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Baroness Anelay of St Johns: I am grateful to the Minister for his very helpful response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 84 and 85 had been withdrawn from the Marshalled List.]

Baroness Turner of Camden moved Amendment No. 86:

"(3A) If the judge decides that the presumption of innocence is not likely to be applied at his trial or retrial or review amounting to a retrial after extradition, or has not been applied in any such proceedings against the person, he shall order the person's discharge."

The noble Baroness said: In the absence of my noble friend Lord Wedderburn of Charlton—I am afraid that the Committee is going to have to put up with me—may I again welcome my noble friend Lady Scotland?

We had originally tabled three amendments to this particular clause, the human rights clause. However, we decided that we would not move the first two amendments because we thought that our final amendment, which relates to the presumption of innocence, was the most important of the three. We are asking that a person should be discharged, if the judge decides that the presumption of innocence is not likely to be applied at his trial, re-trial or review or has not been applied in any such proceedings. That is a vital part of UK law. That has been attested to by none other than my right honourable friend the Home Secretary. In a debate in the other place, he said, in reply to Mr Letwin:

    "I am very sorry to intervene at this stage of the right hon. Gentleman's speech, but we must be accurate about the European arrest warrant. The proposals in that element of the Bill would ensure that no country could try someone in absentia on the ground that they are presumed guilty. Under the European convention on human rights, which the right hon. Gentleman has often attacked, there must be a presumption of innocence. The Bill will make it clear that no country will have the right to extradite

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    under the European arrest warrant, without agreeing to the presumption of innocence".—[Official Report, Commons, 20/11/02; col. 649.]

The requirement does not appear in that form in the Bill. I hope that the Government will agree that it is so important that it ought to.

I may be advised by my noble friend that the reference in Clause 21 to the Human Rights Act 1998 is supposed to cover everything and that it would be otiose to make the amendment. I do not think so. The requirement is so important that there is a strong case for putting it into the Bill in the form that we suggested. That would be in line with what the Home Secretary suggested. I beg to move.

5.30 p.m.

Lord Clinton-Davis: What my noble friend has alluded to is enormously important. I am not sure that a case has been made for including the provision in the Bill, but, on the other hand, I hope that my noble friend will be able to say that the presumption of innocence, as has rightly been said, is of maximum importance. For that reason, the issue is worthy of debate.

I think that, although the issue is important, it is already covered by the European Convention on Human Rights. I would like my noble friend to emphasise that that construction is right. The points that my noble friend Lady Turner of Camden made are of enormous importance.

Lord Lamont of Lerwick: I support the noble Baroness's amendment. I would particularly like the Minister to comment on the issue of the juge d'instruction—the investigating magistrate. It is one of the things that concern several of us.

On that point, I draw the Minister's attention to the remarks of Mr Strauss-Kahn, a former Finance Minister in France under Mr Jospin, which I have quoted before. He said that, in France, once the judiciary was interested in someone, he was presumed guilty until proved innocent. I am concerned at the coercion that sometimes seems to be exercised by investigating magistrates—sometimes involving pre-emptive custody—in putting enormous pressure on people to make a bargain with the prosecuting authorities.

Lord Stoddart of Swindon: I add my voice in support of the amendment. The noble Lord, Lord Lamont of Lerwick, gave the example of what happens in France, but we must be careful that the whole idea that someone is innocent until proved guilty does not slide past us in the Sexual Offences Bill that is before Parliament. In our treatment of rape, we are slipping away from the presumption of innocence until proved guilty.

In our own country, under several pieces of legislation, people must now prove themselves innocent. If they do not, they are guilty. It is an important amendment. A different situation is beginning to apply in this country, and I am certain that it already applies in other countries of the

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European Union covered by Part 1. All of us know—the noble Lord, Lord Lamont of Lerwick, just confirmed it—that standards in some other countries, particularly France and Italy, are not such as, hitherto, we would have accepted in this country.

The tenet that one is innocent until proved guilty is essential to the protection of the individual against the state and against wrongful prosecution. Habeas corpus is also essential, and it, too, is slipping away. It does not exist in some Part 1 countries. We should be grateful that the amendment has been moved. I shall listen with interest to the noble Baroness's reply.

Baroness Scotland of Asthal: I hope that I can quieten all the beating hearts on the matter. The issue is covered. I thank my noble friend for raising the issue. She has given us an opportunity to debate an essential part of the protection that we need.

It may be helpful if I remind the Committee that all EU member states and accession states and others besides are party to the ECHR and must operate accordingly. The judicial systems have all been found to comply with the ECHR right to fair trial, including the presumption of innocence. Therefore, any argument that the EU jurisdictions do not operate the presumption of innocence is without foundation.

It may be helpful if I remind the Committee of what Article 6.2 of the convention says. It states:

    "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

If we included an express provision giving effect to Article 6.2, it would, as I said earlier in Committee, cast doubt on whether Clause 21 brought in other essential safeguards, such as those in Article 6.3. I shall remind the Committee of what is in Article 6.3. The Government believe that it is of equal importance. It says:

    "Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court". All of those provisions are bound up in Clause 21 and are, I respectfully suggest, succinctly expressed.

Lord Lamont of Lerwick: I am grateful to the Minister for reading that out. Is she saying that those conditions are observed in every state?

Baroness Scotland of Asthal: They are observed in every state that complies with the ECHR. The noble Lord, Lord Lamont of Lerwick, raised the issue of the procedure in France, which has caused him concern. No one can be convicted or punished in an

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investigating magistrate system unless he has been properly convicted in a court of law. Until the court has determined that he is guilty, he is innocent. That is exactly what the presumption of innocence is all about. The important thing about the countries with which we are in comity through the ECHR is that they all agree that they will adhere to those principles. Although we may construct our systems differently, those elements must be reflected. That is our assurance.

If the noble Lord, Lord Stoddart of Swindon, was right about the presumption of innocence and it was lost—if there were no presumption of innocence and the system did not work—the courts here would make a declaration of incompatibility under the Human Rights Act 1998. So far, as I said, all the systems of all EU member states and accession states are compliant. By inserting Clause 21, we encapsulate the essential fundamental principles to which we all adhere and which we all want to have assured for individuals who come before our courts.

Baroness Turner of Camden: I thank noble Lords who contributed to our short debate. It is important to have the issues spelt out, as my noble friend acknowledged. I am grateful to her for spelling out what is in Article 6.2 of the ECHR. It is useful to have it spelt out and readily available in Hansard.

I shall study what my noble friend said. It is important.

Lord Lamont of Lerwick: Before the noble Baroness withdraws her amendment, will she allow some of us to ask another question? When the noble Baroness concludes, I can ask a question.

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