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"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—
(a) the suspect to be present at the retrial;
(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;
(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The noble Baroness said: My Lords, in moving Amendment No. 70, as an amendment to government Amendment No. 69, I shall speak also to Amendment No. 228, which is an amendment to government Amendment No. 227.

On looking at the Marshalled List, it may seem odd that I appear to have tabled a surfeit of amendments on the subject on retrial. I thought that I should put on the record why some of them have become unnecessary. Amendments Nos. 71 and 229 have, of course, been pre-empted by the tabling of the new government amendments. It would be my normal procedure merely to withdraw my own amendments to the government amendments in recognition of that fact. However, I could not do so on this occasion because I would have needed the permission of all those who had added their names to the amendments. For very good reasons, the noble Lord, Lord Goodhart, could not be contacted last week and therefore could not formally give his consent. That is a long way of saying, "I'm sorry they are still on the list. They should not be there; I shall not talk to them; ignore them; and we shall simply get on with Amendment No. 70".

As the Minister explained very carefully to the House today, the Government have done a meticulous job of redrafting the clauses which deal with convictions in absentia. The noble Lord, Lord Goodhart, pointed out that there was some kind of contradiction and we accept that the Government appear to have solved that problem. I shall be interested to hear later from the noble Lord, Lord Goodhart, whether he agrees with that. It has certainly satisfied us.

Unfortunately, we were not satisfied that, in simplifying and tying up that particular problem, the Government did not then go on, as we felt that they should, fully to address our concerns about the safeguards that need to be added with regard to convictions in absentia. Today, the Minister said that she considers that mechanisms already exist within the Bill—particularly in Clause 21—and within the Human Rights Act to guarantee a sufficiently strong series of safeguards when someone is retried after a conviction in absentia and that we should not continue to press our amendments.

27 Oct 2003 : Column 33

The Minister made similar arguments in Grand Committee. I noted that, at that stage, the noble Lord, Lord Clinton-Davis, who is in his place today, stated:

    "Retrials are different in certain member states".—[Official Report, 26/6/03; col. 120.]

That is where our concern lies. Last week, we heard from the noble and learned Lord, Lord Donaldson of Lymington, about the tremendous difference in judicial systems across the EU and, indeed, across the accession states, which will join us in the future. We still consider that our amendments are essential in order to provide three extra safeguards on the face of the Bill. The noble Baroness says that they are there. We consider those safeguards to be so important in respect of convictions in absentia that attention should, therefore, be drawn to them.

The first safeguard is the right of the person to be present at the retrial. Following a conviction in absentia we think it is vital that the person should be present at the subsequent retrial. The second safeguard is that the person must have the same right to hear and examine witnesses as he or she would have done at the original trial. As the Minister spotted, we redrafted this paragraph to take into account the comments of noble Lords, including those of the noble Viscount, Lord Bledisloe, who pointed out that in other countries witnesses may not be categorised as prosecution or defence witnesses. We agree with his comments in Committee and therefore, to meet his point, here we refer only to "witnesses".

Our third safeguard is that the defendant must have the same right to publicly funded legal services as any suspect or defendant would in those jurisdictions. We remain convinced that these safeguards should be made clear on the face of the Bill. I beg to move.

Lord Goodhart: My Lords, I rise briefly, first to apologise. Last week I appeared as counsel in the Court of Final Appeal in Hong Kong, which made it somewhat difficult for me to be contacted. Therefore, I was unable to consent to the withdrawal of Amendment No. 71 or, indeed, to put my name to Amendment No. 70, which certainly I would have done had I been present. Secondly, I endorse entirely the comments of the noble Baroness, Lady Anelay.

Baroness Scotland of Asthal: My Lords, it is important for us to consider Article 6. The right to trial is clearly set out. I remind the House that each and every country which has put its name to the framework document will be equally bound by the provisions of the European Convention on Human Rights. The position is that each country has a slightly different system, and the way in which we deliver trials has to accord with Article 6. So the outcome must be the same although the means we adopt will differ.

Also, I ask the House to bear in mind that if we were to pass provisions in our Bill which contradicted those of other countries or which made it more difficult for them in this way, it may be that we would not receive the same reciprocal response that we would like. I am conscious of what was said by the noble Baroness about putting these matters on the face of the Bill.

27 Oct 2003 : Column 34

However, I am concerned that this should go forward in this way. I am particularly surprised that our colleagues on the Liberal Democrat Benches have taken this view. I urge noble Lords not to press the amendment. With the greatest respect, we say that it is unnecessary and misconceived.

Baroness Anelay of St Johns: My Lords, it is always rather confusing when one has this unusual circumstance of amending a government amendment or seeking so to do. I simply reiterate my original contention that when one comes to a retrial of someone who has been convicted in absentia, it is vital that the safeguards are clear and on the face of the Bill. I understand that the Minister is trying to persuade me to accept that this would somehow make the other countries which have signed up to the framework decision feel that we were working against them. I am sure that that would not be the case, and that they would accept the fact that we were simply trying to put a clear commitment on the face of the Bill, which, in principle, the Minister also supports. I should like to test the opinion of the House.

4.24 p.m.

On Question, Whether Amendment No. 70, as an amendment to Amendment No. 69, shall be agreed to?

Their Lordships divided: Contents, 127; Not-Contents, 113.

Division No. 1


Addington, L.
Alexander of Weedon, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Cameron of Lochbroom, L.
Campbell of Alloway, L.
Carnegy of Lour, B.
Clement-Jones, L.
Cope of Berkeley, L. [Teller]
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Darcy de Knayth, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Ezra, L.
Falkland, V.
Fookes, B.
Gardner of Parkes, B.
Gilmour of Craigmillar, L.
Goodhart, L.
Gray of Contin, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Jenkin of Roding, L.
Kimball, L.
Kingsland, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lester of Herne Hill, L.
Listowel, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Mowbray and Stourton, L.
Moynihan, L.
Newby, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Stevens of Ludgate, L.
Stoddart of Swindon, L.
Strange, B.
Strathclyde, L.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Weatherill, L.
Wigoder, L.
Wilcox, B.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Brennan, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fitt, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Marsh, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Tomlinson, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and Amendment No. 70, as an amendment to Amendment No. 69, agreed to accordingly.

27 Oct 2003 : Column 36

On Question, Amendment No. 69, as amended, agreed to.

4.35 p.m.

[Amendments Nos. 71 and 72 not moved.]

Clause 21 [Human rights]:

[Amendment No. 73 not moved.]

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