Sitting of 20 October 1987

Preamble
Reassembling after the Summer Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.
Several Lords Several Lords—Took the Oath.

Lord Rippon of Hexham
The Right Honourable Aubrey Geoffrey Frederick Rippon, QC, having been created Baron Rippon of Hexham, of Hesleyside in the County of Northumberland, for life—Was, in his robes, introduced between the Lord Mowbray and Stourton and the Lord Bethell.
Lord Cocks of Hartcliffe
The Right Honourable Michael Francis Lovell Cocks, having been created Baron Cocks of Hartcliffe, of Chinnor in the County of Oxfordshire, for life—Was, in his robes, introduced between the Lord Ponsonby of Shulbrede and the Lord Denham.

Tributes
3 p.m.
The Lord President of the Council (Viscount Whitelaw): My Lords, I am sure that you have all been saddened by the deaths during the recess of a number of noble Lords who have given considerable service to your Lordships' House over the years. In accordance with the traditions of the House, I shall refer in particular to one of my predecessors as Leader, Lord Soames. The many tributes in the press have given details of his outstanding political career and assessments of his considerable achievements in a wide variety of fields. As your Lordships will be aware, those started when he was Parliamentary Private Secretary to Winston Churchill when he was Prime Minister and continued in his many other offices and appointments, including Minister of
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Agriculture, Ambassador to Paris, Commissioner of the European Commission and the last Governor of Rhodesia.
I shall confine myself to a few more personal comments about the Christopher Soames we knew either as Leader or as a Member of your Lordships' House. I know from what I have been told how much your Lordships valued his work as Leader and his interest in the working of the House. It is also worth recalling that the presence of television in your Lordships' House owes much to his initiative and enthusiasm for greater publicity for our proceedings.
In personal terms, I have little doubt that your Lordships will all remember him best as a big man in every sense of the word, for there was nothing small or small-minded about him. He loved to have his devoted wife Mary and his family around him. He enjoyed to the full the company of his friends and he gave generously of his friendship, for he had a big heart. He enjoyed entertaining and being entertained. Few who visited him, particularly when he was Ambassador in Paris, will ever forget his generosity and his hospitality. I know that he would like best to be remembered for all those qualities, and I have no doubt that such is the memory of him which will live in your Lordships' House.
No doubt there will also be the memory, most precious of all in your Lordships' minds, of the courage with which he faced his last illness. I know we should all like to send our sympathy to his wife Mary and all his family.
Noble Lords: Hear, hear!
Lord Cledwyn of Penrhos: My Lords, as the noble Viscount has said, we have been greatly saddened by the death of a number of our colleagues during the recess. The noble Viscount has referred in moving terms to the death of Christopher Soames. We all know the wide range of his interests and the great offices, both political and diplomatic, which he held with great distinction. He had a varied and colourful career.
I first came to know him about 35 years ago when he was Parliamentary Private Secretary to his illustrious father-in-law. It is an interesting historical fact that he was probably the most influential Parliamentary Private Secretary in the annals of

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Parliament. But there are others in this House who served with him and who will speak with greater authority about his role at that time.
Shortly after I entered the other place, I was walking with a colleague along the Library corridor when the Prime Minister and his Parliamentary Private Secretary passed by. We nodded respectfully to the great man. Later that day, Christopher came to me laughing and said that the Prime Minister had asked who we were and he had replied, "Some new Welsh Members"; whereupon Winston Churchill remarked, "They can be quite nice, but you have got to observe them carefully".
Lord Soames also occupied several ministerial positions, including that of Minister at the Ministry of Agriculture, where I followed him in due course and where I discovered immediately that he was very much respected. As the noble Viscount has said, he was an arresting personality and he liked and indeed insisted as Minister upon having his own way.
He was also probably one of the few Members of Parliament who was fortunate in losing his seat, as he did in 1966, for it opened the door to the Paris Embassy—where he was a welcoming and generous host—and to the EC Commission. As a committed European he filled that post with well-known enthusiasm. His return to politics as Leader of this House will be remembered best in history for his short but historic tenure in Rhodesia and Mr. Mugabe's presence at his funeral was a fitting tribute to his service there. This House has lost one of its outstanding personalities and we shall miss him. We send our deep sympathies to Lady Soames and the family.
Noble Lords: Hear, hear.
Lord Diamond: My Lords, the long recess almost always results in our returning with some new and very sad memories, and that is the case today. In particular we mourn the loss of one who was our Leader. But our first thoughts must go not to our own sense of bereavement but to the loss sustained by his family. It is to them, on behalf of all my friends, that we offer our most sincere condolences.
I was fortunate in getting to know Christopher Soames quite well, mainly in the other House, but there is nothing remarkable about that, for there were few people whom it was easier to get to know. He was always a very friendly, outgoing and warm-hearted personality. In particular in his personal relationships he refused to take any account of the difference in status or even of party of those to whom he was showing friendship. He was totally devoid of stuffiness. He was a great man in every sense, as has been said. He had a most remarkable endowment of talents and a remarkable tally of achievements. He was a great soldier, he was a great ambassador and he was a great minister; indeed a Cabinet Minister. Which of us, as has already been referred to, will ever forget his achievement as the last Governor of Southern Rhodesia, and as we all know he was Lord President of the Council and Leader of our House.
Perhaps my first and greatest memory of him will always be for the steadfast way in which he promoted and supported the European cause. Not only did he do remarkable work in this country but there he was in Europe to be seen plainly as the most English of
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Englishmen, behaving and speaking (incidentally in good French) as a European. He was a great ambassador in Paris and an equally great ambassador in the EC. I am sure that there are hundreds in this country, in Europe and in Africa who will share our sense of deep loss.
Noble Lords: Hear, hear.
Baroness Hylton-Foster: My Lords, on behalf of the Cross-Bench Peers I should like to associate this part of the House with what has already with eloquence been said about the late Lord Soames. Not much has been said in the press about his distinguished leadership of this House from May 1979 to 1981, interrupted as it was by his five months as Governor General. Despite this interruption he made a wholly beneficial impact on the House not only because he had great presence as Leader of the House but primarily because he clearly cared about the House, its traditions and its future. We on the Cross-Benches appreciated his quality and his respect for Back-Benchers and for those who hold no party political allegiance. As has already been said, he was the prime mover in promoting television in this House. It was his Motion in December 1983 that led to the initial inquiry, the experimental period and now to the coverage which we have all grown so used to. This was just one aspect of his intense and close interest in the House and its future. We also send our deep sympathy to Lady Soames and her family.
Noble Lords: Hear, hear.

Telecommunications Act: Consumer Protection
3.10 p.m.
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied with the degree of protection to the consumer at present afforded by the Telecommunications Act 1984.
Lord Beaverbrook: My Lords, yes. The Telecommunications Act 1984 established the office of the Director-General of Telecommunications. Among his duties he has to exercise his functions in the way best calculated to promote the interests of the consumers.
Lord Dean of Beswick: My Lords, is not the noble Lord aware that the main objective in privatising British Telecom was to give the customers a better all round service? Can he tell me, bearing in mind the recent very adverse report issued by Oftel, when the Government expect British Telecom to reach the objective set in the Act?
Lord Beaverbrook: My Lords, clearly there are problems to be tackled and British Telecom sees that as a high priority. However, we should not overlook the scale of BT's operations. There are 22 million customers and complex switching operations,

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combined with extensive modernisation, which are bound to create problems; but I believe that a privatised British Telecom in a competitive environment is best placed to handle them.
Lord Williams of Elvel: My Lords, is it not the case that the Government are still a major shareholder in British Telecom? After the events on the Stock Exchange over the past 36 hours they are liable to remain so for some time. Therefore, is it not right that the Government, as a shareholder, should use their authority to require BT to pay more attention to proper complaints from consumers, to publish data on sales and what goes wrong, as BT used to do, and to exercise proper discretion in the choice of its chairman? Above all, should not British Telcom stop overcharging its clients?
Lord Beaverbrook: My Lords, as the noble Lord knows, British Telecom operates under a licence which contains detailed conditions on service. The Director-General of Telecommunications is responsible for monitoring and enforcing that licence. The choice of chairman is a matter for the company, not the Government. The Government welcome Mr. Vallance's commitment to tackle the problems with vigour and to improve the company's services for its customers.
Lord Mulley: My Lords, does not the noble Lord agree that the experience with British Telecom indicates that these complicated arrangements such as Oftel and others are no substitute for parliamentary protection for the consumer? Will the Government bear that in mind before taking any other steps which may have adverse consequences; for example, with the electricity and water industries?
Lord Beaverbrook: I seem to remember, my Lords, that before the privatisation of British Telecom it was rare to receive any reply to complaints.
Lord John-Mackie: My Lords, the noble Lord referred to problems that have arisen, but together with many other people I had a perfectly good telephone service before privatisation. Can he explain where the competitiveness comes in?
Lord Beaverbrook: My Lords, the competitiveness comes from an organisation called Mercury, which is increasingly making an impact by offering customers the possibility of choice. Its services are at present predominantly for business customers but trials have started on residential services.
Earl De La Warr: My Lords, does my noble friend agree that, particularly in view of what has been said about the choice of chairman, this House and this country owe an enormous debt of gratitude to Sir George Jefferson for the work he did during the very difficult and complex time when he was in the chair and started the company on its new role?
Lord Beaverbrook: My Lords, I join my noble friend in that tribute.
Lord Cledwyn of Penrhos: My Lords, does not the noble Lord admit that the Government are genuinely concerned by the widespread dissatisfaction of customers with the performance of British Telecom since privatisation? Will he say precisely what the Government propose to do to allay that dissatisfaction? Will he go further and advise his right honourable friends to defer any further privatisation, especially in the water industry, at least until they get the position right?
Lord Beaverbrook: My Lords, we believe that the director-general has sufficient powers to enforce the rigorous provisions of British Telecom's licence and to amend these conditions either by agreement or by reference to the MMC. British Telecom and other operators are well aware of Oftel's powers. I should add that the director-general has not suggested that he needs further powers.

Fresh Start Proposals
3.15 p.m.
Lord Graham of Edmonton: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the implementation of the Fresh Start proposals is proceeding satisfactorily, especially in the London area.
The Minister of State, Home Office (The Earl of Caithness): My Lords, we are satisfied with progress on implementation of Fresh Start. It is now in place at 72 establishments, including Brixton, the first in the London area.
Lord Graham of Edmonton: My Lords, does the Minister accept that prison officers are fully committed to the principles and the implementation of the Fresh Start proposals? Will he now acknowledge that his original estimates of the number of prison officers required for Fresh Start, which were based on a consultant's report, were a very bad underestimate? Does he further agree that if an additional 240 prison officers were produced that would greatly relieve the conditions in prisons and in police cells?
Is it not a fact that the present troubles stem directly from the Government's failure to honour the agreements made to produce enough prison officers to man prisons to the Fresh Start levels? Can the Minister tell the House why, in addition, he also intends—
Noble Lords: Order! One question!
Lord Graham of Edmonton:—to impose a further 10 per cent. reduction on costs over the next few months?
The Earl of Caithness: My Lords, Fresh Start is a complicated area arising from considerable negotiations among the Home Office, the Prison Officers' Association and the governors. Earlier this

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year governors and prison officers overwhelmingly decided, by huge majorities, to accept the terms of Fresh Start. In no way has the Home Office deviated from any of the commitments in Fresh Start.
As regards the extra staff, I can assure the House that this year we are recruiting 750 officers especially for Fresh Start. Over the past seven years, from 1979 to 1986, prison officer staffs increased by 20 per cent. while the number of inmates increased by 11 per cent. This year we are recruiting over and above wastage about 1,400 extra staff.
Lord Elton: My Lords, can my noble friend tell the House in the context of what he just said what exactly is going on at Wandsworth and whether the industrial action which I understand is taking place there is claimed to be justified by an increase in the number of inmates or by a reduction in the number of prison officers?
The Earl of Caithness: My Lords, it is with regret that I must tell the House that industrial action at Wandsworth began at the end of July. On the specific point raised by my noble friend, the prison officers have claimed that they are short of staff compared with previous years. But from figures it is found that, although the population shifts throughout the year, if one takes particular days of the year, for example, on 1st July in 1985, 1986 and 1987, the population was virtually the same, as was the number of discipline officers. There is no reason for Wandsworth to take industrial action.
Lord Donaldson of Kingsbridge: My Lords, does the noble Earl remember that when Fresh Start was put before the House it was given a warm welcome from all Opposition Benches? However, we warned the Government that as far as we could see the scheme depended entirely on providing enough staff to reduce overtime to nine hours a week, which I believe is the present scheme. Is he aware that certainly in one prison of which I know, and I think in a number of others, Fresh Start has commenced without the provision of the necessary staff? That seems to be a very dangerous procedure.
The Earl of Caithness: My Lords, we had hoped to introduce Fresh Start throughout the prison service on 1st July. That did not prove to be possible because we did not receive the results of the ballots early enough. Therefore it was agreed to phase in the scheme. Half-way through the phasing in the Home Secretary, the Prison Officers' Association and the governors agreed that 1st November would be the cut-off date on which we wanted all establishments on Fresh Start. Those staffs with a differential between the 1st November figure and the figure that had been agreed between us would be in place by 28th February. That was agreed and that is why we are recruiting extra staff this year and why our training schools are full. In addition, we are recruiting 160 in hired accommodation.
Lord Mishcon: My Lords, does the noble Earl agree that the basic evil behind all this and all the questions and answers is the terrible, critical
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overcrowding of our prisons? Will he bear that in mind when we consider the provisions of the Criminal Justice Bill this afternoon and hereafter?
The Earl of Caithness: My Lords, as the noble Lord will be well aware, only about half our prisons are overcrowded. The other half are at capacity or less than capacity. We were seriously concerned about the huge number of people in our prisons, which is why the Home Secretary took the action that he did in the middle of July which resulted in the release of some 3,000 short-term prisoners. Given that, which was something that the Prison Officers' Association wanted, it is sad that the association has not responded better and has subsequently gone on to take industrial action.
Lord Rodney: My Lords, will my noble friend say how many prisoners are at present in police cells who should rightly be in prisons?
The Earl of Caithness: My Lords, we were well on our way to reducing the number of prisoners in police cells to zero, as the Home Secretary wished to do when he made his Statement in April. But as a result of industrial action in a limited number of prisons I have, with regret, to inform the House that at 1 p.m. yesterday we had 1,370 people in police cells. That is taking up manpower in 30 out of 43 forces and is entirely due to industrial action.
Lord Harris of Greenwich: My Lords, is the noble Earl aware that we shall obviously want to go into the question of police cells during our debate on the Criminal Justice Bill? There are a number of amendments down on that point. Is he further aware that many of us welcome the progress that has undoubtedly been made in the implementation of Fresh Start? A great deal of progress has been made and that reflects well on the local branches of the POA and the Home Office officials who have been responsible for that. Is the noble Earl also aware that it is deeply depressing once again to hear about these wearisome disputes going on in a limited number of London prisons, caused by the intolerable behaviour of a few POA branches? Is he aware that the only result of that is an attack on the civil rights of inmates, because they do not receive the privileges to which they are entitled?
The Earl of Caithness: My Lords, I am grateful for the support that the noble Lord has given us on Fresh Start. It is deeply depressing that we are back into industrial action. That is why the Home Secretary summoned the NEC of the POA to his office on Monday last week and gave it a firm warning that unless it managed to put its house in order and went back to normal working we should have to take other measures.
Lord Graham of Edmonton: My Lords, the Minister has drawn attention to the situation in London prisons. May I draw his attention to the situation at Grendon? I visited Grendon two or three weeks ago and I have had the position confirmed in writing. The POA is being invited to operate the Fresh Start propoals with 50 fewer prison officers

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than the number agreed to be the proper complement by the governor, the assessment team and the POA. Does the Minister accept that some disputes need to be resolved around the table? If there are intolerable conditions inside prisons due to overcrowding they are detrimental not only to the prisoners but to the prison officers.
The Earl of Caithness: My Lords, one of the great things about Fresh Start is that it allows for local negotiation. Where that has not been completed, I hope that it will be completed as soon as possible so that we can get many of the establishments onto Fresh Start, which is surely to the benefit of prison officers. That has been proven in the 70-odd prisons that have already gone onto Fresh Start and it will result in a better regime for the inmates.

Royal Ordnance Factories: Privatisation
3.23 p.m.
Lord Graham of Edmonton: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have any plans to monitor the consequences of privatising the Royal Ordnance factories, bearing in mind the announced closure of the Enfield small arms factory.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, Royal Ordnance is now owned by British Aerospace and free to operate unfettered in the private sector without the hindrance of government control. We have no plans to monitor this company any differently from other non-publicly owned defence contractors save in respect of the specific assurances relating to competition and ownership given by British Aerospace at the time of the purchase.
The planned closure of RO Enfield is of course unwelcome from the point of view of those who work there, but the decision was one for the management and was taken on purely commercial grounds without reference to Ministers.
Lord Graham of Edmonton: My Lords, is the Minister aware that the new owners of the Enfield small arms factory intend not only to close the factory but to sell the land at an estimated profit of £100 million—almost 50 per cent. of what they paid for 12 factories? Has the Minister any concern for the local community in Enfield and the workforce? As a result of privatisation the local economy will be decimated and hundreds of people will be put out of work.
Lord Trefgarne: My Lords, I do not think the noble Lord is right in either of his suppositions. As for the value of the site, far from the figure of £180 million which I think appeared in the press—
Lord Graham of Edmonton: It was £100 million.
Lord Trefgarne: My Lords, our assessment of the site value is £1.5 million. That of course is
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substantially less. As for the people who work there, of course I am sorry that their employment opportunities will disappear but as the noble Lord knows that will not happen immediately. In that context, 450 or 500 new job opportunities will emerge in Nottingham.
Lord Mayhew: My Lords, does the noble Lord agree that defence planning necessarily involves making some provision for spare capacity in the defence industries? Is he satisfied that the redundancies now being made in the newly-privatised industries are not just commercially profitable, as they no doubt are, but are in the national interest? Surely it is the Government's duty to bear that in mind and not just to remove themselves from this problem altogether.
Lord Trefgarne: My Lords, yes, it is of course our duty to ensure that we can procure our weapons and associated products when we need them from time to time. Current orders at Royal Ordnance which are being executed at Enfield will, I understand, if not completed in time be transferred to Nottingham. Additional orders have been placed with Royal Ordnance, for example, for the SA 80 weapon which I gather will be made at Nottingham. We are satisfied that Royal Ordnance will retain important capacity in this area. In any event, it is not the only company in this country that can meet our requirements.
Lord Diamond: My Lords, has the noble Lord, as he was required by courtesy so to do, warned his former colleagues that he was once more going to repeat the criticism that they interfered unwisely in the affairs of the Royal Ordnance factories?
Lord Tregarne: My Lords, I am not sure that I follow the question, but the position now is that Royal Ordnance is part of the private sector and Ministers are no more entitled to interfere in that company than they are in any other company in that sector.
Lord Diamond: My Lords, the noble Lord said that he did not fully follow my question. He has just told us once more that the advantage of this is that the Government are no longer free to interfere in the affairs of the Royal Ordnance factories.
Lord Trefgarne: My Lords, indeed. I regard that as an important advantage.
Lord Irving of Dartford: My Lords, if these are purely commercial decisions, will the noble Lord say in what sense the national interest is protected?
Lord Trefgarne: My Lords, the national interest requires that we retain the necessary industrial capacity to meet our requirements in times of tension or war. We are entirely satisfied that that position is covered.
Lord Graham of Edmonton: My Lords, the figure the Minister gave for the value of the site may well be right, but the company did not buy just the site; it bought the land around the site. In that part of

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England, land is valued at in the region of £1 million an acre. The company bought many acres and it intends to sell land and make a huge profit. Having sold assets to an asset stripper—in this case that is what it is—do the Government want merely to wash their hands of the local community and the people who work there?
Lord Tregarne: My Lords, if I may say so, I do not think the noble Lord is doing justice to the situation. The valuation of the site, including the land, is about the figure I gave. It is industrial land at present.
The interests of the people who work at Enfield are matters for Royal Ordnance under its new owners. However, the noble Lord may be reassured to know that for those who cannot be found work at Nottingham or in some other part of Royal Ordnance—I know that British Aerospace plans to do its best to find work within the organisation for as many as possible—the redundancy terms that applied when Royal Ordnance was part of the Civil Service remain broadly in place.

Easter Act 1928
3.30 p.m.
Lord Airedale: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the concern expressed on their behalf in this House at Question Time on 15th July about the bunching of bank holidays at the beginning of the summer, they will now introduce legislation to bring into force the Easter Act 1928 to fix Easter within the first half of April.
The Earl of Caithness: My Lords, no.
Lord Airedale: My Lords, I am very much obliged for that informative Answer. If this suggestion is not welcome, when may we be told what the Government's proposals will be to avoid the bunching of bank holidays, which they themselves so much deplore?
The Earl of Caithness: My Lords, regarding Easter, which is the Question on the Order Paper, Section 2(2) of the Easter Act 1928 states:
"regard shall be had to any opinion officially expressed by any Church or other Christian body",
before an order is made to fix the date of Easter. There is no immediate prospect of the Orthodox Churches making progress towards a common date, and we understand that the Vatican remains opposed to unilateral action.
Viscount Caldecote: My Lords, can the noble Earl say whether the Government are considering moving the first bank holiday in May to a Monday later in the year, perhaps to July or October, to avoid the possible bunching which often takes place between that bank holiday and Easter?
The Earl of Caithness: My Lords, with respect, that is another Question.
Lord Mishcon: My Lords, having regard to the Government's conduct of national affairs, would they consider holding a national holiday in celebration on 1st April?
The Earl of Caithness: My Lords, I am happy always to consider any sensible suggestion and I shall put that one forward as a possibility.
Lord Airedale: My Lords, is the Minister aware that the 1928 Act merely says that the Churches are to be consulted? Is it supposed that all the Churches would ever agree about anything?
The Earl of Caithness: My Lords, I understand that under the World Council of Churches the unanimous agreement of some 239 member Churches will have to be obtained. Following the debate which the noble Lord initiated on 5th April 1984, my noble friend Lord Elton wrote to the Orthodox Archbishop of Great Britain and Thyateira to ask whether he would ask the Economical Patriarch in Constantinople how matters stood on adopting a common date. The answer was not very helpful to the noble Lord.
Baroness Seear: My Lords, surely the noble Earl does not defend the ridiculous position in which in this year in a period of seven weeks we had no fewer than four public holidays and none throughout the remainder of the summer until the very end of August, the very time when people would like public holidays. There may be the difficulties that the noble Lord experienced with the Churches, but there are four holidays to be considered. Is it not time that we took a serious look—instead of always repudiating the suggestion—at a more intelligent arrangement of public holidays than we have in this country?
The Earl of Caithness: My Lords, the reason why I said that that was another Question earlier was that the matter was given fairly full discussion on 15th July in your Lordships' House.
Lord Elwyn-Jones: My Lords, with regard to the noble Earl's use of the term Economical Patriarch, has he in mind the Chancellor of the Exchequer?

Business
3.34 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Criminal Justice Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during this adjournment the Charities (Northern Ireland) Order 1987 and the Water (Fluoridation) (Northern Ireland) Order 1987 will be taken.

British Waterways Bill
Read a second time, and committed to an Unopposed Bill Committee.

Consolidation Bills: Joint Committee
The Lord Chancellor (Lord Havers): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That pursuant to Standing Order 49 the Lords following be appointed to join with a Committee of the Commons as the Joint Committee on Consolidation Bills:

Airedale, L.

Alexander of Tunis, E.

Campbell of Alloway, L.

Gisborough, L.

Grey, E.

Hanworth, V.

Lloyd of Kilgerran, L.

Lockwood, B.

Mackay of Clashfern, L.

Milner of Leeds, L.

Oliver of Aylmerton, L.

Strabolgi, L.

That the Committee have power to agree with the Committee of the Commons in the appointment of a Chairman;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out; and
That a Message be sent to the Commons to propose that the Joint Committee do meet on Wednesday 4th November next at half-past four o'clock in Committee Room 4.—(The Lord Chancellor.)
On Question, Motion agreed to; and it was ordered that a Message be sent to the Commons to acquaint them therewith.

Criminal Justice Bill [H.L.]
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 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),

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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 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 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

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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 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
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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

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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
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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

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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
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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

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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
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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.

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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
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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

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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
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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 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

29
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
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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

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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 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 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 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
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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.

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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
36
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

37
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
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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?

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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
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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

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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
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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

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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
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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.

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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

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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?
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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,
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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

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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.
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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 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 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 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 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 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
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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

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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
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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 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—

(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

(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,

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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 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
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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 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 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 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 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.]

Charities (Northern Ireland) Order 1987
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 29th April be approved.
The noble Lord said: My Lords, the Department of Finance and Personnel, which is the charity authority for Northern Ireland, has for some time felt that certain minor changes in the existing charity legislation, most of which dates from 1964, would be desirable. Similar thoughts prompted the Finance and Personnel Committee of the Northern Ireland Assembly to begin an examination of charity law in Northern Ireland. Having taken evidence from interested parties the Committee produced a report on this subject which was adopted by the Assembly in 1985. The report made a number of recommendations for changes in the present system of charity law. Although the Government were not able to accept all of these recommendations—some being too costly and others raising wider issues which could only be addressed nationally—it was clear that some of the changes would be advantageous to charities in Northern Ireland and should be put into effect.
Simultaneously, Parliament was considering and updating the law in England and Wales through the Charities Act 1985, a piece of legislation which owed much to the energy of a Select Committee of your Lordships' House. Although certain of the provisions of this Act are appropriate only to the system of charity law in England and Wales, others could well be of use in Northern Ireland and it was felt that it would be desirable to add new provisions based on part of this Act to the other proposals for changes in the Northern Ireland charity law.
What I have said is a brief background to the order before us this evening. Your Lordships may consider it of some assistance if I take the articles in the sequence in which they appear in the order.
Your Lordships will see that Article 3 is based on the Charities Act 1985 and that it applies only to charities whose main objective is the relief of poverty and which are also at least 50 years old. If the trustees of such a charity believe that the objects of the charity are obsolete, useless or impossible to achieve, then upon the passing of a unanimous resolution by the trustees the objects of the charity may be modified so that the charity's resources may be put to better use.
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The new objectives, however, must not be unjustifiably far from the original intention of the founder of the charity. This procedure which I have briefly outlined would be subject to the agreement of the Department of Finance and Personnel.
Article 4 on pages 4 and 5 is also based on the Charities Act 1985, and would allow for the trustees of charities with an annual income of less than £200 to transfer their charity's assets to another charity which has similar objectives to be held and applied as the property of the transferee charity. This procedure would also be subject to the agreement of the Department of Finance and Personnel.
Article 5 is again closely based on the Charities Act 1985. It concerns relatively small, even tiny, charities with an endowment of £25 or less and an annual income of £5 or less. The trustees of a charity in that category would thereby be allowed to expand the charity's income and capital, therefore bringing their charity to an end.
Article 6 paragraph 1 amends Section 13(1) of the Charities Act (NI) 1964, under which the Department of Finance and Personnel can now make cy-près schemes to alter the purposes of defunct charities whose assets do not exceed £5,000. The rather curious expression cy-près is a Norman French term and has come through usage to mean as near as possible. The essence of the present doctrine is therefore that if a gift is given with a general charitable intent, the law shall not allow the failure of a particular mode of trust to defeat the testator's intentions but will substitute other charitable purposes approaching as near as possible to the testator's original intentions.
The making of a scheme under the cy-près mechanism is a function which belongs traditionally to the Chancery Court. The object of giving limited powers to the department was to save small charitable bodies the cost of court proceedings which would seriously reduce the corpus of the charity or which might result in the virtual cessation of the charity because the trustees felt that they could not afford the expense of court proceedings. The present monetary limit of £5,000 of capital has been in operation for 22 years and the need for an upward revision of this limit to the proposed figure of £50,000 is pressing. I am sure that your Lordships will agree with that. This proposal should be generally welcomed by charity trustees.
Article 6 paragraph 2 deals with and amends Section 14(1) of the Charities Act (NI) 1964 under which the department can accept a bequest to a charity which has not been clearly identified and redirect it to a suitable recipient provided that the bequest does not exceed £250. By that paragraph we propose to increase that figure to £2,500.
Article 6 paragraph 3 concerns Section 24 of the Charities Act (NI) 1964 which deals with mixed trusts. When property is given so that it could he used for charitable or non-charitable purposes the gift may he invalid. But the department has power under Section 24 to direct such a gift to valid, exclusively charitable purposes provided that its value does not exceed £5,000. Article 6 paragraph 3 will increase the department's jurisdiction to the value of £50,000.

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This increase is in line with that proposed for the department's cy-près jurisdiction which I mentioned previously under Article 6 paragraph 1 of the order. Article 6 paragraph 4 will enable various financial limits in the Charities Act (NI) 1964 to be changed more readily in the future to allow for inflation.
Article 7 does away with the existing Section 32 of the 1964 Act and replaces it with a new section under which the value of land or leases of land will be assessed for the department by the Commissioner of Valuation on the basis of market value. The present system, which is carried out by means of a formula involving the net annual value, has over the years proved to be unsatisfactory in that it does not reflect the true market value of the property concerned.
Article 8 has been introduced to extend to this order the provisions of Sections 34, 35 and 36 of the 1964 Act covering the annual report by the department, interpretation, and the functions of the Attorney-General.
At present there is a potential loophole in the existing charity law. Article 9 introduces a new provision to deal with that situation. At the moment it is possible that a charity which is a company or body corporate and has power to alter the governing instruments establishing it as a body corporate could alter these instruments to allow assets to be used for a non-charitable purpose. This new provision, based on Section 30(2) of the Charities Act 1960 which only applies to England and Wales, will close this potential loophole in the law in Northern Ireland.
Article 10 provides for certain functions in relation to house-to-house collections, currently administered by the Department of Health and Social Services, to be transferred to the Department of Finance and Personnel. It is felt that this would be most appropriate as the latter department has general responsibility for charity matters in Northern Ireland.
The schedules contain pro forma resolutions of the types which can be passed by the trustees of certain charities under Articles 3, 4 and 5. It is desirable to provide these, partly to save trustees the trouble of drafting their own resolutions, and partly to ensure that the charities which take advantage of those articles pass resolutions in a consistent and legally sound form.
Those are the main points contained in the order. It is a difficult and complex field of law and I trust that my remarks have helped to clarify the various proposals. They represent a prudent modernisation of charity law in Northern Ireland. Since the order was laid a number of far-reaching proposals in relation to charity law and administration in England and Wales have been put forward in the report of the efficiency scrutiny of the supervision of charities conducted by a team led by Sir Philip Woodfield. Some of the proposals, if implemented, would have equivalent implications for Northern Ireland which would give rise to a need for us to consider further legislation. None, however, conflicts with the present proposals and therefore I confidently commend the order to your Lordships.
Moved, That the draft order laid before the House on 29th April be approved.—(Lord Lyell.)
Lord Prys-Davies: My Lords, I thank the noble Lord, Lord Lyell, for taking us through the articles of the draft order which is before the House. As the noble Lord pointed out, the order is based in part on reports from the Assembly and in part on the Charities Act 1985. We support the order, subject to one reservation concerning Articles 4 and 5.
Articles 3, 4 and 5 owe their impetus to the Charities Act 1985 which is based on the report of a select committee of your Lordships' House under the chairmanship of the noble and learned Lord, Lord Brightman. The Bill was introduced to your Lordships' House by the noble Viscount, Lord Colville. Articles 3, 4 and 5 adopt what has been described as the do-it-yourself mechanism for winding up the small charity for the relief of poverty.
The only doubt which we have revolves on the financial criteria to be found in Articles 4 and 5 which follow the qualifying income and capital criteria adopted by the 1985 Act. A small charity, for the purpose of the transfer of assets to another charity under Article 4, is defined in the order as having a gross income not exceeding £200 during the preceding accounting period. Those criteria were established by the 1985 Act. Yet some Members of your Lordships' House and of the other place considered that that limit was too low and thought that £500 would be an appropriate threshold.
Under Article 5, a small charity is allowed to spend its capital and thus, in effect, to dissolve itself. But for the purpose of the article, the small charity is defined as one which has a permanent endowment of £25 or less, not including land, and with a gross income of £5 or less during the preceding accounting period. Once again, those are the criteria to be found in the Charities Act 1985, and some members of your Lordships' House and of the other place considered that those figures were too low. Is there evidence that the thresholds to which I have referred are about right, or are they too low? It is an important point because if the thresholds are too low the order may not answer the problems of many small charities as they will not be small enough to take advantage of the do-it-yourself mechanism. In that case, the desired result would not be achieved. Perhaps the Minister can help the House concerning that aspect of the order. Can he tell the House how many charities in England and Wales have availed themselves of the provisions of the 1985 Act and transferred their assets to another charity or spent their permanent endowment and ceased to exist as separate entities?
I should also like to ask the Minister whether the department consulted the Charity Commissioners for England and Wales in determining where the thresholds should be drawn. In the light of their experience in operating the Charities Act 1985, do the commissioners for England and Wales consider that the limits provided in the 1985 Act should be increased? Did that matter concern the department when it was drafting the order?

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The Minister has explained that the new powers are available to the trustees on the passing of appropriate resolutions which are set out in the schedule to the order. Those are identical to the resolutions contained in the Charities Act 1985. However, I should be grateful if the Minister could clear up one small point. The requirements of the 1985 Act in that respect would be satisfied if the resolution is,
"as near to the prescribed form as circumstances may admit".
Those words are missing from the draft order which is before the House. I am mindful of an explanation given by the Minister to the House in the course of the debate on the Enduring Powers of Attorney Order a few months ago. Am I correct in assuming that the alternative wording which is to be found in the 1985 Act is implied by virtue of one of the Northern Ireland interpretation Acts?
I note that the order does not contain a statutory obligation on charities to file annual accounts. Presumably that is so because Northern Ireland charities are not registered in any central register maintained by the department. I notice from the report of the Assembly that many people consider that those two omissions point to a weakness in the law on charities in Northern Ireland. I believe that the Assembly came to the conclusion some years ago that there was an overwhelming need for all charities in the Province to be registered in a central register, and it so recommended. It seems to us to be a recommendation which should have been accepted by the department and I am just wondering why it was rejected. Was it simply rejected because the department did not want to increase its workload?
As I have said, we on these Benches, subject only to those reservations about the thresholds in Articles 4 and 5, approve the order and very much hope that it will achieve the desired result. I should be glad if the Minister could deal with this today or could write and place a copy of his answer in the Library.
7.15 p.m.
Viscount Colville of Culross: My Lords, the noble Lord opposite is in a unique position to speak on this not only with his knowledge of affairs in Northern Ireland but also as a former member of the Select Committee which gave birth eventually to the Charities Act 1985. He will probably recognise that in relation to the statutory financial limits the order provides for a substitution of the sum specified by an affirmative resolution in Article 4(12) and in Article 5(5). He will probably recall that the discussions that took place concerned only England and Wales at that stage, and there was a very delicate balance in the discussions and in the evidence that was placed before the Select Committee about the starting point for the small charities that were going to be allowed to use this procedure.
I suggest to the noble Lord that there is probably no very great harm done in beginning at the same point in Northern Ireland as in England and Wales. If experience shows—and I would be extremely interested if my noble friend could tell us what the experience is of the legislation in England and Wales—that trustees are not coming forward because the limits are too low, then of course we would have
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evidence to bring before Parliament to suggest that there should be an increase. Perhaps the noble Lord will agree with me that it is best to start at the same point as in the original legislation and then see how things go from there.
Lord Prys-Davies: My Lords, I would not at all dissent from that contribution. The point I was trying to make was whether the department had had consultations with the Charity Commissioners and whether in the light of their experience they were satisfied with the thresholds in the 1985 Act or whether they thought that the time had come to increase them.
Lord Lyell: My Lords, we are very grateful to the two noble Lords who have spoken, first of all to the noble Lord, Lord Prys-Davies, and, not surprisingly, to my noble friend Lord Colville, whose speech recalled his Private Member's Bill of just under three years ago in which he did such great work. I have been reading this evening. I felt that I might need further advice on some of the queries raised by the noble Lord opposite. I felt that, "Cometh the man, cometh the hour", and my noble friend was giving us great support in your Lordships' House. I am particularly grateful to him.
The noble Lord, Lord Prys-Davies, raised the question of financial criteria in Articles 3, 4 and 5 and I hope that he will accept that certainly I would have nothing further to add to what my noble friend has said. I am particularly grateful, since I think I would have either to write to the noble Lord or alternatively I would not have been able to give him such a concise answer as that which has been given by my noble friend.
The noble Lord also asked me how many English and Welsh charities have taken advantage of the similar legislation in the 1985 Act. I am afraid I shall have to write to him on that. I am sorry that I do not have the information with me this evening.
As far as the limits are concerned and whether they are too low, we understand they certainly reflect parity with England and Wales. We believe that there has not been any difficulty or that there should not be any difficulty with these limits. The noble Lord also asked me whether we were satisfied with the words, "as near as". The best answer I can give him is to consult both Articles 3 and 4 in the order this evening. If he will look at Articles 3(8) and 4(7), he will find that they are near enough the same and the department may give its power. It has options of granting, deferring or refusing the request of the trustees to wind up the charity, change the charity or transfer, in the case of Article 4, and to alter the objects in Article 3.
We think that these two paragraphs provide the longstop and the safeguard to the charities and, above all, to the testators, whose original intention is set out in the charities in that if the trustees can obtain unanimous agreement as to what they ought to do, then they certainly will have to convey their wishes to the department, which will have the final say. This is certainly a respectable longstop and a respectable

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tradition. We think that this will be effective, since it is based on the 1985 Act in England and Wales and we do not think there has been any major problem with that.
As to the interpretation point raised by the noble Lord, Lord Prys-Davies, I shall have to write to him on that. I am sure that it will be a brief note. I am particularly grateful to my noble friend Lord Colville for his intervention and for pointing out to me something which I should have known, namely, that the noble Lord, Lord Prys-Davies, was a member of the Select Committee.
With that and with the assurances I have given to the noble Lord, Lord Prys-Davies, that I shall let him have, I hope, a brief note on the points to which I am not able to reply to tonight, I commend the order to the House.
On Question, Motion agreed to.

Water (Fluoridation) (Northern Ireland) Order 1987
7.28 p.m.
Lord Lyell Lord Lyell rose to move, That the draft order laid before the House on 27th April be approved.
The noble Lord said: My Lords, I beg to move.
Although there has been a welcome reduction in dental decay over the past 10 years it still remains a significant and costly form of disease. The child dental health survey carried out in 1983 showed, if we take one example, that 64 per cent. of 13 year-old children in Northern Ireland had active decay in permanent teeth, double the number in England. This need not be the case. We owe it to our children, and above all to future generations, to prevent this unnecessary and unsightly handicap. I and my colleagues are convinced that fluoridation of public water supplies at the levels proposed in the order would significantly reduce the very high incidence of tooth decay in the Province.
Water fluoridation is not of course the only means of reducing dental decay. Reductions can also be brought about by improvements in diet and oral hygiene but there are limits to what these can achieve. The use of fluoride toothpaste, the provision of fluoride tablets for children and the application of topical fluoride directly onto the teeth are other ways of improving dental health.
Much of the recent general reduction in dental decay is thought to be related to the increased use of fluoride toothpaste. However, these methods can be a relatively expensive means of reducing dental decay and require a regular regime. Experience shows that this is not always easy for parents to maintain, particularly in the areas of social deprivation. Water fluoridation has advantages over all of these methods in that it can be highly cost-effective and does not require the use of trained personnel or a conscious effort by the recipient. It also confers a benefit on the whole community using fluoridated water.
Successive governments have taken the view that fluoridation is an effective public health measure.
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Until 1983 it was thought that no specific powers were needed to add fluoride to public water supplies. However, in that year Lord Jauncey ruled that fluoride was ultra vires under Scottish law which at that time was comparable to the present Northern Ireland law. As well as ruling on the legal position Lord Jauncey concluded that the addition of fluoride to the public water supply would be likely to reduce the incidence of dental caries and that there was no evidence that the addition of fluoride at a concentration of one part per million was harmful to health. Although Lord Jauncey's judgment was not binding outside Scotland, the Government decided, purely for the avoidance of any doubt, that legislation should be introduced to clarify the power of water authorities throughout the United Kingdom to add fluoride to the water supply. This was done for Scotland, England and Wales in the Water (Fluoridation) Act 1985, on which several noble Lords spoke.
The order which I ask the House to approve today will make broadly comparable provisions for Northern Ireland. Because of the different administrative arrangements which exist there, the order does not exactly mirror the Great Britain legislation. It does, however, in line with the 1985 Act require decisions to be taken locally on whether fluoridation should be introduced in particular areas. Such decisions would be taken by health and social services boards only after they had advertised any proposal for fluoridation and consulted the district councils for the areas affected.
The only significant difference between the proposed order and the Water (Fluoridation) Act 1985 is the requirement that boards should seek the approval of the Department of Health and Social Services before asking the Department of the Environment, the sole water authority for Northern Ireland, to fluoridate a particular water supply. The DHSS will fund approved new schemes and this procedure will ensure that the cost effectiveness of schemes will be assessed and the availability of funds confirmed before the water authority starts to take the necessary action.
As I have explained to the House, the order would clarify the law in Northern Ireland on fluoridation of public water supplies and bring it into line with what the law is now in Great Britain. I commend it to the House.
Moved, That the draft order laid before the House on 27th April be approved.—(Lord Lyell.)
Lord Prys-Davies: My Lords, many of the articles of this order have a familiar ring about them. If the terms of the order were amendable I am sure it would attract the volume of criticism which was addressed to the Water Fluoridation Bill in 1985. If that were the position we would have a re-run of the many amendments which were tabled when that Bill was before your Lordships' House.
There is always considerable strength of feeling on the question of fluoridation of the domestic water supply. It is welcomed by many people as being a good example of a preventive health measure, though

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I believe that the technical evidence is not absolutely conclusive on this issue. For others, of course, there are sound ethical grounds for questioning the decision to fluoridate domestic water.
The opponents of fluoridation may draw a small measure of comfort from the fact that the nominated health board has to consult the elected district council before it formally applies to the Department of the Environment, with the consent of the Department of Health for the supply to be fluoridated. We welcome very much this duty to consult the elected authority which does have some responsibility to the people who live in its district and can therefore be expected to be sensitive to local opinion.
We also note that the health board's application has to be supported by the Department of Health, and that should also be another safeguard. The Minister referred to yet another safeguard. The health board is under a duty to publish in one or more local newspapers its intention to apply for water to be fluoridated and to republish the notice not earlier than seven days after the publication of the first notice.
There is another safeguard which I do not think was mentioned by the Minister. Members of the public are, in general, not to be excluded from the meeting of the health board at which the decision to apply for fluoridation is debated and taken. Therefore, there are three or four safeguards in the order and that may go some way to assure people who are concerned about it.
I should mention that I have not in fact received a single objection to this order from any individual or any organisation in Northern Ireland and the Government may draw some comfort from this silence. With those comments we approve the order.
Lord Winstanley: My Lords, I merely say briefly that I am wholly in support of this order and would not wish to see it amended in any way at all. I should like to feel that, in saying that, I am speaking for every one of my noble friends on these Benches; but, the subject being as it is, I am bound to say that there may be one or two of my noble friends who are still not convinced that this wholly safe and very beneficial public health measure is desirable. There are still some who have to be persuaded.
Having said that I am wholly in support, I express one faint misgiving. In introducing the order, the noble Lord referred to the lengthy debates we had in your Lordships' House on the Water Fluoridation Bill in 1985. As a result of the publicity, a very large number of the people in Britain, having heard that the Bill was passed, automatically assumed that the water they were receiving was fluoridated. Indeed, a poll showed that eight out of 10 people believed that they were having fluoridated water, whereas in reality the number is very much smaller.
My fear is that although we pass an order and an Act, changes do not happen very quickly. In England
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and Wales this has been partly as a result of the delay in publishing and producing the DHSS and Department of Education joint guidelines. That has delayed matters. However, I hope that this order, once accepted, will entail no great delay in enabling the people of Northern Ireland to benefit from this extremely desirable and, I repeat, wholly safe public health measure.
Lord Monson: My Lords, I should also like to thank the noble Lord, Lord Lyell, for explaining this order. Having said that, I must deplore the way in which this extremely contentious issue of fluoridation is being dealt with. When it was to apply to England and Wales it was debated for many hours and for a great many days in both Houses of Parliament. There were many bitterly contested amendments and often close Divisions, especially in your Lordships' House. This order is being rushed through this House in under half an hour with no constitutional possibility of amendment and no realistic possibility of stopping or even delaying it. One cannot help feeling, not for the first time, that Northern Ireland is being treated almost as a colony, and a 19th century colony at that.
Once again I stress that I make no personal criticism whatever of the noble Lord, Lord Lyell. I fully realise that this state of affairs has come about as a result of collective Cabinet decisions which antedate by many years his assumption of office. This is a state of affairs which I must continue nevertheless to deplore.
On the question of fluoridation, it so happens that I have just returned from a transatlantic trip which culminated in five days spent in a territory where the population's drinking water comes entirely from rain-water. That rain-water is filtered but not otherwise treated. Furthermore, it is unpolluted; there are no industries to speak of on or anywhere near the island. There are of course other drinks as well, both hard and soft, but when people want to drink water, as it comes or in the form of tea, coffee, ice for their drinks or added to their whisky, rainwater it has to be. Yet the people of that island have white and healthy teeth. They have notably better teeth than the average Englishman or Englishwoman.
Moreover that state of affairs has nothing to do with a healthy diet: I fear that the people of that island consume large amounts of American-style junk food in the form of hamburgers in sweet white buns, fizzy sweet soft drinks and so on. That makes the state of their dental health all the more impressive. It gives the lie to the assertion that fluoridation is necessary for healthy teeth.
Article 6(6) causes particular worry. It appears to give the Department of Health and Social Security power to suspend the right of a board to take account of public opposition to fluoridation and to act accordingly by withdrawing a fluoridation scheme. The power conferred by that paragraph may not be technically undemocratic but it would nevertheless seem to contravene the spirit of democracy. I hope the noble Lord will explain why that rather alarming paragraph has been included.
Lord Campbell of Croy: My Lords, I also should like to thank my noble friend for the way in which he introduced the order. The noble Lord, Lord Monson, has expressed doubts about fluoridation. I should like briefly to make a few fundamental points about fluoridation. Fluoride exists in all natural sources in the United Kingdom which provide our water supplies. In some areas it exists in the optimum amount for the health of teeth. People who have been fortunate enough to live from birth in those areas have much better teeth than those who live elsewhere in the United Kingdom.
Natural sources contain other substances, dissolved or carried in the water. There is no such thing as pure water in the original sources in the United Kingdom. Therefore, water authorities have for years added other substances for various reasons. In some cases there is a list of those substances. I wonder whether the noble Lord, Lord Monson, has seen the list of some of those other substances to which apparently no objection is made. They are of course added mainly to make water wholesome, palatable and safe.
There is much concern about the burdens placed on the National Health Service and its rising costs. In my view that is justified, although I believe that the Government are doing their best.
The addition of fluoride to water to bring it to the optimum amount in those areas where it does not exist naturally in the optimum amount, if carried out widely, would be of immense benefit. In due course it would save tens of millions of pounds and probably hundreds of millions of pounds in resources. That money could then be used for other purposes for the benefit of the nation's health. It would also relieve the population, and I hope this is something for which all your Lordships will have sympathy, from toothache, especially among young people. To be fully effective fluoride should be ingested in the first few years of life. It is difficult to be thorough when taking tablets or using toothpaste particularly at those early ages. "Save the Children"—that is the cause which I would support. Save the children from pain. It is a worthy cause. I think that it is a campaign which most of us would support.
I hope that these points will be taken fully into account by those people who have doubts about fluoride.
Lord Hylton: My Lords, I should like to apologise to the noble Lord, Lord Lyell, for not being here soon enough to listen to the opening part of his introductory remarks. I think that there are much better ways of getting fluoride into and onto the teeth than by through the water supply; for instance, it can and is applied by dentists—I believe it is called "topically"—to the teeth of children and young people. It can also be applied through toothpaste and through milk, which is highly effective if done through schools. I hope the people in Northern Ireland who are interested in those matters will take note of those points.
7.45 p.m.
Lord Lyell: My Lords, I apologise for the fact that the noble Lord, Lord Hylton, had resumed his seat while I was receiving a note from the winged messenger and my noble friend. I meant no discourtesy to the noble Lord. We shall soon see and discuss who has the most caries. I thank all your Lordships who have spoken with no little passion about this order.
The noble Lord, Lord Prys-Davies, told us that he had received no representations on this order or matter from anyone in Northern Ireland. Your Lordships will not be surprised to know that there have been no major disagreements about water fluoridation in two particular areas. One or two people have made political points about consultation or the lack of it. They made the points made by the noble Lord, Lord Monson.
The noble Lord, Lord Prys-Davies, mentioned the fact that under Article 6(7) the public would have the right to attend meetings. I also noticed that. I am pleased that those members of the public who might express opinions with the passion that some of your Lordships have done will not be excluded from any meetings of the board.
I was not surprised that the noble Lord, Lord Winstanley, agreed with the order. I am pleased that he spoke for all on those Benches. I suspect that he spoke for all his noble colleagues who follow his profession and who are concerned with the health of not just teeth but the whole body. He made a notable contribution in debates on this matter in 1985. We note his strong support for the order once more this evening.
The noble Lord, Lord Monson, once again mentioned the fact that we are dealing with the matter during the dinner break and rushing it through. I hope that that does not stop us having a full discussion on the matter. I think that even he will agree that we do not necessarily want to go over all the ground that was covered in earlier debates relating to England and Wales, and of course Scotland as a result of the Jauncey judgment. I am grateful for his confirmation that his remarks about Northern Ireland legislation were not aimed at me. That is not often said, especially in the Province.
The noble Lord mentioned the rain-water which was consumed, presumably by himself and everyone else, on the island which he visited. I assume this is true of the inhabitants of the island that he visited, but I am advised that island people tend to have a high concentration of fish in their diet. I am further advised that that diet has a high fluoride content. My noble friend Lord Campbell of Croy pointed out that fluoride is present in almost all the water in the United Kingdom. The order gives the Department of the Environment in Northern Ireland, which is the sole water authority, the power to add fluoride to the water. I am given to understand that there is hardly a particle, an atom, of water in Northern Ireland which would not contain a tiny trace of fluoride.
Lord Monson: My Lords, may I briefly point out that fish is expensive in the territory in question as it is in most islands nowadays for various reasons. It is therefore not consumed to any degree by the population as a whole but only by the people who can afford it.
Lord Lyell: My Lords, I am not able to enter into an interesting debate on where the noble Lord spent his Recess or on the content of fish. My advisers think that most island people have a high content of fish in their diet. But perhaps we had better not discuss the pricing policies of the holiday paradise of the noble Lord with regard to fish. There might be some other element in the population's diet which gives rise to their healthy white teeth.
The noble Lord also asked me about Article 6(6). Article 6 deals with consultation and publicity. Although the boards are required to advertise their proposals for schemes on fluoridation as well as advising and consulting district councils, the article does not place any constraint on the ultimate decision-making power of the board because the statutory duty which is vested by Parliament for preventive health measures lies with the boards and a requirement to seek approval from the department to a scheme does not imply that the department may oppose a board on policy grounds.
The provision in Article 6(6) relating to the Department of Health and Social Services to allow a scheme to be discontinued without consultation preserves an assurance given during the debate on the Water (Fluoridation) Act 1985. This provision would allow fluoridation to be stopped at short notice.
My noble friend Lord Campbell of Croy made an impassioned speech. Indeed, he made my remarks on introducing the order virtually superfluous. I am very grateful for his sound support and for his quotation that water should be wholesome, palatable and safe. It seems that my noble friend's words exactly mirror the words that I remember of Lord Jauncey in making his statement in this famed case in 1983. Certainly, I should not want to enter the lists as to whether fluoride would do my teeth, or anybody else's teeth, any good. I would send for two of my noble friends who deal in this specialised matter. We are not allowed to advertise, least of all from this position, but I think that they, too, would wish to enter the list on the side of your Lordships and possibly on the side of the supporters of the order before us this evening.
Lord Campbell of Croy: My Lords, I can guess from what the noble Lord said that the two noble Lords to whom he refers are practising dentists.
Lord Lyell: My Lords, the noble Lord puts it absolutely correctly but while I am in this position I had better say no more: otherwise, noble Lords may make some interesting deductions and know exactly to whom we are referring. However, I do not wish to have treatment now or within the next hour.
I thank all noble Lords who have spoken with no little passion, no little experience and no little insight. I commend the order.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 until 8 p.m.]

Criminal Justice Bill [H.L.]
House again in Committee.
Clauses 17 to 20 agreed to.
Clause 21 [First-;hand hearsay]:
On Question, Whether Clause 21 shall stand part of the Bill?
Lord Hutchinson of Lullington: I rise in this packed Chamber to oppose the Question, That Clause 21 shall stand part of the Bill. We oppose this clause as being far too broadly drawn, removing at a stroke some essential safeguards in the criminal process. To mitigate the rule against hearsay and permitting documentary hearsay evidence is entirely sensible and acceptable. To destroy the rule altogether is to damage irretrievably the fairness of the criminal trial. What the clause sets out to do is to make a statement by a person in any document admissible evidence in the trial of any indictable offence—that is, in the magistrates' courts or in the Crown Courts—admissible as to the truth of what is said in the document. The only qualification is that the evidence must be of facts which would be admissible if given orally. Such evidence is to be called "first-hand hearsay" and the document when put in evidence is to speak for itself.
I give three short examples, so far as I can see, of what the result of this clause would be where the maker of the document will not appear as a witness at all. A letter is found containing the statement, "X stayed late at the office on 1st October and I gave him the keys of the safe"—admissible as to the truth of its contents when X is charged with theft.
In a notebook of a police constable an entry is found, "Saw X loitering round the public lavatory on three separate days this week"—admissible without the police constable coming to the magistrates' court when X is charged with importuning for immoral purposes at that lavatory.
Thirdly, a copy of the minutes of a meeting of a company with an annotation on it by the chairman, "X said he knew some of the statements in the prospectus were false. Not surprising, as he drafted it!"—admissible when X is charged with fraud. None of these statements can be cross-examined. How could a defendant establish that it was the maker of the statement who in fact stayed behind with the keys of the office? How could he dispute the identification by the policeman outside the lavatory? How could he show that the chairman was lying, mistaken, biased or exculpating himself; that he never drafted anything at all? Were there later meetings which altered the records of the earlier one? What was the emotional state of the person who made the entry in the diary at the time?

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On the other hand, looking at it from the prosecution point of view, how could the prosecution deal with documents carefully prepared before an offence to put the blame on others or to provide a perfect alibi? A diary entry, "George arrived from London on the five o'clock train", the offence having taken place in London at a quarter past five, that is very helpful evidence to the defendant.
In fraud cases, false copy letters, false memoranda and false diary entries will now be legion and all admissible under this clause. Indeed what about false confessions by other accused? Confessions by the accused are accepted in this clause, but what about false confessions by other people who will not come to court and cannot be found? Why do we have now a general rule against hearsay evidence in documents?
The adversarial system is based, I suggest, on the principle that untested evidence is inherently unreliable; that no person should be convicted on untested evidence is one of the guarantees of a fair trial. Our system depends on the primacy of oral testimony, as the noble and learned Lord, Lord Hailsham, so strongly averred in our debates on the Roskill Report. The method of testing such evidence is cross-examination, which lies at the very heart of the whole Anglo-American trial system. Without cross-examination, without testing, a hearsay statement is exposed to mistakes of every kind, mistakes of perception, of observation, honest mistakes on dates, descriptions, identity, sight, hearing, to mistakes of omission and to the possibility of course, of concoction, of bias and of improper motive.
Rules are of course only rules. If they become out of date, if they are overtaken by changes in technology and the mere march of time, they must be changed. But in so doing, as we observed in our debate earlier this afternoon, the fundamentals of our criminal process, whatever may be the origin of them, must be preserved and must be defended, even if it is inconvenient to those who want to streamline the route to conviction.
Open justice, the onus of proof, conviction only on tested evidence, the protection against self-incrimination, the integrity of the jury, surely all of these things are matters worthy of some inconvenience in the system. Of course the general rule, as with all other rules, must be tempered with common sense. In fraud trials the documentation which swamps the proceedings—bank documents, company documents, share certificates—must be made admissible by procedure that avoids calling unnecessary oral evidence, bringing witnesses from abroad, bringing witnesses from hospital and so on.
That was recognised by all those who participated in the long debates on the Police and Criminal Evidence Bill. Sections 68 and 69 of that Bill were the outcome of those debates, and those provisions regarding proof of business documents are now already to be superseded by Clause 22 of this Bill. We shall no doubt debate that clause later. The clause we are debating now goes much further and is said to be based on Chapter 5 of the Roskill Report. I am very glad to see that the noble and learned Lord, Lord
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Roskill, is here, although I am in some trepidation of saying anything which might not be strictly accurate in his presence.
However, I suggest that the clauses in this Bill go further than the recommendations in the Roskill Report. The Roskill Report recommended that in fraud trials only there should be a discretionary power in the judge to allow such documents in evidence once the party producing them had explained to the court their nature and their source: that is, that there should be an inclusionary discretion in the judge. In other words, it would be for the judge to say, "Yes, in this case this document shall be admitted."
However, in this Bill under this clause the documents are to become admissible automatically, and the judge, and indeed the magistrate, will only have a discretion to exclude them—in other words, it is an exclusionary discretion. The result of that is that the onus will be on the accused person to establish that the document should not be allowed in under the provisions of Clause 23 which follows.
However, the Roskill recommendations themselves were open to serious criticism, I would suggest. I refer to the key paragraph, which is the one on which this clause is supposed to be based: paragraph 5.36 of the report. That paragraph, reading only the relevant matters, says:
"If one of the parties intends seriously to challenge the authenticity of a document and satisfies the trial judge at the preparatory hearings that he has good reason for so doing, he must, of course, be allowed to make that challenge and the strict requirements of proof should not be relaxed. But where his challenge is without foundation the trial judge at the preparatory hearings should have the power to permit the document to be given in evidence without formal proof."
The attitude there is that it should be the judge's discretion—that is what we find in this Bill—which replaces the rule of law that hearsay evidence should not be admissible. The judge decides whether the challenge is a serious one. He decides whether the challenge is without foundation and he permits the document to be let in or not let in. Without, I hope, any offence to the noble and learned Lord, we are reaching the position in this recommendation followed in the Bill that the judge's role becomes really that of the inquisitor instead of the independent referee. He becomes the inquisitor; he is the person who before the trial starts has to make up his mind whether what the defence are saying is without foundation or whether it is serious, and so on. Indeed, it is only a short step from there to defence by judicial consent.
The paragraph goes on:
"In exercising the discretionary power in the case of a document sought to be put in by the prosecution in this way the judge would need to be careful to ensure there was no unfairness to the defence. It may be suggested that such a change in the law might encourage the fabrication of documents by defendants. Even if this be a risk, we consider the risk small. If documents are fabricated and the fabrication is exposed, the effect is likely to be traumatic upon the fate of those on whose behalf the fabrication has been perpetrated. We think that should be a sufficient deterrent to fabrication."
That passage is interesting, because it never seems to have occurred to the Roskill Committee that the prosecution witness can fabricate evidence. Indeed, in many cases prosecution witnesses have been shown to have fabricated documents. Again it would seem to be somewhat naive, if I may say so, to suggest that

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the fear of exposure in a criminal trial will prevent fabrication or deceit. Protection against the putting in of these document in wrong circumstances is to be afforded by the terms of Schedule 2 to this Bill. That permits evidence to be called as to the credibility of the maker of the document and once again, only with the leave of the judge, as to any matter which could have been put in cross-examination if the maker of the document had been called. I have to say that that protection is really window dressing because it is the reaction and the demeanour of the witness when tested which may cause doubt in a jury's mind as to his reliability. It is not the material which happens to be in the advocate's hand which is going to make any difference.
Finally, much play is made of the fact that the rules have been relaxed in civil proceedings. But the criminal courts are concerned with offences and penalties and not with negligence and damages; with the liberty of the subject and with proof beyond reasonable doubt and not with proof on the balance of probabilities. The distinction between the civil and the criminal has been spelt out with clarity in a very recent case of Andrews by the noble and learned Lord, Lord Ackner, in a case which is reported in the Weekly Law Reports of this year, volume 2, at page 413.
The question in that case was whether hearsay evidence should be given of a victim's naming to a third party the person who in fact struck the blow two months before he, the victim, died. He therefore could not give evidence at the trial, and the test adopted by the noble and learned Lord was one which had been described by the noble and learned Lord, Lord Wilberforce, in a previous case as an entirely valid reason for exclusion of such evidence; namely, where the circumstances were such as to exclude any possibility of concoction or fabrication. The noble and learned Lord, Lord Ackner, said this:
"Whatever may he the position in civil proceedings, to use this doctrine as a device to avoid calling, when he is available, the maker of a statement and thus deprive the defendant of the opportunity to cross-examine, would not be consistent with the fundamental duty of the prosecution to produce all material facts to ensure that justice is done."
That is what we are discussing in the clause; whether justice is done.
If the clause stands, the next step will be to admit not only documentary first-hand hearsay but oral first-hand hearsay. I can indeed hear the noble and learned Lord, Lord Hailsham, arguing forcibly that the admissibility of evidence cannot be decided on whether the witness recorded the fact on the back of an envelope or recorded it in the back of his mind. The clause, if left part of the Bill, will lead, I suggest, to trial by document in proceedings presided over by an inquisitorial judge.
Your Lordships are not deciding whether to keep an outmoded rule or technical protection for the guilty. What you are deciding is the protection of the integrity of the criminal trial in Crown and magistrates' courts and, I suggest, the preservation of the essential fairness which has been the hallmark of that process for so long; if I can put it quite simply, whether justice is ensured to be done.
I submit to the Committee that the clause, which on the face of it makes a statement by a person in a
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document admissible of the truth of what that statement says (in any document created at any time and produced without the maker of it), is going far too far in sweeping away a rule which prevents generally hearsay evidence.
There is every reason for seeing that documents in fraud cases and in other cases, created by people who have a duty to create them and who have created them as a result of inquiries that they have made from people who have knowledge and so on, should be made admissible without all the ludicrous nonsense of bringing witnesses to court to prove every stage. That was provided for in the Police and Criminal Evidence Act 1984. We debated it at length. Those clauses are excellent and, in my submission, provide a perfectly good basis for dealing with those cases with which the Roskill Report dealt.
As a member of the Criminal Bar Association and an ex-chairman of it, long before the Roskill Report was ever brought into existence, I can say that we have continually asked for a reform of the law on this very matter. Let no-one in the Committee think that I and others who put forward the amendment are dinosaurs, dyed-in-the-wool, wanting to keep old ideas for our own personal advantage and so on. The young people who work at the coalface in the criminal bar—members of both the Criminal Bar Association and the Law Society—are against this enormous enlargement of the doing away of the hearsay rule.
Therefore, I ask members of the Committee to look seriously at the breadth of the clause. Clauses 22, 23 and 24 may be a different matter and may be amendable in detail. I suggest that Clause 21 goes far too far and that the Bill would be much better without it.
Lord Irvine of Lairg: I feel that the clause is subject to grave question. At first sight it represents a conspicuous erosion of the citizen's right when accused of an offence to test the evidence against him by cross-examination. There must also be serious questions over whether it is not administratively unworkable and as capable of being manipulated by an unmeritorious defendant as of causing injustice to a meritorious defendant.
The first principle must surely be that criminal trials, except in carefully defined circumstances where special considerations apply, proceed by means of oral evidence. There really is no more important safeguard than that.
I agree with the noble Lord, Lord Hutchinson of Lullington. There is no advocate who has not experienced countless cases where a story that seemed consistent and watertight when set down on paper was destroyed by a proper and skilful cross-examination. Trials conducted on paper, on the whole, must represent second-rate justice.
Contrast this with Clause 21 which in effect says that a person's evidence in a criminal trial may be given in written form! There is no protection, apart from the discretion of the court under Clause 23, to exclude statements in the interests of justice having regard to the matters that are listed in Clause 23(2).

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That safeguard is no doubt better than nothing; but this is surely a case of the broadest of broad brushes being applied by the proposed legislation to an area of law where what is required is careful definition. Surely, the correct approach is for Parliament to specify those situations where there is some identifiable and compelling reason to admit the documentary hearsay. Only where one of these reasons is made out should the hearsay be allowed in, subject to the overriding discretion of the court.
Until recently that was the approach that commended itself to the Government. Section 68 of the Police and Criminal Evidence Act 1984 allows in documentary evidence where the document is part of a record compiled by a person acting under a duty from information supplied by a person reasonably supposed to have had personal knowledge of the matters dealt with, provided that one of a number of conditions is satisfied in respect of the person who had the personal knowledge. Essentially, it must be impracticable for that person to give oral evidence because he or she is dead, ill, overseas or untraceable.
Thus, there are two crucial hurdles before documentary evidence can be allowed in under the 1984 Act: first, the requirement of a duty on the recorder of the information and of personal knowledge by the supplier of the information ensure that the information recorded is likely to be accurate and not a mere collection of speculations or jottings; and, secondly, the requirement that one of the Section 68(2) conditions be satisfied guarantees that the possibility of dispensing with oral evidence is invoked only in cases where it is really necessary to do so. There are no such preconditions in Clause 21. The circumstances which should represent conditions of admissibility are reduced to mere factors going to the exercise of the discretion of the court. This is surely to impose an unreasonable burden upon the judges and to invite a rash of appeals in cases where documents are alleged to have been improperly admitted.
I hope that we shall hear from the Minister precisely what type of nut it is that has brought forth this proposed legislative sledgehammer. I ask this question. What are the cases in which justice cannot be done without there being admitted documentary evidence that would not fall within Section 68 of the 1984 Act? If they exist, are they really such that they cannot be dealt with by some minor amendment to that section?
I recognise that fraud trials of their nature no doubt require a more liberal attitude to documentary evidence. The noble and learned Lord, Lord Roskill, has made a conspicuous contribution in this field. But Clause 21 is not confined to cases of large scale fraud; it applies across the board. My primary concern is naturally for the defendant faced with paper accusers and deprived of the opportunity to show by cross-examination that the allegations are groundless. I urge this on the Minister. The abuse may just as well be on the other side, with the prosecution prevented from probing an ostensibly plausible case for the defence.
Finally, I wonder how workable this clause will be in practice. It does nothing to provide a means of
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determining in advance what documentary evidence will be allowed to be admitted in a particular case. What are the parties actually to do? On the one hand, if they come to court armed only with the documents they risk losing the evidence altogether if the judge rules it out. On the other hand, if they ensure that witnesses are available to give oral evidence as an alternative, why not call those witnesses in the normal way in any event? This is a problem which is most unlikely to arise under Section 68 of the 1984 Act because that is confined to cases where the choice will usually lie between documentary evidence or no evidence at all.
The clause appears to me to sweep away a great deal that has always been valued in our system of criminal justice. It should not pass into law in its present form unless a far more compelling case is made for it in all its breadth than I can possibly now conceive of. For myself I hope that the Minister, who has been so willing to bring an open mind to the questions raised by Amendments Nos. 9 and 11, will declare himself to be of like mind in relation to this amendment.
8.30 p.m.
Lord Roskill: I am not sure. having listened to my noble friends Lord Hutchinson of Lullington and Lord Irvine of Lairg, that I ought not to begin with a plea of guilty and ask for mitigation of sentence. In point of fact I am proposing to defend this clause with all the vigour I can, supported by the noble Lord, Lord Benson, one of my colleagues on the fraud trial committee. What we recommend in connection with serious fraud cases was the unanimous recommendation of us all after looking at this problem over about two years of very hard work, having listened attentively to all the evidence from the Criminal Bar Association, from the criminal branch of the Law Society, and having tried to form a balanced and unprejudiced view of what was relevant to the question of the proper trial of fraud cases.
I must apologise to the noble Lord, Lord Hutchinson. The pangs of hunger caused me to miss the first three minutes of his speech but I shall read tomorrow what he said. I do not know how much I missed. I shall learn tomorrow. I heard him say that my noble friend and I were concerned to streamline the route to conviction. Nothing is less fair or more untrue. When I spoke in your Lordships' House in the debate on the report in February last year I ventured to say that none of us claimed omniscience. All of us recognised that what we said was capable of improvement and we hoped that there would be improvements. Purely destructive amendments are (with profound respect to the experience and learning of those who have moved them) no good. We are primarily and wholly concerned with serious fraud.
We said in the report that many of the reforms we suggested could be applied across the board. So they could, but that was without our terms of reference. I am principally concerned tonight to talk about serious fraud because even the most rabid defenders of those who are alleged to have committed serious fraud would I think accept that what matters here are not old-fashioned rules but the true path to the ascertainment of truth. As my noble friend said, rules

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are not the masters; they are the servants. There is a very grave danger that in serious fraud cases they have been allowed to become the master.
I must be careful what I say because certain things have happened in recent weeks which make it obviously undesirable that I should repeat some of the things that were said in earlier debates both on this Bill, its predecessor and on the report itself. We were concerned to see that prosecutions were not prevented from being brought by ridiculous overlogical application of the rules of evidence and that when properly brought they were not defeated by skilful and accomplished lawyers taking technical points on the rules of evidence, designed, as was their duty, to secure the acquittal of those who were to anybody except perhaps the most enthusiastic lawyer—and sometimes to them—obviously guilty of the most serious fraud.
How do you ascertain the truth? The noble Lord, Lord Hutchinson, referred to what we had said in paragraph 536. I absolutely refuse to accept this charge of naivety. After 25 years on the Bench—some 22½ years of them as chairman or deputy-chairman of quarter sessions when he used to appear before me beyond those 25 years—and indeed fairly long experience in the Queen's Bench Division of the Criminal Division of the Court of Appeal, I hope that naivety is perhaps the last of the offences (no doubt there are many) with which I might be charged. But the point about fabrication of documents upon which he took me to task is not our own original thinking. If the noble Lord cares to look back at that great lawyer, the late professor Sir Rupert Cross, and at his magnum opus on evidence he will see the whole question of the principles of orality, to which the noble Lord, Lord Irvine, referred, discussed and, as I venture to think, demolished at some length and with irrefutable logic. In no other walk of life do people only act on oral evidence. People's characters in business and in other respects are dealt with because of what somebody has said to someone else, and of course this principle of orality goes right hack into the last century when those who were refused were not in a position to give evidence in their own defence.
I hope my record shows that I am no reformer for the sake of reform, but one has lived long enough in the law to see the dangers of "keep that going longer, it is the old rule and the safeguard" being regarded, as I said a moment ago, as the master and not the servant. That leads to the perpetuation of an inability to convict.
During our work—the noble Lord, Lord Benson, will confirm this and I shall have to be careful what I say—we were shown in confidence a considerable number of massive files on fraud. It was perfectly obvious that under the existing rules of evidence it was going to be quite impossible to obtain convictions in those cases. The noble Lord, Lord Irvine, challenged me a moment ago to produce a case where the Police and Criminal Evidence Act would not operate and it was necessary to have recourse here. I do not profess to having considered this at great length since we considered the matter some 18 months ago when we were writing the chapter which has come under so much criticism; and I plead guilty to being the author of much that
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appears there. Let me just quote paragraph 5.10. This is a statement of the law:
"The evidence that a witness gives must be first-hand. If all he can recount is what another person has said, then that other person is the one who should be giving evidence and the secondhand version of the first is not acceptable. This rule, known as the hearsay rule, is applied with logical severity to documents. If a document is the record of a transaction (for example, a cheque recording an instruction to a bank to pay money to a third party), then the mere production of the cheque does not suffice to prove the transaction. The drawer of the cheque. the bank clerk, and the payee should come, for they alone can speak of the transaction. The cheque cannot speak for itself: it cannot -prove" itself.
Hence the position that documents are not normally evidence in themselves: they merely support the oral evidence of live witnesses. It is they who must both identify the document and tell of the truth or otherwise of its contents".
I venture to suggest to the noble Lord, Lord Irvine of Lairg, that that transaction is not one which would fall within the Police and Criminal Evidence Act, and no doubt he, with his great experience, can think of others. I am sure that other Members of the Committee can do the same. That is not a document brought into existence in pursuance of a duty.
It is common knowledge that there have been a vast number of frauds committed and perpetrated and money laundered through notorious islands which I shall not dignify by mentioning. Many of these, if they are to be brought to a successful prosecution, must involve the proof of banking transactions in those islands. Those transactions simply cannot be proved under the 1984 legislation. We went into this most carefully. This legislation is necessary to enable such transactions to be brought to book. I shall say no more on that.
Lord Hutchinson of Lullington: May I interrupt the noble and learned Lord, because this is an important point? In saying that this legislation is necessary he is indeed knocking at an open door, because the next clause and the one after it deal with those specific matters. The point at issue is the breadth of this clause, which does not in fact deal only with documents.
8.45 p.m.
Lord Roskill: I am grateful to the noble Lord for the intervention. I fully appreciate the point. If he and those who support him can devise a half-way house which will meet the point which I am making, which the committee was making and which falls short of the provisions in Clause 21, I for one, and I am sure my noble friend Lord Benson, would be perfectly happy.
Of course we do not want to see anything which will involve the risk of wrongful conviction of anyone. I have never been one of those who has believed that demeanour is all important. The picture of the lynx eyed judge who can always detect truth from falsity at a glance is not one which I would ever have claimed for myself, and I do not believe it is realistic. The first thing that any appellate court ever says when you are challenging a finding of fact by a judge is, "Well, look at the contemporary documents. because it is they that matter". That is an inroad in itself into the basic principle of orality so beloved by both noble Lords.

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If people want big frauds successfully prosecuted and brought to an end legislation is necessary, as we all found, to stop it being possible to defeat the ends of justice by technical application of the rules of evidence. I do not want to delay the Committee too long for the hour is late. I only say once again that if anyone can devise a means of achieving the result at which we aimed in the report by some other method than Clause 21 and the -ensuing clauses then I, for one, and I am sure my noble friend Lord Benson, would be the first to welcome the efforts. But a purely destructive approach to these clauses is of no avail at all. If these criminals are going to be brought to justice and technical objections are not allowed to prevail we must find a way of getting over this difficulty.
I have a few other points. The noble Lord, Lord Irvine, said that there was going to be difficulty because people would not know when they came to trial whether to call witnesses or whether they could rely on documents. I think, with profound respect to the noble Lord, that he must have overlooked one rather crucial thing in the report and in what is now the Criminal Justice Act 1987, and that is the provision of preliminary hearings. One of our main objectives in recommending—and the House accepted it—the preliminary hearing was to enable these issues to be determined in advance. I see the Minister agreeing with me. That really is not a point against these clauses.
The noble Lords both complained about judicial discretion being exclusory. These epithets "exclusory" and "inclusory" get bandied about in this field. They are no more than labels. If, as I hope, on the policy side serious fraud cases are in future only tried by judges of the necessary experience and competence to try them—and there are many such judges on the bench—I do not believe that any judge of experience would let in, to the risk of a prisoner, some document either the authenticity or genuineness of which was in doubt or was so prejudicial that it could not safely be admitted without cross-examination being available. We recommended all these safeguards in the report. I hope these clauses give effect to those safeguards and that these amendments will not succeed.
If all the amendments proposed to this part of the Bill were accepted by the Committee it would drive a coach and horses through our labours on this part of the work. I believe that everybody wants the City of London to be cleaned up. What we recommended was a series of steps—and essential steps, as recent attempts have shown beyond peradventure to be necessary—to have that cleaning up operation brought to finality by convictions and appropriate sentences.
Lord Benson: I share with the noble and learned Lord, Lord Roskill, the view that this proposal ought to be rejected. I do so despite the formidable array of legal talent which has proposed it. The effect of this clause is that all documents will be admitted unless the judge directs to the contrary. It is certainly a broad clause but the breadth of it is carefully preserved by the restrictions imposed by Clause 23(1).
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I have just been engaged in a case where the total number of documents seized were between a million and a million and a half; five thousand exhibits were produced in court; between 30 and 40 witnesses were brought to court solely to prove the documents. Those witnesses were examined, as is the wont in legal matters, at extravagant length with a great many irrelevancies. It went on for weeks on end. In the result the jury were drenched in words and the real substance of the alleged crime was lost sight of. It is that sort of situation that this clause is designed to protect.
The noble Lord, Lord Hutchinson of Lullington, has said that this will be trial by documents. Yes, it will be. That is exactly what fraud cases are. They are basically trial by documents. It is the documents which prove or disprove whether the fraud has taken place, where it has taken place—because it is sometimes abroad—and when it has taken place. It is vital that all those documents should be before the court. The protection is that the documents can be challenged just as oral witnesses and oral evidence can be challenged. They can he challenged as to their source, their nature, their authenticity, the truth of what they say and the weight to be attached to them. All those things can be challenged. If they are properly challenged it is the duty of the judge in his judicial capacity to make an appropriate decision under the particular clause which provides for it.
It has been said with some emotion that the judges will become inquisitors, but I do not follow that argument. A judge has always to make decisions as between the opposing parties. When documents are challenged that is what he is appointed to do and that is what the Bill, as presently drawn, provides. I do not think it is remembered that witnesses who come before the court in trials usually do so three or four years after the event and sometimes much longer. During that time many witnesses fabricate their evidence, alter it, or their recollections become strangely hazy. However, when one has documents one can pin them down to what happened, when it happened and who prepared the documents. It is those documents which must be before the court.
It is said by the noble Lord, Lord Hutchinson of Lullington, that documents can he false. Of course they can be false, but so can oral evidence. It is important in the trial to test the authenticity of both oral evidence and the documents and it is of crucial importance that the documents should be before the court.
The Roskill Committee had strong evidence which convinced it that London is now being used as a site for fraudsters. They find it much better to base themselves in London instead of capitals abroad because the administration which we have (or had hitherto until the Criminal Justice Act 1987 and the present Bill) prevented fraud being detected and conviction attained. The committee found that fraudsters were deliberately using London because of our outdated criminal procedures, of which this is one. Happily many of them are now being corrected. However, we must ensure that London preserves its position so that fraudsters are deterred from being here, and this anachronism is one which ought to be excluded from criminal procedures.
Finally, I cannot speak with authority on the legal niceties of his matter, but it may be possible that the

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clause can be improved. However, the throwing out of the whole clause would be a backward step and contrary to all the evidence which we on the Roskill Committee received and to what has been my own experience of fraud trials in this country and abroad.
9 p.m.
The Earl of Caithness: This is an important part of the Bill, and it may be helpful if I begin by explaining a little of the thinking behind the clause.
Over the years those responsible for the development of the criminal law—both in Parliament and among the judiciary—have been understandably wary of allowing the courts to receive evidence in documentary form. The principle—and it is in itself a sensible principle—is that the courts should have the best evidence available in order to reach an informed decision about something as important as the guilt or innocence of someone accused of crime. That led to a highly restrictive rule against the admission as evidence of information which happens to be in documentary form.
In relation to civil proceedings, the law has changed to reflect changing circumstances, and it is now quite common for documents to be received as evidence of their contents. Until the enactment of the Criminal Evidence Act 1965, there was however an absolute prohibition on the admission in criminal proceedings of even the most routine record of a business transaction—a bank record for example—unless the person who had made it came to court and testified that they had indeed recorded that transaction. The Police and Criminal Evidence Act made a limited further relaxation of the law, but admissibility remains confined to records prepared by someone acting under a duty, and is heavily circumscribed by conditions relating to whether the person concerned was able to attend court in person.
The question we now have to ask is whether the criminal law as it stands may not still be too exclusive in its attitude towards documents. It is one thing to say that the person who observes an accident or an assault should be expected, if at all possible, to come along to court and give a first-hand account of what they saw. As I shall explain in a moment, it is no part of our purpose to interfere with that central principle of orality on which our system of trial rests. But in other cases information which the court could usefully take into account in reaching its verdict is naturally in documentary form or is not readily obtainable in any other form, and one must ask whether the interests of justice are invariably best served by a rigid rule which prevents its even being considered by the court. The committee under the chairmanship of the noble and learned Lord, Lord Roskill, addressed this question in the context of a specific type of crime—fraud—where evidence is often in the nature of things contained in documents. They were in no doubt that the present law is too rigid and prevents well-founded cases from being prosecuted. The noble Lord, Lord Hutchinson of Lullington, said the changes which they recommended were solely confined to fraud. Surely that was right because, as the noble and learned Lord, Lord Roskill, has said this evening, that was the terms of his reference. However, the noble and
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learned Lord's committee recognised that they could well be applicable to other criminal offences, and indeed it would be unsatisfactory for the law on something as basic as the admissibility of evidence to be different depending on the offence charged.
The Government's view is that the Roskill Committee were right; that the law as it stands is too restrictive and artificially confines the courts' discretion to receive documentary evidence in a way which can frustrate rather than advance the interests of justice; and that the answer is to create a wider judicial discretion which, wisely exercised, should enable reliable documents to be weighted by the court for what they are. The last point is one which I must emphasise, because I think there may be some misapprehension about what we are doing. These clauses do not open the floodgates to all kinds of unreliable material. What they do, broadly speaking, is to replace absolute prohibitions with flexible discretions which the courts can use in the interests of justice, and taking full account of any likelihood of unfairness to the accused.
That, then, is the general background against which these clauses are set. Perhaps I can turn now to Clause 21, although in doing so I hope the Committee regard it as in order if I refer also to the other clauses in the part of the Bill, because they are closely related and form a general scheme. What Clause 2 does is to create a presumption that a statement made by a person in a document about a matter of which they have first-hand knowledge is normally to be admissible as evidence. Now that seems a very dramatic change, and has been represented as such by the noble Lord, Lord Hutchinson of Lullington. It is a significant change. But it is important to note that it is quite tightly circumscribed by other provisions in this part of the Bill.
In the first place, there is, as I have said, a discretion in Clause 23 for the court to direct that, notwithstanding the presumption in Clause 21, the document should nevertheless not be admitted. Clause 23 contains a list of considerations which the court is specifically directed to take into account in deciding whether to exercise that discretion, and these include any likelihood of unfairness to the accused if the document is admitted. They also include considerations bearing on whether the document is likely to be authentic, whether there is any alternative source of the same evidence and how relevant it is likely to be to the trial.
Secondly, under Clause 26 the court will retain all its existing powers and duties to exclude evidence. This means that evidence will not be admitted if it seems more prejudicial than probative, or if it would have an adverse effect on the fairness of the proceedings (the latter stemming from Section 78 of the Police and Criminal Evidence Act). These are important safeguards which I believe go a long way to meet the concern which some noble Lords have expressed about the risk of unfairness or prejudice to the accused.
Thirdly, and perhaps most important, Clause 21 does not apply to police statements and witness statements prepared in contemplation of criminal proceedings. These are dealt with in Clause 24, to which we shall come in due course, but the significance of that clause is that under the scheme in

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this part of the Bill and with the exceptions of expert reports and overseas commissions, witness statements will not normally be admissible as evidence. This was a source of some misunderstanding when the Bill was debated earlier in another place and my honourable friend the Parliamentary Under-Secretary of State was able to clarify matters and put to rest some of the misgivings which had been expressed. The short point is that Clause 21 is not an assault on the oral tradition. It is primarily a means by which documents which pre-date even the prospect of criminal proceedings—which one might describe as historic documents—can be received by the court and given such weight as they deserve.
A good example of the kind of historic documents which could be admitted under the clause is given in the explanatory notes which we have circulated on the clauses of the Bill. A man is charged with murdering his wife and among her possessions is found a diary in which she has recorded a series of increasingly brutal assaults. Most ordinary people would, I am sure, be astonished that as the law stands the judge would have no choice but to keep the diary from the jury, and it could accordingly not be given any weight whatsoever as evidence that the earlier assaults had taken place. Under Clause 21 the diary would be admissible, unless the judge excluded it, perhaps because there was a real doubt about its authenticity or because in the particular circumstances of the case he thought that there was too great a risk of unfairness to the accused.
The noble Lord, Lord Hutchinson of Lullington, said that it would be up to the accused to persuade a judge that documents should not be allowed. I would just point out to him, which I am sure he has not missed, that it works both ways. The diary could be essential to the defence of the accused and it would be up to the prosecution to prove that the judge should not allow it to be produced. Surely that seems to be the right balance to strike.
The present law is too rigid and artificially keeps from the court relevant evidence which it would be in the interests of justice for it to receive. I believe the judiciary can be trusted to exercise the discretion given by Clause 24 wisely and with full regard to fairness for the accused, and that the jury and the magistrates can be trusted to give the documents they receive the weight they deserve, taking full account of the limitations inherent in the fact that there is no physical witness there to be cross-examined.
It is this crucial question of trust, both in the wisdom of the judiciary and the maturity and good sense of the jury, that I venture to suggest—not in any adversarial spirit—divides the supporters and the opponents of this clause. The consequences of accepting the arguments of the opponents of the clause would be that we would have to continue to deny the jury even the opportunity to assess relevant historic evidence which happened to be in documentary form. I cannot believe that that would be in the best interests of justice.
The noble Lord, Lord Hutchinson of Lullington, gave a number of examples of documents which would in principle be admissible under this clause. Of the examples he gave, the second, relating to the
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police officer's note in his notebook, could well be covered by Clause 24 because it would be likely to be regarded as a document prepared in a criminal investigation. But that is a small point. My main reaction is that the other examples he gave are indeed cases where the court, whether it be the judges or the magistrates, would want to think very carefully about where the interests of justice lay. Whenever the evidence is central to the question of innocence or guilt, the court is bound to have a difficult decision to make, and I would put it to the noble Lord that it is surely right that that is where the balance should lie. If the judge thought in any of the cases cited by the noble Lord that the risk of unfairness to the accused was so great that he should exclude the document in the interests of justice, Clause 23 gives him the discretion to do so.
With regard to the other points that the noble Lord raised, and those raised by the noble Lord, Lord Irvine of Lairg, I am extremely grateful for the contributions of the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, who answered the points far better than I could have done. I shall not repeat what they said or differ from them. It is for those reasons that I very much hope that the noble Lord and his colleagues will not press their reservations about this clause to a Division.
I am pleased to have the support of the noble and learned Lord and the noble Lord on the Cross-Benches, but I take up one of the points that they made, which was about finding a half-way house or something that would impose greater restrictions on what was admitted under Clause 21. I am very happy and willing to work towards that end between now and another stage. But I think it is fundamental to the Bill, and fundamental to improving the possibility of justice through innocence or guilt, that we allow Clause 21 to stay in the Bill.
Lord Gifford: I have listened with great care to the debate and I found myself very bewildered by the heat that was generated in the early stages between the noble Lord, Lord Hutchinson, the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson. I found myself agreeing with every word of the speech of the noble and learned Lord, Lord Roskill, and his colleague on his committee, the noble Lord, Lord Benson. But I found that their speeches were speeches made in support of Clause 22 of this Bill, which, as I understand it, is not a clause which the noble Lord, Lord Hutchinson of Lullington, wishes to amend, save in a very minor way, because all the documents of which the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, were speaking are documents created or received by people in the course of either a trade, a business, a profession or another occupation or as the holders of paid or unpaid offices.
The difference surely between the sort of documents of which the noble and learned Lord, Lord Roskill, was speaking and the sort of documents of which the noble Lord, Lord Hutchinson of Lullington, was speaking is the difference between Clause 22 and Clause 21, and surely the half-way house, of which the noble and learned Lord, Lord Roskill, was speaking, is there in the Government's Bill in Clause 22, which I for one would not wish to see weakened.

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Therefore, nothing in the eloquent speech of the noble and learned Lord, Lord Roskill, seemed to me to go to the extra allowances made by Clause 21 over and above Clause 22, and all those trade documents, which I can see are so useful in the prosecution of fraud, would be allowed in this Bill without the deletion of Clause 21. So it is not a destructive amendment. It is an amendment which is seeking to avoid injustice being done by the inclusion of non-trade documents, non-business documents, private documents of one kind or another made by people who are not called to give evidence and have their evidence tested in cross-examination.
Lord Hutchinson of Lullington: It was like a breath of fresh air to hear the comments of the noble Lord, Lord Gifford, because what he said was precisely and exactly what I myself was going to say. We have been beating the air in this debate. I thought that I had made that point in moving the amendment but it does not seem to have been appreciated. I made the point that I and those who support it agree 100 per cent. that in those massive trials to which the noble Lord, Lord Benson, refers of course all those documents have to be admitted and of course the provisions of the Police and Criminal Evidence Act as amended by Clause 22 do precisely that.
No one is quarrelling with the play which the noble and learned Lord, Lord Roskill, always makes on these occasions with the documents, the cheques and all the kerfuffle that there used to be about proving the bank account. Everyone, and above all those at the criminal bar, agree that it is ludicrous to think that such documents must be proved by their makers. Provision has been made in the Police and Criminal Evidence Act and is made in Clause 22 to cover all that. We are complaining about Clause 21, which goes right outside fraud cases and outside the Roskill Report. I ventured to draw attention to that point and I noticed that the noble and learned Lord, Lord Roskill, took no notice whatever of the quotation that I made from the paragraph which I ventured to read out—
Lord Roskill: I said that that paragraph was largely a quotation from Sir Rupert Cross. The noble Lord must have forgotten what I said. As I am on my feet, I hope that the Committee will allow me just to add that the difficulty about the point that the noble Lord, Lord Gifford, made and which the noble Lord, Lord Hutchinson, is making is that so many documents which are created in the course of the perpetration of a fraud are not created in the course of a trade, business, profession or other occupation. I can see the most eloquent submissions being made by the noble Lord, Lord Gifford, that they should on that ground be excluded.
9.15 p.m.
Lord Hutchinson of Lullington: The noble and learned Lord has referred to the irresistible logic of Professor Cross, and indeed it is the irresistible logic that we are trying to resist. It is when the criminal law is governed by irresistible logic that it is the end of civil rights and civil liberties. The criminal law, thank goodness, is not governed by irresistible logic. Irresistible logic leads to the abolition of the jury, as indeed the Roskill Report wished to happen.
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Irresistible logic leads to fraud cases being tried by a judge and two assessors from the City of London.
It is somewhat ironic having regard to what has happened since this matter was last discussed that if the Roskill recommendation had been followed and had found its way into the Bill fraud cases and the fraud cases which are now in the air would be tried by a High Court judge and two assessors, no doubt from the City of London. That would hardly be an ideal tribunal. but irresistible logic leads to that, because that tribunal would get away from all the rubbish of barristers trying to explain to 12 ordinary people what a hank account is about. That tribunal could cut away all that rubbish and plunge into what mattered; that is whether those gentlemen from the City were really dishonest.
Of course the decision of the tribunal was a majority one and the two assessors might conceivably come to the conclusion that the gentleman from the City in the dock had not been dishonest, whereas the learned judge who was chairman might come to the opposite conclusion. In my submission it would be far better to have a tribunal of 12 ordinary people to decide an issue such as that, whatever irresistible logic may say.
The mischief of Clause 21, with great respect to the noble and learned Lord, is that it goes right outside the problems of the fraud case and makes what has now been described as historic documents evidence of the truth of what is in those documents. The example which was given was that of the victim of the murder. Burrowing in the drawer and in the cupboard of the victim's room is found an old diary. In the diary is an entry. That entry says that on a Thursday five years ago or two years ago the maker of the diary saw so-and-so who said, "My God. if I ever get the chance I'll do you in". That would be evidence, as would any other entry in the diary.
Whatever was in that diary could be put in as evidence in a case. How can that be disputed by the person in the dock? How can one dispute an entry in a diary, which is an historic document? A letter might be found which said, "I saw so-and-so through a window threatening his wife with a knife". That would be evidence. How could that be disputed? How could the identification be disputed? How did the writer of the letter know that it was the wife? How did he know it was a knife? As an historic document that could not be disputed.
All that has nothing to do with fraud cases in the City of London. The trouble with the clause is that it makes what the Minister has called a dramatic change in the evidential principles on which we conduct criminal trials. The safeguard lies in the discretion of judges rather than the rule of law. Therefore, the touching faith of the noble and learned Lord in the wisdom of a judge who may always say, "No, that would not be fair or right", and in all the matters which the judge must take into account in exercising his discretion may be misplaced. The whole history of the law is that rules of law achieve the maintenance of liberties and civil rights rather than the discretion of judges. Some judges are excellent; some are not. Some judges decide a matter in one way and some in another. The problem with putting such faith in the discretion of judges is that to appeal against the discretion of a judge which has

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been exercised on the facts before him is almost impossible.
What Clause 21 simply comes to is getting rid of the whole rule against hearsay in relation to documents; any document which is found anywhere and in any circumstances can be put into evidence. If that is seen to be in any way unfair, the right of appeal lies with the judge and the judge will decide whether it is in any shape or form prejudicial. Those of us who have practised at the bar and in the criminal courts for many years still feel that the rule of law is more important than a judge's discretion.
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Our debate has been interesting and I hope that the Minister will read carefully what has been said in the debate and will appreciate that we are not concerned about the problems put forward by the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, but rather with the problem of enlarging the principle in Clause 21. However, in the circumstances and having regard to the lateness of the hour, I do not wish to push the amendment to a Division. I believe that I saw a spark of recognition that there are matters still to be looked at and we shall return to those at a later stage.
Clause 21 agreed to.
Clause 22 [Business etc. documents]:
Lord Mishcon Lord Mishcon moved Amendment No. 25:
Page 14, line 16, leave out ("shall") and insert ("may").
The noble Lord said: I shall take the amendment fairly briefly. The Committee will see, in referring to Clause 22 and in particular to page 14, line 26, that the subsection applies whether the information contained in a document was supplied directly or indirectly. However, if it was supplied indirectly, only if each person through whom it was supplied received it in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office would those documents be admissible in criminal proceedings. That is mandatory and it is subject only to the provisions which occur later in Clause 23.
We are seeking in Amendment 25 to leave out the word "shall" and insert "may". It would therefore be left as entirely discretionary for the court as to whether that should happen. Amendment No. 27, which is in my name and in the name of my noble and learned friend Lord Elwyn-Jones, contains a provision which says that a statement in a document will be admissible under Clauses 21 and 22 only if, having regard to all the circumstances, the relevant court is satisfied, and then your Lordships will see the test:
"beyond reasonable doubt that it is in the interests of justice that such a statement shall he admitted".
The amendment is tabled on the basis that the clause which we have just been debating forms part of the Bill. What we are saying is that first, it is not mandatory; it is discretionary. Secondly, the test is the strong test that the learned judge or the magistrates at the magistrates' court before admitting the document, should be satisfied beyond reasonable doubt that it is in the interests of justice that such a statement should be admitted. I beg to move.
The Earl of Caithness: I think that this amendment may reflect a misunderstanding about the effect of Clause 22 as currently drafted. It was a misunderstanding in another place. I would refer the Committee to Standing Committee F and col. 333 where the honourable Member leading for the Opposition agreed with my right honourable friend the Parliamentary Under-Secretary in his interpretation of the word "shall" and the word "admissible". I shall come to that point now.
All that the provision says is that evidence of the kind covered by the clause, that is evidence in business documents, shall be capable of being admitted and not that it shall be admitted. As I have said in our discussions on Clause 21, the scheme in Part II allows the court a clear discretion to exclude evidence which Clauses 21 and 22 render admissible. That discretion is in Clause 23 and I hope your Lordships will agree that it meets the concerns which have been expressed that such evidence should not be admitted automatically.
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If Clause 22 were amended as proposed in the amendment, the clause would in effect say that evidence in business documents may be capable of being admitted. Simply as a matter of language that does not seem to me to make sense and would I think lead to uncertainty in the law. I hope that the noble Lord agrees and will be willing to withdraw the amendment.
Lord Mishcon: I am most grateful to the noble Earl for referring me to what happened in Committee in another place of which, let me tell him at once, I was unaware. He is very kind and I can see the sense of what he is saying. I would only say to him, without taking up any more time of the Committee, that the word "admissible" does in fact infer—certainly to the layman—that it is to be admitted and I entirely agree that the literal translation or meaning of the word is that it is able to be admitted. The word "shall", also gives a mandatory tinge to it. In spite of what the noble Earl was kind enough to tell me about what happened in another place, I can see no objection to the use of the word "may" in these circumstances. I certainly do not, on a matter of this kind, intend to delay the Committee and in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 26:
Page 14, line 35, at end insert—
("(4) A statement contained in a document produced by a computer shall be admissible only if it satisfies the condition laid down in sections 21 and 22 of this Act and section 69 of the Police and Criminal Evidence Act 1984.").
The noble Lord said: This is a short matter and I hope that if my reasoning is right the Minister will accede to the amendment. It is only an amendment to help. Schedule 11 repeals the Police and Criminal Evidence Act. The result of that repeal is that Section 69 of the Police and Criminal Evidence Act repeals Section 68. Therefore, Section 69 stands on its own. At the moment Section 69 is subject to the terms of Section 68. In other words, it is caught by the inclusionary requirements of Section 68 with the result that a document produced by a computer, if it includes hearsay, must satisfy the conditions set out in Section 68. If we remove Section 68 and leave Section 69 by itself, it will mean that you can put into the computer any kind of hearsay evidence or hearsay document. The result will be that anything that comes out of the computer will then be admissible evidence so long as the conditions as to proper use and operation of the computer are obeyed.
The amendment is necessary in a situation where documentary hearsay will be covered by this clause but documentary hearsay that comes out of a computer will simply not be covered. It is only as a result of having repealed the section of the Police and Criminal Evidence Act which controls Section 69 that we are left in that situation. I hope that the Minister, if he feels that what I have said is irresistible logic—and this is what we appear at the moment to be directed towards—will agree to the amendment. I beg to move.
The Earl of Caithness: We had a little trouble trying to understand what the noble Lord meant and the point he was driving at when we saw this amendment. I believe, however, that I have it clear. One problem was our interpretation that Section 69 stands on its own and does not rely to the extent that the noble Lord indicated on Section 68.
It is true that computer documents are among those whose admissibility will in future generally be covered by Clauses 21 and 22. However, sometimes, as at present, they will come in under their own steam, as it were, as genuine print-outs of a measurement or calculation. We believe it would be wrong to limit the cases in which they may be admitted to those covered by Clauses 21 and 22. They will continue to be governed by Section 69 of the Police and Criminal Evidence Act 1984. This is ensured by a specific saving in each clause, by Clauses 21(1)(b) and 22(1)(b).
I hope, therefore, that I have covered the point but I was a little confused as to what the noble Lord was driving at. I shall read the Official Report with interest.
Lord Hutchinson of Lullington: I thank the Minister. I raise the point because Section 68 begins:
"Subject to Section 69 below, a statement in a document shall be admissible in any proceedings"
and so on. It would appear from those words, in combination with Section 69, that Section 68 governs Section 69. I ask the Minister to read what has been said. I shall be happy to hear at a later stage what he has to say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 [Principles to be followed by court]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 27:
Page 14, line 36, leave out subsection (1) and insert—
("(1) A statement in a document will only be admissible under sections 21 and 22 above if, having regard to all the circumstances—

(a) the Crown Court—

(i) on a trial on indictment;

(ii) on an appeal from a magistrates' court; or

(iii) on the hearing of an application under section 6 of the Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates' court to Crown Court); or

(b) the criminal division of the Court of Appeal; or

(c) a magistrates' court on a trial of an information, is satisfied beyond reasonable doubt that it is in the interests of justice that such a statement shall be admitted.").

The noble and learned Lord said: My noble friend Lord Mishcon dealt with this matter with some well-chosen words when he spoke on an earlier amendment. The Committee will see that in relation to Clauses 21 and 22 the amendment provides,
"A statement in a document will only be admissible under sections 21 and 22 above if, having regard to all the circumstances"
the relevant court,
"is satisfied beyond reasonable doubt that it is in the interests of justice that such a statement shall be admitted."
We regard that as a crucial safeguard which will remove a great deal of the anxiety that has been expressed about the wide-ranging nature of Clauses 21 and 22. On the other hand, I do not think that the inclusion of the words would damage the prospects of the prosecution. I hope that accordingly the noble Earl will agree to the amendment. I beg to move.
9.30 p.m.
The Earl of Caithness: I am delighted to welcome the noble and learned Lord to the front line of the new attack from the Opposition. How nice it is to see him again after the Recess!
The broad purpose of Clause 23 is, as the Committee knows, to give the court a discretion to exclude evidence which is made admissible by Clauses 21 and 22, where it considers it should do so in the interests of justice. The clause draws attention to several specific considerations which the court is to have in mind in deciding whether or not to exercise that discretion. These are, very broadly speaking, reliability, or the nature and source of the document including whether it is likely to be authentic; necessity, or whether there is any readily available alternative source of the evidence; relevance; and any risk of unfairness to the accused resulting from the document's admission, or exclusion, when the supplier of the information does not attend to be cross-examined. These criteria themselves would not be disturbed by the noble Lord's amendment.
What the noble Lord's amendment would, however, do—and indeed this is its purpose—is to dilute significantly the presumption which this part of the Bill contains in favour of admissibility. It is a matter of judgment where one strikes that balance. The amendment would tilt the balance against admission by saying that, although admissible, the documents covered by Clauses 21 and 22 were not to be admitted unless the court was satisfied beyond reasonable doubt that they should be, in the interests of justice. That would amount to presumption against admission, which the court would have to displace. In the Government's view it would be too restrictive, since for the reasons I have given in our earlier debates, we see great attraction in liberalising the law by creating a presumption in favour of admission, displaceable where the court considered it ought to be, in the interests of justice.
There is, I sense, not a great deal between us on this, and it is partly a question of tone and precisely where one strikes the balance. But there is nevertheless a real distinction between the positions in which the court would find itself under the alternative formulations.
Although I shall look at what the noble and learned Lord has said, my strong preference is to leave the Bill as it is, for the reasons that I have given. I hope that with that the noble and learned Lord will be able to withdraw the amendment on this occasion.
Lord Elwyn-Jones: The noble Earl has kindly said that he will look at this matter again. Clauses 21 and 22 provide a considerable—I shall not use the phrase

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"infringement of"—diminution of the objections to hearsay, and a considerable extension to the range of admissibility of documents. It is a modest provision. I should have thought that the requirement that the court should be satisfied beyond reasonable doubt that it is in the interests of justice that the relevant statement should be admitted should make even more effective the impact of documentation released under Clauses 21 and 22.
I am pleased that the Minister has agreed to look at this proposal again. There is a point of substance in the matter. I am grateful to him for saying what he did. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 28:
Page 15, line 20, leave out ("and") and insert ("( ) to the reasons why it is proposed that the person making the statement shall not give oral evidence;").
The noble Lord said: This amendment takes the matter a little further. We are dealing here with the issues which govern the exclusionary discretion of the judge. These are the matters the judge in exercising that discretion is enjoined to take into account. As we have seen, the issues to which he must have regard in relation to the interests of justice are whether the document is likely to be authentic, the extent to which the statement would not otherwise be readily available, the relevance and the unfairness to the accused.
This amendment provides that another matter should be included which is absolutely basic: the reasons why it is proposed that the person making the statement should not give oral evidence. If a document is to be put in and the person who made it is not to give the oral evidence then surely that is a very important consideration for the judge to have in mind in exercising his discretion. If the maker of the document is available, if the maker of the document appears from other evidence as possibly unreliable, if there is some evidence to show that it may indeed be a false document, then surely the judge should have to consider above all whether there are good reasons for not calling the maker of the document.
The Earl of Caithness: I have listened carefully to what the noble Lord has said in support of his amendment, and I have taken careful note of his concern. However, I am not convinced that the substance of that concern is not already provided for in the clause as it stands. In the first place, it should be remembered that the list of considerations to which the court's attention is directed by Clause 23(2) is not exhaustive. Under Clause 23(1), in deciding whether to exercise its discretion to exclude a document which is admissible under Clauses 21 or 22, the court is to have regard to all the circumstances, and Clause 23(2) is specifically expressed to be without prejudice to the generality of subclause (1).
Perhaps more important, however, the idea which lies at the heart of the amendment—that the court should take account of whether there is a witness who
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could readily give the same evidence as in the document and could reasonably be expected to do so—seems to me already to be captured by subsection (2)(b). This refers to the extent to which the statement in the document provides evidence which would otherwise not be readily available. This expresses the same thought more generally and, I would argue, more helpfully. If the court's attention were drawn specifically to, as it were, the excuses for a particular witness not attending court, there is, it seems to me, a risk that the argument will focus on that aspect, even where, as is the case with many routine business documents, it is scarcely reasonable to expect the person who made them to come to court.
I am not persuaded by the arguments which have been made for an explicit reference to the reasons for there not being a witness to give oral evidence, because we believe that they are already covered in the Bill as it stands.
Lord Mishcon: Some of us may be rather disappointed with the latter part of the speech of the noble Earl, encouraged as we were by the beginning, when he said (I am paraphrasing his words) that he could understand the reason for the amendment. I thought that he was implying that he had some sympathy with it. The only reason given by the Minister for rejecting this amendment is that he thinks it is already provided for. I can only tell him with deep respect that the following principle is at stake.
Oral evidence must be preferred to written evidence. About that there is no doubt. Nevertheless, if one concedes the point that documentary evidence in certain circumstances ought in the interests of justice to be produced, and one should not insist upon oral evidence, then the court's attention should be directed to the fact that Parliament wanted the court to look at the reasons why oral evidence was not being given. Instead of having the implied words that the Minister thought lay in the wording of the Bill at present, we have the expressed words in the amendment. I was surprised that he was resisting it. Perhaps in his kindness he will agree to consider what has been said between now and the Report stage.
Lord Roskill: I do not want to delay your Lordships at this hour; but; like the noble Lord, Lord Mishcon, I have a certain sympathy with this amendment. Indeed the only answer to it must be that it is already covered by Clause 23(1). For myself, simply as a matter of construction, I should be a little worried if one put these specific words into Clause 23 between paragraphs (c) and (d). It might cut down the generality of the provisions in Clause 23(1).
If I were a trial judge and I were asked to admit a document of the kind we are discussing, the first thing I should ask myself is: "Why won't this chap come?" There may be a dozen perfectly good reasons why he will not come. But I leave it at that and suggest to the noble Earl that he has another look at that because I am not absolutely satisfied myself at the moment.
Lord Mishcon: I am grateful to the noble and learned Lord for that intervention. While this might occur to him if he were the trial judge—I am sure it would—I am not quite so certain that some other

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judges might take the view that this was not deemed important by Parliament as it had not taken the trouble to mention it. It could not possibly weaken the words without prejudice to the generality of subsection (1), only for the reason that the same remarks could apply to paragraphs (a), (b), (c) and (d), which are specified. I am adding only one of the particular matters that are mentioned.
The Earl of Caithness: I am sorry that the noble Lord, Lord Mishcon, could not go all the way with my argument. As I said at the beginning there is not much between us. We are driving at the same point and therefore it is logical that I should have another look at this between now and a later stage.
Lord Hutchinson of Lullington: It is always nice to see the Minister certain, and the noble and learned Lord, Lord Roskill, slightly unhappy. The two are now getting nearer to each other. In those circumstances, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 29:
Page 15, leave out lines 33 to 45.
The noble Lord said: I am emboldened to move this amendment in the light of the assurances that the noble Earl gave in the context of Clause 21, that he did not regard that provision as an assault on the oral tradition.
I take it that the general principle in criminal trials remains, that evidence which is in dispute should be given orally to judge and jury and be subject to critical scrutiny by cross-examination. The admission of uncross-examinable pieces of paper on disputed issues generally is to be regarded as retrograde.
As for Clause 21, however, it is of complete generality; it is not confined to fraud cases. But then we move to Clause 24 which deals with very particu-lar cases. It is concerned with statements made admissible by Clause 21 and Clause 22 prepared,
"for the purposes—

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation.

The purport of this amendment is that such statements shall not be given in evidence in any criminal proceedings.
This is a particular provision. It is not the cheque example of the noble and learned Lord, Lord Roskill. I acknowledge that I see the force of that. What this provision means, as I understand it, is that the judge has a discretion to admit any witness statement or proof of evidence which has been given to either the prosecution or the defence solicitors for the purposes of a criminal investigation or criminal proceedings that are in contemplation.
I would ask the noble Earl, Lord Caithness, whether this is indeed so. But let us take this example.
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In, say, a murder investigation A and B are under investigation. B is arrested and B confesses in a written statement. The police are satisfied that it is A who should be charged and naturally the defendant A would like B's confession statement to go before the jury. There can not be any doubt that under the present law it would be excluded on at least two grounds. The first would be that unless B was called to give oral evidence his statement making the confession simply could not be cross-examined. Secondly, the jury obviously would have the greatest difficulty in knowing what, if any, value to give to a wholly uncross-examinable piece of paper.
The purpose of this amendment is to suggest that statements of this character made in this context are characteristically unreliable. They are invariably made by persons with at least an interest to be untruthful; they are made to the prosecution or to the defence in circumstances in which the very atmosphere in which they are made may well encourage self-serving statements or allegations that are not true. I say they are always unreliable unless subject to cross-examination, always. It should be unthinkable in any case that witness statements, proofs of evidence, should in any circumstances at all be admissible in a criminal trial. Evidence of that kind should be given orally to the jury and be tested by cross-examination, or not given at all.
So the purpose of this amendment is to ensure that statements of this kind should in no circumstances be given in evidence in any criminal proceedings. I wonder whether the noble Earl might say that he will think again about this specific provision, provided of course that the noble and learned Lord, Lord Roskill, does not on this occasion assure him that no further thought at all is required.
9.45 p.m.
Lord Gifford: May I speak to the manuscript Amendment No. 29A, which stands in my name and which takes a similar point to that raised by the noble Lord, Lord Irvine, that this clause should be substan-tially changed, but which approaches the matter in a slightly different way, because it makes an exception to preserve and slightly to extend the existing law with regard to depositions.
The existing law, in Section 13 of the Criminal Justice Act 1925, allows for the deposition of a person before the court to be admitted in evidence in four specific cases: that the person who made it is dead, is insane, is too ill to be able to travel or has been kept away from the court by the procurement of the accused person. In those limited cases, for many, many years the court has had a discretion to admit the deposition.
Those cases would seem to me ones which it would be proper to allow in or at any rate where the judge could have discretion to allow in. Subject to that, I share the concern of my noble friend Lord Irvine as to where this clause, as it stands, will lead. When people make statements in contemplation of proceedings there are many reasons why they may, deliberately or unconsciously, not give a truthful or accurate account. They may exaggerate or lie out of malice towards the accused. They may distort what has happened through their imagination and false

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memory. Their words may be reinterpreted by the police officer who takes the statement and who puts down an account rather different from that which the witness is seeking to give. Everyone who practises at the criminal bar knows of the witness who does not come up to proof, yet it will now be possible to introduce the proofs of witnesses or other statements made in contemplation of the proceedings at the discretion of the judge.
I see no real difference between the wording of Clause 24 and that of Clause 23. The suggestion that there is somehow a different burden of proof seems to me to be no more than a form of words. In the end in both cases it is the opinion of the court as to whether it is in the interests of justice. I fear that witnesses may give statements to the police and may then choose to absent themselves, make themselves difficult to find or be encouraged to leave the country and that their statements can still be used in evidence.
It is not a fanciful suggestion. I referred on Second Reading to a case heard before the Central Criminal Court in 1986 where the only evidence against two accused was in the form of two depositions and one statement. The prosecution sought hard to get them admitted. Under the present law they could not be admitted. In future—and the case was a terrorist One—a judge's discretion can put before the jury as the only form of proof statements of absent witnesses, witnesses who have chosen to avoid coming to court for reasons that cannot be probed. Such evidence may well be worth less but it may seem potent to a jury.
There is great danger in allowing the clause to go through as it stands. I support the amendment moved by my noble friend; or, if that fails, I hope that the limited exception in my amendment may find favour with the noble Earl.
The Earl of Caithness: Clause 24 is the means by which we are ensuring that the more liberal arrangements for admissibility of documents proposed in Clauses 21 and 22 do not threaten the essential character of the trial as an oral event at which witnesses testify to events from their direct experience. It creates a presumption that documents which are themselves a construct of the criminal process—witness statements, police reports and the like—will not normally be admitted as evidence of their contents. It also leaves open the possibility that that presumption will be displaced in the mind of the court and that a particular document will be admitted in the interests of justice.
The amendment of the noble Lord, Lord Irvine of Lairg, raises the question whether it should ever be possible for a document of the kind covered by Clause 24 to be admitted. The case that the noble Lord outlined, the co-defendant's confession, is clearly one in which the court would act in accordance with the presumption in the clause and exclude the documents.
The Government's view is that there might well be cases where there would be a clear interest of justice to be served by admitting a witness statement. Such cases would not be common and the strength of our oral tradition of giving evidence is such that we would
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expect the courts to exercise the discretion given by Clause 24 only very rarely.
Suppose, however, that a vital witness whose credibility there was no reason to doubt had died after making his statement to the police or had been so threatened by associates of the accused that he was afraid to come to court. The latter circumstance is all too easy to imagine in Northern Ireland, to which it is intended to extend these provisions by order in due course. It would in my view be wrong to exclude altogether the possibility of admitting the witness statement in such cases.
There are two other considerations that I believe are relevant. The first is that the clause is precedented in the Police and Criminal Evidence Act, which—admittedly in the context of the narrower range of documents for whose admissibility the Act provided—contained a similar presumption against the admission of witness statements, with similar scope for exceptions to be made in the interests of justice. The second is that the Roskill Committee commended that precedent and recommended its adoption in the more far-reaching evidence reforms that we are now implementing. The noble Lord, Lord Irvine of Lairg, may say with perfect justice that we should not follow blindly the precedents of earlier legislation or the observations of departmental committees, however distinguished their membership. I agree. But nor should we depart from them without careful thought.
For these reasons, I could not advise the Committee to support the amendment of the noble Lord, Lord Irvine of Lairg, and therefore close off altogether the possibility that, in the exceptional kind of case that I have mentioned, a witness statement could be admitted as evidence.
However, I would be willing to look again at the drafting of Clause 24 to ensure that its likely effect is that such cases will indeed be exceptional, as I have said.
The noble Lord, Lord Gifford, has as it were anticipated me by tabling a helpful amendment. It illustrates the kind of conditions that would be imposed. My initial reaction is that what he has suggested is perhaps unduly restrictive, but I should like to study it between now and the Report stage and consider whether to bring forward a government amendment with a similar purpose. On that basis, I hope that both he and the noble Lord, Lord Irvine of Lairg, will feel able to withdraw their amendments.
Lord Roskill: Perhaps I may say a word on this as the noble Earl said that this was one of our babies. Up to a limited extent it is. I fully see and understand the fears that theoretically at least this could be misused. The noble Lords, Lord Irvine and Lord Gifford, may riposte to what I am about to say that I have too much faith in the exercise of judicial discretion. I simply cannot believe that any judge in his senses would in the circumstances let in the kind of document which they envisage. If by any mischance he did so, I do not think it would take very long before the Court of Appeal said something rather sharp about it.

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What this was designed in our original thinking to achieve was this sort of case. If this clause should be narrow in order to give effect to our thinking without risking any possibility of injustice in other types of cases, so be it. We were concerned with the type of statement which is obtained by the fraud squad in an investigation into a big fraud. It may be obtained in this country or it may be obtained overseas. In the latter case the witness just will not attend and there is no method on earth whereby you can compel him to do so. Trying to get evidence on commission in some form or another is a laborious and frightfully unsatisfactory and expensive way.
There are many such cases where the evidence in those statements may be largely flawed but is an essential part of the truth in the prosecution case. The prosecution case not only will stumble but will fail completely unless that statement can be used. That is what we were trying to get at in our report, and certainly this clause as drafted covers it.
The other kind of case is where the statement has been obtained in this country—the noble Lord, Lord Gifford, gave an example—but the maker of the statement has died. He repeated—and I am speaking from memory—very much the language of what I seem to recall as the Criminal Justice Act 1925 although it is a long time since I looked at it. I venture to agree with the noble Earl that the language is in these circumstances a little restrictive. However, the thinking is on the right lines if one could get a form of words which first would make this type of statement admissible where it is essential in the interests of justice that it should be done, and, secondly, protect against any possible risk of such a statement being admitted where no judge in his senses ought to allow it to be admitted.
There may be cases where a defence would want this sort of statement by a co-accused admitted. This is not only a prosecution case. As the noble Earl said in the debate on one of the early amendments, this is by no means a one-way amendment. Many years ago when I was first a judge in the days of capital murder I can recall trying a rather sensational capital murder case. It is all a long time ago and it does not matter my mentioning it now. One of the accused did not go into the witness box. One of the co-accused was desperately anxious to get in a document which could not possibly be proved unless that man went into the witness box.
Again and again I had to rule—rightly as it was ultimately held—that the document was inadmissible. It may be said that the interests of justice required that document to be admitted; but I can think of cases where if the noble Lord were defending someone he would want to get that sort of document admitted and this type of clause in its present form or in an amended form might help him. It is not the one-way clause in the interests of the prosecution only. I support it in principle but suggest that it should be looked at again.
10 p.m.
Lord Hylton: In the course of his speech the noble Earl, Lord Caithness, mentioned the possibility of
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extending this and other clauses to Northern Ireland, which I do not think at present applies as the Bill is drafted. This raises in my mind the suspicion that he may have been referring to accomplice evidence. We have in recent years seen quite a considerable number of cases where a great deal of accomplice evidence has been thrown out by the Court of Appeal in Northern Ireland. If I am implying something that is not at all the case, I hope that the noble Earl will tell me so.
Lord Hutchinson of Lullington: The debate, as so often with this Bill, has been repeatedly so remote from reality that it is almost unbelievable. What the noble Lords, Lord Gifford and Lord Irvine, have said is absolutely true when one becomes concerned with criminal trials. The noble and learned Lord, Lord Roskill, says that the whole fraud case may collapse "if this statement is not put in". Of course the whole case will collapse "if this statement is not put in". But as has already been said, the reality of trials is that statements are made by people under the urging of either a solicitor or a police officer, to keep the balance absolutely fair, on one side or the other in which they say things which are simply not true. They say them on a proof of evidence, and the proof of evidence may look totally innocuous when one reads it. The witness comes into the witness box and butter will not melt in his or her mouth. One then cross-examines the witness and one finds that half the witness's evidence has been put into that witness's mouth for a hundred reasons, but a hundred reasons which have nothing to do with the truth. It may be wicked, it may be absolutely understandable, it may be compassionate, it may be prejudice, it may be a thousand things, and the judge looks at the statement as it stands and the judge has to test it by what is "in the interests of justice"—that frail and hopeless criterion for a decision of this matter.
One judge's idea of what is in the interests of justice is totally different from another judge's idea of what is in the interests of justice. Some judges think that the right of silence should be abolished because in the interests of justice a person should go into the witness box. Other judges think that that is quite outrageous and that the interests of justice are that a person should never be forced to incriminate himself. Both of them are passionately for justice and the interests of justice. Both of them would make a totally different decision.
I would urge the Minister to look at the reality of the situation. The reality is that statements which are put on paper for the purpose of giving evidence in a trial cannot possibly be trusted by themselves. It is not possible to trust them. There is no way in which such a statement can be tested. There is no way in which a judge can sit back and say, "Because £27 million are involved in this case and there is one witness sitting in New York who will not come back and who can kill this man in the box, therefore it has to go in in the interests of justice". It is not right because the man sitting in New York may have made a perfect statement; but when you find him and put him in the witness box, you discover of course that he was the man behind it all the time, that he is a great and grand chairman of 15 companies and that his statement looks wonderful.

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He may be manager of an important bank, as so often happens. But then, when you get him in the witness box, my goodness, you find that he was in cahoots all the time with the person who really perpetrated the fraud. This is another example of the passionate belief that you can have a human being sitting in judgment who can say, "In the interests of justice this shall go in." That is not reality and, as the Minister has promised to look at the matter again, I ask him to bear those considerations in mind.
The Earl of Caithness: Before the noble Lord decides what to do in respect of his amendment, it would be right for me to respond to the noble Lord. Lord Hylton. He raised a point in respect of Northern Ireland following a comment which I made. I mentioned Northern Ireland because it illustrated a point that I was trying to make about the risk of someone who has made a reliable statement to the police, is subsequently intimidated and becomes unwilling to give evidence at the trial. I should like to refer the noble Lord to Clause 134, where he will see the parts which will come under an Order in Council for Northern Ireland. There was no point other than that which I wished to make.
With regard to the last impassioned speech of the noble Lord, Lord Hutchinson of Lullington, I said that I would look at the matter again and indeed I shall.
Lord Irvine of Lairg: I should like to assure the noble and learned Lord, Lord Roskill, that I yield to no one in my regard for Her Majesty's judges, not least on occasions when they are exercising a discretion. However, together with the noble Lord, Lord Hutchinson of Lullington, my regard for principles of law, properly defined by Parliament, is perhaps even greater.
In view of the Minister's generous statement at this hour that he will be ready to consider this problem with a fresh mind tomorrow, or perhaps later, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29A not moved.]
Clause 24 agreed to.
The Earl of Arran: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eight minutes past ten o'clock.

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