128 / 436
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
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.
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
112