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I hope that I set out fully the Government's position in relation to the forum in my letter of 19 October, but in view of the discussion we have now had, perhaps I should briefly outline some of the salient points. I have to tell the noble Lord that I have not had the advantage of reading the Liberty briefing and I tremble to tell him that I do not have the tome by my bedside at night. I daresay that if I wish to sleep a little more easily, I should buy one immediately.

My first objection to the introduction of the forum bar to extradition is that, in the light of the terms of the Extradition Act 2003, such a bar is unnecessary. That is because our extradition legislation already makes it absolutely plain that in any case where someone is being prosecuted in the United Kingdom, these domestic proceedings must always take precedence over extradition, as has already been alluded to by my noble friend. In any case, where independent prosecuting agencies decide to bring a case against someone in the United Kingdom, the domestic prosecution operates to bring an immediate and automatic halt to extradition proceedings.

In view of the fact that the Extradition Act 2003 makes it so clear that domestic criminal proceedings will always take precedence over extradition, the only circumstance in which the proposed forum bar would

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come into play would be in a case where no UK proceedings had been commenced. In practice, this would mean that in many cases the judge in extradition proceedings would be asked to second guess a decision as to prosecution made by UK prosecutors. This is unnecessary and has potentially dangerous consequences. Not only would this approach sit uncomfortably with the traditional roles of prosecutors and the judiciary, it would mean asking judges who are not familiar with making prosecutorial decisions to take account of the large volume of evidence routinely considered by prosecutors. It would also mean that judges would need to consider practical issues bearing on prosecutions, such as witness availability, not only in the United Kingdom but also in the state requesting extradition. Where prosecutors have decided that a case should be tried in country A rather than in country B or C, it is not proper for a judge to second guess that decision.

In Committee we referred to the multinational cases that we now have to deal with together, where not only one or two countries make the decision but where perhaps 10 different countries may be engaged in one case. It has to be a decision between the prosecutors as to which part could most conveniently be prosecuted in which jurisdiction-sometimes it has to be done sequentially-and it would be impossible to get the necessary degree of acuity and precision if we are going to interdict the international and global nature of the criminal activities of some of the new criminal families, who are as large, if not larger, than some multinationals. If we are going to give them a run for their money, prosecutors will have to be fleet of foot and work together in union to make sure that they prosecute that which should be prosecuted. One example of this kind of co-operation can be found in the protocol for handling criminal cases with concurrent jurisdiction agreed between the Attorneys-General of the United Kingdom and the US in January 2007, in which my noble and learned friend Lord Goldsmith participated.

I hope the noble Lord will concede that his amendment is misconceived. Time has moved on. The unity of purpose between prosecutors globally is an essential part of our attempt to interdict the new form of crime. To reintroduce forum in a way that would disable us from doing that job as effectively, as efficiently and now as successfully as we have demonstrated it can be done would be a grave loss to the people of our country. I am confident that the noble Lord would not wish that to occur. I therefore invite him, after the joy of the further discussion we have now had, to withdraw his amendment.

Lord Thomas of Gresford: My Lords, I am entirely familiar with international crime: how it moves across boundaries, how the European arrest warrant works in practice and how extradition works worldwide. I do not need to be told about that.

It would not be difficult for a prosecutor to go before a judge and say, "We have had discussions with prosecutors in six countries and we have come to the conclusion that the bulk of the evidence lies in this place and it is more convenient for it to be tried there". The only difference is that the defence would have an opportunity of making representations and of being

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heard. The defence might be able to say to a judge, "Well, they have come to this conclusion behind closed doors but, in the interests of justice, there are broader considerations".

When you come to Gary McKinnon, you are not dealing with an international conspiracy; you are dealing with a young man suffering from Asperger's disease who has significant problems. He is not part of a ring. There is a straightforward issue. Do we protect vulnerable British citizens in the interests of justice or do we not? The courts of this country have been invited by the prosecution to extradite people to the United States to face charges that are not criminal in this country. I refer in particular to the Ian Norris case and Morgan Crucible; in that case, the charges related to price fixing. The matter was quashed in the House of Lords, so he was extradited on obstruction of justice charges. No doubt that was the result of somebody going to a judge in America with information, getting a warrant, bringing it over here, putting it in front of a magistrate or district judge and saying, "There you are. No matter what the House of Lords has decided about your previous decision, we've got him on this, you can't question it and he can't challenge it".

We on these Benches are concerned about the protection of our citizens. I am talking not just about the United States but about putting our citizens in front of a judicial system in another country that may be biased against them and where they have no possibility of a fair trial. We feel that the Government have a role to prevent that. Because we take this view on principle, I shall seek the opinion of the House.

5.46 pm

Division on Amendment 96ZA

Contents 46; Not-Contents 68.

Amendment 96ZA disagreed.

Division No. 3


Addington, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Campbell of Surbiton, B.
Carlile of Berriew, L.
Cotter, L.
Craigavon, V.
Dholakia, L. [Teller]
D'Souza, B.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Garden of Frognal, B.
Hamwee, B.
Harris of Richmond, B.
Hooson, L.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Mawson, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Patel, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stair, E.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.

5 Nov 2009 : Column 483

Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Williams of Crosby, B.


Acton, L.
Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L. [Teller]
Birt, L.
Blackstone, B.
Bragg, L.
Brennan, L.
Brett, L.
Campbell-Savours, L.
Clinton-Davis, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gavron, L.
Giddens, L.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grenfell, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Lea of Crondall, L.
McDonagh, B.
McIntosh of Haringey, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Masham of Ilton, B.
Massey of Darwen, B.
Morgan of Drefelin, B.
Morris of Yardley, B.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Puttnam, L.
Quin, B.
Rosser, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Simon, V.
Snape, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Young of Norwood Green, L.
5.57 pm

Clause 78 : Security planning for airports

Amendment 96A

Moved by Lord Bradshaw

96A: Clause 78, page 97, line 27, leave out from first "police" to end of line 28 and insert "responsible for policing the aerodrome"

Lord Bradshaw: My Lords, we now move from the esoteric to the somewhat mundane, although it will perhaps be more within the grasp of many Members of your Lordships' House. The amendment addresses the policing of aerodromes and transport interchanges. We discussed it fairly thoroughly in Committee, when I put forward various points of view, particularly from the airports which will have to pay the costs of policing and feel that they would be in an invidious position if a chief constable were able unilaterally to impose a level of policing and the costs on the airport, and the airport authority was bound to pay.

On the jurisdiction of the British Transport Police in the vicinity of transport interchanges, the Minister has assured me that there will be a review of policing next year, including the taking of proper soundings from the authority, the force and elsewhere. It was very nice of him to add that such a review would allow him to take account of my own views. I beg to move.

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Lord Skelmersdale: My Lords, I am glad that the noble Lord, Lord Bradshaw, has approached the amendment in the way that he has, because I must admit that I was somewhat surprised to see it on the Marshalled List given the detail into which the Minister went in Committee. I am now satisfied that, as drafted, the arrangements are sufficiently flexible to allow the British Transport Police to be a member of the groups in question. I am also grateful for the assurance that the Government gave in Committee that they will continuously monitor arrangements to see whether they need to be changed.

It would be useful to have further thoughts from the Minister on Amendment 100A and the "extensivity", perhaps-I cannot think of the word-of the British Transport Police.

6 pm

Lord Berkeley: My Lords, we discussed this issue in some detail in Committee, and I was not that satisfied with the answer that my noble friend gave. I argued strongly that it would be useful for airports to be able to get more than one quote for policing services. We also argued that BTP should be able to bid for operating in airports, because being called British Transport Police meant that it could do something other than policing railways, which is the maximum scope of its activities at the moment. Since then, I have received a copy of my noble friend's letter to the noble Lord, Lord Bradshaw, proposing a review of the BTP and its scope and role, which goes a good long way to satisfying my concerns. I am very grateful to my noble friend for making this possible and look forward to the pressure starting.

Lord Faulkner of Worcester: My Lords, I am most grateful to the three noble Lords who have spoken in this very short debate, which I do not intend to prolong. As others have said, the British Transport Police and its jurisdiction was discussed at some length in Committee, so it is not sensible to reopen the debate now. I confirm to the House that I wrote to the noble Lord, Lord Bradshaw, this morning to say that, in accordance with the standard procedures for non-departmental public bodies, a quinquennial review of the British Transport Police Authority will take place next year. The question of the BTP's jurisdiction, including whether there could be a role for the force to play in the future of airport policing, will be considered as part of the forthcoming review. I have made copies of my letter available to the opposition Front Bench, to my noble friend Lord Berkeley who spoke in the debate, and to the noble Lord, Lord Bradshaw, and I shall see that a copy is placed in the Library of the House. I hope that, in view of those remarks, the noble Lord will feel able to withdraw his amendment.

Lord Bradshaw: I thank the Minister for his remarks and I beg leave to withdraw the amendment.

Amendment 96A withdrawn.

Amendments 96B to 96E not moved.

5 Nov 2009 : Column 485

Amendment 97

Moved by Baroness Neville-Jones

97: Before Clause 80, insert the following new Clause-

"Retention of voluntary samples

(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) (photographing of suspects etc) insert-

"64B Retention and destruction of samples etc

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) shall not apply-

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where section 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until either the lapse of any applicable appeal period or a decision is made not to appeal such proceedings, whichever is the earliest.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7), the sample and any information derived therefrom shall be destroyed no later than-

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived thereform.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where-

(a) an application under subsection (3) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where-

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2), the sample and any

5 Nov 2009 : Column 486

information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of samples: residual power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that-

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(5) At the end of section 113(1) insert-

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.""

Baroness Neville-Jones: My Lords, this amendment concerns the National DNA Database. In Committee, in response to considerable criticism from many quarters, the Government withdrew the provisions allowing them to amend the rules and procedures of the DNA database by means of secondary legislation. We supported them in that act. Those clauses would have established no timetable for the implementation of any changes, would have exposed a crucial piece of our criminal justice system to long-term inconsistency and uncertainty, and would have given Parliament no chance to do anything but approve any Statutory Instrument that the Government finally saw fit to produce. Such a way forward was clearly unacceptable to the House, and I am extraordinarily glad that the Minister drew that conclusion.

However, leaving the entire question to the next Session, as the Government are trying to do, is equally unacceptable. The Government claim that they have run out of time to insert proper primary legislative provisions. In our last debate on the matter, the Minister said that he felt that the Government were damned if they did and damned if they did not. The truth is that the consultation on this has been considerably longer than he made out then.

I remind noble Lords that the Marper judgment was a year ago, that the Government's consultation period ended months ago, and that any difficulties surrounding the detail of what they wish to implement are partly of their own making. The Government indicated in their consultation that they wanted to keep the profiles of any individual arrested, but not convicted, for six years and to keep the profiles of individuals arrested in relation to serious violent or

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sexual crimes, but not convicted, for 12 years. The Government have clearly not grasped the fundamental principle behind objections to the current system. Apart from the most exceptional cases, where a person is connected with but not convicted of a sex or a violent crime, there really can be no excuse to retain the profile of an individual who has not been convicted. Even in those exceptional cases, where there is a genuine case for retaining people's profiles despite the absence of conviction, the Government's recommendations are at odds with the evidence. We know that repeat offending is likely to take place within the comparatively short period of up to five years.

My amendment would replicate in England, Wales and Northern Ireland the same system that has been running successfully in Scotland for three years. Not only is that system well established, it has been scrutinised, reviewed and consulted upon, and it has proved its worth. It also meets the requirements of the European Court of Human Rights ruling and is, frankly, more effective than its larger counterpart here in the south. The Government's own reports identify that the Scottish database has a higher success rate in matching profiles taken from crime scenes to profiles on the database, at a rate of 68 per cent as compared to 52 per cent. It is also well known that the number of detected crimes in England and Wales in which a DNA match has been available has fallen year-on-year, despite the fact that the National DNA Database holds more profiles than the Scottish database and is growing with every month.

What accounts for that difference? As I have said, the Scottish system is in keeping with the criminological data on reoffending, which show that repeat offending is likely to take place within a comparatively short period. That evidence has been used in the context of serious crimes to determine the retention, for a limited period, of samples from individuals who have had a connection with a crime, even if they were not convicted. It is clear that here is a tried and tested system which is immeasurably better that the one currently in operation in England, Wales and Northern Ireland. We should implement it as soon as possible. To put off resolution of this issue yet again would be wrong.

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