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Lord Goodhart moved Amendment No. 74:

(1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.
(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.
(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the subsequent conduct of the proceedings against the person in the territory to which he has been extradited.
(4) If the Secretary of State believes as a result of monitoring under subsection (3) that a person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."

The noble Lord said: My Lords, the amendment raises issues which I believe are of very great importance in the context of the Extradition Bill. The most serious problem with the European arrest warrant is the variable standards of criminal procedure in some member states of the European Union. We should not of course be complacent about our own standards. We need to recognise that many member states have standards that are at least equal to ours. That unfortunately is not yet true of all the other member states. Certain states—and events in the past year will have perhaps suggested that Greece is one of them—do not attain in all cases the standards that we would regard as acceptable.

The European Union has started work on a framework decision on minimum standards of legal process. Progress is moving without any sense of urgency towards that framework decision and I fear

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that it will be some considerable time before we reach anything that can be regarded as an adequate framework decision.

Clause 21, which we greatly welcome, provides a vital safeguard for the European arrest warrant procedure. The judge must decide whether a person's extradition would be compatible with that person's convention rights under the European Convention on Human Rights. If extradition would not be compatible with those rights, that person must be discharged.

The most relevant convention right is the right to a fair trial under Article 6. Article 6.1 confers the right,

    "to a fair and public hearing within a reasonable time by an independent and impartial tribunal".

Article 6.3 is of particular importance. Perhaps I may read the relevant parts. It states:

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

and then it sets out five rights. I shall concentrate on the two which appear to be the most important. First, the right in paragraph (c) is,

    "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";

and, secondly, the right in subparagraph (e) is,

    "to have the free assistance of an interpreter if he cannot understand or speak the language used in court".

Of course an interpreter must have a competent knowledge of both languages between which he or she is interpreting.

I should here declare an interest. I am a trustee of Fair Trials Abroad. Much of what I say is based on that organisation's experience. It has found that the two most frequent difficulties are the difficulty in obtaining competent legal aid in the foreign country and the difficulty in obtaining competent interpretation facilities.

Clause 21 may well frequently be used as the grounds for objection to extradition. It has not been used much in the past—although it has occasionally—because there have been other, perhaps more promising, reasons for delay. But some of those are now disappearing and Clause 21 is likely to come to the forefront. That means that when the issue is raised, the court will have to hear evidence about the standards of justice in the requesting state. That evidence may be lengthy, conflicting and uncertain, which means that extradition hearings may be protracted.

Of course, we recognise that cases must be decided on a case-by-case basis. Interpretation is of course entirely unnecessary when the individual concerned is a native or long-term resident of the requesting state and speaks that language as his or her native language or has acquired fluency in it. But that will not always be the case.

Amendment No. 74 therefore serves a dual purpose. First, it draws the court's attention to the importance of Article 6.3. During the debate on the previous group of amendments, the Minister said that those amendments were unnecessary because they were all implicit under the Human Rights Act 1998. However,

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as I thought about the previous group, it is still of great importance that the court's attention should be drawn to various requirements of Article 6.3.

Lord Clinton-Davis: My Lords, is it not better that it be the duty of counsel to draw the court's attention to that, rather than to include it in the Bill?

Lord Goodhart: My Lords, I would say that the two are not in conflict. Of course it is the duty of counsel to draw the court's attention to that, but that is not a reason why it should not be stated in the Bill. It should be, because that is something that requires particular attention.

However, the question is not just that that receives attention. The amendment provides a possible short cut. It will leave it open for the requesting state—to avoid insulting anyone, let us call it Ruritania, which, we may assume, has become a member of the European Union—to say, "Whatever you may say about our general standards, we guarantee that when extradited this person will receive adequate legal aid and"—if needed—"interpretation facilities". The judge may then say, "I shall accept that promise, which will relieve me from the need to consider the question of the general standards of legal process in Ruritania".

It will then be necessary to keep an eye on whether that promise is fulfilled, so some form of monitoring will be required. It will be unnecessary to send members of the diplomatic staff to attend the court; the Secretary of State can instruct a reliable local lawyer to watch the proceedings and report back. If standards at the trial then turn out to be inadequate, the Secretary of State can inform the court of the situation if the same state asks for extradition in another case. That will greatly reduce its chances of obtaining the extradition.

In Grand Committee, the noble Viscount, Lord Bledisloe, asked about the expense of monitoring. I do not believe that it would be significant. At present, extradition is running at the low rate of only about 50 a year. Easier proceduress may lead to more extradition cases being brought, but even so, it is difficult to imagine them being more than doubled or trebled. Many cases will be of extradition to states that have satisfactory standards; many will involve no need for interpretation; and some no need for legal aid. So we are considering only a handful of cases that will need to be monitored.

The amendment is justified for several reasons. First, it emphasises the need for a fair trial in the requesting state. Secondly, where there is doubt about the process, it means that the person is given a specific promise that he will receive procedural fairness in the requesting state. Thirdly, it means that people who are accused of serious crimes cannot escape trial because general standards in the requesting state are not what they should be. Finally, it is likely to shorten the argument about Clause 21 issues at extradition hearings in the United Kingdom.

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So the amendment has significant advantages in all directions—except for the alleged criminal who is simply trying to defer or avoid his extradition to a particular state. I beg to move.

4.45 p.m.

Baroness Anelay of St Johns: My Lords, I support the amendments, which are also in my name, and, following the admirable brevity of the noble Lord, Lord Goodhart, in supporting my previous amendment, I shall also seek to be brief. I merely say that these are important safeguards to be included in the Bill. We agree that they would not assist people who are merely trying to delay proceedings.

Viscount Bledisloe: My Lords, I share the view of the noble Lord, Lord Goodhart, that this is an important matter. It is not only a question of countries that at present may not provide the full requirements of a fair trial. We are inclined to forget that the regimes of countries that may be recognised under the Bill may change. Germany in the 1920s may well have been recognised for these purposes. Germany by the mid-1930s would hardly have been so suitable, but I suspect that it would have taken a considerable time before our Government had tabled a statutory instrument to "disrecognise"—if that is the right word—Germany.

However, I do not agree with the noble Lord, Lord Clinton-Davis. In such a matter it is important to state such provisions in the Bill. That is why I supported the previous amendment moved by the noble Baroness, Lady Anelay.

We must remember that counsel preparing for a case in the Court of Appeal or the House of Lords ought of course to look up the convention and such documents and bring them to the court's attention. However, a hard-pressed solicitor asked to go to the magistrates 24 hours beforehand to deal with an extradition matter would like to have all the information in one book, which will probably be all that he has time to grab off his shelf before leaping into his car to go to the court. Important matters such as this should be written into such a Bill.

I am also concerned with two aspects of the amendment's drafting. First, proposed new subsection (2) states:

    "the judge may accept a written assurance".

Does the noble Lord, Lord Goodhart, intend that he should be entitled to disregard that written assurance and that the "extraditee"—if there be such a nauseating word—is entitled to bring evidence that, notwithstanding the written assurance, he will not be treated fairly?

Secondly, I am also unhappy that there should be an obligation on the Secretary of State to make arrangements to monitor every case in which the procedure is adopted. There might be many cases where he knows that what may be a lengthy trial will go forward. It should be left to him to decide whether to monitor; therefore, subsection (4) would have to be amended slightly. I agree, however, that where the

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Secretary of State finds that countries are making such declarations but not honouring them, it is important that the matter is brought to court.

If the noble Lord, Lord Goodhart, thinks that there is force in any of those points and wishes to bring the matter back at a later stage, I will support his amendment in principle.

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