The Gazette 1990

GAZETTE

' APRIL 1 9 90

bility for changing their behaviour and for complying with the con- ditions and requirements of the various court orders. The group considered most at risk of engaging in criminal activity - 16-20 year olds - increased in 1988 by two percentage points. This group now accounts for almost half (47.8%) of all referrals to the Probation and Welfare Service. A feature of sanctions applied during the year was that some court areas used compensation as an integral part of community- based sanctions. Section 1 (3) of the Probation and Offenders Act, 1907 and section 3 (3) (d) of the Criminal Justice (Community Service) Act, 1983 empowers courts, when placing persons on probation or directing them to do community service, to make an order for compensation. During the year, the court ordered a total sum of £3,735.00 to be repaid in compensation. Of this amount, £2,039.00 was collected by the Probation and Welfare Service and refunded to various injured parties. An interesting facet of the Report is the success of the Community Service order system. When de- termining the penalty for an offence which merits an immediate custodial sentence, courts may instead order that the offender perform a number of hours of unpaid work for the benefit of the community. Before making such an order, however, the Criminal Justice (Community Service) Act, 1983 re- quires that the offender consents and that the court is satisfied both that he is a suitable person to perform community service work and that there is work available to be undertaken. There were almost 1,500 referrals for community service work by courts in 1988, while, for the first time, over 1,000 such orders were made within a 12 month period. This represents a 55% increase in the volume of orders made in 1985, the initial year of the Act's operation. The number of hours ordered exceeded 130,000, equivalent to 70 persons working full time for a year and represented a one third increase on the 1987 figure. This results not alone from a higher volume of orders made but also from a rise in the average number of hours

Woolf L J stated that the issues raised fell under four heads: — (A) Could a document transmitted by fax be regarded as having being served? His Lordship said that special considerations applied to writs and other documents used for initiating legal proceedings and nothing in his judgment was intended to apply to such documents. Similar considera- tions applied to the service of documents in this jurisdiction. However, Woolf L J posed the question whether, with the except- ion of that class of documents, there were any legal reasons why advantage should not be taken of the progress in technology which fax represented to enable docu- ments to be served by fax, assum- ing that that was not contrary to any of the rules of the Supreme Court. He stated that the purpose of serving a document was to ensure that its contents were available to the recipient and, whether the document was served in the conventional way or by fax, the result was exactly the same. What was required was that a legible copy of the document should be in the possession of the party to be served. His Lordship therefore concluded that service by fax could be good service subject to any requirement of the order requiring service of a particular document and any requirement of the Rules of the Supreme Court. The problem from the point of view of parties using fax as a means of service other than by agreement was that is might be difficult for a party to prove that a legible copy of the document had in fact been printed at the recipient's premises. (B) If the document could be served by fax, did that conflict with the Rules of the Supreme Court? Order 65, Rule 5 (1) stated that apart from documents falling with- in the special categories of those required to be served personally or those in the nature of an originating process: "service of any document . . . may be effected - (a) by leaving the document at the proper address of the person to be served; or (b) by post . . . or (d) in such other manner as the court may direct". This rule is equivalent to Order 12T, rule 2 of the Rules of the Superior Courts in this jurisdiction. The purpose of the Order was not to restrict methods of service

specified per order from just over 80 at the start of the scheme to 120 in 1988. The maximum num- ber of hours that can be ordered is 240 and one in every ten orders made specified an excess of 200 hours to be performed. SOME DOCUMENTS CAN BE VALIDLY S E RV ED BY FAX The Court of Appeal (Lloyd, Glidewell and Woolf L/ J) in Hastie and Jenkerson -v- tybMahon, The Times, April 3 r 1980, delivered an important judgment concerning the use of facsimile transmission of documents. The present writer has already dealt with that issue in this jurisdiction in "Service of Docu- ments by Fax" in the. Law Society Gazette, September 1989, p 318. In Hastie the Court of Appeal held that the use of facsimile trans- mission of a document (other than one required to be served person- ally or an originating process) constituted good service provided that it could be proved that the document, in a complete and legible state, had in fact been re- ceived by the person on whom service was to be effected. The Court of Appeal held that Order 65, rule 5 (1) of the Rules of the Supreme Court which is identical to Order 121, rule 2 of the Rules of the Superior Courts in this jurisdiction, (being permissive rather than exhaustive), did not outlaw modes of service not there specified. Woolf L J said that judgment had been entered by the defendant on the ground that the plaintiff had failed to comply with the consent order made by Master Hodgson on November 28, 1988. The order had required that: "the plaintiff serve on the defendant by 4.30p.m. on December 19, 1988 a list of docu- ments pursuant to the order of Mr. Registrar Greenslade dated February 12, 1988, or that they be debarred from defending this action". The court of first instance had allowed the plaintiff's appeal because the judge concluded that they had complied with the order of Master Hodgson by causing a clearly legible list of documents to be transmitted by fax to the defendant's solicitors by 4.10p.m. on December 19, 1988.

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