Clause 55 - Duty to give notice to foreign
Crime (International Co-operation) Bill [Lords]
4:44 pm
Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)
Clauses 55 and 56 deal respectively with the duty to notify foreign authorities of driving disqualifications imposed on their nationals in the UK and the recognition of foreign disqualifications imposed on UK residents as laid down in the EU convention on driving disqualification.
While I understand the concern reflected in the amendments to ensure that a driver subject to disqualification proceedings is treated properly and fairly, all EU member states, including the new member states, are signatories to the European convention on human rights, which guarantees the right to a fair hearing.
The convention allows the driver's state of residence to refuse to recognise a disqualification if it considers that the offender did not have an adequate opportunity to defend himself or herself, so that safeguard is already included. That decision should be made by the driver's state of residence, based on all the information provided by the state in which the offence was committed, or any additional information that the state of residence may request for the purpose.
In line with the requirements laid down in the convention, the Bill provides for the information transmitted to include either confirmation that the offender took part in the proceedings resulting in the disqualification or, if he did not participate, evidence that he was duly notified of those proceedings, and therefore had the opportunity to participate. That is
an important safeguard against proceedings in absentia, and will normally be sufficient to allow the authorities to reach a decision on enforcement of the disqualification.
Amendment No. 104 would extend the requirements for what is to be included in the notification sent to a foreign authority beyond the purely factual information required by the convention. A statement that written evidence exists of the adequacy of the opportunity afforded the driver to defend himself and to gain access to legal advice would involve a subjective assessment of the fairness of the court proceedings and, without the evidence itself being transmitted, would add nothing of value to the procedure. It would also introduce a test concerning access to legal advice, which is not provided for in the convention.
Amendment No. 106 would also go beyond the terms of the convention by requiring that evidence accompanying the notification, which shows that the offender was properly notified of the proceedings against him, be in written form. We would expect evidence normally to be given in written form, but the amendment is unnecessary and potentially restrictive, for example if we think about new forms of communication through electronic transmission. The convention requirement is that evidence be produced, and to go beyond that may create difficulties with recognition in other states.
Amendment No. 107 is along similar lines to the first amendment, and would make recognition of a foreign disqualification conditional on the existence of written evidence that the offender has had an adequate opportunity to defend himself and to gain access to legal advice. The Bill already makes recognition conditional on the offender having been duly notified of the proceedings and entitled to take part in them. That is a less subjective test than that envisaged by the amendment and recognises that the right to a fair hearing is already guaranteed by the European convention on human rights. It is certainly the case in this country—I think that it is the case in other European countries—that the decision over whether a defendant is getting a fair hearing and receiving adequate advice is a matter for the court to decide at the time that the defendant comes before it. The court will make a decision, and sometimes the case will be adjourned so that the person can find the relevant and proper legal advice. What is contained in the clause is adequate, and I shall resist the amendments.