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Viscount Bledisloe: My Lords, let us suppose that there is a country where, let us say, homosexual offences are illegal. The person concerned might therefore be tried for one of those reasons. I accept, of course, that sexual offences of those kinds would not be within the list. However, let us suppose that they

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wanted to prosecute him for that as well. Would that debar it, or is it merely his orientation rather than his practices that are excluded by these words?

Lord Bassam of Brighton: My Lords, common sense would suggest that it probably would be barred. However, I should like to reflect on the matter and perhaps drop the noble Viscount a line.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 60:

    Page 7, line 42, after "nationality" insert ", gender, sexual orientation"

On Question, amendment agreed to.

[Amendment No. 61 not moved.]

Clause 14 [Passage of time]:

[Amendment No. 62 not moved.]

Clause 15 [Age]:

[Amendment No. 63 not moved.]

Clause 16 [Hostage-taking considerations]:

[Amendment No. 64 not moved.]

Clause 17 [Speciality]:

[Amendment No. 65 not moved.]

Clause 18 [Earlier extradition to United Kingdom from category 1 territory]:

Lord Bassam of Brighton moved Amendment No. 66:

    Page 9, leave out line 37.

The noble Lord said: My Lords, again, I hope that we can be very brief as we are dealing with a minor matter. As your Lordships may know, the framework decision on the European arrest warrant allows EU member states to adopt one of two positions on the issue of speciality and re-extradition. There is a "higher" position whereby other member states also adopting that position could assume our consent, and the "lower" position which requires other member states to seek our consent if they want to charge the person with an additional offence or re-extradite him or her.

The Government's view was that the UK should adopt the "higher" position and the Bill was originally drafted accordingly. However, we were persuaded by the strength of feeling in another place to change our view on that and we now intend to adopt the "lower" position. To put the matter beyond doubt, at an earlier stage of the Bill's passage we removed all the provisions relating to the "higher" position. Unfortunately we missed a couple. However, these amendments remedy that and provide, we hope, for consistency throughout. I apologise to your Lordships for the error, but I am sure that you will have little difficulty in accepting these amendments. I beg to move.

On Question, amendment agreed to.

[Amendment No. 67 not moved.]

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Clause 19 [Earlier extradition to United Kingdom from non-category 1 territory]:

[Amendment No. 68 not moved.]

Clause 20 [Case where person has been convicted]:

Baroness Scotland of Asthal moved Amendment No. 69:

    Page 10, leave out lines 9 to 26 and insert "whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge."

The noble Baroness said: My Lords, in moving Amendment No. 69 I shall speak also to the other amendments in this group.

Our amendments follow on from the fascinating discussion that took place in Grand Committee and also from amendments that we discussed a little earlier. There is both a general issue here concerning the burden and standard of proof and a more specific one relating to convictions in absentia. I should like to address the bigger issue first before turning to the specific, and in doing so I shall attempt to make the case for the amendments standing in my name. However, before all of that, I should begin with a tribute to the value of close scrutiny and to the noble Lord, Lord Goodhart, in particular. He will be scoring two goals in very quick succession in this regard.

As I mentioned, we had very good debates on this subject in Grand Committee. The noble Lord, Lord Goodhart, made a particularly effective speech, if I may say so, in which he sought to demonstrate that the wording of what are now Clauses 20 and 86 was internally contradictory and could lead to a significant gap. I am not ashamed to tell your Lordships that those remarks caused a great deal of head scratching in the Home Office and that a great deal of midnight oil was burned to see whether the noble Lord was right. The conclusion was, of course, that the noble Lord was quite right. He had indeed exposed a gap in the Bill. I should like to take this opportunity to give him my thanks for that.

Amendments No. 69 and 227 standing in my name seek to close that gap by amending and simplifying the drafting of Clauses 20 and 86. I hope that that will be welcome to your Lordships and to the noble Lord, Lord Goodhart, in particular. For the sake of completeness, I should explain that Amendments Nos. 157 and 272 are minor consequential amendments.

I turn to the whole issue of the burden and standard of proof. Following the debates in Grand Committee, we took the view that it would be sensible to put a

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general statement on the face of the Bill specifying the standard of proof that should apply. That is the purpose of Amendment No. 303 in my name. It provides that the normal criminal rules apply to extradition proceedings. That means that, in practice, where the onus of proof is on the requesting state, the standard to be applied is beyond reasonable doubt. Where the onus is on the requested person, the standard is the balance of probabilities. I am sure that noble Lords will see that as a just provision and welcome it accordingly.

I now turn to the amendments standing in the name of the noble Baroness, Lady Anelay—Amendments Nos. 70, 71 and 228, together with Amendment No. 229—all of which are concerned with the whole issue of convictions in absentia. This is an issue on which I believe there is very little between the intentions of those on all sides of the House. The objective of these provisions is clear and, I believe, common to all of us. Nevertheless, the manner by which that objective is to be achieved is at the nub here. Given the existing structure and content of the Bill, I do not believe it is necessary to make these amendments. Perhaps I may explain why.

Convictions in absentia, although rare—I believe they have been in single figures over the past five years—occasionally become a factor in extradition cases and, inevitably, we need to provide for that eventuality. I should also point out that conviction in absentia, although unusual, as a concept is not unknown to the UK criminal justice system. A brief review of some extradition cases where people have been wanted for return to the UK in these circumstances provides a number of pertinent examples.

A man from south Wales went missing from his trial in August 2000 as the jury considered verdicts on a number of serious sexual offences. He was convicted in his absence and sentenced to 12 years' imprisonment for nine serious sexual offences against women and children. He was subsequently arrested in France. Another case concerns a couple from Staffordshire, who fled their trial in September 2002 and were convicted in their absence of attempting to commit a £110,000 VAT fraud. They were subsequently arrested in Ireland. In that case, it is also worth noting that the husband had previously feigned a heart attack in America in order to flee a fraud trial there. That gives us a little insight into the mind of a person who is seeking to evade justice.

I hope that the Government have shown in the Bill that our aim is to make more explicit the rights of the person whose extradition is sought. Extradition is barred if a person has been convicted in his absence, unless he deliberately absented himself, and he will not be entitled to a retrial or a review amounting to a retrial. Again, I should explain that a retrial must confer on an individual the same rights as a trial. It does not constitute a retrial unless it has that effect.

The right to a fair trial is enshrined in Article 6 of the ECHR. Extradition would be barred under the ECHR provisions where a judge or court was of the opinion

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that a person would not be afforded those rights, either at a trial or a retrial, on return to the requesting state. Noble Lords will know that that is enshrined in this Bill in Clause 21.

The amendments would introduce into the Bill a specific description of what a retrial or review must include. They direct the judge to disregard any proceedings which do not include provision for the extradited person to have specific rights. I believe that we discussed these specific issues at great length in Grand Committee. Indeed, I notice that the amendments have been carefully drafted to include the words "in particular", as suggested by the noble and learned Lord, Lord Mayhew.

At that time, we agreed that we would consider the amendments further to see whether they could be used in any way to improve upon what was already in the Bill. In this instance, we have done so and we believe that the Bill is correct and appropriately drafted. Whatever form it takes, a retrial must comply with the right to a fair trial, as guaranteed by Article 6 of the ECHR. If a judge considered that any of the rights listed in the amendments would be breached, extradition could be refused under Clause 21. I respectfully suggest that the amendments would elongate the provisions to give us something that we already have, and I am sure that your Lordships would be keen to avoid that.

I repeat the invitation that I gave in Grand Committee for your Lordships to imagine how much longer the Bill would be if we were to define all the ECHR issues that could arise. Were it not the case that these issues are all set out in the Human Rights Act, there would be a very strong case for putting them on the face of the Bill. But they are set out in that Act and we suggest that that is the correct place for them. They simply do not need to be repeated, point by point, in this Bill.

The inclusion of these points, and not others, could also attract unfortunate inferences. It could be suggested that these issues are to be regarded over and above, or even to the exclusion of, other ECHR rights. That would not be a desirable consequence. The noble and learned Lord, Lord Mayhew, sought to address that point with the inclusion of the words "in particular". But we are not sure that that alleviates the problem. The words intrinsically suggest that the specified points take precedence or more importance over other Article 6 rights. Again, with the greatest respect, having reflected on the matter, we do not believe that this takes us any further forward or removes the difficulties that we have with the amendment.

We certainly accept that the amendments raise important issues and we agree, without hesitation, that no person's right to a fair trial should be breached. However, I submit to your Lordships that the Bill already provides proper protection against that. I apologise for speaking at a little length, but I considered it important to reassure noble Lords that we have taken into account all the factors that they raised with us in Grand Committee. I beg to move.

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4.15 p.m.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 69, Amendment No. 70:

    Line 15, at end insert—

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