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Lord Filkin: The intention behind the amendments is to ensure that a person overseas who receives documents relating to UK criminal proceedings is able to understand them. That is right and proper. However, the Government believe that the clause achieves that.

The first amendments would require the person requesting that the process be served to provide a translation, if he suspected that the recipient did not understand English. The person asking for the process to be served would be the person running the investigation concerned—for instance, a police officer or an investigator for Her Majesty's Customs and Excise or the Serious Fraud Office. In the Bill, the requirement for a translation exists if the issuer "believes" that the recipient does not understand English. It reflects the exact wording of Article 5(3) of the mutual legal assistance convention. Changing the word to "suspects" would widen the obligation to include cases in which someone might not believe that the recipient did not understand English.

The requirement to provide a translation is a new safeguard and does not exist in the 1990 Act, although, in practice, most international process documents passing in and out of the United Kingdom are already translated. The provision confirms existing good practice. The Government consider that "believes" is the appropriate term for implementing the UK's international obligations, as there is a balance to be struck between providing proper safeguards and imposing unnecessary burdens.

[The Sitting was suspended for a Division in the House from 4.58 to 5.8 p.m.]

Lord Filkin: Before the Division, I was stating why we believed Clause 3 was adequate. It merely puts current good practice on the face of the legislation.

Amendment No. 12 would require the translation to be in "the", rather than "an", appropriate language. The Government believe that that is unnecessarily restrictive. To take the example given by the noble Baroness, Lady Anelay, the recipient may be bilingual;

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and therefore more than one language might be appropriate. For example, someone living in Belgium may speak French and Flemish, in which case a translation into either language would be appropriate. The amendment may be intended to ensure that there is no risk that the documents might be in a language that the recipient does not understand. That is a good intent. However, the requirement for "an appropriate language" is entirely sufficient. The word "appropriate" refers to the reader. If the language could not be understood by the recipient, it would not be appropriate.

Amendment No. 13 is redundant. It would require the language into which the service is to be translated to be one which,

    "the person on whom the process is to be served understands".

But that is already provided for. Although "appropriate" is not defined, a language not understood by the recipient of the papers is self-evidently not appropriate. Clause 3(3)(b) imposes a requirement that the process be translated into a language that the recipient understands.

The person making the request for the process to be served will be a police officer or other investigator involved in the investigation. As they will usually have some knowledge of the person on whom they seek to have process served, they will be able to judge what language the recipient will understand. It will not be in the practitioners' interests to serve process that cannot be understood by the recipient, as it is unlikely that it would be responded to.

The person issuing the process is likely to have some knowledge of whether or not the recipient speaks English. For example, if the process is a witness summons, the issuer will know who the witness is, and will be likely to have had previous contact with that person and the authorities in the country of residence. There is no absolute requirement to establish in advance whether the recipient understands English. But if, for example, a document is to be served on a Portuguese national residing in Portugal, the issuer is likely to believe that the recipient does not understand English and should translate the document, or relevant parts thereof, into Portuguese. In most circumstances, therefore, documents are likely to be clearly comprehensible by, and appropriate for, the recipient.

Without wishing to be tedious, for those reasons, we have not, in practice, experienced problems with that. The clause merely puts current good practice on the face of the legislation.

Baroness Anelay of St Johns: I am grateful to the Minister, in particular for his elucidation. As we left the Committee room, I was reminded by my noble friend Lady Carnegy that it is easy to slip into "jargonese". I know that I am doing that myself. I was grateful to the Minister for making clear that the decision in question will be made by the person running the investigation. It is useful to know that because, as the Minister rightly said, that person is likely to have background knowledge of the witness. The Minister gave the example of Portuguese. I shall give as an example Spain, where the language used can

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be a sensitive issue. The person running the investigation may not know whether a recipient would insist on a translation into Catalan or into more traditional Spanish, if I can call it that without offending the whole of Spain. It is important that that be clear.

The Minister is right to say that this is a new safeguard, and it would be wrong to hamper it with unnecessary burdens. But we are still finding it difficult to understand how some processes will work. The Minister has helped in that regard. There may be other occasions where the fog remains. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 and 13 not moved.]

On Question, whether Clause 3 shall stand part of the Bill?

Lord Carlisle of Bucklow: I apologise, as the confusion is probably my own. I do not understand the differences between Clauses 2 and 3. As I understand it, Clause 3 is the reciprocal arrangement to Clauses 1 and 2 and deals with the service of processes on UK citizens abroad for the purposes of criminal proceedings in this country. By contrast, Clauses 1 and 2 deal with the issue of processes, summonses and documents in relation to criminal proceedings abroad on people in this country who normally live in another. That is clear. We heard in previous debates that, where a notice is served requiring a person to attend as a witness or a party to proceedings, the service itself imposes no obligation under English law. Clause 2(1) states that there is no such obligation where notice is served,

    "in a part of the United Kingdom . . . requiring a person to appear as a party or attend as a witness".

Subsection 2 makes clear that the service of that notice, and a failure to comply with it, imposes no obligations under English law against that person. Subsection 3 states—and we had a short debate on this—that the individual on whom it is served must be told that his failure to comply cannot result in proceedings against him in this country. Clause 2(3)(b) adds that it should indicate,

    "that the person on whom it is served may wish to seek advice as to the possible consequences of his failing to comply with the process".

The Minister gave as an example that, if a person is summoned to attend criminal proceedings, that is a serious situation, and he might wish to receive advice on what will happen if he does or does not respond to the notice. Paragraph (c) provides that the person must be told that his treatment when he returns to his country may not be in accordance with how he would be treated if he remained in this country.

Under Clause 3, although the power to serve will be similar, the effect of the service will be totally different. Subsection (4) states:

    "Process served outside the United Kingdom requiring a person to appear as a party or attend as a witness—

    (a) must not include notice of a penalty".

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Subsection (5) specifies:

    "If process requiring a person to appear as a party or attend as a witness is served outside the United Kingdom, no obligation to comply with the process under the law of the part of the United Kingdom in which the process is issued or made is imposed by virtue of the service".

As I understand it, that means that, where a notice is served on a person to attend as a witness or a defendant, he must be told that his failure to comply with it would have no effect in this country. To reiterate, subsection (5) states that there is,

    "no obligation to comply with the process under the law of the part of the United Kingdom in which the process is issued or made is imposed by virtue of this service".

Surely, as in Clause 2, the recipient should be warned of the effects under the law of the country to which he is going of his failure to respond to the notice or attend proceedings.

Subsection (6) specifies that,

    "failure to comply with the process does not constitute contempt of court and is not a ground for issuing a warrant to secure the attendance of the person in question".

So, what is the advantage of having the power to require people abroad to attend proceedings—through a system of quick service of a summons for a criminal offence—if they are told that there will be no consequences, such as a contempt of court charge, if they ignore the notice and fail to attend proceedings? That is contrary to the provisions of Clause 2, which deals with the service of process in this country on people who come from abroad.

I have probably muddled the point. I noted the confusion while reading the legislation during the Division in your Lordships' House. I apologise if I have not made myself clear. I am confused as to why Clauses 2 and 3 are at odds with each other, if the intention behind the Bill is to have reciprocal arrangements for the improvement of co-operation on criminal matters.

5.15 p.m.

Lord Filkin: As usual, I do not believe that the noble Lord, Lord Carlisle of Bucklow, is being obtuse or foolish in any respect. I intended to ask exactly the same question when I read that part of the Bill. I shall seek to set out the reasons for our position.

As the noble Lord said, Clause 3 deals with the service of UK process abroad, not necessarily on UK citizens. It deals with situations where a court in England, Wales or Northern Ireland wishes to serve process on a person outside the UK. It is an essential part of mutual legal assistance. The clause builds on the existing arrangements in Section 2 of the 1990 Act. The range of documents included in the word "process", however, is defined in Clause 52 to reflect the wider definition set by MLAC. That clause also deals with the requirements set out in Article 5 of MLAC, which deals with cases where it is known that the recipient does not speak English, as he was previously spoken to.

Clauses 3(5) to (7) deal with the consequences of non-compliance with the process. As the noble Lord, Lord Carlisle, noted, process served outside the UK

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does not of itself impose any obligation on the recipient under UK law. So, failure to comply with the process does not constitute contempt of court. That is because the objective is mutual legal assistance, not mutual recognition. To impose mutual enforcement of process would have been a radical step beyond the scope of the Convention on Mutual Assistance in Criminal Matters.

In practice, however, people largely comply with requests. If they do not, it would always be possible to ask the police in their country to take a statement. Furthermore, as subsection (7) explains, if the person served subsequently comes to the UK, he could be served with the documents again, and would then be subject to domestic provisions on non-compliance. So, if he continues to ignore the process he could be in contempt of court. That is at the heart of why a contempt of court charge is not immediately threatened to the recipient of notice served abroad. It was not felt possible to go that far under MLAC.

Clause 3(5) mirrors Clause 2(2). There is no extra-territorial effect either way. For those reasons, on how far mutual processes should go rather than getting to the fundamentals, we do not go as far as the noble Lord, Lord Carlisle, expected. That is the nature of the agreement and what we are seeking to enact in primary legislation.

Clause 3 agreed to.

Clause 4 [Service of process otherwise than by post]:

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