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Lord Bassam of Brighton: My Lords, as ever, I am grateful for the noble Viscount for having tabled his amendment. What we are concerned with here is the provision in Part 1 of the Bill which allows the police to arrest a person on the basis that they believe that a warrant has been issued or will be issued. I acknowledge that, at first sight, the drafting of the clause might seem a trifle strange; namely, allowing officers to arrest a person purely if they have reason to believe that a warrant will be issued and not just if they believe that a warrant has been issued.

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The opposition amendment seeks to remove the reference to a warrant that will be issued. What I should like to do is set out why we believe those words are necessary, but then go on to explain the solution we have determined in order to meet some of the concerns that, rightly, were expressed in Grand Committee.

The reason why we think the power to arrest on the basis of a belief that a warrant will be issued is needed can be illustrated by the simple example which we used in Grand Committee. Let us imagine that a person commits a bank robbery in France and jumps on board a hovercraft in Calais just before the French police can catch up with and apprehend him. In such circumstances it would not be unreasonable to expect the French police to telephone their counterparts in Dover and ask for the person to be detained on arrival.

Doubtless the French police would confirm that they would be going to a magistrate to seek a European arrest warrant, but at the moment that the person arrives in the United Kingdom, the Kent police would have every reason to believe that a European arrest warrant would be issued, but not that it had been issued. The question noble Lords have to ask is whether they believe that, under such circumstances, the person should be arrested. In simple and straightforward terms, and in particular in terms of law enforcement, the Government believe that they should be arrested.

The alternative is to let the person go, even though by the time confirmation arrives that the warrant has been issued, both the person and the proceeds of the crime might have disappeared. That would be the consequence and effect of accepting the Opposition amendment.

We accept that such cases are likely to be rare, but that does not meet the point that we can simply ignore the need to cater for them. Further, perhaps it is worth reminding noble Lords that this does not apply only to those on their way to the UK by plane, ferry or Channel Tunnel train. We must never forget that the United Kingdom has a land border and that this scenario could well occur in the case of a person crossing from the Republic of Ireland. As I am sure your Lordships know, the window of opportunity to arrest serious criminals and terrorists in particular can be very limited and those chances need to be taken. It would be a tragedy if United Kingdom legislation on extradition closed off our ability to react quickly to deal with that kind of threat.

When we discussed this matter in Grand Committee, there was some recognition among those noble Lords present that the situation which I have just outlined, although rare, could arise and that we need to be able to prevent the person from getting away. However, the noble Lord, Lord Goodhart, highlighted what he saw as a particular problem with the "or will be" formulation. I cannot do better than to quote what the noble Lord said:

    "Is there anything in Clauses 5 and 6 to prevent the following scenario from happening? The French authorities ring up Inspector Knacker of the Yard and say, 'Will you arrest this man? We promise that we will get you the papers within 48 hours'. The inspector arrests the man, the French authorities fail to get the

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    papers there within 48 hours and the man has to be discharged. However, just before he is discharged, the French ring up Inspector Knacker and say, 'Look, I'm sorry we haven't made it in time, but we absolutely promise you that we will get it to you in another 48 hours, so please arrest this man again, as soon as he is discharged'. Is there anything in the Bill to prevent that from happening?".—[Official Report, 18/6/03; col. 349.]

The answer is that there was nothing explicit on the face of the Bill, although we doubt that the police would have gone along with such an obvious abuse.

However, we have decided that we ought to make it absolutely clear that a person can be provisionally arrested only once, and that is the purpose of the government amendment. It provides that if a person is provisionally arrested pending receipt of the papers and then released, he cannot be provisionally arrested again. He can be re-arrested only if the full papers, including the warrant, have been received. I hope that noble Lords will welcome that as an extra and important safeguard.

For the reasons I have outlined, I cannot advise noble Lords to accept the Opposition amendment. It would be wrong to allow criminals to slip through our fingers, even in those rare cases. However, we have introduced to the Bill an extra protection to ensure that there can be no abuse of the power to arrest in cases where no warrant has yet been issued. I invite noble Lords to agree to the government amendment and I hope that, in the light of the careful explanation I have given, the noble Viscount will feel able to withdraw his amendment.

Viscount Bridgeman: My Lords, I am most grateful to the noble Lord, Lord Bassam, for that explanation. I am particularly reassured by the introduction of new subsection (8), which addresses the point raised by the noble Lord, Lord Goodhart. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Lord Bassam of Brighton moved Amendment No. 39:

    Page 4, line 6, leave out from first "authority" to end.

On Question, amendment agreed to.

[Amendments Nos. 40 and 41 not moved.]

Clause 6 [Person arrested under section 5]:

Lord Bassam of Brighton moved Amendments Nos. 42 to 45:

    Page 4, line 33, at end insert—

"(4A) The Part 1 warrant or a copy of it must be shown to the person as soon as practicable after his arrest." Page 4, line 34, after "(2)" insert "or (4A)"

    Page 4, line 34, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge"

    Page 4, line 38, at end insert—

"(7) Subsection (8) applies if—
(a) a person is arrested under section 5 on the basis of a belief that a Part 1 warrant has been or will be issued in respect of him;
(b) the person is discharged under subsection (5).

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(8) The person must not be arrested again under section 5 on the basis of a belief relating to the same Part 1 warrant."

On Question, amendments agreed to.

[Amendment No. 46 not moved.]

Clause 7 [Identity of person arrested]:

Baroness Anelay of St Johns moved Amendment No. 47:

    Page 5, line 9, leave out "on a balance of probabilities" and insert "beyond reasonable doubt"

The noble Baroness said: My Lords, it gives me great pleasure to move Amendment No. 47. After the tour de force of my noble friend Lord Bridgeman, who managed to obtain a government concession, I hope for more presents from the Government.

In moving Amendment No. 47, I shall speak also to Amendments Nos. 48, 219 and 220, all of which are supported by the noble Lord, Lord Goodhart. The amendments address the issue of the standard of proof to be adopted when establishing the identity of a person who has been arrested.

We are not content at present with the drafting of Clause 7, which covers the identity of the person arrested, and its consequential Part 2 clause, Clause 79. Both clauses deal with the identification of the person arrested, which is the first thing that has to be established when the defendant comes before the judge at the initial hearing.

When we discussed this point in Committee, there was concern on all sides that the Bill as drafted was not satisfactory. It was obvious that if we were to send the wrong person back for prosecution, for trial, it would be a miscarriage of justice.

As the Minister helpfully pointed out in Committee, there has been some movement in the drafting from the time the Bill was first introduced into another place. Originally there was no indication of what test or standard of proof should be used when the judge made the decision about whether the person before him was the person named in the warrant.

I and others referred to the high-profile case of Mr Derek Bond, who found himself in the position of being arrested in South Africa while on holiday—this is an example simply of the problem of identity; we are not intimating that there will be this kind of extradition case—when he was not the person who should have been the subject of the extradition request from America. The case raised concerns both in this House and among the public.

After some debate in another place, the Government decided to specify the standard of proof. However, they selected the civil burden of proof—the balance of probabilities—rather than the criminal test of beyond reasonable doubt, which we prefer. We accept that it was right for the Government to specify the standard of proof, but we believe that they have chosen the wrong one.

At the initial hearing the judge is given no prima facie evidence about the offence with which the defendant is charged. All that takes place is a kind of identification—we are not convinced that it is sufficient—of the person, a discussion of the remand, the rights of the person to

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legal aid and the issue surrounding the consent to extradition. In other words, an administrative and procedural arrangement goes forward once the judge has decided that the Mr Smith before him is the same Mr Smith as named on the arrest warrant, and the extradition proceeds without further ado to the hearing.

Our amendment seeks simply to change the phrase "on the balance of probabilities" to "beyond reasonable doubt". We seek to insert the criminal test, not the civil test. This would provide the greater degree of certainty required and give greater protection to the defendant from being incorrectly extradited.

I note that the Government have tabled a clutch of amendments on the burden of proof on other matters to do with retrial and they have made helpful clarifications in rewriting the retrial clauses, to which we will come later. I have asked for them to be degrouped because they address a different problem. But that still leaves the same old problem in this clause. Whatever the Government have done with other parts of the Bill in regard to the burden of proof, they have specifically chosen not to change the burden of proof on identification from the balance of probabilities to beyond reasonable doubt. I beg to move.

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