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Lord Goldsmith: The amendments seek to amend in different ways the definitions of the type of proceedings where the United Kingdom would be able to provide mutual legal assistance. It might be helpful if I explain in a little more detail what paragraph (c) is designed to cover, why its inclusion is necessary and how this relates to the existing judicial co-operation, mutual legal assistance provisions in the 1990 Act.
It is the case thatand my noble friend Lord Clinton-Davis alluded to this matterimplementation of the judicial co-operation of Schengen requires us to be able to assist other Schengen countries in relation to two categories of case: administrative proceedings and, at least, certain types of clemency proceedings.
There has already been discussion in Committee about what "administrative proceedings" in this context means. They are not straightforward to identify and define because they do not have an exact counterpart in our own legal system. The example cited in the explanatory report to the Mutual Legal Assistance Convention is a German offence. That is an offence which, whilst not classified as a criminal offence, is punishable by a fine imposed by an administrative authority. It is known as ordnungswidrigkeit. However, there is a right of appeal to the ordinary criminal courts. It is intended to be an administrative proceeding where assistance might be sought.
An example was given by my noble friend Lord Filkin of traffic offences, which under Dutch law are administrative offences. In this country they would be classified as criminal offences, albeit at the lower end of the criminal scale. There has already been an offer to provide any further helpful information as a result of the requests made when the Committee last sat.
The term "clemency proceedings" is also difficult to define. It does not appear to us that there are domesticUnited Kingdomprocedures that precisely fit that description either. Our European partners say that they have such procedures. They may in certain cases be analogous to appeal applicationsas we might call themwhich they describe as clemency proceedings. Under the Schengen Convention of 1995 we are required to provide assistance on that matter.
Amendment No. 127 adds the words "or reduction" to the definition of the term "clemency proceedings". The noble Baroness said that it was a probing amendment. I go further: I think it is a good proposal that makes clear that clemency includes reduction as well as removal. I am happy to accept that amendment and to do so as it is drafted.
The noble Lord, Lord Carlisle, asked a detailed question about how Clause 14(1)(c) operates and, in particular, the relationship between proceedings on an appeal against a decision in administrative proceedings and those proceedings themselves. We should look at that matter and study carefully whether his point is one that ought to be taken into account in the drafting. I propose that we should look at the issue and indicate, having done so, what stance should be taken.
Baroness Carnegy of Lour: I want to make absolutely sure that I have understood the matter. According to Clause 52(1), the definition of "clemency proceedings" is the removaland or reductionof penalties for offences which were not tried as criminal charges, but are matters such as driving licence offences in other countries which are tried in a different court. That does not apply to criminal charges. Is that correct?
Lord Goldsmith: I think not. They are two separate issues. The administrative proceedings are those which relate to an administrative offence, something which we might well regard as a criminal offence. It is tried as an administrative offence, but there is an appeal to a court and a penalty is imposed. Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically, but which may well include what we might think of as an appeal for a reduction in a sentence which has been imposed on the conviction of a criminal offence. I do not know whether it is theoretically possible to have a clemency proceeding against the finding of guilt on an administrative offence. That is not the point. They are distinct issues.
Perhaps I may make a rather bold suggestion. We all have great respect for the Attorney-General's legal ability, but instead of committing himself to an answer on these confusing and difficult questions now, perhaps he would consider between now and Report the whole use of the expressions, "administrative proceedings", "criminal proceedings" and "clemency".
Lord Goldsmith: By prefacing it by paying me that compliment, the noble Lord makes a seductive invitation, but, notwithstanding that, one to which I shall not accede. The specific point here is the definition of "clemency proceedings". Clause 52 refers to,
The closest analogy I can providealthough this would not be proceedingsis that of a Home Secretary exercising clemency in the days when Home Secretaries did that. He would not be a court exercising criminal jurisdiction, but most certainly he would be considering the removal or reduction of a penalty that had been imposed on conviction of an offence. Not being familiar with the procedures in our European partner countries, my understanding is that there are proceedings that are not before a court exercising criminal jurisdiction but that involve consideration of removal or reduction of a penalty that has been imposed on conviction of an offence.
I would expect that that means conviction of an offence in a criminal court. I hesitate about that only because the noble Baroness introduced the question of whether that may even apply to administrative offences. I do not want to say that it does not, although it seems to me unlikely that it does. The basic case will be that there has been conviction of an offence and there is a procedure called a clemency proceeding that goes before a body that is not a court exercising criminal jurisdiction that considers whether the penalty should be removed or reduced. If that is wrong, someone will write to correct me.
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