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Viscount Bledisloe: With respect to the noble Baroness, I do not think that that answer is right.

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Section 7 requires the court only to decide whether the person before it is the same person as the one named in the warrant. As we discussed, the section does not enable the court to decide whether the person named is in fact the person whom the demanding country thinks committed the crime. They named Mr Bond in the warrant, and Mr Bond is the person named in the warrant. Mr Bond's point is, "I am not the person you think committed the crime". When I sought in a previous debate to allow the noble Lord, Lord Filkin, to raise that point, he turned it down.

Returning to the noble Baroness's answer to my point, I accept that her answer is an answer to the amendment as currently worded—namely,

    "taking particular account of the conduct of the proceedings".

I am asking whether the court could not have a discretion to take particular account of the reasons for the person deliberately absenting himself, and then, if those reasons are in fact extremely reasonable and understandable, to say that it is not in the interests of justice to send him back.

Baroness Scotland of Asthal: I think that that would present us with a very difficult test to apply. We are, of course, discussing a treaty that will have international application. In my own personal practice, I have found that what one person considers absolutely reasonable is usually anathema to another person who thinks that it is the height of unreasonableness. In such circumstances we need an element of certainty. It is in the interests of justice for all of us that those who are asked to respond to proper summonses in relation to criminal activity should do so. They should take the opportunity to assert their case and have it determined in the proper way. That is how we shall be able to put parity of treatment, certainty and integrity into this situation, so that the international community feels confident about operating these provisions.

Baroness Anelay of St Johns: I think that the issue between us comes down to whether there needs to be sufficient flexibility to meet the situation which the noble Viscount, Lord Bledisloe, described not only today but previously by raising the very important issue of what happens when someone is patently innocent and yet is caught up within this machine of extradition. As the noble Lord, Lord Stoddart of Swindon, said, such people may get themselves in a position where although they know they are innocent and can prove their innocence when they reach the foreign jurisdiction, they surrender and find themselves held in conditions which—let us be frank—could kill them. That is why we are looking for some kind of flexibility whereby the judge can decide in the interests of justice that extradition is not the proper course.

The noble Baroness, Lady Scotland, says that the amendment goes beyond established principles. We argue that this part of the Bill already goes beyond established principles. We are therefore trying to explore ways in which proper safeguards can be built in. Between now and Report stage I shall look very carefully at what she has said.

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Before seeking leave to withdraw the amendment, it might convenient for the Committee if I pointed out that although the question on Clause 20 stand part is grouped with these amendments, I shall not oppose it. The list of amendments also shows that Clause 21 has already been debated, but I am aware that my noble friends Lady Carnegy and Lord Lamont wish to address issues as regards that clause. I beg leave to withdraw the amendment.

Baroness Carnegy of Lour: Contrary to my noble friend's belief, I have a further question on Clause 20. The last two lines of subsection (3), lines 25 and 26, deal with this business of the definition of,

    "a retrial or (on appeal) . . . a review amounting to a retrial".

I was fascinated by some of the comments in our discussion on Amendments Nos. 81 and 82. I was puzzling away at the fact that the two amendments followed the style of the Bill in defining things by double negatives. I know that lawyers are very fond of that style. It almost needs another lawyer to sort it out, which is perhaps why they draft it in that way.

However, when the Minister reconsiders the questions raised under those two amendments, will she examine her first reply on what a retrial is? She compared it with a trial. As a layperson, I find it very much more helpful to have a positive description of what a retrial is and what a review amounting to a retrial is. When I first looked at the Bill, I thought that the provision was too vague by half. I have become increasingly confused by these double negatives. I wonder whether that is a constructive suggestion which the Minister might like to take on board.

Baroness Scotland of Asthal: I can certainly say to the noble Baroness, Lady Carnegy, that her ability to construe these Bills far outdoes that of most lawyers. She puts them in the shade, but she need not worry about that. There is also the need for parliamentary draftsmen to ensure a consistent style in the Bill. I do not know whether my powers of persuasion are greater with the parliamentary draftsmen than they are with the Committee, but I shall certainly look at the issue.

Amendment, by leave, withdrawn.

[Amendments Nos. 81 and 82 not moved.]

Clause 20 agreed to.

Clause 21 [Human rights]:

Baroness Anelay of St Johns moved Amendment No. 83:

    Page 10, line 29, after "extradition" insert ", hearing and surrender"

The noble Baroness said: Since we are being welcoming, I welcome the noble Lord, Lord Filkin, back to his place.

Amendment No. 83 asks the Minister questions on human rights issues. We welcome the inclusion of a specific clause in the Bill which places on the judge an obligation to assess whether the person's extradition,

    "would be compatible with the Convention rights within the meaning of the Human Rights Act 1998".

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Our problem is with the drafting of subsection (1) of this clause. We find that it is rather ambiguous and might provide an unfortunate loophole. The judge has to decide whether "the person's extradition" complies with the ECHR. The noble Baroness, Lady Scotland, referred to that issue in our earlier debates on retrial. The difficulty is how that provision can be interpreted in detail. Does it refer to the preliminary stages of the extradition hearing in the United Kingdom? Does it cover the actual process of handing over the person? Does it extend to the eventual prosecution in the category 1 territory?

We are considering the stages of extradition. When we talk about extradition, are we simply talking about the part of the process that happens here, or are we considering it as a whole process? At the moment, as Justice pointed out to us in its helpful briefing, "extradition" could be interpreted as being limited to the actual return.

The proposed amendment would clarify the Government's intention to apply convention standards to the proceedings as well as the actual return, so that Article 5.4 of the ECHR procedural rights in particular would be applied in the hearing, proceedings and eventual return. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I thank the noble Baroness, Lady Anelay, for the clarity with which she posed and explained the amendment. I hope that I can be relatively reassuring, as well as relatively brief, in my response.

Clause 21 provides that extradition cannot take place if it would be likely to lead to a breach of the person's ECHR rights. ECHR jurisprudence has clearly established that our obligations in this area extend to the treatment of the person once he has been extradited—which was, I think, the centrality of the noble Baroness's question. The key case in this regard is that of Soering. In its judgement in that case, European Court of Human Rights said:

    "It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3".

The Court went on to say in respect of Article 3 of the convention:

    "The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country".

The Court went on similarly to explain, and I think it relevant, that Article 6 issues under the charter could arise in extradition proceedings where there was a significant risk of the denial of a right to a fair trial in the requesting state. We may come on to that issue in a later amendment. So not only do our own procedures

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have to be ECHR compliant, but we could not extradite—or a district judge could not extradite, which is the focus of the clause—where there was a significant risk that the procedures in the requesting state would result in a breach of the fugitive's ECHR rights.

So I think that the reference to the "hearing" is otiose. Unless the noble Baroness, Lady Anelay, particularly desires it, I shall not return to the previous discussion which we enjoyed on surrender and extradition. I would simply emphasise that we have included in the Bill—in the clearest possible terms, we had hoped; but perhaps this debate has increased its clarity—exactly what we want to do to give the district judge a very full power and discretion to consider whether extradition of the person requested would infringe the ECHR rights of that person. I hope that my comments and the authorities I have quoted will put that beyond peradventure.

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