LORDS AMENDMENT

HL Deb 18 November 2003 vol 654 cc1905-7

26Clause 20, page 10, line 26, at end insert—

• "(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

1. (a) the suspect to be present at the retrial;
2. (b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;
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3. (c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The Commons disagree to this amendment but propose the following amendment in lieu—

26A Clause 20, page 10, line 26, at end insert—

• "(8)The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

1. (a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
2. (b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Baroness Scotland of Asthal

My Lords, I beg to move that the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.

Your Lordships will have seen that all the amendments are concerned with convictions in absentia. The Bill provides that, in a case where the person has been convicted in absentia and did not deliberately absent himself, we cannot extradite unless the person is guaranteed a retrial or a review amounting to a retrial on his return. The amendments were agreed on Report in the Lords to try to make that clear in the Bill. We are again broadly accepting the spirit of the amendments, but using different wording that draws more closely on the wording of the ECHR.

We are not accepting one element of the amendments, as they would have given the person an entitlement to be present at the retrial. Although that appears unobjectionable, we have to recognise that the court must have the right to remove an abusive or disruptive person, so we do not believe that we can grant an automatic entitlement.

The wording that we have adopted has been drawn straight from Article 6.3 of the European Convention on Human Rights, so it certainly has impeccable pedigree, although I should repeat my concern about it being seen to highlight particular parts of the ECHR. I want to make it plain that we consider that all parts of the ECHR bite on the provisions of the Bill, and that nothing contained in it dilutes that reality.

I thank the noble Lord, Lord Goodhart, for giving such clear direction to his colleagues in the other place in relation to other matters.

Moved, That the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.— (Baroness Scotland of Asthal. )

Baroness Anelay of St Johns

My Lords, I thank the Minister for the amendments on retrial. I accept the Government's reasons for omitting the section that does not appear in their redrafted amendments, where we required the defendant to be present. We discussed that at some length in Committee and on Report. I certainly appreciated the comments made by the noble Viscount, Lord Bledisloe, in particular, with regard to the practical difficulties that can ensue if one has an obstreperous defendant. It might appear in that person's interests to ensure that he is not present, as it might scuttle what is otherwise a very proper trial.

We also were concerned to find some way to redraft the retrial provisions so that they preserved the proper fairness and equitable procedure that one would want at a retrial, without in any way making provisions that would jeopardise that trial. The Government have achieved that. I note precisely what the Minister said with regard to the way in which all the articles on human rights are to be taken seriously. We, too, take them all seriously but it was right to focus on the particular explanation of retrial. I certainly welcome the amendments.

Lord Goodhart

My Lords, the provisions were moved in an amendment by the noble Baroness, Lady Anelay, but we supported them. We on these Benches are also happy with the version of the amendment now proposed by the Government.

On Question, Motion agreed to.