Criminal Justice Bill [H.L.]

HL Deb 20 October 1987 vol 489 cc13-61

3.36 p.m.

The Earl of Caithness

My Lords, I beg to move that the House do now resolve itself into Committee upon the Bill. Before the House goes into Committee I should explain that in order to avoid having the debate on my Amendment No. 31, which is a new schedule on questions as to sentencing, next Thursday, 22nd October, it has been agreed through the usual channels that Amendment No. 31 should be postponed until after consideration of Clause 61. When the House has gone into Committee and before the amendments are called, I therefore propose to move the appropriate Motion.

I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

The Earl of Caithness

I beg to move that consideration of Amendment No. 31 be postponed until after Clause 61.

Moved accordingly, and, on Question, Motion agreed to.

Clause 1 [Scope of Part I]:

[Amendment No. 1 not moved.]

Clause 1 agreed to.

Schedule 1 [Amendments of Extradition Act 1870, Backing of Warrants (Republic of Ireland) Act 1965 and Fugitive Offenders Act 1967]:

The Earl of Caithness moved Amendment No. 2: Page 100, line 25, leave out ("facts on which his return is granted") and insert ("evidence on which his return is grounded").

The noble Earl said: At the same time I shall speak to Amendments Nos. 23 and 24. The purpose of these amendments is to improve the drafting of the provisions of Part I of the Fugitive Offenders Act 1967 as they relate to the limitations placed on the prosecution of fugitives returned to this country. It is an almost universal feature of extradition arrangements that the requested state should exercise some control over the prosecution of fugitives who are returned pursuant to an extradition request. The provision to which these amendments relate place limitations within the United Kingdom on the prosecution of fugitives in this situation.

However, the drafting both of this clause and of the equivalent provision in the Fugitive Offenders Act 1967 is not sound. It is wrong to state that the prosecution of a returned fugitive should be confined inter alia to an offence, on which his return is grounded".

The amendments therefore seek to change the reference by stating that the prosecution should be confined to the offence, in respect of which he was returned".

It is also misleading to state, as in paragraph 16(1)(b), that a person may be prosecuted in respect of any offence disclosed by the "facts" on which his return is grounded. Such "facts" may in the light of any subsequent prosecution turn out not to be facts at all. It is more appropriate to use the term "evidence". I beg to move.

Lord Hutchinson of Lullington

May I ask the Minister what is the particular significance of the word "evidence" rather than "facts"? When one is dealing in the schedule with the Fugitive Offenders Act on page 100 of the Bill and the restrictions on sending people back, the words used are the restriction at "any lesser offence disclosed" by the evidence on which his return is granted.

If one looks at the restrictions in the main body of the Bill in Clause 3 of page 4 at line 41, the word which is used there is "facts". Clause 3(4)(b) states: an offence other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered". In the Bill itself one has a reference therefore to the facts when one is dealing with the restriction. Presumably the facts about which we are talking—the facts in respect of which his return was ordered—are the facts which we see in Clause 4(2)(b), that there shall be furnished with the request from the foreign government, particulars of the facts upon which and the law under which he is accused or was convicted (including"— the word now used is "evidence" but I understand it will be changed to "information"— sufficient to justify the issue of a warrant". I am asking the Minister the significance of using the word "facts", when one is dealing with the Fugitive Offenders Acts, and changing it to "evidence".

Lord Campbell of Alloway

Surely there is a need to look at this matter because there is a presumption that if different words are used the legislature means something different. It is extremely difficult to understand what the difference would be between the "facts" on which a return is granted and the "evidence" on which the return is grounded. If there is a difference, then of course I accept that and also that my intervention is out of place. But if there is really no difference then surely there is something to be said for the observations made by the noble Lord opposite.

Lord Renton

The word "evidence" is broader than the word "facts" because evidence may include not only facts but expressions of opinion as well.

Lord Mishcon

I should like to add to this interesting debate on semantics, by differing, if I may respectfully do so, from the two noble Lords who have just spoken. On the one hand, I should have thought that the word "facts" betokens matters which are established. They are facts. On the other hand, the word "evidence" merely means that somebody has testified to something. It may be found to be fact or it may be found not to be fact. The word "evidence" therefore is different from "facts".

However, the point that the noble Lord, Lord Hutchinson, raised is pertinent. Indeed, I adopt completely what the noble Lord, Lord Campbell, said; namely, that if a word is to be used and it means the same thing in a statute when it is used, for heavens sake we should use the same word and not muddle the issue when matters come before the courts. The Minister may care to reflect whether, having changed "facts" to "evidence" in one place, he intends to do so in every other place where it is applicable.

The Earl of Caithness

I fear that we have started as we shall continue with a great deal of legal advice to be summed up by me as a non-lawyer. I feel very much out of place among your Lordships.

At Question Time earlier the noble Lord, Lord Mishcon, suggested that I should consider what in his view was a sensible suggestion. The noble Lord, Lord Hutchinson, has raised a sensible suggestion as was the particular point raised by the noble Lord, Lord Mishcon, and my noble friend Lord Campbell of Alloway with regard to using the same words. Perhaps that is something that I could consider and come back on at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

The Earl of Caithness moved Amendment No. 3: Page 100, line 35, leave out paragraph 12.

The noble Earl said: This amendment corrects a drafting error. In Part I of the Bill certain offences are added to the existing list of extraditable crimes in the Extradition Act 1870. The necessity for this is that the 1870 Act and treaties made in accordance with it will continue in existence for a considerable period while such treaties are renegotiated and put on a more modern footing in accordance with the provisions of Part I of the Bill.

In the meantime, it is important that the list of extraditable crimes in the Extradition Act 1870 should be kept up to date. Paragraph 2 of Schedule 1 adds the offences of insider dealing and money laundering to the list of crimes in the Extradition Act 1870. However, the schedule also changes the definition of relevant offences—for example, extraditable offences—in the Fugitive Offenders Act 1967 to the no-list definition. Thus any offence punishable with 12 months' imprisonment or more becomes extraditable. Unfortunately, paragraph 12 of the schedule adds the offences of insider dealing and money laundering to the 1967 Act as if the list of offences was being retained. I beg to move.

On Question, amendment agreed to.

On Question, Whether Schedule 1, as amended, shall be agreed to?

Lord Simon of Glaisdale

I have a short question to ask the noble Earl. I hope the notice of it reached him, although upon hearsay I believe it did not. I think it was quite right to reject the idea of a Keeling schedule in respect of the three Acts with which we are concerned in this schedule. But in those circumstances can the noble Earl assure the Committee that the relevant statute will be immediately reprinted in the Statutes in Force as they are amended by this schedule?

The Earl of Caithness

Regrettably, I did not receive notice of the question that the noble and learned Lord has asked me, but I can assure him that the statutes will be revised as soon as practicable. Whether that will be immediately I shall leave for the lawyers to decide.

Schedule 1, as amended, agreed to.

Clause 2 [Orders in Council as to arrangements for extradition]:

Lord Irvine of Lairg had given notice of his intention to move Amendment No. 4: Page 3, line 41, leave out subsection (5).

The noble Lord said: I should perhaps explain the position about this amendment as I understand it. It is linked with Amendments Nos. 9 and 11. The main argument on this point, which is central to this part of the Bill, is one that we intend to argue on Amendment No. 9, and we propose to move that amendment along with Amendment No. 11. Depending upon the outcome of Amendments Nos. 9 and 11, we should desire to revert to the point of Amendment No. 4 at Report stage.

[Amendment No. 4 not moved.]

Clause 2 agreed to.

Clause 3 [General restrictions on return]:

Lord Hutchinson of Lullington moved Amendment No. 5: Page 4, line 42, leave out from ("ordered") to end of line 45.

The noble Lord said: This clause deals with a number of restrictions on the return of persons to foreign states, and some safeguards. To understand the amendment it is necessary, if the Committee will forgive me, to appreciate the powers which are given to the Secretary of State under this legislation at the moment, before further amendments are moved.

Under Clause 2, an Order in Council may be made applying the provisions of the Bill to a foreign state under general extradition arrangements, as they are called. By Clause 6(4) the Order in Council may provide that the court of committal, which at the moment is Bow Street, shall not consider the evidence produced to support the request, shall not decide whether there is a prima facie case, with the result that if the court is satisfied that the alleged offence is an extradition crime it has no alternative but to commit the person to be tried in the foreign state.

There is an amendment down, as the Committee will have seen, in relation to those provisions in Clause 6(4). That matter will in due course be debated. It is, as the noble Lord who has just spoken said, the very centre of this part of the Bill.

If Clause 4 remains in the Bill, extradition in those circumstances will to all intents and purposes come as a purely executive act as between one government and another. It is against that background that this amendment becomes of some importance.

Clause 3, in subsections (1), (2) and (3), sets out the general restrictions which bind the Secretary of State and the court, most of which have for a long time formed part of our extradition law.

For example, it says that a person shall not be sent back for commiting offences of a political character. We see in Clause 3(1)(b) that people shall not be sent back if it is an offence under military law which is not also an offence under the general criminal law. They should not be sent back for matters which are simply of race or religion. Those restrictions are all set out there.

Going further along to Clause 3(4), to which this amendment refers, there is set out what is known as the speciality rule. I shall read what it says. A person shall not be returned to a foreign state, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that state, or by an arrangement made with that state, for securing that he will not, unless he has first had an opportunity to leave that state, be dealt with in that state for or in respect of any offence committed before his return to it other than— (a) the offence in respect of which his return is ordered;".

In other words, it says quite simply that there should be an undertaking by the state which is requesting the sending back of the person involved that if that person is sent back he will only be tried for the offence which had been put forward as a basis for his return. That avoids a situation where some trumped-up charge may be put forward in order that the man can be taken back to a state and when he gets back is immediately charged either with something more serious or with something quite different. That is a restriction which is known as the speciality rule, and again that has been part of our extradition law for some time.

Clause 3(4)(b) refers to an offence, other than an offence excluded by subsection (5) below"—

which merely means unlawful under the Bill— which is disclosed by the facts in respect of which his return was ordered".

So an offence can be charged which arises directly out of the facts on which the basic charge is founded. That would seem sensible.

Then we come to paragraph (c). This amendment seeks to remove paragraph (c) from the Bill. The paragraph says: subject to subsection (6) below—

and that, again, deals merely with the unlawfulness of another offence— any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with".

The result of that paragraph is that the Secretary of State is given a power which completely undermines the long-respected safeguard to which I have just referred. Having regard to his overwhelming powers which I have just set out (if they remain in the Bill) of being able to send somebody back without any judicial review of the evidence, without any appearance before the court other than one which simply rubber-stamps the arrangement the Secretary of State has made with the other government, to give him in addition to that the power to set the speciality rule aside and consent to that person being tried for any other extradition crime when he is sent back to that foreign government is, I suggest, giving the Secretary of State far too great a power.

Although it may be said by the Minister that of course this Secretary of State would never dream of consenting to someone being charged with some other much more serious or quite different offence, I suggest with great respect that we are not dealing with individual Secretaries of State. What we are dealing with is the power which has been put into this Bill, and it is this power that I suggest to Members of the Committee is far too great and in the circumstances ought not to remain part of this Bill. I beg to move.

Lord Campbell of Alloway

Very briefly, I oppose this amendment. As the noble Lord appreciates, extradition is based on reciprocity. Reciprocity in this relevant context is based upon the convention. It is true, as the noble Lords says, that this involves very serious changes in our extradition law, but surely this is the same theme—more or less—as that which runs through Amendments Nos. 4, 9 and 11.

The problem is that under the convention extradition in essence becomes in effect an administrative act. Whether one likes it or does not like it, with respect to noble Lords, is in a sense slightly beside the point. The point is: can we honour the spirit of the convention unless we accept the principle—true, a novel principle to us and perhaps one which we do not like—that reciprocity here involves the acceptance that extradition is in essence an administrative act?

Lord Irvine of Lairg

I join with the noble Lord, Lord Hutchinson of Lullington, in commending this amendment to the Committee. The noble Lord has explained Clause 3(4). It contains an important safeguard but it is seriously emasculated by subsection (7), which this amendment seeks to delete. Let me give an example. Suppose a citizen of this country is extradited to face a charge of theft—let us say perhaps not a particularly serious theft—and he is acquitted in the foreign country. What is to stop the requesting state seizing the opportunity of charging him with any number of infinitely more serious crimes?

The answer is that Clause 3(4) entitles him to leave the requesting state, should he wish to do so, before any further proceedings are taken against him. The requesting state must confine itself to the offence for which he is extradited—that is paragraph (a)—and to other offences disclosed by the same facts; that is paragraph (b). The problem is that identified by the noble Lord. Subsection (7) then gives the Secretary of State a very broad discretion to waive this protection. It need only appear to him under subsection (6) that the particular individual could and would be extradited if extradition were to be requested by the foreign state on these additional charges that it is bringing forward.

Along with other noble Lords, I shall shortly be urging the importance of retaining in all cases the long-standing rule that a prima facie case must be made out against a citizen of this country before he is extradited. I hope the Committee will be persuaded of that; but if noble Lords are not persuaded of that, the prima facie rule would remain except where it is expressly abrogated by Order in Council. We anticipate that such orders will be confined in the first instance to member states of the Council of Europe, and I ask the noble Earl to confirm that this is so.

In all other cases therefore the prima facie rule will continue to be regarded, rightly, as a vital protection against ill-founded requests for extradition. But it is fatally undermined by Clause 3(4)(c). Provided the requesting state can find some extradition crime in respect of which it can put together a prima facie case, it can then charge the person extradited with any other extradition crime and the evidence it relies upon will not have been evaluated by an English court. All that is required is the Secretary of State's consent.

Does the Minister accept that the Secretary of State in acting under subsection (6) would have to be satisfied on evidence that there was a prima facie case before giving his consent to any further charges? This is an important question and we would welcome a clear answer. If he does not accept that, the provision is no real protection. If he does accept it, then surely neither the Secretary of State nor his civil servants are qualified to take a decision of that kind. The decision about whether there is a prima facie case is a decision for the courts, not for a Minister. When I see the courts being side-lined in this way, I nourish the gloomy belief that our civil liberties will suffer.

I therefore urge the Minister to think again and to appreciate that, as the provisions at present stand—in particular, subsection (6)—he is undoubtedly encouraging judicial review applications to the courts against the Secretary of State. These applications will assert that the Secretary of State has breached subsection (6) by coming to a view that could not reasonably be entertained that there was a prima facie case on the evidence put before him by the foreign state in support of these additional charges, I suggest that it would be far better to keep the Secretary of State out of those decisions. They are not decisions that are naturally for him; they are decisions that are naturally for the courts. I commend the amendment to the House.

4 p.m.

The Earl of Caithness

The effect of the noble Lord's amendment would be to prevent the United Kingdom from consenting to the prosecution of a returned fugitive for offences not covered by an extradition. Subsection (4) prevents the extradition of a fugitive if arrangements have not been made to place restrictions on his prosecution on his return to the requesting state. Some form of speciality rule is an almost universal feature of extradition arrangements. According to the principle of speciality, the requesting state should specify the crimes for which the fugitive is sought and the requested state should exercise some control over the prosecution of the surrendered fugitive for other crimes committed before his surrender. The existing law in respect of foreign extradition is found in Section 3(2) of the Extradition Act 1870. This provides that a fugitive shall not be surrendered unless there is an arrangement that he shall not, until he has been restored or had an opportunity of returning to the UK, be prosecuted for any offence other than the extradition crime upon which his surrender was grounded. This is a very inflexible requirement and means, for example, that if, following the return of a fugitive, evidence of a serious crime comes to light, it is not possible for the requesting state to prosecute a fugitive for that crime.

The noble Lord, Lord Hutchinson of Lullington, said that the speciality rule had been a part of law for some considerable time. I am sure he has not forgotten that a more flexible version of the rule is found in Section 4(3) of the Fugitive Offenders Act 1967 which was introduced by the Labour Party and which regulates our extradition arrangements with Commonwealth countries. This version of the speciality rule prevents the return of a fugitive unless there is an arrangement preventing his prosecution for any offence committed before his return other than the offence in respect of which his return was requested; any lesser offence proved by the facts before the court of committal; or any other extraditable offence in respect of which the Secretary of State may consent to its being dealt with. This provision reflects the Commonwealth scheme for the rendition of fugitive offenders and is also broadly similar to Article 14 of the European Convention on Extradition.

Subsection (4) follows the approach taken by the Labour Party in the 1967 Act and the European Convention on Extradition. Thus the fugitive may only be dealt with in respect of the offence in respect of which his return is ordered, any other offence disclosed by the facts in respect of which his return was ordered (thus allowing charges to be reformulated, but only, in accordance with subsection (5), if the resulting charge would have been extraditable under the Act) or any other extradition crime with the Secretary of State's consent. This consent provision, which the amendment seeks to remove, must be exercised subject to certain conditions. First, any new offence must be an extradition crime. This is defined in Clause 1 as an offence punishable with 12 months' imprisonment or more. Secondly, the Secretary of State may not consent to the prosecution of a fugitive for an offence not covered by the extradition if it is apparent that his extradition for that offence, if it had been requested, could not have lawfully been made under the Act. Thus it would not be possible for the Secretary of State to give his consent to the prosecution of a fugitive for, say, a political offence. This protection is afforded by subsection (5).

The main objection to such a provision is that the requesting state might conceal certain charges outstanding against a fugitive and seek consent to try him in respect of them only after his return instead of including them in the original request. It would undoubtedly be more difficult for the fugitive effectively to invoke the safeguards provided in the requested state's legislation once he had been returned. However, if there were any doubt about the grounds on which consent had been sought, it would be open to the requested state to seek further information in order to satisfy itself, for example, that the alleged offence was not of a political nature. Any abuse of this kind would doubtless be dealt with in the usual way by representations through diplomatic channels. Moreover, if the fugitive had any reason to think that his surrender was sought in order to punish or prosecute him for political offences or, indeed, for any other offences than those included in the request for his extradition, he would have an opportunity to raise this with the requested state while the application for his surrender was under consideration. As I have indicated, a provision enabling requested states to grant consent in this way is a feature of the European Convention on Extradition and there is no indication within the Council of Europe that it has given rise to any particular difficulty.

Given the fact that all the safeguards available under the Bill must be applied in cases where consent is sought, I hope the Committee will agree that a provision on these lines is a prudent addition to the legislation. It is not expected that such a provision will be invoked in many cases, but where evidence of serious offences does come to light after an extradition has taken place, it is clearly in the interests of justice that a defendant should be brought to justice even though the matter was not covered in the original extradition request.

That takes me on to a comment about the European Convention on Extradition, which has been in effect for some 30 years. We are notably one of the few countries but by far the most important country not to have ratified the convention. It is of serious concern throughout Europe that we have not done so. It is proving a major stumbling block in our negotiations throughout Western Europe to get a more comprehensive agreement on crime where people who are committing crimes can easily hop from one country to another. Whenever we try to raise this matter in Europe, it is fair to say that they point the finger at us and say, "You must put your house in order because you are the ones who are causing so much trouble by not ratifying the European convention". That is something that we wish to do and that the Bill will enable us to do. As a result, we will no longer be the black sheep of Europe.

On the matter of prima facie, I am sure that the noble Lord, Lord Irvine of Laing, would prefer me to discuss the point under Amendment No. 9. To do so now would take us at a tangent from the point under consideration. It is an important matter with which I should like to deal in some detail. On that basis, I hope that the noble Lord will exempt me from commenting at this stage.

Lord Mishcon

If I may say so, I prefer to be the black sheep of Europe and to maintain our tradition of being the white sheep of the liberty of the subject.

I think that the argument is becoming a little confused and if I try to clarify it I hope the Committee will not think that I am making it even more confused.

As I understand it, the short question before the Committee relates to whether a person being extradited from these shores by an administrative act, this person having been extradited on one offence which has been looked into in accordance with the provisions of this Act, can be charged by the state to which he has been extradited on an entirely different offence provided it is an extraditable offence. It is absolutely right, as the noble Lord who took part in the debate earlier said, that the whole machinery of extradition—and it is all a matter of reciprocity—is being turned into an administrative machinery when it has been a judicial machinery. It is on that point that I want the Members of the Committee to concentrate for a moment before, as the highest court of justice in the land—

Noble Lords

Oh!

Lord Mishcon

I thought it was the usual learned comment of the noble and learned Lord but it was made to somebody else and not to me.

As I was saying, it is on this issue that the Committee should concentrate. Traditionally the cry of liberty of the subject has been heard in the corridors of our courts. When it is heard by any court official of our High Court most judges' lists are put on one side and the matter that deals with liberty of the subject takes precedence. Everything the noble Earl said in answer to the noble Lord, Lord Hutchinson, might have been extremely relevant, and indeed effective, if one took it for granted that the old traditional prima facie rule was still going to apply when we finish with the Bill.

I believe the Committee would say that if indeed there is another more serious or as serious an offence for the foreign state which is to try the individual, then provided there is a prima facie case against him it is all quite just that that should happen. What the noble Earl was saying, not because he was in any way trying to mislead the Committee—he never does—was, "Now look, we have a convention with Europe. We have done this with the Commonwealth and it has worked out all right with the Commonwealth. These very words apply". And in order to get a glint into his eye and some amount of support from his friends around him he reminded the Committee that it was the Labour Government who indeed enacted this provision in regard to the Commonwealth. I expected him to feel that as a result of that, and if he had left it at that, we on this side of the Chamber should feel some guilt for the way in which he was arguing this afternoon. No such guilt is felt, because at the date of that Bill and that Act when it was passed through Parliament the prima facie rule still applied.

What we have to remember here, arguing this before we reach the famous Amendment No. 9, and the famous Amendment No. 11, as it will appear in your Lordships' annals, is that we are presupposing if we support what the noble Earl says that the prima facie rule will not apply and that therefore the situation is not as it is with the Commonwealth now, not as it should be if our courts are to protect the individual concerned and not as it should be if the words "liberty of the subject", having once been cried in our House we turn a deaf ear to them. It may be sensible—it is not in my hands to say this; it is in the hands of those who have moved the amendment—not necessarily to press a vote upon the amendment at this stage but to remember our opposition to it if in fact we fail, as I hope we will not, when we reach Amendments Nos. 9 and 11, when the "liberty of the subject" cry will again go before the highest court in this land.

The Earl of Caithness

If I may add weight to the last point of the noble Lord, Lord Mishcon, it is a wise suggestion, because the prima facie rule is the key to all of this. Although I should like to answer him it is perhaps best if I deal with that in the same way as I suggested I deal with the point of the noble Lord, Lord Irvine of Lairg, on prima facie. I should like to come back to that when we come to the later amendments.

4.15 p.m.

Lord Hutchinson of Lullington

Perhaps I may come back to the original point which was made when I moved the amendment. The Minister has enlarged the whole breadth of this discussion by referring to black sheep in Europe and by saying that we are the odd man out. The point the Committee should appreciate is that for 30 years, whatever the noble Lord, Lord Campbell, may say, Governments have steadfastly refused to ratify this convention which turns extradition into a purely administrative act. We may be the black sheep but we have a different legal system from the one which is followed on the Continent. The overwhelming fact to which we shall come later is that in Europe they will not extradite their own citizens whereas we in this country alone are prepared to do so. If you are not extraditing your own citizens you can very happily say, "Let us make extradition an administrative matter. Let the two governments get together. We do not mind. Let us get this foreigner sent back to where he belongs." But that matter will be raised in a moment on the later amendments.

The point here is a perfectly simple one and one which the Minister has not answered. Does this clause which we seek to remove give the Secretary of State full power to consent to anyone who is sent back to a foreign state charged with a particular offence being tried for an infinitely more serious offence or an offence quite different from the one for which he was sent back? Ever since 1870 that rule, the speciality rule, has been observed through thick and thin in order to prevent a small charge being made when really what the Government are up to is getting a man back when they know they would never get him back if they had put forward the other offence, and having got him back then charging him with the more serious matter. We have always set our face against that and before deciding what to do here I ask the Minister whether that is the position.

With the greatest respect to him it has nothing to do with the abuse of charging a man with a political offence or charging him with one of the offences here which is not allowed. That does not arise and that is not the point. The point is the one which I have already put forward twice and which I shall not repeat. If a person appears and is sent back, is there anything in the Bill which will allow that person to dispute the Secretary of State's consenting to him being charged with something which has never been laid before the court, which has never been mentioned up to that moment and which did not form part of the request? Is there any redress for this person who is sent back on a matter which carries 12 months' maximum, only for it to be found that the Secretary of State has agreed that he should be tried for something which carries life when he gets back?

Is he to go back without redress; or is there in this Bill somewhere some safeguard, if this power is to remain, by which that person can get up and say, "That is wrong. That is unlawful. That should be subject to judicial review. I am going to dispute this"? Is that possible, or is it, as it appears in this clause, that the Secretary of State can simply consent as a matter of administration as between him and the foreign state? If that is the situation I would suggest that this part of this clause should be removed from the Bill.

Lord Campbell of Alloway

The noble Lord, Lord Hutchinson, said roundly that the signatory states—I assume it is the signatory states who have ratified the convention—do not extradite their own nationals.

That comes as some surprise to me, having studied the subject a little. I wonder whether the noble Lord, Lord Hutchinson, has any material upon which he would support that assertion, because I understand it to be wrong.

Lord Hutchinson of Lullington

The noble Lord must know that most European states claim an extraterritorial jurisdiction over their own nationals.

Lord Campbell of Alloway

Yes, but the noble Lord will appreciate not in context with the implementation of this convention. This is the very reason that my noble friend the Minister has said that this is causing such enormous practical difficulties because in a sense—forget about black sheep—we are the odd man out.

The Earl of Caithness

I shall try to respond to the noble Lord, Lord Hutchinson of Lullington. We have to bear in mind the countries from which we wish to benefit in the extradition sense when we sign the European Convention on Extradition. Having reached the stage where we can ratify that convention, and we wish to seek to annul our present agreements and institute further agreements, we made a concession in another place when the Bill was in its previous form that such Order in Council would have to be laid on the Table in both Houses of Parliament. That gives us the opportunity in this Chamber to say, "No, we do not like the system of justice that that particular country operates".

What we are talking about therefore is a small number of Western European countries where we are having the most difficulty with extradition at the moment (and where those countries are saying to us that it is not worth even considering an extradition) but whose system of justice we respect. Yes, it might be different, as the noble Lord says, but it is no better or no worse for that; it is different. Therefore the provisions in the Bill try to secure a better system of justice with those Western European countries.

In each case it will have to be considered by Parliament. If we are to say, as really the noble Lord says, "Sorry, we are different; we intend to remain different because that is what we have been for so many years, even though we thoroughly approve of the way that you run your criminal justice system", we shall continue to be the odd man out in Europe and shall find it difficult, when it comes to reciprocity, to get alleged criminals from them; and equally they will find it virtually impossible to get alleged criminals from us.

Surely the right thing to do is in the Bill, which is to say that now is the time, notwithstanding it is 30 years down the road, to sign the European convention. It has worked perfectly satisfactorily with other states in Western Europe. They have not found the difficulties or hang-ups that we have in order to have a sensible criminal justice system that does not adversely affect the liberty of the subject. The time must now come when we say, "Yes, we have been in Europe a sufficiently long time. We must now ratify the convention". In order to do that we must be prepared to change some of our ways, and I believe that the amendment that the noble Lord, Lord Hutchinson, puts before us sets us back to where we have been and from where we want to go.

Lord Harmar-Nicholls

The noble Lord, Lord Mishcon, gave the Committee good advice; that is, that after having listened to the different points from various learned quarters, any decision on this narrow point should be left until we have debated Amendments Nos. 9 and 11 to see whether or not what comes out of those would meet the point. However, I should like to know whether it is a fact that at present we extradite our nationals to other nations and other countries do not extradite their nationals to us. Is that the position or is it not? We have had two points of view and I am interested to learn which is the right one.

Lord Donaldson of Kingsbridge

Surely the noble Lord means extradite from, and not to?

Lord Harmar-Nicholls

I accept the correction of the noble Lord, and I should like to know the answer.

The Earl of Caithness

Because of our different system of justice, to which the noble Lord, Lord Hutchinson of Lullington, referred, it is more common for us to extradite than it is for some of our friends in Western Europe. But there has been significant change in Western Europe of late and they are moving quite speedily towards the system that we operate of extraditing our nationals. In particular, I refer my noble friend to Holland, where I believe that on 1st January next year they are going to bring in provisions in order to enable the extradition of their nationals.

However, I think the point is that it is based on a different system of justice. It is because ours is common law and theirs is civil law, as I understand it—I have noticed the noble and learned Lord opposite nodding, which makes me worry that I might have got it wrong—which is the reason for our extraditing, whereas those countries with a civil law base to their criminal justice system do not have that requirement.

Lord Elwyn-Jones

What worried me was that the Government are contemplating a fundamental abrogation of the common law rule that there should be a prima facie case. It is the basis of all our summary jurisdiction, indeed almost all our criminal jurisdiction, and the noble Earl is cheerfully, blandly and genially going to do away with it.

The Earl of Caithness

That is why I supported the noble Lord, Lord Mishcon, that we move to prima facie and get on with it.

Viscount Caldecote

I should hesitate to speak in the presence of so many experienced lawyers, but there seems to be a commonsense point of view. I should be happier to support the noble Earl's advice to reject this amendment if he could explain this point. As I understand it, if the extradition of a person is requested by another state he has the opportunity to make equal respresentations against being extradited. If he is already in the country and has been acquitted of the crime for which he was in the first place extradited, I understand that if this clause remains he can be kept in that state and charged with another offence if the Secretary of State so decides.

Surely all the objectives that the Minister wants to achieve would be achieved if the Secretary of State in such circumstances could ensure that he was brought back to this country under escort, or custody of some kind, so that the case for or against extradition for the second alleged offence could be settled in the courts with legal representation in this country. Then he would have a fair hearing and nothing would be lost on the principle of extradition. It is a common sense point but I may be wrong as regards the legal point. However, perhaps the Minister can satisfy us.

4.30 p.m.

The Earl of Caithness

As I tried to explain earlier, the countries with which we shall ratify the agreement whereby a prima facie case is not needed will be those Western European countries in whose judicial system we have confidence. Therefore we shall not be removing prima facie evidence in all cases—far from it—but in a limited number of Western European countries where we can say that the accused will receive justice. If my right honourable friend the Secretary of State, or any Home Secretary, is faced with a request for another charge he must look at the matter seriously, because the loss of respect between two countries for each other's criminal justice system would be a retrograde step.

Lord Mishcon

I hesitate to prolong what I believe to be a debate which should now close. However, I wonder whether the Minister has realised into which troubled water he is trying to guide the Committee. Is he saying that those who join with us in Europe shall have one system of extradition? If another country approaches us in respect of an extradition treaty and says that it is just as good as our fellow nations in Europe, does the Minister realise the task he has given to his right honourable and learned friend the Secretary of State for Foreign Affairs if the decision is: "You are not as good as France, you are not as good as West Germany, you are not as good as Spain, you are not as good as Portugal, you are not as good as Greece"? I think that the Minister is moving the Committee into difficult reefs and that is something which I should not like to see happen, and upon further reflection I believe that he may not like that.

The Earl of Caithness

I feel that it would be wrong to prolong the debate but I point out to the Committee that at the moment we operate under three different systems of extradition. We have one system for what we term "foreigners", which is the 1870 Act, another system for the Commonwealth, to which I earlier referred, and yet another system for the Republic of Ireland.

Lord Hutchinson of Lullington

It is always a pleasure to educate Members of the Committee opposite: one does not often have the opportunity. Perhaps I can help the noble Lord, Lord Campbell of Alloway, by reading to him Article 6 of the convention, upon which he puts so much store. Article 6(1)(a) reads: A contracting party shall have the right to refuse extradition of its nationals'". If the noble Earl were to look at the various reservations and declarations attached to that convention, and which we have refused to ratify for 30 years, he will find that most countries have included a declaration (at the moment I point to that included by the Netherlands) to the effect that the Netherlands Government will not grant extradition or transit of its own nationals. Moving on one finds that the Swiss Federal Council declares that Swiss law does not permit extradition of Swiss nationals. One finds that that is the situation in Europe.

I am surprised that the noble Lord, Lord Campbell of Alloway, with his enormous experience of extradition, has not realised that most countries in Europe claim extra territorial rights over their own nationals, as I said previously. If one of their nationals commits an offence out of their country they say: "We shall try that national in our own country for the offence which he has committed outside, and there is no need to send him back".

Throughout the centuries we have taken a completely different view and are prepared to return our nationals to countries if they commit offences there. There lies the fundamental distinction which I hope that the Committee will bear in mind when we shortly turn to the crucial amendment.

I regret to say that the Minister has completely ignored the two questions I asked: first, whether the power was as I asked and, secondly, whether a person who suffers under the power has any kind of regress. I have had no answer to either question. I am always prepared not only to educate noble Lords but to listen to the advice which comes from them and others. In the circumstances I believe that, although the reply has been so unsatisfactory, it would be a wise course not to press the amendment at this stage and to see how matters proceed on the further and more important amendment. However, we shall certainly return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Extradition request and authority to proceed]:

The Earl of Caithness moved Amendment No. 6: Page 5. line 27, leave out ("evidence") and insert ("information").

The noble Earl said: This amendment makes a drafting change to subsection (2)(b). As the Committee is aware, one of the proposals contained in Part I of the Bill is that it should be open to the United Kingdom to enter into extradition arrangements which do not require the requesting state to present prima facie evidence. It is therefore perhaps misleading to state that material provided in support of an extradition request should contain evidence sufficient to justify the arrest of a fugitive. As at present, the material which a magistrate may consider and on which he may base his decision to issue an arrest warrant need not be evidence in the sense of material technically admissible in court proceedings.

In the emergency provisional request procedure, the magistrate at present usually makes his decision whether to issue an arrest warrant in respect of a fugitive on the basis of Interpol telexes presented to him by a police officer. In the circumstances it would seem better to substitute the word "information" in subsection (2)(b).

Although I recommend the amendment to the Committee I am aware that it touches upon the point discussed earlier. I hope that the Committee will feel able to accept the amendment with the assurance that I shall look into the matter of obtaining continuity as discussed earlier. I beg to move.

Lord Hutchinson of Lullington

I am sorry to make further inquiries about the substitution of the word "information" on this occasion for the word "evidence". It is not merely a lawyer's semantic point. Before the whole procedure of arrest and surrender can begin the Secretary of State must issue an authority to proceed. He does so after receiving a request from the requesting state. In accordance with the Bill the request must be accompanied by "particulars of the person" involved, which is the phrase used, and not of identification; also particulars of the facts and the law under which he is accused, including what was evidence sufficient to justify the issue of a warrant for his arrest.

The Minister wishes to substitute for, including evidence sufficient to justify", the words including information sufficient to justify the issue of a warrant". So what are being forwarded to the Secretary of State in the request are the particulars of the person, the particulars of the facts—whatever that may mean—and information sufficient to justify a warrant of arrest being issued. This is the only material, so far as one can see, which under the general arrangements in this Bill will be there to justify the police going out, arresting a citizen, bringing him to Bow Street and the Bow Street magistrate looking at the papers and asking, "Are the documents in order? Yes, they are. Stamp! You are committed."

If I am right about that—and we shall be discussing it in more detail in a moment—then I ask the Minister: what is the significance of cutting out the word "evidence" and putting in "information"? What struck me immediately on reading these new provisions in the Bill is that nowhere can one see the requirement to produce any evidence. Hitherto, the whole of the extradition question has depended on the evidence. The evidence is sent by the foreign state and the evidence is presented to the magistrate at Bow Street. That is the position today. The magistrate then looks at the evidence and if there is sufficient to commit then, just as he commits to the Crown Court, he commits to the foreign state. It is perfectly straightforward and, I suggest, perfectly fair and very proper.

But now, with this administrative system of extradition, I look through the different clauses and I cannot find the word "evidence" and the need for the foreign state to produce it to the Minister. What has to be produced, as I have said, are particulars of facts and now information sufficient to justify the issue of a warrant. But, as has already been said, information can mean hearsay upon hearsay upon hearsay. It can mean—and, I suggest, obviously does mean here—a policeman saying, "I have been told by two witnesses that this person stole some money out of the safe." Finish. That is information sufficient to justify the issue of a warrant.

It most certainly is not evidence. It seems to me that the reason for substituting the word "information" for "evidence" is a slightly sinister one, in the sense that in trying to fit in with European jurisprudence we are trying to make it perfectly clear that there does not have to be any evidence at all. What there has to be is some information. That is all and that is enough. And on "information", away you go. I would ask the Minister once again to confirm that that is not the right interpretation and that there has to be some evidence put before the Secretary of State. If so, then why do we have to wash out the word "evidence"?

The Earl of Caithness

With respect to the noble Lord, I am not sure that I can add very much to what I said at the beginning. If I may repeat myself, the material which a magistrate may consider, on which he may base his decision to issue an arrest warrant, may not be evidence in the sense of material technically admissible in court proceedings. I also explained what would happen in respect of an emergency request which might come through an Interpol telex.

The noble Lord is absolutely right. We are talking about two different systems. The key to the two systems is that in this country we have a request at the moment for prima facie evidence for foreign and Commonwealth countries hut, as I understand it, not for the Republic of Ireland. Yes, it is a change. But the major change is the debate that we are to have on Amendment No. 9 concerning prima facie evidence. We thought that "information" was a better word than "evidence" to cover the point that I made; for instance, if we had a telex.

4.45 p.m.

Lord Mishcon

We could go on for a very long time making speeches in order to clarify one or two words. The noble Earl has said that he will look into the consistency of the words used here. Does he use the word "fact"? Does he use the word "evidence"? I, from these Benches, would like him to consider this. When he talks about telexes, Interpol and so on, which may not amount to evidence in law, will he reflect upon the fact that he is presumably content with the words at the beginning of subsection (2)(b)—"particulars of the facts" upon which the man is accused?

Facts can only be adduced by evidence. You can only be satisfied that something is a fact if you have evidence before you and if you are satisfied, by one test of the balance of probabilities or another, beyond all reasonable doubt. But you cannot tell that anything is a fact until you have evidence. So the wording of this clause has to be looked at. I hope that the noble Earl will consider with his usual courtesy the very pertinent remarks made by the noble Lord, Lord Hutchinson. I hope that when he looks at the words "information" and "evidence", in the light of what has been said so far, and prior to the famous debates on Clauses 9 and 11, he will also look at the use of his word "facts" if he does not want evidence of the facts.

The Earl of Caithness

That was one of the matters to which I was referring and into which I shall be looking as a result of an earlier amendment. I am happy to confirm that.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 7:

Page 5, line 36, at end insert— ("(4) In this Part of this Act "warrant", in the case of any foreign state, includes any judicial document authorising the arrest of a person accused or convicted of a crime.").

The noble Earl said: In moving Amendment No. 7 I shall speak at the same time to Amendment No. 21. These are drafting amendments, the effect of which is to move the definition of a warrant for the purposes of Part I of the Bill from Clause 13 where it is presently found to Clause 4. The reason is that the word "warrant" appears for the first time in Clause 4 and it is therefore helpful to the reader to have a definition of the word in the first clause where it appears. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Arrest for purposes of committal]:

The Earl of Caithness moved Amendment No. 8: Page 6, line 13, leave out ("and disclosed by the information accompanying the request for arrest").

The noble Earl said: The purpose of this amendment is to clarify the procedure to be adopted by the magistrate when considering whether to issue an arrest warrant. As at present, there will be two situations in which the magistrate will decide whether he will issue a warrant for the arrest of a fugitive. The first situation will be where a full requisition has been received through the diplomatic channel from a requesting state and the Secretary of State has issued an authority to proceed to the magistate. The second situation will be the emergency procedure whereby a requesting state may seek the provisional arrest of a fugitive while it prepares and submits its full extradition request.

In the latter case, the magistrate usually makes his decision as to whether to issue an arrest warrant on the basis of information supplied to him by the police via Interpol. This could not properly be described as a request for arrest from the requesting state. It would, therefore, be clearer to remove the words in question from the subsection. The magistrate would continue to be obliged to consider the question of arrest according to the same criteria which apply in respect of serious offences in the United Kingdom. I beg to move.

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Proceedings for committal]:

Lord Hutchinson of Lullington moved Amendment No. 9: Page 7, line 1, leave out subsection (4)

The noble Lord said: I suggest that this subsection contains the real mischief lying at the very heart of the Bill. It is a mischief which those of us who put our names to the amendment seek to remove. Clause 6(4) takes away entirely from the courts any judicial examination of the facts on which the requesting state is seeking extradition of the person concerned. It denies to the accused person any rights to a judicial examination of whether those facts amount to conduct amounting in law to an extradition crime, and it makes extradition under general arrangements, as it is called, an entirely executive or administrative act as between ministers of governments. The noble Lord, Lord Campbell of Alloway, was perfectly right in describing it as a purely administrative act.

In moving the amendment I seek also to speak to Amendment No. 11 which is consequential. Amendment No. 11 refers to subsection (8) of the clause which deals with procedure. Subsection (8) merely states: Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations from both sides and is further satisfied— (a), where that person is accused of the offence"— and here are the relevant words— unless an Order in Council giving effect to general extradition arrangements otherwise provides, that the evidence would be sufficient to warrant his trial if the extradition crime has taken place within the jurisdiction of the court".

If Members of the Committee feel that we are right in saying that we should remove altogether subsection (4), those words would go from subsection (8) and in all cases it would be for the magistrate to decide whether there was sufficient evidence to warrant the person's trial if the extradition crime had taken place in this country.

We are discussing here the arrest and removal from the jurisdiction of our own courts and from the safeguards and guarantees built into our own procedures citizens who are alleged by a foreign state to have committed extradition crimes. Those are matters which the Minister of State described in another place as going to the heart of our criminal justice system. I agree with him entirely.

We have seen that the Secretary of State issues an authority to proceed to the Bow Street Magistrate if he receives a foreign warrant and information as regards particulars of the facts and law sufficient to justify the issue of a warrant of arrest in this country. Where Clause 6(4) applies the Bow Street Magistrate will simply rubber-stamp the papers sent to him by the Home Office and commit the defendant to await his return to the foreign state.

Clause 6(4) forbids the Magistrate from examining the evidence. It states: Where an Order in Council such as is mentioned in subsection (8) below is in force in relation to the foreign state, the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court".

The general arrangements which would come out under the Order in Council would be of the following kind: that extraditions can either be ad hoc under the Bill with countries with whom we have no treaty or they will come under general arrangements with countries with whom we do have treaties and an Order in Council will be issued containing the contents of the relevant treaty. If the Order in Council is issued it will then be open to the procedure set out here. If that procedure is followed then, as I have said, all that will have to be done will be for the Secretary of State to receive those papers and send them down to Bow Street. The Bow Street Magistrate is forbidden to look at the evidence if that procedure is followed. That is what is called the streamlined procedure which will cause us to turn from a black sheep into a European white lamb.

At present nobody can be extradited from this country without the evidence being laid before the Bow Street Magistrate who looks at it and then decides, having heard both sides, whether there is sufficient evidence to commit the person to be tried abroad. When he puts his mind to that he puts his mind to it exactly as he does if that person was about to be committed to the Crown Court to be tried on a serious offence. What is the basis on which he acts? He acts on the basis of whether there is a prima facie case. Put into English a prima facie case means whether there is sufficient credible evidence before the magistrate on which a jury properly directed could convict. That is the basis which is known in the extradition world as the evidence rule and which is known by us as the prima facie case.

As I have said, under the clause no evidence will be given in open court. There will be no opportunity for the defendant to dispute it and the opportunity for a court of law to examine the basis in fact or in law on which the person is being removed from this country will not be open to any court. There will be no right of appeal against the sufficiency of the facts and, when extradited, the citizen of this country will be tried under a foreign jurisdiction, under wholly unfamiliar procedures, in a foreign tongue and without any of our built-in safeguards such as the protection against self-incrimination. Further, there will be nothing to stop him being extradited on hearsay evidence and, indeed, purely for the purpose of interrogation—as far as I can see it—by the juge d'instruction or the equivalent officer, whoever he may be.

The justification for this remarkable and wholly autocratic procedure has been spelt out by the Government in their White Paper and elsewhere. I hope that I have summarised fairly the justification so far before we hear from the Minister. The Government, being a member of the Council of Europe, wish to ratify the European Convention of 1957. As Members of the Committee will appreciate, Turkey, Cyprus and Greece are also members. Any state may adhere to the convention. For instance, Israel adheres to the convention at the moment.

As we have been told, under European legal systems extradition is an almost wholly administrative act. A number of foreign states in Europe are now fed up with having to provide evidence that will satisfy our courts. They find it difficult to understand our rules of evidence and procedure. The Government say that we have now come of age and that we ought to trust the legal systems of our friends and accept their requests as being, on the face of it, justifiable and well-based. Furthermore, they say that the safeguards in Clause 3 are sufficient to set any uneasy minds at rest.

The vital factor in answer to those points is that those foreign governments do not extradite their own citizens. They claim extraterritorial jurisdiction over their own nationals and they try them or say that they try them for offences which are committed in other countries. Therefore, all the procedures which are so streamlined and which are whiter than white among the sheep of Europe and in other places are directed towards citizens of other states and not towards their own nationals.

It is not a question of trusting the legal systems of our friends; it is a question of trusting the executives of foreign states. I suggest to the Committee that that is a very different matter. If this clause remains, the situation will be quite extraordinary. First, the evidence rule will continue as between countries of the Commonwealth who are our real friends and indeed our relations. The evidence rule will remain.

Secondly, regarding the United States of America, the evidence rule will also remain because the United States of America has more or less the same prima facie requirements, although it is called the "probable cause" requirement. Therefore, on the grounds of reciprocity, so far as concerns the United States, that rule will remain. Do we distrust our friends in America? Do we distrust their legal system? Thirdly, in all other countries outside the general arrangements the evidence rule will remain. Fourthly, quite different procedures will obtain in relation to Ireland.

We should therefore have the Comonwealth, the United States of America, all other countries outside the general agreements and Ireland having a different system from the system of administrative extradition. As my noble friend Lord Irvine said in the Second Reading debate, that is extradition on demand. A person who is charged with an offence here would therefore face a completely different standard of proof than he does when he is charged with an offence in a foreign country. A person charged with an offence in this country goes before the magistrates and the evidence on both sides is heard. The case is thrown out if the evidence is insufficient or incredible. But if a person is charged under the general arrangements in a country such as Turkey, Greece, Cyprus or France the position is different. Such a person will be committed on demand.

The safeguards set out in Clauses 3 and 9 have nothing to do with this matter. I hope that the Minister will not go into a long description of the safeguards. We have already seen them. They are to do with political offences, racist matters and so on. That is not the point which we are discussing. The point is sufficiency of evidence. Such requests may be ill-considered, trumped up or simply mistaken. That must concern us, as it always concerns those who have dealt with extradition matters as I have on a number of occasions. I believe that the Minister will agree that most of the cases which fail at magistrate level do not fail because of lack of understanding by Frenchmen or Italians or Dutchmen who do not comprehend what the prima facie rule is about. They fail because the evidence which is sent over is simply not adequate and because no one ought to have to stand trial on evidence of such quality.

I have appeared for a number of foreign governments on difficult extradition matters. It does not take a vast intellect to describe to a representative of a foreign government the magic words "prima facie", even if that representative has had no education in Latin, as it is likely that he will have had because many systems are based on the Code Napoleon. It is easy to tell such persons in English that they must produce credible evidence to the extent that an ordinary jury will feel that it can convict on that evidence alone.

If I may, I shall take a little more time in discussing this matter because it is so important. I should like to ask the Committee to bear in mind the Hayward case in Sweden. No doubt your Lordships saw that some of the evidence which was produced to the court was evidence that the British police had gleaned from a reliable source which they could not name to the effect that Mr. Hayward was a dealer in drugs. I do not know what the Bow Street Magistrate would think if somebody appearing for a foreign government tried to put that kind of evidence before him. I suspect that he would say, "I do not want to hear that. Get on with the real evidence". No doubt the rubber stamp would be applied to such evidence in order to see that we are not the black sheep.

Perhaps I may also remind the Committee of the so-called football hooligans who have gone to Belgium. What would the public outcry have been like in this country if all those young men had been sent off to Belgium on the papers alone and without the slightest inquiry into the evidence or the slightest opportunity to look at the evidence? In that case, the proper procedures were followed. It is true that there was a slight hiccup in them. However, the proper procedures were followed and most people would feel that the commital was proper. The evidence was presented, the families could see it, the neighbourhood people could see what it was all about, and those young men were sent off in the proper way.

I should like to finish with one other example which is topical. A few weeks ago, as the Minister will know, a request from Germany was allowed to go forward by the Home Secretary for the return of a young man for an alleged offence of rape in Cologne. One and a half years after the complainant saw this young man in a bar in Cologne and alleged that he was the perpetrator of the offence. The man was arrested when he came back to London and duly appeared at Bow Street magistrates court a week or so ago. There was no corroboration of any kind of this complaint and the evidence did not fulfil in any way the requirements that we need here for proper indentification. As a result, the magistrate had no hesitation in throwing out the case. Presumably, again under this clause, that young man would have been despatched to Cologne to be tried on a charge of rape.

This is, I suggest, another attempt to streamline a procedure which directly affects the freedom of the individual by removing essential safeguards built into the system. We are the only country in Europe prepared to extradite our own citizens; there is no reciprocity at all. Yet here we are falling over ourselves to adopt part of the European legal system and to pin it on to our own.

Of course, we must make our procedures efficient. Of course, we do not wish to oppose anything to that end. But it is essential in our common law system, I would suggest, for there to be a judicial stage between the executive authority and the citizen to see that the evidence is sufficient and in proper form and that the executive has followed proper procedures.

There is a half-way house, and I mention it for the attention of the Minister. If the Government could give some assurance that they would seriously contemplate this half-way house it might go some way to satisfying some of us who are deeply disturbed about the implications of this clause. Some countries which have ratified the convention have filed a reservation that they should be allowed to demand a prima facie case in any case if they so wish. I ask the Minister: is there any reason at all why this country should not do precisely that?

For instance, Norway, in ratifying the convention, has added: The Norwegian authorities reserve the right to require the requesting Party to produce prima facie evidence to the effect that the person claimed has committed the offence for which extradition is requested. The request may be refused if the evidence is found to be insufficient". That has been filed by Norway. Israel has done much the same in more simple words, as also, I think, other countries have. I ask the Minister to explain to the Committee why this Government should not do exactly the same. I beg to move.

5.15 p.m.

Lord Elwyn-Jones

If this is a convenient moment, I rise to support the amendment. Subsection (4) is one of the most brutal and remarkable provisions in an Act of Parliament or in a Bill that I have seen. It states: Where an Order in Council such as is mentioned in subsection (8) below is in force in relation to the foreign state, the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court". I understand that ever since the Battle of Waterloo it has been an essential feature in extradition proceedings that a foreign country seeking to extradite someone from this country to be tried in their courts should have to show enough evidence to warrant a trial. That is the simple language of the prima facie rule. That test is not an unusual test; indeed, it has been the minimal requirement in our courts at all levels ever since the beginning of relevant legal time for the purposes of this matter, at any rate, for over a century and a half ago.

Just as individuals should not be committed for trial unless there is some evidence which, if accepted, would entitle a reasonable court to convict, neither should individuals be deprived of their liberty and sent to a foreign country to stand trial if that country has no evidence which, if accepted, would justify a conviction. Here, there is a most extraordinary breach in the doctrine of equality before the law. To abolish the prima facie rule would be to establish a double standard. And a British citizen might well be involved depending upon whether he is accused by foreign authorities or by domestic authorities. If he is accused at home and can be dealt with at home, the prime facia rule must be established; but if he is accused by an Italian court, by a Spanish court, or whatever the court may be, he does not have the basic initial protection which the courts have always insisted upon and which accused persons have had the benefit of.

We submit strongly on this side of the Committee that it is quite wrong that a British national or indeed any national who is in this country should be extradited to face trial abroad on the basis of evidence which would not be sufficient to commit him or her for trial should he or she be prosecuted in this country. It imposes complete inequality of treatment as between one proceeding and another. As stated in the admirable speech of the noble Lord, Lord Hutchinson, who has spoken with great experience and considerable authority in this matter, it is significant that Commonwealth countries apparently have found no difficulty in complying with the evidence rule. If it is a matter of technicality or really serious technical confusion, our Director of Public Prosecutions is willing to make his services available to assist.

The prima facie rule that we insist is a cardinal principle in our system of justice is to ensure that evidence exists which justifies putting a man on trial. Sending him out of the country is quite an ordeal, quite a business. The power that we are giving is no light matter. It is a very serious step. We take the view firmly that this will be a most retrograde and dangerous step from the point of view of the liberties of the subject or the resident of this country who may find himself in difficulty. We greatly hope and expect that on second thoughts this dangerous provision will be removed.

Lord Campbell of Alloway

Let me say briefly—because I have said in substance on another amendment everything I wish to say—that I oppose the amendment. In doing so I say at once that everything said by the noble and learned Lord, Lord Elwyn-Jones, is wholly well-founded on the assumption, of course, that it is the court that has to continue to consider whether the evidence would be sufficient. That is wholly well-founded and I take the point that it may well appear to be a retrogressive step.

I also take the point of the noble Lord, Lord Mishcon, that this is the heart of the matter and the simple question of the debate. Is it to be the court of committal that considers the evidence or is it to be the Secretary of State? So far one finds a firm basis upon which to argue; but it is at this point that I part company, and I do so for the following reasons. First, I do not think it is fair to assume, as I think the noble Lord, Lord Hutchinson, assumed, that the Secretary of State would not act without due inquiry; that he would, so to speak, rubber stamp; that he would have no regard to the interests of the subject; that he would act in an arbitrary fashion or that in any way he would act contrary to the interests of justice and refuse to entertain all reasonable representations. I cannot accept that any Secretary of State would so act and, if he did, there is a process of judicial review which would control his actions.

Lord Hutchinson of Lullington

Can the noble Lord point to any provision in the Bill for making representations or being heard on the matter?

Lord Campbell of Alloway

I am obliged to the noble Lord. Perhaps I may deal with his most helpful interruption at a later stage because I am seeking to save time. I am trying to deal with the nub of the argument as advanced and I accept that there are two points of view.

The other matter which I wish to put before the Committee is simply this. It may be unfortunate to abolish the evidence rule, certainly as regards the order in council states which are foreign states which have ratified the convention. However, there is a wider concept and there is a price to pay for it. In the fight against international crime there is a serious dimension with which we are all now faced. The element of reciprocity demands a sort of a price. That sort of a price is that we should accept the same type of administrative system for seeing whether the evidence is sufficient instead of the judicial system. I see noble Lords opposite shake their heads and I understand why they do so. However, there is another point of view and it is that other point of view that I am seeking to put because, as I see it, it is worth the price one pays. It is a question of reciprocity in combating international crime.

As regards Lord Hutchinson's point, I invite the noble Lord to repeat it because I have forgotten what he said.

Lord Hutchinson of Lullington

I just wondered whether the noble Lord could point to any provision in the Bill for the accused person to have the right to make representations and deal with the evidence so-called.

Lord Campbell of Alloway

I am much obliged to the noble Lord who raises a very important point. There is no provision in the Bill, as I see it, but it is wholly implicit, as I understand the law of judicial review, that if the Home Secretary were to decide to make an order—an order considering what evidence before him is sufficient to warrant the trial of an arrested person—and he makes that decision without allowing due representations to be made, how could it be said in the Divisional Court that he had complied with the requirements of natural justice? I give the noble Lord this point. There is no reason why, in this Bill or in a schedule to this Bill, there should not be an express provision. I regard that as totally implicit as a matter of law. If I am wrong on that let us have belt and braces and provisions to ensure that the Secretary of State—the Home Secretary—truly entertains all representations made. I should have thought, with respect to the noble Lord—and I would never dream of seeking to educate him—that there is no need for any such provision.

Lord Irvine of Lairg

This is a subject on which I had the privilege of speaking on Second Reading. Ever since 1870 it has been the law of this country that a foreign state which requests the extradition of a suspect must produce to the English courts prima facie evidence of the suspect's guilt. It is an important civil liberty and I trust that when the Minister replies he will acknowledge that. The evidence must be such as would justify the individual being committed for trial in this country if the crime of which he stands accused had been committed here. Therefore, the citizen who is faced with the risk of extradition has the benefit of the same standard of justice as he enjoys if he faces prosecution in this country. However, if the amendment fails that protection, that civil liberty, simply goes.

Clause 6(4) allows this prima facie requirement to be removed by means of an Order in Council dealing with the extradition arrangements that exist with a particular state. On Second Reading I put forward the reasons that convince me, as they do many other practising lawyers, why an important civil liberty is being needlessly removed. I cannot understand why the Government are so determined to remove the protection of the prima facie requirement. Perhaps the Minister will tell us.

The removal of such protection means that the requesting state will, as the noble Lord, Lord Hutchinson, said, in practice have to do no more than name the suspect and give bare particulars of the alleged offence. Therefore, for a certainty extradition will become an executive act. It will not matter that the evidence is so weak that in this country the case will be thrown out at the committal stage. It will not matter if the foreign state has barely begun its preparation of the case against the citizen of this country whose extradition it is demanding. The citizen will be removed to a foreign country and no doubt will be imprisoned while the case against him is being prepared for trial.

The provision in Clause 2(5) for annulment of the Orders in Council, which take away the prima facie requirement in respect of particular countries, is no answer. On the contrary, by this procedure the Government seek to deflect attention away from the real issue by suggesting that the sole issue is a judgment on the quality of the legal system of the foreign state in question. Therefore every time an Order in Council abolishing the prima facie requirement in respect of extradition to a particular European country comes up in this House, where the issue will be to annul the order or no, I do not doubt that we shall be told by the Minister that the only issue is whether we trust the legal system to which our citizens are being consigned. We shall be told that we are being little Englanders if we express any doubts. The Order in Council procedure should not be allowed to put the debate onto a false ground.

On Second Reading I ventured to suggest that we have a high regard for the judicial systems of our continental neighbours but we simply say that before this country imposes, particularly upon its own citizens. the burdens of ejection to a foreign country, where a foreign language is spoken, with custody, interrogation, delay awaiting trial, trial in unfamiliar surroundings and possibly imprisonment—all experiences which are evidently so much more burdensome than similar experiences here, where lawyers, family and friends are readily to hand—in this country there should be a judicial examination of the evidence to see whether it justifies the imposition of the burdens.

We say that the Order in Council procedure is wilfully forcing this debate onto a false issue. The false issue is a judgment on the quality of the legal systems of the countries in question. That is emphatically not the issue. We shall not be deflected from what is the real issue. The real issue is whether we should sanction our citizens being delivered up to any foreign state unless and until an English court has been satisfied by evidence that there is a case to answer. That is not much protection to ask for. It is no obstacle to extradition in a proper case. The Director of Public Prosecutions is there to give assistance with our laws and procedures to foreign states if they need it.

With respect to the noble Lord, Lord Campbell of Alloway, I would say that the Home Secretary's discretion is no protection whatever to the individual, because the Home Secretary is not required under these provisions to consider the evidence. There will be no evidence on which he could exercise any discretion. That point simply does not arise.

I would agree also with the noble Lord, Lord Hutchinson, that the United Kingdom is entitled to accede to the European convention on extradition while making a reservation on the prima facie requirement. That is what some other countries have done. It is what we should do if it is thought necessary to accede to the convention.

The Minister presumably would not deny that the prima facie requirement is an important civil liberty. It is one that has stood for well over 100 years. We look forward to hearing a clear explanation from him as to why the Government think it necessary to remove this liberty.

5.30 p.m.

Lord Trafford

I feel slightly uncomfortable about this amendment as it stands. It does not seem to me that it can be argued that there is any obligation on a Home Secretary to do other than make up his own mind or to take any advice. There is nothing here that compels him so to do. There is nothing that gives the accused person the right to any form of appeal.

It may be administratively tidy, compared with our continental colleagues or others, and it may be administratively convenient, but I do not think that that is necessarily an excuse for querying, to say the least, what has been a fundamental civil right of all our citizens for a long time.

For those reasons I would feel much happier about the clause if the Minister could reassure us that he will at least look at this provision again with a view to having some form of judicial review and right of appeal or even a statutory obligation on the Home Secretary to take legal advice on this matter.

Lord Hylton

As a mere layman who has listened to this debate I should like to draw attention to the distance factor. If a British citizen is extradited to the north of France or Belgium he is not put at enormous risk, but if he is taken away to Turkey or Israel and is acquitted, who will pay for bringing him back to England where he belongs? I should be grateful if the Government could throw some light on that point.

Lord Harmar-Nicholls

At this stage of the Bill most of the Members of the Committee should consider themselves, as I do, as members of a jury. I have listened to the arguments. I am speaking before my noble friend speaks from the Dispatch Box. He may have to give some indication about a matter which does not appear in the Bill at the moment. It is early enough in the Bill's passage for him to do so without any loss of face. It is clear how one should approach this matter. The noble Lord who moved the amendment, and his supporters, are being legal purists. There is nothing wrong with that. They argue that the tradition that has worked for so long, and we think so fairly, should not be altered.

My noble friend Lord Campbell of Alloway did not enlarge on the point that he made, although I wish that he had. He made a most significant point which gave me doubts about the matter. He asked whether we should adhere strictly to the purist tradition.

When the rule of evidence and the prima facie rule started the world was different from the one in which we now live. He pointed out that whereas it was right, just and absolutely supportable to consider these matters in the old world, we must face the fact that with terrorism and the other things that happen today, however much we admire our traditions in these matters and our freedom under the law, we are working in a different world. We should perhaps face up to that.

The idea of having to come neatly into line with the European convention does not impress me very much. I do not think that neatness is ever a strong argument. We must face up to the new world. We often have evidence of how people nitpick and use our old, firm and purist way of administering justice to delay real justice being applied. Do we want to consider and maintain the purist approach without recognising all that goes on in the world, with all its new inventions, which enable us to intermingle in a way which was not thought of when we made the original laws which are now being eloquently defended? We must face up to the new world.

I go a long way with the suggestions made by my noble friend Lord Campbell of Alloway. If there is a vote on this amendment one should vote in support of the Bill as it stands. I do not think I could do that with any joy unless my noble friend can say that, although facing up to the dangers of the present world, representations can be made to the Minister to replace the prima facie requirement which is being defended.

Unless my noble friend can indicate that during the future stages of this Bill we shall insert a definite procedure so that the Minister who has to make the decision is in possession of the facts, I have no enthusiasm to go further than this stage of the Bill, and to allow subsection (4) to remain.

The Earl of Onslow

The argument seems to be that some of us on this side would be just about "happyish" if the Minister took his decision with evidence. It strikes me that it is not the Minister's job to hear evidence. It is the job of the magistrate. Therefore why do we not leave it exactly where it is? Why should we give foreign governments powers over our citizens which we do not take ourselves? This line of argument that terrorism is on the increase, we can cut a corner here or there, we can let the Minister do it, he does not have to have the evidence, fills me with dread. That is not the England in which I live—at least, I hope that it is not. I hope that we say that there are certain standards of justice up with which we shall be determined to keep. (I nearly became seriously tied up, remembering not to put the preposition at the end of the sentence)!

That is how I feel. I have not heard anything which makes me think that the case for overriding our historic liberties has been put with any conviction. I have to be convinced rather than simply palmed off by arguments that the Minister will see it through all right. That does not make me happy at all.

Lord Donaldson of Kingsbridge

It is not always that I can agree wholeheartedly with the noble Earl, Lord Onslow. This evening I do.

Lord Harris of Greenwich

Perhaps I may speak very briefly. I listened, as I am sure we all did, to the speech made by the noble Lord, Lord Irvine, on Second Reading when he raised some of these questions. Notwithstanding the fact that I listened to that speech with, I hope, some care and attention, I started off this debate as something of a neutralist on the issue. However, as the debate has proceeded I have become increasingly uneasy about what we are asking to be done.

First, let me make it absolutely clear that, as is known, I take as strong a view about the need to deal with international terrorists as anybody in this Chamber. But I am bound to say that I do not consider that the use of words like international terrorists, or international crime, constitutes an argument in favour of what we are being asked to agree to this evening. Given the deep anxieties which have been expressed on both sides of the Chamber, I very much hope that when the noble Earl speaks he will indicate that he is prepared to go into these major questions of principle between now and the Report stage. I think that it would be very unfortunate if we are forced to divide the Committee in a few minutes' time. The arguments on both sides of the Chamber and from the Cross-Benches have indicated the degree of concern. I very much hope that in the spirit of those expressions he will indicate that he is prepared to look very carefully again at what is set out in this subsection.

Lord Boyd-Carpenter

I should like to add one word to the appeal which has has just been addressed to my noble friend. I have listened to the whole of this debate and I must confess that I have been left distinctly unhappy about the proposals in the Bill as they stand. I appreciate my noble friend's difficulties. Indeed, I have some sympathy with him in the experience which he is going through this afternoon, and may have to go through on other afternoons and evenings.

However, as the Bill stands it amounts to asking some of us to swallow a great deal. If decision on extradition is to be transferred from the courts to the Secretary of State, there is no doubt an argument for that. But in the process to take away from the person concerned any safeguards, any opportunity to seek to resist the application for extradition—with full argument, with evidence, with representation by counsel—is creating a very difficult situation.

I appeal to my noble friend not to start what will be a long journey on this Bill by putting some of his noble friends in a position where they are unable to support him. I hope that he will feel that it is not in the interests of the Government or of the process of the Bill to do that, and that he will feel able to give some assurances of a convincing and I hope detailed character which will help to reassure those of us who, after listening to this debate, have been left in a state of considerable unhappiness.

5.45 p.m.

The Earl of Caithness

As the noble Lord, Lord Hutchinson of Lullington, said, his amendments go to the very heart of one of the principal changes proposed in Part I of the Bill, which is to enable the United Kingdom to enter into extradition arrangements with foreign states which do not require the requesting state to establish that there is a prima facie case against a fugitive. Let me say at the outset that it is not the Government's policy to abolish the prima facie case requirement for all extraditions. The requirement will remain for Commonwealth extradition, and it will remain for all extradition to foreign states with which we have at present very little traffic under existing treaties. It may well prove possible to replace such treaties with a new power to extradite on an ad hoc basis (that is without a treaty), but the ad hoc extradition power will retain the prima facie requirement.

The rationale for this is very straightforward. Our experience with those countries with whom we have a good deal of extradition traffic—principally Western Europe and the USA—enables us to accept that their internal judicial standards fully reflect the sort of standard which we look for from our own criminal justice system. In respect of such countries we propose that the prima facie rule should not apply. The reforms of the Bill will enable us to participate in the European Convention on Extradition which is the arrangement by which most extraditions take place among European states.

I know that it has been argued, for example, by the Criminal Bar Association, and indeed by some Members of the Committee today, that it is one thing to have faith in a country's judicial system, but it is another to have faith in its executive. I do not accept that this is a problem because while the request for extradition is made by the executive, that request will be founded on judicial documentation. I totally refute the allegation of the noble Lord, Lord Hutchinson of Lullington, that it is intended that the changes proposed in the Bill will lead to fugitives being extradited merely for the purpose of interrogation. Article 1 of the European Convention on Extradition obliges the contracting parties to surrender to each other subject to the provisions of the Convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order". To summarise that point, which is important, the competent authorities of the requesting state have to be proceeding against that person in any event.

It has also been argued that the Bill's evidential reforms remove the need to abolish the prima facie requirement. These reforms would certainly be of assistance to foreign states seeking to meet the requirement. But they would not remove the objection of principle which is felt very strongly in Europe. The objection is that it is wrong, and indeed offensive, for the United Kingdom to distrust the prosecution authorities of European states so as to demand them to satisfy an English requirement. Considerations of principle apart, the prima facie rule would still constitute a considerable hurdle even with the proposed evidential reforms. It would still be necessary for foreign states to procure evidence which did not infringe our hearsay rule. There are very real difficulties faced by other countries in putting together a case for a form of proceedings entirely outside their experience. This is more than just a question of administrative convenience. It can affect the willingness of other states to begin proceedings and their ability to mount a succcessful case.

Some states are fed up with us, said the noble Lord, Lord Hutchinson of Lullington. I would go much further. One European country has told us that, against the background of a failure of up to half its extradition requests to the United Kingdom, it decided to make requests in respect only of the gravest offences. The clear implication of this is that serious offenders are known to be in the UK but no attempt is being made to extradite them. Another European country explained that its experience of the prima facie requirement was so bad that it declined to make a single extradition request for 10 years. More recently another European country with judicial standards beyond reproach has indicated that it is aware of the presence in the United Kingdom of many serious criminals but has made no attempt to seek their extradition because the judicial authorities concerned are either unable to perform the special procedures required to make evidence admissible in our courts or are unwilling to devise special procedures simply for that purpose.

The isolation of the United Kingdom in Europe in this respect cannot he exaggerated. Our country is regarded as one of the most difficult in the world from which to secure extradition. A situation in which the United Kingdom is widely regarded in Europe as a haven for serious criminals is intolerable. If this situation is allowed to persist then it would not be possible for the United Kingdom to make any calls for international co-operation to deal with serious crime, whether it be fraud, drug trafficking or terrorism, without being accused of hypocrisy.

During proceedings in another place in respect of this Bill in the last Parliament, a significant change was made to what is now Clause 2(5). This provides that where the United Kingdom enters into an arrangement with a state which does not require the presentation of prima facie evidence then the Order in Council giving effect to this arrangement would be subject to annulment. This means that if your Lordships' Committee does not feel that the Government's view of the reliability of the judicial system in a particular potential treaty partner is correct then that arrangement can be vetoed.

My noble friend Lord Campbell of Alloway was absolutely right when he said that the absence of evidence does not mean that the discretion of the Secretary of State is meaningless. Under the proposal in the Bill the United Kingdom may enter into extradition arrangements which do not require the presentation of evidence in a form technically admissible in English proceedings. However, this is not to say that extradition would be a step of blind faith. It would be necessary, for example, under the European Convention on Extradition, for the requesting state to submit in support of its extradition request the arrest warrant issued by its judicial authority, a full statement of facts describing the alleged conduct, evidence of identity and evidence of the law of the requesting state. In addition the United Kingdom as a requested state would have the right to seek further information in any particular case. This, coupled with the necessary information from a local British diplomatic mission, will enable the Secretary of State's discretion to be exercised, as at present, in a proper manner.

I reassure my noble friends Lord Trafford, Lord Harmar-Nicholls and Lord Boyd-Carpenter that representations can, as now, be made to the Secretary of State. But although there is at the moment no statutory authority for this, I think that it is something I should like to consider as an amendment for a later stage so that it is perfectly clear that the situation as at present is put into statutory form and that representations can be made to the Secretary of State at the time.

I move on from there to the point that my noble friend Lord Campbell of Alloway made on judicial review. He is right. If the Secretary of State acts wholly unreasonably, then his decision to issue an order to proceed could, we believe, be quashed on an application for judicial review. It is not in the Bill, as the noble Lord, Lord Hutchinson of Lullington, pointed out. But, as my noble friend said, it is in the law and it is his very clear understanding, as it is ours, that it is a wholly reasonable safeguard and one that the Committee should not lose sight of.

The Earl of Onslow

Would it not be the case that if there were an application for judicial review the bloke would be in prison on the other side of the Channel before the judicial review could even be started?

The Earl of Caithness

That is not my understanding of the situation. As I understand it he would in all probability, if a request for judicial review was made before the extradition, still be in this country.

The noble Lord, Lord Hutchinson of Lullington, said that it is wrong to authorise extradition merely on the basis of an executive request. But I should point out to him and to the Committee that that is the situation now. Our arrangements with Ireland apart, extradition is a matter between states. It is no criticism to say that an extradition request is made by the executive of the requesting state. This is because the request is founded on judicial documentation and for the purpose of judicial proceedings. I beg to differ with the noble Lord, Lord Irvine of Lairg, about the amount of stress that he puts on prima facie as an important civil liberty. Prima facie is not a feature, for example, of our extradition arrangements with the Republic of Ireland. I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case.

The noble Lord, Lord Hutchinson of Lullington, drew the Committee's attention to the fact that certain Scandinavian countries have reserved the right to demand evidence in certain cases. But this does not amount to a prima facie requirement as in our existing law. Those states do not, except in the rarest cases, oblige requesting states to submit evidence and, so far as we are aware, never in the form required under our present law. The purpose of these reservations is to enable a fuller assessment to be made of doubtful cases. In the United Kingdom it would not be sensible for this to be in the form of a prima facie requirement to be considered by the courts ad hoc. These issues are much more satisfactorily dealt with in the round.

Under the European Convention on Extradition it will be the United Kingdom's right in such cases to demand further information in respect of a particular case to supplement the statement of facts which would have to have been provided in support of the extradition request. This, taken with the background information on the conditions of justice in the requesting state and on the likely proceedings which the fugitive would face, would enable the Secretary of State to exercise his discretion to refuse extradition if that seemed appropriate.

The noble Lord, Lord Hylton, raised the question of the return of acquitted persons. It is a matter for the requesting state to repatriate the fugitive. We should be obliged to do this for ourselves under Clause 17. The relevant extradition treaty will cover the point that the noble Lord had in mind.

I believe that there is a very good case for leaving the Bill as it is and for this Committee not to support the amendments of the noble Lord, Lord Hutchinson of Lullington. The initial discussions that took place were very much in favour of the noble Lord, but I hope that I have been able to satisfy my noble friends that there is a good case and that there are the necessary safeguards. I confirm that I wish to look at that particular point and to put it into the statute that representations can be made to the Secretary of State. We have to give very serious consideration to whether we wish to continue to let the United Kingdom be the odd man out in Europe and in effect to say to the rest of Europe, "We do not believe that your system of justice is as good as ours and that we cannot trust you to the extent that we trust our own courts".

6 p.m.

Lord Mishcon

We have listened to the noble Earl with great attention. I am surprised, if I may say so with deep respect, that he has failed to catch the mood on all sides of the Committee. I say that with some emphasis. He has not in any way yielded by agreeing to withdraw the clause. The only comment that he has made which is of the slightest use—I say this with all politeness—is that he will consider an amendment to deal with representations being made to the Secretary of State.

The question of judicial review has been mentioned. If the representations made to the Secretary of State consisted of requests to consider the fact that there was absolutely no evidence produced anywhere against a British citizen for whom extradition had been wanted, I assure the Committee with every sense of responsibility that the learned judges who tried the issue of judicial review would have to say this "We cannot give any consideration at all to the matters that have been raised as to whether there has been any case at all made against the accused by virtue of the fact that Parliament has decided that in this particular case the question of a prima facie case against the accused is irrelevant".

So that carries us nowhere from the point of view of rights. When we were talking before about the liberty of the subject we were talking about matters upon which there ought not to be—and I am sure there are none in this Committee—party divisions. There is no question of a victory for one side or the other. It is only a question of a victory for a principle that all sides of the Committee hold dear.

Before we take away from the courts the right of protecting the liberty of the subject—our own subjects who are the subject matter of an application for extradition, with all that entails—ought we not to consider exactly where we are going? My noble friend the Minister—I call him my friend—has said that we are in danger of giving offence to our European colleagues. Where that offence lies, I know not. What I do know is this. If, as he says, the only remedy in regard to an Order in Council which would extend this matter to other countries and so on was that Parliament could annul the order should it find itself dissatisfied with the system of justice of the country involved, is he inviting Parliament to become rather more offensive to any such country that we ever could be by retaining our right while signing the convention in regard to Europe, by saying that we wish to retain the condition that a prima facie case should be made? Do we also know where we are going in this direction before unfortunately we have to divide the Committee, which is what we shall have to do unless the Minister can be very much more forthcoming than he has been up to now? Many of us will regret having to divided the Committee. I point out to the Minister that it would be so much more sensible if he would withdraw the clause and come back with something which might be acceptable to Parliament.

Do we know where we are going in this direction? Is it not completely obvious that the people we shall be insulting will be the Commonwealth and other countries that are absolutely content with the issue as we now have it; namely, that they have to make a prima facie case? Is it not obvious that if we pass this provision then before we know where we are the Commonwealth will say to us: "You have done this for Europe: do you think our systems of justice are inferior to those of Europe? Please remove this from our requirements too"? That will apply also to those other countries outside Europe with whom we have diplomatic relations.

I would only remind the Committee, before drawing my remarks to a conclusion—because I think we have had an extensive and clarifying debate—of the kinds of people with whom we have had extradition treaties for many, many years. We remind ourselves how, when we entered into them, their political regimes were eminently respectable. We look upon the evolution of their history politically with some amount of pain. For example, we have had an extradition treaty with Chile continuously since 1898; we have had one with Argentina ever since 1984 and we have had an extradition treaty with Greece since 1912. I need not remind the Committee of what their political histories have been in some of the darkest hours.

Are we to start the ball rolling down a very precipitous path by saying we realise that before long we shall have to give up the prima facie requirement with all countries with whom we have diplomatic relations, because otherwise—to use the language of the noble Earl—we shall he "offensive"? I hope he will think again about this and, if he does not, could the Committee encourage him to do so by voting correctly in the Division Lobby?

Lord Boyd-Carpenter

Will my noble friend clarify the answer which he gave to our noble friend Lord Onslow in respect of what would happen in the event of judicial review? Is the Committee to understand his answer as indicating that in the event of an application for judicial review the person concerned would not be extradited until the proceedings on that application for a judicial review had been concluded?

The Earl of Caithness

That is my understanding, but I should like to check that point precisely so that my noble friend may be assured that I am correct in my belief about it, because it is important.

While I am on my feet, perhaps I might just say to the noble Lord, Lord Mishcon, that as regards the Commonwealth it is right to say that all the members of the Commonwealth are quite used to the prima facie requirement, as that is their normal method of law. Therefore it is nothing strange for them to have to present a prima facie case in their own countries.

Lord Mishcon

I am sure the noble Earl will forgive me if I immediately dash to the Dispatch Box and say that that was not my point. My point was that if it is offensive to Europe to say that we still want the prima facie requirement, is it not quite obvious that in due course members of the Commonwealth will say to us that they equally do not wish to have the prima facie requirement? Members of the Commonwealth vary in their systems of justice. I am using, I hope, moderate and careful words, and there may be occasions when members of the Commonwealth are not so accustomed to the prima facie rule and indeed do not have it in their own countries. We shall be in a position of great difficulty, if not in actual danger of doing something adverse to the interests of the citizens of this country, and I beg the noble Earl once again to take on board the atmosphere of the Committee and withdraw the clause for the time being.

Lord Harris of Greenwich

May I put just a very brief point to the Minister? Let us suppose that a British subject goes on holiday to Italy. On his return to the United Kingdom an allegation is made that he has committed a serious assault while on holiday. He makes representations—assuming we are going to get representations—to the Home Office, saying "it was not me; it was somebody else". In that case who precisely makes the judgment? Here is a clear conflict of evidence. An official will presumably either recommend acting in his role in reality as the Bow Street Magistrate, that he will accept the view of the Italian authorities and their evidence or that of the British subject who vigorously denies the allegation.

The noble Earl will know that on a whole series of matters of this kind in this country, evidence of identification is very often one of the most difficult issues coming before a court. Indeed it is so difficult that on one particular occasion a Home Secretary had to ask the noble and learned Lord, Lord Devlin, and a committee to go into this particular question. Let us just assume in this particular case that this British subject who is alleged to have committed this offence in Italy is then extradited. One should have no doubt that he will go straight into prison while there. Given the problems of the Italian authorities—not dissimilar to our own, but rather worse he will be kept in custody for a substantial period of time. A year to 18 months is by no means unusual in Italy. Then, some evidence comes before us that there are serious grounds to doubt whether he was properly identified.

Can the noble Lord not recognise the degree of anger that will exist over the way this British subject has been treated? He would have been extradited from this country solely on the basis of what is in reality a certificate from the Italian authorities and no more. I say this not because I criticise the Italian system of justice. As I have indicated, we have often made the gravest errors ourselves in this respect. However, if we go down this path, it seems to me that it will not be long before Parliament is obliged, as a result of grave public disquiet, to change the law.

On the basis of the arguments put forward in the debate, I very much hope that the noble Lord, notwithstanding what he said a few moments ago, will agree to go into these questions between now and Report.

Lord Elwyn-Jones

May I put a matter very directly to the Minister of State? Is it not the case that as the Bill stands there is no requirement whatsoever that the Secretary of State shall consider the evidence relating to the alleged offence or the alleged offender and, there being no such requirement, there is no room for judicial review?

Lord Hutchinson of Lullington

To reply briefly to what has been said, I wish to make four points. First, the Minister has said nothing about the extra territorial point—this surely worries every noble Lord in the Committee—that we send back our nationals and other states do not reciprocate. That, I suggest, is a matter for serious concern.

Secondly, I want to meet what I call the dinosaur argument —the words that fell from the lips of the noble and learned Lord, Lord Hailsham, on more than one occasion—of those who wish still to defend some of the ancient liberties of this country. As to the prima facie case, if I may say so with respect, it is not a question of living now in a modern world and that with progress, as the noble Lord, Lord HarmarNicholls, said, we all advance and the prima facie principle becomes old and dinosaur-like—

Lord Harmar-Nicholls

I did not refer to what I had in mind as "progress". It is because of terrorism, which is the opposite of progress, that I have been brought to the view that I tried to explain.

Lord Hutchinson of Lullington

I am grateful for the correction. There is an idea about that one can sweep away juries and the rights of citizens not to incriminate themselves and so on because these provisions are old and out of date and we are advancing into a modern world. In my submission, one has to advance. But, when advancing, one has to preserve the fundamental civil liberties and freedoms of which we are so proud.

This country is not a "haven for criminals"—that emotive phrase. One has only to go down to Bow Street magistrates court where all the expertise of extradition is and suggest that. As I understand it, those at Bow Street are horrified at the inclusion of the clause in the Bill.

The Minister has told the Committee that he receives a full statement of facts. If he receives a full statement of facts, why on earth should the accused person not see the statement of facts? Why on earth is there not included in the Bill the right of the accused person to see the statement of facts? How can he make the representations about which we have heard so much if he has nothing in front of him about which to make representations? As far as one can see, there is no provision in the Bill for the accused person to have presented to him any evidence on which he can make any sensible representation at all, let alone bring those matters before a court of appeal.

On judicial review, I do not want to add to what the noble and learned Lod, Lord Elwyn-Jones, has said. Perhaps some of those sitting on the Cross Benches would have a view about this. But what the court is enjoined to do is to be found under Clause 6(8). Referring to the document sent by the Home Secretary, it says that, Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations … that the offence to which the authority relates is an extradition crime". then, the court must commit. In my submission, there could not be any judicial review if those instructions are followed and carried out. We have had no authoritative reply to that. I support what the noble and learned Lord, Lord Elwyn-Jones, has said about judicial review.

The Minister has referred to the fact that Article 1 of the convention speaks of "proceeding for an offence". That, of course, in no way prevents a person being taken back to the country perfectly genuinely and properly if that country is proceeding for an offence. When the person is brought back, he will appear before the juge d'instruction and in the normal course of events, according to that judicial system, he will be interrogated as persons are if they are brought back and face a charge or a matter proceeding towards charge.

I do not wish to take up the time of the Committee any further. It is a great sadness that the Minister has not been able to give anything in this matter.

6.15 p.m.

The Earl of Caithness

I am grateful for the opportunity to intervene and comment on one or two points that have been made. I confirm to my noble friend Lord Boyd-Carpenter that I was right in what I said about judicial review. I can tell the noble and learned Lord, Lord Elwyn-Jones, that I have information that it is possible to take the matter to judicial review.

The noble Lord, Lord Harris of Greenwich, mentioned a theoretical situation regarding an Italian holiday. He mentioned that the Home Secretary would have to decide whether the representations were so well-founded that he should ask for more details from the foreign government or whether, in good conscience, he simply could not allow the extradition to go ahead and so would weigh the evidence at that time.

The noble Lord, Lord Hutchinson of Lullington, observed that there is nothing in the Bill to say that the accused would see the evidence. But, of course, the accused will see the statement of facts and all the papers. This is because the court will follow the usual procedures of a court of committal in English cases except in reviewing the evidence. Therefore, the accused will see the statement of facts.

The noble Lord correctly said that I had not commented on the extradition of nationals. I apologise for that. As I said earlier, because of the peculiar system of criminal justice in the United Kingdom, it is one of the few countries in Western Europe to extradite nationals. Most Commonwealth countries do so, as do the United States of America, the Republic of Ireland and Italy. I can confirm that I was right when I said that the Dutch will bring a law into effect on 1st January next year permitting them so to do.

I say to the noble Lord, Lord Mishcon, that of course I am fully aware of the feelings of the Committee. Nobody in my position, having listened to the arguments, could be anything but aware of what was said. But he would not disagree that I had to give a robust defence and what I believe to be the right answer in supporting what is in the Bill.

Notwithstanding what I said earlier, it is right that I should look at this again. It is clear that it is of concern to the Committee. I hope that the noble Lord, Lord Hutchinson of Lullington, will withdraw his amendment on that assurance. I thought it was right to give a strong response so that I could elucidate some information from the noble Lord, Lord Mishcon, who had not at that stage spoken and whose contribution is, as always, vital to our debates. It has indeed produced some more thoughts from the noble Lords, Lord Harris and Lord Hutchinson of Lullington. I give the assurance that I will discuss this matter again urgently with my right honourable friend the Home Secretary and my honourable friend Mr. Patten, the Minister responsible. I can then come back at a later stage and indeed consult your Lordships between now and Report so that we can endeavour if possible to get something that will satisfy all sides.

Lord Hutchinson of Lullington

I am most grateful to the Minister for his conciliatory attitude. In those circumstances I will respond to that attitude and not take this amendment to a Division. However, I warn him that although the weather at the moment is only choppy, by the time of the next appearance of this clause it may have become quite substantially stormier.

Lord Elwyn-Jones

On behalf of this part of the Opposition I should like to thank the Minister for his undertaking to examine this as a whole and consult the House upon it. In the circumstances I understand that the noble Lord will in a moment or so withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 10: Page 7, line 23, after ("offence") insert ("or any of the offences").

The noble Earl said: This is a drafting amendment and I hope simpler for the Committee than the previous one. At present Clause 8 implies that the Secretary of State's authority to proceed will relate only to a single offence. The effect of the amendment is to make it clear that the magistrate must be satisfied that inter alia the offence or any of the offences contained in the Secretary of State's authority to proceed relate to an extradition crime. I beg to move.

On Question, amendment agreed to.

[Amendment No. 11 not moved.]

The Earl of Caithness moved Amendment No. 12: Page 7, leave out line 35.

The noble Earl said: This amendment corrects a drafting mistake in subsection (8). Line 35 should not be there. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 13: Page 7, line 42, at end insert ("and if it commits him to custody, may subsequently grant him bail if it considers it appropriate to do so").

The noble Earl said: I should like at the same time to speak to Amendment No. 14. The purpose of these amendments is to improve the drafting of references in subsection (8) to the power of the magistrate or sheriff to commit a fugitive on bail. At present the magistrate has no discretion in the matter. If he commits the fugitive it must be in custody. If the fugitive wishes to apply for bail he must do so to the High Court. It is obviously preferable that the fugitive should be able to be committed on bail by the magistrate or, if committed in custody, should if the magistrate so decides subsequently be released on bail. The purpose of these amendments is to simplify and clarify the provisions giving effect to these proposals. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 14: Page 7, line 44, leave out subsection (10).

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9 [Order. for return to requesting state]:

Lord Hutchinson of Lullington moved Amendment No. 15: Page 10, line 1, leave out ("may decide") and insert ("shall").

The noble Lord said: In moving this amendment perhaps I may also speak to Amendment No. 16, as they go together. Clause 9(2) reads: Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state under this Part of this Act— (a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State that".

Then there are three reasons—trivial nature, passage of time and so on. Under subsection (2)(b) at the moment, the Secretary of State may decide not to make an order for the return of a person accused or convicted of an extradition crime constituted by conduct not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the state by which the request for his return is made".

The power here is a permissive one. The Secretary of State may if he wishes decide not to send somebody back who is going to suffer capital punishment. The amendment seeks to change the wording of that clause and to say that the Secretary of State shall decide not to make an order for the return unless he receives a satisfactory undertaking by that state that the death penalty will not be carried out.

I quite see that to prohibit the Secretary of State from sending somebody back who is liable to the death penalty would mean that persons—for example, from certain states of America—who have committed murder would come to this country and would then know that they were safe from any possibility of capital punishment if they were extradited back to be tried. I also understand from what was said by the Minister in the other place when the abortive Bill was in Committee there that the normal procedure is for the Home Secretary to ask for an undertaking in the words of the amendment. In putting down this amendment I have followed the words of the Minister there. It seemed that if this is the normal procedure followed by the Home Office there could be no good reason for it not becoming statutory. The noble Lord, Lord Allen of Abbeydale—I do not see him in his place—raised this matter on the Second Reading of the Bill.

Article 11 of the convention specifically makes it possible for a state to refuse a request unless an assurance is forthcoming. At present the clause leaves the matter wide open, the Secretary of State simply reserving the right to refuse if he so wishes. All this amendment does is to tighten the obligation and make it mandatory on the Secretary of State not to return someone unless he receives the satisfactory undertaking mentioned in Article 11 of the convention.

Some countries that have signed the convention have in fact entered reservations on this matter. For instance, Austria has entered a reservation that it will refuse extradition requested in order to carry out the death penalty. Italy has entered a similar reservation, and I think a number of other countries too. I do not know whether those countries have become havens for American murderers or not, but it seems that a number of these European countries which are, as we know, whiter than white have entered reservations in signing the convention. I would ask the Minister why, as we have abolished capital punishment in this country, we too should not enter such a reservation if we adhere to the convention. I beg to move.

6.30 p.m.

Lord Roskill

I support this amendment. I am afraid that I was too late to support the noble Lord, Lord Hutchinson, on the last one. All this amendment does is to give effect to what has been the Home Office practice as long as I can remember, ever since capital punishment was abolished, and I think well before that. There is no reason why it should not be mandatory on the Home Secretary not to send somebody back on extradition if there is the slightest chance of his being put to death on his return.

The Earl of Caithness

I believe there is no difference between the noble Lord, Lord Hutchinson of Lullington, and the Government on the principle which is before us and which is raised by these amendments. We accept that a person extradited from the United Kingdom should not, if convicted, be executed. However, I have to say that the amendments which are before the Committee would, if accepted, have entirely unacceptable consequences.

Since the passing of the Murder (Abolition of Death Penalty) Act 1965 it has been the practice to negotiate in new extradition treaties a provision enabling extradition to be refused if the offence for which extradition is requested in punishable by death under the law of the requesting state but is not so punishable by death under the law of the requested state. Such provision is, for example, found in our treaty with the United States. As the Committee will be aware, it is possible for our extradition treaty to contain limitations on extradition which are not found in United Kingdom statute law. This is an example: a death penalty limitation is not a feature of the Extradition Act 1870. Our purpose in including Clause 9(2)(b) in the Bill is to endow what has become accepted policy with statutory authority for the purpose of international extradition treaty negotiations.

It is in respect of countries such as the United States that is is necessary for us to be cautious in the way we frame legislation on this subject. The difficulty relates to the federal nature of the United States system. The federal government are constitutionally unable to give any assurance in regard to the sentencing of people convicted of state offences. Murder is a state offence in the United States and in some states is punishable with death. It has been possible for the United States to undertake that, if the fugitive should be convicted, representations will be made in the name of the United Kingdom to the judge at the time of sentencing that is it the wish of the United Kingdom that the death penalty should not be imposed or carried out. In the several cases under our existing treaty with the United States where people who have been accused of offences attracting the death penalty have been extradited to that country, the United Kingdom's view has always been respected.

It may be helpful if I explain briefly the difficulty which I believe is raised by the amendments tabled by the noble Lord. They offer the real prospect of a person accused or even convicted of murder going free. As I have indicated, the United States for one cannot constitutionally give firm assurances about sentencing. If the person was not a British citizen he would presumably be deportable, but that would be a highly undesirable way of dealing with, for example, an underworld hit man. A British citizen who commits murder or manslaughter abroad is triable in the United Kingdom, but there could well be difficulties over mounting a successful prosecution here even though there is jurisdiction. As the noble Lord so rightly pointed out, some countries have an absolute bar on granting extradition where the fugitive would face the death penalty, but those countries, unlike the United Kingdom, usually have effective extra-territorial jurisdiction. I believe that that applies to the two countries that the noble Lord mentioned when he moved the amendment.

I am very grateful for the helpful way the noble Lord has approached this issue, which is reflected in the drafting of the amendments. However, they would oblige the Secretary of State to refuse extradition unless he received an undertaking that the death penalty would not be carried out. They leave the Secretary of State with no option but to refuse (whatever the nature of the offence) where he did not receive an unequivocal undertaking. This matter was raised in another place during the Committee consideration of the Bill's predecessor in the last Parliament. Following debate on the issue the Government considered the Bill's provisions afresh and, indeed, had cause to discuss again with the United States authorities the nature of the undertakings they were able to give in the context of an actual extradition case.

I have to tell the Committee that despite considerable time and effort it was not possible to come up with a more restrictive formula than that which appears on the face of this Bill. I can give an assurance that if we had been able to come up with a formula which placed greater restrictions on the Secretary of State without running the risks which I have outlined this evening, then we certainly would have done so. The central problem is that we doubt whether a country such as the United States would ever be in a position to give an absolute undertaking on the death penalty; and if the Secretary of State decided that he himself was satisfied with the undertaking, he could still be challenged on judicial review.

There is not much between the noble Lord and the Government on this matter. If we could have moved at an earlier stage we would have done so. I know that he would like me to take it away and have another look at it, but in all honesty, having done that throughout the summer and having gone back to America to discuss it with them, I feel that I would be misleading him if I said that we could come up with anything different, because the process would only be a repetition of what has happened. I fear that on this occasion we must agree to disagree, although our aims are pretty compatible.

Lord Harris of Greenwich

I am sure that our aims are entirely compatible. I do not think that there is anything between us on that. May I ask the noble Earl, for the purposes of clarification, whether he could go just a little further? As I understand it murder not being a federal crime in the United States—as he is right in saying it is not, save in the most special circumstances—the federal government is in fact acting on behalf of the state Attorney General. Would it not be possible, as part of these arrangements, to ask for an undertaking, given on behalf of the state Attorney General to the United States Federal Government that they would not move to execute a particular offender if he was extradited? Is that situation absolutely impossible? I am sure that the matter has been considered in detail, but it seems to be a reasonable request given our clear view in this country on the question of capital punishment.

The Earl of Caithness

I stand to be corrected on this matter but I do not believe that the federal government can give that assurance on behalf of a state. Therein lies the problem. Yes, ideally that would be a useful addition and a tightening up that we would welcome; but I understand that they cannot do that. Therein lies the rub.

We have so far been successful in making our views clear and we must be grateful that they have been taken into account. Those people who have been extradited have not faced the death penalty although their crime was such that it could be an option. I believe that we have made this point as tight as we can without going the whole hog as sought by the noble Lord, Lord Hutchinson, in his amendment.

Baroness Seear

Is it not possible to take a little further what the Minister has said? The federal government cannot do it on behalf of the state government but could it not obtain an agreement from the state government and pass that on as the federal government?

Lord Trafford

Will the Minister answer a question of interest? It is: what is the position of a presidential pardon? Is that president not part of the federal constitution of the United States?

Lord Hutchinson of Lullington

I am grateful to the Minister for his remarks and I believe that we are agreed that we are trying to achieve the same end. When I look at Article 11 of the Convention, I wonder whether the Minister can go a little further. The words of Article 11 of the Convention are: If the offence for which extradition is requested is punishable by death … and if in respect of such offence the death penalty is not provided for by the law of the requested Party … extradition may be refused unless the requesting Party gives such assurance and the requested Party considers sufficient that the death penalty will not be carried out". It seems to me that that may well be as an assurance the best that the Secretary of State could get. It would be that the views of his government would be taken into account, and so on, by the governor of the state in deciding whether to commute the sentence if he were to be sentenced to death. It may go a long way to making perfectly clear the fact that we in this country take a strong view and that the view of the Minister would be strengthened by having the clause altered in that way.

I am grateful to the Minister for his words and I hope that he will be able to look at the matter in that light before the next stage of the Bill.

6.45 p.m.

The Earl of Caithness

I hope that I shall be able to answer the point raised by the noble Baroness and was picked up by the noble Lord, Lord Hutchinson of Lullington. I understand the difficulty to be that the state's authorities probably cannot give the assurance which is sought by the noble Baroness and the noble Lord. The ultimate decision would rest with the state governor who can change. I believe that a new state governor could not be bound by the decision of his predecessor in respect of this matter. It is a difficult point and we cannot get state assurance.

The matter has been looked into. I do not think that I can help Members of the Committee. I should like to read the words of the noble Lord in Hansard; but I can guarantee nothing because the matter was looked into thoroughly earlier in the year.

Lord Harris of Greenwich

The noble Earl is right in saying that a certificate signed by the governor on his behalf would not necessarily bind his successor. However, it would undoubtedly have a substantial moral authority and I do not think that we should regard that as a matter of no account. However, the noble Lord has made some interesting points, and I hope that we have made some equally interesting points. I hope that he will reflect on the matter between now and Report stage.

Lord Hutchinson of Lullington

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Certificate of special extradition arrangements]:

The Earl of Caithness moved Amendment No. 17: Leave out Clause II and insert the following new Clause—

("Special extradition arrangements.

.—(1) Where special extradition arrangements have been made in respect of a person, this Part of this Act shall apply to that person, as between the United Kingdom and the foreign state with whom they have been made, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in them.

(2) If the Secretary of State issues a certificate of special extradition arrangements, it shall be conclusive evidence of all matters stated in it.

(3) In subsection (2) above "certificate of special extradition arrangements" means a certificate—

1. (a) that special extradition arrangements have been made in respect of a person as between the United Kingdom and a foreign state specified in the certificate; and
2. (b) that this Part of the Act applies to that person as between the United Kingdom and the foreign state to the extent specified in the certificate.").

The noble Earl said: I beg to move Amendment No. 17. The purpose of this amendment is to make provision for the content of the Secretary of State's certificate relating to the application to a particular person of special extradition arrangements.

As the Committee will know, Clause 1(2) provides for two types of extradition arrangements. General extradition arrangements will be formal extradition treaties or conventions which cover the generality of extraditions between the United Kingdom and its treaty or convention partners. Thus both the bilateral treaty with the United States and a multilateral extradition convention such as the European Convention on Extradition will be general extradition arrangements for the purposes of Part I. At present, under the Extradition Act 1870, the United Kingdom is only able to extradite in the context of such formal, generally applicable international agreements. However, Clause 1(2) also provides for special extradition arrangements. These are extradition arrangements made for particular cases. Such arrangements are usually described as ad hoc extradition: that is, extradition in the absence of a formal treaty or convention.

Many foreign states are able to extradite both on the basis of treaties and, where no treaty exists, on the basis of their own law. It remains our policy to maintain treaties as the normal basis for extradition, but we believe that ad hoc extradition might be a useful supplement to our present arrangements. This view was endorsed by those correspondents who responded to the 1985 Green Paper on extradition. There are numerous countries in the world with which potential extradition traffic will be too low to justify the negotiation of a formal generally applicable extradition treaty. However it is clearly in the interests of justice that should the need arise, extradition should be available to either country. It is our understanding that countries which are able to extradite on an ad hoc basis often do so only on the basis of reciprocity. It is clearly in the interests of justice that we should narrow the ability of offenders to escape justice with impunity by fleeing to a country with which the United Kingdom has no treaty.

As presently drafted Clause 11 gives an inadequate account of how a Secretary of State's certificate giving the terms of any special extradition arrangements should be cast. The amendment therefore provides a new clause to replace existing Clause 11. The new subsection (1) provides that the existing provisions of Part I of the Bill will apply to ad hoc extradition, subject to any stated qualifications. I ought to point out to the Committee that this means that the requesting state will have to support an extradition request made under such special extradition arrangements with prima facie evidence.

Subsection (2) provides that a certificate of special extradition arrangements shall be conclusive evidence of its contents. It clearly will be impossible to enter into a special extradition arrangement with a foreign state if the content of that arrangement could be subject to legal challenge.

Finally, subsection (3) defines a certificate of special extradition arrangement as a certificate establishing that such arrangements had been made in respect of a particular person between the United Kingdom and the specified foreign state, and that Part I of the Bill applies to that particular person to the extent specified in the certificate. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13 [Authentication of foreign documents]:

The Earl of Caithness moved Amendment No. 18: Page 11, line 23, after ("signed") insert ("or certified").

The noble Earl said: At the same time I shall speak to Amendments Nos. 19 and 20. The purpose of these amendments is to simplify the authentication requirement of Clause 13. It is an important feature of our extradition law that consideration of an extradition request should be on the basis not of evidence given in person by witnesses from the requesting state but on the basis of documentary evidence submitted through the diplomatic channel in support of the request. In framing the authentication requirements of Part I of the Bill we must have regard to the fact that its requirements must be applicable to the whole range of modern extradition arrangements. In this context the specific references to seals of foreign Ministers may not be helpful. Not every country may easily be able to seal documents as originally provided.

These amendments therefore provide that documents submitted in support of an extradition request shall be deemed to be duly authenticated if they purport to be signed or certified by a judge, magistrate or officer of the foreign state where they were issued and if they purport to be certified by a Minister of that state. It would of course be open to the authorities of a requesting state to seal documents if that is what it wishes to do and for that seal to be part of the certificate. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 19 and 20: Page 11, line 25, leave out ("being sealed with the official seal of'). Page 11, line 28, leave out from ("such") to ("shall") in line 29 and insert ("certification as is mentioned in subsection (1)(b) above, and documents authenticated by such certification").

On Question, amendments agreed to.

The Earl of Caithness moved Amendment No. 21: Page 11, line 31, leave out subsection (3).

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 agreed to.

Clause 15 [Form of warrants and orders]:

The Earl of Caithness moved Amendment No. 22: Page 12, line 9, after ("document") insert ("(except a notice required under section 10(2) above)").

The noble Earl said: This amendment corrects a drafting inconsistency between Clause 15 and Clause 10. I beg to move.

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Restrictions upon proceedings for other offences]:

The Earl of Caithness had given notice of his intention to move Amendments Nos. 23 and 24: Page 12, line 18, leave out ("on which his return is grounded") and insert ("in respect of which he was returned") Page 12, line 19, leave out ("facts") and insert ("evidence")

The noble Earl said: These amendments are not moved. Let me explain that they are consequential on the amendment that I withdrew earlier.

[Amendments Nos. 23 and 24 not moved.]

Clause 16 agreed to.

Lord Elwyn-Jones

I wonder whether, in view of the considerable room for difference—putting it neutrally—about Clause 21, and the notice of intention to oppose the Question that Clause 21 stand part of the Bill, this might be a convenient moment to adjourn.

Lord Mishcon

I assure the noble Earl on behalf of the official Opposition that when he spoke on those two amendments and thought there was no controversy at all we had nothing to say in regard to those arguments or those amendments.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

It is proposed that the Committee adjourn during pleasure until a few minutes from now.

Lord Ponsonby of Shulbrede

Before this matter is resolved will the Government Whip indicate when we shall resume the Committee stage of the Criminal Justice Bill?

Viscount Davidson

I suggest that we resume our consideration at 8.30 p.m. if that is convenient. I rephrase that. We shall resume at eight o'clock. I mean not before eight o'clock. That is an even better revision.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

[The Sitting was suspended.from 6.56 to 7.1 p.m.]