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Mr. Burnett: Would the Minister speak up, because I am missing some of what he says? It is probably my fault because I am slightly deaf.
Mr. Ainsworth: I shall try. I am not usually accused of being quiet.
We are not discussing the most serious crimes, but we would all accept that the interests of justice require
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that those minor offences should be dealt with, and the person prosecuted. Is the amendment really proposing that before any effort can be made to enforce a minor offence—a parking ticket, to take a ridiculous example—the other state should seek our permission, and that we should hold a special hearing in order to consider the offence?
We are not frightened of the principles of mutual recognition. We believe that there are huge benefits to be gained from applying those principles to the victims of crime and to the interests of justice. However, amendment No. 95 completely rows back from what has long been accepted as standard. Amendment No. 94 would introduce a level of scrutiny by the UK authorities that, in the circumstances described, is not justified. I therefore ask the Committee not to support the amendments.
Mr. Hawkins: I can be brief in response. I accept the Minister's point that the wording suggested to us and to the Liberal Democrats by the Law Society of England and Wales does not achieve exactly what they and we intended.
The Minister said that he could not understand the nature of the difficulties. I tried to give an example which, as I said, was not about speciality but which involved the problems that can occur when a requesting country originally drops proceedings and then starts again. The heart of what we and the Law Society are saying is that, given the problems that specialist solicitors experience with requesting states, if fresh proceedings are started, there should be an opportunity for the person who may be extradited to be made fully aware of those proceedings.
There is another case that Robert Roscoe has drawn to our attention, that of Charles Edward Johnstone. I will not bore the Committee with the details, but I ask the Minister and those who advise him to consider whether, given the difficulties that arose in that case and in the Mahu case, the Government might find some wording to amend the Bill. The amended wording might be different from that which we have proposed, but it should take account of the need for someone who may be extradited to be kept properly informed, so that those who represent him and advise him can also be properly informed of the nature of any fresh proceedings. That is all that we seek to achieve.
I do not believe that that undermines the whole concept of extradition. We do not want to drive a coach and horses through the existing arrangements for speciality. I hope that the Minister will at least consider amending the Bill but, having probed the matter, I shall not pursue the amendments.
Mr. Burnett: I take the point made by the hon. Member for Surrey Heath. The Minister gave an example of a trivial offence: I suppose that the non-payment of a parking ticket is a criminal offence. We understand the need for a de minimus provision, but the thrust of the amendment is that, if fresh proceedings are brought, the person who may be extradited must be aware of them and of the facts and the allegations behind them. I hope that the Minister will take that point in the same good faith in which it is
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made by my hon. Friend and me, that he will consider it further and introduce some suitable safeguards.
9.45 am
Mr. Hawkins: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clauses 18 and 19 ordered to stand part of the Bill.
Clause 20
Case where person has been convicted
Mr. Hawkins: I beg to move amendment No. 96, in
clause 20, page 9, line 3, leave out paragraph (c).
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 123, in
clause 20, page 9, line 4, leave out from 'retrial' to end of line.
Amendment No. 139, in
Amendment No. 97, in
clause 20, page 9, line 9, leave out paragraph (c).
Amendment No. 124, in
clause 20, page 9, line 9, leave out from 'retrial' to end of line 10.
Amendment No. 165, in
clause 20, page 9, line 17, at end insert—
'(3A) For the purposes of this section, the judge should not regard as a retrial any retrial not including provision for—
(a) the suspect to recall prosecution witnesses where the prosecution are not obliged to call them again to give evidence;
(b) the suspect to call defence witnesses; and
(c) the same right to publicly funded legal services as any suspect or defendant.'.
Mr. Hawkins: Once again, our amendments were suggested by the Law Society of England and Wales. Amendments Nos. 123, 139 and 124 tabled by the Liberal Democrats would have a similar effect. They also added their names to our amendments, which refer to retrials. The purpose of the amendment is to include provisions for the suspect to recall prosecution witnesses in a retrial even when the prosecution are not obliged to call them again, for the suspect to call defence witnesses and to have the same right to publicly funded legal services as any other defendant in criminal proceedings. There must be basic safeguards during a retrial.
The Government say that a review amounts to a retrial, but the Law Society believes that it should be defined in order to include the right to recall prosecution witnesses. On Second Reading, the Minister said:
''A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.''—[Official Report, 9 December 2002; Vol. 396, c. 44.]
However, that is not what the Bill as drafted states. I entirely accept the Minister's good faith on Second Reading, and I am sure that he intended that the Bill
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should reflect what he said, but as drafted it does not. It would do so if wording similar to that in the amendments were included; I am not wedded to any particular drafting. There is no reference in the Bill to the funding of defence costs, adequate legal representation, interpretation and translation. The Law Society makes the significant point that, unless such a provision were in the Bill, it would be questionable whether a review amounting to a retrial would satisfy the requirement to the right to a fair trial as set out in article 6 of the European convention on human rights. I am sure that the Government, having incorporated the ECHR into UK law under the Human Rights Act 1998, would not want the Bill to be in breach of that convention. I anticipate that the Liberal Democrats will take a similar line, and I hope that the Minister will take the matter seriously.
Mr. Burnett: Yes, we take a similar line. With regard to amendment No. 123, the text of the European arrest warrant framework decision allows member states to guarantee that the subject of the warrant in such circumstances will have an opportunity to apply for a retrial.
Amendment No. 139 deals with trials in absentia. It would deem a person
''to have deliberately absented himself only if evidence has been provided that notice of the proceedings was personally served on that person.''
We—and Justice—believe it important to include a mechanism by which the judge can determine whether the person deliberately absented himself. In some European jurisdictions, residence can be deemed as that of a court-appointed lawyer, though the person may not even be aware of his existence. For a person to be deemed to have deliberately absented himself, evidence should be provided that notice was personally served on that person. In extra-territorial cases, the person should be subject to the process of ''obliging appearance''; and deliberate absence should not be established purely on the basis of a summons emanating from a foreign jurisdiction.
Mr. Ainsworth: During the scrutiny process, I made it clear on behalf of the Government that nobody convicted in absentia would be extradited without the guarantee of a retrial. The hon. Member for Torridge and West Devon has read the part of the framework decision that provides that guarantee. The guarantee exists, at least in part, because we—this dreadful Government who draft such draconian legislation—insisted on it. We played a leading role at the heart of Europe in drafting this framework document. We were successful in achieving precisely the guarantees that the hon. Gentleman holds up as crucial. They are already present in the framework document and have been translated into the Bill, although it does not cover any semantic arguments that we might have with another jurisdiction that frames its laws in different language. Nothing of substance detracts from the commitment that I gave to the Scrutiny Committee on what the British Government succeeded in having included in the framework decision. We should stay at the forefront of such arguments to ensure that we
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continue to frame future legislation on justice and home affairs as we have over the past few years.
The Bill unambiguously secures the commitment that we gave: unless a fugitive has the right to a retrial, or a review amounting to a retrial, extradition cannot take place. Responding to parliamentary concerns, we secured an amendment to the framework decision whereby a district judge must be satisfied that the person deliberately absented himself and that he has the right to a proper retrial—on both assertions, the fugitive can advance legal arguments in his defence—before extradition can take place.
Unlike an appeal, with a retrial the slate is wiped clean and the fugitive is presumed innocent unless and until the prosecution can prove the contrary. All the evidence is tested afresh and witnesses are cross-examined. The same arrangements for legal assistance and the payment of defence counsel apply. Amendments Nos. 96 and 97 would prevent extradition cases of convictions in absentia even if the person would be entitled to a full retrial. That is a strange position that cannot logically be supported, and I fail to understand the objection to extradition when a retrial or review amounting to a retrial is guaranteed.
It is surprising that the Liberal Democrats added their names to the amendment. Although as I noted before we seem to have the Eurosceptic wing of the party in Committee, it is surprising that members of a supposedly pro-European party would force every other country to adopt a legal justice system exactly like ours. That is a long way from the notion of mutual recognition. The important point should not be whether another country chooses to call its proceedings a retrial or uses other terminology, but that a British district judge has to satisfy himself that what is offered amounts to a retrial. If he is not satisfied, extradition will be denied. The amendments are not justified or necessary, and I ask the hon. Member for Surrey Heath to withdraw amendment No. 96 and not move the others.
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