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Baroness Anelay of St Johns: I thank the Minister for his response. It was helpful of him to say something about Eurojust. I am aware that one of the underlying difficulties in this matter is that we have to take so much on trust and we have to respect each other's systems. Eurojust plays a key part in building up that trust.

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In preparing for this Committee I read the report of the European Union Committee of this House on the prospects for the Tampere special European Council. It made the point that at that stage the Home Office memorandum argued that public opinion is not yet always ready to accept that the judicial authorities and procedures of other member states are equivalent to our domestic courts, especially when our own nationals are involved. The committee agreed with that analysis. That is a difficulty. There has been an underlying suspicion of the validity of each other's procedures and Eurojust is an important body in trying to build up confidence. We need to accept that other bodies also are relevant. Today the Minister did not indicate any future bodies that may be involved.

I entirely accept what the noble and learned Lord said with regard to the amendments on urgency. There are occasions when flexibility can be acceptable even to the Opposition, and this is such a case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

Clause 8 agreed to.

Clause 9 [Use of evidence obtained]:

Baroness Anelay of St Johns moved Amendment No. 28:


    Page 6, line 20, leave out "allowed" and insert "made provision for"

The noble Baroness said: Amendment No. 28 concerns admissibility in the United Kingdom courts of evidence that has been obtained overseas after a request under Clause 7 of the Bill. Subsection (4) requires a court, in exercising its discretion to exclude such evidence, to have regard,


    "(a) to whether it was possible to challenge the statement by questioning the person who made it, and


    (b) if proceedings have been instituted, to whether the local law allowed the parties to the proceedings to be legally represented when the evidence was being obtained".

The amendment relates to the second of those criteria and tries to clarify the circumstances in which evidence may be obtained abroad in the absence of legal representatives. That is a theme to which we shall return in relation to later amendments.

It may be that the law of the country where the evidence is obtained allows a person to be legally represented, but it may not allow him or her to be represented at public expense in the same way in which he or she would have publicly funded representation in this country, where perhaps it is more readily available than elsewhere.

The provisions of the Bill replicate those of the 1990 Act. I hope that the Minister will be able to tell the Committee something of the experience of the United Kingdom authorities and the courts in relation to the admission of evidence obtained abroad in the absence of legal representation. Perhaps he would also comment on the criteria that other countries apply in deciding whether they provide legal representation in

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such circumstances, or simply allow for it to happen some time, somewhere, somehow, but nothing more definite than that. I beg to move.

Lord Goodhart: I support the amendment. I should have declared my interests when I first spoke in Committee. I am one of the vice-chairs of the Council of Justice, a body that has submitted briefings on the Bill, and I am also a trustee of Fair Trials Abroad, an organisation with considerable interest in matters of this kind.

I certainly feel that it is highly desirable, even essential, that where evidence is taken abroad for purposes of criminal proceedings in the United Kingdom, that evidence should be subject to cross-examination by a legal representative of the accused. A point that occurs to me is whether that legal representation should be by a lawyer who practises in the United Kingdom and who, therefore, is likely to be involved in the proceedings, or whether that representation should be undertaken by a local lawyer. Matters would be a great deal more effective if they were undertaken by a lawyer from the United Kingdom who was familiar with what will happen during the proceedings and who may well appear at the trial.

If that were so, I would assume that any legal aid provided in the United Kingdom would extend to counsel appearing at a hearing outside the United Kingdom, and so the problems about whether legal or financial assistance is to be provided by the foreign countries would not arise. On the other hand, if it is envisaged—in my view this would be a good deal less satisfactory—that a local lawyer should participate in the hearing of the evidence, I suggest that it would be essential that the country should not only allow but also facilitate the provision of legal assistance.

Lord Goldsmith: I am grateful for the questions and comments raised by the noble Baroness, Lady Anelay, and by the noble Lord, Lord Goodhart. I want to remind the Committee of what this provision is about. Clause 9 deals with a situation in which Clause 7 has operated. That is to say that there is a request process for evidence to be obtained abroad for use in some form of proceedings in the United Kingdom. There is a strong likelihood that the evidence that is being obtained is not the defendant's evidence. The defendant's opportunity to give evidence will take place within the English proceedings when he will be represented in accordance with the ordinary rules, with the benefit of legal aid should he qualify.

What is more, as matters stand at present, the strong likelihood is that the evidence that is obtained abroad will not be directly admissible in that form in any event. The evidence will be obtained, and if it is evidence that it is important to put to the defendant, the likelihood is that some way will have to be found of doing that. The most likely way is to try to get that person to give evidence in the United Kingdom or via the video link procedures mentioned in the Bill. Whether such a person comes to the United Kingdom to give evidence or is examined via a video link, I

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understand that that person's legal representative would be an English legal representative or a Scottish legal representative who would be in a position to ask questions. Therefore all the proper safeguards would be met.

I understand that there may be exceptional circumstances in which legal aid for a defendant in proceedings in this jurisdiction may extend to providing certain assistance outside the country, perhaps in circumstances when some evidence is being obtained in a foreign court. Generally speaking, however, the procedure will be as I believe I have outlined.

6.30 p.m.

Lord Goodhart: I am grateful to the noble and learned Lord for giving way. Perhaps I may ask him to note that under Clause 7(2):


    "The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation".

I can understand that evidence may be used in the investigation which will not, in itself, be used in the proceedings. But clearly this contemplates that the evidence may be used in the proceedings.

Lord Goldsmith: Indeed, it does. But equally I invite the noble Lord to consider the circumstances in which evidence would be admissible when obtained abroad without there being a form of opportunity for cross-examination directly in an English trial. I am helpfully told that in the recent Wickes trial—the long-running trial which Members of the Committee will have read about—the defence counsel went to Canada when a witness gave evidence by video link. Because of the circumstances of the case, I do not believe that the defendant was legally aided, but the principle may be the same. I may be able to provide further information on this matter, but perhaps the Committee will consider what I have said and take a view as to whether more information would be helpful.

Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Goodhart, for his intervention. He has raised more matters on which I need to ask questions between now and Report so that I am clear in my mind. I believe that it would be helpful for the noble and learned Lord the Attorney-General to stand back and look at the application of legal representation in this particular circumstance.

The noble and learned Lord quoted the Wickes trial and said that it was particularly analogous to this issue. It may relate to the seriousness of the offences committed, but in the Wickes trial that was not proved. The noble and learned Lord may look rather ruefully in this case.

Certainly the Minister has given me cause to consider the matter between now and Report. It may be more helpful if I contact the Bill team and raise one or two issues with them. Following discussion, we may be able to avoid tabling an amendment on Report. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 29:


    Page 6, line 22, at end insert—


"(4A) The Lord Chancellor shall arrange for training in the law and procedure of such countries other than the United Kingdom as he considers appropriate to be given to judges and magistrates before they sit in proceedings where evidence obtained pursuant to a request for assistance under section 7 is to be adduced."

The noble Baroness said: The monologue continues at this stage. This amendment would require that training in the law of procedure of appropriate countries is given to judges and magistrates before they sit in proceedings where evidence obtained pursuant to a request under Clause 7 of the Bill is introduced. I say that somewhat tongue-in-cheek; I seek merely to elicit information about current practice.

Members of the Committee will recall the debate on a similar amendment on the Floor of the House on 23rd July, as reported at col. 289 of the Official Report, in respect of a new offence—introduced, yet again, in the Nationality, Immigration and Asylum Act—of contravening the immigration law of a member state. At that time, when explaining his reasons for rejecting my amendment, the noble Lord, Lord Filkin, said:


    "The Government do not expect judges and magistrates to be familiar with the immigration law of all other member states. New Section 25 does not require that of them. It provides for the government of the member state concerned to certify what the law is in that state and for the certificate to be conclusive as to the matters certified for the purposes of proceedings in the UK".—[Official Report, 23/7/02; col. 291.]

Basically, in English, that seemed to me to say, "They tell us. If we don't accept it, tough luck".

A similar procedure in respect of certification is to be found in Clause 14(3), but it is not in Clause 9. Therefore, no certification process is in play here and judges and magistrates will be able to look at the provisions of the local law in detail in deciding whether to exercise their discretion to exclude the evidence obtained pursuant to a request under Clause 7. Again, these provisions in the Bill substantially replicate those of the 1990 Act.

Therefore, I should be grateful if the Minister could give an explanation of how the courts have acted in considering the provisions of other countries' domestic law in this context over the past decade; that is, what the training has been and whether or not it has been found necessary to carry out any training for judges and magistrates in this regard. I beg to move.


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