Mr. Hawkins: I understand what the Minister says and I am grateful that he has been more serious about this issue. I am particularly grateful for his acknowledgement that, at first sight, 40 days seems a long time. I understand his point about treaty obligations; I am sure that none of us wishes to force this or any Government to tear up their treaty obligations.
Unlike the Minister and his advisers, I have not studied individual treaties, and I am slightly surprised that they do not provide for flexibility or for 40 days to be a maximum. I wonder whether he might talk to his officials again, or whether it might still be possible, without tearing up all the treaties, to substitute a slightly shorter period of 28 days. The Minister acknowledged that, while advancing my case for seven days, I referred to 14 or 28 days as possible alternatives, as did the hon. Member for Orkney and Shetland.
I hope that the Minister will at least consider that point, because this is an opportunity to change extradition law if it needs changing, and to look afresh at some of the issues. Again, it was right of the Law Society of England and Wales to draw our attention to that point, because this may be the only opportunity for a decade or longer to reconsider what should happen in extradition cases.
If an arrest is under a provisional warrant, there should be some obligation on those who are putting the paperwork together to get a move on, in fairness to the potential subject of the extradition request and the lawyers representing him. The amendment tries to be fair to that person and to give his legal representatives an opportunity to prepare the case without unfairly hampering the interests of the state. There is balance to be struck. I am glad to see the Minister nodding in agreement. I hope that the Minister will reconsider this matter and will keep it under review, because the other place may need to discuss it. It is a point of detail, but not an insignificant one.
Having alerted the Minister to the concerns and having heard his reasonable response, I am happy not to pursue the matter at this stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Carmichael: I have a brief point to make, and I should be grateful if the Minister would take it away and consider it. It might equally be said to apply to clause 71. Subsection (3) states:
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''The person must be brought as soon as practicable before the appropriate judge.''
Subsection (4)(a) provides that that need not apply if
''the person is granted bail by a constable following his arrest''.
Subsection (11) says:
''Subsection (4)(a) does not apply to Scotland.''
That is perfectly proper, as in Scotland the police do not grant bail. I do not take issue with that. However, it seems that the police having the power to grant bail is a useful provision that gives a degree of flexibility.
Perhaps between now and Report the Minister and those advising him could give some consideration to the question of a parallel provision being put in for Scotland. I do not want to see terminology starting to be confused and constables in Scotland getting the power to grant bail, but under Scots criminal procedure there is a provision whereby police officers can arrest people on an undertaking to appear at a court at a later date. That is very close to what I understand police bail in England to be. In fact in Scotland it is often referred to in shorthand as police bail, but bail is something quite distinct and different.
Without that flexibility there can sometimes be logistical difficulties in taking people from, for example, the remoter parts of my constituency to the sheriff at Lothian borders sitting in Edinburgh. As soon as practicable can sometimes be a couple of days. There is good flexibility in the police being allowed to give bail. If some mechanism could be found to allow that to be extended north of the border, it would have a lot to commend it.
Mr. Ainsworth: I shall take some advice and will come back to the hon. Gentleman as soon as I can.
Question put and agreed to.
Clause 73 ordered to stand part of the Bill.
Clauses 74 to 82 ordered to stand part of the Bill.
Case where person has not been convicted
Mr. Hawkins: I beg to move amendment No. 160, in
clause 83, page 41, line 32, leave out subsection (3).
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 161, in
Mr. Hawkins: I did not want to discuss this in a clause stand part debate, but it is interesting that we just agreed to clause 79 and the new rule against double jeopardy while the Government are proposing in other legislation in the House to change the rules about double jeopardy. I see that the Minister is shaking his head, but my right hon. Friend the Member for West Dorset teased his Front-Bench colleagues about that. There is something of a mismatch between the different criminal justice legislation before different Committees at different times.
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The Chairman: Order. I have been very generous, but the hon. Gentleman must move on.
Mr. Hawkins: Indeed, Mr. O'Hara.
It will not surprise the Minister or other Committee members to hear that the Law Society of England and Wales suggested amendments Nos. 160 and 161, which would leave out subsection (3) and replace the word ''must'' with ''may'' when the statement is corroborated with independent evidence. However, there is a slight difference, because as well as the Law Society, we have heard the strongly expressed concerns of Liberty. On subsection (2), Liberty said:
''Category 2 countries still require the establishment of a prime facie case to be made out before extradition can occur. This requirement provides an important safeguard in the case of requests emanating from Category 2 countries, the majority of which are not signatories to the European Convention on Human Rights.''
Indeed, many category 2 countries will have nothing to do with Europe or the European convention on human rights.
The Government's proposal to allow a summary of evidence to be read is, in the view of the Conservatives and Liberty, a serious inroad into the protections that have existed historically in our extradition law. Liberty believes that the requirement for a statement to be in full should not cause any significant delay to the extradition, and says that if a summary is incomplete and does not contain all the required information, it may work against the Government's aim by resulting in further delays.
The Law Society of England and Wales said that, unlike the provisions for the admissibility of statements elsewhere in the Bill, there is no safeguard in the provisions on who has to prepare such a summary. As always, there is a danger that a summary may be partial and tailored to support the extradition request, and may omit matters that may assist the defence. My experience during years of practising in criminal courts may provide me with some assistance in making my case. The Minister will know that in the criminal courts, if a prosecuting solicitor is aware of any fact that may not help his case, he is under a duty to make the information available to the defence and the court. That is why the prosecution in our courts traditionally represents the Queen and has a duty to the courts to ensure fairness in the consideration of the defence case. It has become apparent that many of the so-called miscarriage of justice cases arose from the prosecution having information that was not disclosed to the defence or the court. That is what has caused some of the most celebrated miscarriages of justices in which the convictions had to be overturned, sometimes many years later.
The Conservatives are bound to be concerned about introducing provisions for a summary, and the Minister will confirm that it is completely new. Such a provision has not previously been in extradition law, so for once I will not have the Minister attacking me by arguing that the Conservative Government in 1989 agreed to it. It is some relief not to have to face that attack from the Minister yet again. The Minister is having difficulty justifying the introduction of summaries. I believe that great concern will be expressed in the other place. We shall listen with
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interest to what the Minister has to say, because for the first time in this part of the Bill we are dealing with a matter of some substance. I suspect that, as the Bill proceeds, we will have to spend more time on this issue than on any of the other issues that we have dealt with this afternoon.
Mr. Ainsworth: The hon. Gentleman is absolutely right: I cannot throw that allegation at him. We are talking about cases where the requirement for prima facie evidence is being retained, and the clause provides for a summary of the person's statement to be admitted as evidence. Our proposed changes, which so worry the hon. Gentleman, would simply mean that a foreign police officer's account of what a witness had told him could be admitted as evidence. Without that provision, that evidence would be admissible only if the police officer came to the court in person to give it. Apart from the trouble and the expense that that would entail, a subtle but important consideration is that the task of the district judge is to determine whether there is a sufficient case against a person to warrant sending them to stand trial. In such prima facie cases, it is not the job of the judge to conduct the trial, or to establish the guilt of the fugitive beyond all reasonable doubt.
Clause 83(3) is an important provision. It will make things much easier for most people involved in extradition, and it is important to stress that the district judge will always have discretion over the presentation of summaries of evidence. He can decide not to admit the evidence if he has any doubts about its authenticity or reliability. He can decide that the summary is not admissible, and that any evidence must be produced differently. We want to give the judge that discretion in order to make the arrangements more workable. It is an important safeguard, and it is the basis on which we seek to make the changes.
I am not surprised that the provision has caused concern. It is new, but I must say to Opposition Members that people who practise extradition have talked about it for some time. It gives the judge the discretion over the presentation of summaries of evidence, but does not say that evidence can be presented and will be accepted in a particular way. The amendment would deny the judge the ability to consider summaries of evidence. That is the current position, and if the Opposition are opposed to the district judge being allowed to give consideration to such summaries, they must stick to their current line. I wonder if, on reflection, they would be so opposed to that discretion and believe that it is such a threat to justice.