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Lord Carlisle of Bucklow: I support what my noble friend Lady Anelay has said. In Clause 14, when dealing with proceedings in which the,

why under subsection (1)(c) should that be,

    "on an appeal before a court against a decision in administrative proceedings, being carried on, or intended to be carried on"?

Why should it not be an application that relates to the administrative proceedings themselves? I say that because "administrative proceedings" is defined in Clause 52 as applying to,

    "administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court".

That may be a definition of the term "administrative proceedings", but proceedings themselves are taken before the administrative authority. When the Minister from the Home Office was replying to the question of what were the administrative offences before administrative authorities, he said they were,

    "a category of offence that does not exist in the UK but does exist in some of our partner countries. In some EU countries, for example, offences such as driving offences are dealt with in that way".—[Official Report, 13/1/03; col. GC9.]

Does that mean—and if so why—that one can make a request for evidence to this country if one wants to use it in an appeal—presumably against a conviction for a driving offence, which has been carried out by an administrative authority—in administrative proceedings, but one cannot respond to a request for the evidence if one wants it for the purpose of bringing the case and conducting the case before the administrative authority in the first place? I do not see why it is necessary to have the proviso that a decision in administrative proceedings must have an appeal before a court, either being carried on or intended to be carried on, when the application is made. It would be much more consistent with what we are told about Clause 1 that the application could be made in administrative proceedings—those being proceedings which are in fact subject to an appeal—should either party wish, but not that the appeal was a necessary prerequisite.

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.

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It is the case that—and my noble friend Lord Clinton-Davis alluded to this matter—implementation 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 domestic—United Kingdom—procedures that precisely fit that description either. Our European partners say that they have such procedures. They may in certain cases be analogous to appeal applications—as we might call them—which they describe as clemency proceedings. Under the Schengen Convention of 1995 we are required to provide assistance on that matter.

To delete subsection (1)(c), which Amendment No. 36 seeks, would render us unable to provide the assistance required by Schengen and the 2000 Convention.

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.

Amendment No. 37 is not necessary, given that Clause 52 already defines clemency proceedings for the purposes of this part of the Bill.

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Therefore, I invite the noble Baroness not to pursue Amendment No. 36, and I have indicated my attitude to Amendment No. 127 when it is formally moved.

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 removal—and or reduction—of 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.

In order to put the matter beyond doubt, if one goes to the definition in Clause 52(1), it says quite simply that clemency proceedings are proceedings,

    "for the removal [and or reduction] of a penalty imposed on conviction of an offence".

I can reassure the noble Baroness that it includes only convictions of criminal offences.

Baroness Carnegy of Lour: I hesitate to query the noble and learned Lord, but the provision says that they are,

    "proceedings . . . not being proceedings before a court exercising criminal jurisdiction".

Lord Renton: Before the noble and learned Lord replies to that, I feel obliged to mention that I have been listening with great interest but with some confusion to the issue. Certainly, in our country the phrase "clemency" is used only in relation to other criminal proceedings. But here it is suggested that clemency proceedings in a country outside the United Kingdom shall not relate to proceedings before a court exercising criminal jurisdiction—exactly the opposite use of the word clemency. Frankly, and having listened carefully, the whole thing is very confusing.

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".

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4.30 p.m.

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,

    "proceedings in a country outside the United Kingdom, not being proceedings before a court exercising criminal jurisdiction".

I understand that to mean that the court that is hearing the clemency proceedings is not a court exercising criminal jurisdiction.

The closest analogy I can provide—although this would not be proceedings—is 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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