendment.
  On the face of it, it looks sensible and attractive. Clause 161 confers the power on arrest to enter premises in order to search for evidence relating to the extradition offence or the identity of the person. The clause sets out the power to enter and search premises—subsection (2)—separately from the power to seize and retain evidence—subsection (5)—and different conditions are attached to each power.
  Perhaps I can explain briefly the conditions as it will help to demonstrate that there is not a danger that the amendment seeks to remedy. The power to enter and search premises on arrest of a person is constrained by two conditions. First, the arresting officer must have reasonable grounds for believing that there is evidence on the premises relating to the extradition offence for which the person has been arrested or the identity of the person. Secondly, the officer may only search to the extent that is reasonably required to discover that evidence.
  Clause 161(5) confers the power to seize and retain evidence found by the officer if the following further two conditions are met. First, the officer must have
  GC 160
  reasonable grounds for believing that the evidence has been obtained in commission of an offence. Secondly, the officer must have reasonable grounds for believing that it is necessary to seize and retain the evidence to prevent it being concealed, lost, damaged, altered or destroyed. In drafting the clause in this way, again, we have followed the logic deployed in the formulation of Sections 18 and 19 of the Police and Criminal Evidence Act 1984.
  The effect of the amendment is to transfer a condition on the seizure of evidence to the power to enter and search premises. While I can see what the noble Baroness seeks to do, and while I have some sympathy with the intent, the amendment confuses the logic of the clause somewhat. If I understand it correctly, the concern is to ensure that a search only goes ahead if the officer thinks that the evidence would be concealed or destroyed if it was not seized. In practice, however, the amendment would require an officer to judge, prior to entering the premises, whether, in the event that evidence was found, it would be necessary to seize it in order to prevent it from being concealed or destroyed. I think you will agree that this is a difficult, if not impossible, judgment to make if one does not know in advance the exact nature of the evidence one may or may not find until one has entered the premises.
  In practice, it is likely that if there is even a small chance that evidence may be concealed or destroyed an officer would, in the interests of justice, take the decision to search the premises, provided the other conditions are met. In effect, it is possible that this provision will provide no additional protection.
  What is important is that evidence which is not in danger of being concealed or destroyed is not seized and the Bill already provides for that. My apologies for labouring the point. I hope that I have demonstrated we do not want to confer powers on the police lightly and that we recognise that powers of entry, search and seizure must be exercised with due consideration to people's property and possessions.
  In following the formulation of these powers based on domestic legislation, the conditions in Clause 161 provide that protection. We hope so. I hope that the noble Baroness, Lady Anelay, has found what I said helpful.
  Baroness Anelay of St Johns: As ever, the Minister has a very courteous way of saying, "No". I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 242A:
  Page 87, line 4, leave out "subsection (4)" and insert "subsections (4) and (4A)"
  On Question, amendment agreed to.
  Clause 161, as amended, agreed to.
  Clause 162 [Search of person on arrest]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 243:
  Page 87, line 37, leave out "or gloves" and insert "headgear, gloves or footwear"
  The noble Baroness said: In moving Amendment No. 243, I shall speak also to Clause 162 stand part of the Bill. I tabled this amendment because I was intrigued by the variety of wording in different legislation about clothing that may be removed in the event of a search. I should like to draw out from the Government why there is this incompatibility between legislation.
  In Committee in another place, my honourable friend Nick Hawkins pointed out that subsection (5) authorises the search of a person involving the removal of the person's outer coat, jacket and gloves only, and the search of a person's mouth. That seems a rather limited criteria. As he pointed out, there are numerous examples of people of different religions or beliefs concealing illicit substances in their headwear or in their hat. He emphasised that it was a potentially problematic loophole in legislation which dealt with the search of a person and one which he had raised on previous occasions with some success because the Government had made amendments to a previous Bill.
  Of course, it has been proved that he is right. One can think of the infamous shoe bomber—Mr Reid—who concealed explosives in the heel of his shoe. On that basis, it is important that we should obtain clarity from the Government with this amendment. I was delighted that, during the passage of the Courts Bill through this House, the previous Lord Chancellor brought forward an amendment which dealt with this issue. It extended the wording of the clause in that Bill involving the search of a person to allow the officer to require the removal, not only of coat, jacket and gloves, but also of headgear and footwear. That was welcomed all around the House. I have therefore borrowed the wording of that amendment in drafting my own amendment to Clause 162. It has the merit of using the word "headgear" rather than "hat", giving greater applicability across different ethnic backgrounds.
  I hope that the Minister can explain to Members of the Committee why the Government use different criteria in different Bills with regard to what may be removed for a search. I beg to move.
  Lord Davies of Oldham: The noble Baroness is asking for a great deal if she is hoping to receive from me an encyclopaedic knowledge of all Bills and Acts which refer to clothing. What I shall try to do is reassure her that in this Bill we want to achieve a position of some consistency, which I think was the burden of her remarks. As far as possible, we would not want to depart from normal domestic procedure; issues with regard to extradition cases should be dealt with in the same way as other police arrests.
  There is no general power to remove headgear or footwear in normal domestic cases. Section 60 of the Criminal Justice and Public Order Act allows for the
  GC 162
  removal of masks and other facial coverings, but only when these are being worn for the purpose of concealing identity. Section 45 of the Terrorism Act allows for the removal of headgear, but only for the purpose of searching for articles which could be used for terrorist purposes. I think that that would cover the case of Reid, to which she referred in terms of the lethal shoes.
  These are both very limited powers and do not confer a general power on the police to remove hats in the way in which this amendment seeks. There may be something to be said for maintaining consistency between police powers in domestic cases and those in extradition cases. Imagine that the police stop a motorist for erratic driving and there is potential for an offence. On referring to the police computer, the officer appreciates that there may be some other potential offence which needs to be examined. It would be a little tough on the officer if he had to adopt two different approaches according to which legislation he was operating under. As far as the police are concerned, it is better and more straightforward that domestic and extradition legislation are squared.
  A further issue with regard to headgear—I am sure that the noble Baroness recognises it—is sensitivity. I appreciate what she says about the necessity of guaranteeing security when headgear could be used to conceal dangerous material, but she will also know that headgear can be of very great religious significance to certain ethnic minorities. Therefore, we would want to take care to recognise this dimension, as we have with domestic legislation. We would want to do that with regard to this Bill as well. I should also emphasise the obvious fact that should a more detailed and intimate search be necessary, that is provided for under Clause 166 at a police station.
  Currently, we are out for consultation on a code of practice on police powers. It will be interesting whether the police come back on these matters or others while the consultation is ongoing. I am not seeking to convey to the noble Baroness a closed mind on this matter, I am merely indicating that we are with her in the search for consistency. We think that there are very good reasons why there should be consistency between potential extradition cases and domestic law. It is for those reasons that I hope she considers she can safely withdraw her amendment.
  Baroness Anelay of St Johns: My only comfort is that the Minister said that he does not have a closed mind on this matter and will look at it again. Like him, I am trying to achieve consistency. In the Courts Bill, the Government purposely chose a different kind of terminology for searches, which may indeed be carried out by police officers as well as by security officers in court. I, too, am very much alive to the sensitivity of the use of the word headgear as it might affect Rastafarians or Sikhs who have very special and proper reasons for wearing distinctive headgear.
  That is why I was surprised when the Government used that terminology. The Minister said today that it would be tough on the police if they have to use two different approaches. The Government are already

  GC 163
  making them do that in domestic law, although in different circumstances—whether in court or on a street. I shall consider this issue further. I am not trying to make the life of the police any more difficult; I am trying to make their life more safe when searching people. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 162 agreed to.
  Clause 163 [Entry and search of premises after arrest]:
  Lord Davies of Oldham Lord Davies of Oldham moved Amendments Nos. 243A to 243E:
  Page 88, line 11, after "suspecting" insert "—
  (a) if the person has not been convicted of the relevant offence,"
  Page 88, line 13, leave out "or" and insert ";
  (b) in any case, that there is on the premises evidence (other than items subject to legal privilege) relating"
  Page 88, line 21, leave out "or has been convicted"
  Page 88, line 24, leave out paragraphs (a) and (b) and insert "—

  (a) if the person has not been convicted of the relevant offence, is a power to search for evidence (other than items subject to legal privilege) relating to the relevant offence;

  (b) in any case, is a power to search for evidence (other than items subject to legal privilege) relating to the identity of the person.

  (4A) The power to search conferred by subsection (2) is exercisable only to the extent that it is reasonably required for the purpose of discovering evidence in respect of which the power is available by virtue of subsection (4)."
  Page 88, line 30, leave out "subsection (4)" and insert "subsections (4) and (4A)"
  On Question, amendments agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 244:
  Page 88, line 39, after "if" insert—

  "(a) in Scotland, a sheriff, on application made to him by a procurator fiscal, and if satisfied that there are reasonable grounds for believing that it is necessary to seize the item to prevent it being concealed, lost, damaged, altered or destroyed, has given written authorisation for the exercise of these powers; or

  (b) in England, Wales and Northern Ireland"

  The noble Baroness said: I move this amendment in the absence of my noble friend Lady Carnegy and shall speak also to Amendment No. 246. I apologise on behalf of the noble Baroness. As one is aware, flights to Scotland do not leave very late on Thursday evenings, so the noble Baroness has had to leave us early.
  Amendments Nos. 244 and 246 were suggested to us by the Law Society of Scotland. They ensure that there must be judicial supervision of the exercise of these powers in Scotland. The power to enter and search premises under Clause 163 is given a degree of
  GC 164
  oversight by the fact that written authorisation for the exercise of those powers must be given by a police officer of the rank of inspector or above. Subsection (10), however, indicates that no such oversight is to be applied in Scotland. The amendment seeks to address that omission and makes provision for an application to the sheriff for written authorisation.
  We have tabled the amendment simply to ask the Government why there was different treatment between the different countries. I beg to move.
  Lord Filkin: In considering these amendments, it is important that we make it clear that, in Scotland, the Crown Office and Procurator Fiscal Service have the supervisory role in all aspects of extradition law. There will, therefore, be no question of any police officer executing a warrant for the arrest of any person, whether a European arrest warrant or a warrant under Part 2, without instructions from the designated authority in Scotland, namely the Crown Office.
  It has been agreed with NCIS that that organisation will not send warrants for execution direct to a Scottish police force; rather, it will send it to the Crown Office. In doing so, NCIS has accepted that Scottish law requires that a Procurator Fiscal give instruction to the police about the execution of an arrest warrant.
  The only exception will be provisional arrest under Clause 5. Of course, the arresting police officers will be required to contact the central authority immediately the fugitive is arrested, as the actual warrant will have to be in the hands of the central authority for the fugitive's appearance in court. It is therefore at that stage that the question of search will arise.
  In all cases other than Clause 5, therefore, police officers will be required to act directly under the instructions of the Crown Office and Procurator Fiscal Service. That will include the questions of search.
  The judicial safeguards in Scotland are even stronger than in the rest of the UK. Accordingly, to introduce the proposed further step is not in keeping with current procedure in Scottish criminal law. In provisional arrest cases, the police will be expected to consult the Crown Office and Procurator Fiscal Service, and, in common with the situation in domestic cases, will be guided by that service so far as concerns any search.
  The proposed amendments would introduce a system that is required in the rest of the UK because there is no input/supervision by a lawyer in the execution of either an arrest or a search warrant. The importation of what is essentially an English and Welsh Police and Criminal Evidence Act requirement would not only be alien to Scotland's legal system, it would also, we suggest, be superfluous.
  I am very pleased to have given what I hope is a full answer to the important probing on Scottish matters—yet again—that the noble Baroness, Lady Anelay, provides.
  7.30 p.m.
  Baroness Anelay of St Johns: I am grateful to the Minister for the explanation. I will check with my

  GC 165
  noble friend Lady Carnegy whether that is how she understands the situation. Certainly, I am not aware of the role of the Crown Office in how it discharges its duties and supervises those matters. I am sure that the Minister has given us enough information to reach the right decision on what to do before Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Chairman of Committees: The Committee stands adjourned until Monday 8th September at 3.30 p.m.
  The Committee adjourned at twenty-nine minutes before eight o'clock.