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Lord Clinton-Davis: Words might perhaps be included under paragraph (b), referring to,

The words "injustice and oppression" are highly significant. When my noble friend the Minister suggested that his officials would consider the whole situation, I hope that they will look benevolently at the amendments that have been proposed. A strong case has been made for not including the amendment in the paragraph under "the passage of time". However, the words may well fit in to another part of the clause.

I referred to a particular situation that could apply, by including it under paragraph (b). In any event, I ask my noble friend the Minister to examine carefully what has been said in the debate. It is not as though any of us want to weaken the situation—we want to see it strengthened, and we want the judge to be under no sort of inhibition. The wording in the amendment is highly germane, so I hope that the Minister will be rather more forthcoming when we return to consider this point. He has already been slightly forthcoming, but I hope that he will be rather more forthcoming on Report.

Baroness Carnegy of Lour: We all want Part 2 to work well. This is a legal matter, and I am not a lawyer, but I am very interested in the point. Clearly, the House of Commons took the Government's view on it, with advice. I noticed that the noble Lord, Lord Goodhart, based his argument on the human rights provisions on which he is something of an expert. I do not believe that the Minister actually picked that up in his reply—although he may have done so, and I may have missed it. When the noble Lord replies, I would be interested to know whether he feels that the answer is satisfactory or whether the point that he made about the human rights position is still valid.

Lord Goodhart: I am grateful to the Minister for giving a thoughtful reply to the amendment. However, I cannot accept his answer. This is certainly a point that concerns the experts on extradition. I am not an expert—it was never part of my practice at the Bar—but I know that Clive Nicholls feels strongly on the matter. I went to a conference last Saturday on the subject of the European arrest warrant where another QC, Mr Paul Garlick, spoke strongly on the subject.

If one could be absolutely certain that the defendant would receive a fair trial, there would be something to be said for stating that the accusation looked unfounded and not made in good faith. I mentioned two cases. In one of them, there was a lot of evidence to suggest that the person had been framed by the people who actually committed the offence. In the other, there was strong evidence that the person concerned was being blackmailed over an offence that he had not committed. If one could be absolutely certain that there would be a fair trial, one might perhaps consider that it was certain that the court would consider the evidence, that the person would get a fair trial and that, if things were as they appeared to be, he would be acquitted.

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The problem is twofold, however. First, in the case of some category 2 countries, there must be doubt about the quality of justice that will be delivered at the other end, even if those doubts are not sufficient to satisfy the courts that the person would not get a fair trial. Secondly, there is a hardship involved in someone being sent back to face a trial, even if it is assumed that the trial will be fair, if it appears to the judge hearing the application that there will be injustice and oppression and that the accusation is not made in good faith. There are significant advantages in allowing that defence to be raised.

Lord Clinton-Davis: I take it from what the noble Lord says that he has no objection to the words being inserted in paragraph (b), so that the clause reads,

    "extraneous considerations including injustice and oppression".

Lord Goodhart: The noble Lord is absolutely correct, although the words might be included in paragraph (a) rather than paragraph (b). I was making a note on my Marshalled List that if we brought the amendment back, that might be a way in which to do it.

The matter of injustice and oppression is just as much a legitimate extraneous consideration as those that the court must already consider. The issue will require further discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 agreed to.

Clause 79 [Rule against double jeopardy]:

[Amendment No. 192 not moved.]

Clause 79 agreed to.

Clause 80 [Extraneous considerations]:

On Question, Whether Clause 80 shall stand part of the Bill?

Lord Carlisle of Bucklow: I raised the question whether "extraneous considerations" might cover the point made, in the earlier debate. Surely the Minister, having seen the definition of "extraneous considerations", which is limited using the specific terms in the clause, would have to agree that the words "injustice and oppression" would go much wider and would deal with circumstances other than those arising from,

    "race, religion, nationality or political opinions".

Lord Filkin: As I signalled when we had the discussion on the amendment moved by the noble Lord, Lord Goodhart, I am seeking to set out a broad approach. I want to put in place specific bars to extradition without opening up the legislation to the defects that we have experienced with the current Act. We have already agreed to extend the clause to add on gender and sexual orientation as further measures, as a result of some good representations made at an earlier point.

In good faith, I believe that the Committee generally recognises that we do not want to go in a circle and come back to where we are, with the current defects of

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the system. We all share a view that the Bill should have adequate protections. Without wanting to trail a coat too adventurously, I was signalling that I was open to specific examples of where the Bill as currently drafted would not provide adequate protection. That was a genuine statement, and I am sure that there will be ways of communicating on that matter in the summer, so that we can consider it. I implied that if we were convinced that there was a hole in the legislation, we would investigate it, but that if we were not, we would not, for the reasons I gave.

Clause 80 agreed to.

Clause 81 [Passage of time]:

[Amendments Nos. 193 and 194 not moved.]

Clause 81 agreed to.

Clause 82 agreed to.

Clause 83 [Case where person has not been convicted]:

Lord Filkin moved Amendment No. 194A:

    Page 44, line 11, at end insert—

"(2A) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—
(a) to the nature and source of the document;
(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;
(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;
(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);
(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings."

The noble Lord said: While moving Amendment No. 194A in the name of my noble friend Lady Scotland I should like to speak to Amendment No. 202A, which is for all practical purposes identical to Amendment No. 194A. It might be convenient if I said something about the amendments in this group tabled by the Official Opposition—Amendments Nos. 195, 196, 203 and 204.

All the amendments are concerned with evidence given in written and summary form. The Government believe that this is a necessary provision, though we recognise the importance of proper safeguards which is what our amendments seek to put in place. We need to be clear about what we are dealing with here. The Bill—and Clauses 83(2) and 85(2) in particular—allows for written evidence to be admitted in particular circumstances. Those circumstances are limited, so we are only talking about evidence originally given to a police officer or other person responsible for investigating crimes.

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Where a police officer or other person responsible for investigating crimes has taken a statement from a witness, that statement is admissible as evidence for the hearing, provided that, were the person who made the statement to come to the UK and give evidence in person, that oral evidence would be admissible. A written witness statement made to a police officer will be admissible for the extradition hearing, rather than requiring the witness to come to Britain to give evidence in person.

Given that the purpose of requiring prima facie evidence from certain Part 2 countries is to establish that a sufficient case exists against the person rather than to hold a complete mini-trial, I hope that Members of the Committee will see that this is a worthwhile and necessary process. It really is not in anyone's interest to devote the time and cost of bringing over foreign witnesses to this country, particularly when they will be obliged to give their evidence at the actual trial when that occurs. Another fact to bear in mind is that the particular witness statement may not be contested or challenged by the fugitive.

I should describe the safeguards that already exist to make sure that the use of documentary evidence does not result in injustice, even at a hearing that is about establishing whether there is a prima facie case, not about whether a person is guilty or not. The first and most obvious one is that the district judge always has discretion not to admit evidence where he has doubts about its authenticity or reliability. That discretion is with the judge, and it should be. He will be best placed in each case to determine where the interests of justice lie and to ensure that the fugitive is not disadvantaged.

Secondly, nothing in the Bill obliges the person whose extradition has been sought to give evidence in written or summary form, nor will it prevent the person from challenging evidence given in such form on behalf of the requesting state. However, following concerns raised in another place, we amended the Bill on Report to make it even clearer that the judge was not obliged to accept evidence in that form. We recognise that concerns still exist, as evidenced by the amendments that have been tabled by the Opposition. Accordingly, we have looked at what further safeguards might be possible. In doing so we have turned our attention to domestic legislation.

Part II of the Criminal Justice Act 1988 is concerned with documentary evidence in criminal proceedings. Section 25 of that Act sets down principles to guide the court as to whether it should admit such documentary evidence. We believe that such provisions have worked well and accordingly Amendments Nos. 194A and 202A in the Government's name very largely replicate Section 25 of the 1988 Act.

These amendments will provide very specific guidance to district judges in deciding whether to admit written evidence. The fifth point is one to which I would like to draw the Committee's particular attention since it will require the district judge to pay special attention to the possibility of any risk of unfairness to the person whose extradition has been

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sought. I very much hope that that extra clarification in the Bill will be helpful to the Committee. As promised, let me say something briefly about the Opposition amendments.

This leads me to the related area of Clauses 83(3) and 85(3). I have already explained that Clauses 83(2) and 85(2) allow for written evidence to be admitted. Clauses 83(3) and 85(3) go on to say that evidence in summary form can be admitted. Let me explain why this is desirable and necessary. One can imagine a case of complicated financial fraud. Several accountants may have studied the books in question and produced statements attesting to their opinion that those books have been, to use the colloquialism, "cooked". These statements may go into minute detail and run to several hundred pages which is more than the district judge may need or want. We are not dealing here with a full trial; rather, the district judge needs to be satisfied that sufficient case exists against the person to send him for trial to answer the charges. In this case the fact that several qualified accountants have confirmed that in their opinion fraud has taken place and that the person before the judge is believed to be responsible is more use to the judge than the content of what could be extremely detailed statements explaining exactly how the fraud has been committed. Accordingly, Clauses 83(3) and 85(3) allow for summaries of written evidence to be admitted for the purpose of establishing whether a prima facie case exists against the person.

These provisions might be similarly useful where there are many witnesses all giving broadly the same evidence, for example, telephone company employees who produce itemised bills. Again, in many cases this evidence may be uncontested.

It will, of course, be open to the fugitive and his lawyers to challenge the summaries at the extradition hearing and the detail of the statements at the trial itself, if the person is extradited. We would not expect this facility to be used often. In most cases we would expect the full written witness statement to be put before the court. However, I am sure the Committee will see why, in the circumstances which I have described, Clauses 83(3) and 85(3) are useful and necessary.

4.15 p.m.

Lord Clinton-Davis: Before my noble friend departs from this part of his remarks, has the possibility been expunged, by reason of the amendment which is proposed, for the defence and prosecution to come to some agreement before the trial—before the matter reaches the judge? In my experience the prosecution and the defence almost invariably act very honourably in this regard. In fact, I cannot think of an occasion when the possibility of agreement is overlooked.

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