With this it will be convenient to discuss the following:
Amendment No. 123, in
clause 20, page 9, line 4, leave out from 'retrial' to end of line.
Amendment No. 139, in
clause 20, page 9, line 5, at end insert—
'(1A) A person shall be deemed to have deliberately absented himself only if evidence has been provided that notice of the proceedings was personally served on that person.'.
Amendment No. 97, in
clause 20, page 9, line 9, leave out paragraph (c).
Amendment No. 124, in
clause 20, page 9, line 9, leave out from 'retrial' to end of line 10.
Amendment No. 165, in
clause 20, page 9, line 17, at end insert—
'(3A) For the purposes of this section, the judge should not regard as a retrial any retrial not including provision for—
(a) the suspect to recall prosecution witnesses where the prosecution are not obliged to call them again to give evidence;
(b) the suspect to call defence witnesses; and
(c) the same right to publicly funded legal services as any suspect or defendant.'.
Once again, our amendments were suggested by the Law Society of England and Wales. Amendments Nos. 123, 139 and 124 tabled by the Liberal Democrats would have a similar effect. They also added their names to our amendments, which refer to retrials. The purpose of the amendment is to include provisions for the suspect to recall prosecution witnesses in a retrial even when the prosecution are not obliged to call them again, for the suspect to call defence witnesses and to have the same right to publicly funded legal services as any other defendant in criminal proceedings. There must be basic safeguards during a retrial.
The Government say that a review amounts to a retrial, but the Law Society believes that it should be defined in order to include the right to recall prosecution witnesses. On Second Reading, the Minister said:
''A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.''—[Official Report, 9 December 2002; Vol. 396, c. 44.]
However, that is not what the Bill as drafted states. I entirely accept the Minister's good faith on Second Reading, and I am sure that he intended that the Bill
should reflect what he said, but as drafted it does not. It would do so if wording similar to that in the amendments were included; I am not wedded to any particular drafting. There is no reference in the Bill to the funding of defence costs, adequate legal representation, interpretation and translation. The Law Society makes the significant point that, unless such a provision were in the Bill, it would be questionable whether a review amounting to a retrial would satisfy the requirement to the right to a fair trial as set out in article 6 of the European convention on human rights. I am sure that the Government, having incorporated the ECHR into UK law under the Human Rights Act 1998, would not want the Bill to be in breach of that convention. I anticipate that the Liberal Democrats will take a similar line, and I hope that the Minister will take the matter seriously.
Yes, we take a similar line. With regard to amendment No. 123, the text of the European arrest warrant framework decision allows member states to guarantee that the subject of the warrant in such circumstances will have an opportunity to apply for a retrial.
Amendment No. 139 deals with trials in absentia. It would deem a person
''to have deliberately absented himself only if evidence has been provided that notice of the proceedings was personally served on that person.''
We—and Justice—believe it important to include a mechanism by which the judge can determine whether the person deliberately absented himself. In some European jurisdictions, residence can be deemed as that of a court-appointed lawyer, though the person may not even be aware of his existence. For a person to be deemed to have deliberately absented himself, evidence should be provided that notice was personally served on that person. In extra-territorial cases, the person should be subject to the process of ''obliging appearance''; and deliberate absence should not be established purely on the basis of a summons emanating from a foreign jurisdiction.
During the scrutiny process, I made it clear on behalf of the Government that nobody convicted in absentia would be extradited without the guarantee of a retrial. The hon. Member for Torridge and West Devon has read the part of the framework decision that provides that guarantee. The guarantee exists, at least in part, because we—this dreadful Government who draft such draconian legislation—insisted on it. We played a leading role at the heart of Europe in drafting this framework document. We were successful in achieving precisely the guarantees that the hon. Gentleman holds up as crucial. They are already present in the framework document and have been translated into the Bill, although it does not cover any semantic arguments that we might have with another jurisdiction that frames its laws in different language. Nothing of substance detracts from the commitment that I gave to the Scrutiny Committee on what the British Government succeeded in having included in the framework decision. We should stay at the forefront of such arguments to ensure that we
continue to frame future legislation on justice and home affairs as we have over the past few years.
The Bill unambiguously secures the commitment that we gave: unless a fugitive has the right to a retrial, or a review amounting to a retrial, extradition cannot take place. Responding to parliamentary concerns, we secured an amendment to the framework decision whereby a district judge must be satisfied that the person deliberately absented himself and that he has the right to a proper retrial—on both assertions, the fugitive can advance legal arguments in his defence—before extradition can take place.
Unlike an appeal, with a retrial the slate is wiped clean and the fugitive is presumed innocent unless and until the prosecution can prove the contrary. All the evidence is tested afresh and witnesses are cross-examined. The same arrangements for legal assistance and the payment of defence counsel apply. Amendments Nos. 96 and 97 would prevent extradition cases of convictions in absentia even if the person would be entitled to a full retrial. That is a strange position that cannot logically be supported, and I fail to understand the objection to extradition when a retrial or review amounting to a retrial is guaranteed.
It is surprising that the Liberal Democrats added their names to the amendment. Although as I noted before we seem to have the Eurosceptic wing of the party in Committee, it is surprising that members of a supposedly pro-European party would force every other country to adopt a legal justice system exactly like ours. That is a long way from the notion of mutual recognition. The important point should not be whether another country chooses to call its proceedings a retrial or uses other terminology, but that a British district judge has to satisfy himself that what is offered amounts to a retrial. If he is not satisfied, extradition will be denied. The amendments are not justified or necessary, and I ask the hon. Member for Surrey Heath to withdraw amendment No. 96 and not move the others.
I understand the Minister saying that some of the wording in the amendments is not absolutely accurate and may go too far, and in moving the amendment, I said that I was not wedded to any particular form of wording. However, our job in Parliament is to protect our citizens, and we do not share the Minister's faith that our citizens are always protected in foreign courts. As my hon. Friends the Members for Stratford-on-Avon (Mr. Maples) and for Henley (Mr. Johnson) have made clear in this Committee and in European Scrutiny Committee debates on the European arrest warrant, we have seen our citizens treated improperly in courts in existing EU partner countries such as Greece, Spain and Italy.
When we are writing UK legislation that affects our citizens, we should include what we think that a retrial should involve. That would not be to rewrite other countries' legal systems for them, as the Minister put it in an overblown way; it would be to ensure safeguards so that British subjects who come before a foreign court have minimum guarantees of their civil liberties. It is not simply a case of saying that if the district judge
is not satisfied, he will not grant extradition. We want to see guarantees included in the Bill, because that is our job in Parliament.
I will not press the amendments to a vote because, as the Minister said, their wording, which was suggested by the Law Society of England and Wales, may not be on point. However, the Minister should be in no doubt but that we will continually return to the issue, because of our experience of what happens under the current system to our citizens in foreign courts. It is not enough for the Minister to say that it is all right because we are dealing with mutual recognition and the UK Government have introduced some safeguards. We will return to the issue on Report and in another place, unless the Government take the matters more seriously and introduce their own amendments to include protections in the Bill.
The Minister said that the differences on amendment No. 139 are largely semantic. He then noted that the framework document provides protections before saying that it is open for other countries to draw their laws in a different way. However, we need protection, and the matter is unlikely to be forgotten in future proceedings on the Bill.