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Viscount Bledisloe: My Lords, it is important to distinguish precisely what one is dealing with here. I think the noble Baroness trespassed against this at one stage. This part of the Bill deals only with whether the person up in front of the magistrate is the person named in the warrant, not whether he has anything to do with the person who committed the crime and has that name.
The noble Baroness referred to Mr Bond. He was the person named in the warrant, as I understand it, but he should not have been named in the warrant because they got Mr Derek Bond of 45 Railway Cuttings, or wherever he came from, instead of Mr James Bond, 007, of somewhere else. The only question here is, "Are you the person named in the warrant?". To ask for that to be proved in front of the magistrate beyond reasonable doubt is asking too much. I think that the burden should be on the prosecution to show that he more probably is.
Is anything being done to deal with the example I raised in Grand Committee where the person is named in the warrant but is patently not the person who committed the crime? I gave the example of a person named in a warrant who had been sitting on the Woolsack in your Lordships' House at the very moment the crime was committed. Can the Government do anything to deal with the case of somebody who, although accurately named in the warrant, is patently not the person who ought to be extradited because he is patently not the person who committed the crime in question although he may have the same name and even the same address. He may be the father of the criminal, if he comes from one of those tiresome families whose members give their children the same Christian names they bear themselves.
As I understand the way in which the system works, a category one country issues a warrant for the arrest of a person in this country who, it claims, has committed an offence in that country. He is then arrested, which is stage two, and brought before the magistrate. It seems that about the only power the magistrate has is to confirm that he is the person named in the warrant. If the magistrate decides that is the case, he can remand the person in custody for that purpose. The person is then referred to another hearing, which has no power to go into dual criminality; it has no power regarding whether there is a prima facie case, and no control of the Secretary of State over the decision to extradite. Therefore it seems that one of the most important steps is the confirmation by the judge to whom the person arrested is taken that he is the person named in the warrant.
Let us take the noble Lord, Lord Bassam. The noble Lord appears in the court as the person arrested and the judge has to decide whether he is the person named in the warrant. The noble Lord, Lord Bassam, claims he is not, knows nothing about the matter and has nothing to do with this. It must be someone who has the good fortune to look like the noble Lord, who has been mistaken for him. Is it really adequate for the judge to say, "I think on the balance of probabilities it is Lord Bassam, and I think therefore that it is the Lord Bassam who is mentioned in the warrant"?
All of us have our double. If I may do so in the absence of the noble Lord, Lord Jopling, I remind the House that when I first entered Parliament, when I looked rather younger than I do now, he and I were often mistaken for each other. If I appeared before the magistrate with a warrant that claimed that I had committed an offence while in France, and if I had never been near the place and had been mistaken for the noble Lord, Lord Jopling, would it be adequate that the court should decide the issue only on the balance of probabilities, or should the judge at least be satisfied beyond reasonable doubt? I am sure that neither myself nor the noble Lord, Lord Jopling, nor the noble Lord, Lord Bassam, would want to be returned to the European country merely on the basis that a magistrate said that on the balance of probabilities he felt that he had the right person before him.
Since the adjournment, the Minister has been very generous in conceding amendments from the Opposition and accepting that matters needed to be reconsidered. I hope that he recognises the serious intent behind the amendment and will be prepared to consider again the burden of proof.
Lord Dholakia: My Lords, Amendments Nos. 47 and 48 have the support of these Benches. During the Grand Committee stage, my noble friend Lord Goodhart made a strong case for avoiding the use of the words, "beyond reasonable doubt". Those words are somewhat out of date. They are no longer
In the absence of subsection (3), I am given to understand that a court would normally apply the criminal standard of proof or something very close to it. We do not believe that the balance of probability is appropriate in this clause.
Lord Wedderburn of Charlton: My Lords, I hope that my noble friend the Minister looks on the amendments in spirit, with favour. It is said that the only issue is identity, but I cannot think of a more important matter than identity. Take the case of my noble friend Lord Bassam's twin, who lived his life in America and who changed his name from something to Lord, in the American fashion. If he or his twin were up in the box, I could not think of anything more important than that it should be proved beyond reasonable doubt. We might use the wording, "unless the court is sure", or the Government might take the amendment away and insert suitable words.
Lord Stoddart of Swindon: My Lords, I must confess that, listening to the debate, I have been intrigued by how one would weigh the balance of probabilities. After all, a probability is a fraction of an actuality. How does one put probabilities in the scales and weigh them? It is a phrase that should be completely rejected in law, which is why I strongly support the amendment.
Lord Bassam of Brighton: My Lords, I answer the amendments with a smile. My mother would be extraordinarily amused at the way in which noble Lords have referred to the Bassam name in the course of the debateand not least with the notion that I might have a twin somewhere in the United States of America.
We are happy to respond to the amendments, and to the important issue that they get to the root of. They relate to the specific issue of the standard of proof relating to the person's identity at the initial hearing. When shortly we reach the group of amendments with Amendment No. 69, we shall have a more generalised discussion on the issue of the burden and standard of proof. I will try not to stray too much into that more general territory in my remarks on this group of amendments.
As I am sure those who have been studying the Bill will know, the first thing that happens after a person has been arrested is that he is brought before a United Kingdom district judge for an initial hearing which takes place very shortly after arrest. It has been said that the magistrates' only power is effectively to determine whether the person in front of them is who he says he is. Although that is an extraordinarily important task, the district judge also has other tasks. He must inform the person of the contents of the warrant; give him information about the possibility of, and the consequences of, consenting to extradition; fix a date for the main extradition hearing;
However, before the judge does any of that, he must take a view on the person's identity. He must decide whether the person before him is the person whose extradition has been sought. At that stage the judge is not considering whether the extradition should take place, still less the issue of whether the person is guilty of the crime in question. He is simply reaching a view as to whether the person whose extradition has been sought and the person before him are one and the same. If the judge concludes that the person before him is not the right person, the person must be released automatically and without any further ado. There are no further proceedings or appeals. It is quite simply the end of the matter. I ask your Lordships to bear that in mind as you consider this issue.
The Bill, as it was originally introduced, did not specify the standard of proof that the judge should apply when considering the person's identity. During Committee stage in another place it was suggested that that was unduly ambiguous and that the Bill should stipulate the standard of proof to be applied. The Government accepted that that was a sensible suggestion and accordingly brought forward an amendment, which was accepted during Report stage, for exactly that purpose. The amendment made in another place imposed the balance of probabilities test. I think that I should explain why that was chosen and why I cannot suggest to your Lordships that you should accept these amendments from the Opposition which would instead substitute the criminal "beyond all reasonable doubt" standard.
Perhaps I could cite a real and, I think we would all agree tragic, example to illustrate the potential pitfalls if we were to make the change suggested by the amendments. I am sure that your Lordships are all too painfully aware of the awful case of Detective Constable Stephen Oake, who was murdered in a flat in Manchester in January 2003. Given the circumstances of the case, there was not too much doubt about who was thought to be responsible for that appalling crime. The person concerned was duly arrested and brought to court. He was charged under the name of Kamel Bourgass. The Times of 18th January 2003 reported:
Dangerous criminals of that kind are exactly the kind of people who feature in extradition cases. Those are the very people who very deliberately have no identity papers or, equally possible, possess three or more different passports, all in different names. In such circumstances the district judge may very well not be able to have certainty, beyond all reasonable doubt, as to the person's identity. Do we really want dangerous criminals, potentially terrorists, to be able to escape extradition and justice just because they are
Would it really be justice if a suspected terrorist or other serious criminal was able to walk free just because he had two different passports and the judge could not have absolute certaintybecause that is what is being suggestedabout his identity?
I am confident that in genuine cases of mistaken identity the person will be able to satisfy the judge that he is the wrong person even on a balance of probabilities test. I really do not believe that we should be tipping the balance so far in favour of the identity fraudsters as would be the effect of these amendments. I do not think that that is what Members of your Lordships' House want.
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