Appendix 1: The Asylum and Immigration
(Treatment of Claimants, etc.) Bill
Letter from the Chair to Rt Hon David Blunkett,
Secretary of State for the Home Department
The Committee is considering how to report to each
House on the above Bill. It has carried out an initial examination
of this Bill and would be grateful for your comments on the following
points raised by our Legal Adviser. Our startingpoint is
of course the statement made under s.19(1)(a) of the Human Rights
Act 1998; but I should make it clear that the Committees remit
extends to human rights in a broad sense, not just the Convention
rights under the Act.
Clause 2: Offence of entering the UK without a
valid immigration document
Two issues arise: first, compatibility with Article
31.1 of the UN Convention Relating to the Status of Refugees (Geneva,
1951) (hereafter "the Refugee Convention"); secondly,
compatibility with Article 6 of the ECHR.
1. The Refugee Convention
Article 31.1 of the Refugee Convention (which, as
you know, binds the United Kingdom in international law and gives
rise to a legitimate expectation under English administrative
law that claimants to refugee status will be treated in accordance
with its provisions)
provides that States shall not impose penalties, on account of
their illegal entry or presence, on refugees who, coming directly
from a territory where their life or freedom was threatened in
the sense of Article 1, enter or are present in their territory
without authorisation, provided they present themselves without
delay to the authorities and show good cause for their illegal
entry or presence.
Clause 2 of the Bill would, as you know, make it
an offence punishable after trial on indictment by imprisonment
for up to two years or an unlimited fine or both for a person,
when first interviewed by an immigration officer after arrival
in the United Kingdom, not to have with him an immigration document
which is in force and satisfactorily establishes his or her identity
and nationality or citizenship and those of any dependent child
accompanying him or her.
Although there would be a defence available to a person who can
prove that he or she and any dependant child is an EEA national
or has a reasonable excuse for not being in possession of an appropriate
immigration document, deliberate destruction of the document would
not be a reasonable excuse unless the person could prove that
the destruction was for a reasonable cause or outside the control
of the person charged, and does not include a situation where
the person intends the destruction to delay the making or resolution
of a claim to asylum, or to increase the chance of success, or
to comply with the instructions or advice of a person who advises
on or facilitates immigration to the United Kingdom.
Article 31.1 allows states to impose criminal liability
on people seeking refugee status who enter without authorization:
a. who do not come directly from the place where
they allege they have suffered persecution;
b. who fail to present themselves to the authorities
without delay; or
c. who fail to show good cause for their unauthorized
entry or presence in the country.
However, even allowing for the defences, clause 2
would impose liability on some people who fall outside those three
categories. The way in which the Bill is framed is likely to make
it difficult for asylum-seekers to discharge the burden of proving
such an excuse. They would carry the burden of proving what happened
in a country where he or she was allegedly suffering persecution
or in transit. There may be little or no evidence of these matters
apart from the asylum-seeker's word. Clause 2 is likely to affect
a very large number of asylum-seekers, and there seems to be a
real risk that the defence will fail to protect a significant
proportion of them, giving rise to a real risk that the United
Kingdom will fail to discharge its obligations under Article 31.1
of the Refugee Convention. The Home Affairs Committee has drawn
attention to the importance of making it clear on the face of
the Bill that there would be a 'reasonable excuse' where the person
had no practical way of obtaining valid documents, and to the
risk that the Bill could criminalize genuine refugees fleeing
persecution who are compelled to travel on false or invalid documents.
In the light of these considerations, why does the Government
consider that the provisions of clause 2 are likely to allow asylum
claimants to be dealt with in accordance with Article 31.1 of
the Refugee Convention?
2. ECHR Article 6
Placing on the accused the burden of establishing
a defence to a charge, instead of requiring the prosecution to
prove all elements necessary to guilt, is capable of engaging
the right to a fair hearing in the determination of a criminal
charge under ECHR Article 6.1, read together with the right to
be presumed innocent until proved guilty under Article 6.2. The
Government accepts this, but argues that it is justifiable to
impose this burden on the accused because 'it is a justified and
a proportionate response to the legitimate aim of the statute
in accordance with Strasbourg and domestic case law'.
The case law establishes that it may be justifiable
to reverse the burden of proof in some circumstances, even if
the result is that the defendant has to disprove what would normally
be regarded as a central element in the offence, such as intent.
Whether it is permissible will depend on the circumstances of
each case. If the provision gives rise to a presumption which
is effectively irrebuttable by the defendant, there will be a
violation of Article 6.1 and 6.2 because the accused will have
been denied the opportunity for a fair hearing. On the other hand,
a presumption against the accused can be justified if it is kept
'within reasonable limits which take into account the importance
of what is at stake and maintain the rights of the defence'.
Why does the Government consider that reversing the burden of
proof would be a proportionate response to the legitimate aim,
particularly having regard to clause 2(5) (which limits the circumstances
in which a defendant would be able to claim to have had reasonable
cause for destroying documents)?
Clause 6: assessing the credibility of a claimant
Under clause 6 of the Bill, a "deciding authority",
when determining whether to believe a statement made by or on
behalf of a person who makes an asylum claim or a human rights
claim, would have to "take account of" any behaviour
of the claimant which the deciding authority thinks is designed
or likely to conceal information, mislead, or obstruct or delay,
or which otherwise damages the claimant's credibility.
Behaviour likely to conceal information, etc., is to include failure
without a reasonable explanation to produce a passport, or production
of an invalid passport, or destruction, alteration or disposal
of a passport, ticket or other travel document, and failure without
reasonable explanation to answer a question.
Furthermore, under clause 6(3) a failure to make an asylum or
human rights claim while in a "safe country" would automatically
be treated as damaging the claimant's credibility, regardless
of the circumstances.
Clause 6(3) seems to require an authority to make
an unreasonable assumption about credibility. There is no reason
to suppose that a person is not worthy of belief on any matter
merely because he or she preferred to make a human rights claim
in the United Kingdom rather than in another country. The failure
to take make the claim in another country might cast doubt on
certain statements, but cannot rationally be said to damage the
claimant's credibility in relation to all statements. Clause 6(3)
thus imposes an inference of damaged credibility regardless of
the circumstances and the nature of the statement in relation
to which credibility falls to be assessed. Requiring a deciding
authority to make an irrational inference might appear to compromise
the fairness of the decision-making process. So far as human rights
claims are concerned, the failure to provide a fair hearing would
engage ECHR Article 13 (right to an effective remedy before a
national authority for alleged violations of Convention rights).
Why does the Government consider that clause 6(3) would be compatible
with ECHR Article 13 in so far as the clause would require a deciding
authority to infer that a person making a human rights claim,
who has not taken advantage of a reasonable opportunity to make
the human rights claim in a safe country, has thereby damaged
his or her credibility?
Clause 7: failed asylum-seekers: withdrawal of
Clause 7 of the Bill would allow the Secretary of
State to deprive an asylum seeker who has a dependent child as
a member of his or her household of the right to claim support
after the asylum claim has been rejected and before he or she
has been removed from the country.
In effect, the failed asylum-seeker and his or her dependant children
could be left without any source of support.
Any dependent child of the asylum-seeker would be
liable to be taken into the care of the local social services
authority, which would continue to have responsibility for providing
accommodation for the child under section 20 of the Children Act
1989 if the adult claimant were to be unable to provide it. This
would engage the right to respect for family life under ECHR Article
8.1. It has been held that the Secretary of State, when withdrawing
support from a claimant, may have to justify the action in terms
of ECHR Article 8.2.
The most problematic question seems to be whether
clause 7 represents a proportionate response to the need to ensure
that failed asylum seekers leave the country. The following factors
seem to be relevant.
First, as the Home Affairs Committee noted (and considered
to be unsatisfactory), the Government is unable to estimate the
number of families who might be affected.
Secondly, the clause does not lay down any procedure
to be followed before deciding to remove support.
Thirdly, there is an alternative to the withdrawal
of support under clause 7: the families could be removed compulsorily
before plunging adults into destitution and children into care.
It does not seem unreasonable to expect the Government to identify
those families who are likely to become destitute if support is
withdrawn as people who should be compulsorily removed as a matter
of urgency without the need for support to be withdrawn and the
family split up.
Fourthly, the Home Affairs Committee has concluded
that the measures in clause 7 are likely to be counter-productive.
In the light of these considerations, why does the Government
consider that the interference with the right to respect for private
and family life, which would be a likely consequence of withdrawing
support under clause 7, would be proportionate to the legitimate
aim of removing people who are unlawfully within the United Kingdom?
Does the Government consider that the proposals in clause 7 comply
with the United Kingdom's obligation under CRC Article 3.1 to
make the best interests of children a primary consideration in
all decision-making which affects them, and if so, why?
Clause 8: additional investigatory powers for
Clause 8(1) and (3) would allow immigration officers
to exercise powers of arrest without warrant, and of entry, search
and seizure after arrest, in respect of certain offences unrelated
to immigration matters if they come across evidence of the offences
in the course of an immigration investigation. The offences would
a. conspiracy to defraud;
c. making a false statement, or aiding or abetting
such an offence, contrary to the Perjury Act 1861;
d. in Scotland, knowingly giving false information
to a district registrar of births, marriages and deaths;
f. obtaining property by deception;
g. obtaining a pecuniary advantage by deception;
h. false accounting;
i. handling stolen goods;
j. obtaining services or evading liability by
k. in Scotland, fraud, uttering and fraud, and
m. using, copying or using a copy of a false
n. making false documents.
The proposed extensions to these powers engage the
right to liberty (ECHR Article 5), the right to respect for private
and family life, home and correspondence (ECHR Article 8), and
(in relation to search of the person) the right to be free of
degrading treatment (ECHR Article 3). It is not clear why the
powers are to be extended to these offences, or why they are not
to be exercisable in relation to other offences. It is not clear
how far immigration officers would be subject to safeguards which
apply to the police when investigating such crimes, including:
training in the use of the powers in the context of Code B of
the Codes of Practice made under the Police and Criminal Evidence
Act 1984; the statutory disciplinary code which applies to the
police; arrangements for independent investigation of complaints
against police officers arising from the use of the powers; and
the supervision of complaints by the Police Complaints Authority.
Although the Immigration Service would be bound by the obligations
arising under the Human Right Act 1998, victims of an alleged
abuse of power might not be able to challenge abuses of the powers
in court or obtain compensation, because of the restrictions on
remedies proposed in clause 10 of the Bill.
This seems to give rise to a significant risk of
violations of Convention rights, including those under ECHR Articles
5 and 8, while the absence of remedies may give rise to a violation
of ECHR Article 13 where the alleged wrong amounts to a violation
of a Convention right and of ECHR Article 6.1 when it consists
of a violation of a civil right or obligation.
In the light of this, why does the Government consider that there
would be sufficient safeguards against abuse of the powers proposed
in clause 8 (including expertise among immigration investigators
in investigating the kinds of offences listed, training in the
use of the powers and the application of the relevant Codes of
Practice, independent investigation of complaints, supervision
by the Police Complaints Authority, and availability of judicial
remedies) to meet the requirements of ECHR Articles 5.1,5.5, 6.1,
8, and 13?
Clause 10: changes to the appeal system
Clause 10 of the Bill would replace the present,
multi-tiered system for making and reviewing or appealing against
immigration decisions with a single-tier Asylum and Immigration
Tribunal. In addition, clause 10(7) would introduce a new section
108A into the Nationality, Immigration and Asylum Act 2002 which
would cut off all appeals to and judicial review by the ordinary
courts in immigration matters (although the Special Immigration
Appeal Commission would be unaffected). It would also exclude
habeas corpus applications in immigration cases. The only exceptions
would be cases where a person is challenging a certificate allowing
his or her removal to a safe country and treating the person's
claim in this country as unfounded, or is alleging that a member
of the Tribunal has acted in bad faith, in which case the High
Court would be able to entertain an application for judicial review
(proposed new section 108A(1)-(3)). It follows that there would
generally be no right to challenge a decision of the single-tier
Tribunal on the ground that it has acted incompatibly with a person's
At this initial stage in its consideration of the
Bill, the Committee is particularly concerned about proposed new
section 108A(4). This would provide that section 7(1) of the Human
Rights Act 1998, allowing a claim to be brought in a court on
the ground that a public authority has acted in a manner incompatible
with the Convention rights, would have effect subject to the provisions
of proposed new section 108A(1)-(3). Section 7(1) of the 1998
Act is fundamentally important to the scheme of the Act and the
system of protection for Convention rights. It provides that a
person claiming to be the victim of a violation by a public authority
of a Convention right may bring proceedings against the public
authority in "the appropriate court or tribunal", or
rely on the Convention right in any legal proceedings. The effect
of proposed new section 108A(4) of the 2002 Act would be that
there would be no "appropriate court or tribunal" where
it is alleged that the proposed new Tribunal has itself acted
incompatibly with a Convention right, save for a request to the
Tribunal itself to review its decision under proposed new section
The Government says that the Lord Chancellor would
be able (if he wishes) to make rules providing for such a challenge
to go to a court or tribunal specified in the rules,
but does not explain the source of the power. It probably refers
to the power in section 7(2) and (9)-(13) of the Human Rights
Act 1998 to make rules identifying particular courts or tribunals
as the appropriate court or tribunal to hear claims under section
7(1) of the 1998 Act. However, any rule purporting to allow a
challenge to a court would, if the Bill is enacted, be invalid
and void, because it would be subordinate legislation which would
be incompatible with the primary legislation contained in proposed
new section 108A(1) to (3) of the Nationality, Immigration and
Asylum Act 2002.
A provision restricting a key element in the system
of remedies for violations of Convention rights set out in the
Human Rights Act 1998 gives rise to deep concern. It would allow
the immigration and asylum process to operate outside normal arrangements
for protecting Convention rights. Any step which immunizes an
area of public administration in this way sets a dangerous precedent.
The Government argues that the proposals are compatible
with the Convention rights: "
article 13 does not require
the provision of multiple tiers of appeal. What it requires is
access to an independent national authority with powers to provide
effective redress. The single tier Tribunal will meet this test.
It is wholly independent of the initial decision-making body.
The single tier tribunal will provide an effective remedy as article
13 requires and will safeguard appellants' Convention rights including
those referred to in articles 3 and 8."
In order to allow the Committee to assess the Government's
assertion that the Tribunal would provide an effective remedy
for people alleging violation of Convention rights, the Committee
needs certain information about the resources which would be made
available to the Tribunal.
What are the Government's estimates of:
(a) the number of full-time and full-time-equivalent
members who would be appointed to the proposed Asylum and Immigration
(b) a statement of the current number of full-time
and full-time-equivalent adjudicators and members of the Immigration
(c) the current number of staff of the Immigration
Appeal Tribunal and the adjudicators;
(d) the current member and staff costs of the
adjudicator and Immigration Appeal Tribunal system; and
(e) the estimate of member and staff costs for
the first year of operation of the proposed new Tribunal?
One effect of making the Tribunal the final arbiter
of a claim that it has acted incompatibly with a Convention right
would be to deprive the victim of a remedy from an independent
tribunal. To be effective for the purposes of ECHR Article 13
a remedy must be available from a national authority which is
independent. The Tribunal would not appear to be independent when
deciding whether its own decision or conduct had violated a Convention
Why does the Government consider that it would be compatible
with ECHR Article 13 to restrict review by and appeal to the courts
so as to make the proposed Tribunal the final arbiter of a claim
that it has itself violated a Convention right?
It is not clear from the Bill what remedies the new
Tribunal would be able to award if it finds that a person's Convention
rights have been violated. If the Tribunal would not have power
to issue injunctions or award damages or order the payment of
compensation in civil proceedings, preventing recourse to the
ordinary courts in human rights cases would give rise to a significant
risk of violating ECHR Article 13.
Why does the Government consider that the restriction of recourse
to the courts, coupled with the absence of a power for the Tribunal
to give a full range of remedies (including injunctions and damages)
for violations of human rights, would be compatible with the right
to an effective remedy for alleged violations of Convention rights
as required by ECHR Article 13?
Clauses 11 and 12: restricting rights to appeal,
and "safe countries" for removing asylum seekers
The Committee has previously reported on earlier
proposals (in the Nationality, Immigration and Asylum Bill of
2002) for lists of countries which should conclusively be presumed
to be safe. It drew the attention of each House to its view that
'the presumption that a country is safe is of questionable validity',
and that the restriction of any right of appeal against a decision
that a human rights or asylum claim is clearly unfounded until
the claimant has left the country would undesirably weaken legal
protection for the rights of asylum-seekers and human rights claimants.
At that time, there was no proposal to exclude access to judicial
review in immigration and asylum cases. Now the threat posed by
restricting rights of appeal is even more acute, because of the
proposals in clause 10 of the current Bill to restrict access
to the courts. I draw this matter to your attention.
Clause 13: removal of power to grant bail
Clause 13 would remove the power of a court under
paragraph 2(1) (2) of Schedule 3 to the Immigration Act 1971 to
grant bail to a person who has been recommended for deportation
following conviction of an offence, and to a person who is detained
having been notified that the Secretary of State intends to make
a deportation order against him.
Why does the Government consider that a system which denies detainees
the right to apply to a court for bail, or to obtain judicial
remedies (including compensation) for a violation of a Convention
right by the proposed new Tribunal, would be compatible with the
right to compensation for a violation of ECHR Article 5 (see Article
5.5) and the right to an effective remedy by an independent authority
guaranteed by Article 13?
Clause 14: Power to require cooperation of deportees
Clause 14 would allow the Secretary of State to require
a person to take specified action, including providing information,
documents, identification data and cooperation, in order to facilitate
that person's deportation or removal by enabling a travel document
to be obtained for the person. Failure to cooperate would be an
offence. The clause as drafted would enable the administration
to abuse the power by demanding information and cooperation which
can then be used to facilitate the person's deportation later,
and to allow the Secretary of State to require any person to cooperate
even if that person is in no danger of deportation or removal,
with refusal to cooperate being an offence. This seems to be capable
of engaging the right to respect for private and family life,
home and correspondence under ECHR Article 8.1.
The powers of the Secretary of State and the definition
of the offence could be drawn more tightly in order to target
the particular mischief at which the clause is directed, namely
the difficulty of arranging necessary travel documents to allow
people to be removed or deported without the assistance of the
person in providing information needed to obtain a travel document
on their behalf from the person's Embassy or High Commission.
As it stands, it is not clear how one can be confident that such
a widely drawn provision would operate in a way that would be
proportionate to a pressing social need so as to be "necessary
in a democratic society" for a legitimate aim under ECHR
Why does the Government consider that clause 14 as currently
drafted is sufficiently focused on the mischief to make it a proportionate
interference with the right to respect for private life under
ECHR Article 8?
Clause 15: electronic monitoring
Clause 15 would allow electronic monitoring to be
imposed on an applicant for immigration to complement a residence
restriction or as a condition for immigration bail, or as an alternative
to a reporting restriction. This engages the right to respect
for private life under ECHR Article 8.1. Although the step may
be justifiable under Article 8.2 as being in accordance with the
law and being necessary in a democratic society for the prevention
of crime (illegal immigration), there would be no power to challenge
the decision to impose a monitoring requirement, because of the
restriction on remedies contained in clause 10.
Why does the Government consider that the remedies for abuse
of the power to impose a requirement of electronic tagging under
clause 15 would be sufficiently comprehensive to meet the requirement
for an effective remedy before a national authority under ECHR
Article 13 where the tagging infringes the right to respect for
private life under ECHR Article 13, and the right to have access
to a court under ECHR Article 6.1 when the tagging infringes a
civil right (such as the right to be free of assault)?
Clause 16: Search warrants for the Immigration
Clause 16 would amend the Immigration and Asylum
Act 1999, introducing a new section 92A allowing a JP to issue
a search warrant allowing the Immigration Services Commissioner
to enter and search premises where there are reasonable grounds
for believing that an offence under section 91 of the Act (provision
of immigration advice or services by an unregistered person) has
been committed, that there is likely to be evidence on the premises
of substantial value to the investigation of the offence, and
that one of a number of conditions is met. Proposed new section
92A(7)(c) would make the power applicable to material even if
it consists of items subject to legal professional privilege or
the categories of confidential or journalistic material known
as excluded material and special procedure material under the
Police and Criminal Evidence Act 1984.
The provisions of proposed new section 92A engage
ECHR Articles 6 (right to a fair hearing), 8.1 (right to respect
for private life, home and correspondence) and 10.1 (right to
freedom of expression). Confidential material is protected under
ECHR Article 8.1, and lawyer-client communications attract particularly
strong protection: any interference must be justified by reference
to specially compelling considerations if it is not to violate
The European Court of Human Rights recognizes that the ability
to communicate freely and privately with one's legal adviser an
essential element in a fair trial, so interfering with lawyer-client
communications may violate ECHR Article 6.1.
The right to legal professional privilege is similarly protected
as a fundamental right under English common law.
Where the material sought or seized is journalistic material,
even if it is not confidential it is protected by ECHR Article
10, which protects journalists' working materials and sources
of information as part of the protection for a free press which
is regarded as essential to maintaining freedom of expression
in a democratic society.
To justify an interference under ECHR Articles 8.2
and 10.2, the interference must be shown to be 'necessary in a
democratic society', ie a proportionate response to a pressing
social need. Where a power to interfere with rights under ECHR
Articles 8 and 10 is conferred, "the implementation of the
measures must be accompanied by effective safeguards which ensure
minimum impairment of the right to respect for his correspondence.
This is particularly so where
correspondence with the [complainant's]
legal advisers may be intercepted."
In view of the level of seriousness of the offence of offering
immigration advice and assistance, and any safeguards against
improper use of the power by the Commissioner, why does the Government
consider that proposed new section 92A of the Immigration and
Asylum Act 1999, which would be inserted by clause 16 of the Bill,
and particularly 92A(7)(c) making possible search for and seizure
of lawyer-client communications, other confidential material of
a personal nature, and journalistic material, would be a justifiable
interference with ECHR Articles 6.1, 8 and 10?
Clause 20: fees for immigration applications
Clause 20 proposes a power for the Secretary of State
to set fees for applications and certain other processes which
exceed the cost of determining the application or undertaking
the process. In particular, the Secretary of State would be allowed
to calculate the level of the fee by reference to the potential
benefits which the Secretary of State thinks are likely to accrue
to the applicant if the application is successful or the process
This could allow the Secretary of State to impose very high fees,
on the footing that the right to British nationality, leave to
remain in the United Kingdom, or (perhaps most of all) a work
permit are economically valuable, even if the application is not
being made for economic reasons.
Does the Government consider that fees calculated on the basis
set out in clause 20(1) and (3) would not impact on poor people
in such a way as to be incompatible with the right to be free
of discrimination on the ground of property under Article 26 of
the International Covenant on Civil and Political Rights, and
if so, why?
In view of the progress of the Bill the Committee
wishes to report your responses to the above questions, and its
conclusions on them, at as early a date as possible. The Committee
would therefore be grateful for a reply by 22 January at the latest.
6 January 2004
Appendix 2: The Domestic Violence,
Crime and Victims Bill
Letter from Chair to Rt Hon David Blunkett, Secretary
of State for the Home Department
The Committee is considering the above Bill, and
would be grateful for your comments on the following point raised
by its Legal Adviser. Our startingpoint is of course the
statement made under s.19(1)(a) of the Human Rights Act 1998;
but I should make it clear that the Committees remit extends to
human rights in a broad sense, not just the Convention rights
under the Act.
Clause 5 of the Bill would allow an adverse inference
of guilt to be drawn from the failure of a defendant charged with
murder or manslaughter to give evidence if:
1. the defendant is also charged with an offence
contrary to clause 4 of the Bill (failure to protect child or
vulnerable adult against a threat of unlawful violence which leads
to death) in respect of the same death; and
2. it would be proper to draw an adverse inference
of guilt in relation to that offence by reason of section 35 of
the Criminal Justice and Public Order Act 1994.
The use of adverse inferences from silence engages
the right to a fair hearing in the determination of criminal charge
(ECHR Article 6.1) and the right to be presumed innocent until
proven guilty according to law (ECHR Article 6.2). This has been
interpreted by the European Court of Human Rights as preventing
a court from convicting a defendant where the inference from silence
is the only or main evidence of the defendant's guilt: see for
example Murray v. United Kingdom (1996) 22 EHRR 29, Condron
v. United Kingdom (2001) 31 EHRR 1 and Beckles v. United
Kingdom (2003) 36 EHRR 13.
The Explanatory Notes to the Bill, paragraph 38,
suggest that the effect of clause 5 is that 'a defendant may not
be convicted solely or mainly on the basis of an inference from
silence'. However, the words in parentheses at the end of clause
5(1), '(even if there would otherwise be no case for him to answer
on that charge)' indicate that, in cases falling within clause
5, a judge, when deciding under clause 5 whether to leave a case
to the jury, would be able to take account of an inference from
silence alongside the prosecution's evidence. The same would apply
to a court or jury when assessing the defendant's guilt or innocence.
It follows that there will always be some significant
evidence which tends to fix the defendant with responsibility
for the death before an inference can be drawn, but a conviction
could be based on the inference taken together with less evidence
than would suffice to allow the inference to be drawn at all,
or to allow a case to be left to a jury, in an 'ordinary' case
under section 35 of the 1994 Act.
In the light of this, why does the Government
considers that clause 5 would not allow a conviction to be based
mainly (but not wholly) on an inference from a defendant's failure
to give evidence, and why accordingly there is no probability
of a violation of ECHR Article 6?
The Committee would also be grateful for an indication
of what representations you have received in connection with this
Bill in relation to human rights issues, and to what specific
points those representations were directed.
In view of the progress of the Bill the Committee
wishes to report your response to the above question, and its
conclusions on them, at as early a date as possible. The Committee
would therefore be grateful for a reply by 22 January at the latest.
6 January 2004
50 R. v. Uxbridge Magistrates' Court, ex parte Adimi
and others  QB 667, [2000[ 3 WLR 434,  4 All ER 520,
Cl 2(1), (2), 7(a).A lesser penalty would available following
summary conviction: cl 2(7)(b). Back
Cl 2(3)-(5). Back
ibid., paras. 20 and 22. Back
EN para 136. Back
Salabiaku v. France (1988) 13 EHRR 379, Eur. Ct. HR, at para.
28 of the judgment. Back
Cl 6(1). Back
Cl 6(2). Back
Cl 6(3). Back
Immigration and Asylum Act 1999, s. 94(3A); Nationality, Immigration
and Asylum Act 2002, s. 18(2). Back
R. (Q.) v. Secretary of State for the Home Department  EWCA
Civ 364,  3 WLR 365, CA, at para. . Back
Home Affairs Committee, First Report of 2003-04, Asylum and Immigration
(Treatment of Claimants, etc.) Bill, HC 109, para. 64. Back
ibid., para. 66. Back
Cl 8(2). Back
EN para. 139. Back
Joint Committee on Human Rights, Twenty-third Report of 2001-02,
Nationality, Immigration and Asylum Bill: Further Report, HL Paper
176, HC 1255, paras. 35-37. Back
ibid., paras. 30-34, 38-39; Joint Committee on Human Rights, Seventeenth
Report of 2001-02, Nationality, Immigration and Asylum Bill, HL
Paper 132, HC 961, paras. 93-108. Back
EN para. 84. Back
See e.g.Campbell v. United Kingdom (1992) 15 EHRR 137, Eur. Ct.
HR; Niemietz v. Germany (1992) 16 EHRR 97, Eur. Ct. HR; Foxley
v. United Kingdom (2000) 31 EHRR 637, Eur. Ct. HR. Back
Niemietz v. Germany, above, at § 37 of the judgment. Back
B (A Minor) v. Director of Public Prosecutions  2 AC 428,
HL; R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner
of Income Tax  UKHL 21,  2 WLR 1299, HL. Back
Goodwin v. United Kingdom (1996) 22 EHRR 123, Eur. Ct. HR. Back
Foxley v. United Kingdom, above, at § 43 of the judgment.
See also Campbell v. United Kingdom, above, at §§ 46
and 48 of the judgment. Back
Cl 20(1), and also cl 20(3) in relation to consular fees. Back