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Earl Russell: Human error is always with us. With that in mind, I shall take the Minister back to a question that is a little more central: what constitutes "a reasonable excuse" for destroying a document? First and foremost, where does the burden of proof rest in arguing that there is a reasonable excuse? Secondly, I would welcome slightly more clarification of what type of excuse will be regarded as reasonable. Does the Home Office understand that refugees tend to come from a world in which it is simply dangerous to be oneself, without any further action?
I was interested to hear the case, advanced by my noble friend Lord Avebury, of the person who manages to obtain an exit document by corruption, because I happen to have come across exactly such a case among my pupils. She was Cambodian by birth and is now a distinguished member of the US Department of Justice. Her mother succeeded in bribing Pol Pot's guards with a large collection of her jewellery in order to secure the papers that allowed her out of the country and safely into the United States. It would obviously have been an ungenerous return for those people to leave them to the tender mercies of Pol Pot for having done what they had done, so the temptation to destroy such a document would be strong. She was only seven at the time. I did not cross-examine her on those matters; I do not believe that she knew all the answers. However, let us assume for a moment that her mother destroyed such a document. Would the Minister regard that as a destruction done with reasonable excuse?
Lord Clinton-Davis: An impossible burden is being placed on my noble friend. She cannot list all the possibilities of what is reasonable and what is not. That is why I said that the immigration officers should be properly trained. That is an important part of the way that the clause is administered. However, to place on the Minister the burden of showing that all the devices that may be used have to be reasonable is to ask the impossible. It is vital that the immigration officers should be sympathetic when they approach their task. However, it is for them to decide how the clause should be administered. If they behave unreasonably, there should be recourse to the courts, but to place on my noble friend the burden of signifying what is reasonable and what is not is to ask the impossible.
Baroness Scotland of Asthal: May I respectfully agree with my noble friend? The whole point of "a reasonable excuse" is to allow us latitude in which to consider the various excuses that may be given. Noble Lords will appreciate that those will be different in virtually every circumstance that we encounter. The Bill sets out those excuses that we do not consider to be reasonable, but I have also tried to make clear to my noble friend and to the noble Baroness, Lady Anelay, what would constitute a reasonable excuse; for example, those who have never had any documents and may, as the noble Earl, Lord Russell, indicated, have been deprived of an opportunity of having such documents.
We shall speak about "reasonable excuse" when considering the amendments of the noble Lords, Lord McNally and Lord Avebury, which follow the amendment before us. We shall discuss the issue at greater length then.
Baroness Carnegy of Lour: Will the Minister confirm to the House that the Government have not ruled out the kind of arrangements that my noble friend has suggested in her amendment? Without going into the possibilities of photography, will she agree that the clogging effect of having to return to their owners documents that the carrier has brought to this country could be worthwhile? It might not be any greater than the clogging effect of obtaining the photographs in the first place. That idea should not be ruled out. Will the Minister reassure us of that? I realise that she has provided sensitive answers to many questions—and I was greatly relieved to hear them—but will she explain the mechanical issue of how people should be prevented from destroying their papers?
Baroness Scotland of Asthal: Of course I hear what the noble Baroness, Lady Carnegy, says on this issue. I tried to be very careful in responding to the suggestions made by the noble Baroness, Lady Anelay, and to appreciate why she makes her suggestions. She is seeking a clear exposition of those circumstances which may preclude someone relying on a reasonable excuse and she is seeking greater clarity. I understand that, but in responding as I did, I tried to explain in relation to each amendment why we thought that the way in which those amendments were put did not inure to the advantage of the system.
We have not ruled things out in terms of development in the future, but we can say that, as of today, the suggestions made in those amendments do not appear to add greater value than that which we already have, both in this section and in relation to Clause 11. I hope the noble Baroness will understand why I say that.
I also accepted that the noble Baroness was quite properly probing to make sure that we had clearly set out the parameters within which we sought to work, and I hope I will have satisfied her on that, too.
Baroness Anelay of St Johns: It might be helpful if I address the technical issues, because I certainly do not like to upset the noble Lord, Lord Avebury, with the way in which matters are grouped.
He was concerned again about Amendment No. 13. It was unlucky 13—it should never have been there, as I sought to explain earlier on. The Public Bill Office quite simply tabled the amendment in the wrong position in the first place, and put it after Clause 2—which made it Amendment No. 13. They apologised to me, but it was only brought to my attention by my noble friend, Lord Kingsland, first thing on Friday morning. He happened to be in the House; I was not. I then, therefore, would not have seen the Marshalled List until it appeared on the website. I checked on Wednesday with the Public Bill Office that instead of
after Clause 2 it appeared before Clause 2, because it seemed—as night follows day, or as day follows night—that you talk about how people get here before the fact that they have got here. I give way to the noble Lord—it seems we are taking up the time of the House, a heck of a long time on rather a minor matter.
Lord Avebury: I apologise for interrupting the noble Baroness, but the right place to take in her amendment was with Clause 11, which deals with carriers' liabilities.
Baroness Anelay of St Johns: After consultation with the carriers, I put the amendment where it is because I wanted to make clear, as I said in my opening remarks, that I in no way at all wish to draw any attention to any imperfection in Clause 11, because I am not going to amend it. I give that undertaking now and throughout the Bill. We are talking about a probing amendment where the carriers themselves are very keen to signal that they do not wish to undermine what the Government are trying to do.
Of course, like other noble Lords, when I am briefed by outside organisations I do not always do what they say. I do not always do what they do not say, but I do take their advice into account. They certainly want to make it clear that they are very much on the side of the Government on this but concerned about the process, the actual administration.
So that is how the grouping arose. The noble Lord, Lord Avebury, also correctly asked why, with the Unstarred Question coming up, I did not leave this until the UQ. That is a good question. The simple answer is that I tabled the amendment long before the UQ date was fixed. I checked back with the carriers after that to see if they still wanted to go ahead. They did because, as they pointed out, an Unstarred Question will be one hour. My noble friend, when he comes to respond to put our points, may perhaps only get three minutes. We have had more than that. It was the right opportunity within the context of this Bill to press ahead with some of the questions and I am very grateful indeed to the Minister for the care with which she has sought to address them. I will certainly look carefully at her answers. As she said herself, it is a moving issue because the Government are continuing to have discussions with the carriers and technology is developing.
The noble Lord, Lord Clinton-Davies, raised the interesting point about training from the point of view of the IND. The Minister pointed to later parts of the Bill, when we talk about training or advice from the DPP on the legal issues. Certainly I will look further at the point made by the noble Lord because his remarks have made me think about training in operating the technical equipment because one of the issues of which I am aware is that even if the IND has a digital photo, somebody is still going to have to scroll through them to identify undocumented passengers—an exercise, we are told, which will be hugely time-consuming and open to significant human error. That is before the inbound passengers have cleared immigration in the UK. Already the 150 resolution which is currently in our passports is not adequate for this purpose, which is why
we are moving to a resolution of 300 by the middle of 2005. So I think the noble Lord, Lord Clinton-Davies, in his question opened up a whole new can of worms that I will need to think about between now and Report stage.I will refer back to the carriers' organisations just to see if there are any further issues they wish to address, and I will myself carefully consider what the noble Baroness said. She referred at one point to the fact that one needs to know that the person has the same passport at beginning and end. One of the issues is that people can get on to an aircraft with a different document from that which they presented at the check-in desk, and while they are on the aircraft they can swap it again for another piece of documentation. So one needs to be able to track what documents they have throughout the system.
With regard to Amendment Nos. 2 and 5 concerning the defence of reasonable excuse, I am grateful to the noble Baroness for the assurance that she gave in response to my amendments. I am very much aware that that will continue to be a matter of great debate in respect of other amendments. However, with regard to Amendment No. 4, which derived from the concerns of the Refugee Children's Consortium on the matter of dependent children travelling with adults, she gave a very full answer. I will not only consider this myself, but refer back to the RCC to see whether it feels that that has fully addressed its concerns. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Entering United Kingdom with passport, &c.]:
4.15 p.m.
Lord Avebury moved Amendment No. 1:
- Page 2, line 2, leave out "does not have with him" and insert "has, without reasonable excuse, destroyed or disposed of,"
The noble Lord said: My Lords, provided there have been no more eleventh hour changes in groupings, I shall move Amendment No. 1. In moving the amendment I shall also speak to Amendments Nos. 7 and 10. Before coming to the detail of these amendments, and the others in Clause 2, I shall make some further, general observations about the clause, about the large numbers of people who arrive in the UK without proper documentation and about whether the best means of dealing with the matter is by prosecuting the passengers.
We acknowledge that there are a large number of people arriving without documents at UK ports of entry, and that it presents immigration authorities with a serious and growing problem. We were told in Sub-Committee F by the Immigration Service that there were 4,260 in 2001, 10,694 in 2002 and 8,032 in the first three quarters of 2003. Those figures concealed a very remarkable switch of undocumented passengers from Waterloo to other ports of entry following the introduction of juxtaposed controls on Eurostar. That resulted in a 90 per cent reduction in the numbers arriving at Waterloo. It looks as though similar controls now operating at other channel
ports—which were debated by your Lordships in June 2003—will have the same effect as on new arrivals at Dover.However, the fully juxtaposed control scheme at French Channel ports was not expected to be in full operation until February this year, according to the former Minister when she gave evidence to the Home Affairs Select Committee last October. There were at that time further such controls envisaged at Ostend, Zeebrugge, and Brussels Gare du Midi. It would be useful to know from the Minister what progress had been made with those initiatives.
The effect could be that passengers who would have taken rail or sea routes are now arriving mainly by air, and particularly at the four Heathrow terminals. If that is so, we cannot say that the juxtaposed controls have been entirely successful. They may not have decreased the number of undocumented passengers who are actually an increasing proportion of asylum seekers generally; they may simply have diverted the flow to ports of entry where the controls do not apply. We shall not know until we see the figures for undocumented arrivals for the second quarter of 2004.
As Mr Bill Jeffrey said, at the hearing that I have just mentioned, the principle underlying juxtaposed controls—that it is better to stop people from embarking on a journey to this country when they do not have the necessary documentation—applies to air travel just as much as to sea travel. IND staff were operating at airports throughout the world to ensure that carriers fully understood the need to verify that passengers were in the possession of correct documentation.
There are two further initiatives to deal with the problems, apart from those that were discussed under the previous amendment. One is Eurodac, a computerised system of fingerprinting asylum seekers, to which I shall refer in more detail under a later amendment. The second is the use of biometric and data controls, first piloted in Colombo and now extended to east African countries except for Kenya, which were discussed by noble Lords in the debate on Immigration (Provision of Physical Data) (Amendment) Regulations 2004 on 24 February. We heard then that there was a steep reduction in the number of applications from Sri Lanka following the introduction of the pilot scheme there. Presumably, there would be a similar effect in east Africa, although it might be easier there to evade the controls by coming here via Nairobi. We all know that Somalia is the principal generator of asylum seekers, and has been for several quarters. It is possible that Somalis might merely go to Nairobi and take an aircraft from there to evade the controls imposed elsewhere in east Africa.
It is in the context of those initiatives that we should consider whether it is fair and proportionate to create a new offence of an asylum seeker not having an immigration document that is in force, or not having a document that satisfactorily identifies him, his nationality or his citizenship. That catches not only those who destroy or dispose of the document but also people who produce a document belonging to someone else, a document obtained by deception or a forged document.
In answer to Question 825 from the Chairman of the Select Committee in another place on 19 November 2003, the then Minister confirmed that a person with false documentation was not committing an offence, although I cannot see how the clause as drafted could never be given that interpretation. She said that the intention was to catch,
- "people who deliberately destroy their documents".
In passing, I refer to the particular case of Zimbabwe, of which the Minister is well aware. Obviously, people cannot get documents from the Mugabe regime if they want to leave the country, so they flock to the neighbouring states, especially to South Africa, and obtain documentation in South Africa, which may be genuine but apply to someone else, or may be forged or provided by some corrupt means through the normal passport system. In any case, very large numbers are arriving from those states with documentation that may appear to be correct but which does not apply to them. Will the Minister assure me that special treatment will be given to people who say that they are Zimbabweans and that they will not be fast-tracked until it is definitely established one way or the other what their nationality is? There are means of doing that. I have asked that question in writing but did not get a very satisfactory answer.
The Select Committee said that it understood the intention behind the new measure and that it was important to strike at the illegal facilitators and to discourage the deliberate loss or destruction of valid documentation. The IND has been successful in linking 84 per cent of arrivals at Heathrow back to the flight of arrival, and it has introduced better surveillance methods in restricted zones of the airport so as to target the facilitators. Presumably, criminals may employ agents to retrieve the documents from their clients at some location before the immigration check so that they can be used again. Better security on the air side should not only reduce the undocumented arrivals but ensure that the facilitators are caught and prosecuted. What Clause 2 actually says is that the passenger,
- "commits an offence if . . . he does not have . . . an immigration document which . . . is in force, and . . . satisfactorily establishes his identity and nationality or citizenship".
It is not clear under what circumstances the presentation of a false document of one kind or another will immunise the person against being charged with a criminal offence. As ILPA has pointed out, initially it is for an immigration officer to decide whether the excuse given for presenting a false document is reasonable. In most cases, the passenger will have obtained a document through an agent, but there may be very good reasons why he needs to keep quiet about that. My noble friend Lord Russell mentioned a particular case in the debate on the
previous amendment. The agent may be able to retaliate against family members in the country of origin if his activities are exposed, or he may be unwilling to help other family members still at risk in that country.The same considerations apply when the person has returned the document to an agent, or destroyed it. He is very unlikely to know that he is risking a two-year prison sentence and, if the circumstances of the case are such that it would be unreasonable to expect non-compliance with the facilitator's instructions, affording him a theoretical excuse under subsection (7)(b)(iii), the nature of those circumstances may make it even more hazardous for him to reveal them. We shall have the opportunity to discuss that matter in more detail when we come to Amendment No. 8.
In those circumstances, shifting the burden of proof on to the defendant in subsection (1) is unconscionable. The least that should be done is to mitigate the effect of the clause as a whole in order to rectify that anomaly, replacing,
- "does not have with him",
- "has, without reasonable excuse, destroyed or disposed of".
Under our Amendment No. 1, the prosecution would have to prove, first, that the passenger destroyed or disposed of the document and, secondly, that he did so without reasonable excuse. Proving those matters beyond reasonable doubt will make it more difficult to secure convictions, but that is as it should be, when the offence carries a maximum of a two-year prison sentence, which can exclude the person from consideration under the convention. That is the purpose of Amendment No. 1.
Amendment No. 7 probes the Government's intention with regard to children under the clause. First, we need to be clear whether subsection (1) can apply to an unaccompanied child. The Refugee Children's Consortium is under the impression that an unaccompanied child, without documentation, could be prosecuted. The subsection does not specifically say that it is confined to adults. Under subsection (2), which relates to a dependent child travelling or living with an adult, the legislation does not say that the child has to be dependent on that particular adult, but the wording is ambiguous.
The child might be travelling with someone who has been put in charge of him purely for the flight. One can imagine a situation such as I have mentioned already, in which genocide is developing in the country of origin—in Rwanda, for example. The parents might have brought their child to an airport and placed her in the care of a stranger just to get her out of the country. Considering how the international community ignored the Rwanda genocide at the time, the adult performing that humanitarian service should not have risked prosecution.
Amendment No. 10 is intended to shift the burden of proof for prosecutions under Clause 2 back to the prosecution. There was a good deal of discussion in
the Commons Standing Committee of the unfairness of the standard and burden of proof for the new Clause 2 offence. In her letter to the Committee, on 14 January, the then Minister quite properly cited the case of Carr-Briant as authority for the proposition that when the legal burden in a criminal case is on the defence, the standard cannot be higher than the balance of probabilities. However, that did not answer the question whether the burden should have been laid on the defence in the first place.In the same letter the then Minister refers to the comparison made in Committee with defences such as self-defence in which, as she says, the burden on the defence is merely evidential. But Blackstone's Criminal Practice explains—in the 2002 edition cited by the Minister and in the current 2004 edition—that unlike the legal burden, that is not in fact a burden of proof at all, but the requirement that the defence adduce sufficient evidence to satisfy the judge that the defence raised should be properly laid before a jury. It is settled law that in such cases the legal burden of disproving the defence rests on the prosecution to the standard of beyond reasonable doubt. The authority cited for that by Blackstone is Lobell.
The Minister went on to assert the obvious, that the burden in Clause 2 rests with the defendant, but without offering any explanation why that should be so. We believe that that is disproportionate; that it is inconsistent with the law in other criminal cases; and that it is inconsistent with the convention itself. I beg to move.
4.30 p.m.
Lord Clinton-Davis: I am rather unhappy about the possibility of engaging in semantics. Although I have a great deal of sympathy with the argument that the burden of proof should rest on the prosecution, I am very aware of the possibility that it is a very easy burden of proof. After all, the prosecution simply need to prove that the defendant behaved irresponsibly. In other words, we are engaging in an exercise that is not real. In my view it is important that the defendant knows, or should know, what went on and no one can argue against that. When a defendant has wantonly destroyed documents, the burden of showing that he or she behaved reasonably in those circumstances should rest with the defendant.
I am troubled by the whole argument. Perhaps my noble friend will be able to describe more emphatically what has gone on in the mind of the Government in relation to this issue. The noble Lord who introduced the issue has not addressed the problem. It is a very real problem. Therefore, I invite my noble friend to discuss the issue in more depth than we have done so far.
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