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Lord Goldsmith: My Lords, in Grand Committee, I undertook to consider the double jeopardy point in more detail. I am grateful to the noble Baroness for what she said.

The clause, as amended, would give a judge in the United Kingdom the ability to consider the double jeopardy rule under United Kingdom law, with which he would be familiar, or under the law of the requesting country. That represents a correct interpretation of Article 7(1)(c) of the framework decision as meaning that an order is not to be given effect, if it would infringe the ne bis in idem principle in the requesting or requested state.

I hope that that answers the noble Baroness's invitation to explain the amendment for the benefit of the House. I will formally move the amendments in due course.

Baroness Anelay of St Johns: My Lords, I formally thank the noble and learned Lord for that explanation. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Lord Goldsmith moved Amendment No. 28:

    Page 13, line 14, after "relates" insert "or in the United Kingdom with a corresponding offence"

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 29:

    Page 13, line 15, leave out "in that country"

On Question, amendment agreed to.

[Amendment No. 30 not moved.]

Clause 22 [Giving effect to the order]:

Lord Goodhart moved Amendment No. 31:

    Page 13, line 28, at end insert—

"( ) A production order may only be made by the Crown Court.
( ) A production order may only be made if the court is satisfied that one or other of the sets of access conditions set out in Schedule 1 to the Police and Criminal Evidence Act 1984 (c. 60) is fulfilled."

The noble Lord said: My Lords, the amendment raises a new issue that was not dealt with in Grand Committee. I put it down for today because the matter was drawn to my attention after we had passed this point in Grand Committee by a practitioner who was concerned with it.

The amendment is of some importance, at any rate. It takes us back to the Police and Criminal Evidence Act 1984, better known as "PACE". Under PACE, there are certain types of material to which a police officer can obtain access only by special order. Such material is described in PACE as "excluded material" or "special procedure material". Those two categories include certain business records and journalistic material. In particular, "excluded material" includes confidential journalistic documents, so that any material that might identify a journalist's source would be excluded and, under PACE, could be obtained only by use of the special procedure.

The special procedure was that material in those two categories could be made available only on the order of a circuit judge and only if one or other of two sets of access conditions set out in Schedule 1 to the Act is satisfied. What happens under the Bill if an overseas freezing order involves access to excluded material or special procedure material? That is dealt with under Clause 22 which states:

    "in relation to England and Wales and Northern Ireland, so far as the overseas freezing order relates to excluded material or special procedure material the court is to give effect to the order by making a production order".

The rest of Clause 22 provides for the way in which a production order operates. I do not think that I need refer to that.

On the face of it, Clause 22 does not repeat the safeguards in PACE. A production order can be made by the nominated court, which does not have to be a Crown Court. Therefore, the order does not have to be made by a circuit judge or another judge having

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authority to sit in the Crown Court. Furthermore, there is no reference here to the access conditions. The question arising is: do the PACE access conditions and the condition as to the judge apply to access to material under a production order?

If it is intended that the PACE requirements apply, the Bill is extremely obscure. It should be far clearer than at present. As I read it, the requirements do not apply. If the PACE requirements are not intended to apply, access to the excluded or special procedure material—for example, documents which would disclose a journalistic source—could be provided under the production order in circumstances under which they could not be made available to an applicant in the United Kingdom. There would be no justification for that occurring. This is an important issue. I beg to move.

Baroness Carnegy of Lour: My Lords, the noble Lord made an interesting point which, as a non-lawyer, I follow with difficulty. Clause 22(2) and (3) do not mention Scotland. In Scots law, is there such a measure as a production order and does excluded material or special procedure material exist in Scotland? I cannot spot any reference elsewhere. It might be that there is a valid question to ask here. I hope that I am not wasting the time of the House in so doing.

Baroness Anelay of St Johns: My Lords, as the noble Lord, Lord Goodhart, said, this is an important matter. I am pleased that he has raised it. The Law Society was kind enough to brief me just before Committee, but unfortunately too late for amendments to be laid, because the Bill had already passed that stage.

As the noble Lord, Lord Goodhart, said, on the face of it, Clause 22 does not repeat the safeguards of PACE. We accept his arguments that there must be clarity in those matters. I am interested in the question posed by my noble friend Lady Carnegy. I hope that the noble and learned Lord, Lord Goldsmith, is able to answer that today. If not, perhaps he could answer at a later stage.

The amendment is important, despite the fact that the noble Lord, Lord Goodhart, was unkind enough not to find it in himself to support me on a previous occasion when I pressed an amendment. However, if he were minded to press this, he would find me in the Lobby supporting him.

Lord Goldsmith: My Lords, in answer to the question posed, I indicate straightaway that I cannot give the information about Scotland. I believe that I know the answer but I prefer not to give an answer which is inaccurate. Therefore, I shall ensure that that information is provided to all noble Lords who have taken part in this debate.

The noble Lord, Lord Goodhart, raised two points. As the matter was not dealt with in Grand Committee, it might help to say a little more about the warrants and orders that will be issued to give effect to overseas freezing orders. Overseas freezing orders will not be

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uniform documents. But they will contain specified information and be accompanied by a properly completed certificate. They will vary in form from one member state to another. Those issued from this country will resemble search warrants, but that will not necessarily be the case in other countries. Each member state will execute freezing orders, having regard to its own domestic procedures.

As regards who makes the production order, the noble Lord indicated that that ought to be by a judge of the Crown Court. That is a reasonable point. The Government, too, think that in those circumstances a production order should be made by the Crown Court. I want to give further consideration to whether that is something which should appear on the face of the Bill. I hope that is of assistance to him.

The second question posed by the noble Lord, Lord Goodhart, is whether precisely the same conditions will apply to the making of a production order in relation to an overseas freezing order as apply domestically to a PACE request. He asked: if that was not the intention, was not the Bill obscure? That is not the intention. The clauses relate to giving effect to overseas freezing orders and therefore will not be made in the same circumstances that apply in domestic cases. For example, the offence does not have to be a serious arrestable offence. Therefore, the definition of offences which would give rise to these orders is different from those which would apply under PACE. It was not intended that precisely the same circumstances should apply. Thus, it was not the intention that they should be made only if the conditions in Schedule 1 to PACE were met. They would be required in a wider range of circumstances.

I think that the noble Lord would agree with me that, when one is concerned with an order which relates to excluded material or special procedure material—and for both he has given helpful explanations—it is to be dealt with by way of a production order rather than by a more immediate effect. The noble Lord did not indicate in his remarks—but it is a matter I shall be happy to consider if he so wishes—precisely what aspect of the schedule conditions, having regard to the circumstances in which overseas freezing orders would be made, he is concerned to see applied. He spoke generally about the conditions in PACE, having regard to the conditions under which we would give effect to the overseas freezing orders, but he did not indicate which aspect of the conditions that troubled him might not apply. I am happy to consider that but at the moment I do not know what it is that he has in mind. I do not know whether the noble Lord is able to assist on that matter.

6 p.m.

Lord Goodhart: My Lords, I would prefer to take it as an issue of principle. At this point I do not want to indicate any particular aspects.

Lord Goldsmith: My Lords, of course that is the noble Lord's prerogative, but, with respect, to take something as a matter of principle when he is not prepared to indicate what is the issue of principle—that is, what aspects of the safeguards he is concerned

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do not apply, having regard to the overall framework of the Act—seems to me not to be a satisfactory situation.

If the noble Lord will not tell me what aspects he is concerned are not in place, I cannot take the matter any further and cannot accept the amendment.

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