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The Deputy Speaker (Lord Haskel): My Lords, before I call Amendment No. 2, I have to tell your Lordships that if Amendment No. 2 is agreed, I cannot call Amendments Nos. 3, 4 and 5 for reasons of pre-emption.

[Amendments Nos. 2 to 7 not moved.]

Baroness Anelay of St Johns moved Amendment No. 8:

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"( ) The Secretary of State shall make regulations prescribing the circumstances in which a document is (or is not) to be deemed as having been served for the purposes of subsection (3)."

The noble Baroness said: My Lords, in moving Amendment No. 8, I wish to speak also to Amendments Nos. 10 and 11. What constitutes good service and proof thereof? Amendments Nos. 10 and 11 to Clause 4 probe the nature of the arrangements that will apply when United Kingdom criminal process is served overseas otherwise than by post.

The Explanatory Notes tell us that, following the entry into force of the Convention on Mutual Assistance in Criminal Matters (MLAC), most procedural documents will be sent directly by post from the issuing authority in countries which participate in MLAC or the Schengen Convention to persons in the United Kingdom. Subsection (3) replaces Section 1(2) of the Criminal Justice (International Co-operation) Act 1990, giving the Secretary of State, or, in Scotland, the Lord Advocate, discretion as to how to serve the document. Under subsection (3), it may be served by post or the chief officer of police in the relevant area may be directed to serve it personally where a request has been made for personal service.

In Committee, I used these amendments as a device to ask questions about what would constitute good service and why the Government would consider it important in certain circumstances to serve a document in person rather than by post. Today, I use them as a device to ask the Minister to put on the record the helpful response that he gave in his letter of 6th February. In that letter he rejected my idea that the arrangements made by the Secretary of State should be specified in the Bill or in secondary legislation on the usual plea of retaining flexibility for the Government. Sometimes flexibility can be misused by government, but on this occasion I believe that the Minister has justified the Government's stance. I invite him to put on the record the very helpful examples that he gave in writing of how different arrangements might be suitable in different countries. I beg to move.

Lord Goldsmith: My Lords, I am happy to respond to what is really an invitation to put on record the explanations given by my noble friend Lord Filkin in his letter of 6th February.

Amendment No. 8 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 regard such a power as either necessary or appropriate. It is not necessary because the arrangements for service of overseas process under the 1990 Act have worked well for the past decade without such a power. It is not appropriate because what constitutes effective service under Clause 1 is ultimately a matter for the issuing state, not for the United Kingdom. In this clause we are dealing with documents issued by judicial authorities overseas. The law of that country will determine whether the document has been served (or not served), not the law of the United Kingdom.

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Issuing authorities may request a particular means of service. In practice we expect most documents from EU countries to bypass the central authority entirely. Clause 1 applies only when documents are not sent directly, but are sent via the Secretary of State. In those circumstances, the issuing state will request a particular form of service: either postal or 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, but 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 other amendments in this group, Amendments Nos. 10 and 11, would require arrangements for the service of process from the United Kingdom to be set out by order. As the noble Baroness indicated, although the issue has been considered carefully since Grand Committee, the Government remain of the view that it is unnecessary.

In response to the noble Baroness's invitation, I set out what the letter of the noble Lord, Lord Filkin, stated. We think that specifying arrangements in an order has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain. Different arrangements might be suitable in different circumstances.

Documents destined for countries not designated as participating countries for the purposes of this clause will be sent to the Secretary of State, who will send them to the central authority in the other country, which will serve them on the recipient. But there may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority may send them to the overseas central authority for onward transmission, either by post or personal service, depending on its particular requirements. Alternatively, the issuing authority might send documents to the Secretary of State who will then send them to the overseas central authority, again for onward transmission from that authority either by post or personal service.

There will inevitably be occasions when an issuing authority will send documents to the Secretary of State in error when direct service would have been the correct route. We intend that in such circumstances the Secretary of State will then simply forward the documents directly to the recipient overseas. We would not want a situation where a statutory provision required him to send the documents back to the issuing authority because they had been sent incorrectly, when it would be a simple and clearly far more sensible solution for him to forward them himself. However, to set out such an option in an order risks giving the impression to issuing authorities that it is quite acceptable to send all documents to the Secretary of State because he will do the work of routing them overseas for them. That could encourage issuing authorities not to bother using the correct procedure, which would clearly be undesirable. Those are some

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examples of circumstances in which specifying arrangements in an order could lose flexibility and could give rise to problems.

Baroness Anelay of St Johns: My Lords, I thank the noble and learned Lord for putting that explanation on the record and for making it clear that it is a matter of common sense, which makes the requirement for flexibility nothing sinister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Service of overseas process: supplementary]:

Lord Goodhart moved Amendment No. 9:

    Page 2, line 28, after "a" insert "party or"

The noble Lord said: My Lords, Clause 2 applies to any process served in the United Kingdom requiring a person to appear as a party or attend as a witness in foreign proceedings. Under subsection (3)(c) of Clause 2, service of the process must be accompanied by service of a notice indicating that under the law of the foreign state in question, the person who has been served may not be accorded the same rights and privileges as a witness as would be accorded to him in proceedings in the United Kingdom. The notice is not required to say anything about the rights of that person as a party to the proceedings. The effect of Amendment No. 9 would be to require the notice to refer to the rights and privileges of the person served as a party or as a witness.

It is not clear why the omission of reference to a party occurs. On the face of it, the rights of a party, particularly the right not to give evidence—a party under English law, for instance, cannot be subpoenaed by the other side to give evidence and cannot be required to give evidence by the court—are at least as important as those of a witness. When this issue was raised in Grand Committee, the Government's explanation was that the present drafting simply repeats the drafting of an earlier Act, and that that has caused no problems. I do not think that the apparently defective drafting of a previous statute justifies the omission of words which, so far as I can see, should obviously be included in the clause. I beg to move.

4.30 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I thank noble Lords who have acknowledged the responsiveness of the Government to some amendments tested in Grand Committee. I can only hope that members of the Opposition will keep that highly quiet, otherwise I am done for, as they can well imagine.

Since Grand Committee, we have considered the amendment carefully, in great detail and at length, but remain of the view that it is not necessary. I will try to provide an explanation to give reassurance that the drafting is accurate and that the clause provides equal safeguards for defendants and witnesses, as is, I believe, the good intent behind the amendment.

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When a defendant takes the stand, he does so as a witness. There is no reason to read the word "witness" in Clause 2(3)(c) as excluding the defendant. I think that that is the crucial point. The meaning given to "witness" in the concise Oxford English Dictionary is a,

    "person giving sworn testimony in lawcourt or for legal purposes".

The word may be used in statutory provisions as including defendants. For example, Section 51 of the Criminal Justice and Public Order Act 1994 governs intimidation of witnesses, and the provision, of course, covers the intimidation of defendants in respect of their evidence.

We therefore see no reason why Clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant; rather the reverse is true. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. A notice will always be given to a party to the proceedings as well as a witness. That explains why subsection (1) refers to both a party to the proceedings and a witness, so as to ensure that the notice given under subsection (3) is given to both categories. However, we need only refer to a witness in subsection (3) because—I would like to stress this point—when a defendant takes the stand, he will do so as a witness.

Two types of privileges afforded to defendants were mentioned in Grand Committee, which were those against self-incrimination and spousal immunity. However, both are privileges afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. However, that is a privilege afforded to the party as a witness. Similarly, for example, under Section 80(4) of the Police and Criminal Evidence Act, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges which would be accorded to a party, in addition to those which would be accorded as a witness. For that further reason, we believe that the amendment is not necessary.

As the noble Lord, Lord Goodhart, indicated, the current drafting follows the 1990 Act. The notice given under Section 1(4) of that Act covered the rights and privileges of a witness only. We are following that approach. Clause 2 of the Bill is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant. However, that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and the Bill.

The amendment would mean that Clause 2(3)(c) would be incorrectly drafted, for the reasons that I have given. Despite having spoken at rather considerable

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length, I hope that I have explained that we believe that no mischief needs to be remedied by the amendment. I hope that that sets the noble Lord's mind at rest.

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