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Baroness Carnegy of Lour moved Amendment No. 40:


The noble Baroness said: In moving Amendment No. 40, I shall speak also to Amendments Nos. 42, 48, 160, 161, 174 and 175. I have tabled these amendments following discussion with the Law Society of Scotland. The amendments relate not just to the extradition process in Scotland but to the whole of the United Kingdom, although they come from a Scots' viewpoint.

The Law Society of Scotland considers—I agree—that in these proposed new extradition proceedings, the maximum time that can elapse between a person's arrest and his or her initial appearance in court should be clearly stated in the Bill. As drafted, that is not so. In Clause 4(3), a person arrested because of a Part 1 warrant must,


    "be brought as soon as practicable before the appropriate judge".

The same applies in identical terms to arrest under a Part 2 warrant at Clause 71(3) and arrest under a Part 2 provisional warrant at Clause 73(3). Following arrest under all these types of warrant, the Bill states that the person must be brought to court "as soon as practicable".

It was pointed out with some force at Second Reading in Your Lordships' House that to be arrested with a view to extradition is a traumatic experience for anyone. Clearly, a delay at the outset, for whatever number of days the authorities happen to decide is practicable, could be quite unnecessarily inhumane. The Law Society of Scotland suggests that there seems to be no reason why a person should not come to court the day after arrest—allowing, of course, for weekends and public holidays on which the court might not be available. In fact, that is normal practice after most arrests in Scotland and it works perfectly well.

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The Law Society also suggests that the same rule could apply following arrest under a Part 1 provisional warrant. In that case, Clause 6(3) states that the maximum delay would be 48 hours. That is on the face of the Bill. The effect of this group of amendments is that following arrest under all four types of warrant—a Part 1 warrant and provisional warrant and a Part 2 warrant and provisional warrant—a person would have to be brought before a judge the next day. The wording used in the amendments is simply for convenience—taken from the Criminal Procedure (Scotland) Act 1995.

It may be that the Government will reply that the next-day rule is simply not practicable. They may prefer a maximum delay of two or three days or even longer. My point, and the Law Society of Scotland's point, is that the maximum delay should be on the face of the Bill. The arrested person should not languish in custody for however many days those concerned at the time consider practical.

Lord Clinton-Davis: I thank the noble Baroness for giving way. If the words, "unless the judge extends the time" were inserted, would that satisfy the noble Baroness?

Baroness Carnegy of Lour: I still do not understand why a maximum time should not be on the face of the Bill. It seems that there is no reason at all. Of course it should be "as soon as practicable", but the maximum time should be there. That is the purpose of the amendment. I hope that the Committee will see the point of this. Above all, I hope that the Minister will because it is an extremely important point. I beg to move.

The Earl of Mar and Kellie: I have added my name to this group of amendments which obviously come from the Law Society of Scotland. My noble friend—to address her incorrectly—has well explained the point of view of the Law Society. It is important that this type of United Kingdom legislation should mesh into Scottish legislation and Scottish practice. There is no reason why, in this case, there should not be an extra subsection described as "in Scotland" if the Committee considers that it wants a different arrangement for England.

I should like to say to the noble Lord, Lord Clinton-Davis, that we are talking about the time that the person would spend in the police station. It is true that in Scotland the person will have to appear before the sheriff. In our amendment, we have proposed how soon a person should appear before the sheriff. Indeed, the sheriff or a judge in England can extend that, but that is another matter.

My time as a prison social worker and probation supervisor reminds me that there was nothing that the boys disliked more—but presumably the police on occasion enjoyed—than being picked up on a Friday afternoon. That meant that they enjoyed—or endured—the whole weekend in the police station before appearing in the sheriff court on Monday morning. I suspect that it was quite a useful informal

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punishment. Therefore, it is important that we reduce the amount of time that these people spend in the police station by stating it on the face of the Bill.

Viscount Bledisloe: Has the noble Baroness fully taken into account the fact that the appropriate judge, under Clause 66, is a very specific judge—for example, in Scotland, it is to be the sheriff of Lothian and Borders? It is not any old judge who can be found in the locality. I suspect that in the deepest of winters in Scotland there may well be portions of the Kingdom in which it would be rather difficult to take the arrested person to the specific judge within 24 hours. It is not the normal case where the arrested person could be hauled in front of any old magistrate: he or she has to be taken to the very specific judge laid down by Clause 66. Therefore, if one is arrested in one part of the Kingdom and has to be taken to the other end of it, it may not be as practical as the noble Baroness suggests.

Lord Stoddart of Swindon: It may not be practicable that it should be the day after arrest. Nevertheless, there is no reason why there should be any great delay. After all, there is no case to prepare because no prima facie evidence has to be provided and therefore no great preparation has to take place. I should think that the only bar to getting the arrested person before the court within a day, or very shortly after that, is that there may be some congestion in the courts. If that is so, that should be explained and the arrested person ought to be housed in conditions other than in a police station. The Minister ought to take into account what has been said because this is a fairly simple warrant to exercise. As I have said, there is no prima facie evidence, so there is no case to prepare. I hope that the Minister will give the amendment his consideration.

Lord Pearson of Rannoch: In supporting this amendment, could I also ask the Minister to explain why we have the sheriff of Lothian and Borders? What is the significance of that particular sheriff? The Minister may be aware that some of us live a wee bitty further north and a fair number of people live a long way further north than that. Could he explain why Lothian and Borders have been singled out for this privilege?

6.15 p.m.

Lord Filkin: The amendments deal with the requirement to bring an arrested person before a judge. The Bill is currently drafted with the words "as soon as practicable" or, in the case of a provisional arrest under Part 1 in a circumstance in which not all the documentation is in place, within 48 hours.

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The intention behind both forms of drafting is similar in that all of us want to see that persons arrested in the UK for extradition are brought before a British judge quickly. I also note that the noble Baroness and the noble Earl, Lord Mar and Kellie, acknowledge that bringing a person before a judge on the day after arrest is not always possible, as the second limb of their amendment makes express provision for weekends or court holidays.

However, on this occasion the noble Viscount, Lord Bledisloe, is absolutely right. The issue is not so tightly defined in the legislation that one frustrates the ability to achieve justice, while not leaving it so without remedy that a dilatory public body leaves it open for an abuse of a person's right to be brought before a court.

The Government's position is to allow for flexibility if there are reasonable problems in bringing someone to court. I think that everyone would recognise that a balance needs to be struck between allowing for the police and the court to have a reasonable amount of time to fix up a hearing and the rights to personal freedom of the arrested person. The common ground, therefore, is on that principle. I shall explain how we think that we have met that double challenge by the way in which we are intending to proceed.

Under Section 46 of the Police and Criminal Evidence Act 1984, arrested persons must be,


    "brought before such a court as soon as is practicable".

That was replicated in our drafting of the Bill. That the phrase is in PACE asks the question that if that period is suitable for persons arrested on domestic charges, why is it not suitable for those arrested for extradition? That seems to us to be a workable legislative tool that as far as we are aware has been working without problems. Therefore, we cannot see why there should be a problem with it in this context.

I should also ask if the amendments foresee problems of getting the person a hearing at weekends and court holidays. What about the situation where a court is understaffed due to sick leave—that should not happen but can happen—and cannot get through its case list? What about, as was touched on, an arrest in a remote part of the country where the police cannot get the person before a judge within a day due to bad weather? What about a court which has a large backlog and simply cannot list the case that quickly? Those should be exceptional circumstances but one would not want a person to be able to escape just because they applied even in a limited number of cases.

We fully expect that "as soon as practicable" will mean in the vast majority of cases the first sitting of the appropriate judge after the person has been arrested. That is what we expect will happen and what should happen in the vast majority of cases. Because it will not always happen, and because there is a concern about whether public bodies might be dilatory without good reason, there is a powerful sanction in the Bill for the district judge to decide that if the person was not brought before him as soon as is practicable, he can order discharge. That is a pretty fierce sanction on public authorities. If they muck about, to speak

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colloquially, they could lose their suspect. Therefore, there is a difficulty in specifying that so precisely that one does not allow for the circumstances. The sanction that we have given to the district judge seemed to us to be rightly powerful.

As to why the sheriff is from Lothian and Borders when there are, thank heaven, large parts of Scotland much further north than that, the answer is that the sheriff from Lothian and Borders currently handles all extradition cases in Scotland and has the necessary expertise. That is the Scottish practice. As regards the point raised by the noble Lord, Lord Stoddart, he is right; there is no reason why there should generally be a great delay. As I have indicated, in most cases we would expect that a person would come before the court quickly. However, we are talking about getting the person to the court for the initial hearing rather than the main hearing at which the bars to extradition are considered at the second stage.

For those reasons, I hope that we share the objective of persons being brought before the judge very early, but the Bill allows flexibility and the appropriate protections which need to go with it.


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