Clause 5 - General requirements for effecting Scottish citation etc.
Crime (International Co-operation) Bill [Lords]
3:00 pm
Mr Alistair Carmichael (Orkney and Shetland, Liberal Democrat)
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
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.