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Lord Hodgson of Astley Abbotts: The noble Lord, Lord Goodhart, has summed up what I wanted to say. It is clear that our first two amendments, Amendments Nos. 58 and 186, need to be revisited in the light of the Government's reaction to the "overall interests of justice" or whatever phrase is used when they come to look again at the clause. However, on Amendment No. 212, relating to Clause 98, we take a rather more robust view, one made more robust as a result of what the Minister said about the three gentlemen alleged to have been involved in the African embassy bombings in August 1998, and who are still here four years later.

I do not ask the Minister to comment on the case, but only on whether those people are still in this country. Have they gone or not? I do not seek the Minister's view whether this is right or wrong, whether they were guilty or not guilty; I ask only whether the people concerned are still here. But when the Minister

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responds by saying, "Oh, I cannot possibly tell you that in the interests of justice", it makes me wonder whether, when we reach Clause 98—"Time limit for order for extradition or discharge"—given the open-ended nature of the thing so ably described by the noble Lord, Lord Goodhart, that response will be used all the time.

Far from meeting the wish of the noble Lord, Lord Filkin, to speed things up, should someone enter this end of the legal pinball machine, that ball will be bouncing back and forth for a very long time. In all honesty, I cannot see why, four years after the events and 16 months after the High Court finally extinguished their last legal line of approach in this country, the Minister cannot say what has happened to those three people. Does the Minister wish to respond?

Lord Bassam of Brighton: I do not have the information and I am not in a position to enter into discussions about that particular case. However, I appreciate and take note of the point made by the noble Lord.

Lord Hodgson of Astley Abbotts: For the moment I shall withdraw the amendment, but in particular with regard to Amendment No. 212, we shall want to reflect carefully on the matter. This seems to be a lacuna—a black hole—that may in fact recreate the circumstances which most of this legislation is seeking to avoid. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Clause 8 agreed to.

Clause 9 [Judge's powers at extradition hearing]:

[Amendments Nos. 60, 60A and 61 not moved.]

Clause 9 agreed to.

Clause 10 [Initial stage of extradition hearing]:

Baroness Anelay of St Johns: moved Amendment No. 62:

    Page 6, line 36, after "decide" insert "on the evidence presented to him"

The noble Baroness said: I beg to move Amendment No. 62. We turn now to the matter of the initial stage of the extradition hearing. This amendment focuses on a crucial part of the extradition process because Clause 10(2) states that:

    "The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence".

The extradition offences are subsequently set out in Clauses 63 and 64.

Our difficulty with subsection (2) reflects on the arguments we had on Second Reading, which I shall not repeat in detail, covering the lack of the need to establish a prima facie case. The amendment is designed to probe exactly how the judge is to make this decision. On what evidence will he base that decision? I presume that it can be based only on the evidence on the face of the warrant, although we have already been

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told when we debated Amendments Nos. 18 and 22 that the information to be included on the warrant is not to be prima facie evidence.

In the past the Government have said that prima facie evidence will not be required in these circumstances because while working under previous treaties negotiated when a Conservative government was in power, those rights to prima facie evidence were surrendered. We accept that as a matter of fact, but this Bill is to introduce a system whereby the existing safeguards which complemented that lack of prima facie evidence are to go. We seek to probe the Government on what basis the judge is supposed to deduce whether the offence on the warrant is indeed an extradition offence.

We know that later we shall reach the framework list of 32 generic offences. However, I do not see how, on the sparse information set out in the arrest warrant, the judge is meant to decide whether the offence is one that falls within the list of 32, bearing in mind that the offences listed are generic rather than specific.

We seek an explanation from the Government how on earth they expect the judge to reach a proper decision in these circumstances. I beg to move.

Lord Clinton-Davis: I must say that this amendment seems to be utterly misconceived because the judge always looks at the evidence presented to him. He has no other basis on which to consider the case. So in my view, despite what has been said by the noble Baroness, this amendment is misconceived.

Lord Bassam of Brighton: We have reached an important stage in the Bill and obviously it is right that we take careful note of what is being said on this issue before we enter into the later debates.

At the initial hearing, the district judge is obliged to set a date for the main extradition hearing. At the main hearing, the judge is required to consider a number of issues when determining whether extradition should take place. The first issue is whether the offence specified in the warrant is an extradition offence under Part 1 of the Bill. If the judge is satisfied that the offence is an extradition offence, then he must proceed to consider whether there are any statutory bars to extradition. If the judge decides that the offence is not an extradition offence, then he must order the person's discharge, which would be the end of the matter.

The warrant must contain certain information for it to be valid. This includes particulars of the offence which the person is alleged to have committed or the offence of which he has been convicted. So the judge will be well placed to take a view on whether it falls within the definition of an extradition offence or a description of the offence contained in Clauses 63 and 64. But it will be open to either side—the fugitive and the requesting state—to make a case to the judge in order to try to persuade him to reach a particular conclusion. No doubt the other party will seek to refute those arguments and it will be for the judge to weigh up the competing evidence that he has heard, and then come to a conclusion.

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My initial reaction is that I fail to see the need for Amendment No. 62 which seeks to add the stipulation that the judge must decide on the "evidence presented to him". This seems superfluous since, as I have explained, that is exactly what will happen. In this country we do not have an investigating magistrate system, so the judge can only ever decide matters on the basis of the evidence placed before him. The judge is already bound to decide the issue of whether the conduct constitutes an extradition offence on the information before him, including any evidence that either party may care to submit.

While the amendment is certainly well-intentioned, I believe that it is somewhat superfluous to what we are seeking to achieve here. I hope that the noble Baroness will not take offence at that remark, but will see the sense of the position we have adopted and withdraw her amendment.

Lord Carlisle of Bucklow: I wish to put a question to the Minister. Reverting to an earlier discussion, where it states in Clause 10(2) that,

    "the judge must decide whether the offence . . . is an extradition offence",

is he deciding it on the balance of probabilities or because he is satisfied beyond reasonable doubt?

Lord Bassam of Brighton: I think that the judge has to decide beyond reasonable doubt.

Baroness Anelay of St Johns: I am grateful to the Minister and for the interventions of my noble friend Lord Carlisle of Bucklow and the noble Lord, Lord Clinton-Davis, who considered that my amendment was misconceived. I do not take offence, although the noble Lord, Lord Bassam, thought that I might do so. Amendments can never be misconceived if they produce the answers they seek. In this case, the amendment has done that.

The Minister said that the judge has to be satisfied that it is a extradition offence. I am particularly grateful for his answer to my noble friend, Lord Carlisle, when he said that the evidential burden is to be that of the criminal law. Of course we know full well that extradition proceedings live in a somewhat twilight world betwixt civil and criminal law, as I learnt when I observed the very careful handling of an extradition case only a week or so ago. I am very aware of the care taken by the judiciary when looking at evidence, whether as it is currently practised or as it will be when we have Part 1 as well as Part 2-type proceedings.

In his response, the Minister said that the judge would weigh up the evidence that he had heard. I have a further question for the Minister: given the evidence being presented to the judge, if the warrant states that the offence is one of xenophobia and very little other information is given, what if it is challenged and the person asks how that xenophobic offence is described? Will the judge be allowed to hear evidence from witnesses that the person about to be extradited wishes to call?

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6.30 p.m.

Lord Bassam of Brighton: The answer to the question put by the noble Baroness is yes, evidence could be taken from witnesses, but of course the proceeding would not then move on to consideration of whether the offence was actually committed because that is a matter for the court in the country where it is proposed that the fugitive should be extradited. The merits cannot be judged, only whether it is a parallel or similar offence.

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