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Viscount Bledisloe: I entirely support Amendment No. 54, because it lays down, if we are to decide on the balance of probabilities, on whom the onus lies. Without Amendment No. 54, if the judge thinks that the balance is exactly 50:50, there is no indication in the Bill which way he should go. That is not a silly point. Frequently in civil cases, the judge says, "I do not know. Therefore, the plaintiff has failed to prove his case". If we are to decide something on the balance of probabilities, we must know who is the winner and who is the loser at a straight 50:50 point. So, in my view, Amendment No. 54 is undoubtedly necessary, if the Bill is otherwise unamended.

Amendments Nos. 52 and 53 are apparently intended to achieve roughly the same thing: to remove the civil level of proof and insert the criminal one. However, unlike the noble Lord, Lord Clinton-Davis, I have no doubt that if we are to do that at all, the right

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way to do so is that suggested by the noble Lord, Lord Hodgson, and not that suggested by the noble Lord, Lord Goodhart.

The amendment proposed by the noble Lord, Lord Goodhart, would leave the court entirely unguided as to what is the test. He said, "Well, it will be either the same as the criminal proof, or something very like it, as happens in civil court cases". With respect, he is incorrect about civil court cases. In civil court cases, the burden of proof remains the same—namely, a balance of probability—but the court says, "If you are making a serious charge, you must prove it rather more convincingly". The balance of probability remains the test.

The noble Lord, Lord Goodhart, laughs at that formulation; others have laughed, but it is in fact the formulation of the courts. So he proposes that we leave the provision, not on the straight principle that 51 per cent will do, but not saying whether the criminal test or something vague in between will apply. If it is to be changed, it must be changed to something specific.

Lord Clinton-Davis: We are dealing, are we not, as the noble Lord, Lord Goodhart, said, with the issue of the liberty of the subject? That is entirely different from the notion that the noble Viscount advanced regarding fraud in civil cases.

Viscount Bledisloe: I am not at the moment arguing the merits of whether a change should be made. I am saying merely that if a change is to be made—I rather doubt that it should, but still—undoubtedly the right way to do so is that suggested by the noble Lord, Lord Hodgson, not the noble Lord, Lord Goodhart.

Lord Carlisle of Bucklow: I strongly support what was said by the noble Lords, Lord Goodhart and Lord Hodgson, with regard to the principle that the clause needs to be changed. We must remember that we are dealing with a Part 1 arrest warrant and the only thing the judge will have to decide is whether the person in front of him is the person to whom the warrant refers.

Looking at the information required to accompany the warrant, one sees that that the first thing listed in Clause 2(4)(a) is the person's identity. It is obvious that that must be a matter on which the judge must be sure. The idea that we should send people back for trial, even to another Part 1 country, on the basis that on the whole the judge believes that it is probably the right person is totally unsuitable. Therefore, I strongly support the proposal that the provision needs to be changed.

The noble Viscount, Lord Bledisloe, raised the argument about the best way to do that. First, if the noble Lord, Lord Goodhart, is right and is satisfied that if we said nothing, the judge would be required to be sure, on balance I support his approach. On the other hand, if there is any hesitation about it, we had better spell it out, as is done in the amendment tabled by the noble Lord, Lord Hodgson, by specifying "beyond reasonable doubt". I accept the point made that on the whole, these days, a judge in summing up

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to the jury tells them that they must be satisfied so that they are sure rather than satisfied beyond reasonable doubt.

I hope that the two parties can somehow get together and agree on wording before the matter comes to be voted on in the House—if it must.

Lord Wedderburn of Charlton: I agree with all Members of the Committee who have spoken to say that the matter cannot be left where it is. I am not sufficient of a criminal lawyer to know whether "balance of probabilities" should be replaced by the reasonable doubt test or some test saying, "You have to be sure". However, something of the kind must be specified. I do not agree with the noble Lord, Lord Goodhart, not because he may not be absolutely right but because to leave the matter in silence is to invite protracted argument in some court or another as to exactly what test the Bill requires.

There is a precedent in employment law, when in the middle of the darkest days of that legislation employment tribunals were relieved, it was said, of having any test of burden in deciding on unfair dismissal. They were to decide according to the equities of the case, which was said to remove all questions of burden of proof in a matter. I have never been happy with that and some cases have illustrated how improbable it is. But if it is appropriate to employment tribunals, it is not at all appropriate to a case which involves the liberty of the citizen, which I must express is a liberty in England of the subject.

The amendment which seems to me to be right—even if the Government resist everything else, they must be pressed on it on Report—is Amendment No. 54. At least it says something about the burden of proving the essential point that is likely to arise in such proceedings: "Who is the person whom you have arrested?". That burden must rest on the prosecution. It must take that burden and show that it is reasonably sure that the person is the man or woman in question.

I hope that the Government will not require us to pursue the matter on Report—which I otherwise encourage noble Lords to do—and that they will look again at subsection (3) and make the situation clear.

Lord Filkin: This is the first time we have talked about the initial hearing in Grand Committee on the Bill. In order to position our discussion, perhaps I may indicate that at the initial hearing the district judge must do a number of things. He must inform the person of the contents of the warrant; he must give the person information about the possibility and the consequences of consenting to extradition; he must fix a date for the main extradition hearing; and he must decide whether to grant the person bail or to remand him in custody.

The first thing he must do is decide whether the person before him is the person whose extradition has been sought. At this stage, the judge is not considering whether the extradition should take place; still less whether the person is guilty of the crime. He is simply

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reaching a view as to whether the person whose extradition has been sought and the person before him are one and the same.

As we have indicated, there are three options. The Bill leaves the court unguided on this matter—which is where we as the Government started—or the standard of proof should be specified in some way. That was the view in another place when the Government were urged to specify a standard of proof. As regards the standard of proof, there are only two options; balance of probability or beyond reasonable doubt.

In another place, the Government accepted that to leave the standard of proof completely open, as was argued, merited consideration. We therefore brought forward an amendment on Report to specify it. That was accepted by another place—not that that is necessarily relevant to our consideration. Nevertheless, that was the consequence of those discussions.

Amendment No. 52 would restore the position to the previous ambiguity, which was criticised by Liberal Democrats in another place. Again, that does not bind us in this House, as we well know. Its overall effect is that it would be left to the court to determine what standard of proof should apply. My view is that this is an important issue on which Parliament should take a view. We have been persuaded from our original position in that respect.

The amendment made in another place imposed the balance of probabilities. Let me explain why that was chosen and why I think it is right. First, we are not talking about a criminal prosecution. Matters of guilt or innocence are matters for the trial court in the requesting country, including as part of a defence, "It wasn't me, guv. I wasn't there at the time.". That is a perfectly valid point which can be raised at the full hearing.

Lord Clinton-Davis: When the judge in chambers considers bail, he is not considering the merits or demerits of the prosecution. What is the difference?

Lord Filkin: I agree and I was not referring to bail. I was referring to the judge's decision as to whether he considered that the person before him was the person for whom the extradition request had been made.

I give an illustration of why we believe that the test of the balance of probabilities is appropriate, bearing in mind that this is not the trial but a decision on whether to release someone straight away or to send him forward to a trial. I shall illustrate it by referring to the terrible case of Detective Constable Stephen Oake who was murdered in Manchester in January this year.

That was not an extradition case and in that sense it is not on all fours, but in terms of when he came before the courts, there was enormous difficulty in being sure what was the person's name. The person put forward at least three names, or could have claimed them from the documentation he had.

In that situation when there was documentation on him, and assuming for the sake of argument that the person had committed an outrage in another country

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and had fled to Britain, on the balance of probability the judge could not have decided that it was beyond reasonable doubt that he was one of three people. On the test of balance of proof, the judge would be forced to release that person and for obvious reasons we believe that that is wrong. It does not of course deny that person the opportunity to put in his defence at a later stage in the process, "It is not me. Here is my evidence as to why it is not me.".

I turn to the question raised by the noble Viscount, Lord Bledisloe, about 50/50 cases, which may be rare or not. To a lay person, it ought to be the inference that if, as we believe, the balance of probability is the test, it is up to the prosecution to make the case that on the balance of probability this is the person. I am giving a 0.1 per cent over the 50 per cent, but I shall take the point away and confirm whether that is our firm position.

For the reasons I have given, we were advised in another place that the standard of proof ought to be specified. We have listened to that, but if we took the "beyond reasonable doubt" standard, people would not be brought to trial when they should be and when they would be able to make powerful arguments, if it were the case, that it is not them and that they should be acquitted. I therefore hope the noble Lord will be minded to withdraw his amendment, with my assurance that we will reflect on the point made by the noble Viscount, Lord Bledisloe.

4.30 p.m.

Lord Goodhart: I am grateful for the support which the amendment has received from most of those who have spoken in the debate. I am not satisfied that the Minister has produced an argument which convinces me that there are cases in which the interest of justice requires that the standard should be less than being sure.

I would be happy to take on board the suggestion of the noble Lord, Lord Carlisle of Bucklow, and I hope to be able to agree with the noble Lord, Lord Hodgson, and put forward an amendment in joint names. I imagine that in one form or another the matter is likely to come back at a later stage, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53 and 54 not moved.]

On Question, Whether Clause 7 shall stand part of the Bill?


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