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Lord Kingsland moved Amendment No. 181:
The noble Lord said: In moving Amendment No. 180, I shall speak also to Amendments Nos. 182 to 184. They seek to amend the proposed criteria by which a person may be regarded under United Kingdom law as a serious criminal for the purposes of Article 33(2) of the refugee convention.
Article 33 of the convention prohibits the return of refugees to territories where their life or freedom would be threatened on account of the well-known convention reasonsnamely, race, religion, nationality, membership of a particular social group or possession of a particular political opinion.
The article contains an exception in its second paragraph which allows this provision to be disapplied in respect of any refugee who may reasonably be regarded as a danger to the security of the country in which he is, or a refugee who, having been finally convicted of a particularly serious crime, constitutes a danger to the community of that country.
The amendments relate to the statutory definition that the Government propose in Clause 61, which will be a definition for the purposes of our domestic law of a serious criminal. Clause 61(2) provides that a person shall be presumed to have fulfilled the test laid down in Article 33(2) of the convention if he is convicted of a crime in the United Kingdom and sentenced to at least two years imprisonment. Alternatively, subsection (3) provides that a person is to be presumed to have fulfilled the test if he is convicted and sentenced to two years imprisonment outside the United Kingdom and he could have been sentenced to such a term in the United Kingdom for a similar offence.
The four amendments present two pairs of alternatives that would change those tests so that a person would be presumed to be a serious criminal if he had been convicted in this country of an offence for which the maximum term of imprisonment is either 10 years or more or 14 years or more; or if he was convicted abroad of an offence which, in the United Kingdom, would carry the same level of maximum punishment of at least either 10 or 14 years.
First, it is important to remember that Article 33 of the convention refers to a serious criminal as someone who has been convicted of a particularly serious crime. The definition that the Government propose relates not to the crime that the person has committed but only to the punishment that he has received. Have the Government satisfied themselves that the test that they propose, which turns on punishment rather than crime, is consistent with the provisions of the convention?
Secondly, will the inflexible criteria of two years imprisonment proposed by the Government cover all the circumstances in which someone, who is a danger to the community in the United Kingdom, is convicted of a particularly serious crime? To give an example, under the clause as drafted, someone sentenced to two years, after a trial on a plea of not guilty for assault occasioning actual bodily harm for which the maximum term is five years, will be presumed to be a serious criminal for the purposes of the convention. Yet someone sentenced to 18 monthsperhaps including a substantial discount for a guilty pleafor child pornography offences, for which the maximum sentence is 10 years, or drug dealing, for which the maximum sentence in respect of class A drugs is life imprisonment, would not be presumed to be a serious criminal.
Everything would hang on whether the person in question had been sentenced to two years imprisonment or more. If he had been sentenced to 18, 21 or even 23 months in prison, he would not be presumed to be a serious criminal. If another person had been sentenced to two years for the same offence, he would be presumed to be a serious criminal.
To reiterate an example that I gave earlier, dealing in drugs is certainly a serious crime and drug dealers are certainly a danger to the community. Yet sentences of less than two years are not unheard of, especially on a guilty plea. It is by no means guaranteed that, in all cases, someone who commits a serious crime and may be regarded as a serious criminal will receive a sentence of at least two years unsuspended imprisonment.
A further problem with a rigid two-year imprisonment test relates to crimes committed abroad. How can the Government say, with any certainty, that someone who should be regarded as a serious criminal for the purposes of the convention will always be sentenced to at least two years by the courts in all foreign jurisdictions? The amendments would again cure that problem by referring to the seriousness of the comparable crime in the United Kingdom, rather than the actual sentence received abroad.
Perhaps the Minister will also take this opportunity to tell us whether convictions abroad in countries such as Iraq and North Koreaperhaps, indeed, the very country from which a refugee had fledleading to the imposition of two years imprisonment in that country, would mean that a person would be presumed to be a serious criminal under the clause? As I read the clause, that is the case.
Is that what the Government really intend? Will the nature of the country's judicial system and its adherence to the rule of law be taken into account in allowing the presumption to be rebutted? I hope that the Minister will be able to clarify that question as well.
Returning to the amendments, I recognise that there may well be some problems with the tests that we propose. For example, to set the test of when someone is to be regarded as a serious criminal at conviction for a crime for which the maximum sentence is 14 years would exclude all child pornography offences, the maximum sentence for which is currently 10 years.
Perhaps a better approach might be to refer not to the maximum term of imprisonment that might be imposed, as do the amendments, or to the length of the sentence, as does the Bill, but to list, in the clause or in a schedule, all of the qualifying offences, as the Government did in the Criminal Justice and Court Services Act 2000, for the detailed definition of the term, "offence against a child". Her Majesty's loyal Opposition, with our limited resources, have been unable to undertake that considerable task, but it may prove a better way forward and is certainly not beyond the resources of the Government.
To conclude, for those reasonsnamely, that the Government's proposals in the clause focus on the nature of the punishment imposed rather than the seriousness of the crime committed; that the level of two years imprisonment may in some circumstances be too high and inflexible; and that the sentencing practices of courts in foreign jurisdictions may well be different from ours, producing unforeseen resultsI earnestly hope that the Minister will undertake to reconsider the wording of the clause. I beg to move.
Earl Russell: I congratulate the noble Lord, Lord Kingsland, on spotting that point. When I used to have immigration questions to raise in that jurisdiction, I had a New York attorney who rejoiced in having obtained an immigration permit for Mr John Lennon, in spite of his having had a conviction for possession of cannabis, which was an absolute offence. The attorney told me that in order to achieve that, he had used a provision in law that had never previously been used by the United States courts, except against Communist countries. He was really rather pleased with himself.
What is the present penalty for sodomy in Zimbabwe? Alsothe Minister may not know the answer to this so I shall table it as a Written Question and the noble Lord, Lord Kingsland, may receive the Answer before Reporthow many Commonwealth
Lord Brooke of Sutton Mandeville: This is a Greek chorus-type remark. As ever, I have promised, through a self-denying ordinance, not to mention it more than once on any Bill. The clause that we are discussing, the very title of which demonstrates that it concerns a serious matter, was the 11th of 11 new clauses attached to the Bill by the Government in Committee in another place. The Government allowed 32½ hours for debate of this Bill in Committee. Within the past month, I have described the passage 20 years ago of the Wildlife and Countryside Bill which received 125 hours of debate.
Lord Graham of Edmonton: I was there!
Lord Brooke of Sutton Mandeville: The noble Lord, Lord Graham of Edmonton, was the Opposition Whip. Those 135 hours did the Bill much good and it has stood the test of time for 20 years. The fact that the Government regard 32½ hours as being enough time in Committee means that we must debate 11 new clausesof which this is the lastthat have not been put under any scrutiny. On the whole, that must act against the proper working of Parliament.
Lord Hylton: The noble Lord, Lord Kingsland, launched a major assault on the text of the clause. Two years must be too low a threshold. Crimes are seldom relevant to a genuine fear of persecution. That is why I urge the Government to reconsider the clause.
The Earl of Erroll: The principle behind the amendments is good. We must consider the way in which sentencing policy changes, particularly as some judges regard the prisons as being overcrowded. We cannot be certain that judges will impose the sentences that we might expect. This is not the correct measure of the seriousness of a crime.
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