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Lord Hodgson of Astley Abbotts: We share the Government's wish to ensure that delays are reduced. We gave the Government the benefit of the doubt on the amendment of the noble Lord, Lord Wedderburn, but on this occasion we believe that the envelope has been pushed too far by the phrase "exceptional circumstances" and that the amendment of the noble Lord, Lord Goodhart, has the right construction.

This has come about in part because of the European arrest warrant, under which things can happen very quickly. We need to ensure that there is a proper opportunity for consultation and preparation and that the process does not go through unduly quickly and in a way that does not give an individual the opportunity to ensure that his case is properly prepared.

We share the views that have been expressed in Grand Committee. I congratulate the noble Lord, Lord Goodhart, on changing subsection (1) to subsection (5). It did not make any sense and I was going to ask him about it.

Lord Filkin: It is good that all noble Lords who have spoken support what we are fundamentally seeking to

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do—that is, to quite sensibly and necessarily speed up the extradition process while, at the same time, trying to avoid miscarriages of justice in so doing. As set out in the Bill, we believe that "exceptional" is the best way of achieving that because it will ensure that the substantive hearing will take place relatively speedily unless there are "exceptional reasons" for not doing so.

At this first stage, all we will be doing is fixing a date for the initial hearing. At the substantive hearing it will be open to the lawyer acting for the person sought for extradition to make exactly the points advanced by the noble Lord, Lord Goodhart, and others—in other words, he can apply for an adjournment because he is not ready and does not have all the evidence he requires—and the judge at that substantive hearing will have ample discretion to consider them.

Mindful of what has been said, I should like to reflect further on this matter—not because we do not believe that we are right in our intent but if this was to give rise to a number of substantive hearings and increase the likelihood of adjournments as a consequence, that would not achieve what most of the Members of the Committee seek—that is, for substantive hearings to go ahead rather than be adjourned. It might be—I go no further than that—that too severe a test at the initial stage would foreclose some sensible options to avoid an adjournment later.

I do not want to raise hopes excessively but we shall reflect on these points and respond to them on Report.

6 p.m.

Lord Goodhart: I am grateful to all noble Lords who have spoken in support of the amendment. I am also grateful to the Minister for saying that he will consider the matter further.

The amendment is plainly right. As the Minister suggested, it is not desirable to go to the first day of the substantive hearing and at that stage ask for an adjournment for the necessary period of time. Subsection (5) suggests that there are some circumstances under which it might be desirable to apply for an adjournment before the substantive hearing begins. So there is a clear argument for saying that where it is apparent that more time will be needed it should be possible to make the application before the beginning of the substantive hearing.

I await with interest the Government's response but, unless it is favourable, I intend to bring back the amendment on Report, perhaps in the form suggested by the noble and learned Lord, Lord Mayhew. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 58:

    Page 6, line 6, leave out "and this subsection may apply more than once"

The noble Lord said: The amendment seeks to delete the proviso in subsection (5) that delays may be applied for more than once. Amendment No. 186

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relates to a Part 2 arrest warrant and, most significantly given the provision we are seeking to explore, Amendment No. 212 relates to Clause 98—"Time limit for order for extradition or discharge"—where the Secretary of State comes into play.

We have brought forward the amendments on the recommendation of the Scottish Law Society. It has been assiduous as ever in spotting potential loopholes and has drawn particular points to our attention.

Amendment No. 58 seeks to remove the provision in Clause 8 which allows the date of an extradition hearing to be rescheduled on a continuing basis. We share the Scottish Law Society's concerns that the current drafting of the provision could lead to the indefinite detention of those awaiting an extradition hearing. It is possible that the date could be deferred using the excuse of "exceptional circumstances", the "interests of justice", or whatever, again and again.

Throughout our discussions on the Bill we have been repeatedly told by the Minister that one of the main aims of the legislation is to speedup the system, which is fraught with delays and has endless numbers of trials postponed, deferred and avoided. We welcome a Bill which will make the extradition process more efficient by removing unnecessary and potential procrastination. That is why we wish to discuss this issue today. On that basis, we have brought forward amendments which seek to delete the provision to allow more than one continuation of a hearing.

Amendment No. 212 relates to the position of the Secretary of State. At present, one of the great complaints about the extradition process concerns delays. As we discussed at Second Reading and elsewhere, although delays in extradition appear to be the fault of lawyers and the judicial process and procedure, in many cases they come about because the Secretary of State cannot make up his mind and continuously puts off decisions.

At Second Reading I referred to the case raised by Mr John Maples, the Member for Stratford-on-Avon, in the Second Reading debate in another place. He pointed out how a number of people wanted for terrorist offences in the United States and France had exhausted their legal procedures by December 2001 and were still awaiting the Secretary of State's decision in December 2002. I have given the details of those cases and I shall not weary the Grand Committee with them again. When we discussed the issue four months later on 1st May—16 months after the legal proceedings had been exhausted—I asked the Minister whether or not those people had been deported and their cases finally concluded. Perhaps the Minister now knows about that and will tell us when he replies.

This probing amendment seeks to deal with procrastination, particularly on the part of the Secretary of State. Clearly that has recently held up a huge number of cases. It is all very well to pass the blame across to the lawyers but, in many cases, it has not been the fault of the lawyers or the courts but of an inability, unwillingness or a lack of will and readiness to make a final decision.

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When I have asked the Minister about this in the past he has said "We are acting in a judicial capacity". But surely every judicial capacity must have been exhausted in a period of 16 months. It cannot take as long as that for a Secretary of State to reach a conclusion in conformity with his judicial capacity.

These are probing amendments which are of particular significance to the later parts of the Bill. We raise them now because the issue arises in regard to Clause 8 and again in Part 2. I beg to move.

Lord Mayhew of Twysden: I am not sure about this issue. If the Government were to adopt my suggestion made on the previous amendment that the time limit may be extended where the interests of justice required, it would be a little difficult to justify saying that the interests of justice should be heeded on only one occasion and not more.

If that formulation were to be adopted, would it not meet the purpose of the current amendment which my noble friend has explained? The interests of justice are the overall interests of justice and if it would be unjust in all the circumstances to protract the detention of the applicant, that would permit the judge on those grounds to refuse a further application.

Lord Goodhart: The name of my noble friend Lord Mar and Kellie is attached to these amendments. This is because the amendments were more or less approved en bloc, having been brought forward by the Law Society of Scotland. On further consideration—and on the same grounds as those suggested by the noble and learned Lord, Lord Mayhew—I am no longer certain that Amendments Nos. 58 and 186 are appropriate.

I remain strongly in support of Amendment No. 212, which seeks to place a firm limit of two months on the time available to the Secretary of State to make his decision as to whether or not a category 2 extradition is to proceed. Two months is a perfectly adequate period of time within which the Secretary of State can make a decision, and it would be difficult to justify an extension of that time.

Lord Bassam of Brighton: There is a degree of unanimity within the Grand Committee that our present extradition system, with its endless and multiple opportunities for delays, is not satisfactory. One of the great virtues of the new arrangements the Bill will put in place is a speedier and more streamlined process. The noble Lord, Lord Hodgson, agreed that that was right.

It means that we shall have to set and adhere to timetables. As part of that, at the initial hearing which takes place very shortly after arrest, the district judge must set a date on which the main extradition hearing should begin. This should ensure that extradition proceedings do not drag on indefinitely.

However, we recognise that there may be circumstances when it would be unjust and unfair for a hearing to proceed on the due date. For example, the fugitive or his lawyer may fall ill, or another party in a Part 2 case may have encountered real and unforeseen

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difficulties in gathering the necessary evidence. Accordingly the Bill allows the district judge to postpone the hearing where he believes there are "exceptional circumstances", and he can do so on application from either side.

We have just agreed to consider whether there is a case for applying a slightly less stringent test. I recognise that such circumstances can arise and that they can continue to apply or happen on more than one occasion. Accordingly, we think it right that the judge should be able to postpone the hearing date as many times as he needs to rather than be able to do so only once, which would be the effect of the amendment.

Let me give the example of where the district judge has set a date for an extradition hearing and a few days before the appointed date the fugitive falls quite seriously ill. In those circumstances, it would be in the interests of justice and appropriate to postpone the extradition hearing. The medical prognosis might be that the fugitive is likely to have recovered sufficiently to attend and participate in a hearing set for about three weeks hence. Accordingly, the judge might set a new date for the initial hearing of four weeks hence.

As we know, doctors are not always infallible. It might be that when the revised hearing date comes round, the fugitive, although on the road to recovery, is still not well enough to attend the hearing. In those circumstances a further postponement would clearly be right. Removing the possibility of a second postponement could result in injustice to the fugitive. I am sure that that is not what Members of the Committee want to see.

I appreciate that noble Lords may be concerned that the requesting state might seek to use this facility to secure a series of postponements to the detriment of the fugitive. The first point to be made is that, under the reasons I have given, we have to allow the fugitive to secure more than one postponement, but we must be even-handed and thus not deny the same facility to the requesting state, as our legal system has always been based on treating both sides in the case equally and fairly.

Nevertheless, I understand the concerns. That is precisely why we have left the district judge to decide whether there are good grounds for the postponement. The mere fact that the requesting state seeks a postponement does not mean that it will automatically get it. If, in the judge's view, good reasons have not been advanced for the postponement, he will not allow it. If the requesting state has failed to get its act together, that is its own bad luck. That was also the reason why we set the bar at a higher level in terms of the test that the judge should apply. It is something that we shall have to take into consideration when we further reflect on these issues. I do not believe that a requesting state would seek to abuse this facility, but if it did so, I am sure that the judge would have little truck with it. I hope that noble Lords appreciate the drawbacks attendant on their amendments and that they will be withdrawn.

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In response to the point made by the noble Lord, Lord Goodhart, on the Secretary of State giving reasons for possibly postponing his decision, it may be because he would want to consider any late representations made to him by the fugitive. However, the agreement of the High Court is required before the Secretary of State can postpone his decision. So there is a check in place.

The noble Lord, Lord Hodgson, returned to an issue that he has quite properly raised previously. I am sure he would accept that I am not in a position to discuss individual cases. It would not be in the interests of justice for me to discuss such cases within the confines of a Committee. However, if the noble Lord wants to take advice on this particular issue outside the Committee, then obviously he is free to do so.

6.15 p.m.

Lord Goodhart: I should like to make two points before the noble Lord, Lord Hodgson, withdraws his amendment. First, I was interested to note that the noble Lord, Lord Bassam, referred to the illness of the person against whom the warrant has been issued as one of the possible grounds for deferring the date of the start of the hearing. But if there is anything that is not an exceptional circumstance, I should have thought that it would be the illness of the defendant. I think that illustrates the strength of the argument on the previous amendment.

I want to ask about Amendment No. 212. While I understand the point that it might be the defendant actually asking the Secretary of State to give further time for the consideration of new information, of course it is not necessarily that way around. There is no qualification here about the grounds on which the Secretary of State can ask the High Court to extend the time; as set out in Clause 98(10), which states:

    "If before the required period ends the Secretary of State applies to the High Court for it to be extended, the High Court may make an order accordingly".

Ought not there to be at least a requirement that an extension can be granted only if the interests of justice require it?

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