I beg to move amendment No. 132, in
clause 7, page 3, line 39, at end insert:
'(2A) For the purposes of subsection (2) above, the burden of proving the person's identity so that the judge is sure is on the prosecution.'.
Our amendment seeks clarification. We are dealing with individuals who will be in an alien environment in this country and who will often be confused and unfamiliar with the language.
Certainty about the identity of the arrested person is crucial. The amendment seeks to ensure, beyond all doubt, that the burden of proving a person's identity is on the prosecution. As currently drafted, clause 7 contains no specification of the evidential standard required, or of where the burden of proof lies in determining the identity of the accused. In the interests of the Bill and of justice, it is important to clarify the position. I look forward to hearing with whom the Minister believes the crucial burden of proof to lie, and why.
The simple answer is the judge. As clearly laid out in subsection (2),
''The judge must decide whether the person brought before him is the person in respect of whom''
the warrant was issued. That is pretty clear. The judge would have to arbitrate in any dispute over identity between the two interested parties. I do not see how
the amendment provides the judge with any assistance in taking the decision.
I am aware that Justice suggested the Liberal-Democrat amendment and we also support it. Surely the amendment is designed to make it clear that the burden lies on the prosecution to satisfy the judge that the judgment is sure. In other words, it would build into the Bill the normal standard and burden of proof and lay it squarely on the prosecution. How can it do any harm to build that provision into the Bill, as Justice suggests?
Let us get this right: there is no prosecution. We are talking about extradition cases. Is the hon. Gentleman talking about the state issuing the arrest warrant? Let us take the example of Sweden. Within 48 hours, it would have to prove to the satisfaction of the judge that the person brought by the British police is the person stipulated in the warrant. The judge will decide whether it is the appropriate person, as he does now and as he always has done under extradition law. Absolutely no change is being made.
Does the Minister concede that it is crucial that the identity of the person is established in these proceedings? Does he accept that ensuring that the person identified in the warrant stands before the judge is one of the most crucial aspects of the Bill?
It is. The hon. Gentleman should read subsection (3):
''If the judge decides the question in subsection (2) in the negative he must order the person's discharge.''
The questions in subsection (2) include the issue of the person's identity. If the judge decides that it is not the right person, he must order his discharge. That is how it happens now and there is no doubt about it. The judge must satisfy himself as to the identity of those brought before him. If he is not satisfied and doubts whether it is the right person, he must order his discharge.
I am interested to hear the Minister say that if the judge has any doubt whatever about identity, he must order the person's discharge. It is important to have that important point on the record. However, does the Minister agree that the sort of procedure envisaged is far more familiar to other jurisdictions—similar to the role of an investigating magistrate, for example, which is completely unknown to the United Kingdom?
My advice is that identity is practically never an issue in extradition cases. Whenever an extradition request is made at present, the person is brought before the Bow street magistrates court, which must, among other things, decide whether it is the right person. The Bill's requirement for the judge to decide on the right person is absolute. There is no prosecution, only the issuing state and the police who effected the arrest. It would be for the police to show who the person is and for the judge to satisfy himself that it is the correct person, and if he is not satisfied to discharge the individual. The situation is very clear.
It is all very well for the Minister to say that there is no prosecution, but the Minister will have regard to subsections (5) and (6) in which it is indicated that the power of the judge is akin to those in a magistrates court if proceedings were a summary trial, or, in Scotland, if they were summary proceedings. It might not be a prosecution, but clearly it is not a kick in the pants away from it. From the practical point of view, the first question that the judge or the sheriff will ask the person who is brought before them is ''Are you so and so?'' Thereafter, if there is any dispute about that point, it is for the prosecution to adduce evidence that that is the person who has been brought before the court. That is the procedure as I understand it in summary proceedings and those rules of the procedure would apply under the Bill.
The hon. Gentleman is beyond satisfying. We have even used the form of words that he was proposing earlier. The powers will be
''as nearly as may be the same as if the proceedings were summary proceedings''.
That is what he asked for a few minutes ago in relation to another issue. Is he saying that if a person appears before a magistrates court and remains silent, someone has to prove beyond all reasonable doubt that that person is the person on the arrest warrant or must be discharged? Who does he expect to prove that at that initial hearing?
I keep saying that there is not a prosecution at this stage. A foreign jurisdiction—another European Union country—has issued an arrest warrant. That has probably been placed on the Schengen information system. Let us say that in most of the cases the police are aware of the person's whereabouts. They know that they seek the hon. Member for Orkney and Shetland and that they can catch him here during the reasonable modernised hours of the House of Commons. They come along to arrest him and take to the Bow street magistrates court.
It is for the judge to be satisfied that the hon. Gentleman is the hon. Gentleman. If he is not, he should release him. Who does he expect to prove it and what level of proof does he expect the judge will need to satisfy himself if the hon. Gentleman flatly refuses to identify himself and to say nothing at all? Who does he expect will prove that person's identity? There is no prosecution. There is a warrant. The British police force have carried out their duty in the normal way as they would by arresting the person they thought was the appropriate person and bringing him in front of the courts.
The Bill draws a parallel with summary proceedings. In summary proceedings the person who is accused of an offence is asked: ''Are you Alexander Morrison Carmichael?'' That is the name that appears on the complaint along with the address
and date of birth. The answer to that is yes, in my case. The rules of procedure under summary proceedings are held to be satisfied as proof beyond reasonable doubt. The fact that the person in the dock is the person who is named on the complaint in summary proceedings has to be proved beyond reasonable doubt. That is part of the charge. In that case, if there is a challenge to that and I say, ''No, I am not Alexander Carmichael, I am Jim Wallace'', it is for the prosecution to bring forward evidence, such as fingerprint or identification evidence. That may be very unusual, but it is by no means unknown, and under the Liberal Democrat amendment, the burden would be on the prosecution to present evidence.
I thank the hon. Gentleman. I am trying to understand whether there is an issue of principle here. The provision says that
''the judge has the same powers (as nearly as may be)''.
If that is what the hon. Gentleman says the situation is, as nearly as may be means that the same circumstances would apply to what we are discussing.
I wonder how we can resolve the confusion. Justice and the Liberal Democrats wish to insert the word ''prosecution'', but we are surely talking about the British state bringing the person before the court at the request of the requesting nation. I do not blame the Liberal Democrats, because they adopted the wording proposed by Justice, but perhaps it would have been better to have separate clauses, one saying that the burden was on the state and the other saying that the standard of proof should be the normal one that we are used to expressing in criminal proceedings, that is: ''satisfied so the judge is sure''. Separate clauses without the word ''prosecution'' might have been clearer and would have achieved, with the support of the Conservatives, what Justice and the Liberal Democrats suggest.
I do not want the Minister to get too hung up on the fact that there is not technically a prosecution. We are talking about the burden being on the UK Government in executing a European arrest warrant and bringing someone before the courts at the request of a requesting state.
That may be helpful. The hon. Gentleman says that the judge must be satisfied so that he is sure. If it is acceptable to hon. Members, we will leave it at that. I will try to consider the matter and to ensure that hon. Members are satisfied that an appropriate identification is required and that there is no risk that the wrong people will be shipped off to foreign jurisdictions. I shall reflect on that and may come back to the Committee.
I am grateful. The fact that the Minister is prepared to debate in this way is a great credit to him. To sum up our short debate on amendment No. 132, the fact that identity is practically never an issue, as he said at the start, is immaterial. It may be a matter of doubt, and where it is, it falls on a person to make the case to prove something beyond all reasonable doubt. I am glad that
the Minister recognises that. Having heard what he said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
I seek clarification on a couple of points relating to remaining provisions in clause 7. First, with regard to subsection (6)(b), why is there no requirement for corroboration, which is fundamental to a summary prosecution under Scots law? I see no reason why the requirement for corroboration should be removed for these the proceedings.
Secondly, subsections (8) and (9) are rather inelegantly drafted. Surely it would be preferable to give the judge discretion on the question of bail in the first instance. The Committee will see that if the judge exercises his power to adjourn proceedings, he must remand the person in custody or on bail—[Interruption.] I am sorry; I had misread that. I withdraw that remark.
However, it would be useful if there were greater clarification of the circumstances in which bail might be considered under subsection (9).
It is utterly outrageous that the hon. Gentleman should accuse me of inelegance. I have never been accused of that before.
I hope that subsection (9) is clear: it gives the judge discretion. If he decides to remand a person in custody he can return to that decision and change his mind. As to the hon. Gentleman's point about corroboration in subsection (6)(b), unless something pops into my mind in the next few seconds, I do not have the faintest idea of an answer. I will check it out and come back to him if it is important. I do not know what he is talking about, to be sure.
Question put and agreed to.
Clause 7 ordered to stand part of the Bill.