Crime (International Co-operation) Bill [Lords]

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Mr. Hawkins: I was not planning to intervene in this part of the debate, but what the hon. Gentleman said about his professional experience reminded me of a case of a similar kind. It did not relate to requests for evidence, but it did affect the issue of service and delivery of documents, and I think that it goes to strengthen the points made by my hon. Friend the Member for South-East Cambridgeshire and the hon. Member for Orkney and Shetland.

I was prosecuting a case in which the special branch had a particular interest in the defendant, because it was thought that he and his brother were members of the Provisional IRA. It was a case that related in part to driving documents. The reason why the defendant was hoping to escape prosecution was because he had said, when stopped under suspicion of a variety of offences, that he would produce his driving licence elsewhere, and the police officer who stopped him was not familiar with the geographical position of that place in the island of Ireland, and did not know whether it was in the Republic of Ireland or Northern Ireland. When the defendant said that he wanted to produce his driving licence in Monaghan in County Monaghan, the British police officer simply accepted that, not realising that County Monaghan was in the Republic of Ireland, so that was therefore not a valid response to a request to produce a driving licence at a UK police station. That demonstrates the difficulties related to service that can be found between jurisdictions. The defendant claimed in court that he had produced his driving licence at the police station in his home town in County Monaghan, but it was impossible for the UK court to obtain evidence of whether that had happened. That is a small example of the way in which territorial differences, and where documents are produced and served, can throw a huge spanner into the works of British justice.

Mr. Ainsworth: I thank the hon. Members for Orkney and Shetland and for Surrey Heath for making my case for me. Amendment No. 3 would introduce a power to make regulations setting out when a document issued from an overseas authority is deemed to have been served on the recipient. We do not think that such a power is necessary. The hon. Member for South-East Cambridgeshire asked me how the process has been working under current legislation. Our assessment is that it has worked well since the 1990 Act came into power. The amendment is not appropriate, as what constitutes an effective service under clause 1 is ultimately, as the hon.

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Member for Surrey Heath pointed out, a matter for the law of the issuing state, not for the UK.

Clause 1 deals with documents issued by judicial authorities overseas. The law of the country in question, not that of the UK, will determine whether the document has been served. Issuing authorities may request a particular means of service. In practice, we expect most documents from EU countries to bypass entirely a central authority. The clause applies only where documents are not sent directly but via the Secretary of State. In those circumstances, the issuing state will request a particular form of service: either postal or, because of the requirements of the case, personal. Such proof of service as is obtained, whether a recorded delivery receipt or a receipt from the police, will be returned to the issuing authority, and it is for that authority to establish whether the form of service effected, and any proof of such service, constitutes effective service under its law.

The effect of amendment No. 8 would be to make personal service of process valid only if the person carrying out the service obtained a receipt signed by the person on whom it was served. Although the Government understand the reason for the amendment—to safeguard the rights of the recipient—we know from current practice that it would create unnecessary barriers to service of process.

The wording of clause 1 replicates the arrangements set out in the 1990 Act. There are occasions where a person flatly refuses to sign a receipt, even if served a document by a police officer. The Government believe that that should not be capable of rendering service invalid. Where that occurs, the constable is required to report to the UK central authority, which will record that the document was served, but that the recipient refused to sign the receipt, and will inform the overseas authority. All information—the manner in which the document was served, the date on which it was served and the fact that the person refused to sign—will be passed on. If we added a requirement for signature, we would effectively allow people to deny service for the reasons that the hon. Member for Orkney and Shetland mentioned. The argument that service should be judged by UK law was clearly taken apart by the examples given by the hon. Member for Surrey Heath. The authority in the issuing state must be satisfied, because under its law it will be dealing with the case.

Mr. Hawkins: I understand what the Minister is saying about the circumstances that he is advancing, but perhaps he misunderstood the import of what I was seeking to put forward—my point was to the opposite effect. In the case about which I spoke, if there had been a requirement for the Irish police to provide a receipt, there would have been clear evidence to help the UK court make a decision.

10.30 am

Mr. Ainsworth: We must frame our requests to the Irish authorities in such a way that the UK court is satisfied that service has been made, and the Irish authorities must do likewise. When a case is being heard in the UK, it must be for the UK court to decide

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whether the notice was served, based on the information it receives. In reverse, it must be for the Irish court to decide whether the notice was served. I am sure that the hon. Gentleman can understand that.

Mr. Paice: I am grateful for the Minister's response. As my hon. Friend the Member for Surrey Heath has just said, it was a little unwise for the Minister to suggest that my hon. Friend was seeking to undermine the amendment. He was actually supporting the point that I made about the words, ''if possible''.

On amendment No. 3, I follow the Minister's reasoning when he says that it is for the issuing court to decide whether process was served properly. Nevertheless, if the Secretary of State had included something on the form that that could take, the Bill would have been considerably enhanced. I accept the comment of the hon. Member for Orkney and Shetland that simply removing the words ''if possible'' would perhaps circumvent that, because the clause would then start to stipulate what service means. As I said in my opening remarks, the gist of amendment No. 8 is to ascertain what the Government mean by the words ''if possible''. As the hon. Gentleman said, that is vague, inelegant wording. In the Minister's example of where service is not possible, the recipient abjectly and flatly refuses to sign it. No Member would say that recipients should be able to get away with that. They should not be able to stand with their hands in their pockets and say, ''I am not taking it. I am not signing for it.'' That should be deemed to be service, and it could be dealt with by amendment No. 3. In the same way, the example of where it was not possible to get a receipt could also be dealt with.

There are many, and much looser, situations in which it would not be possible to get a receipt, or where that might be deemed to be so, for which it would be helpful if things were written down. The hon. Member for Orkney and Shetland referred to Scottish law, under which leaving a document on a burned-out site appears to be adequate. I was not aware of that, but I suspect that some people would question whether that method of service was adequate. However, if that is what Scottish law says, so be it.

Some definition would have been helpful, but having said that, this is not a major group of amendments and I do not wish to detain the Committee any longer. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

Service of overseas process: supplementary

Mr. Paice: I beg to move amendment No. 4, in

clause 2, page 2, line 20, after 'stating', insert 'in ordinary language'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 5, in

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clause 2, page 2, line 21, leave out 'indicating' and insert 'stating in ordinary language'.

Amendment No. 6, in

clause 2, page 2, line 21, after 'seek', insert 'legal'.

Amendment No. 7, in

clause 2, page 2, line 24, leave out 'indicating' and insert 'stating in ordinary language'.

Amendment No. 117, in

clause 2, page 2, line 25, after first 'as', insert 'a party or'.

Mr. Paice: Almost all the amendments in the group are identical. This is something close to my heart and, I hope, to the Government's. Wherever possible, legal information given to ordinary people who are not lawyers should be provided in ordinary language. The amendments would insert such a provision in various parts of the Bill dealing with the notice being provided with the process—the notice to which the Minister referred in his comments on the first group of amendments.

We seek to clarify the form that the notices will take, and we need to ensure that those on whom the process is served are aware of its implications. The clause guarantees that there is no obligation under UK law to comply with the process, and the Minister repeated that. He also said that the notices would be quite comprehensive, but it would be helpful if the Bill stated that they had to be in ordinary language. That would build in a safeguard in the case that further redrafts were carried out by someone with a slightly different approach to such things.

I am not clear about who will be responsible for drafting the notices. Will it be the Home Office or the chief constable? Will there be a national standard, or could notices vary from officer to officer? We cannot take it for granted that ordinary language will always be used. Obviously, it is helpful where it is used, but the purpose of the plain English campaign is to promote its use.

In that respect, I was interested to discover that current legislation regularly uses the terminology ''ordinary language''. Indeed, there are 72 instances in current legislation. I am the first to accept that it is not in the 1990 Act, even though I am obviously defensive about legislation that was passed by the Conservative Government. Of course, if the Government think that such legislation cannot be improved on, we take that as some sort of merit award. However, after 13 years, even I am prepared to say that there is a little room for improvement.

By inserting the words ''ordinary language'', we would simply be pursuing the line that the Government have taken in other legislation. To stick with Home Office legislation, sections 46 and 47 of the Criminal Justice and Courts Services Act 2000 refer to courts explaining the effects of exclusion orders and drug abstinence orders in ordinary language. Section 65 of the Crime and Disorder Act 1998 requires constables to explain the effect of reprimands and final warnings in ordinary language. It is questionable whether violent football spectators will understand ordinary language, but the term is used to in the Football (Disorder) Act 2000. Many

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other pieces of legislation, including many Home Office Acts, have included the phraseology ''in ordinary language''. I therefore hope that the Minister will be sympathetic to the amendments.

Grouped with them is amendment No. 6, which is in my name and those of my hon. Friends. It would insert ''legal'' to describe the advice that statutory notices would recommend people to seek when the process was served on them. Some would say that that was unnecessary and that such people would clearly seek legal advice. What other advice would they seek? Again, however, it would be helpful if the Bill stated that they should seek legal advice if they are served under an overseas process. I should be grateful if the Minister could tell us what form that guidance should take. Should the notice set out sources of advice where people should go to obtain it? They may simply want to ask their employer or the citizens' advice bureau.

There is also the issue of the legal process in the country that serves the process. Where will people obtain advice in that regard? In the debate in the other place, Lord Filkin argued that it was unnecessary to include ''legal'' in the legislation because it is already in the standard notice. If it is in the standard notice, however, it should be in legislation. I am glad that it is in the standard notice, but that does not negate the need to put it in the Bill. That the Government have decided to put it into the standard notice is a strong argument for putting it in the Bill.

The Government may argue that because ''legal'' is not in the 1990 Act we do not need it now, but there are always little ways to improve legislation. They regularly oppose amendments on the basis that they are unnecessary or that they already exist, but we are repeating part of the 1990 Act in the new legislation. If the Minister suggests that we do not need to make minor amendments, it will be a shallow excuse.

 

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Prepared 10 June 2003