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Lord Bassam of Brighton: At the initial hearing the judge must provide the person affected with the required information about consent. The judge must do that right at the very beginning of the process. The judge cannot accept consent unless the person has had access to legal advice. There is no way in which the person can consent without proper understanding of what is involved or without legal advice. There is absolutely no way in which that can happen. At that initial hearingat the remand hearing, if you likethe judge will explain the position and set it out quite clearly. He or she will ensure that the person affected understands the situation so that he can be given proper and independent legal advice before the process goes any further. The judge cannot accept consent without the person having that understanding.
Lord Hodgson of Astley Abbotts: That is reassuring. We should like to look through the Minister's comments, but it sounds as though he has produced a satisfactory answer. If we may, we will examine his comments, consult and ensure that we have covered all the bases. Meanwhile, I beg leave to withdraw the amendment.
The noble Lord said: I am glad to move the amendment now as I had not realised some of the aspects of the problems surrounding consent that were exposed by the previous debate. I wanted to move Amendment No. 56 separatelyI am almost tempted to say, in the words of the best prospectus ever issued for investment, in 1820"for a purpose which shall in due time be revealed".
Lord Wedderburn of Charlton: Did I say 1820? It was the bubble Act, of course. However, this is no bubble; this is a very serious case. The person who gives consent is not allowed to revoke it. The essential question raised by the amendment is: why? In the ordinary case, especially subject to all the problems in Clauses 44 and 45, one could expect to be whisked off within 10 days.
I understand all the points about representation and explanation by the judge, although we have seen that, in fact, representation is rather more precarious than has been suggested. The judge will do his best. However, particular issues arise under consent. The first is that, under Article 13(4) of the framework decision,
The first question is why did the Minister not join in their reasons for doing so. Why did he not take any steps in regard to consent, and what representations did he seek or obtain relating to that? The United Kingdom Government did not do so and did not give a notification to the General Secretariat. That is a point to which I want to return.
After failing to do so, the Government may rely upon that failure; but that has very important consequences for what we in Parliament can do. However, before dealing with that, I should like to ask a second question. Does consent under the Bill as it stands open up all the problems which many noble Lords on this Committee, learned and otherwise, have
I return to the Minister's position. It really will not do for the executive to say to some unfortunate person who may deny he is the right person and wish to revoke a consent which he has already given to his surrender, "I am terribly sorry, but you don't have any right to withdraw your consent to be surrendered to this foreign jurisdictionespecially for some obscure crime such as swindling which you did not come across in studying for your degree. Of course we recognise that it was all a mistake which no one spotted that you gave your consent after being misled on the circumstances. It is all a terrible pity, but off you go! There's very little we can do about it now. You see, we didn't tell the General Secretariat that we wanted to retain the ability to revoke consent". Surely that is not a satisfactory position.
If the Minister does not say that, there is not much point in debating this amendment. I should have to withdraw it very quickly because Parliament is not sovereign on the matter. This is a difficulty that has been created entirely by the executive, by not giving notice and not providing for domestic law to give this right to someone whose consent was given in circumstances that led to his being misled, which was not spotted. I know that judges are very clever, but with the greatest respect, just occasionally they do not spot something. In the proceedings it may not be spotted that the person is misled.
I adhere to what I said on a previous amendment. I do not think that, where it could be drafted otherwise, this Bill should allow for one person, whoever he is, to be sent off to trial in a foreign jurisdiction where that is undesirable and unjustifiable. I believe that those circumstances could arise. They are not merely a matter of fancy; they are a matter of real life.
Therefore, in three respects this amendment poses a problem for the Government. First, why do we think that consent should be irrevocable in all circumstances? Should there be no exception at all? Secondly, what were the reasons for not giving domestic law the opportunity to provide for at least something in relation to revocation of consent? Thirdly, does the Minister agree that we can now legislate on the matter despite his failure to notify the secretariat under the framework decision? I beg to move.
Lord Hodgson of Astley Abbotts: After the challenging remarks of the noble Lord, Lord Wedderburn, I hesitate to get involved. We have some concern about the abolition or removal of irrevocability because it could be open to abuse and exploitation by those wishing to delay the process of their extradition. As we have said from the beginning, we share the Government's view that the extradition process has become unduly elongated and should be speeded up. Whether that should be done in Part 1 or Part 2 is another issue, but we think that the process should be speeded up. Our bottom linein the modern phraseis that as long as the person has proper independent legal advice, as we were discussing a moment ago, and therefore clearly knows the implications of giving or refusing consent, the consent once given should be considered binding.
I am not saying that there is not a case for irrevocability. For example, a warrant could be served on someone who thinks that he is innocent. He may nevertheless decide to go to the foreign country in order to face trial and get it over with. He may then find himself remanded in custody in a way which was not envisaged. So there are dangers. Those of us who have read the briefings from Fair Trials Abroad have seen some pretty horrendous examples of how clearly innocent people can be convicted and imprisoned.
We feel that we are back to the need to strike a balance between the wish to ensure that the guilty are swiftly punished and the wish to protect the rights of the innocent. We feel that, on balance, the amendment pushes the envelope a little too far.
Viscount Bledisloe: I venture to doubt that the problem adumbrated by the noble Lord, Lord Wedderburn, is a real one. You need to revoke a consent only if it is a valid consent. If the consent has been obtained by fraud, duress or under an incapacity then it is not a valid consent. The English judiciary is perfectly capable and ingenious enough to say, "That is not a valid consent. It is not a question of revoking it. I find that although the piece of paper was filled in, the consent was in fact never given. In those unusual circumstances the man can be let free". Plainly, however, in a normal case, he cannot just change his mind, any more than the man who pleaded guilty can just change his mind. I venture to think that the judiciary will easily solve the scenario, if it ever arises, which the noble Lord has adumbrated.
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