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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 concernedfor 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.
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;
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.
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
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.
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,
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 statesand we had a short debate on thisthat 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,
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.
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.
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.
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.