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Lord Thomas of Gresford: My Lords, before the noble Baroness sits down, perhaps I can ask a question. The letter from Judge Workman sets out the answers to the question that I raised but it also raises another question regarding these hearings in the absence of the defendant and his lawyers. As the noble Baroness will remember, those were commented on at paragraph 105 of the report of the Joint Committee on Human Rights which pointed out that they could well breach Article 5.1 of the European Convention on Human Rights. The committee also pointed out that,

Does the Minister think that these provisions may possibly breach that article as the committee thought, and does she have any proposals to deal with that point?

Baroness Scotland of Asthal: My Lords, your Lordships will know that we do not believe that these proposals breach that article. We believe that the proposals expounded by me from the Dispatch Box and contained in documents responding to queries adequately set out why we believe that these provisions are compliant. I hope that when looking at the very

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careful way in which the proceedings are monitored by the court the noble Lord will agree with me that there is every opportunity to make sure that the interests of the accused person are fully taken on board and that they are properly represented and are heard. Indeed, if I may respectfully say so, I certainly found the detail impressive in that it contained all the species of information that I should have liked to see given to the court to enable it to make an informed judgment on whether the police were being as expeditious as they should properly be. That therefore explains why so few cases are given the extensions but also gives us confidence that the same judges will be as rigorous in monitoring any further extension as they have been in monitoring the seven-day period.

Lord Lloyd of Berwick: My Lords, as before, I am very grateful indeed for the very full reply given by the Minister. I note that she did not answer the point which I specifically asked about the 16 detainees all being detained in respect of a single operation, but perhaps that is not the most important point. If it is, then of course it undermines very much her argument that that is something which is happening all the time.

Lord Carlile of Berriew: My Lords, I am grateful to the noble and learned Lord. I simply rise to correct a misapprehension. The 16 detainees are not all detained in relation to a single incident. Indeed, quite a number of them were detained before that incident occurred.

Lord Lloyd of Berwick: My Lords, of course the noble Lord is right. I was given the figures this morning by the centre for terrorist research in St Andrews. I was given the figures of 11, four and one, which add up to 16—all related to that one ricin incident. But perhaps I am wrong.

The noble Lord, Lord Thomas, is right that detention for 14 days is a gross breach of the European Convention on Human Rights. However, unfortunately, that does not help us, because in this respect we have derogated from the convention.

The Minister rightly says that in the end it is a matter of balance and judgment. However, she gives far too little weight to the fact that somebody who has not yet been charged with any offence known to English law is being held for 14 days and made subject to continuous interrogation. That is not right. Having made that point, I do not wish to press the argument in a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Clause 304 [Section 302: interpretation]:

Baroness Scotland of Asthal moved Amendment No. 238A:

    Page 172, line 17, leave out "Part 1 of the Sex Offenders Act 1997" and insert "Part 2 of the Sexual Offences Act 2003"

On Question, amendment agreed to.

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Clause 305 [Criminal record certificates: amendments of Part 5 of Police Act 1997]:

[Amendment No. 238AA not moved.]

Baroness Scotland of Asthal moved Amendment No. 238AB:

    After Clause 305, insert the following new clause—

(1) This section applies where—
(a) a person ("the claimant") claims that another person ("the defendant") did an act amounting to trespass to the claimant's person, and
(b) the claimant has been convicted of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.
(2) Civil proceedings relating to the claim may be brought only with the permission of the court.
(3) The court may give permission for the proceedings to be brought only if there is evidence that either—
(a) the condition in subsection (5) is not met, or
(b) in all the circumstances, the defendant's act was grossly disproportionate.
(4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both—
(a) that the condition in subsection (5) is met, and
(b) that, in all the circumstances, his act was not grossly disproportionate.
(5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because—
(a) he believed that the claimant—
(i) was about to commit an offence,
(ii) was in the course of committing an offence, or
(iii) had committed an offence immediately beforehand; and
(b) he believed that the act was necessary to—
(i) defend himself or another person,
(ii) protect or recover property,
(iii) prevent the commission or continuation of an offence, or
(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
or was necessary to assist in achieving any of those things.
(6) Subsection (4) is without prejudice to any other defence.
(7) In this section—
(a) the reference to trespass to the person is a reference to—
(i) assault,
(ii) battery, or
(iii) false imprisonment;
(b) references to a defendant's belief are to his honest belief, whether or not the belief was also reasonable;
(c) "court" means the High Court or a county court; and

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(d) "imprisonable offence" means an offence which, in the case of a person aged 18 or over, is punishable by imprisonment."

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 256, standing in my name, and Amendment No. 238AC, tabled by the noble Lords, Lord Thomas of Gresford and Lord Dholakia.

Amendment No. 238AB would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders. As noble Lords know, that issue was the subject of an opposition amendment in Committee. In responding to that amendment, my noble friend Lord Filkin indicated the Government's sympathy for the concerns raised by the Opposition in that area, but emphasised the importance of framing a clear and focused amendment that will genuinely strengthen courts' powers to reject unmeritorious claims. This amendment achieves those aims.

The amendment applies where a claimant has been convicted of an imprisonable offence. If the claimant wishes to sue someone for damages for a trespass to the person, including an assault or a battery, which was committed on the same occasion as the offence, he or she must first obtain the court's permission for the claim to proceed. The court may give permission only if the offender can show that certain conditions, relating to the defendant's perceptions and reasons for committing the act, which amounted to trespass to the claimant's person, are not met, or that in all the circumstances the defendant's act was grossly disproportionate. If the court gives permission, the defendant will not be liable at the trial if he or she can prove that the relevant conditions relating to his or her perceptions and reasons for acting are met, and that in all the circumstances the action was not grossly disproportionate.

As my noble friend Lord Filkin indicated, in drafting the amendment our thinking has been very much along the same lines as that of the Opposition in framing their earlier amendment. However, this amendment improves on that one in several ways—I hope that I can say that with a little modesty, because I did not draft it. It makes the procedure for the court to give preliminary consideration to the claim clearer by creating a formal permission stage. The need for permission will act as a filter to remove unmeritorious cases at an early stage without the defendant having to incur substantial costs.

The amendment provides a clear and strong evidential test—stronger than the "interests of justice" test in the opposition amendment. That means that the defendant will be prevented from relying on the defence of self-defence only if his or her actions have been grossly disproportionate. At present, it is lost if the actions have merely been unreasonable.

It makes clear that the other defences will continue to be available to the victim. For example, it will still be open to him or her to argue that the principle that a claim cannot be based on an illegal act applies. It benefits third parties who are not the direct victim of the offence, but who may have intervened to protect

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the victim or deter the criminal. It avoids the possible complexities of the opposition amendment relating to corporate bodies and proprietary interests. The courts are familiar with the concept of proportionality and the other issues which they will be required to consider. I am confident that they will be able to develop the law in a firm and sensible way. Amendment No. 256 amends the Long Title to cover the subject area of the amendment.

Amendment No. 238AC, tabled in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, amends the new clause. It would require that when the court is considering the defendant's beliefs about the necessity of taking the action which amounted to trespass to the claimant's person and about the circumstances in which the action was taken, it must consider not only whether the beliefs were honestly held, but also whether they were reasonable.

We do not believe that the amendment is appropriate. There is always the possibility that a vulnerable person may honestly believe that he is in danger, even though, considered objectively, the belief is not a reasonable one. We do not consider that this would deny him the protection of the clause. But that would be the effect of the noble Lords' amendment.

The reasonableness of the defendant's actions will be addressed by the court in considering whether, in all the circumstances, what he did was grossly disproportionate. The amendment would also be confusing and could create practical difficulties. The court would have to consider at the same time both a subjective element—honesty—and an objective element—reasonableness. Therefore, the Government cannot accept the noble Lords' amendment.

The clause tabled by the Government represents a real improvement in the protection given to the victims of crime and others who act on their behalf against unjustifiable claims. On mature reflection, I hope that the noble Lord, Lord Thomas of Gresford, will be persuaded not to move his amendment. I beg to move.

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