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We were also asked how we would know whether foreign prisoners qualified for transfer. The recorded nationality of a prisoner is self-declared, but work is in hand to improve the quality of the data. Once an international agreement without consent is in place, prison governors will be asked to identify all those within their custody from the countries concerned. I say in passing, since it is late at night, that if the noble Baroness’s party opposite was more amenable to identity cards and their effect, we would be greatly assisted in identifying exactly who people are, where they come from and, obviously, where they could happily go back to. That is a matter on which the noble Baroness may want to reflect with her colleagues opposite. I have tried to deal with sending prisoners home, which could of course be to their country of nationality or where they have a right to reside.

I was asked about the impact of the European free movement law upon this proposal. A prisoner’s rights under the European Free Movement Directive are not affected by these changes. The Government will seek to transfer those prisoners who have no links with the United Kingdom and those who would in any case be deported at the end of their sentence. Those who have a right to reside in the United Kingdom are unlikely to be transferred unless, of course, they have lost or would otherwise lose the right of residence.

The noble Baroness also wanted to know whether the process would be hampered by the prisoner’s right to appeal or human rights and asylum legislation. The amendment will not have any effect on the obligation of the United Kingdom Government to comply with their international obligations. Consequently, prisoners affected by a decision to repatriate without consent will be able to seek judicial review of the decision if implementing it would risk infringing the ECHR, the refugee convention or another tenet of international or public law. The Government will robustly defend any decision properly taken.

I was asked whether prisoners detained under mental health legislation would be excluded from the process, and if so, how. A decision has not yet been made on that. To be eligible for transfer, the relevant international arrangement would need to specifically cover those detained under mental health legislation. This is an enabling provision which will be effected in the way I have described.

The noble Baroness asked whether prisoners who had previously been granted indefinite leave to remain in the UK but who were removed under this process would be able to return the UK once they had completed their sentence overseas, and if not, why not. In those circumstances, if prisoners had not already lost their indefinite leave to remain by reason of their criminality, we would not be looking to transfer them. If leave had been removed, they would not be able to return and would be on the warnings index. So it depends on the decision we make about that.

The last question—the noble Baroness will tell me if I have not covered any of them—was how the new scheme would impact on those subject to the early release scheme. The amendment has no impact on the

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removal of foreign national prisoners under the early removal scheme. If a prisoner is transferred under a prisoner transfer agreement, the United Kingdom release arrangements cease to apply on transfer. If a prisoner remains in England and Wales at the point in a sentence at which he becomes eligible for early removal, then he will be considered for removal under the scheme in the normal way.

I believe that I have dealt with all the questions and the noble Baroness will be delighted to know that if she has any further questions I will be happy to deal with them now or to write to her and place a copy in the Library. I hope that I have dealt with the questions that were likely to excite the noble Lord, Lord Dholakia, too. I beg to move.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 138, Amendment No. 139:

The noble Baroness said: My Lords, as the noble Baroness rightly forecast, the amendment merely probes the basis on which the Minister would issue a warrant, and I am grateful for her answer. Of course we support the broad thrust of the policy that the noble Baroness has brought forward today. We simply had concerns about the practicability of the Government’s proposals, and it was in that spirit that I put forward the series of questions to the Bill team. I am grateful to the Minister for addressing them. They were necessarily lengthy and detailed questions simply because, of course, when these matters return to another place, as ever, they can be considered only in the very truncated procedure of Commons consideration of Lords amendments. It was important not merely for this House and another place but for the public generally that the noble Baroness should put the matter on record in some detail, as she has today. I am very grateful to her.

There is one issue that we need to consider, although I do not think that the noble Baroness will address it tonight. She has said that this is merely enabling legislation and that the Government will wish to negotiate or renegotiate a number of agreements. We need to consider the balance of those going out and those coming in—how many prisoners from other countries we will be receiving and what impact that will have on any net saving the Government can realistically achieve.

Just as the noble Baroness does not want to tease me about ID cards, I do not want to tease her on the current state of our prisons and the Government’s haste in trying to get rid of as many people as possible. As far as we are concerned, even if the Government proceed with the costly process of having identity cards for everybody in this country, I do not think they need the National Identity Register to achieve a proper count of prisoners and where they come from. But as I say, we are beyond teasing at this stage of the evening.

I was interested in the noble Baroness’s comment about those who are detained under mental health legislation. I am grateful to her for pointing out that

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this is enabling legislation and the Government have not yet made a decision. That is a reasonable response.

I do not propose to go through the remaining matters; the noble Baroness has addressed them, although not necessarily to everyone’s satisfaction, because we are looking to the future. However, underpinning the Government’s amendments are proposals with which we can concur. I beg to move.

Lord Dholakia: My Lords, I thank the Minister for her very clear explanation in response to our questions. I do not wish at this stage to get into extraneous arguments about prison population or ID cards. Suffice it to say, the explanation is sufficient for me to be happy about it, and we back the proposal.

Amendment No. 139, as an amendment to Amendment No. 138, by leave, withdrawn.

On Question, Amendment No. 138 agreed to.

Clause 49 [Attendance by accused at certain preliminary or sentencing hearings]:

Baroness Anelay of St Johns moved Amendment No. 140:

The noble Baroness said: My Lords, in Committee, the Government inserted into the Bill new clauses on live links, with our support. We welcome the proposals to increase the capacity to use video links in criminal proceedings contained within Clauses 49 to 51, but we have some specific concerns about particular aspects of the proposals, which my amendment is designed to highlight.

Amendment No. 140 would require a defendant to consent to attend preliminary court hearings by video link if she or he is in police custody in a police station. These matters were brought to my attention by Liberty, and I thank it for its briefing. Clause 49 would enable a court to require a person to attend preliminary court hearings via a video link from a police station. At present, a defendant can be required to attend preliminary hearings via video link, but only when he or she is held in custody in prison.

Preliminary hearings that might take place while a person is held in a police station include applications for extending pre-charge detention, an initial bail hearing, consideration of a guilty plea and even sentencing hearings following the guilty plea. As a result of the clause, where the defendant pleads guilty, he or she could be dealt with from a police station without ever setting foot in court. The only point at which a defendant’s consent would be required for the case to be dealt with via a video link is at the sentencing stage. Until that point, the defendant has no choice about whether to attend the hearing in person.

The physical appearance of defendants before the court can be an important safeguard against abuse. The defendant can come to court and in an environment away from the prison, complain to his or her legal representative or the court about any ill

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treatment that may have occurred. Appearance in court can also make it easier for the court to assess the state of the defendant. The scars of self-harm or abuse or behavioural traits pointing to a mental health problem may be much more evident when suspects appear in person than when they appear only via a television screen.

The proposal that a person could plead guilty and be sentenced by the magistrates from police custody creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. It is thought that the procedural change could also disadvantage the defendant in initial bail applications and hearings for extending pre-charge detention. The fact that the person is in custody when the court is considering their case could create inertia against release on the part of the court.

11 pm

There is also a concern that the power to deal with all cases via a video link could persuade the police and CPS to charge a person and put them before the video link court rather than use alternative disposals such as cautions and restorative solutions.

In the context of the other significant changes in the ability to use video links—that is, to give evidence at the trial and at the sentencing stage—the Government have accepted that safeguards are necessary. I shall not quote the Minister, but she did so very clearly at col. 677 of the Official Report on 11 July.

None of these safeguards applies to the proposed new power to require a person to give evidence at a preliminary hearing from a police station. Due to the dangers highlighted above, the defendant’s consent is a safeguard which surely should be applied also to attendance at preliminary court hearings via video link from a police station. The amendment should not in any way remove the possible benefits of the pilot which the Government envisage, and we would certainly support that pilot. Indeed, we agree with the prediction that many defendants would like to get matters over and done with and not spend a night in police cells. That is common sense. In a high number of cases, we would therefore expect and hope that defendants would give their consent, with significant efficiency savings resulting from that.

The Government have argued also that these proposals would benefit victims of crime, for whom they rightly comment that delays can be very distressing. We do not, however, consider that a victim of crime would be distressed by the kind of delays that might result from this amendment—a single night in a police cell until the defendant can appear before the next available court. It is in that spirit of trying to advance the argument a little further that I move the amendment. I beg to move.

Lord Dholakia: My Lords, perhaps I may thank the Minister because we have had the opportunity to discuss this matter on at least two occasions and I am satisfied with the explanation that she has offered. Amendment No. 141 is in my name and that of my noble friend Lady Harris of Richmond. Its purpose is

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simply to probe. It would be helpful to learn from the Minister whether the live link would apply in appeal proceedings and how it would work.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, for the helpful way in which they have spoken to their amendments, because I think that we are all in agreement that there could be a bounty for both victim and defendant by doing this in a quick and effective way if it were to everyone’s benefit.

I should emphasise at the outset that we do not, at first blush, think that Amendment No. 140 is necessary, but there may be a way in which we can deal with the issue. I emphasise that the court cannot give a live link direction without giving the parties an opportunity to make representations. The defendant’s consent is already required, as the noble Baroness highlighted in her remarks, before he can be sentenced over a link, and the case can reach the point of conviction only if the defendant is willing to plead guilty. Of course, he is under no obligation to do so.

It follows that, although a defendant in police custody could be required to make his appearance over a link, the most that could then happen without his consent is that the court would determine his remand status. That is what would happen to any detained defendant who was charged early enough in the day to make a physical appearance in court the same day. As the noble Baroness indicated, it could be to the defendant’s advantage if the court decided to grant him bail and he was set free. It is likely, therefore, that many defendants will wish to appear by live link. I agree with the noble Baroness about that.

However, the Government are content to look at the issue of consent in Clause 49 again. We would at the same time like to consider whether it would be possible, taking the noble Baroness’s logic a little further, and subject to similar consent requirements, to extend the facility to appear over a link from a police station to defendants who would be bailed as well as those who are detained. It seems unfair almost that, if the prosecution is sufficiently worried about you not to give you bail straightaway, you get an opportunity to be disposed of through live link but if you are not sufficiently worrisome to be detained, you do not get that advantage, regardless of whether you would like it. Perhaps we could look together at how we resolve that quandary when we come back to Clause 49. That would mean that a defendant who wished to appear promptly, but who under Clause 49 would be denied the use of the live link because he qualified for police bail, could also do so.

I am very much obliged to the noble Baroness for tabling her amendment. If she thinks that what we have discussed is sensible, I invite her to withdraw the amendment; we could have a discussion and come back with a consensual amendment to deal with Clause 49 for those who have and those who have not been granted bail—and I suggest it only at this stage—subject to their consent being given in both circumstances. I am certainly happy to look at that possibility before Third Reading.

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Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for agreeing to look again at the issue of consent in the round in Clause 49. I will be happy to give way in a moment so that she may respond to the noble Lord, Lord Dholakia. Her proposal to extend live links to those granted bail is very helpful. It seems practical to offer that facility to those who have not been deemed so dangerous to society to have been refused bail.

Baroness Scotland of Asthal: My Lords, I was so carried away by our agreement that I forgot to explain properly to the noble Lord why his amendment is unnecessary and how it will work. That would give a deal of comfort not only to the noble Lord but to others outside this House interested in the matter—and I am sure that is why he raised it.

Amendment No. 141 relates to the provisions which would give the Court of Appeal discretion to direct that an appellant who is in custody should appear by means of a live link rather than in person. The amendment would require the consent of the appellant to appear by way of a live link before any such direction could be made. That would cause some difficulty in the procedure.

Giving the Court of Appeal the power to direct use of a live link will have several advantages, including improved security for prisoners, particularly those in category A, requiring the highest security, who will not need to be accommodated at court; reducing prison escort costs—noble Lords have discussed on a number of occasions the difficulties with moving people around—and reducing pressure on overstretched London prisons caused by the transfer of prisoners located in prisons outside London for appeal hearings. We expect that the appellant will indicate his or her preference for the method of appearance when making the application for leave to appeal, and that the court will have regard to this before making a direction. Introducing a requirement of consent, thereby allowing prisoners to insist on appearing in person, would potentially undermine the benefits and result in high costs and possible delays for the criminal justice system.

The amendment would also introduce a requirement that the court should be satisfied that the live link direction is not contrary to the interests of justice. We do not consider it necessary to be overly prescriptive in the nature of the power. The court already has an overriding obligation to ensure that an appellant receives a fair hearing in accordance with Article 6. Furthermore, the Criminal Procedure Rules require the court to further the overriding objective when exercising any power given to it by legislation. This means that criteria which by definition equate to the interests of justice are automatically imported into the exercise of the court's discretion in procedural decisions. The court will therefore always exercise the proposed power in accordance with the interests of justice and the appellant’s right to a fair hearing. I know that those are the issues that the noble Lord, Lord Dholakia, is particularly concerned about—and rightly so.

I hope that, in the light of that explanation, the noble Lord will not press his amendment.

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Baroness Anelay of St Johns: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Appeals under Part 1 of the Criminal Appeal Act 1968]:

[Amendment No. 141 not moved.]

Schedule 15 [Minor and consequential amendments]:

Baroness Scotland of Asthal moved Amendments Nos. 142 to 144:

“Criminal Justice Act 1988 (c. 33) “Local Government and Housing Act 1989 (c. 43)

On Question, amendments agreed to.

[Amendment No. 145 not moved.]

Schedule 16 [Repeals and revocations]:

Baroness Scotland of Asthal moved Amendments Nos. 146 to 152:

“Criminal Procedure and Investigations Act 1996

(c. 25)

Section 21A(4)(a)(i).”

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