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Baroness Scotland of Asthal: Everything said in Committee will be considered. Speaking for myself, the Bill appears to be robustly drawn, but I entirely understand the anxiety to which the noble and learned Lord refers. I am happy to say that we shall look with great particularity to see whether anything else could or needs to be added. As I said, I cannot guarantee that I shall not return with the same answer, but the noble and learned Lord's charm has had equal effect and I shall certainly consider the matter.
Baroness Carnegy of Lour: Moving from the subject of charm, which I do with difficulty, because I agree with what my noble and learned friend said, as a layperson, it seems to me that legal advisers—I think of those in my home country of Scotland—will have not only to interpret the Bill but to consider whether what happened in another country sticks to what that other country should be doing in terms of human rights. The Bill relies completely on the convention to do that. That could put legal advisers in a difficult position. I understand very well what my noble and learned friend Lord Mayhew said. The noble Baroness should put herself in the shoes of legal advisers and consider the judgments that they will have to make. I understand what she is saying, but does not the Bill totally rely on the convention?
Baroness Scotland of Asthal: In the normal way, people will have the advantage of what we have said in Committee. The Explanatory Notes, which will accompany the Bill, will make it absolutely clear what construction should be put on it. It is clear from our debate that the Government's intent and explanation adheres precisely to what the noble Baroness and the noble and learned Lord have said in Committee. There is nothing between us; it is just a question of how it is expressed. That should satisfy the Committee.
Baroness Anelay of St Johns: I am grateful for the support of Members of the Committee and for the words of the noble Baroness—especially her closing words. We all agree that there is nothing between us in
what we are trying to achieve. It is how we get there that is in dispute. I agree with my noble and learned friend Lord Mayhew of Twysden that the Bill does not provide the necessary degree of clarity. He spoke about the broad, conceptual language in Clause 21. The noble Lord, Lord Clinton-Davis, was absolutely right to guess in advance that the noble Baroness would seek to rely on Clause 21 as a save-all. Our problem is that we do not think that it quite fulfils that duty at present.We are aware that already in extradition cases, the district judge will bear in mind when deciding on extradition what would be the rights of the person if returned to the country from which the request has come. When I recently attended Bow Street magistrate's court to watch an extradition case for half a day, the district judge had to consider in great depth the conditions that would apply if someone were to be returned for a jury trial in Russia. I am aware that they have great expertise in such matters. We are trying to achieve a Bill that will stand for a generation or so and will serve as a model not only to district judges but to all others involved in or affected by extradition, as my noble friend Lady Carnegy said.
All Ministers are always worried about adding extra words to Bills. I note that the noble Baroness said that she does not want to extend the Bill. In her absence, when her predecessor was sitting in that seat, I had a solution. My solution was to knock out Part 1 altogether. That would shorten the Bill. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 79:
- Page 10, line 14, at end insert—
The noble Baroness said: I shall speak also to Amendment No. 200. The amendments are intended to clarify what is meant by "deliberately absenting" oneself. Clauses 20 and 84 provide safeguards where a person has been convicted in absence, except where that absence was deliberate. Our amendments attempt to probe that point.
My noble friend Lord Hodgson of Astley Abbotts has previously referred to the Theresa Daniels case, which makes it clear how easy it is for a foreign judicial system to fail to notify the defendant of prosecution and for the defendant to be unaware of subsequent conviction. Of course, in this country, one would not be in that position in respect of any serious matter; in any charges on indictment, one would have to have been present, at least in the first place. If absence is "deliberate" the defendant would lose a number of protections that are otherwise granted: extradition proceeds under Clause 21 with no entitlement to a retrial.
The question is: on what criteria is the judge to make the decision about whether absence was deliberate? What evidence must be provided by the foreign judicial system to demonstrate that? We have been briefed by Liberty on the matter. I am grateful to Liberty, which suggests:
I consulted the Fair Trials Abroad website, which includes several examples of the dangers of in absentia trials. I shall refer to just one example. Mr O had been tried in Italy and acquitted. After he had left Italy for his home, the prosecutor appealed against the acquittal without actual notice of the appeal going to the defendant and he was convicted on the appeal in absentia—not knowing a thing about that. He returned to Italy for a holiday—rather a bad choice, in this case—and was flung into gaol to serve out his sentence. His state-provided lawyer believed that there was no court remedy. That is a hard case, but, as ever, one must consider hard cases.
We appreciate that some people may not know about extradition proceedings simply because they have removed themselves from the country with the intention of avoiding proceedings. We are not trying to protect them. If someone is trying to evade justice and has been properly dealt with, we are not concerned to protect them. We are concerned with hard cases. That is what the amendment seeks to probe. I beg to move.
Baroness Scotland of Asthal: I am grateful to the noble Baroness, Lady Anelay, for the way in which she moved the amendment. I can respond in a way that I hope that she will find helpful.
Earlier, we touched on findings made in absentia. I reiterate that they are rare. I do not intend to cover the detail again. Such cases will obviously be difficult. One of the most important considerations will be the quality of evidence produced before the judge in due course.
As I said earlier, we have included more extensive and detailed provisions on in absentia cases than we have ever previously had in any extradition legislation. The amendments would place the burden on the requesting country to prove that a person deliberately absented himself from his original trial. I am not sure in what way that would improve the Bill.
As the Bill is drafted, the judge must decide whether a person was convicted in his absence. If so, the judge must then decide whether he deliberately absented himself from the trial or not. As part of this process, it
That is in accordance with our normal law and practice; both parties to the case can advance arguments and adduce evidence on the issue, with the judge given the role to adjudicate. The noble Baroness was kind enough to say, after visiting Bow Street magistrates and watching these extradition hearings, that they can be very robust and are often pursued with great vigour by both sides. Ultimately, the district judge will have to make up his or her mind as to which bit of evidence satisfies them.
As the Bill is drafted now, that is how the matter will continue to be addressed. If the judge is satisfied that the person did not deliberately absent himself, the person must be extradited only if he is entitled to a retrial. If the judge is not satisfied that the person will receive a retrial or a procedure giving him those rights, the judge must discharge the person.
The Bill now allows the judge to weigh up the evidence to decide whether the relevant in absentia provisions apply. We believe this is the correct approach, and see no reason to add further and unnecessary wording to the three clauses. We do not believe these amendments would add anything, but they may muddy the waters and could represent a departure from our normal practice. I hope, with that explanation, the noble Baroness is more content and feels able to withdraw her amendment.
Viscount Bledisloe: Will the Minister enlighten us as to what, in her view, deliberately absenting oneself means? If, on day three of a trial, someone skips bail and runs because the trial is going badly, he has obviously deliberately absented himself. But supposing he gets a summons informing him, in his home in this country, that a trial will take place, and he says to himself, "This is a load of rubbish; I can neither afford to go there nor can I afford all that time off work, so I won't go. I have just written a letter making it quite plain that I didn't do it". Is he deliberately absenting himself in that case? If it is, to prove that he did so, the prosecution has simply to demonstrate that it served notice of the process on him and he was not there. But if it depends on his reasons for not going, it is all much more difficult. This issue is relevant not only to this amendment but to the next one. I ask the noble Baroness to expound a little on what deliberately absenting oneself means.
"( ) When determining whether the ground in subsection (1)(b) above has been made out, the issuing country must establish to the court's satisfaction that the person deliberately absented himself."
"in order that this provision should provide full protection for the individual, it should be interpreted so that, in order for a person to be deemed to have deliberately absented himself"—
or herself—
"evidence must be provided that notice was personally served on that person and that he chose not to attend the hearing".
The Committee will remember that the Theresa Daniels case saw the
Spanish lawyers and judges claiming that the required
information was given, while it was clear that Theresa
Daniels had no idea of her prosecution, conviction or, later,
of the appeal taking place against her.
4.45 p.m.
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