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The noble Lord said: My Lords, I shall speak to Amendments Nos. 50, 51, 52, 53 and 54. These amendments seek to address the concern raised by the noble Baronesses, Lady Falkner and Lady Miller, during the previous stage of the Bill in respect of notification
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We have therefore now tabled these amendments which mean that a notification order could not be made if the court considering the application for the order was satisfied on the balance of probabilities that the foreign conviction, which is the basis for the application, was obtained as a result of a flagrant denial of the person’s right to a fair trial. The term “flagrant” is not the usual kind of language found in a UK Act of Parliament. The concept of a flagrant denial of the right to a fair trial derives from case law of the European Court of Human Rights in Strasbourg and is to be read in these amendments as having the same meaning that it is given by that jurisprudence. In other words, it is a legal term of art, which is to be read as having a technical legal meaning, rather than being construed by reference to the dictionary.
We have decided upon this flagrant denial test, which originates from the Strasbourg court, because we believe it to be likely that a court applying the test will find that it captures not only cases where torture evidence extracted from the defendant was central to his conviction by the foreign court, which was the concern highlighted by the noble Baronesses in Committee, but also other cases where the defendant has in effect been completely denied the right to a fair trial in the foreign state. However, equally, this test will not cover every breach of what we recognise as constituting a right to a fair trial in this country. We cannot seek to impose our precise standards of justice on every other state in the world. So where, for example, hearsay evidence, which would not be admissible in a criminal trial in England, has been part of the foreign trial, or even where the defendant was not given such unfettered access to his lawyer as he would have been given in this country, that alone will not be sufficient to prevent a notification order being made.
It will be for the court in each case to decide on the particular facts whether the denial of a fair trial was a flagrant one. But rightly, as I have just said, not every breach of the Article 6 right to a fair trial will meet this test. As has been recognised in Strasbourg, the European Convention on Human Rights does not undertake to guarantee to people throughout the world the rights enshrined in that instrument. What is at issue here is what scrutiny of the foreign conviction it is appropriate for a UK court to undertake before it may act in reliance on that conviction to impose the notification requirements.
The correct test for such scrutiny is that which has been set down in ECHR case law as the “flagrant denial” test. That is the test that is applied in the context of states which are party to the convention wishing to deport or extradite persons to non-contracting states, or wishing to take action on the basis of decisions by courts in non-contracting states where it is alleged that the person faces or suffered an unfair hearing there.
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The European Court of Human Rights has established the test that such action is prohibited where the person has suffered or risks suffering in the non-ECHR state a flagrant denial of the right to a fair trial. For example, in the case of Saccocciav Austria2007, Austria had sought to enforce a forfeiture order made by a foreign court, but the applicant complained that the foreign court had acted in breach of his Article 6 rights in imposing that order. The European Court of Human Rights confirmed that in such cases, the duty of the state which is party to the convention does not consist in examining whether the proceedings before the foreign court complied with Article 6 of the convention, but whether the Austrian courts, before authorising the enforcement of the forfeiture order, duly satisfied themselves that the decision at issue was not the result of a flagrant denial of justice.
As I mentioned previously, it will quite properly be the responsibility of the court to decide what constitutes a flagrant denial on the facts of each case, as is the case in deportation and other relevant contexts. However, case law already exists both in the United Kingdom and in Strasbourg which will guide the courts considering those issues. We think it likely that the flagrant denial test will ensure that a court would not make a notification order where an overseas conviction was secured on the basis of a confession by the defendant extracted under torture.
On the burden of proof for this test, it will be for the person to raise the issue that they suffered a flagrant denial of their right to a fair trial in the foreign state. They will have to produce sufficient evidence to raise that issue; it cannot be a totally unfounded allegation. Once the issue has been raised, however, it will be for the court to be satisfied on the balance of probabilities that the foreign trial did not constitute a flagrant denial of the right to a fair trial before it may impose a notification order, provided that the other conditions are met.
The amendments we are bringing forward will also mean that the High Court, or the Court of Session in Scotland, will hear the notification order proceedings, rather than a magistrate’s court, as provided for at present. That is because we consider that the High Court is better placed to deal with the consideration of whether there has been a flagrant denial of a person’s right to a fair trial abroad in cases where that issue is raised. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, I am extremely grateful to the Minister for tabling the amendments, which so much meet the concerns that we expressed in Committee, and for fashioning them so that they are based around case law, which will be very helpful. I am further grateful to him for giving such a full explanation, which will be very helpful to everyone interested in this extremely important issue.
On Question, amendment agreed to.
Lord West of Spithead moved Amendments Nos. 51 to 54:
51: Schedule 4, page 73, line 13, leave out from “made” to end of line 14 and insert “to the High Court”
52: Schedule 4, page 73, line 21, leave out from “made” to end of line 31 and insert “to the Court of Session”
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53: Schedule 4, page 73, line 39, leave out from “made” to end of line 41 and insert “to the High Court”
On Question, amendments agreed to.
Schedule 6 [Notification requirements: application to service offences]:
Lord West of Spithead moved Amendments Nos. 55 to 61:
55: Schedule 6, page 80, line 34, at end insert—
“Service offences: persons to whom notification requirements apply3A The notification requirements apply to a person who—
(a) is aged 16 or over at the time of being dealt with for a service offence to which this Part applies, and
(b) is made subject in respect of the offence to a sentence or order within paragraph 4 (sentences or orders triggering notification requirements).”
58: Schedule 6, page 80, line 41, after “imprisonment” insert “or detention in a young offender institution”
59: Schedule 6, page 81, line 1, at end insert “section 71A(4) of the Army Act 1955 or the Air Force Act 1955, section 43A(4) of the Naval Discipline Act 1957 or”
61: Schedule 6, page 82, line 4, leave out sub-paragraphs (1) to (3) and insert—
“(1) The period for which the notification requirements apply is—
(a) 30 years in the case of a person who—
(i) is aged 18 or over at the time of conviction for the service offence, and
(ii) receives in respect of the offence a sentence within sub-paragraph (2);
(b) 15 years in the case of a person who—
(i) is aged 18 or over at the time of conviction for the service offence, and
(ii) receives in respect of the offence a sentence within sub-paragraph (3);
(c) 10 years in any other case.
(2) The sentences where a 30 year period applies are—
(a) imprisonment or custody for life,
(b) imprisonment or a custodial order for a term of 10 years or more,
(c) imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (c. 44),
(d) detention during Her Majesty’s pleasure.
(3) The sentences where a 15 year period applies are imprisonment or a custodial order for a term of 5 years or more but less than 10 years.”
On Question, amendments agreed to.
Lord West of Spithead moved Amendment No. 61A:
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