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Lord Filkin: We are talking about provisional arrest. It is probably self-evident that it is an important tool in the kit of police officers effecting arrest in extradition cases. By its very nature extradition implies travel and

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flight from justice. The use of provisional arrest is a vital part of the UK's ability to extradite fugitives and is especially useful in cases where the person's whereabouts may be known only for a few hours.

Provisional arrest means that a person is arrested before the Part 1 warrant or Part 2 request has been received, and therefore I can understand that Parliament is rightly concerned that persons are not held in police custody for undue periods.

For Part 1, we have specifically laid out exactly how long the police have to get the person in front of a judge and 48 hours for Part 1 does not seem an unreasonable period to the Government. That is in contrast to domestic proceedings where the person, once charged, is required only to be,

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

under Section 46(2) of the Police and Criminal Act 1984.

Therefore, under the Bill, if the person is not brought before the judge in 48 hours, he is discharged. I would say that that is a relatively swift process, allowing the requesting state to issue its warrant and have it brought before the judge while ensuring that no requested person is subject to an overly lengthy detention.

The amendment to change this period to 24 hours, we believe, goes too far. It must be remembered that adequate regard must be given to a district judge's ability to hold hearings at such short notice. A two-day period in which to set that hearing seems about right; cutting that by half looks unworkable. We are talking about two variables here: the requesting state having put its documentation in place and there being an appropriate court ready for the police to bring that before. Both of those measures have to be in place for the warrant to be triggered.

We would not want serious criminals to walk free purely because a court date could not be fixed quickly enough. That clearly is not in the interests of the victims of crime.

Turning to Part 2, the time period differs because, in these cases, a domestic warrant under Clause 72 has been issued by a justice of the peace. That warrant is issued only if the magistrate believes that the request is for an extradition offence and that there is evidence that would justify the issue of a warrant for the arrest of the person.

Therefore, we have a domestic warrant issued by a British magistrate and it seems reasonable therefore to apply provisions with a similarity to the existing domestic provisions.

As I have said, the phrase,

    "as soon as is practicable",

appears in PACE and it has been placed in the Extradition Bill also. We believe that that phrase will mean in practice, in the vast majority of cases, that the hearing will be no later than the first sitting after the

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provisional arrest. In the light of those comments, I hope that the noble Lord will feel minded to withdraw the amendment.

Lord Hodgson of Astley Abbotts: I am disappointed that the Minister cannot see the practical problems that might arise from having different timescales in different parts of the Bill. I recognise the force of the arguments that have been put with regard to a period of 24 hours and 48 hours, but I believe that an extraditee could spin the matter out by saying that the various measures in Clause 4 had not been complied with "as soon as practicable".

The Minister referred to a safeguard if the various measures had not been complied with. However, as I say, the safeguard that a person must be discharged if various measures have not been complied with "as soon as practicable" could be manipulated by a cynical extraditee to spin out the matter. The measure will not confer the protection that the Minister thinks it will. We would prefer a firm time-scale in both parts of the Bill to which I referred which all authorities and all the people involved would be aware of. But we can come back to that. We have had—

Lord Lamont of Lerwick: Before my noble friend sits down, I should like to ask the Minister a question. As I understand it, Amendment No. 49 refers to Clause 5 which deals with provisional arrest. I was absent from the Committee for 10 minutes to listen to a debate which largely concerned Scotland. I apologise for missing part of the debate in Grand Committee during that time although I heard my noble friend's opening speech. Will the Minister explain how exactly provisional arrest—which was not, as I recall, raised very much on Second Reading—will work? In what circumstances will a person be allowed to be arrested if there is a belief that a warrant from a Part 1 country will be issued? Why should someone be arrested on the basis that a warrant will be issued? On what basis will people believe that a warrant will be issued?

Lord Filkin: I believe that I spoke to that matter briefly but let me try to answer the point by way of an example. I do not wish to re-open the debate about which of the cases that we are discussing are serious or trivial; we all agree that some people who are fugitives from justice are serious criminals. Take, for example, who it is believed has committed a major bank robbery in France, whatever his or her nationality. He flees to Britain. The French police believe that they know where he is. They ask the British authorities, through the systems set out in Part 1, to arrest that person. Due to the timescale involved and the urgency of the matter they do not have all the documentation. Provisional arrest allows that person to be seized and held pending the provision of the documentation. If the documentation is not provided within 48 hours, the whole process collapses. But not to have such provisional arrest would significantly tilt the position

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in favour of fugitives of justice involved in serious crime. I did not speak at that length but that was the thrust of the explanation of provisional arrest.

Lord Wedderburn of Charlton: I want to speak about this but my noble friend the Minister has been lured—

Lord Hodgson of Astley Abbotts: When we discuss Amendment No. 44 we shall discuss removing the words "or will be". I believe that that would be the appropriate moment to kick the matter the noble Lord wishes to discuss round the room a little.

Lord Wedderburn of Charlton: Quite right.

Lord Hodgson of Astley Abbotts: We were discussing Amendment No. 41. As I said, we would prefer a straight edge to make the position clear to everyone. We do not want problems of obfuscation, with people cynically manipulating the situation or with the "good man" being manipulated. We should like to return to the matter but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Clause 4 agreed to.

Clause 5 [Provisional arrest]:

Lord Hodgson of Astley Abbotts moved Amendment No. 43:

    Page 4, line 3, leave out "reason to believe" and insert "reasonable grounds for believing"

The noble Lord said: Clause 5 concerns provisional arrest which my noble friend Lord Lamont just mentioned. Amendment No. 43 seeks to delete the words "reason to believe" in subsection (1) of Clause 5 and replace them with "reasonable grounds for believing".

Amendment No. 149, which is grouped with Amendment No. 43, has exactly the same impact in Part 2 of the Bill as subsection (2) of Clause 70, which deals with category 2 country arrests.

Amendments Nos. 43 and 149 were proposed to us by the Law Society of Scotland. Essentially they aim to change the test of whether a provisional arrest should be made from subjective to objective grounds.

The Bill as presently drafted states that if a constable "has reason to believe" that a Part 1 warrant has already been "or will be" issued, he may make an arrest. There are no details of what evidence or grounds he must have to support his belief. It is, essentially, a subjective test.

Similarly, as currently drafted, under Clause 70 a judge may issue a warrant on a subjective assessment of the circumstances. Given the importance of the decision being taken, the Law Society of Scotland believes that an objective test is more appropriate. It believes that the phrase "reasonable grounds"

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provides a much firmer protection for the person subject to the provisional warrant.

As has been said, provisional warrants are clearly a necessary instrument to provide in the Bill but we need to make sure that, due to their "provisional" nature, we add the necessary safeguards to ensure that they are used appropriately. I beg to move.

Lord Wedderburn of Charlton: There was I just now trying to save my noble friend the Minister—I had not realised that he is not present, but I shall explain the matter anyway—from showing his hand too early. We are now discussing the amendments to Clause 5 that raise a very serious matter. Each word must be looked at very carefully.

Lord Lamont of Lerwick: When the noble Lord says that we are now discussing the matter, may I point out that we were previously when I raised the issue?

Lord Wedderburn of Charlton: I do not want to quarrel with the noble Lord about procedure. Let us look at what we are now on. We are now on Clause 5. Both Amendments No. 43 and 44 do indeed raise the issue on which my noble friend Lord Filkin has said more than once, I believe, that people get paranoid—and that is arrest by foreign police.

One possibility is that, under Clause 5, the British constable acts merely as an arm of the foreign police—taking into account the further provision in Amendment No. 46, which the Minister will move. I am not trying to anticipate the debate, but it is fair to the Government to take Amendment No. 46 into account. Either they say that where you think this is a judicial authority of the issuing country and have reason to believe that a warrant has been issued, or will be issued, then you must simply execute the whole thing, or else some amendments will be accepted that tell us that you must have some reasonable grounds for your belief. Those amendments would also tell us that you must have reasonable grounds to believe that such a warrant has been issued by the right people, and, I would have hoped, within the general compass of the scheme. In other words, there is a big distinction in this provisional arrest scheme, which, in a sense, is at the heart of the matter, because that will often be the situation.

Either you say that, where you have reason to think that there will be something of this sort, you must just do it, or else you must introduce safeguards. Therefore, although I do not anticipate my arguments on Amendment No. 44, Amendments Nos. 43 and 44 go very much together in the direction of introducing more safeguards. So this raises the issue of simply doing what the issuing authority and, in effect, the foreign police force want to do or introducing greater protection for civil liberties. The issue has arisen so often today that the balance the Government are striking is wrong. I would have thought that at least Amendment No. 43—and, I hope, Amendment No. 44—would be acceptable to the Government when they consider the matter.

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6.45 p.m.

Lord Goodhart: The name of my noble friend Lord Mar and Kellie is attached to these amendments because they were originally suggested by the Law Society of Scotland. They are intended to be of general, not merely Scottish, application. Having looked at the matter again, so far as concerns Amendment No. 43, I find a little difficulty in seeing the difference between "reason to believe" and "reasonable grounds for believing".

However, Amendment No. 149 raises important issues, as Clause 70 states:

    "The judge may issue a warrant for the arrest of the person whose extradition is requested if it appears to the judge that—

    (a) the offence . . . is an extradition offence"

and so on, and that the evidence would justify the issue of a warrant. There is a real difference in substance. If the test is whether it appears to the judge, the issue is subjective and the decision cannot be reviewed unless the judge's decision is clearly unreasonable. If the test is whether the judge has reasonable grounds for believing, an appellate court could take its own decision on whether there were reasonable grounds for believing what the judge believed. There is, therefore, a difference in substance. Given the consequences of extradition, it would perhaps be desirable to make clear that in Clause 70 the test required is objective, not merely subjective.

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