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Baroness Anelay of St Johns: I understand the Minister to be saying that it is the nature of the offence that could be put to proof by the calling of witnesses. I am grateful to him for indicating that the initial hearing is perhaps going to be somewhat wider than was originally anticipated and I shall want to consider carefully what he has said to see whether it may be necessary to return to this at Report or whether it will suffice to ask questions between now and that stage and thus settle the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Bars to extradition]:
Viscount Bledisloe moved Amendment No. 64:
- Page 7, line 9, at end insert—
The noble Viscount said: Amendment No. 64 is purely a formal paving amendment to Amendment No. 75, so I shall speak to the latter amendment. For the first time in our deliberations we have come, so to speak, to consider the substance of what one can be extradited for rather than the procedure.
Under Clause 7(2), one is entitled to ask: "Am I or am I not the person named in the warrant?", which we have already looked at. But it appears that one is not allowed to say to the judge: "I can demonstrate conclusively that I could not have committed the offence with which I have been charged".
The warrant has with it certain particulars. Let us say that it alleges a rape, one committed at three o'clock in the afternoon of a specified date by a person who threw himself upon a lady in some deserted area in Germany. He cast her to the ground and raped her. Let us also say—purely hypothetically, of course—that that warrant has been issued against the noble and learned Lord, Lord Irvine of Lairg. However, some 400 people can be made available to testify that on that date and at that time, the noble and learned Lord, Lord Irvine of Lairg, was seated upon the Woolsack and therefore could not possibly be the person who committed the offence. Surely the noble and learned Lord should be entitled to demonstrate those circumstances to the court and to say: "Given the circumstances, I shall not be extradited".
In an extremely helpful and courteous letter written to me by the Minister after the debate on Second Reading—for the first time I have an opportunity to express my considerable gratitude to him for that—he
The warrant would be addressed to a specific Mr Andrew Smith of, say, 4B Railway Cuttings, Somewhere-or-Other. Either he would have admitted or it would have been established that he is Mr Andrew Smith of 4B Railway Cuttings. None the less, he can demonstrate that at the time of the offence the person standing in the dock—himself—was in fact playing in a football match for Manchester United and being watched by 60,000 people, all of whom are prepared to come to court to say that he was there and not in Germany.
Let us take an alternative example. The information states that the person sprang from a tree, threw himself on a lady and raped her. Suppose that the fugitive can demonstrate that he is, and has been for the past 10 years, paralysed and in a wheelchair? In such circumstances, where it can be demonstrated conclusively that it was not the accused—and could not have been the accused—who committed the offence, surely that person should not be extradited.
Of course I do not suggest that we should return to the balance of probabilities—or even to a trial—but what should happen where the accused can demonstrate that he did not commit the offence? I would be perfectly willing to add to that—if the Minister will wear it—the stipulation that the accused can demonstrate conclusively or can satisfy the judge beyond doubt that he did not commit the offence.
Surely, however, in the fairly rare circumstances of the kind that I have adumbrated, the accused should be entitled to put an end to the proceedings at that stage rather than be hauled off to the extraditing country and, when his trial comes up, be required to adduce such evidence there.
Subsection (b) of my proposed new clause deals with a person being hauled back because he has already been convicted of an offence. As a corollary to my first proposition, so to speak, if it can be demonstrated conclusively that the person is not the person named in the conviction, although he is the person named on the warrant, that should suffice.
Let us suppose that the accused was tried for five days before the court and then fled—absented himself—and was convicted in his absence. That person is a Mr Andrew Smith of 4B Railway Cuttings. However, Mr Smith is one of those tiresome people who comes from a family in which all the eldest sons are named Andrew Smith. Further, it is beyond doubt that the Mr Andrew Smith of 4B Railway Cuttings who was convicted of this offence was the father. He has absented himself by fleeing to South America and therefore the only Mr Andrew Smith of 4B Railway Cuttings is the son, who plainly is not the person convicted. Again, surely, the proceedings should be dismissed at that stage.
Obviously, however, that is a more unlikely circumstance and it is subsection (a) that principally concerns me. However, I inserted subsection (b) for the sake of completeness and regularity. I beg to move.
Lord Clinton-Davis: The noble Viscount has portrayed for the Committee a very compelling argument. I wish that he had not referred to my noble and learned friend Lord Irvine of Lairg because I got entirely the wrong idea.
Viscount Bledisloe: I did so only because I referred to the noble and learned Lord at Second Reading.
Lord Clinton-Davis: That is not a good excuse. The noble Viscount ought not to have referred to him at all. Nevertheless, the noble Viscount has put forward a compelling argument in relation to both subsections (a) and (b) of his proposed new clause. If the person concerned demonstrably did not commit the offence he should be given the opportunity to say so. If the warrant is fundamentally incorrect, then that too should be adduced in evidence.
However, as the clause is presently drafted, I do not think that either situation obtains. Of course I may be wrong. No doubt my noble friend will not hesitate to point out that the premise upon which both submissions are made is entirely wrong, although I do not think so.
Baroness Anelay of St Johns: I too believe that the noble Viscount has made a compelling case. I hope that the Minister will be able to point to a provision in the Bill which protects people and gives them the right to make their case.
I have been given an example of the kind of case that could arise far more commonly than the serious matters referred to by the noble Viscount. I refer to the case of someone who travels abroad on holiday and, while on holiday, finds that his credit card details have been stolen. The person returns to this country but then discovers that his credit card is being used fraudulently abroad, something which happens in hundreds of thousands of cases every year.
An occasion could therefore arise where a warrant for extradition is issued in a Part 1 country in respect of a fraud committed on a credit card, and the person accused of that fraud would indeed be the person named on the credit card. However, it would be very improper for such a person to be put through the full procedures of Part 1 over here. Surely they should be given the opportunity at a very early stage to make the point that, although they are indeed the person named on the warrant and the person whose credit card has been used fraudulently, they could not possibly have been in that country at the time when the card was fraudulently used.
I hope that the Minister will be able to point to a cast-iron guarantee in the Bill that a person caught in these circumstances or in the circumstances referred to by the noble Viscount would be given the opportunity to say: "It wasn't me; it could not have been me; you have to stop this procedure now".
Lord Filkin: I thank the noble Viscount, Lord Bledisloe, for his kind remarks about my letter. I am sad that it clearly completely failed to do the job, in that it did not persuade him not to raise those issues again. I shall not pursue the calumny against my noble and learned friend Lord Irvine, for reasons that the Committee will understand.
The amendments have two limbs: one for accusation cases and one for conviction cases. I should like to deal with the latter, and the second limb of the amendment, first. That provides that a person's extradition should be barred if he can demonstrate that he is not the person convicted of the offence.
That is already covered by the Bill. Clause 7 provides that the first thing that the judge must do when the person is brought before him at the initial hearing is to determine whether the person is the one in respect of whom the warrant was issued. In conviction cases, the issue before the court is whether the person in court is the person in respect of whom the warrant was issued. The Bill already caters for that. If the judge concludes at the initial hearing that the person before him is not the right person, he must be discharged, as we have discussed.
Let me now turn to the first part of the amendment, which deals with accusation cases. Here, the noble Viscount's amendment provides that a person is entitled to be discharged if he can demonstrate that he is patently innocent of the crime of which he stands accused.
How is he to demonstrate that? In many cases, presumably, by calling witnesses to make the case for his innocence and perhaps by trying to establish an alibi. However, the interests of justice require that the other party to the case—the requesting state—must be allowed to try to refute the fugitive's evidence and to produce its own evidence. So, for example, if the fugitive claims that he has an alibi, the requesting state may want to produce an eye-witness or closed-circuit television evidence that places the fugitive at the scene of the crime. The judge would be then required to adjudicate between the conflicting evidence.
The noble Viscount may believe that restricting the bar to those who are patently innocent might reduce the volume of such cases. However, I fear that that is not the case. All the evidence from extradition cases shows that if a bar to extradition exists, fugitives will seek to use it—for reasons that we have exposed during earlier discussion. We therefore predict that in almost every extradition case, the fugitive would seek to claim that his extradition was barred by reason of his patent innocence.
One might say: what is wrong with that? At the least, if such a provision were enacted, the fugitive would be able to secure a delay—potentially a substantial one—to the proceedings, if the requesting state had to bring in other witnesses before the district judge to refute the claim by the person whose extradition was sought that he was not the person.
On Second Reading, the noble Viscount said that he was not seeking to re-introduce the prima facie evidential test. But that is precisely what the amendment proposes. Indeed, it goes beyond that. It would ensure that virtually every extradition hearing became a mini-trial with evidence and counter-evidence. There are therefore fundamental practical reasons why, although the amendment appears seductive, it would in practice drive a coach and horses through what most Members of the Committee—I include the noble Viscount in this—seek to achieve.
The crumb of comfort that I can offer is that, if there were really to be such cast-iron evidence, the fugitive or his lawyer could submit it to the prosecuting authorities in the requesting state. If it were persuaded by it, it could withdraw its request. That is within its power.
If we weaken the Bill as proposed, for reasons that are clear, that would have an enormous wrecking effect on what we seek to achieve. The only other comfort that I can offer is that there are many cases in which people who claim that they are innocent are able to claim that they were not the person. There is already an opportunity under the Bill for them to advance that case; so that point is covered.
On the question of guilt or innocence, it is a cardinal principle of extradition that that question must be a matter for the court of trial. We should not seek to resolve that question at the extradition hearing. On the point about Andrew Smith being one of many in the house, the Bill already allows for that. If the Andrew Smith seized said, "It was not me, but my brother", the judge has discretion to decide the matter.
On the absolutely accurate point raised by the noble Baroness, Lady Anelay, an extremely large number of credit cards is stolen or used fradulently. I recollect that it happened to me when we last went to France last summer. That is all too easy, given our system. But in that case, it was not me, as the owner of the credit card, who would have been charged with fraud; effectively, the fraud was committed against me.
"( ) patent innocence;"
6.45 p.m.
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