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Lord Hodgson of Astley Abbotts: I was not saying that. If I had been able to finish my last sentence, I would have said that the balance was not being struck here at all. In the case of a provisional warrant, we are not striking the right balance; the balance is unfair and skewed against people of this country. Therefore, the words should be struck out. I beg to move.

Lord Goodhart: The amendment should be supported. When a Part 1 warrant has been issued and there is reason to believe that the information has been provided to the effect that a Part 1 warrant has been issued, it is legitimate to make a provisional arrest. However, I am concerned about situations in which there is only a belief that a provisional warrant will be issued. At that stage, there is no warrant and no evidence before the judge, except the information that a warrant is to be issued.

If one compares that situation with the provisional arrest under the category 2 procedure, which is dealt with in Clause 72, one finds a somewhat different situation. The judge in that case can proceed with issuing a provisional warrant only if, under subsections (3) and (4), he has evidence before him to justify the issue of a warrant for the arrest of that person. In other words, he must have the prima facie evidence in front of him, which must have been supplied by the territory that seeks the extradition. It is not sufficient in that case to say that that judge believes that such evidence will be provided.

The two measures are not in line with each other. The equivalent would be to say that a provisional arrest can be made under Part 1 if it is known that a Part 1 warrant has been issued—that, even if it has not got to the United Kingdom yet, it is known to be on its way. To say that all that is needed is information that a Part 1 warrant is going to be issued is not good enough. I support the amendment.

Lord Wedderburn of Charlton: I support the amendment, at any rate contingently. The provisional arrest measure presumably relates to people who are passing through and have to be got quickly. I am in favour of catching criminals—let us have no nonsense about that. There are parts of the Bill where the Government have tried to put a bit of balance in, such as the provisions relating to the Convention on Human Rights—although we shall come to the defects of that. However, this clause represents the worst attack of vertigo that Ministers have had.

Let me put the case at its very lowest to my noble friends the Ministers, and hope that there is no heading of "Resist absolutely to the death", as we saw earlier this afternoon. We also hope that there are no words written in—that came as a great shock to me, I must admit.

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The Minister can either have "reason" or "will be". If he had accepted "reasonable grounds", I would have accepted that I might not like it when it happened, but that there was some sort of a case for going after someone who was at Prestwick for only a few hours. I could see a case for doing that if it were done on the basis that the arrest warrant had not arrived from the issuing authority but there would be one, and there were reasonable grounds.

However, the Minister resisted "reasonable grounds"—unless we can get "reasonable grounds" out of "reason", which he resisted putting on record. The clause says that any old reason will do. To have any old reason to believe that the "judicial authority"—which the Government will insert in the clause—will issue the warrant is really so unbalanced that, with the greatest respect, it shows a defect of understanding of what is being urged on Ministers.

I urge my noble friend the Minister to say that, in reconsidering the matters under the last amendment, he will balance the provisions under this amendment and come up with some slightly different formula. It should at least require that the person provisionally arrested, who under these provisions will not see anything at all, will be arrested by someone with reasonable grounds to believe that the process will be properly effectuated. If not, the person making the arrest should have a reason, untrammelled, that there has been a warrant issued. The Minister really cannot have both.

Lord Lamont of Lerwick: The noble Lord, Lord Goodhart, made a rather devastating point about the contrast between the treatment of Part 1 and Part 2 countries. That is one of the puzzles of the Bill—why there is an entirely different philosophy between Part 1 and Part 2. Many people have argued that our systems of law have more in common with those of the United States than those of the European Union. I do not know whether I have the Minister's attention—perhaps I should sit down while he consults his officials.

Many of us are puzzled about why the procedures that apply to Part 1 countries do not apply to the United States, for example, although the legal system in that country seems to have much in common with ours. As an opponent of capital punishment, I entirely accept that there must be an exception for offences that are capital. The point made by the noble Lord, Lord Goodhart, is powerful: if there is going to be a provisional arrest and evidence is required for a category 2 country, evidence should be required for the category 1 country as well.

Clause 72(4) has two types of evidence. The first is,

    "evidence that would justify the issue of a warrant for the arrest of a person",

if the person had been accused. The second type is when a person has actually been convicted of an offence and has somehow escaped from prison or escaped going to prison. That is obviously a very different category. Will the Minister comment on that?

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I refer again to a point that I made earlier. I am puzzled by the sort of evidence that a person could have that a warrant would be issued. A warrant requires judicial confirmation. Surely, there must be some rules for what justifies reasonable grounds for arresting a person without a judicial authority.

Lord Bassam of Brighton: It is only right that I acknowledge that the drafting of the clause may at first sight seem slightly odd, allowing officers to arrest a person purely if they have reason to believe that a warrant will be issued, and not just if they believe that a warrant has been issued. I acknowledge that point. However, it is not hard to consider an example—which the noble Lord, Lord Hodgson, was seeking—where such a power would be useful and, I would suggest, absolutely necessary.

The provision will hardly ever be used. That is the point. It is in those situations of extremis in terms of law enforcement that the provision would be called on.

I shall give some life to the argument by providing an example. Let us imagine that someone commits a bank robbery in Rouen and makes his way to a hovercraft in Calais just before the French police can catch up with him, or someone commits a terrorist outrage in Paris and the police are well aware that the person whom they are pursuing is making his way out of the country to the United Kingdom. In those circumstances, the French police might very well telephone their counterparts in Dover and seek to have the person detained on arrival.

The provision would be used in exactly that sort of circumstance, which will occur very infrequently. That needs bearing in mind. The police would doubtless confirm that they would go to a magistrate to seek a European arrest warrant. At the moment when the person arrives in the United Kingdom, the Kent police would have every reason to believe that a European arrest warrant would be issued, though not that it had been issued.

The question that Members of the Committee should ask is this: "Do we believe that in such cases such people should be arrested?" Common sense dictates that they should.

Lord Wedderburn of Charlton: I am sure that the Minister is aware that the examples that he has given are cases in which there are very good reasonable grounds for a belief that the issue of a warrant is imminent. However, could he give us an example where he could continue to justify keeping the words "will be" but where the reason is a false reason and the Kent police are totally misled that a warrant will be issued?

Of course, I understand the Minister's examples. Someone has committed an outrageous act. That is perfectly clear, and there are reasonable grounds for believing that has happened and that the warrant will be issued. That is fine. The Minister can either have

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"reason" in the clause, or he can have "will be". Will he give an example where any old reason is linked with "will be" and justify that?

Lord Bassam of Brighton: I am not going to do that because, as I have already explained, the provision will be used only in a few instances.

Lord Wedderburn of Charlton: That does not matter.

Lord Bassam of Brighton: It does matter, because if we do not have that wording in the legislation, it will create an almost insurmountable barrier for law enforcement agencies in the circumstances that I have described. If they believe that a warrant will be issued, they are obviously perfectly able to apprehend and detain someone arriving in this country when they have good knowledge. That is extremely important. It is common sense that they should have that facility. If they do not, the warrant may be issued only when there is confirmation and the proceeds of the crime may have disappeared. That could be the consequence of the amendment.

The noble Lord, Lord Wedderburn, has said that he believes in law enforcement and wants to ensure that serious criminals are apprehended. In those circumstances, the provision is important.

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