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The Earl of Mar and Kellie: I will say but one sentence in support of this amendment. I believe that the Bill is attempting to continue an unsatisfactory precedent, and I would very much like corroborated evidence to be required.

Lord Davies of Oldham: I thank noble Lords for the way in which the amendment has been presented. The noble Baroness has stolen a good deal of my speech by describing our response to the Law Society of Scotland.

Let me make the obvious point that the issue relates to a request from a Part 2 territory for the extradition of a fugitive in circumstances where he has been tried for and convicted of the offence for which his return is sought in his absence.

I understand that the Committee has discussed in absentia cases at some length when Part 1 was considered, so I do not intend to spend too much time on the general issues. Clause 85 is concerned with cases where the person has been convicted in absentia but is guaranteed a retrial or a review amounting to a retrial.

As the Bill stands, Clause 85(7) provides that when the judge in Scotland is deciding whether the evidence supplied to him is sufficient to make a case requiring an answer, he proceeds as if the proceedings in Scotland were summary proceedings in respect of an offence alleged to have been committed by the person, but may do so on the basis of a single source of evidence, which is the bone of contention between us. The amendment would remove the provision about evidence from a single source.

I have the greatest respect for Scottish law and its traditions, and I recognise the important point of principle which the noble Earl, Lord Mar and Kellie, has introduced into the debate. But it is a rule of Scots law that evidence from two separate sources, or corroboration, is necessary before there is legally sufficient evidence to convict, which is a very important consideration.

If the amendment were accepted, it would mean that since the proceedings are, in effect, ordinary summary proceedings, the normal rules of law in relation to evidence would apply. The judge in Scotland would therefore have to have evidence from two separate sources before there was sufficient evidence to make a case requiring an answer. I know that that is what the noble Earl wants, and it is an issue to which the noble Baroness has alluded.

Our aim with this legislation is to ensure that so far as is possible, the same regime for extradition applies across the three jurisdictions in the UK. We do not want a fugitive to be subject to different evidential standards in different parts of the United Kingdom. When the judge in England and Wales or Northern

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Ireland is considering the sufficiency of evidence in similar circumstances, he may do so on the basis of a single source of evidence. The effect of the amendment is that a judge in Scotland would require to consider the issue of sufficiency of evidence to a different and higher standard of evidence. In the Government's view, that would be undesirable.

Most of our extradition partners do not require corroborated evidence for a conviction, but this amendment would effectively require them to seek out evidence that they would not need for their own domestic conviction.

The Scots rule of law requiring corroborated evidence is a safeguard against a miscarriage of justice. We all recognise its value and there is much merit in that provision. But the fugitive is not on trial in Scotland and will enjoy the safeguard of being entitled to a retrial or a review amounting to a retrial on his return to the country that sought his extradition.

For these reasons of consistency across the jurisdictions of the United Kingdom and because the countries to which we would extradite an individual would have a single basis for their judgments on these matters, we hope the Committee will recognise that consistency suggests that the amendment should be withdrawn.

The Earl of Mar and Kellie: If I might respond with another single sentence, this is an example of the tiresome way in which United Kingdom law ends up in the Scottish courts. I will say no more about that at this moment.

Baroness Anelay of St Johns: I am grateful to the Minister for his exposition. We on these Benches are so used to hearing the Government wax lyrical about flexibility, yet suddenly here they want consistency. We are going from one extreme to the other.

I appreciate entirely the basis of the Minister's argument. I will go back to the Law Society of Scotland and see if it wishes to take the matter further. The Minister has highlighted the most important point—the person will not then be on trial on Scotland so the evidential standards cannot there be undermined because that person will be tried overseas. Therefore, when we return to the issues of retrial throughout the Bill's proceedings, it is even more important to ensure that retrial has as high a standard as is possible within the context of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 85, as amended, agreed to.

Clause 86 agreed to.

[Amendment No. 207 not moved.]

Clauses 87 to 89 agreed to.

[Amendment No. 207A not moved.]

Clause 90 [Physical or mental condition]:

[Amendment No. 208 not moved.]

Clause 90 agreed to.

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Clause 91 [Case sent to Secretary of State]:

[Amendment No. 209 not moved.]

Clause 91 agreed to.

Clause 92 agreed to.

Clause 93 [Death penalty]:

Lord Goodhart moved Amendment No. 209A:


    Page 48, line 8, at end insert "or if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release"

The noble Lord said: This brief amendment raises a point which is a matter of some concern to us. Clause 93 provides that a person must not be extradited to a category 2 territory if he could be sentenced to death unless the Secretary of State has received a written assurance that the sentence of death will not be imposed or not be carried out.

There may, however, be a sentence of life imprisonment with no possibility of release. There are, of course, some crimes of murder which are so dreadful that it is apparent that the murderer must never be released during their natural life. In this country there is power to direct a whole life tariff, but that is not mandatory—it can be decided upon the basis of the facts of the individual case. But there is at least the possibility that in some jurisdictions there may be crimes which carry a mandatory life sentence with no possibility of release. That would concern us greatly because it could be described as a sentence to a kind of living death. We do not think it is appropriate that that should ever be mandatory and that no person, neither the judge nor any outside authority, could have power to review the case.

This is a fairly modest amendment. It does not require that no sentence of life imprisonment without the possibility of release should ever be imposed. It merely requires that that sentence should not be mandatory because we think that it is, in some senses, so close to a death sentence that it should never be applied unless the cases make it overwhelmingly clear that nothing short of that will do. I beg to move.

4.45 p.m.

Lord Clinton-Davis: I support what has been said by the noble Lord, Lord Goodhart. I have little to add, save that the idea of a mandatory sentence of life imprisonment signals the failure of the sentencing authority. I do not want any provision in the Bill that would achieve that purpose. For that reason and others I support the amendment.

Lord Carlisle of Bucklow: I do not know whether the Minister is about to say that he has sympathy with this proposal, but is this not exactly what the Home Secretary is trying to achieve in the Criminal Justice Bill at the moment?

Lord Filkin: I am very grateful indeed that, where there had been any risk that I should find myself out of step with my right honourable friend the Home Secretary, that was not in fact the case. For reasons

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that I shall seek to explain, we believe that Clause 93 is essential, but we are not persuaded that an amendment seeking to take it substantially further is right.

I believe that the Committee will be aware of why we have included Clause 93 in the Bill. In short, that has been our practice: we have not extradited people anywhere in the world without a clear assurance that we believed we could trust that the death penalty would not be imposed in the case of someone extradited who was then found guilty of an offence which potentially carried the death sentence. Therefore, we have put that beyond doubt by formalising it in legislation in this respect.

We believe that to go further and to bar extradition in the circumstances proposed by the noble Lord goes too far. For a start, there is nothing in the Extradition Act 1989 which bars extradition in these circumstances. That is not a knock-down argument, but we are talking about the status quo: that is currently the situation and nothing has been brought to our attention that makes us feel that the provision is defective in that respect.

The 1989 Act operates under the European Convention on Human Rights, and therefore in certain circumstances arguments can be made that that might engage in certain situations—and, of course, the ECHR will still apply in the future in all these circumstances as a defence.

In practice, situations where there is no possibility of appeal seem to be extremely rare. I will not say that it never happens, but there is usually some form of appeal for clemency that can be invoked in other jurisdictions.

To take the example of a convicted war criminal, we believe that it should be the prerogative of a convicting country to decide whether a mandatory life sentence without the possibility of release should be imposed. However, as I have indicated and for reasons that I do not need to rehearse as I am sure they are well known to all Members of the Committee, we believe that the death penalty is a different matter. We believe that it should never be used as a punishment for a criminal offence.

We do not believe that there is the same matter of principle in the case of mandatory life sentences. Indeed, we have life sentences in the UK, but "life" means a period of time which is not necessarily until the end of the convicted person's days. We may discuss these issues in the future.

There is a further reason why I do not believe that we can go down this route. Without talking about this at length, justice requires that people who flee from justice in our country or someone else's can be brought to trial.

At heart there are two options for establishing a system of international law which we have discussed in relation to other Bills. One either goes down the route of mutual recognition, or one goes down the route of effectively seeking to harmonise fully judicial procedures and sentences. As we have indicated previously, we do not believe that that latter route makes sense. We believe that there are very strong

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reasons why our own legal traditions and sentences should be respected. The corollary, however, is that we have to respect those of other states.

That is not a statement at large. We are talking here about states with which we choose to make a specific extradition agreement. The decision to make such an agreement with country X, as we have previously indicated, will come before the House as an affirmative resolution. Therefore, there will be the possibility quite properly to inquire into whether that state is a suitable partner for extradition in the circumstances that we are advancing. So designation orders will be subject to the affirmative resolution.

With a moment's thought, one can see where this proposal might lead. If we went down this avenue, it would be open to someone else to say, "We will extradite to you in Britain only if your sentencing system or even your judicial procedures match ours exactly". That is a route that would lead to the collapse of effective international extradition. We believe that that would frustrate justice. We make an exception for the death penalty, for reasons that I need not set out at length. But for these reasons, it is not possible to agree to this amendment.


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