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10.45 am

Mr. Waterson: The Bill's wording follows the precedent set out in part I of the Criminal Justice Act 1993--legislation with which I am sure my hon. Friend is extremely familiar.

Mr. Leigh: I am grateful to my hon. Friend for that clarification. It may be true: I appreciate that, when forming legislation, the parliamentary draftsmen often base their drafting on previous legislation. However, the matters with which criminal justice Acts deal are often very different from the highly complex issues that we must address in this area.

I am pleased to see my hon. Friend the Member for Milton Keynes, North-East (Mr. Butler) in his place. During the Second Reading debate, he said:


I have moved the amendments today because I thought my hon. Friend made an interesting point that deserved to be discussed on the Floor of the House at Report stage. As legislators considering criminal law, we must ensure that when we devise this sort of legislation we do not make the task of prosecutors in criminal trials too easy at the expense of the defendant. Our traditions are about ensuring that there is a balance between the prosecution and the defence.

The real problem is demonstrating that an offence took place in a foreign jurisdiction. Who would find it easier to learn of alleged crimes that were committed abroad? As my hon. Friend the Member for Milton Keynes, North-East pointed out, there is an enormous disparity between the resources of the prosecution and those of the defence. Let us take one random example. Would an ordinary firm of solicitors in a small industrial market town such as Gainsborough--

Mr. Peter Butler (Milton Keynes, North-East): Where is Gainsborough?

Mr. Leigh: My hon. Friend's sedentary intervention is quite uncalled for--he should know where Gainsborough is. It is a small town with excellent solicitors, but how could they know whether an act complained of is contrary to Islamic law, for example? It would be beyond the resources of large firms of solicitors in London to investigate that matter. Islamic law--although very worth while in itself--is highly complex. If we conceive of a prosecution being brought against a group for plotting or fomenting revolution in Iran, for example, a defence solicitor may have to research Islamic law. Where would he find the resources to do that?

On the other hand, the prosecution is uniquely advantaged in that respect as it is backed by all the resources of the state. Activities which are difficult--or well nigh impossible--for a firm of solicitors are feasible for the Government and all its agencies. Therefore, it is

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in the interests of justice and of practicality that the state should always be responsible for proving that the second condition---that the alleged offence would be an offence abroad--has been met. My amendments are simple. They want to make that clear on the face of the Bill. They are simply designed to ensure that the traditional fairness of our criminal justice system applies to those who might face prosecution under the Bill.

I have some sympathy with some of the points made by the hon. Member for Cardiff, South and Penarth(Mr. Michael). If he has had a chance to read Hansard he will see that I made some similar points myself on Second Reading and in Committee. Time and again, I have pointed out that while I support the Bill we cannot--for all the hon. Gentleman said--tolerate groups fomenting international terrorism. I always think of the example of the War Crimes Act 1991: there has been only one prosecution under that Act and it ended in a debacle.

If the Bill is to become an Act, it must be drafted sensibly and fairly. We must ensure that we deal with the right sort of issues and that when a trial comes to court it is properly prepared. I should have thought that my modest amendment would at least ensure more fairness in any prosecutions. To that extent, I hope that it will assuage some criticism of the Bill and reassure those who have genuine worries about it as it stands.

Mr. Butler: I support my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) and I promise that immediately after the debate I will find out where Gainsborough is: I apologise for not knowing. I support my hon. Friend's amendments, which seem to deal with a significant defect in the Bill--exactly the defect that I raised on Second Reading and that he raised subsequently and again today. It is simply not fair to put the onus on the defence to prove a point that it is not within its competence to prove.

The requirement under proposed subsection (8) is that if the defence wishes the prosecution to be put on proof, it has to state the condition--that is, that dual criminality is not in their opinion satisfied--and show its grounds for that opinion and for requiring the prosecution to do so. The Bill is also defective in terms of what grounds can be shown. Who is to assess whether the grounds are adequate? For instance, will the ground that one cannot find out be sufficient? That is likely to be the real ground.

If the Bill is not amended, can the defence go to court and say, "We simply do not know whether there is dual criminality. We cannot find out." Is the defence able to say that it cannot find out because the legal aid authority will not certify the costs involved? The defence might say that it cannot even estimate the costs. A best estimate might be £5,000 for having research done in a foreign country by foreign agents, presumably with a notarised result, brought to the defence and put before the court. The legal aid authority is highly unlikely to authorise that sum. Is that sufficient ground for the opinion that dual criminality is not established? It is not a question of the common use of language--it can be sufficient grounds--but that the only grounds for the opinion are that we do not know and we do not know is not an opinion that it is not satisfied.

Without playing too many semantic games, the Bill as it stands could pose difficulties. The proposer has to answer those questions if the Bill is to proceed

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unamended. What are the grounds? Are the grounds that we do not know and cannot find out adequate? Is anyone going to look into those grounds and discuss them? What would be the effect on the judge if the time limit under subsection (8) were missed, but the defence on the day of the trial, at the pre-trial review or shortly before the day of the trial--outwith the established time limit set by the rules of court--said that it had come to its notice that the offence might not be an offence in Burkina Faso or wherever? The court then only has a discretion to permit the defence to require the prosecution to show that it is satisfied. How is that discretion to be used?

This is not a mere lawyers' game of saying, "Everyone knows that it is dual criminality; the issue is whether we can prove it." Unless it is proven, it cannot be known, and unless a procedure is laid down in the Bill for it to be proven by the only party to criminal proceedings with the resources and facilities to do so, we run the risk of people being convicted for offences that cannot have been committed under the Bill. We will not know, and the idea that people can be prosecuted and convicted on the basis that they might have committed an offence is alien to the British criminal law: it has to be proven beyond reasonable doubt.

For this offence, the starting point would have to be dual criminality. I think that hon. Members on both sides of the House agree that unless there is dual criminality there should be no prosecution and that prosecution for such conspiracy cannot lie, as the Bill states. With the greatest respect, I therefore suggest to my hon. Friend the Member for Eastbourne (Mr. Waterson) that although my name appears below his as one of the supporters of the Bill there is a defect--it was pointed out on Second Reading, so there has been adequate time to deal with it--and I hope that in his reply or in that of my hon. Friend the Under-Secretary of State we will hear how it is to be dealt with, either in the Bill as it stands or by adopting the proposals of my hon. Friend the Member for Gainsborough and Horncastle so that it can be avoided altogether.

Mr. Galloway: I intrude with some trepidation on these fascinating, lawyerly, sincere and important contributions. I shall be interested to hear the outcome.

I must deal with the point made about Islamic law by the hon. Member for Gainsborough and Horncastle(Mr. Leigh) when moving his amendment. I think that we can all accept that, notwithstanding the many examples that I gave of the sort of cases that could be tried, the most likely to be tried in the present political climate under this legislation are those relating to middle eastern or other Islamic countries. That is the atmosphere in which the measure was born. For the purposes of the argument, it is a likely hypothesis.

The hon. Member for Gainsborough and Horncastle pointed out--out of respect, I am sure--that Islamic law is complex. As a matter of fact, it is not--it is basic and open to interpretation. Saudi Arabia, for example, has no written law. There is no law in Saudi Arabia other than the sharia, which was written many centuries ago. No doubt it is a fount of great wisdom, but it is not up to date with the development of criminal law in other parts of the world, so it is subject to constant interpretation. In Saudi Arabia, the people who interpret Islamic law and decide

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whether a matter is an offence under their jurisdiction and so satisfies the point about dual criminality, are clerics in the two mosques, who are hand-picked and effectively agents of the Saudi Arabian Government. Whatever one thinks of them or of that Government, that is a matter of fact.

In short, there is no law in Saudi Arabia but that which that regime declares to be legal or illegal at any one time and that interpretation can, and does, change. Things are illegal one day that were legal the day before. Saudi Arabia has no Parliament, of course, and no free courts. The defence has no rights. I was fascinated by the description given by the hon. Members for Gainsborough and Horncastle and for Milton Keynes, North-East(Mr. Butler) of the great safeguards and the importance of the justice system in this country. I was thinking about Saudi Arabia, where there are no safeguards and people go missing, or are kept in dungeons and do not appear in any court. When they do, they are charged with offences under the sharia, as interpreted by the clerics who have been hand-picked by the Saudi Arabian regime.

That is true of other countries in the Islamic world. I hope that the Minister will say how he will ascertain in such countries whether dual criminality has been satisfied. Will he write to King Fahd and ask whether the act being commissioned, incited or conspired about in this country is an offence? He had better not ask under which code, clause or Act it is an offence, because there are no codes, clauses or Acts in Saudi Arabia, where there is no Parliament, no freedom and no due process of law.

I do not accept that the implementation of Islamic law by the Saudi regime is a due process, and I do not think that the hon. Member for Gainsborough and Horncastle does either, although it may suit his purpose to be allied with that Government at this time--a Government who preside over the dragging of people to public squares and their beheading, and the chopping off of people's hands or feet without due process, proper defence or any codified law.


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