Crime (International Co-operation)

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Mr. Peter Kilfoyle (Liverpool, Walton): I am quite taken by the words ''good reasons''. Does the hon. Gentleman think that those words would provide a charter for lawyers to raise objections to the delivery of the process? Presumably, that could be challenged in the courts.

Mr. Paice: I suspect that the hon. Gentleman is correct. That is why I prefer the words,

''the Secretary of State is satisfied'',

which is the conventional phrase in such situations. The proposed legislation is full of that and the hon. Gentleman will recognise that that is a more precise statement. The words ''good reasons'' would be wide open to challenge and would be a charter for lawyers to exploit.

Similarly, who would decide whether something was inappropriate? The current form of words adds nothing to the clause and it opens up the opportunity for weakness and vagueness. What matters is that service is effective. That is covered in the subsection and I challenge the Minister to explain what the words ''or is inappropriate'' add to the effectiveness of service.

Mr. Ainsworth: On amendment No. 12, the Secretary of State will not make the decision about whether a document should be served other than by post. The person requesting the process to be served—the prosecuting authority, for example—will assess whether there are good reasons why service by post would not be effective or appropriate at the time that the process is issued. A prosecuting authority might consider that direct service would be ineffective if it believed that the recipient would refuse to sign for a letter sent by a recorded delivery postal service.

On amendment No. 13, service by post might be considered inappropriate in cases where confirmation of service is a necessary procedural step in some proceedings. For example, if a document were a summons served on a defendant, personal service would prove that they were aware of the proceedings. In some circumstances that proof may enable the proceedings to commence.

The wording in subsection (3)(c) follows that of article 5(2)(d) of the mutual legal assistance convention. That puts the decision-making process about whether the postal service would be ineffective or inappropriate firmly with the requesting state. Ultimately, it is up to the issuing authority to use its discretion.

It is not the Secretary of State who will decide whether in a particular case the postal service is effective, but the person who makes the application.

Mr. Paice: If that is so, what arrangements will the Minister make under subsection (1)? It seems that

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under the provision either the Secretary of State is making arrangements for delivery mechanisms other than by post or it will be up to someone else. I cannot see why the Secretary of State is making those arrangements, only for someone else to act differently.

3 pm

Mr. Ainsworth: That is the guidance that will need to be updated to cover the methods that will be used in the case of service for people overseas. The Secretary of State will not involve himself in individual cases. Guidance will be available, and arrangements and facilities will be put in place, but the decision about what is appropriate in each case will be governed by knowledge of the case and the requirement that comes back. As I have said, if it is a summons, personal service will be necessary. It will not be the Secretary of State who will make that decision, but the prosecuting authority that is seeking to use the information in court when it comes back to this country.

Mr. Kilfoyle: I am fascinated by what my hon. Friend has been saying. I shall take the example used earlier of Nigeria. Will he tell a simple-minded soul, such as myself, if Nigerians wanted a summons to be delivered in the United Kingdom, would they be the authority that determined how it was delivered in this country? Would they be making the decision that we would then be obliged to follow up?

Mr. Ainsworth: The country overseas will request service in a manner that supports the way in which it wants to use the information in the court. If it is a summons, it will need to convince the court that something was received. It would be no use delivering it by post if it believed that receipt would be denied. Unless there are good reasons why we should refuse, we need to try to comply with requests from countries abroad; otherwise, the information that is received will not be in usable form. As I have said, that does not prove an obligation on people in UK law in any way.

The reverse also applies: we will need to request information in a way that will be usable in our courts. Therefore, it will be for the prosecuting authority in our country to decide whether service by post is appropriate. It will not be for the Secretary of State to decide in each case whether that is the most appropriate method and whether it would be effective. The onus is on the people who are making the application.

Mr. Paice: The Minister has explained clearly that amendment No. 12 is inappropriate because of the different responsibilities of the Secretary of State, as opposed to the court. I give him credit for convincing me on that point, but I am less convinced about the issue of inappropriateness. He argues that the post might not work because a signed receipt of a summons is needed; I should have thought that that was well covered by the phrase ''not effective'', as service would not be effective if receipt was not achieved. Nevertheless, I accept that the Minister has brought back the argument of what is already enshrined in the convention, so I will not pursue that at length. I am grateful for his explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 4 ordered to stand part of the Bill.

Clause 5

General requirements for effecting Scottish citation etc.

Question proposed, That the clause stand part of the Bill.

Mr. Alistair Carmichael (Orkney and Shetland): A number of issues strike me, many of which might have been raised in relation to clause 3. I will take them in turn in the order in which they appear in the Bill. In fairness to the Minister, I do not really expect him to answer my points off the top of his head, but he might be able to do so in correspondence, which could be copied to other members of the Committee.

I draw the Committee's attention to subsection (4), which refers to

''citation or issue . . . by the court''.

Citation is always done at the request of the procurator fiscal. The only occasion that I can think of on which citation is done by the court is in relation to a means court in the event of an unpaid fine, and that is outwith the normal understanding of criminal proceedings. However, it may be that minds have been applied to the problem and have come up with some answer to it.

I should be interested to know why subsection 5(a) says:

''A citation effected outside the United Kingdom . . . must not include notice of a penalty''.

At first, I thought that that was probably slightly esoteric, because the use of notices of penalty has been extremely rare in Scotland since the passing of the Criminal Procedure (Scotland) Act 1995. However, there are a small number of usually statutory offences for which the notice of penalty still appears on the face of the complaint. Indeed, it would probably be a plea to the relevance of the complaint if the notice of penalty did not appear on the face of it. That is a contradiction, and I should be interested to know, in time, how that will be dealt with.

On the question of the citation being effective outside the United Kingdom, subsection (6) mentions that there is

''no obligation under the law of Scotland to comply with the citation'',

and the consequential part in subsection (7) states that

''failure to comply with the citation does not constitute contempt of court and is not a ground for issuing a warrant to secure the attendance of the person in question or for imposing any penalty.''

How will that work in practice? There is an obvious difficulty.

If I commit an offence for which I think I will almost certainly go to jail, the sensible thing to do would be to take myself off to some foreign country where I might well choose to keep the prosecutor informed of my whereabouts, just to ensure that he uses those provisions to serve the complaint or indictment on me. I might then tell the court that it is my intention to plead guilty. Obviously, I could not be imprisoned in my absence, so I would be instructed

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by the court to appear for sentence. At that point, I might choose to stop co-operating with the court. What is the court to do in such circumstances? The citation having been effective outwith the UK in the first place, the court cannot issue a warrant for my arrest. The proceedings thereafter fall into limbo, and I can return to the United Kingdom cheerfully, thumbing my nose at the court. What is the thinking behind the provisions, and have those points been considered?

Again, the language in subsection (7) is unusual. It says:

''issuing a warrant to secure the attendance of the person in question''.

We would normally say ''a warrant for the arrest of the person''. Ultimately, the wording is for the purpose of issuing a warrant for arrest, but surely it would make better sense to keep it in line with the accepted terms employed in the criminal courts.

Mr. Ainsworth: As the hon. Gentleman acknowledged, he did not really expected me to answer on issues that are to do with the Scottish version of clause 3. We have consulted the Scotland Office and the Scottish Executive on the frame of the clause, but it might be best for me to give the hon. Gentleman a commitment to again consult those with expertise on Scottish law from the Scottish Executive and Scotland Office. Of course, I will copy any reply I give him to other members of the Committee.

 

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Prepared 10 June 2003