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Lord Mayhew of Twysden: I thought that perhaps the Minister would like a moment to look at the paper that has just been put in front of her as well as listening to a confession on my part that I am a little at sea on the resistance that she is putting up. She rightly says that the judge has to decide paragraphs (a), (b) and (c) in Clause 20(1). But by what standard of proof does he

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have to decide? He has to do it, of course, on the evidence, but what is the standard of proof and where does the burden of proof lie?

I can quite see that so far as paragraph (a) is concerned, he will hear evidence on both sides as to whether the person was convicted in his presence or in his absence, or he will make his mind up on the whole of the evidence, perhaps. Indeed, he would have to, and I am not certain where the burden of proof lies. But I am, at present, quite clear that the burden of proof ought to lie upon the requesting state if it is asserted that he was convicted in his absence but he deliberately absented himself.

If they are making an assertion of that character, which goes to the purpose of the defendant—or the intended defendant—then, it seems to me, as a matter of elementary justice, that the burden of proof has to rest upon the country that is making that assertion. That is what the amendment seeks to make clear.

What the standard of proof is, I am not so sure. Is it the civil standard of proof or is it the criminal? No doubt the noble Baroness will be able to assist us on that. But so far as paragraph (b) in particular is concerned, with its emphasis on the purpose that motivated the intended defendant, the burden must lie upon those who make that assertion, particularly where the liberty of this individual is at stake. Will the noble Baroness be kind enough to come back on that and tell us how she sees the matter?

Baroness Scotland of Asthal: First, I should like to deal with the points raised by the noble Viscount, Lord Bledisloe. Of course it will be a matter for the judge to decide. In the noble Viscount's example, the person receives the notice and deliberately decides not to comply with it. If that was the evidence that the judge heard—first, that the defendant knew of the trial, secondly, that he knew of the date, and thirdly, that he knew of the substance of the trial but chose deliberately not to comply—speaking entirely for myself, that is evidence which the judge could take into account in deciding whether the person was deliberately avoiding the trial. We would say that would be a matter for the judge to consider in the round.

On the assertions, the usual rule is that he who asserts must prove. These proceedings, as far as I am aware—and I am sure I will be corrected if I am wrong—are dealt with by the criminal standard of "beyond reasonable doubt", and that is the basis upon which the court will have to determine it. It will have to hear evidence from the requesting state as to why it asserts that this person could have attended, failed and/or refused to attend, and why it was thought proper, in those circumstances, to try the individual in absentia. That will be down to the evidence heard on the day. It will be incumbent upon the defendant to demonstrate why he did not receive that information, did not know about the trial, could not have made proper arrangements to attend. It then comes down to evidence—evidence which the judge must hear and determine upon in the usual way.

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Lord Mayhew of Twysden: Without being a bore about it, I hope, surely that is exactly what the amendment seeks to make clear on the face of the Bill. The matter is not self-evident, certainly not to a layman. Unless I am mistaking the purpose of the amendment, it is entirely to make clear what the noble Baroness has just explained, except that it possibly does not establish sufficiently clearly that it is a criminal standard of proof.

Baroness Scotland of Asthal: If I may say so, the legislation will, in the end, have to be construed by the courts and those who advise the individual parties. The noble and learned Lord will know that in these circumstances, it is very rare, unless the defendant deliberately chooses not to be represented and have the benefit of legal representation, that these submissions will be made before the court, and even if the person is not legally represented, the court itself usually judges with some expertise in these matters and will be able to make those judgments perfectly properly. I must respectfully say that we believe, contrary to what has been asserted, that these provisions are clear.

Lord Goodhart: With respect, is it not apparent that the standard of proof in Clause 20 as it stands must be the balance of probabilities and not proof beyond reasonable doubt? Clause 20(2) states:

    "The judge must order the person's discharge if he decides that he—

    "(a) was convicted in his absence,

    "(b) did not deliberately absent himself from his trial, and

    "(c) would not be entitled to a retrial".

Subsection (3) then provides that the judge must proceed under Section 21 if he decides that the person was convicted in his presence, or was convicted in his absence and deliberately absented himself or did not deliberately absent himself and would be entitled to a retrial. If it was the criminal standard of proof, potentially, neither subsection (2) nor (3) would apply, because the judge might come to the view that on the balance of probabilities, subsection (2) was satisfied but not beyond reasonable doubt. He then could not make the decision under subsection (2), but nor could he make the decision under subsection (3) because he would have decided on the balance of probabilities that subsection (3) did not apply. It seems to me that subsections (2) and (3) must, between them, catch every possibility. Therefore, the judge must be satisfied that either one or the other does apply, and that condition cannot be satisfied if he has to take the decision on the criminal standard of proof.

Lord Carlisle of Bucklow: I do not wish to add further to the confusion, but I was interested to hear the Minister say so clearly to the noble and learned Lord, Lord Mayhew, that so far as this matter was concerned, the standard of proof was clearly the criminal standard of beyond reasonable doubt.

I am not sure whether she was made aware that, before she took over the responsibility for this Bill, in an earlier debate we had as to whether the judge had to be satisfied that the person brought before him was the person referred to in the warrant—which one

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would have thought was an equally, if not more, important position—her predecessor Minister argued that that should only be on the civil burden of proof rather than the criminal burden of proof. In the end, he said he would look at it again. I hope that when she does so, the Minister will remember what she has said with regard to this issue. If she believes that the criminal burden of proof is the necessary one on this issue, then clearly it must influence her, must it not, in deciding what is the proper burden of proof when deciding whether the person brought before the judge is in fact the person referred to in the warrant?

Baroness Scotland of Asthal: In relation to the identity of persons arrested, Clause 7(3) specifically provides, in that instance:

    "The judge must decide the question in subsection (2)—

which itself provides that the judge must decide whether the person brought before him is the person in respect of whom the warrant referred to was issued—

    "on a balance of probabilities".

In relation to that issue, it is the balance of probabilities.

Lord Carlisle of Bucklow: I apologise if I did not make it clear, but my point was that before the noble Baroness became the Minister in charge, we had a debate on those very wordings. It was moved from the Opposition side that the burden of proof that should be satisfied in bringing the person before the judge was not the balance of probabilities but the criminal burden of proof of beyond reasonable doubt.

Lord Mayhew of Twysden: Standard of proof.

Lord Carlisle of Bucklow: I am sorry, the standard of proof of beyond reasonable doubt. I was saying that if the Minister feels that that is the right standard of proof in deciding this matter, clearly it must follow that on the issue of whether the right person has been brought before the court, that same standard of proof must equally apply.

5 p.m.

Baroness Scotland of Asthal: I shall take the issue away, examine it and return with a clear position on Report. If in the interim I am able to resolve the issue in a way that is significantly different from that which I described, I shall certainly write to noble Lords.

Baroness Anelay of St Johns: I am grateful to all noble Lords who have spoken and to the Minister for saying that she will consider further the clarity of the Government's position on whether the standard in the various parts of the Bill should be on a balance of probabilities or that of the criminal courts. As my noble friend Lord Carlisle of Bucklow said earlier, we were being told that a balance of probabilities would be fine for something as vital as identity. But here the standard is, as we would hope it to be, the criminal test of beyond reasonable doubt. I welcome the noble Baroness's confirmation of that.

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My noble and learned friend Lord Mayhew was right to point out that what we seek is clarity about the standard and the burden of proof. The burden of proof should be on the requesting state. We still have some serious matters to look at here. I shall have to consider the matter over the summer, and I think we will have to look at it again in the autumn, hopefully also with further clarification by the Government. I shall also seek advice from the Law Society on one or two matters of drafting.

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