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Lord Bassam of Brighton: We are grateful for the amendments being tabled. We do not believe that they are necessary because they would represent a departure from domestic procedure and may be confusing compensation and the issue of costs. Clauses 60 and 132 refer to the important area of awarding costs where the discharge of a person who has been the subject of extradition proceedings in the UK has been ordered under Parts 1 and 2 of the Bill.

Amendments Nos. 198 and 230 seek to make the judge or court making the order reveal their reasons for calculating the amount of compensation awarded. The award of costs is different from the award of compensation. Compensation is an amount given to make amends for loss or injury or disadvantage and is normally sought through civil action. Here, we are dealing only with expenses or costs incurred as a result of extradition proceedings, such as lawyers' fees or perhaps a hotel bill where a fugitive has been granted bail but is not a resident of this country.

As currently drafted, the Bill makes provision for the relevant judge or court to have the power to make an order for costs in the discharged person's favour. The amount is what they reasonably consider to be sufficient to compensate the person in question for any expenses incurred. It also allows for the relevant judge or court to reach a different decision if they consider it inappropriate for the person to recover the full amount of costs incurred and specify that amount in the order as that appropriate amount.

The amendment seems unnecessary as all costs awarded must be determined in accordance with the provisions of Part 2, Sections 16 to 21 of the Prosecution of Offences Act 1985 and regulations made thereunder by the Lord Chancellor. General guidance on costs in criminal proceedings is provided by the Lord Chief Justice's practice direction Crime: Costs in Criminal Proceedings (No. 2), published in 1999. This practice direction does not suggest that any judge is required to give detailed calculations for any decisions he makes with regard to costs awarded in criminal proceedings. It appears to be a matter for the discretion of the individual judge.

This is how costs are awarded in normal criminal proceedings and we see no reason for extradition proceedings to be dealt with any differently. I therefore hope that with that clarification the noble Baroness will feel able to withdraw her amendment.

Baroness Carnegy of Lour: The noble Lord spoke to the fact that the judge can reach a different decision and I have just looked at the Explanatory Notes. Is he saying that the explanation of how the judge does this is the same as in all costs arrangements? It seems unjust that the judge should come to a different decision and not say why. It is based on the cost of the case but he

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does not charge the whole of that cost or he charges more. Is that normally the procedure? It seems so strange.

Lord Bassam of Brighton: It is the same. Ultimately, it will be for the discretion of the individual judge. However, he must have regard to the practice direction, which sets out how the calculation is made.

Baroness Anelay of St Johns: I am grateful to the Minister for his answer. He has based his argument on the fact that this would be a departure from existing domestic procedure. I accept that point but the full-on issue that we will examine in a future amendment is that we are dealing with specialist cases where specialist district judges, in particular at Bow Street, deal with it. Calculating the costs and having regard to the practice direction required a certain amount of expertise. Although legal costs can be high for good reasons, in extradition cases they can be even higher for equally good reasons. I refer to the expertise and rarity value of the people involved and the huge personal costs involved in travel and accommodation. I accept the Minister's point that the practice direction procedure exists and that my amendments would take that practice away. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 agreed to.

On Question, Whether Clause 61 shall stand part of the Bill?

Baroness Carnegy of Lour: Clause 61 mentions England and Wales and Northern Ireland, but there is no mention of Scotland. The Minister seems to be receiving advice that there is a reason for that and I shall be interested to hear it.

Lord Bassam of Brighton: The advice is that there is no equivalent Scottish legislation to apply here, because these provisions are for England and Wales and Northern Ireland. We cannot apply what does not exist.

Baroness Carnegy of Lour: So what happens to poor Scotland?

Lord Bassam of Brighton: Presumably the Scottish Executive has its own way of dealing with the issue. That is probably the answer to the question. As my noble friend is telling me, the Scottish legal system is different and the noble Baroness, Lady Carnegy, is good at pointing that out to us.

Clause 61 agreed to.

Clause 62 [Documents sent by facsimile]:

Lord Bassam of Brighton moved Amendment No. 108A:


    Page 31, line 36, leave out subsections (1) and (2) and insert—


"(1) This section applies if a document to be sent in connection with proceedings under this Part is sent by facsimile transmission.
(2) This Act has effect as if the document received by facsimile transmission were the document used to make the transmission.

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(3) The document received by facsimile transmission may be received in evidence accordingly."

The noble Lord said: In moving Amendment No. 108A, I shall speak also to government Amendments Nos. 109A and 230A. I want also to address Amendments Nos. 109 and 231, tabled by Members of the Committee opposite. All of these amendments are concerned with how documents can be sent from the requesting state to the United Kingdom.

Perhaps I should begin with Amendments Nos. 108A and 230A. These two amendments replace the existing provisions in the Bill on fax transmissions in their entirety. Let me explain why we have done so.

On closer examination, we concluded that the provisions in the Bill as currently drafted concentrated rather too much on the document transmitted, whereas the focus more properly should have been on the document received. We also believe it is unnecessary to say, as the existing wording does, that a document "may be sent" by facsimile. Clearly, there is nothing ever to prevent anyone from sending a fax, but what we need to be concerned about is the status of a document received by fax. These amendments accordingly allow for a document sent by fax to be received in evidence.

Of course, the district judge may refuse to admit it where there are doubts about its provenance and the fugitive will be able to challenge documents on those grounds. In case of doubt, it will always be possible for the original to be obtained and produced.

Let me turn to the new clause in Amendment No. 109A, which we seek to introduce into the Bill. This clause will allow Part 1 warrants, though not supporting material, to be sent by electronic means other than by fax. This clause is needed because, as has been previously explained, we anticipate that in future the vast majority of Part 1 requests will be transmitted by the secure Schengen computer system. This is a closed computer system to which only law enforcement agencies in each country will have access—in the UK's case it will be NCIS which will house our Schengen terminal.

I hope that Members of the Committee will welcome this. Quite apart from all the practical benefits, we believe that a secure computer link is probably a safer way to transmit documents than by post or fax and certainly allows for much less possibility of fraud or rogue documents than any other system of transmission.

I turn to the amendments standing in the name of the Official Opposition. They seek to provide that the Secretary of State should make regulations concerning the security of documents sent by fax. I appreciate that we need to guard against documents that are not genuine. However, I believe that this is a little over the top. The Bill already requires NCIS in Part 1, and the Secretary of State in Part 2, to certify that all incoming warrants have come from a bona fide source. As I have already indicated, any documents can be challenged by the fugitive, so the mere fact that it can be sent by fax does not put him at a disadvantage.

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Accordingly, I hope that on reflection Members of the Committee opposite will accept that this provision is unnecessary. I trust that the Committee will find favour with the Government's amendments. I beg to move.

Baroness Anelay of St Johns: My name appears on two of the amendments in the group. We tabled them in order to obtain a debate on the security of fax transmissions. I welcome the government amendments and make it clear that I shall not move mine when we reach them. The Minister will recall that during the passage of the Crime (International Co-operation) Bill we discussed the Schengen information system. We made it clear that we were content with the provisions within that Bill.

Lord Lamont of Lerwick: Perhaps I may ask the Minister a question on which he may wish to seek advice. Can he explain the background to the provision, saying why it has been made, what it has replaced, and whether in previous cases facsimiles have been refused and challenged in courts? What has given risen to this?

4.30 p.m.

Lord Bassam of Brighton: The answer to the point made by the noble Lord, Lord Lamont, is really very simple. There is nothing in previous legislation because that legislation dates from 1870. I know that the fax machine has a longer history than it is often given credit for, but we felt that the step was useful and modernising. As I explained in promoting the amendment, we have a secure system, as was referred to by the noble Baroness, Lady Anelay. I am advised that we are not aware of any challenges to faxes being accepted. However, I have made it plain that they can be open to objection by a fugitive. That is for the district judge to consider.


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