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Lord Dholakia: I have one or two questions for the Minister, as these are matters of some concern. Clause 42(7) states:


or,


    "in custody awaiting trial or sentence".

One would not know whether those awaiting trial are guilty. That is a matter yet to be decided.

Subsection (5) states:


    "The circumstances are those in which it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth".

How is the Secretary of State going to determine the mental condition of an individual who has not been tried, evidence of which has not been produced in court? Would it not be wise in such cases to ensure that appropriate legal advice is available to the individual, or to a person acting on his behalf, about the consequences of such visits abroad? They may well say things abroad that could be used in evidence against them in the trial which has not yet taken place.

Lord Bassam of Brighton: It is worth reminding ourselves that the Secretary of State needs to be very mindful of the health, particularly the mental health, of prisoners before allowing them to stand trial in this country. One would therefore expect that the proper authorities here would ensure that the prisoner is fit. Given that safeguard, I think it extremely unlikely that the authorities would seek or want to see the transfer of a prisoner who was not fit to travel because of mental or physical incapacity. The key issue in relation to physical health is that the prisoner must give his or her consent. I think that that is a very important and powerful connection.

Baroness Carnegy of Lour: Subsection (2)(a), (b) and (c) of Clause 47 is equivalent to subsection (3)(a) which deals with Scotland and is so much briefer. Do those three paragraphs mean,


    "any person detained in custody",

as the Scottish provision states? In other words, are the provisions for England and Wales the same as those for Scotland? If so, why does it take so many more words to state the position in England than in Scotland?

Lord Bassam of Brighton: My advice is that it is a drafting point. I do not know whether that helps the noble Baroness. If she has a real concern about the point, we may be able to give further thought to it. However, we are content with the drafting, which we think is fit for the purpose.

Baroness Carnegy of Lour: It is quite interesting, is it not? Presumably the Scottish provision has come from the Scotland Office, whereas that for England and Wales has come from the Home Office, which has

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found a different solution. As one is much shorter than the other, I should think that we could use the shorter one for both. I am not making a nationalistic point, of course, but it is quite interesting to see the same thing repeated in quite a different form.

Lord Bassam of Brighton: I am sure that the noble Baroness is right. As we all believe in brevity, we shall check that.

Lord Goodhart: I am grateful to the noble Lord for responding to the amendment. We shall look at what he has said and then consider whether this is a matter that we need to bring back for further consideration at the next stage. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Baroness Anelay of St Johns moved Amendment No. 115:


    Page 27, line 18, leave out "cannot" and insert "may"

The noble Baroness said: In moving Amendment No. 115, I shall speak also to Amendments Nos. 116 to 120, which stand in my name. The amendments again raise the issue of consent, but from rather a different angle to that covered in the previous amendment.

I appreciate that the Minister may in response say that all this is covered in an existing law and will quote Sections 5(2) and 6(3) of the 1990 Act. However, I have some questions to ask of him, regardless of what I anticipate may be his response. I appreciate that Clauses 47 and 48 mirror those sections in the Act.

So far we have talked about what happens with the giving of consent from the point of view of what legal advice should be available in order to get the person to the stage where they give that consent. My amendments address the issue of consent after that stage has been reached and consent has been given. The Bill states that once the warrant has been issued, that is it and the prisoner cannot withdraw his consent. That is the position under the 1990 Act.

I am aware that the Law Society, for example, is opposed in principle to a provision that makes the giving of consent an irrevocable act. I can understand that as a matter of principle. I look at the issue more from the point of view perhaps of practice, rather than purely as a matter of principle. Therefore, I have tabled the amendment in order to ask the Government to explain why they believe that it is both essential and right in principle and in practice that someone should continue to be prevented from withdrawing their consent.

We have already mentioned that there is some protection before giving consent for those who may have some mental incapacity by reason of age or who because of their youth may need some assistance in making the decision. What happens if after a person gives consent he develops an incapacity—for example—which would make it difficult for him to travel?

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On Amendment No. 114, the noble Lord, Lord Bassam, in replying to the questions raised by the noble Lord, Lord Dholakia, said that the Secretary of State would not expect someone to travel if he was ill. The Bill does not give the person any protection. In theory he could be required to travel if he was physically or mentally ill or perhaps mentally incapacitated to such an extent that his assistance might be impaired—for example, in an identification parade. I am trying to get to the heart of what protections there might be, which might not just protect the witness but also the judicial system and its credibility.

I shall briefly state the impact of each amendment, although they are at this stage probing amendments. Amendments Nos. 115 and 118 would provide that a prisoner could withdraw consent after a warrant has been issued.

Amendments Nos. 116 and 119 would confine the ability to withdraw consent to exceptional circumstances, the definition of which would be open for debate.

Amendments Nos. 117 and 120 complete the picture by specifically confining the exceptional circumstances to medical grounds. I beg to move.

Lord Bassam of Brighton: The noble Baroness is right to accurately describe the effects of Sections 5 and 6 of the 1990 Act and to say that these clauses essentially are like "carry on" provisions. They describe the circumstances where a transfer is made from one country at its own request when its investigations require a prisoner's presence in another country.

As I said when speaking to a previous amendment, the clauses as drafted require the prisoner to provide written consent to any transfer before it takes place. The noble Baroness raised a question of what happens if some illness or incapacity occurs when a prisoner is in transit. We appreciate that the amendment is intended to protect the rights of the prisoner, but we think that the amendments would create potentially serious problems.

For example, the amendments could have the effect that the prisoner could withdraw his consent in the middle of the transfer whilst he was overseas. That would be unacceptable. It would invalidate the warrant, which would mean that the prisoner would not be held in legal custody. If a prisoner was unfit to travel, clearly he would not be obliged or forced to travel, having first given consent. In those circumstances, the prisoner would be seen by a Prison Service medical officer, who would make the final decision. A prisoner who was not fit to travel would not be transferred even if he was still willing to go. I think we can place trust in a proper and full medical assessment. Of course if a person was mentally unfit it is plain that he would not be much use to those conducting the investigation. So, in those circumstances, it is extremely unlikely that any pressure would be put on that person to continue his journey because it would invalidate the conduct of the investigation.

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These arrangements are designed to assist countries with their investigations, where those investigations require the attendance of a prisoner in another country to assist in some capacity, perhaps in the identification of sites or for participation in an ID parade. So it is extremely important that a prisoner is transferred only when he is mentally and physically fit to travel and likely to be of assistance in the investigation.

So steps and measures will be taken to ensure that prisoners are able to travel. If he becomes unfit or unwell during the course of the journey, obviously great care would need to be exercised and some reconsideration of the purpose of that journey being undertaken might be necessary.

Lord Dholakia: I appreciate what the Minister has said. I am still concerned. In many cases, in particular those attending at magistrates' courts or occasionally attending the court trial and so on, I often find that evidence as to the nature of a person's mental illness will come out during a trial and not beforehand. I do not think that the Home Secretary, a prison officer or a prison doctor is in a position to know about the condition. We seek to establish certain safeguards in relation to vulnerable people who may say things that may be held against these individuals, which is quite contrary to natural justice.


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