§ 8.33 p.m.
§ Consideration of amendments on Report resumed.
§ Clause 4 [Person arrested under Part 1 warrant]:
§ The Deputy Speaker (Lord Lyell)
My Lords, if Amendment No. 29 is agreed to, I will not be able to call Amendments Nos. 30 to 32.
§ Lord Dholakia moved Amendment No. 29:
Page 3, line 30. leave out subsection (2) and insert—
"(2) A copy of the warrant must be given to the person as soon as practicable after his arrest.1698
§ The noble Lord said: My Lords, in moving Amendment No. 29, which is in the name of my noble friend Lord Goodhart, I shall speak also to Amendments Nos. 33, 194, 198, 204 and 208, all of which are in this group.
§ In Grand Committee we explained that our amendment was intended to ensure that the arrested individual was always given a copy of the warrant— not the original, obviously, but a copy—either on arrest or as soon as practicable thereafter. For the arrested person the warrant contains vital information including why he or she is being arrested and the grounds on which extradition is sought. We argued that the warrant should be provided automatically to the arrested individual. Arrested persons should: not have to ask to see it.
§ I therefore welcome the Government's Amendment No. 30 which provides that the arrested person is not required to ask to see the warrant. However, I hope that the Government will go a little further on the matter. We would still prefer that the arrested person should be entitled to be given a copy of the warrant and to keep it.
§ The European arrest warrant annexed to the framework decision will contain a great deal of vital information for the arrested person. That is a step in the right direction and further meets the obligation relating to the framework.
This matter is very much about the rights of the individual. If there are circumstances in which a person's rights are affected, we must ensure that that individual has all the information which he or she can use to defend themselves. The automatic availability of warrants would ensure that the individual was fully aware of why he was arrested and the grounds of his extradition. That is the purpose of the amendment. I beg to move.
§ Viscount Bridgeman
My Lords, I wish to speak to Amendments Nos. 33, 198 and 208 which stand in my name and that of my noble friend Lord Hodgson and the noble Lord, Lord Goodhart.
I welcome the government amendments in this group. They properly reflect the points which were made in Committee by my noble friend Lord Hodgson. Indeed, six of these are identical to amendments we tabled in Committee to leave out,and he asks to be shown the warrant",and to replace "request" with "arrest".
The other two amendments—Amendments Nos. 42 and 43—make sure that in the Part 1 provisional arrest clause there is also an obligation to show the warrant, or a copy of it, to the arrested person as soon as practicable after his arrest. When we originally came to table our amendments for Report we decided to back the reworded version of the subsection which the Liberal Democrats proposed as a more straightforward way of making the change. However, the only difference between the Liberal Democrat amendment and the new government ones here is the word "given" instead of "shown". The one word difference is not something on 1699 which we would insist or on which we would make a stand. I am happy to accept the government amendments in this group as a welcome concession.
§ Viscount Bledisloe
My Lords, on the contrary, I believe that there is a world of difference between "given" in Amendment No. 29 and "shown". "Given" is patently right. I very much hope that the noble Baroness will accept that.
The whole problem here arises from the use of the word "warrant". We are used to the word "warrant" denoting something that authorises someone to search my house or me, for example. That must be shown before the search takes place. In the case that we are discussing the warrant is a document which is effectively the equivalent of a charge or an indictment, though it is rather more detailed. It tells one what one is charged with, what the nature of the offence is and so on and so forth. After a certain amount of badgering in Grand Committee, the Government admitted that one is invariably given a copy of a charge document or an indictment. The person concerned will want to take it to whoever advises him and say, "Look, this is what I am charged with, or this is why I have been arrested. Does it justify my arrest?" He will want to look at it. Incidentally, that solves the problem of language. He will obviously want to look at it in English, because the questions will be about what an English tribunal will think of the warrant and whether it complies with English law.
People will want a copy. Once they have a copy, translation facilities can be provided. To be shown it is the recipe for disaster. Let us imagine that someone is shown the document. He is probably fairly flustered. He gets everything wrong and says to his advisers, "I was shown the document and it said such and such". The advisers give him some advice, on which they and he act. Then when the advisers get to see the document, they see that the person has got everything wrong. I cannot conceive of why the Government should object to the person who has been arrested having in his hand a copy of the document that justifies his arrest, tells him for what he has been arrested, and enables him to discuss with his advisers whether he will be extradited, whether a bull point prevents him being extradited, and so on.
The only consequential problem that I see is if, by inadvertence, bad management or whatever, someone is not given a copy of the warrant. I fully agree with what the Government said in Grand Committee; namely, that that should not lead to automatic discharge. That has been boldly tackled by those on the Conservative Front Bench in Amendment No. 33. I am not sure that I am totally convinced by it, because it states that failure to provide the warrant will not result in automatic discharge. The amendment does not say what that will result in. I assume that it means that the magistrate will have discretion to say, "That was flagrant. I'm going to discharge him", or, "That was an error, but you got one half a day later. You are 1700 now in a position to deal with the matter. Don't let's make too much fuss about that and let's get on with the realities".
I seriously urge the Government to take on board that what needs to be done is to give a copy of the document to the person who has been arrested as soon as reasonably practical. All the rest flows. That gets out of the translation problems and the questions of whether someone was shown a copy, and if he does not have it whether he was shown it for long enough, had time to read it and understood it. If someone has the piece of paper, he knows what he is in court for and can take advice on it. Please could we have a little reality and accept Amendment No. 29?
§ Lord Bassam of Brighton
My Lords, this has been quite a sparky little debate. I give great credit to the noble Viscount, Lord Bledisloe, for sparking off some further thoughts, certainly on our Benches. I am extremely grateful to the noble Lord, Lord Dholakia, for moving the amendment and arguing the case for it very clearly. I am also extremely grateful for the words of support from those on both opposition Benches for the government amendment. We are not far away from playing on the same football pitch on the issue; we are in the same territory.
We are concerned that a person arrested in connection with an extradition case is aware of the reason for the arrest. That goes to the heart of the point made by the noble Viscount. In many cases, the police will be in possession of the warrant at the time of the arrest and will show it to the person at that point—I shall come to the issue of giving and showing in a moment—but that will not always be the case, of course. One has to be realistic and accept that. The details of those wanted for extradition purposes will be entered on the police national computer, so a police officer could come across such a person by chance.
That will not happen often, given the small number of cases involved. I suggest that it will not happen with great regularity, but it could happen, say, as a result of a stop-and-search exercise or some sort of traffic stop. We cannot therefore expect every officer to carry a copy of every single outstanding arrest warrant. There will be occasions when a person is arrested by an officer who is not in possession of the warrant and would not be in a position to show it. That is not what we expect to be the case in every single instance.
As the Bill is currently drafted, there is a requirement in such circumstances for the person to be shown the warrant if he requests it. That is in line with normal domestic procedures that we all understand. In Grand Committee, both opposition parties forcefully made the case that the person should automatically be shown the warrant without waiting for him first to request it. Indeed, that is the broad purpose of their amendments today.
The noble Viscount, Lord Bledisloe, forcefully suggested that such people should be given on request a copy of the warrant. Effectively, that will happen because clearly the person arrested will want to have legal advice and rightly he should have it. I would 1701 argue, and it will be the case, that at that stage his legal representative will want to see and have access to the warrant. There is also the important issue of interpretation and the documentation will need to be in the appropriate language. No doubt we will provide more detail for that in guidance.
In general, we are happy to go along with the notion which the opposition parties moved in earlier amendments in Committee. The domestic situation is not completely analogous. After all, a domestic warrant is simply an instrument for arrest whereas a Part 1 warrant will contain all the details of the crime for which the extradition is sought. Accordingly, we have brought forward amendments which provide that a person who is not shown the warrant at the time of his arrest must be shown it as soon as practical thereafter. There is therefore no longer a requirement for that person to ask for it first.
Without being unduly immodest, I believe that the amendments standing in the name of my noble friend Lady Scotland are neater and better drafted than those put forward by the Opposition. That is hardly surprising as we have access to expert parliamentary counsel. I therefore hope that I have reassured the noble Viscount on the point which he forcefully argued. I am grateful that welcome has been given to government Amendments Nos. 30,32,42,43,195,197, 205 and 207.I hope that noble Lords will feel happy to support them today.
§ 8.45 p.m.
§ Viscount Bledisloe
My Lords, before the noble Lord sits down, I fully accept that it may not be practical instantly to give the person a copy of the warrant. I suspect that cases in which the arresting officer does not have it may be more frequent than the Minister believes. After all, these are serious crimes and the person's identity may be flashed all over the country. The warrant may be in London and the person may be detected like someone in The Thirty-Nine Steps crossing the Tay Bridge.
I am not fussed about that, but I am concerned about the moment when it is possible for the constable to show the person a copy of the warrant. It is possible within half an hour to give it to him because, presumably, most police stations have photocopying machines. The difference between showing and giving is considerable. I am not asking for urgency and for disaster to strike if it does not happen, but I say that it is not satisfactory if the person has to wait until a legal adviser comes along. He can ask for it, so why should not the person involved have it if he can see it? An intelligent English speaking person, if he can see it, can follow it, so why should not the poor handicapped person who does not speak English well or who does not have a good memory have a document that he can take to his legal adviser?
§ Lord Bassam of Brighton
My Lords, I indicated earlier that I had heard what the noble Viscount said and I believe that what he describes will, in effect, be how it works. I believe that the noble Viscount has put his finger on it: it may well be that the person to whom 1702 one is showing the document will not be in any better a position if he is given the document. My guess is that, once he has a legal representative and is in possession of a photocopied version of the document, he will be in a rather better position. I can go no further than that this evening.
§ Lord Dholakia
My Lords, I am grateful to the Minister. He gave two examples. In the first, he referred to someone being arrested following the stop and search procedure, but that is not what we are talking about. This is a completely different issue. If a person is arrested on a warrant for extradition, that is a separate matter and that information will have been available prior to the arrest.
Secondly, the Minister said that he would provide examples of the difference between showing and giving but he did not say why the warrant should not be given to the individual. He did not explain that point. My position is precisely the same as that of the noble Viscount. Perhaps I may ask the Minister to look seriously at this issue.
Ultimately, it is not simply a case that if someone has legal representation, he should be given a copy or allowed to see the documentation; more importantly, an individual must see the document so that he can then decide what kind of legal representation he wants, and on that basis he will seek legal advice. If he does not have the basic information, other than being shown rather than being given the documentation, that will make the case very complicated.
Perhaps I may suggest that the Minister takes back this matter rather than trying to resolve the problem at this stage. We can then return on Third Reading to see whether there are alternative means by which an individual may have access to the information. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Scotland of Asthal moved Amendment No. 30:
Page 3, line 31, leave out "and he asks to be shown the warrant
§ On Question, amendment agreed to.
§ Viscount Bridgeman moved Amendment No. 31:
Page 3, line 32, after "him" insert "in English, or, if he requests it, in any official language of a category 1 territory
§ The noble Viscount said: My Lords, in moving Amendment No. 31, I shall speak also to Amendments Nos. 196, 206, 231 and 240. These amendments refer to the language in which the warrant should be presented to the accused person. I have taken into account the views expressed in Grand Committee and have redrafted the amendments to meet some of the points raised then—in particular, those of the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Goodhart. Perhaps even the Minister will look at these amendments with a more sympathetic eye.
We are all fighting the same corner on this matter. I was heartened by the Minister's opening remarks in response to the amendments on the issue of language
in Grand Committee. The amendments were not in my name; they were in the name of my noble friend Lord Hodgson. The Minister said:
this is a proper challenge to seek to balance the interests of justice in bringing to trial people charged with serious crimes and the risks of an infringement of civil liberties as a consequence of that process. That is why I support the spirit of what is being attempted but not the mechanism".—[Official Report, 18/6/03; col. GC 324.]
§ We all agree that anyone arrested in this country deserves to be able to understand the reasons for his arrest and what the charge against him is. How, then, do our amendments address this issue? The first amendment is to Clause 4, which concerns the arrest of a person under a Part 1 warrant. We argue that the person must be shown a copy of the warrant,
in English, or, if he requests it, in any official language of a category 1 territory".
§ The other four amendments, which deal with procedures under Part 2—both arrest and provisional arrest under a Part 2 warrant and the final decision for extradition supplied to the defendant by the judge or the Secretary of State in Clauses 93 and 101 respectively—amend the Bill so that the warrant or information must be provided to the person,
in English, or, if he requests it, in a language which he understands".
§ Part 1 deals not with domestic warrants, but with warrants issued abroad. The European arrest warrant is a transitional arrangement, as my noble friend Lord Hodgson and others pointed out in Grand Committee. Might it not be more pertinent to look further than our current obligations for translation, as set out under the ECHR? I believe that there are clear grounds for accepting this amendment on the basis of the annex to the framework decision about language. That, if I may be permitted to read it, states:
This warrant must be written in. or translated into, one of the official languages of the executing Member State, when that State is known, or any other language accepted by that State".
§ The noble Lord, Lord Wedderburn, pointed out that in regard to warrants issued for the extradition of a person from the United Kingdom, the warrant would probably be in English. However, we are talking about an agreement made between several EU member states. With agreements made between our European partners we constantly have the problem that documents have to be translated into the various official languages of member states. That is why we have proposed Amendment No. 31. Under normal circumstances we would expect the warrant to be shown to the person in English, but if he or she requests otherwise, it could be produced in the language of any category 1 country.
§ The phrase "if he requests it" appears in all five amendments and is a direct response to the points made by the noble Lord, Lord Goodhart, and the noble Viscount, Lord Bledisloe. Both have commented that it may be impossible to know what language the defendant understands. He may keep silent and then claim that he does not understand English and so uses that as an excuse to be discharged. Therefore, we have proposed a presumption that primarily the warrant be shown to the 1704 person in English. It should be translated into another language—either a category 1 territory official language in the case of Part 1 or any other language in the case of Part 2—if the person requests that. Therefore the person cannot decline to say what language he understands and then evade justice.
§ One important reason why I believe that these amendments should be introduced into the Bill relates to the case of reciprocal standards. At Committee stage, my noble friend Lord Hodgson outlined the shocking case of Teresa Daniels and the ordeals that she suffered being charged, being allowed to go free and then being re-arrested without any knowledge of what was going on or what stage the proceedings had reached. That happened because the lawyers and the judge were speaking in Spanish, discussing a warrant in Spanish, without the interpreter translating the relevant facts to her.
§ This is an important point of principle. We may have obligations already under ECHR and under the Prosecution of Offences Act 1985 to provide interpreters, but we should not be shy of putting in another provision to assist the defendant to understand his or her case. We know that other countries have been more than a little remiss with their translation services, so it would be constructive and in the spirit of co-operation with our partners in extradition if we were to provide a translation at the request of the defendant. I beg to move.
§ Viscount Bledisloe
My Lords, the noble Viscount has suggested that this amendment answers my objection. It may answer one of my objections but it produces another. The noble Viscount, Lord Bridgeman, is over-naive about the co-operativeness of people arrested under such warrants. He suggests that they will ask for the warrant to be translated into a language that they understand. If a difficult person is arrested he may say, "Please translate it into Estonian". In south-east Scotland, where I believe the designated authority sits, there may not be many people who could rapidly translate a warrant into Estonian, but on the basis set out by the noble Viscount, such a person could insist that it is translated into any language of a category 1 territory, regardless of the fact that having had the warrant translated into that language he promptly puts the warrant in the bin because he does not understand a word of that language.
§ 9 p.m.
§ Lord Bassam of Brighton
My Lords, the noble Viscount has a more succinct line than those that follow under the word "resist" in my brief, but I had better go through the points.
It is true to say that these amendments follow on neatly from the amendments that we have just discussed. The issue of language is important. A common concern in extradition cases is that the person arrested may not have a good or an adequate grasp of English and so will not understand the warrant. Clearly, if justice is to be served the person has to be 1705 able to comprehend why he or she has been arrested and in connection with what conduct the extradition is sought.
Amendments Nos. 31, 196 and 206 would require a police officer, on request, to translate the content of the warrant into,a language which he [the person] understands".I question whether that is the right way forward. The noble Viscount has powerfully put his finger on the point.
We have already explained one safeguard in these circumstances, which is that everyone arrested in an extradition case has an entitlement to free legal advice. A lawyer acting in this capacity will be able to understand the warrant, even if his client does not.
I suggest to your Lordships that requiring the police to translate the contents of the warrant could create practical we have been given good examples of that—and genuine legal difficulties.
On a practical level, are we seriously suggesting that any police officer who may be required to handle an extradition case should have the linguistic skills to be able to translate the content of a warrant into any conceivable language? I suggest that that is somewhat unrealistic.
I have great admiration for the police. They do a brilliant job in difficult circumstances. But in those circumstances in a court somewhere in south Scotland, that might be just one demand too far. On reflection, the noble Viscount may think it better to withdraw the amendment. Even though it is couched in an understandably sympathetic language, as I would expect of him, I encourage him to withdraw the amendment.
§ Viscount Bridgeman
My Lords, my argument has been neatly undercut by the noble Viscount, Lord Bledisloe, assisted by a very comprehensive explanation from the Minister. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 32:
Page 3, line 32, leave out "request" and insert "arrest
§ On Question, amendment agreed to.
§ [Amendments Nos. 33 and 34 not moved.]
Lord Bassam of Brighton moved Amendment No. 35:
Page 3, line 35, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge
The noble Lord said: My Lords, this is another set of amendments in which the Government are responding to concerns that were quite properly and well raised in Grand Committee. In this particular case—although 1 do not think he is in his place today—my noble friend Lord Wedderburn of Charlton voiced concerns. However, we sensed that he had the support of quite a few other noble Lords present on that occasion. I am pleased that we have been able to accommodate his points.
§ As your Lordships will know from the amendments which we have just discussed, following arrest in an extradition case the person must be brought swiftly before a court. In most cases, the requirement is that he should be brought before the court as soon as practicable, but in Part 1 provisional arrest cases it must be within 48 hours, together with the full papers, of course.
§ These amendments concern what happens if those deadlines are not complied with. As currently drafted, the Bill provides that if the various deadlines applying to a person's first court appearance are not complied with, the person is "taken to be discharged". In Grand Committee, the noble Lord, Lord Wedderburn, suggested that this wording was ambiguous and my noble friend Lord Filkin undertook to consider whether it could be improved.
§ Your Lordships may be interested to know that during the summer the police also expressed to the Government their concerns about the form of words in the Bill, which they feared could put their officers in the position of having to decide whether a person should be released. So, for a combination of reasons, we have tabled these amendments.
§ The amendments remove the references in the Bill to a person being "taken to be discharged" if statutory deadlines are not complied with. Instead, they provide that the person can apply for a discharge if he considers that the deadlines are not complied with. If the judge takes the view that the person is right, he must—I stress "must"—discharge him. I am hopeful that noble Lords will feel that this is a better solution. For those reasons, I urge noble Lords to agree to the amendments I beg to move.
§ Viscount Bledisloe
My Lords, I still think that the amendment is too kind to the criminal—or the person arrested, as we must assume him to be. The noble Lord, Lord Bassam, spoke about cases where someone is not brought before a court within 24 hours. But the provision also applies if the person arrested is not shown the warrant as soon as reasonably practicable. That has now become an automatic obligation.
I see no reason why such an administrative failure should lead to the automatic discharge of someone who is at least suspected and accused by a foreign country of having committed a very serious offence. I confess that I much preferred Amendment No. 33, in the names of the Conservative and Liberal Democrat Front-Bench Members, which gave the judge in question discretion.
I think that it was the noble and learned Lord, Lord Mayhew of Twysden, who said in Grand Committee that it was all very academic because if the person arrested was automatically discharged, he would get two yards outside the cell door before being re-arrested and the whole process would start again. If that is right, it is not a very charming farce. Surely, the mere failure of a policeman to show the person arrested a warrant as soon as reasonably practicable— because he was very busy—should lead to discretion on whether to discharge rather than an automatic discharge.
1707 The only alteration that the government amendment would make is that the smart criminal who knows his rights will apply to be discharged and get out, whereas the more ignorant poor fool who does not know that there is an easy way of getting out of gaol without passing "Go" will not take advantage of it. Surely, in those circumstances, it should be up to the judge to ask whether the police have wildly disregarded the detainee's rights, in which case he can go, or whether there has been a mild administrative mess-up that stopped the warrant getting to the arrested person for a couple of hours— when he was asleep, anyhow—and that it can be overlooked.
§ Viscount Bridgeman
My Lords, we thoroughly support the amendments, which bring a great deal more clarity to the current drafting in the Bill—in particular, the phrase "taken to be discharged". Like the noble Lord, Lord Wedderburn, I found the phrase ambiguous and potentially confusing. We welcome any amendments that would make this complex legislation more user-friendly in its language and phraseology.
However, I have one query that I do not wish to overlook. The same point was raised by the noble Viscount, Lord Bledisloe. Clause 4(4), if amended as the Government propose in Amendment No. 35, would read:If subsection (2) or (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge".Can we be certain that, by that stage, the person will have been informed by the police or a legal representative that, if he has not been shown a copy of the warrant as soon as practicable after his arrest, or if he has not been brought before the appropriate judge, it is up to him to apply to the judge before the judge can order his discharge? If we can be sure of that, I have no problem with the amendments. But I seek assurance from the Minister about how the arrested person will know at each stage of the proceedings that it is up to him to apply for discharge.
§ Lord Bassam of Brighton
My Lords, I can confidently give the assurance that the noble Viscount seeks. That is how we expect it to work. I hope that that reassures him.
In response to the comments made by the noble Viscount, Lord Bledisloe, there is a balance to be struck in the language of the Bill. We think that we have got it right. We are supported in that by the way in which the police and all quarters of the Committee expressed concern. I take the noble Viscount's point, but we must have confidence in getting the processes absolutely spot on. We will do that because of the serious nature of such cases. I hear what the noble Viscount says, but he must trust us to take into account the points made. In the circumstances, the wording that we have proposed can be lived with, is practical and will work.
§ On Question, amendment agreed to.1708
§ [Amendment No. 36 not moved]
§ Clause 5 [Provisional arrest]:
Viscount Bridgeman moved Amendment No. 37:
Page 4, line 3, leave out "reason to believe" and insert "reasonable grounds for believing
§ The noble Viscount said: My Lords, in moving this amendment, I will also speak to Amendment No. 191. They are both supported by the noble Lord, Lord Goodhart.
When the Law Society proposed that these amendments should be tabled in Committee, I doubt that it expected that it would unearth such a hornets’ nest when it proposed to change the wording in Clauses 5 and 74 from a subjective to a more objective test. If I may paraphrase the subsection, Clause 5 states that,
a constable … may arrest a person without a warrant if he has reason to believe … that a Part 1 warrant has been or will be issued",
and that it is issued by a legitimate "judicial authority". I hope that that is a fair paraphrasing.
§ We are trying to provide greater protection to our citizens. The Law Society of Scotland believes that "reasonable grounds for believing" carries more weight than "reason to believe". This case was argued by the noble Lord, Lord Wedderburn, who I am very pleased to see in his place, and by my noble friend Lord Lamont. One may have "reason to believe", but this may not be confirmed by any facts of evidence whereas having "reasonable grounds for believing" implies that one's belief is motivated by information that one finds compelling. I am not a lawyer, but I find that argument convincing.
§ A stronger more objective test is obviously preferable when we are talking about a case of "provisional arrest". I have some concern with this clause in the first place: if the constable were to be challenged along the lines of, "What reason did you have to believe that a warrant had been issued?", what would he reply? Would he have to provide concrete evidence or could he say that he suspected that a warrant might have been issued? We do not want anyone to be arrested for the purposes of extradition unfairly, wrongly or because of the mistaken belief of a constable.
§ The same argument stands for the decision made by the judge about provisional arrests in Part 2. What sort of criteria should a judge or a constable use to make these decisions on provisional arrest?
I now turn to the "semantic issue" itself. We feel that "reasonable grounds for believing" is a stronger test than "reason to believe". I shall quote my noble friend, Lord Lamont, since I believe he put the matter most succinctly. He said:
'"Reason to believe' implies any reason to believe—a slight reason as opposed to a significant reason. 'Reasonable grounds’ implies looking at something in the round—at all the evidence available and whether the conclusion is reasonable".—[Official Report, 18/6/03; col. GC 341.]
§ However, the noble Lord, Lord Bassam, was adamant that there was no substantial difference between "reason to believe" and "reasonable grounds for believing". However, he was subsequently challenged by the noble Lord, Lord Wedderburn, who suggested that his words could be used as a Pepper v Hart statement with potentially disastrous implications—what one might think of as a field day for the lawyers. This is an area where we must get the drafting right. We cannot simply say that two different formulations of words mean the same thing. We must think how this could be interpreted in the courts at a later date because what we are trying to produce today is workable legislation not a legal minefield.
§ I would also like to point out that in trying to justify his point, the noble Lord, Lord Bassam, spoke about having "good reason to believe" that a warrant "will shortly be issued". The words "good" and "shortly" are not part of this Bill. They bring implications and suggestions that the more simple straightforward language of the Bill does not contain. We must be careful to look at the words we see before us in the Bill otherwise the danger is the sort of complications and wordy wrangling that we experienced when we debated this point in Committee. I beg to move.
§ 9.15 p.m.
§ The Earl of Mar and Kellie
My Lords, as was so excellently trailed by the noble Viscount, not only does my noble friend agree, so do the rest of us. I am pleased to support the amendments, which were inspired by the Law Society of Scotland.
Amendment No. 37 would bring the Bill into line with Section 14 of the Criminal Procedure (Scotland) Act 1995. Amendment No. 191 is slightly different: it calls for objectivity to be required of the judge when a warrant is prepared for issue. We would support the noble Viscount, if he were to press the amendments.
§ Lord Waddington
My Lords, it would be a great pity if my noble friend Lord Lamont of Lerwick did not contribute to the debate. His views on the matter have been widely quoted.
§ Viscount Bledisloe
My Lords, as the noble Lord seems not to be rising to the temptation proffered by the noble Lord, Lord Waddington, I shall say that this rather esoteric debate about the words trespasses on the grounds considered by the Judicial Committee of your Lordship’ House in the case of Liversidge v Anderson in 1942. Can the Minister tell us whether, if he says that the words are adequate, he assumes that the majority was right in that case or, as is normally thought, that the dissenting judgment of Lord Atkin is to be preferred?
§ Baroness Carnegy of Lour
My Lords, it is interesting that the reason why the Law Society of Scotland is keen on the change of wording is that the Bill would then say what appears in Scots law, whereas the wording used in the Bill is what appears in English law. The society suggests that it would be a sounder basis for the action of a constable or Customs officer.
1710 In Committee, the noble Lord, Lord Bassam of Brighton, said:If I have reasonable grounds for believing that a warrant will be issued, then I have reason to believe that that will be the case. If I do not have reasonable grounds, I do not have reason to believe that it will be so".—[Official Report, 18/6/03: col. GC 339.]However, one could have "reason to believe" without any grounds. The noble Lord did not take that point.
The point was beautifully illustrated by the noble Lord, Lord Wedderburn of Charlton—I do not think that he is going to speak—who said that he might believe that the noble Lord, Lord Lamont of Lerwick, was his cousin because his aunt had told him so but might also, if he went into the matter in some detail, find that there were no grounds for it. I thought that that story was conclusive. Probably, in this case, Scotland has better wording, and the Minister might consider making a small change.
§ Lord Bassam of Brighton
My Lords, it is with some discomfort—no, pleasure—that I rise to answer. I should telegraph early on that, on this occasion. I shall raise the white flag. I thought that that would make one or two people smile.
We are, of course, ever grateful to noble Lords for expressing their wisdom on such semantic issues. In Committee, I tried to put up as robust a defence as possible of my position. I thought that I had not made too bad a stab at it, but we are prepared to give the matter some further thought.
The noble Viscount, Lord Bridgeman, put his finger on it: in this Bill—as with all legislation, actually—the Government's desire is to have simple and straightforward language. The noble Viscount gave us credit for that. We have had an esoteric discussion of the issue. Cases from as far back as 1942 were quoted, and Scots law was invoked. What can I do to resist such an onslaught?
I am happy to give the commitment that we shall take away the amendment to determine what we can do to accommodate the wishes of the Grand Committee, in the first instance, and the wishes expressed fairly and properly on Report. At Third Reading, we shall bring forward a government amendment to incorporate the term "reasonable grounds for believing" in all the appropriate places. With that, I hope that the noble Viscount will feel able to withdraw the amendment.
§ Baroness Carnegy of Lour
My Lords, before the noble Lord sits down, did I hear the skirl of the pipes?
§ Viscount Bridgeman
My Lords, I am grateful to the noble Lord, Lord Bassam. I feel that it is not a. white flag but an honourable armistice. We shall look forward to receiving the redrafted clauses at Third Reading. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1711
Viscount Bridgeman moved Amendment No. 38:
Page 4, line 4, leave out "or will be
§ The noble Viscount said: My Lords, in moving Amendment No. 38, I welcome government Amendment No. 45 grouped with mine. We return to the matter of the provisional arrest, which has caused considerable outrage among outside organisations, as well as among Members of this House and another place. Clauses 5 and 74 deal with provisional arrest.
§ We accept that there is some merit in having a means of provisional arrest in cases where an arrest warrant has been issued but has not found its way into the hands of the British authorities. That could be vital in catching a notorious terrorist whom we suddenly recognise at Heathrow airport. In such circumstances, we would want our constables to be able to arrest the offender and hold him in custody for 48 hours while we secure his arrest warrant from the requesting countries.
§ That example is what we consider to be the legitimate use of a provisional warrant, although with the caveat that we are still uneasy about the "reason to believe" issue as we discussed earlier—but let that pass. However, there is what I believe to be a potential danger in the drafting of Clause 5, but it is a danger that does not appear in Clause 74. In Clause 74, the justice of the peace must be satisfied in writing and have evidence in front of him that would justify the issue of a warrant for the arrest of the accused. In Clause 5, a constable with reason to believe that a warrant has been or will be issued can make an arrest and hold a person for 48 hours.
§ We have no further information about how the constable should come to this decision. Could he merely say, "I thought it might be possible that a warrant might be issued"? How can he make such a hypothetical judgment? On what should his belief be based? If he has had communication with police forces in the category 1 territory and they are chasing a notorious criminal, it should not take long for an arrest warrant to be processed. The foreign authorities can then inform the constable and he can make the arrest knowing that a warrant has been issued but is not yet in his possession. However, the provision before us is open to misuse.
§ In speaking to their Amendment No. 45, grouped with mine, I hope that the Government have tabled a foolproof amendment which may address that point. I await their explanation on how such an abuse can be avoided. I beg to move.
§ Lord Bassam of Brighton
My Lords, as ever, I am grateful for the noble Viscount for having tabled his amendment. What we are concerned with here is the provision in Part 1 of the Bill which allows the police to arrest a person on the basis that they believe that a warrant has been issued or will be issued. I acknowledge that, at first sight, the drafting of the clause might seem a trifle strange; namely, allowing officers to arrest a person purely if they have reason to believe that a warrant will be issued and not just if they believe that a warrant has been issued.
1712 The opposition amendment seeks to remove the reference to a warrant that will be issued. What I should like to do is set out why we believe those words are necessary, but then go on to explain the solution we have determined in order to meet some of the concerns that, rightly, were expressed in Grand Committee.
The reason why we think the power to arrest on the basis of a belief that a warrant will be issued is needed can be illustrated by the simple example which we used in Grand Committee. Let us imagine that a person commits a bank robbery in France and jumps on board a hovercraft in Calais just before the French police can catch up with and apprehend him. In such circumstances it would not be unreasonable to expect the French police to telephone their counterparts in Dover and ask for the person to be detained on arrival.
Doubtless the French police would confirm that they would be going to a magistrate to seek a European arrest warrant, but at the moment that the person arrives in the United Kingdom, the Kent police would have every reason to believe that a European arrest warrant would be issued, but not that it had been issued. The question noble Lords have to ask is whether they believe that, under such circumstances, the person should be arrested. In simple and straightforward terms, and in particular in terms of law enforcement, the Government believe that they should be arrested.
The alternative is to let the person go, even though by the time confirmation arrives that the warrant has been issued, both the person and the proceeds of the crime might have disappeared. That would be the consequence and effect of accepting the Opposition amendment.
We accept that such cases are likely to be rare, but that does not meet the point that we can simply ignore the need to cater for them. Further, perhaps it is worth reminding noble Lords that this does not apply only to those on their way to the UK by plane, ferry or Channel Tunnel train. We must never forget that the United Kingdom has a land border and that this scenario could well occur in the case of a person crossing from the Republic of Ireland. As I am sure your Lordships know, the window of opportunity to arrest serious criminals and terrorists in particular can be very limited and those chances need to be taken. It would be a tragedy if United Kingdom legislation on extradition closed off our ability to react quickly to deal with that kind of threat.
When we discussed this matter in Grand Committee, there was some recognition among those noble Lords present that the situation which I have just outlined, although rare, could arise and that we need to be able to prevent the person from getting away. However, the noble Lord, Lord Goodhart, highlighted what he saw as a particular problem with the "or will be" formulation. I cannot do better than to quote what the noble Lord said:Is there anything in Clauses 5 and 6 to prevent the following scenario from happening? The French authorities ring up Inspector Knacker of the Yard and say, 'Will you arrest this man? We promise that we will get you the papers within 48 hours’. The inspector arrests the man, the French authorities fail to get the 1713 papers there within 48 hours and the man has to be discharged. However, just before he is discharged, the French ring up Inspector Knacker and say, 'Look, I'm sorry we haven't made it in time, but we absolutely promise you that we will get it to you in another 48 hours, so please arrest this man again, as soon as he is discharged'. Is there anything in the Bill to prevent that from happening?".—[Official Report, 18/6/03; col. 349.]The answer is that there was nothing explicit on the face of the Bill, although we doubt that the police would have gone along with such an obvious abuse.
However, we have decided that we ought to make it absolutely clear that a person can be provisionally arrested only once, and that is the purpose of the government amendment. It provides that if a person is provisionally arrested pending receipt of the papers and then released, he cannot be provisionally arrested again. He can be re-arrested only if the full papers, including the warrant, have been received. I hope that noble Lords will welcome that as an extra and important safeguard.
For the reasons I have outlined, I cannot advise noble Lords to accept the Opposition amendment. It would be wrong to allow criminals to slip through our fingers, even in those rare cases. However, we have introduced to the Bill an extra protection to ensure that there can be no abuse of the power to arrest in cases where no warrant has yet been issued. I invite noble Lords to agree to the government amendment and I hope that, in the light of the careful explanation I have given, the noble Viscount will feel able to withdraw his amendment.
§ Viscount Bridgeman
My Lords, 1 am most grateful to the noble Lord, Lord Bassam, for that explanation. I am particularly reassured by the introduction of new subsection (8), which addresses the point raised by the noble Lord, Lord Goodhart. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.30 p.m.
Lord Bassam of Brighton moved Amendment No. 39:
Page 4, line 6, leave out from first "authority" to end.
§ On Question, amendment agreed to.
§ [Amendments Nos. 40 and 41 not moved.]
§ Clause 6 [Person arrested under section 5]:
Lord Bassam of Brighton moved Amendments Nos. 42 to 45:
Page 4, line 33, at end insert—
(4A) The Part 1 warrant or a copy of it must be shown to the person as soon as practicable after his arrest.
Page 4, line 34, after "(2)" insert "or (4A)
Page 4, line 34, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge
Page 4, line 38, at end insert— "(7) Subsection (8) applies if—
(8) The person must not be arrested again under section 5 on the basis of a belief relating to the same Part 1 warrant.
§ On Question, amendments agreed to.
§ [Amendment No. 46 not moved.]
§ Clause 7 [Identity of person arrested]:
Baroness Anelay of St Johns moved Amendment No. 47:
Page 5, line 9, leave out "on a balance of probabilities" and insert "beyond reasonable doubt
§ The noble Baroness said: My Lords, it gives me great pleasure to move Amendment No. 47. After the tour de force of my noble friend Lord Bridgeman, who managed to obtain a government concession, I hope for more presents from the Government.
§ In moving Amendment No. 47, I shall speak also to Amendments Nos. 48, 219 and 220, all of which are supported by the noble Lord, Lord Goodhart. The amendments address the issue of the standard of proof to be adopted when establishing the identity of a person who has been arrested.
§ We are not content at present with the drafting of Clause 7, which covers the identity of the person arrested, and its consequential Part 2 clause, Clause 79. Both clauses deal with the identification of the person arrested, which is the first thing that has to be established when the defendant comes before the judge at the initial hearing.
§ When we discussed this point in Committee, there was concern on all sides that the Bill as drafted was not satisfactory. It was obvious that if we were to send the wrong person back for prosecution, for trial, it would be a miscarriage of justice.
§ As the Minister helpfully pointed out in Committee, there has been some movement in the drafting from the time the Bill was first introduced into another place. Originally there was no indication of what test or standard of proof should be used when the judge made the decision about whether the person before him was the person named in the warrant.
§ I and others referred to the high-profile case of Mr Derek Bond, who found himself in the position of being arrested in South Africa while on holiday—this is an example simply of the problem of identity; we are not intimating that there will be this kind of extradition case—when he was not the person who should have been the subject of the extradition request from America. The case raised concerns both in this House and among the public.
§ After some debate in another place, the Government decided to specify the standard of proof. However, they selected the civil burden of proof—the balance of probabilities—rather than the criminal test of beyond reasonable doubt, which we prefer. We accept that it was right for the Government to specify the standard of proof, but we believe that they have chosen the wrong one.
§ At the initial hearing the judge is given no prima facie evidence about the offence with which the defendant is charged. All that takes place is a kind of identification— we are not convinced that it is sufficient—of the person, a discussion of the remand, the rights of the person to 1715 legal aid and the issue surrounding the consent to extradition. In other words, an administrative and procedural arrangement goes forward once the judge has decided that the Mr Smith before him is the same Mr Smith as named on the arrest warrant, and the extradition proceeds without further ado to the hearing.
§ Our amendment seeks simply to change the phrase "on the balance of probabilities" to "beyond reasonable doubt". We seek to insert the criminal test, not the civil test. This would provide the greater degree of certainty required and give greater protection to the defendant from being incorrectly extradited.
§ I note that the Government have tabled a clutch of amendments on the burden of proof on other matters to do with retrial and they have made helpful clarifications in rewriting the retrial clauses, to which we will come later. I have asked for them to be degrouped because they address a different problem. But that still leaves the same old problem in this clause. Whatever the Government have done with other parts of the Bill in regard to the burden of proof, they have specifically chosen not to change the burden of proof on identification from the balance of probabilities to beyond reasonable doubt. I beg to move.
§ Viscount Bledisloe
My Lords, it is important to distinguish precisely what one is dealing with here. I think the noble Baroness trespassed against this at one stage. This part of the Bill deals only with whether the person up in front of the magistrate is the person named in the warrant, not whether he has anything to do with the person who committed the crime and has that name.
The noble Baroness referred to Mr Bond. He was the person named in the warrant, as I understand it, but he should not have been named in the warrant because they got Mr Derek Bond of 45 Railway Cuttings, or wherever he came from, instead of Mr James Bond, 007, of somewhere else. The only question here is, "Are you the person named in the warrant?". To ask for that to be proved in front of the magistrate beyond reasonable doubt is asking too much. I think that the burden should be on the prosecution to show that he more probably is.
Is anything being done to deal with the example I raised in Grand Committee where the person is named in the warrant but is patently not the person who committed the crime? I gave the example of a person named in a warrant who had been sitting on the Woolsack in your Lordships’ House at the very moment the crime was committed. Can the Government do anything to deal with the case of somebody who, although accurately named in the warrant, is patently not the person who ought to be extradited because he is patently not the person who committed the crime in question although he may have the same name and even the same address. He may be the father of the criminal, if he comes from one of those tiresome families whose members give their children the same Christian names they bear themselves.
§ Lord Carlisle of Bucklow
My Lords, the noble Viscount, Lord Bledisloe, says the only issue we are 1716 concerned with is whether the person is the person named in the warrant, as if it is a matter of little concern. It seems to me absolutely vital.
As I understand the way in which the system works, a category one country issues a warrant for the arrest of a person in this country who, it claims, has committed an offence in that country. He is then arrested, which is stage two, and brought before the magistrate. It seems that about the only power the magistrate has is to confirm that he is the person named in the warrant. If the magistrate decides that is the case, he can remand the person in custody for that purpose. The person is then referred to another hearing, which has no power to go into dual criminality; it has no power regarding whether there is a prima facie case, and no control of the Secretary of State over the decision to extradite. Therefore it seems that one of the most important steps is the confirmation by the judge to whom the person arrested is taken that he is the person named in the warrant.
Let us take the noble Lord, Lord Bassam. The noble Lord appears in the court as the person arrested and the judge has to decide whether he is the person named in the warrant. The noble Lord, Lord Bassam, claims he is not, knows nothing about the matter and has nothing to do with this. It must be someone who has the good fortune to look like the noble Lord, who has been mistaken for him. Is it really adequate for the judge to say, "I think on the balance of probabilities it is Lord Bassam, and I think therefore that it is the Lord Bassam who is mentioned in the warrant"?
All of us have our double. If I may do so in the absence of the noble Lord, Lord Jopling, I remind the House that when I first entered Parliament, when I looked rather younger than I do now, he and I were often mistaken for each other. If I appeared before the magistrate with a warrant that claimed that I had committed an offence while in France, and if I had never been near the place and had been mistaken for the noble Lord, Lord Jopling, would it be adequate that the court should decide the issue only on the balance of probabilities, or should the judge at least be satisfied beyond reasonable doubt? I am sure that neither myself nor the noble Lord, Lord Jopling, nor the noble Lord, Lord Bassam, would want to be returned to the European country merely on the basis that a magistrate said that on the balance of probabilities he felt that he had the right person before him.
Since the adjournment, the Minister has been very generous in conceding amendments from the Opposition and accepting that matters needed to be reconsidered. I hope that he recognises the serious intent behind the amendment and will be prepared to consider again the burden of proof.
§ Lord Dholakia
My Lords, Amendments Nos. 47 and 48 have the support of these Benches. During the Grand Committee stage, my noble friend Lord Goodhart made a strong case for avoiding the use of the words, "beyond reasonable doubt". Those words are somewhat out of date. They are no longer 1717 used in giving direction to juries in criminal trials, where the judge is now required to say, "You must be sure".
In the absence of subsection (3), I am given to understand that a court would normally apply the criminal standard of proof or something very close to it. We do not believe that the balance of probability is appropriate in this clause.
§ Lord Wedderburn of Charlton
My Lords, I hope that my noble friend the Minister looks on the amendments in spirit, with favour. It is said that the only issue is identity, but I cannot think of a more important matter than identity. Take the case of my noble friend Lord Bassam's twin, who lived his life in America and who changed his name from something to Lord, in the American fashion. If he or his twin were up in the box, I could not think of anything more important than that it should be proved beyond reasonable doubt. We might use the wording, "unless the court is sure", or the Government might take the amendment away and insert suitable words.
§ Lord Stoddart of Swindon
My Lords, I must confess that, listening to the debate, I have been intrigued by how one would weigh the balance of probabilities. After all, a probability is a fraction of an actuality. How does one put probabilities in the scales and weigh them? It is a phrase that should be completely rejected in law, which is why I strongly support the amendment.
§ 9.45 p.m.
§ Lord Bassam of Brighton
My Lords, I answer the amendments with a smile. My mother would be extraordinarily amused at the way in which noble Lords have referred to the Bassam name in the course of the debate—and not least with the notion that I might have a twin somewhere in the United States of America.
We are happy to respond to the amendments, and to the important issue that they get to the root of. They relate to the specific issue of the standard of proof relating to the person's identity at the initial hearing. When shortly we reach the group of amendments with Amendment No. 69, we shall have a more generalised discussion on the issue of the burden and standard of proof. 1 will try not to stray too much into that more general territory in my remarks on this group of amendments.
As I am sure those who have been studying the Bill will know, the first thing that happens after a person has been arrested is that he is brought before a United Kingdom district judge for an initial hearing which takes place very shortly after arrest. It has been said that the magistrates’ only power is effectively to determine whether the person in front of them is who he says he is. Although that is an extraordinarily important task, the district judge also has other tasks. He must inform the person of the contents of the warrant; give him information about the possibility of, and the consequences of, consenting to extradition; fix a date for the main extradition hearing;
1718 and decide whether to grant the person bail or remand him in custody. All of those tasks have important consequences and great import for the person affected.
However, before the judge does any of that, he must take a view on the person's identity. He must decide whether the person before him is the person whose extradition has been sought. At that stage the judge is not considering whether the extradition should take place, still less the issue of whether the person is guilty of the crime in question. He is simply reaching a view as to whether the person whose extradition has been sought and the person before him are one and the same. If the judge concludes that the person before him is not the right person, the person must be released automatically and without any further ado. There are no further proceedings or appeals. It is quite simply the end of the matter. I ask your Lordships to bear that in mind as you consider this issue.
The Bill, as it was originally introduced, did not specify the standard of proof that the judge should apply when considering the person's identity. During Committee stage in another place it was suggested that that was unduly ambiguous and that the Bill should stipulate the standard of proof to be applied. The Government accepted that that was a sensible suggestion and accordingly brought forward an amendment, which was accepted during Report stage, for exactly that purpose. The amendment made in another place imposed the balance of probabilities test. I think that I should explain why that was chosen and why I cannot suggest to your Lordships that you should accept these amendments from the Opposition which would instead substitute the criminal "beyond all reasonable doubt" standard.
Perhaps I could cite a real and, I think we would all agree tragic, example to illustrate the potential pitfalls if we were to make the change suggested by the amendments. I am sure that your Lordships are all too painfully aware of the awful case of Detective Constable Stephen Oake, who was murdered in a flat in Manchester in January 2003. Given the circumstances of the case, there was not too much doubt about who was thought to be responsible for that appalling crime. The person concerned was duly arrested and brought to court. He was charged under the name of Kamel Bourgass. The Times of 18th January 2003 reported:However, the court was told yesterday that police still do not know if this is his true identity. 'Inquiries are going on to determine whether this is his name or not', said Susan Hemming for the prosecution".It also became apparent that the prosecuting authorities did not even know what nationality he was.
Dangerous criminals of that kind are exactly the kind of people who feature in extradition cases. Those are the very people who very deliberately have no identity papers or, equally possible, possess three or more different passports, all in different names. In such circumstances the district judge may very well not be able to have certainty, beyond all reasonable doubt, as to the person's identity. Do we really want dangerous criminals, potentially terrorists, to be able to escape extradition and justice just because they are 1719 so adept at disguising their identity? It is certainly not what the Government want, and I suspect that on reflection it is not what your Lordships want.
It is certainly not what Nick Hawkins, the leading Opposition spokesman on the Bill in another place, wants. He accepted, as we do, that there is a difficult balancing act to be struck. He concluded:
I accept the choice that the Government made for the reasons set out by the Minister today".—[Official Report, Commons, 25/ 3/03; col. 173.]Would it really be justice if a suspected terrorist or other serious criminal was able to walk free just because he had two different passports and the judge could not have absolute certainty—because that is what is being suggested—about his identity?
I am confident that in genuine cases of mistaken identity the person will be able to satisfy the judge that he is the wrong person even on a balance of probabilities test. I really do not believe that we should be tipping the balance so far in favour of the identity fraudsters as would be the effect of these amendments. I do not think that that is what Members of your Lordships’ House want.
§ Lord Lamont of Lerwick
My Lords, the Minister commented on the balance of probabilities. I hope that he will forgive me if I was out of the Chamber when he mentioned the relevant case, but will he comment on the South African case where the United States authorities sought the extradition of a British citizen who was the victim of a case of mistaken identity? The noble Lord, Lord Bassam, shakes his head as though that is an inappropriate question. However, he has just advanced the case that these matters are easily resolved. The man in question suffered terribly from being mistakenly identified.
§ Lord Bassam of Brighton
My Lords, I greatly respect the noble Lord's sincerity in advancing an alternative case, as it were. However, he is asking me to make a judgment. I am not prepared to make that judgment. It would be wrong of me to do so. It is not right for me to comment on that particular case.
I referred to a case which I believe supports the principles behind the Government's legislation. It is a serious matter which needs to be taken into consideration. I invite the noble Lord and other Members of your Lordship’ House to reflect very carefully on that before they seek to press these amendments. I hope that, having heard the serious import of what I said, the noble Baroness will feel able to withdraw the amendment.
§ Baroness Anelay of St Johns
My Lords, the noble Lord, Lord Bassam, indulged in much rhetoric in trying to portray those who support the amendments as "do badders" who are keen to allow the worst terrorists to flee. He knows that that is not the case. I shall not indulge in the same kind of rhetoric. We are trying to catch the kind of circumstance that was recounted very carefully by the noble Viscount, Lord Bledisloe, in Grand Committee, and which we 1720 tried to hint at in the amendment. There are occasions when someone is patently innocent and should not be subject to extradition proceedings. I confess freely that we have not found a way of addressing what we consider to be the vital point that the noble Viscount, Lord Bledisloe, raised. I shall continue to address that point.
As noble Lords around the House said tonight, none of us would want an innocent person to be subject to these proceedings. None of us would want to sign up to legislation that would allow to go free a person who is accused of killing a member of our forces or our police or who is accused of an act of terrorism or a serious criminal act. However, we must serve the whole public. I shall consider how we can return to the matter at a later stage. I undertake to talk to the noble Viscount between now and Third Reading to see whether we can find an amendment which properly serves our joint objective. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 48 and 49 not moved.]
§ Clause 8 [Remand etc.]:
Baroness Anelay of St Johns moved Amendment No. 50:
Page 5, line 34, at end insert—
( ) ensure that the person has had the opportunity to receive independent legal advice about the implications of giving or withholding consent to extradition;
§ The noble Baroness said: My Lords, in moving Amendment No. 50, 1 wish to speak also to Amendments Nos. 201 and 211 with which it is grouped.
§ The point at issue here is the provision of legal aid at the initial stage of proceedings and in connection with the giving or withholding of consent to extradition. When we debated the matter in Committee we thought again about how our amendments were phrased. We listened to the points made in Committee and studied Hansard carefully. Many noble Lords drew to our attention the drafting error in our amendments. We heeded their advice and changed them.
§ It is clear that we all agree that we must ensure that no one gives their consent to extradition unless they have had at least the opportunity to receive legal advice. The Government have already shown us their commitment to that principle through the amendments to Clauses 44 and 127. They put significant safeguards into the clauses on consent, which we certainly welcomed.
§ Our amendments are on the same theme, but are designed to strengthen the Government's commitment to the provision of independent legal advice throughout the Bill. Clause 8 lays an obligation on the judge to proceed under it by fixing a date for the extradition hearing, informing the person of the contents of the warrant, giving the person the required information about consent, and remanding the person in custody or on bail.
§ Initially, we intended to amend the clause by removing the duty on the judge to give the person the required information about consent, and by placing 1721 instead a positive obligation on the judge to ensure that the person had received independent advice about consent issues. We felt that that approach was flawed, so our new amendment maintains that independent legal advice should be provided to the defendant at the initial hearing. We have already explained that that is advisable. At the moment, the judge must tell the defendant that he can consent to extradition or not, how the procedure will work if he does consent, and that consent is irrevocable. In Clause 44, we see that the person can give his consent only if he has had access to legal advice, and is either legally represented at the time of giving consent or has refused legal aid having been given the opportunity of it.
§ We are concerned about the timing. At what stage will the lawyers have access to the defendant in order to run through the issues involved in giving consent? We want to make sure that the person has had time to talk matters through and reflect on which course is appropriate to the situation, without in any way opening the gate to people who want simply to extend the process for their own purposes rather than proper judicial reasons.
§ Under Clause 44, the person who has been arrested may have had legal aid for only a matter of hours before he is required to make his decision. We want the Bill to make sure that such a short time frame is not the case. By introducing a requirement for the defendant to have access to legal aid at the stage that Clause 8 describes, we would try to provide certainty that he had time to consider the very serious decision before him.
§ I make it clear that all the amendments are strictly probing. We are trying to get a picture on record of how the provisions will work. I beg to move.
§ Lord Bassam of Brighton
My Lords, as ever I am extraordinarily grateful to the noble Baroness, Lady Anelay, for having tabled the amendments and explained their purpose. She always gets her explanations spot on.
The amendments relate to the important issues of consent to extradition and, more specifically, of the legal advice available to a person in such circumstances. It may be worth recording that somewhere between a quarter and a third of those who are the subject of extradition proceedings in this country consent to extradition, so it is not an insignificant issue. It is also very significant for the individual concerned. Deciding whether to consent to the extradition request or to go back voluntarily is a very important decision.
That makes it absolutely vital that those concerned understand the full implications of granting that consent. For that reason, the judge is required at the initial hearing to explain to the fugitive about the possibility of giving consent and also about the implications and consequences of so doing. In particular, the judge must set out the consent procedure and make sure that the person is aware of the very important fact that once consent has been given it cannot be revoked.
1722 The amendments would impose an additional requirement on the district judge at that initial hearing. He would also be required to ensure that the person has had the opportunity to receive legal advice about the implications of consenting to his extradition.
I am sure that many of your Lordships will regard this as a sensible proposition, as do I.I do not disagree with the underlying sentiment behind the amendments, but I want gently to suggest that they are superfluous. I remind noble Lords, first, that anyone who is the subject of extradition proceedings is entitled to legal aid. Every person who is arrested in an extradition case has the same entitlement as those arrested in purely domestic cases. That entitlement is to independent legal advice.
The duty solicitor scheme is designed precisely to ensure that this advice is available before the first court appearance. In the extradition context, that means that the legal aid is available before the fugitive has any opportunity to consent to extradition. So the advice is there before he is put in the position of considering consent.
As your Lordships will see from the draft code of practice on police powers, which we put out for consultation, the first duty of the custody officer following a person's arrest in an extradition case is to ensure that he is informed at the first instance of his right to free, independent legal advice. So right at the outset it is the duty of that custody officer to make that crystal clear.
I want to take this opportunity to put on the record one other point which arose in Grand Committee. My noble friend Lady Scotland has written to the noble Baroness, Lady Anelay, about it. The Government are engaged on a consultation exercise about possible changes to the duty solicitor scheme. However, extradition cases are of such a seriousness that they would not be affected by any such changes. We wanted that to be widely known and understood. In other words, the duty solicitor scheme will continue to be available to all those arrested in connection with extradition.
However, my reason for suggesting that these amendments are unnecessary goes beyond that. If noble Lords care to take a careful look at Clause 44 and the corresponding Part 2 provisions in Clause 127, they will see that they make clear that the district judge cannot accept a person's consent to extradition unless that person is legally represented or has had the opportunity to have legal advice. In other words—and I have chosen these words very carefully—it will never be possible for a person to consent to his extradition unless he has had the opportunity to take legal advice. That is what the Bill already provides for and, accordingly, I do not believe that these amendments are appropriate or necessary. I hope that, having heard that, the noble Baroness, Lady Anelay, will feel not only reassured but confident in withdrawing her amendment.
§ Baroness Anelay of St Johns
My Lords, I am grateful to the Minister. He has put the Government's arguments on the record more clearly than in Grand Committee. I certainly accept his assurances on those matters.
He was right to refer to legal aid. I asked questions in Grand Committee because I was concerned about the continuation of legal aid being available for serious cases. I was grateful to the noble Baroness, Lady Scotland, for writing to me to confirm that. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Crawley
My Lords, I beg to move that consideration on Report be now adjourned.
1724 Moved accordingly, and, on Question, Motion agreed to.