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Lord Brabazon of Tara: I am grateful to my noble friend for having introduced the amendments. I am grateful to her also for having sent me, and I think others, explanatory notes on the amendments, together with a most useful copy of the Bill as it will appear if and when these amendments are carried.
I have listened to the arguments on all sides as regards dual criminality. My principal aim is to make the Bill as simple as possible. We should be able to prosecute the people who committed the crimes to which I referred at Second Reading and make it as easy as possible for them to be brought to book.
On the other hand, like my noble friend I oppose the efforts of certain foreign governments to introduce extra-territorial legislation which does not always suit our book. In my experience in the Department of Transport, I came across issues where there were difficulties with a government on the other side of the Atlantic and also governments in other parts of the world. Therefore, to include the issue of dual criminality is worth while, it does not give other governments a stick with which to beat us about the head, if they try to introduce extra-territorial legislation which does not meet with our approval. For example, there is the issue of smoking on board aircraft bound for the United States and drinking alcohol on board aircraft bound for certain countries to the east. There are other cases where something is clearly not an offence in this country and we would not wish to see such an activity banned on our aircraft, but nor would we wish to give the government at the other end the opportunity to say: "Well, you did this with your legislation, therefore we can do it with ours". I do not say that it will prevent them doing it; it attempts to do so and at least it leaves us fireproof.
My noble friend gave me the assurance which I wanted to hear that the prosecuting authorities perceive no problem with the additional measure. There will be no difficulty in prosecuting those who commit offences when they arrive in this country. I believe that the extra subsection which puts the burden of proof on the defence is useful.
As to the other amendment on the definition of "foreign aircraft", it is helpful in that foreign aircraft is defined as anything which is not British. That is straightforward and simple. I find it hard to understand
that any aircraft would arrive in this country with no registration; but if my noble friend thinks it might be a problem, then who am I to argue? As the noble Baroness, Lady Mallalieu, said, we want as few obstructions to the provisions as possible and no delay in prosecutions. I hope that with the assurances that my noble friend has given, it will be the case.In his Amendments Nos. 3 and 5, my noble friend Lord Hacking seeks to introduce a procedure for removing the hurdles to an affirmative instrument. I have no view other than that, like anyone who sits in this House, I am well aware of the resistance of the House to secondary rather than primary legislation. We shall have to see. If there is a problem, then it will be necessary for the law to be changed. However, from what has been said, I do not foresee a problem and therefore I wholeheartedly support the amendments moved by the Minister.
Baroness Blatch: First, I shall respond to the amendments of my noble friend Lord Hacking. I am grateful to him for explaining the purpose behind his amendments, and I recognise the anxieties which lie behind them. However, the Government are convinced of the need for a dual criminality test and that is why I have brought forward amendments to introduce it into the Bill. As I said, we do not seek to export our criminal law to other countries, and we believe it essential to preserve ourselves against attempts by other countries to impose their laws on us. If we were not to do that, we should leave ourselves very vulnerable. As I have already made clear, I do not believe that the dual criminality test will in practice cause any difficulty in regard to the sorts of criminal behaviour which have led the Bill's sponsors to come forward with their proposals.
I have given an assurance to my noble friend, which I hope he will accept, that, if the requirements of dual criminality introduced in the Bill do, nevertheless, prove unworkable, we will certainly look at the matter again. But that cannot be anticipated in the manner proposed by my noble friend. While subordinate legislation is often a very useful device, we do not consider that it would be right. First, that is a well-established principle on the part of the Government, and an important one. Were the provisions to be repealed, our view is that that should be done through primary legislation.
The issue of protecting ourselves from the territorial incursions of the laws of other countries is important. I know that Members in another place will agree that it is a matter of fundamental importance. The place for any proposal which might compromise that protection is, as I have just said, in primary legislation.
Perhaps I may take this opportunity to respond to the noble Baroness, Lady Mallalieu. As I made clear earlier, the prosecuting authorities have no significant concerns about this procedure, for which there is an exact precedent. I do not believe that the courts would lightly set aside the requirement on the defence to give notice of the intention to challenge dual criminality grounds and to set out the grounds for such a challenge.
However, the noble Baroness is absolutely right in her interpretation of how the law would work. I spoke in my letter about shifting the burden of proof. I was
referring to precisely the point made by the noble Baroness. We are creating a presumption that the conditions for dual criminality have been met; and it would be for the defence to serve notice of a claim that it has not been met and to seek leave of the court. So the prosecution would then be required to prove to the court that the dual criminality condition had been met. The noble Baroness's interpretation is absolutely right. To give just one example of a precedent, the Computer Misuse Act 1990 contains an exactly similar provision. I am not aware, again, that it has caused any difficulties.I turn to the other point made by the noble Baroness about other countries, and in particular America. We know that the Americans have not introduced dual criminality. We also know that that has caused a substantial degree of concern to a number of other countries. My understanding is that the United Kingdom has joined 17 other countries in protesting to the United States about the fact that it has not introduced dual criminality. I cannot give any particular instance of any of those countries having in fact introduced it; however, it can be inferred that, if they are concerned about the US not having introduced it, they must consider it an important principle. While I cannot name the countries, I can say that a number of countries are concerned about the fact that dual criminality is not an issue for the United States. We assume that it is an issue for those 17 countries.
The Government take the view that this is an important measure that should be on the statute book. I hope that my noble friend will feel assured that we will monitor the working of this Bill and believe that to be important. I should be the first to say, if we thought that either spurious legal delays or administrative burdens were getting in the way of this measure being used in a sensible way and in the manner we all wish, that we should want to return to it.
9.30 p.m.
Lord Hacking: I should like to intervene again and address my concerns in a little more detail. I believe they are important and that the Committee should be addressing them now. Therefore I am somewhat disappointed that my noble friend the Minister is not accepting the opportunity that I am giving her to monitor the performance of this Bill and to test the difficulties that have already been expressed to my noble friend in the meeting that she kindly convened, and which I express again now.
My noble friend talks about this being a well-established principle. I take it that she refers to the dual criminality test. She speaks of an exact precedent, and then refers to some computer legislation. Unfortunately, I have not had an opportunity to examine that. But, other than that precedent, I certainly do not know of the dual criminality test as an established principle of English law.
Perhaps I could just remind my noble friend that her office, the Home Office, issued a paper on these proposals. It was a paper that was commenting upon an Opinion which I wrote with two very learned counsel--two more learned counsel than myself: Mr. Robert
Webb, QC, who is listening to this debate, and also Mr. David Hart. When this opinion was being considered by the Home Office there was a reference to some other part of it to do with the Extradition Act 1989. This is what the Home Office paper says,
- "there are two drawbacks to [the mechanism in] the Extradition Act of 1989. It only applies where an act is committed which is an offence both in the country of jurisdiction and in the UK."
As your Lordships know, a number of other countries have been addressing the issue of crime in the air for a number of years. And, as your Lordships know, the United States of America, Canada, Australia, France and Belgium--to cite five countries--have all had in place for some time legislation which gave extra-territorial jurisdiction to crimes committed on foreign aircraft landing at their airports.
I should say specifically concerning the United States of America that that legislation has been in existence for 40 years. So far as I know--and my noble friend will correct me if I am wrong--there has not been one single protest by a British airline or another foreign line over the United States exercising this extra-territorial jurisdiction. Indeed, it has been welcomed by airlines flying into the United States of America because it is the captains of those airlines who radio ahead to the airport of destination, who ask for the assistance of the federal agents, and who are grateful to have that assistance. Therefore, to present this as something that is intrusively extra-territorial in my submission is not the correct way to identify this issue.
I have difficulty as to the procedural aspects which the noble Baroness, Lady Mallalieu, addressed to your Lordships and I also have difficulties on the substantive law. Perhaps I may start with the procedural issues because the noble Baroness raised those in her speech to your Lordships. Then my noble friend said that the view of the noble Baroness about the burden of proof not shifting from the prosecution to the defence was a correct interpretation. We have at least established that.
The difficulty of this Bill is in its application. I am aware that views have been expressed by the prosecuting authorities but, nonetheless, it is helpful for all of us who have some experience in these matters also to express our views. The noble Baroness, Lady Mallalieu, has immense experience in dealing with criminal matters. She stayed at the Bar many years after I left, and very successfully too. The trouble arises when one looks at the actual application of this proposed measure.
When a person has allegedly committed an offence on an aircraft, when the arrest at the gate at the request of the aircraft commander has happened and when the
alleged offender has been taken into custody, he may well be an offender who, for example, does not speak English. So the first thing that has to be done is to tell him that he has rights under our law. Those rights are for the defence to serve a notice on the prosecution setting out whether, in the defendant's opinion, this is an offence--not in his country--but in the country of registration of the aircraft.Secondly, he has to show that there are grounds for that opinion. How on earth can a non-speaking alleged offender in a cell at Heathrow comply with all those requirements without assistance? He will need some form of assistance. He will probably not be eligible for legal aid and there will be language difficulties. From the beginning there are difficulties for the alleged offender. We pride ourselves, do we not, on having a law which is fair in its prosecution process and fair to all defendants?
In my submission, the very beginning of the process presents difficulties. Then, because the burden of proof rests with the prosecution, the difficulties are taken over by the prosecution--the difficulties being that the prosecution then has to go through a process of proving that the offence which allegedly took place in the aircraft is an offence also in the country of registration of the aircraft. That will require expert evidence, an affidavit from a person who is qualified to give an affidavit in the law in the country of registration and possibly the production of statutory law from that country and so forth. So it opens up many procedural difficulties. Most significant of all, as I have tried to emphasise to the Committee, it introduces a process which is not fair on the accused and places a burden on him. Even if the burden of proof does not shift, it still places a burden on that non-speaking alleged offender who is now in a cell at Heathrow or Gatwick Airport. But there are also substantive difficulties. The laws of other countries are not the same as ours. I am not speaking about the more complicated realms of law which also ought to be addressed: laws relating to conspiracy, fraud, telecommunications and so on.
Let me just deal with the kinds of incident that can occur on an aircraft. They rarely occur, but when they do they are extremely unpleasant for all the passengers and crew and cause a great deal of upset. I cited a case at Second Reading concerning threatening behaviour when the offending passenger did not physically hit someone but put his fist in the face of a couple travelling with a child and threatened to hit them in front of the child. It caused a great deal of distress. Under English law such threatening behaviour is an assault because one does not have to hit someone physically to commit an assault. One has to have the capacity to carry out the physical violence and that is sufficient.
Under French law, for example, that is not per se an offence. Therefore, there could be a situation of a serious assault--threatening behaviour by a passenger in an aircraft which is extremely offensive to another passenger--which is an offence under English law but is not under French law; so in that example the accused could not be prosecuted.
Let me give one other example which concerns sexual offences. Unfortunately, offences of a sexual nature happen on aircraft. Some of them are extremely unpleasant. One case was cited by my noble friend, relating to the near rape of an air hostess.
In the time available to me, I have not been able to carry out any full research. However, I must tell the Committee that the age of consent to sexual intercourse for women under the law of Thailand is 15 years. Even more worrying is that there is no limit on the age of consent for males. So a sexual offence can take place with a consenting male down to the age of a baby and that is lawful under the Thai law, as it has been conveyed to me. For another example, under Turkish law it is permissible for a male to have sexual intercourse at age 15 years on a consensual basis and for a woman at 14 years. Both those ages are again beneath our ages of consent.
Those sorts of things can happen on an aeroplane, and the result of the introduction of these amendments by the Government is that the prosecution process cannot go through. That is unsatisfactory, and for that reason I am asking my noble friend the Minister at least to take the opportunity to get some experience about this issue.
The news will not go back very easily or very frequently from the cell in Heathrow with a non-English speaking alleged offender. This is not something which will see the light of day very easily, as all of us who have been involved in the prosecution process know.
I feel strongly about this. However, I feel more strongly that this Bill should go onto the statute book, even if it does have what I believe to be the imperfection of the dual criminality test. I truly want the Government to have the freedom to keep this under review. That is really the emphasis I am placing upon this matter. I give way to my learned friend.
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