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Baroness Anelay of St Johns: I am grateful to the Minister for his care in responding to the amendment. He is absolutely right in his surmise that we certainly do not intend to make it easier for people to evade justice if they are trying to commit crimes across borders. I note that several offences in the list could not be committed in more than one country—such as arson—but I well take his point that if one is dealing with sabotage or trafficking in illegal drugs, the offence could indeed be split across borders.

We have clarified the problems surrounding the issues. I give notice that I shall raise a further problem and invite the Minister when he reaches Amendment No. 112 to explain how a company would be protected

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where, say, its international office is in this country and one employee is involved in an activity that leads to an offence being committed. Could the person with responsibility for the overseas employee be in any way held to be guilty of an offence under the Bill? I shall give the Minister, or his Bill team, the specifics of that case in time for him to respond when we reach Amendment No. 112.

I recognise that throughout the Bill the Government have been trying to flesh out the detail of how this especially complicated—at least it is for me—part of the law will work. We are beginning to make progress on that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Rule against double jeopardy]:

Baroness Anelay of St Johns moved Amendment No. 66:


    Leave out Clause 12 and insert the following new Clause—


"RULE AGAINST DOUBLE JEOPARDY (NO. 2)
A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if the judge is satisfied that the person has been finally judged by a category 1 territory in respect of the same acts and would be entitled to be discharged under the law of that territory."

The noble Baroness said: We now turn to the issue of double jeopardy. I shall speak also to Amendment No. 192. The amendments are intended to clarify an important point regarding double jeopardy that was brought to our attention by Justice. That is that abolition of the dual criminality requirement in relation to 32 types of serious offence means that a request for extradition under the warrant need not be based on an offence known to UK law. So, if a request were made on the basis of an offence in another member state that was not an offence in the UK, the defendant must lose the protection of the rule against double jeopardy, using the proposed text in the Bill. Presumably, that is not the Government's intention.

The European arrest warrant clearly states that a final judgment on the same acts—those are the important words—shall be a mandatory bar to surrender. Implementing legislation should reflect that broader notion of double jeopardy in order effectively to protect the rights of the individual.

Justice has provided us with relevant recent judgments. They refer to the following cases—I apologise in advance for my pronunciation—C-187/01 Gozutok and C-385/01 Brugge, judgment of 11th February 2003. In those cases, the European Court of Justice clarified the position in relation to double jeopardy—ne bis in idem—as found in Article 54 of the Schengen convention. I am advised that it is clear from that judgment that the principle of double jeopardy, when applied in a context of mutual recognition in criminal proceedings in the EU, should be given a broad interpretation allowing for the differences in what is perceived to be a "final judgement" in the various member states.

Justice argues that this European notion of ne bis in idem should be reflected in the text of the Bill to implement the European arrest warrant. But under

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current UK law, the wording contained in the Bill may provide greater procedural safeguards than a draft more closely based on the European arrest warrant provisions. I am advised that, given the provisions relating to double jeopardy contained in the Criminal Justice Bill, which has just started its long progress through your Lordships' House, it is not certain that applying the UK law in relation to double jeopardy will in fact result in a higher level of safeguard.

In applying a test based purely on UK domestic rules of law relating to previous acquittal or conviction, the executing court would be unable to implement fully the notion of double jeopardy applying across borders within the European Union. That notion is a key development in EU judicial co-operation based on the principle of mutual recognition. As that is what the Government say they are trying to achieve, I assume that my amendment may be welcome. I beg to move.

Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Anelay, for tabling the amendments. We are not far apart—picking up the point that she made just before she sat down—but that is not to say that I accept the amendments.

As we all appreciate, double jeopardy is a well-established principle in extradition law, as it is in the general law in this country and legal systems across the world. That is why protection against being convicted twice for the same offence is included in the framework decision on the European arrest warrant.

We have sought to transpose this protection from existing legislation and from the framework decision into the Bill. That is what Clauses 12 and 79 are designed to do. I believe that that is what your Lordships would want to happen, too. Clauses 12 and 79 provide that a person's extradition is barred if he would have been entitled to be discharged in equivalent circumstances in a domestic UK case. That is to say, because of a previous acquittal or conviction, assuming it were a case under domestic UK law, the person could not be prosecuted again for the same offence.

This position, then, is quite clear. Regardless of where the previous acquittal or conviction took place, the question is whether the person would be entitled to be discharged now if it had taken place in the UK.

These amendments would remove the existing clauses. They would put in their place an alternative double jeopardy provision. The new clause for each part would provide that extradition were barred if the person had finally been judged in a category 1 territory and would be entitled to be discharged under the law of that territory.

The current provisions on double jeopardy are not dependent on where the conviction or acquittal took place. They simply provide for the person to be discharged if he could not be put on trial in the UK in equivalent circumstances.

The amendments would require the judge to decide whether the person would be entitled to be discharged under the law of the country where he was finally

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judged, rather than under UK law. We do not believe that that enhances or adds to the existing double jeopardy provisions. A judge in this country is surely more likely to be in a position to decide whether the person would be entitled to be discharged under UK law as opposed to another country's law. Quite simply, we cannot ask or expect our district judges to become expert in the finer points of the double jeopardy laws of all other EU member states.

The Bill as it stands provides for judges in this country when considering extradition to apply the rule against double jeopardy as we understand it in this country. I would hope that your Lordships consider this a sensible approach to deal with the issue.

The noble Baroness raised the issue of the new Criminal Justice Bill. No doubt it will take time to roll through, but rolling through it certainly is. That Bill will reform the UK's double jeopardy law to allow for retrial where new and compelling evidence of guilt has emerged. Obviously, I cannot say too much about the Bill, but I can say that if Parliament agrees to changes that are contained in the Bill it will need to be cross-referenced and we will need to monitor carefully how the Bill progresses and what changes are made. We will have to be most careful in carrying out that monitoring.

The proposed changes would allow us to seek to have the acquittal of a person quashed so that they could be put on trial for a second time. In cases where the person was abroad, we would seek to get the acquittal quashed before making the extradition request. Whether that request succeeded would depend on the domestic law of the requested country, in particular how absolute the provisions in its law on double jeopardy were. Turning the situation the other way round, if we get a request from a country for someone who has previously been acquitted, our courts in that situation would be expected to apply UK law on double jeopardy as it emerges from the Criminal Justice Bill.

If the person's acquittal had not been quashed, we would have to refuse the request, even if the requesting state told us that it intended to seek to quash it. Similarly, we would have to refuse the request if the acquittal had been quashed in a manner which did not command confidence. Indeed, the ECHR would prevent extradition in those circumstances.

However, imagine that we received a request from Canada for the extradition of a person who had been previously acquitted there. If the Canadians could demonstrate that the acquittal had been quashed by a High Court in Canada with due process, and with the person having the right to attend and participate in the hearing at which the quashing of the acquittal was considered, then, applying our law, extradition would not be barred on double jeopardy grounds.

I apologise for speaking at some length, but I thought it would be useful and for the benefit of the Committee for me to give some exposition as to how we see things working in the future.

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I turn back to the amendments before us. I want to make the point again that it is much better to ask our judges to apply UK law standards than try to apply the law of the requesting state. If they do, there may be many attendant difficulties. The Bill offers proper double jeopardy protection. I therefore hope that the amendment will be withdrawn.

7.15 p.m.

Baroness Anelay of St Johns: I am grateful to the Minister for his full and mostly helpful answer. I certainly shall refer back to Justice to see whether it wishes to raise any extra views that I did not spot while he was answering. I was intrigued by his reference to the Criminal Justice Bill. I noted that he said that there would have to be a cross-referencing between the two Bills. Is the Minister saying to the Committee that achieving Royal Assent for the Extradition Bill will be held over until after the Government achieves Royal Assent to the Criminal Justice Bill?


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