I did not want to discuss this in a clause stand part debate, but it is interesting that we just agreed to clause 79 and the new rule against double jeopardy while the Government are proposing in other legislation in the House to change the rules about double jeopardy. I see that the Minister is shaking his head, but my right hon. Friend the Member for West Dorset teased his Front-Bench colleagues about that. There is something of a mismatch between the different criminal justice legislation before different Committees at different times.
Indeed, Mr. O'Hara.
It will not surprise the Minister or other Committee members to hear that the Law Society of England and Wales suggested amendments Nos. 160 and 161, which would leave out subsection (3) and replace the word ''must'' with ''may'' when the statement is corroborated with independent evidence. However, there is a slight difference, because as well as the Law Society, we have heard the strongly expressed concerns of Liberty. On subsection (2), Liberty said:
''Category 2 countries still require the establishment of a prime facie case to be made out before extradition can occur. This requirement provides an important safeguard in the case of requests emanating from Category 2 countries, the majority of which are not signatories to the European Convention on Human Rights.''
Indeed, many category 2 countries will have nothing to do with Europe or the European convention on human rights.
The Government's proposal to allow a summary of evidence to be read is, in the view of the Conservatives and Liberty, a serious inroad into the protections that have existed historically in our extradition law. Liberty believes that the requirement for a statement to be in full should not cause any significant delay to the extradition, and says that if a summary is incomplete and does not contain all the required information, it may work against the Government's aim by resulting in further delays.
The Law Society of England and Wales said that, unlike the provisions for the admissibility of statements elsewhere in the Bill, there is no safeguard in the provisions on who has to prepare such a summary. As always, there is a danger that a summary may be partial and tailored to support the extradition request, and may omit matters that may assist the defence. My experience during years of practising in criminal courts may provide me with some assistance in making my case. The Minister will know that in the criminal courts, if a prosecuting solicitor is aware of any fact that may not help his case, he is under a duty to make the information available to the defence and the court. That is why the prosecution in our courts traditionally represents the Queen and has a duty to the courts to ensure fairness in the consideration of the defence case. It has become apparent that many of the so-called miscarriage of justice cases arose from the prosecution having information that was not disclosed to the defence or the court. That is what has caused some of the most celebrated miscarriages of justices in which the convictions had to be overturned, sometimes many years later.
The Conservatives are bound to be concerned about introducing provisions for a summary, and the Minister will confirm that it is completely new. Such a provision has not previously been in extradition law, so for once I will not have the Minister attacking me by arguing that the Conservative Government in 1989 agreed to it. It is some relief not to have to face that attack from the Minister yet again. The Minister is having difficulty justifying the introduction of summaries. I believe that great concern will be expressed in the other place. We shall listen with
interest to what the Minister has to say, because for the first time in this part of the Bill we are dealing with a matter of some substance. I suspect that, as the Bill proceeds, we will have to spend more time on this issue than on any of the other issues that we have dealt with this afternoon.
The hon. Gentleman is absolutely right: I cannot throw that allegation at him. We are talking about cases where the requirement for prima facie evidence is being retained, and the clause provides for a summary of the person's statement to be admitted as evidence. Our proposed changes, which so worry the hon. Gentleman, would simply mean that a foreign police officer's account of what a witness had told him could be admitted as evidence. Without that provision, that evidence would be admissible only if the police officer came to the court in person to give it. Apart from the trouble and the expense that that would entail, a subtle but important consideration is that the task of the district judge is to determine whether there is a sufficient case against a person to warrant sending them to stand trial. In such prima facie cases, it is not the job of the judge to conduct the trial, or to establish the guilt of the fugitive beyond all reasonable doubt.
Clause 83(3) is an important provision. It will make things much easier for most people involved in extradition, and it is important to stress that the district judge will always have discretion over the presentation of summaries of evidence. He can decide not to admit the evidence if he has any doubts about its authenticity or reliability. He can decide that the summary is not admissible, and that any evidence must be produced differently. We want to give the judge that discretion in order to make the arrangements more workable. It is an important safeguard, and it is the basis on which we seek to make the changes.
I am not surprised that the provision has caused concern. It is new, but I must say to Opposition Members that people who practise extradition have talked about it for some time. It gives the judge the discretion over the presentation of summaries of evidence, but does not say that evidence can be presented and will be accepted in a particular way. The amendment would deny the judge the ability to consider summaries of evidence. That is the current position, and if the Opposition are opposed to the district judge being allowed to give consideration to such summaries, they must stick to their current line. I wonder if, on reflection, they would be so opposed to that discretion and believe that it is such a threat to justice.
That takes some doing, as my hon. Friend well knows. I see no point in having a summary of a statement. If I read the provision correctly, it means that I make a statement and someone else provides their interpretation in a summary, which a judge examines before taking a decision. If someone else writes a summary, it is their opinion of what I
said, but I want the judge to see exactly what I said rather than what someone else thinks I said. I ask the Minister to reflect further on the problem.
If I frighten my hon. Friend, I am very worried indeed, as I have heard him express views on all policy areas and fear is not usually apparent. In a case such as he describes, does not my hon. Friend have any faith in the judge's ability to decide that a summary is inappropriate and an improper reflection of the evidence supplied? We want evidence to be heard first hand, but that may not be possible, and the proposals enable it still to be heard.
At the other end of the spectrum, does my hon. Friend accept that, although the judge may feel comfortable about accepting police reports as evidence, he cannot do so currently? Individual police officers need to travel from jurisdictions abroad to provide the evidence and the judge has no discretion to decide when he is comfortable that the evidence is authentic and delivered properly. My hon. Friend would accept that the provision amounts to a boon in time saving and money saving, but no one wants to open the door to potential injustices. That is what my hon. Friend is frightened of, but in the light of the many conversations with him over the years, I am surprised that he has not been more frightened about other issues in the Bill.
My hon. Friend is right. I am generally in favour of the thrust of the Bill in respect of time saving and efficiency, but how can a judge take a decision about whether a summary is fair if he does not possess the original statement, and if he has the original statement, what is the point of the summary? I cannot get my head around that.
The judge must be satisfied that the evidence that he is using to take a decision is bona fide, authentic and appropriate. If he is not satisfied, he has unhindered discretion not to allow it as evidence. It is a matter for the judge. Should we restrict his discretion and say that hearsay evidence cannot be accepted in any circumstances because it makes us feel dreadfully uncomfortable, or should we allow the judge to hear the evidence in certain circumstances? That is the question that members of the Committee must decide.
As so often in the past, I echo the common sense of the hon. Member for Doncaster, North (Mr. Hughes). If we allow summaries in this new legislation, the danger is they will tend to become the norm. Without the foreign policeman in front of him, the judge cannot analyse whether the summary is fair. If the person's full original statement is available, there is no need for a summary. The hon. Member for Doncaster, North is right; he made an unanswerable point.
A a district judge at Bow street magistrates court is bound to develop a method of operation to deal with part 2 countries in these cases. Is the hon. Gentleman really saying that he does not have confidence that a judge is capable of deciding what should be admitted as evidence, that he cannot be trusted in that respect and that there must be a bar on hearsay evidence and summaries of evidence being considered in prima facie cases? If that is not what the
hon. Gentleman is saying I ask him to intervene and put me right. I can understand that he wants to stay with the current, pure position: that whatever the jurisdiction, no matter how far away it might be, such as the northern territories of Canada, unless someone is prepared to turn up and give evidence in person, that evidence cannot be admitted in a prima facie hearing in London. If that is what the hon. Gentleman wants he can stick to the amendment, but if he wants to give the judge some discretion about what is acceptable, he should agree to the Bill as drafted.
There is some anxiety about the matter, but I hope we will have an open discussion so that people can see where we are coming from and the consequences of the measure. I ask the hon. Gentleman not to press the amendment at this stage. I shall continue to reflect on what has been said in the debate, and I shall be prepared to field questions further down the line. I hope that members of the Committee will reflect on the logistical problems that may arise in some circumstances. The Bill enables us to tackle some of those problems and to have faith in the judge's ability to decide what he can and cannot do without putting the principles of justice at risk.
I share the concerns of the hon. Member for Bolton, North—[Interruption.] I apologise, I should have said Doncaster, North. It is all England to me. I hope that my wife, who has roots in Lancashire, does not get to hear about that exchange.
I share the concerns of the hon. Gentleman, wherever he comes from, about the use of summaries. As I listened to him, I was taken back to my time as a prosecutor. We obtained police précis reports in the first instance in deciding whether to prosecute. Presuming that it had been decided to take proceedings, the next stage was to order full statements if there was to be a trial. Once we had the full statements, we often wondered who had written the précis report and what connection there was between it and the full statements. The hon. Gentleman makes a good point.
I am worried about what the Minister said about discretion. Even in the Bill as drafted—I appreciate that the removal of subsection (3) would be significant—the judge is not given a great deal of discretion. Regardless of whether amendment No. 160 is accepted, amendment No. 161, tabled by the hon. Member for Surrey Heath, would change ''must'' to ''may'', with the rider:
''where the statement is corroborated with independent evidence''.
That would provide the appropriate discretion. I hope that when he considers the matter before Report stage he will contemplate that provision.
This has been a more substantive debate. The intervention of the hon. Member for Doncaster, North was welcome. I do not know whether he remembers sharing a cab with me not long after Labour's victory in the 1997 general election. He explained the difficulty he was having as a Government Whip with some of the 1997 intake of Labour MPs over the importance of voting in the
Division Lobby rather than electronically. I do not think I am breaking any confidences in saying this, because he argued openly for the tradition of going through the Lobby. He said to MPs of the 1997 intake, ''If you don't go through the Lobby, you'll never get the chance to badger a Minister''. Now that he has returned to the Back Benches after distinguished service as a Government Whip he is taking the opportunity to badger the Minister in a different way, not in the Division Lobby but in Committee.
With regard to Government Back Benchers taking the opportunity to badger Ministers on such important civil liberties issues—this has some relevance to the debate, Mr. O'Hara—it occurred to me that at that time the hon. Member for Doncaster, North had a colleague in the Whips Office, and I am sure that many liberal conversations took place between them. They would not have been so constrained as they are now. The Minister was certainly not so constrained in his views when he was a Whip.
The hon. Member for Doncaster, North made an important point that reinforces our concern. The Minister has had to accept that the Government are proposing a major change to the present arrangements. We feel that, even if a policeman has to come from the northern territories of Canada, he should come for the reason given by the hon. Member for Orkney and Shetland, whose experience in the courts in Scotland reflects my experience prosecuting in the courts of England. If one saw a case note from what were county prosecuting solicitors in the late 1970s and early 1980s—it later became the Crown Prosecution Service—which was supposed to be a summary of the case, and then called to see the full witness statements, the difference between the two could be enormous. I am afraid that that could easily happen under this provision.
It is not that we do not trust judges to use their discretion, and we are not saying that there should be a bar. The Minister has to justify what he is doing, because he and the Government are making the change. I accept the Minister's good faith when he says that he will reconsider the matter. I certainly accept what the hon. Member for Orkney and Shetland says in drawing the Minister's attention to our unselected amendment that would reintroduce an element of discretion. However, because we feel so strongly about the matter, because of the points made by the hon. Member for Doncaster, North and the views of Liberty and the Law Society for England and Wales, we must put it to a vote.
As the hon. Gentleman has decided to put the matter to a vote, I shall say for the record that I will support my hon. Friend the Minister despite my reservations, because he has given the Committee a guarantee that he will consider the matter seriously as the Bill travels through its parliamentary process.