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Clause 18
Conditional cautions
Simon Hughes: I beg to move amendment No. 141, in
The Chairman: With this it will be convenient to discuss the following amendments:
No. 142, in
No. 113, in
clause 18, page 13, line 17, leave out 'either or'.
No. 123, in
clause 18, page 13, line 18, leave out 'ensuring or facilitating' and insert 'assisting towards'.
Simon Hughes: I welcome the Solicitor-General, who will respond to the debate on this important part of the Bill. She has been courteous in making herself available and letting us have supporting documents, as well as supportive of the idea of conditional cautions. I hope that she will consider the amendments in the same spirit, because we want the system to work well.
The amendments relate to subsection (1), which states that people who are authorised—I shall return to who that is later—
''may give a conditional caution to a person aged 18 or over''
if certain requirements are met. Those requirements are set out in clause 19, which we shall come to.
The background to the amendment is that the use of cautions has declined because they have been regarded as less effective, often by police, and society at large regards them as inadequate. The amendment would build back in another stage of options. The caution simpliciter would be at the bottom of the league of those responses that count but do not put a person on the criminal justice ladder. Conditional cautions would give people a telling off and require them to do something as a result, and if they did not, certain consequences would follow. People are always shouting for bigger penalties and more effective remedies, and conditional cautions give us a range of such remedies.
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Amendment No. 141—again, I am happy to discuss the drafting—seeks to make it clear that conditional cautions are in respect of an offence, but in place of
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criminal proceedings. We talk about the criminal justice system being weighed down with paperwork, and the Solicitor-General and I have sat through too many meetings discussing the fact that there are not enough police in our borough, and we have the same discussion again this year. The problem arises partly because officers spend so much time doing paperwork, and I am keen to ensure that we do not lock everyone who needs to be rebuked into a long and bureaucratic criminal justice process.
People must be clear about the principle. We are talking about a way of getting people to undertake to behave themselves that does not involve giving them a criminal record. We must be careful about giving criminal records to people as they are growing up and going through a stage of challenging society, because they are not really criminals in the wider sense. Such people might get carried away after a 21st birthday party on a Friday night and, ideally, we should try to keep them out of the criminal justice system. That is what amendment No. 141 is about. It would make it clear that conditional cautions were to be used instead of, rather than as the first step in, criminal proceedings.
Amendment No. 142 would ensure that a code of practice set out the conditions that could be applied to a caution. They could be varied in the light of experience, but the range must be known in advance. They need not be so tightly defined as to be inflexible, and I am in favour of their being more widely defined where appropriate. However, Parliament should approve the range of conditions, which is the reason for the amendment.
Lady Hermon (North Down): Is it not essential that the code of practice explain the significance of an admission of guilt to a person before they sign one? It should be made clear that it is designed to keep them out of prison, but that it will be admissible as evidence in criminal proceedings if that person does not comply with the conditions.
Simon Hughes: I am extremely sympathetic, and I hope that the hon. Lady will support the thrust of amendment No. 142, which would ensure that we get the conditions and the document of bail right. If the document is used in court, it must have the appropriate authority and status.
Mr. Stinchcombe: On a point of clarification, does the hon. Gentleman think that amendment No. 141 is necessary in the light of clauses 19(1) and 20(1), which seem to meet his concerns?
Simon Hughes: Well, I wondered whether we needed further clarification in clause 18(1)—I did not automatically presume that we did. The direct answer is that clauses 19(1) and 20(1) do not entirely meet my concerns, although they do by implication. The hon. Gentleman rightly asks us to pay attention to clause 20(1), which makes it clear that those who do not comply with conditions will become involved in criminal proceedings. My wish—this goes back to the point made by the hon. Member for Witney—is that we should be clear about the principles. We are discussing a process in which failure to comply will trigger a criminal offence that will go on someone's
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record. I am happy to work out a formulation that achieves that, but we should make clear up front what we are doing—it should not be hidden away. We all get waylaid by the styles employed by those who draft legislation, which change from time to time. Those involved obviously decided that the current drafting was the best way to proceed.
In relation to amendment No. 142, Parliament should agree the conditions; in relation to amendments Nos. 113 and 123, I support probing whether both rehabilitation and reparation should be accepted as objectives. Our formulations must reflect the reality that no legislation can guarantee good behaviour; we can only live in hope. I am happy to support the amendments and to co-operate with Committee members to ensure that we follow the recommendations of Lord Justice Auld's review on the criminal courts. We should learn from the experience of other countries that show that this is a good path to follow.
Mr. Grieve: The hon. Gentleman introduced this clause, and it and clauses 20 and 21 are of great importance. It is a very sensible move; I am wholly in favour of conditional cautions, and this part of the Bill therefore merits careful scrutiny. The hon. Member for North Down (Lady Hermon) correctly said that it is important to ensure that people fully understand the consequences of consenting to cautions.
I must tell the hon. Member for Southwark, North and Bermondsey that I agree with the hon. Member for Wellingborough—I am unconvinced that his amendment is necessary, although I fully understand why he tabled it. The hon. Member for Southwark, North and Bermondsey correctly summarised the purpose of amendments Nos. 113 and 123. I have a slight concern arising from amendment No. 113 about whether it would be correct to allow a caution if it were only assisting towards one or other of the two goals but not both. I wish to hear the Minister's view.
A situation could arise in which it was acceptable to give a caution if it facilitated the rehabilitation of the offender but did not ensure that he made any reparation for the offence. Even odder, it would ensure that he made reparation for the offence without contributing to his rehabilitation. Surely the two go together. Why, therefore, has the ''either or'' been introduced? The purpose of amendment No. 113 is to delete these words.
Amendment No. 123 is to prevent us from getting carried away with our own rhetoric. We cannot ensure the rehabilitation of offenders; we can only hope to assist in the process. The Minister may even be able to accept amendment No. 123 because we cannot ''ensure'' that an offender will be rehabilitated. Therefore our amendment reflects reality and will amend clause 18 so that it does not sound foolish.
The Solicitor-General (Ms Harriet Harman): The hon. Member for Southwark, North and Bermondsey has explained exactly the purpose of ''Part 3 Conditional Cautions'' of the Bill. There are two possibilities at present if there is evidence that someone has committed an offence: prosecution or a caution. In many circumstances that works well. I may not wish to
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describe conditional cautions as a ''third way'', but that, in effect, is what they are trying to be. It is still part of the diversionary process to ensure that someone does not go further and deeper into the criminal justice system. It is a caution plus; a caution with a bit of extra bite. Of course, it does not block off the possibility of later prosecution, and some of the amendments deal with such issues. It could be that someone will admit to having committed an offence and that the authorities will not want to prosecute in the first instance but will consider a caution to be inadequate. A mechanism would be needed that did not remove the possibility of a caution but imposed conditions, meeting which would bring an end to the matter. The hon. Gentleman has explained the hierarchy better than I might have done, and I refer the Committee to his explanation. His amendments are probing in spirit; the principles are restorative and rehabilitative.
I shall deal quickly with the point raised by the hon. Member for Beaconsfield. We can all think of circumstances in which prosecution would not be appropriate in the first instance but a caution would be inadequate. Something restorative would be a good condition. There might not be an appropriate rehabilitative programme for a particular offender, or it might be that rehabilitation is not the best response. Rehabilitation is key when restoration is not appropriate—so ''either or'' is probably right; we do not want to be too prescriptive. We want to enable conditional cautioning to be as useful as possible. That is why we want to leave open the choice between restoration and rehabilitation.
Amendment No. 141 would add
''in respect of an offence'',
which the hon. Gentleman acknowledges is already in subsection (2). However, it would also add
''in lieu of criminal proceedings''.
The object is right; people should realise that they will face criminal proceedings if they do not comply with the conditions and that is dealt with later in this part of the Bill, as my hon. Friend the Member for Wellingborough said. The danger of the amendment is that it might lead people to think that a conditional caution is just like an ordinary caution, in that it is instead of criminal proceedings. It might not be; so we do not want to give people the impression that if they agree to a conditional caution, it is in lieu of criminal proceedings. It is not; they might fail the conditions and find themselves being prosecuted. I agree with the spirit of the amendment, but its phrasing could be misleading.
Amendment No. 142 about the specification of the conditions in the code of practice breaches what we now know as the Witney principles. We want to illustrate as clearly as possible what we are trying to do so that we can be sure that people know and understand what we are aiming for. We want to give plenty of examples of what the conditions might be, but we do not want to inhibit people at local level if, in the face of a particular offence or offender, in the context of certain programmes, they can think of a condition that we have not thought of. We do not
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want to hold back people's imagination and creativity. That is partly because the legislation has not been enacted, and we should not try to anticipate all the conditions before the scheme gets going.
Even if it were possible to have a longer code of practice later on, when we saw how the scheme worked, it would not be appropriate now. It would also make the code of practice very long. If we had to envisage every condition that might be applied to assist with restoration or rehabilitation, it would be an enormous volume. It would probably be wrong because it would block off local creativity, but it might also be unworkable in practice if one had to specify all the conditions in the code of practice, as amendment No. 142 would have us do.
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