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Lord Filkin: I am advised that nothing stops that happening in these circumstances. If defence counsel and the CPS are in agreement on certain points, they can signal that and therefore save the court and the judge time on those issues.

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I return to my speech. I regret wearying the Committee with the length of it. I hope that I have explained why Clauses 83(3) and 85(3) are useful and necessary.

Amendments Nos. 195 and 203 seek to remove the facility for summary evidence altogether. As I described with regard to a prima facie case, we believe that that provision assists justice rather than frustrates it.

Amendments Nos. 196 and 204 seek to change the conditions on which summary evidence may be admitted. In particular the word "must" is changed to "may" and there is a requirement for corroboration. I support the principle of what is being attempted there but we believe that it is already provided for. If the Committee looks at Clauses 83(3) and 85(3), it will see that they operate for the purposes of 83(2) and 85(2) respectively. In other words, they are governed by the general provisions of those earlier subsections. In the opening lines of 83(2) and 85(2) the word "may" appears. Therefore, the admissibility of any document in summary form is governed by "may". The discretion exists in the legislation, which is exactly what is being sought by the amendment.

If the Committee looks at the government amendments, it will see that subsection (c) of each of them deals with corroboration and requires the judges to have regard to corroboration or otherwise in deciding whether to admit written and summary evidence.

I emphasise that nothing in the Bill obliges the person whose extradition has been sought to give evidence in written form nor will it prevent the person from challenging evidence given in written form on behalf of the requesting state. As I signalled earlier, the judge will always retain full discretion in deciding what to admit. The judge will always be mindful of the interests of the fugitive and of justice.

I believe that we should allow for the possibility of documentary evidence at what is effectively a prima facie hearing just as we do in limited circumstances in domestic cases. Strict controls apply to domestic cases and we believe that adopting those strict controls is the best way forward.

I hope that explanation is helpful and I invite Members of the Committee to withdraw their amendments. I beg to move.

Baroness Anelay of St Johns: I wish to speak to my Amendments Nos. 195, 196, 203 and 204. The noble Lord, Lord Goodhart, has added his name to Amendments Nos. 195 and 203.

As the Minister said, concerns remained after discussions in another place. Consequently, we tabled these amendments with the encouragement of the Law Society and Liberty which remained unconvinced by the arguments put forward in another place. As the noble Lord said, the argument revolves around what should comprise the summary statement. Concerns remained that that was a way of reducing the threshold of quality that one would expect of prima facie evidence.

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I hear what the Minister says about the Government not wanting there to be too much pressure on witnesses in the production of statements whereby they have to come here twice for the initial hearing and subsequently for the trial. I certainly understand the Government's intention to try to reduce bureaucracy without in any way reducing the power of the judge to make the right decision at the right time. We are working within the same parameters as the Government in tabling these amendments.

We thought that we should table Amendments Nos. 196 and 204 to reflect the fact that the Law Society of Scotland took a slightly different approach from others in this respect. We tried to cover all the bases.

I am delighted to see the Government's response in the form of their Amendments Nos. 194A and 202A. We certainly accept that they are an improvement on our Amendments Nos. 196 and 204. Therefore, we shall not press those amendments.

Between now and Report I certainly undertake to go back to the Law Society and Liberty to see whether they are now content with the Government's redrafting through their amendments or whether they still have concerns. At first blush when I saw the Government's amendments I thought that we would not have to take the matter any further. However, I cannot give that commitment until I have taken advice from those organisations.

Baroness Carnegy of Lour: When the noble Lord spoke to his amendment I believe he said that the wording of Amendments Nos. 194A and 202A was taken from an Act. I am not sure what Act he mentioned but I believe that it was an English Act. I wonder whether the Bill will be satisfactory within Scots law as a result of those amendments. I may have misunderstood the noble Lord but I wanted to check that point.

Lord Filkin: I referred to Part 2 of the Criminal Justice Act 1988. The amendments have been crafted from Section 25 of that Act.

With regard to the point on Scotland, we have checked with Scots colleagues who, I am advised, are content with the matter.

Baroness Carnegy of Lour: I thank the noble Lord for those comments.

Lord Goodhart: My name is added to Amendments Nos. 195 and 203. I certainly strongly welcome the Government's Amendments Nos. 194A and 202A which are of considerable assistance. As regards Amendments Nos. 195 and 203, I certainly accept that there may be a case in very long fraud cases, for example, for having some sort of executive summary which the judge can read. However, it seems to me essential that the judge having read the summary should always be able to say, "So far, so good, but I should like to see what the defendant actually said". The Minister indicated that in his view that would be possible by virtue of Clause 83(2). I am not entirely

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convinced of that. Like the noble Baroness, Lady Anelay, I would like to see what those who briefed us on these amendments have to say about the new position before a decision is taken as to whether to bring this amendment back.

Lord Clinton-Davis: I, too, have added my name to Amendment No. 195. What was suggested by the noble Baroness, Lady Anelay, is eminently appropriate. The amendment was suggested by very reputable organisations. The noble Baroness was entirely right to suggest that those organisations should be further consulted on the matter. I am sure that my noble friend will agree that that is entirely appropriate.

I pointed out in my intervention that in practice what happens—I am sure that the noble Lord, Lord Carlisle, agrees with this—is that the prosecution says to the defence, "Have a look at what is agreed". The defence can make suggestions for something to be included or for something to be omitted. Invariably, that suggestion is complied with. I am not very worried about the practice. But, on the other hand, my noble friend put forward a proposal which the Committee should consider. So far as I am concerned, the proposal which he advanced is entirely appropriate.

Lord Filkin: I thank all who spoke to the group of amendments. I thank particularly the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, for welcoming the two amendments introduced in response to the debate in another place, and for the conditional interest expressed in my remarks, albeit they did not, quite rightly at this stage, say that everything was perfect.

I also thank my noble friend Lord Clinton-Davis for his comments. The noble Lord, Lord Goodhart, brought forward a new point. Clearly we recognise that the judge has discretion to accept summary evidence if he thinks that serves the interests of justice. He has the discretion to say "No". A third option, rather than those two extreme options, is whether he is in a position to say that he would like to see the full evidence. That is a good question as there may be circumstances where one would not want the judge to adopt either of the first two options as that might frustrate the course of justice. I am advised—we shall certainly double-check that this is the case—that the judge has that discretion. It is important that he has it. It avoids him perhaps inappropriately saying "No" to an extradition case that otherwise might have had merit and gone forward. I put that on the record. We shall seek to demonstrate that that is the case.

On Question, amendment agreed to.

[Amendments Nos. 195 to 198 not moved.]

Clause 83, as amended, agreed to.

Clause 84 [Case where person has been convicted]:

[Amendments Nos. 199 to 202 not moved.]

Clause 84 agreed to.

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Clause 85 [Conviction in person's absence]:

Lord Filkin moved Amendment No. 202A:


    Page 45, line 18, 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."

On Question, amendment agreed to.

[Amendments Nos. 203 to 205 not moved.]

4.30 p.m.

Baroness Anelay of St Johns moved Amendment No. 206:


    Page 45, line 33, leave out from "person" to ""for" in line 34.

The noble Baroness said: This amendment has an English base but a Scottish question attached to it. It focuses on Clause 85(7) and was tabled on the advice of the Law Society of Scotland to probe the issue of uncorroborated evidence. I suspect that we will have a very clear reassurance from the Government—at least, I hope so.

When we looked at the Explanatory Notes to find out why Subsection (7), which provides for a different form of wording in Subsection (1) in relation to Scotland was necessary, we found that it was not even mentioned at all. This particular clause was mentioned by the Minister in the helpful briefing that was sent out after our meeting dealing with the special provisions for Scotland. He explained in this letter that Subsection (7) would provide that,


    "in Scotland, the Sheriff is required to decide the question of sufficiency of evidence requiring an answer as if the proceedings were summary proceedings in respect of an alleged offence by the person, on the basis of a single source of evidence. Normally in Scotland corroboration would be required in criminal proceedings but this would not be consistent with the evidential standard for the rest of the UK".

Our understanding of this explanation is that the subsection is necessary to ensure consistency in the treatment of evidence in extradition cases in England and in Scotland. However, we are advised that it could create inconsistency in the treatment of evidence in Scottish law and in Scottish extradition law.

Our amendment would ensure that there must be sufficient corroborated evidence before the judge can proceed under this section. If the person has already

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been convicted in absentia, then corroborated evidence of the offence should be capable of being exhibited. In these circumstances, the Law Society of Scotland can see no reason for departing from the standard principles of sufficiency of evidence and believes that evidence from two sources should be available before the judge can proceed. I beg to move.


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