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Baroness Scotland of Asthal: Just before the noble Baroness sits down, perhaps I may say how I see it. The fact that Clause 7(3) specifically provides for the balance of probabilities leads me to construe that the remainder is beyond reasonable doubt. That is why I shall look to see whether more is needed.

Baroness Anelay of St Johns: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 80:

(a) he was convicted in his absence, and
(b) it would not be in the interests of justice to return him on the ground of that conviction, taking particular account of the conduct of the proceedings which resulted in conviction and whether the person would be"

The noble Baroness said: In moving Amendment No. 80, I shall speak also to Amendment No. 201 and Clause 20 stand part. The amendments would allow judicial discretion in the extradition of anyone convicted in absentia, regardless of whether his absence was deliberate, only if it were in the interests of justice not to return him.

In the previous group of amendments I said that I did not have much sympathy if someone deliberately absented himself simply to escape justice. I stand by that. Here I look at different tests where the person is not trying to escape justice but a malevolent state that has carried out a wrongful action against him. So I am looking at an "interests of justice" test.

This country and many others recognise that conviction in the absence of an accused may be unjust. The question must ultimately rest on the conduct at the trial at which the person was convicted and the extent to which defence rights were preserved even in that person's absence. The test currently applied in this country extends significantly further than merely whether the person has deliberately absented him or herself. Section 6(2) of the Extradition Act 1989 provides that:

    "A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state . . . if it appears to an appropriate authority—

(a) that the conviction was obtained in his absence; and
(b) that it would not be in the interests of justice to return him on the ground of that conviction".

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The UK courts have found that the "interests of justice" test encapsulates such factors as whether,

    "the trial was as fair as the circumstances permitted",

and in particular whether: first, reasonable steps were taken, both during the giving of evidence and in the summing-up to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits; secondly, whether the applicant was represented by counsel of his choice at the first "trial" in absence and on appeal; thirdly, his legal representative was given all the relevant documentation in advance of the hearing; fourthly, that witnesses were called and cross-examined by counsel on behalf of the applicant; fifthly, that the applicant personally lodged an appeal; and, finally, that the applicant waived his right to appear at his appeal trial hearing.

We question whether Clause 20(2) should be amended to include an "interests of justice" test, so that the person's right to a fair trial is preserved. I beg to move.

Viscount Bledisloe: My understanding is that as the Bill stands at the moment, if the court decided that the man deliberately absented himself, then the country must return him even though he will not get any form of retrial, whereas under the amendment the court would have a discretion in those circumstances.

In the light of the answer which the noble Baroness gave to my last question, with which I have to confess I entirely agree as a matter of construction, it seems that there should be a discretion. Take a man who receives a summons to go to Greece to be tried for the harmless sport of train spotting. He has a job that he will lose if he goes. He has infant children and no spouse, which it would be difficult though not impossible to leave behind. He is at the very beginning of setting up his business. He has a contract. If he does not complete it, his business will be ruined. He writes a letter saying, "This is what I am doing. You really don't need me there. Please dismiss this silly charge".

He has deliberately absented himself on the definition given by the noble Baroness, with which, as I say, I agree. The court may very well think that it would be wholly unjust that he should be hauled back and stuck in prison for seven years without having had any chance for a retrial. Surely it is right that the court can say to the prosecution, "You can't have him back to imprison him unless you give him a retrial. You can of course extradite him for the offence and give him a trial, but you cannot extradite him before the conviction and just slap him in prison without any retrial". In those circumstances, surely a discretion in the court is right. The provision otherwise would work too fiercely on the people who had behaved perfectly reasonably, albeit—perhaps from a legal point of view—somewhat unwisely.

Baroness Scotland of Asthal: I have a little difficulty accepting that one can behave unwisely and illegally without there being some consequence.

Viscount Bledisloe: It is not illegal not to go back for a trial in Greece. Greece has no jurisdiction over a

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citizen of this country. It has sent him notice of a trial, not a warrant to attend; it does not have the power to. It has told him that there will be a trial, but it is not illegal for him not to attend.

Baroness Scotland of Asthal: We could now engage in a very interesting debate, which is probably not quite on the point. Notwithstanding the temptation, I shall restrain myself from responding, and direct my comments to try and deal with the amendments and the noble Viscount's questions.

Amendment No. 80 states that a judge must have particular regard, when considering a conviction in absentia, to,

    "the conduct of the proceedings which resulted in conviction".

That is a very important criterion that the court will be able to take into account.

I recognise that the phrase "interests of justice" is taken from the Extradition Act 1989. That is the sole test provided by that legislation. As I said earlier, we seek to go further in the Bill. It sets out clearly the factors on which the judge is to base his decision. Therefore, we suggest there is no need for the Bill to include a general discretion. The amendments would also require the judge to consider the conduct of the original proceedings which resulted in the conviction.

Of course I understand the example of the noble Viscount and the difficulty with that particular case. The main characteristic of an in absentia case is that the person was not present at the original trial. Once the judge has decided whether or not the person deliberately absented himself, there is nothing else of relevance concerning the original conviction which the judge can examine.

In a Part 1 case the judge cannot verify prima facie evidence, in the same way that the judge does not examine such evidence at the moment. In a Part 2 case the same applies where the prima facie requirement does not apply—for example, requests from Council of Europe countries under the ECE. In a Part 2 case where the prima facie requirement stands, the judge will be required to examine the evidence anyway under Clause 85.

So, to demand particular attention to any other aspect of the original trial goes well beyond established in absentia principles. It also, I would suggest, goes well beyond the jurisdiction of the judges and courts in this country.

As Members are aware, the United Kingdom judiciary will be able to prevent extradition where there is a real risk that it would be in contravention of a person's ECHR rights. That will provide adequate protection for the individual against the risk of an unfair trial.

I acknowledge the thought that has gone into these amendments. We are clear, however, that the right to a fair trial must be an important factor in extradition proceedings. I also understand why noble Lords say, "Well, in those circumstances there should be a discretion". The provision has been framed in order to be very clear that there is parity of treatment between our "nationals" and EU "nationals" with whom we

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enter into agreement, and in order to accelerate the process through and by which we exchange those who have committed offences, in accordance with the laws of our respective partners. One knows that hard cases can make bad law. We are trying to make good law.

Lord Stoddart of Swindon: As one who is very much a layman in these matters, perhaps I may say that surely one of the problems in such cases is the removal of the necessity of providing prima facie evidence. If that were to continue, of course there would be adequate protection. However, let me give the example of the case of Mr Bond, a man of 74 years who was wrongly identified as a criminal by the American authorities. The innocent Mr Bond is over here and quite safe. When he gets summoned he says to himself, "The conditions under which remand prisoners are held in the United States would kill me", because very often remand conditions there are not of the same standard as we would expect in this country. So Mr Bond, being careful of his own life, and believing that to surrender himself would be a death warrant, says, "No, I am not going". The Americans say, "Under those circumstances, we will try you in your absence".

In my view, Mr Bond would be quite entitled, because of the harsh conditions under which remand prisoners are held, to be afraid for his life. He may fear being chained, for example, and put through a fairly rough regime. He would be sensible to resist a warrant to go to the United States. I do not know whether the noble Baroness can clear that matter up for me. It is certainly a great worry so far as I am concerned because I am 77. It may very well be that I shall find myself in a similar situation.

5.15 p.m.

Baroness Scotland of Asthal: I am sure that the noble Lord would not find himself in a similar situation. I am sure that a number of noble Lords would rush to his rescue if that were ever to befall him.

I should like to reassure the noble Lord on identity, which we have already touched on in this debate. Clause 7 provides that the issue of identity would have to be established by the district judge or the judge hearing the matter before an order could be made against the person. Of course one does not want to debate particular cases, but the case referred to really did turn on whether there had been a proper inquiry into whether the individual was who the American authorities asserted he was. I think that they made a frank and full apology for what happened.

The safeguard in this country would be that unless and until they established on the balance of probabilities that he was who they asserted he was, the court would be entitled to say, "No order in favour of the requesting state". So the noble Lord need not worry about his own position. I know that all Members of the Committee would verify that he is precisely who he asserts to be.

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