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The Earl of Mar and Kellie: Before the noble Baroness replies, as regards inclement weather and remoteness, in those circumstances might it not be reasonable for the person to appear at the local sheriff court? I have in mind the idea of someone who has been arrested in, perhaps, Lewes and in the event of inclement weather appears at the sheriff court in Stornoway before being flown to Edinburgh. Who would pay for the flights for both the person liable to extradition and the policeman who must accompany him or her?
Lord Filkin: I speak with some caution about Scottish matters knowing who I have against me on these issues. All I would say is that this is how Scottish authorities have chosen to handle their extradition cases. I am respectful of their argumentation, which is that it is desirable to have a sheriff who is expert in these matters hearing all cases. In my view, that outweighs the argument that if that led to a delay of a day or two it is better than the alternative of having someone inexperienced. If that is the way they want to conduct their affairs, I am respectful of that.
As regards the second point raised about who would pay for the flights, the respective public bodies have to pay for the transport costs of bringing people into judicial processes. That is no different from domestic cases.
The Earl of Mar and Kellie: Perhaps the Minister misunderstood me. I merely mentioned the idea of appearing before the local sheriff in order to fulfil the requirement of having to appear before a sheriff who could then remand the person to Edinburgh in the event of inclement weather, rather than that just being part of the warrant procedure.
Viscount Bledisloe: Before the noble Baroness decides what to do with her amendmentI suppose that she does not have much choice in this CommitteeI must say that the more I listen to the Minister, the more it occurs to me that Clause 4(4) is really the root of many of his problems. There we have a situation where, if formalities are not complied with, the person is automatically discharged even though that has done him no harm at all.
The noble and learned Lord, Lord Mayhew, may be right, but it makes remarkably little difference because the person will go out through one door, be arrested and come back in through the other door immediately. That is not a very satisfactory situation and he might just get away. Would it not be better if subsection (4) was discretionary so that the judge decided whether the informality had really mattered and could say, "Well, I grant that you got the document 10 minutes late", or "I grant that it has taken 36 hours to get to you from Stornoway to Lothian, but it has not done you any harm and I am not going to let free someone charged with blowing up the twin towers merely because they spent 30 hours on the journey and not 24"?
Lord Filkin: I would welcome anything that made my life easier, but I am not certain that that would. It is right that one wants a discretionary power here for the reasons advanced by the noble Viscount. However, there is a discretionary power under Clause 4(3) in the sense that the judge has the power to make a judgment about whether he or she thinks that the respective authorities have brought the person before the judge as soon as is practicable. If, for example, they had done nothing about the person and had forgotten about them for a couple of days, the judge would have the power to decide that they had not brought the person as soon as practicable, which would trigger the discharge. If, on the other hand, they heard the argumentation that there had been deep snow in Argyle, if that seemed to fit with common sense knowledge no doubt they would not decide that discharge was justified.
Viscount Bledisloe: Let us suppose that it is not as soon as practicable. Let us suppose that Constable Plod took some time off to have a rather large breakfast on the way down and missed the connection. It would seem a little extreme that that would lead to the automatic discharge of someone charged with an extremely serious offence. The judge can say that it was as soon as practicable, but once he is convinced that it is not, he then has no choice but to discharge. I suggest that in those circumstances, or when documentation had inadvertently not been given, it should be discretionary and not absolute.
As regards the 48 hours on provisional arrest, again we put in 48 hours because we recognised that there will be circumstances when, for example, France asks us urgently to see someone but if it cannot get the documentation to us within 48 hours that is bad luck; it has lost the person. It is for those reasons that we think it is right to be clear and strong. I shall reflect on this, but I do not think we shall be minded to change that.
Baroness Carnegy of Lour: I thank those who have spoken and, indeed, the Minister. Perhaps my amendments have misled one or two people by referring to a next-day appearance. When moving the amendments I explained that the wording was used for convenience and was a process that works in Scotland in other respects. I was making a point for a maximum time to be in the Bill.
As to the problems of fixing a time and then, in Scotland, taking people to Lothian and Borders to appear before the sheriff, there seems no objection at all in Scotland to that one sheriff continuing to perform the function that he does at present on extradition. I understand that the legal system is quite happy with that and I was not questioning that.
My noble friendI think that he is my noble friendLord Mar and Kellie suggested that there might be a different arrangement in Scotland. That is not the suggestion. I do not think that people in Scotland want a different arrangement. There is a next-day rule in Scotland and the Law Society wanted to point out that that was the case. However, I do not think there is a lot of pressure for that necessarily being the length of time. I think that the Scots law system wants the same system and was just suggesting that it should be stipulated. That is the thinking in Scotland; that is, that the idea of what is practicable, which the Minister quoted, comes from England. I understand that that is not the way it is treated in Scotland. It is much more precise. That is the way that Scots lawyers think. I hope I speak correctly on that. I am alone at present and do not have any Scots legal advice.
The noble Lord, Lord Stoddart, who is not in his place, suggested that not all that much information is needed, so it should be possible to stipulate a maximum time. That is a very good point, provided, of course, that it is possible to extend it in particular circumstances.
There is an important point here. I hope that the Minister will consider what has been said and see whether he is sure that what I think is a south-of-the-border approachthat it is always all right just to say what is practicableis in order. I do not think I would like to be incarcerated waiting for someone to decide what is practicable before they let me appear in court
The noble Lord said: I do not want to detain the Committee unnecessarily on this matter as it is a rerun of many of the arguments we have had in connection with amendments tabled by my noble friend Lady Carnegy. I wish to raise just two points.
My first point picks up the point made by the noble Viscount, Lord Bledisloe. Under the Bill a person must be brought before the appropriate judge "as soon as practicable". We understand why the Government want flexibility on that matter. However, the measure seems to place an awful weight upon the judge, particularly in the light of the strictures in subsection (4) of Clause 4. That is to say, if the provisions of subsection (2) or (3) of that clause are not complied with, the judge must effectively let the person go. The interlocking nature of subsections (3) and (4) of Clause 4 seems to me to raise great difficulties.
In seeking flexibility, I believe that the Government have made a rod for their own back. They have placed a huge weight on the appropriate judge who will be under very great pressure, in the extreme cases that the Minister likes to mention of terrorism and so on, never to rule that the phrase "as soon as practicable" was not complied with. I believe that stipulating a time limit would take a lot of the heat off the judge and, indeed, the authorities.
My concern is emphasised by the fact that under Clause 6(3), which deals with provisional arrests, a time limit is stipulated. The Minister argues that we must have flexibility in one part of the Bill in this regard but in another part a time limit of 48 hours is stipulated. My Amendment No. 49 seeks to change that 48-hour time limit to 24 hours. It is a probing amendment.
We believe that to have flexibility in one part of the Bill and a time limit of 48 hours in another will cause the Government unnecessary difficulty now and will cause the courts and the police unnecessary difficulty in the future. It would be better to have a hard line running through the Bill, whether that is a time limit of 24 hours or 48 hours or whatever rather than have the term "as soon as practicable". For all the reasons that my noble friend raised it is inordinately difficult for a judge or a police force to comply with such a term. The adoption of a hard line or a straight edge on the matter would be far preferable. I beg to move.
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