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Lord Clinton-Davis: Before speaking to the amendment which stands in my name, I should say that I accept what the noble Baroness, Lady Anelay, said: it is very important that the defendant should have a right to be present throughout. I hope my noble friend will say that that will be the case. If not, I should like her to indicate how the omission, as I regard it, is to be cured. I do not think that it is at the moment.
As the noble Baroness, Lady Anelay, pointed out, the Law Society has expressed considerable misgivings about this omission. It is for that reason that I am bringing forward the amendments standing in my name. In basic terms there is not much between what has already been said and what I have to say.
I am very perturbed that there seems to be some kind of dichotomy between what the Minister said at Second Reading and how the clause stands at present. He stated:
- "A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.—[Official Report, Commons, 9/12/02; col. 44.]
Retrials are different in certain member states. We believe, in essence, that the accused should have a right to be present and to be able to recall witnesses. I do not believe that it is possible to have a retrial as we understand it if those notions are not met.
I hope that my noble friend will be able to satisfy the Committee on that issue. The noble Baroness, Lady Anelay, is quite right to make the point—as have the Law Society and I shall make it again—that if those features are missing there will not be a fair trial as established in Article 6 of the ECHR. It is not enough—I am anticipating what my noble friend will say—to rely on the provisions of Clause 21, which refers to human rights. I am glad that it does, but that provision should not prevail as far as concerns this issue.
I hope that the Government will avail themselves of the opportunity to take this matter back and look again at the situation.
4.15 p.m.
Viscount Bledisloe: When I spoke last time, I omitted to welcome the noble Baroness, Lady Scotland, to the proceedings. However, I am not as masochistic as the noble Lord, Lord Goodhart, and would therefore not dream of suggesting that I hope she will enjoy them. I
fully agree with the noble Baroness, Lady Anelay, that something on the lines of Amendment No. 81 is desirable to ensure that the retrial is a real retrial. However, I venture to suggest that perhaps her wording is somewhat too nationalistic in talking about prosecution and defence witnesses. In other countries, many witnesses may not be prosecution or defence witnesses. I commend to her the thought that perhaps what she needs is words which state:
- "The defendant will have like rights to hear and examine witnesses as he would have done at an original trial".
Lord Carlisle of Bucklow: I, too, support the principles behind the amendments tabled by the noble Baroness, Lady Anelay. As I understand it, the purpose of Clause 20 is to state that a person who has been convicted will be extradited provided that he was present at the time of his conviction. As it stands, is not the noble Baroness, Lady Anelay, right in saying that there is no reference to the need to be present at a retrial? Surely, the whole justification of returning a person on extradition, if there is to be a retrial, is to meet the necessary condition that he or she should be present when that trial takes place and when convicted and sentenced. I hope that the Minister agrees that something to that effect should be included in the Bill.
Secondly, will the Minister explain what is meant by the words,
- "or . . . to a review amounting to a retrial"?
Lord Goodhart: I added my name to Amendment No. 81. I have little to add to what has already been said. It is important that we should clarify in the Bill what is meant by a retrial or a review amounting to a retrial. All the provisions in Amendment No. 81 are necessary. I hope that it will be possible to incorporate them. From what I have said, it will be apparent that I equally support Amendment No. 202, which applies exactly the same principles to category 2 extraditions.
Lord Clinton-Davis: I do not want to be regarded as churlish. I, too, would like to welcome my noble friend. I hope that what I have to say will enable her to reach out and say that she will meet my objectives. If, rather more ignobly, she says that being here today is a necessary step to advance her career, I do not think that she had to do that.
The Minister of State, Home Office (Baroness Scotland of Asthal): First, I thank all Members of the Committee for the warmth of my welcome. I heard a hint in what was said by the noble Lord, Lord Goodhart, that he believed that I would not enjoy it, but I should reassure the Committee that having had
the delightful experience of sharing the company of virtually all those currently present on a number of Bills, I am confident that it will be a delight.I hope that I shall be able to round things off for the noble Baroness, Lady Anelay, as she so graphically put it. I think that I shall be able to explain why we think the amendments are unnecessary. I listened with great interest to what several Members of the Committee said. Indeed, I agree with what they seek to achieve. The Government argue we achieve that by the Bill as drafted. I hope to explain why.
I assure the Committee that the Government share an equal commitment to ensure that the trial and retrial are fair and consistent with the ECHR rights to which we all adhere. It is for that reason that the Bill contains in both Parts 1 and 2 clauses that specifically require the judge to decide whether extradition would be compatible with the individual's ECHR rights. We shall shortly come to the first of those in Clause 21, to which my noble friend Lord Clinton-Davis has already referred.
These particular provisions concerning convictions in absentia also demonstrate our determination to make more explicit the rights of the person whose extradition is sought. Extradition is barred if a person has been convicted in his absence, unless he deliberately absented himself, and he will not be entitled to a retrial or a review amounting to a retrial.
As regards the term "retrial", in our view a retrial must confer the same rights on an individual as a trial. If it does not, it is not a retrial. The right to a fair trial is, of course, guaranteed by Article 6 of the ECHR. Extradition would be barred under the ECHR provisions where a judge or court is of the opinion that a person would not be afforded these rights, either at a trial or a retrial, on return to the requesting state. It may not then be such a surprise that we see no need for the amendments, but I shall endeavour to satisfy the Committee that there is a good explanation for that view.
Turning first to Amendments Nos. 78 and 199, they would remove the reference to,
- "a review amounting to a retrial",
Lord Clinton-Davis: I thank my noble friend for giving way. If some of the countries in the European Union prefer not to abide by the definition of a retrial and, in my view, are in flagrant breach of their obligations, what action, if any, are the Government prepared to take?
Baroness Scotland of Asthal: It is contained in the Bill. The whole point of the applications being made before a district judge is that the district judge will have to satisfy him or herself that the Article 6 rights will be upheld and as to the precise nature of the retrial to take place.
Lord Clinton-Davis: Perhaps I have not made myself clear. For the sake of argument, accepting what my noble friend said, what happens if other countries have not carried out their duties under Article 6 of the ECHR by enabling prosecution witnesses to be recalled? As I understand it, in some instances, that is not regarded as necessary.
Baroness Scotland of Asthal: All EU countries must have in place systems which comply with the ECHR. Of course, we may do so in different ways, but the essential elements of the provisions of the ECHR must be met. When the district judge comes to decide whether there is to be a valid retrial, he or she has to be satisfied as per substance—not as to the word by which it is described but by what is actually going to happen.
We have made plain that a review must have the same features as a retrial. That includes re-examination of the evidence and the chance to call witnesses. We believe that the Bill provides for that. Therefore, I respectfully suggest to my noble friend that his proper anxiety is not securely based, because the Bill provides for that as he would wish. It is not the label, it is the procedure which is really important.
As the Bill stands, a person would be afforded the rights that I have just described. It is also clear, in accordance with convention rights, that the decision of the court would be explained to him. However, that is not to say that we should not set out in the Bill a hard and fast rule. In this country, on occasion a defendant may be removed from the court if he is particularly disruptive, for example. To include an absolute right to be present throughout the trial or the judgment itself might therefore jeopardise extradition on a technicality.
Amendments Nos. 81, 82 and 202 would introduce a specific description of what a retrial or review must include. They direct the judge to disregard any proceedings which do not include provision for the extradited person to have specified rights. A retrial, whatever form it takes, must comply with the right to a fair trial as guaranteed by the ECHR. The amendments are therefore unnecessary. If the judge considers that any of the rights listed would be breached, extradition could be refused under Clause 21. That is the penalty, as it were, that could be imposed for non-compliance.
With great respect, the amendments would make the provisions unnecessarily long. I do not make light of the subject, but I invite the Committee to imagine how much longer the Bill would be if we were to define all relevant ECHR issues. Once we alight on one, two or three of them, the suggestion can always be made that those are the issues that need to be proven and that other areas with which one should comply under the
ECHR are irrelevant. The Government are loath to do that; all those rights should be available in such circumstances.In short, I certainly appreciate the Committee's concern about the matter and why Members wanted to probe it to achieve clarity about our intentions, but in response to the noble Lord, Lord Carlile of Bucklow, I stress that convictions in absentia are rare and have not given rise to any problems to date. That is not to say that they may not in future, but such cases are rare.
Of course, we should not underestimate the importance of providing protection when such circumstances arise. That is why we have included much more detailed provisions on in absentia cases in the Bill than in any previous piece of extradition legislation. For the first time, we are making it an absolute condition that a person who has been convicted in absentia and who did not deliberately absent himself must have a guarantee of a retrial or an equivalent review.
I certainly accept the aims of the amendments. We agree without hesitation that no person's rights to a fair trial should be breached. I submit to the Committee that the Bill already provides protection against that. On the basis of that explanation, I hope that the amendment will be withdrawn.
4.30 p.m.
Lord Mayhew of Twysden: I think that I have already welcomed the noble Baroness on another occasion, when I spoke of her exhibiting a dangerous degree of charm. For ourselves, we shall certainly enjoy that. Whether we shall enjoy the considerable toughness that I also mentioned is perhaps more questionable.
Today, we are trying to establish whether the Bill, in order to demonstrate the necessary degree of clarity for which we all strive in legislation, needs to have inserted the language in Amendment No. 81. I quite see where the noble Baroness is coming from. She says, "You do not need to do that. We share the objective. We are all on the same side. It is all perfectly all right, because Clause 21 states that extradition shall not be granted unless the requirements of the ECHR are fulfilled". I am not sure that that is a sufficiently satisfactory answer, because it is not only district judges, admirable though most of them undoubtedly are, whose interests must be considered. Before the matter reaches a district judge, questions will have to be asked and answered by legal representatives.
I feel that if the words "in particular" were added to my noble friend's amendment, Amendment No. 81, that would provide a helpful guide to the essential conditions that must be fulfilled. I quite understand what the Minister said: if we include some matters but leave out others, there is an inference that the others are of secondary importance.
If the words, "in particular", were inserted, the amendment would state:
- "the judge should not regard as a retrial or . . . a review . . . any proceedings that do not in particular include provision for".
I hope that the noble Baroness will undertake to reconsider the matter. There is much to be said for the amendment in the overall interests of clarity, notwithstanding the perfectly legitimate points that she made in response to it.
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