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If we were to remove this clause today, we would keep to the current legal position on conditional cautions. The system has not yet been running long enough to prove its own merits or demerits, but we certainly hope that it will prove to have merits. Indeed, in Committee, when I asked the noble and learned Lord the Attorney-General about the reoffending rate for those who have accepted conditional cautions, he said that,

He also said that, if he could improve on that answer, he would write to me, and I am grateful to him for so doing at the end of last week. However, as he will know, my gratitude has to be somewhat tempered by the fact that his letter basically said: “I’ve got nothing more to tell you. There isn’t sufficient information to give a robust interpretation of the impact of the 2003 measures”. I have the letter in front of me and I give a précis of it, but the noble and learned Lord, while trying to be helpful, was not able to provide robust information to persuade me that the original cautions are working in the way that we hope.

It seems only sensible that, before further changing the law on conditional cautions, we should wait to see how the current law has operated in practice across England and Wales. After all, as the noble and learned Lord said, when Hazel Blears introduced these matters in another place she acknowledged that they were an “innovative and radical departure” from

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the current law. That was way back in the spring—on the morning of 23 March, at col. 167. I have nothing against innovation, radical or whatever; if it is done for the right reasons, I would welcome it. But the Government have not yet proved their case on Clause 16, particularly in the light of the policies that they have headlined over the summer. They have themselves accepted that this is a significant matter that requires wider public discussion and consultation. I noticed that the DCA’s paper Delivering Simple, Speedy, Summary Justice, which was published in July this year, says at paragraph 7.7 on page 40, that,

I would certainly agree with such a consultation, but the wider debate called for in the DCA’s paper has not yet taken place. If we truly value accountability to the public and the victim, that consultation should proceed before we plunge in and include the clause.

Baroness Linklater of Butterstone: My Lords, I support the amendment. The extension of conditional cautions beyond reparation and rehabilitation to include wider punitive conditions is highly undesirable, as we have heard expressed so eloquently by the noble and learned Lord, Lord Lloyd. We entirely endorse the current principle of conditional cautions, which is that the only conditions that may be applied are those that will facilitate the rehabilitation of the offender or ensure that he or she makes reparation for the offence.

That underlines the very important principle that cautions are meant to be an alternative to entering the criminal justice process, and it is also a means of encouraging the person not to reoffend while still at the lowest level of offending. Indeed, I believe that reparation and rehabilitation constitute constructive punishment. Making good damage to a person's property or being required to attend a rehab clinic, for example, is much tougher than simply paying a fine, which allows the offender to walk away from the reality of what he has done.

Every means of keeping people out of the criminal justice system is to be encouraged, particularly where younger people are concerned. Never has this been truer than it is today, when people are criminalised earlier and earlier compared with 10 years ago, as is well documented. That has, in turn, contributed to the catastrophic situation in our prisons today, which is due in large part to the slippery slope on which petty offenders find themselves at an early stage and to the Government’s misguided belief that prison is the only way to be tough rather than their recognising the failure that it largely is. It is important that we find ways of diverting people from offending at the earliest possible stage, which is why the conditional caution is such a constructive tool in the process.

However, as we have already heard, the extension of conditional cautions to include wider punitive conditions is another matter entirely. This clause

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allows inclusion of specifically punitive conditions, which at the moment might include a fine of up to £500 or a community-based order of up to 20 hours, described, as has already been heard, by Hazel Blears as an innovative and radical departure affecting up to 30,000 people a year.

We have already voiced our concerns in this place about this extension of administrative justice to punishments imposed by the police and prosecutors rather than the courts because we believe that, as a principle of justice sentencing and punishment should be imposed by an entirely independent tribunal and not a biased prosecutorial authority. There is a real risk that these proposals could be seen as allowing the police and the CPS to act as investigators, prosecutors and judges. In addition, there is a further risk that the powers could be used to deal with high-level offending. My concern is how the proposals could affect younger people or those with special needs, who are very unlikely to understand or fully appreciate the implications of what is being offered and will have little idea of where to go for legal advice. Such people are, by definition, vulnerable, and a fear of prosecution and, in particular, the idea of having to go to court is enough for them to agree to anything, whether they are guilty of anything or not.

Any extension of more punitive conditions not only has alarming implications for the extension of administrative justice in this country but runs a risk of tipping vulnerable people into the criminal justice system. I feel that that is an unacceptable price to pay for simple, speedy, summary justice. It is not only potentially hazardous to the life chances of such petty offenders but it has serious implications for the management of the criminal justice system as a large number of people are likely to be sucked into it. They, society as a whole and our system of justice risk being damaged by it.

We entirely endorse the Government's policy to make reparation and rehabilitation a central feature of policy, and it seems to us that the current legal position on conditional cautions is a creative way of embedding it. We support the amendment and the retention of the current position on conditional cautions.

3.45 pm

Lord Goldsmith: My Lords, this group includes government Amendment No. 145, and I shall speak to that as well as responding to the speeches on whether the clause shall stand part. I shall do that first as, in part, it responds to at least one of the points made by the noble Baroness.

A concern touched on in Amendment No. 65, which was not moved by the noble Baroness, Lady Anelay, relates to the financial limit that is set out in the Bill and how that might be changed. I detected agreement between us on two points: first, that this policy—certainly this is the Government’s intention—is not intended to deal with high-level offending but with low-level offending and, therefore, it is right that there should be a financial limit; but, secondly, it was also acknowledged that financial

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limits, when set in primary legislation, need to have a mechanism for adjusting them. We responded to the concerns expressed about how that adjustment should take place by recognising that it would be appropriate to have as an additional safeguard for a change in the financial limit that no change should be made save by order subject to affirmative resolution.

Amendment No. 145, to which I now speak, seeks to ensure that any changes to time or financial limits on punitive conditions are subject to the affirmative resolution procedure. Therefore, it would require, as is obvious, any changes to those limits to be subject to a vote in both Houses of Parliament. That applies to the financial penalty and to the number of hours that an offender could be required to attend. I shall move that amendment formally when it is called.

I turn to the substance, which is the conditional cautioning scheme. I recognise, with appreciation, the support that has been expressed in all three speeches for the concept that we tried to introduce and have introduced in the Criminal Justice Act 2003. We believe that it was not enough to have simply a stark choice between a caution, which amounts to saying, “Don't do it again”, and an appearance in court, with all that that entails and with a penalty attached to it. We wanted to find ways to deal with low-level crime fast and effectively that would meet the needs of everyone, including the needs of victims when they are present. I believe the noble and learned Lord, Lord Lloyd, reads too much into what was said previously to say that this was all about victims. Certainly, a face-to-face meeting with victims is one way of dealing with a disposal, but it is certainly not the most usual way of dealing with a disposal. It certainly is not the most usual way of dealing with conditional cautions.

We also wanted to find quick and effective ways of dealing with the offending behaviour of the individual. The noble and learned Lord spoke about the rehabilitative condition, saying that he thought that that would apply to only a very few people. I beg to differ with him. The number of people in this country who commit relatively low-level crime as a result of problems with drugs, with drink and with other issues of that sort, such as anger problems, is quite high. One only needs to visit a magistrates' court any day of the week or, even more so, to visit a police station to see how often those issues arise.

However, once the scheme started to operate, it became apparent to those who were operating it that there were certain limitations in the scheme. The experience of operating it has been positive, but there are limitations in the cases where it can be used. I shall give one or two examples of that in a moment, as I tried to do in Committee when we dealt with clause stand part.

The noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Anelay, spoke of the time that we have had. There has not been enough time to reach any conclusions on the reoffending rate, but the scheme has been operating in parts of the country sufficiently to know that it is well worthwhile—I have had that directly from those operating it, who have also reported to me what the

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victims involved have said—and that there are limitations in how it works. I do not want to focus on the financial penalty first, but on the other condition referred to: the number of hours worked, which is looked at rather clinically. I shall give a good example, although this is not how it might operate exclusively.

You could come across an offender who has been spraying graffiti around the town. If you can identify the particular place that that offender has been spraying graffiti, you can invite him to agree that, instead of going to court, he will clean it off under the current scheme. That is reparative, because it relates to the specific graffiti he dealt with. Noble Lords might think that a good way of bringing the consequences of his behaviour home to the offender—“If you go around spraying graffiti, somebody must clean it off and you will be that person on this occasion”—and helping with his future behaviour.

However, if there is an instance where the graffiti for which he was responsible cannot be identified, although you know that he was the offender and he admits that he was, or it has already been cleaned off by the wall’s owner, you cannot say “We want you to clean graffiti off another wall instead”. In our view, that is not possible under the Bill because it is not actually repairing the specific damage he did. In terms of the benefit to him of seeing the effect of his offending behaviour, I believe that that would be an appropriate and proper response, although noble Lords may disagree. However, we could not do that without making the amendment.

Lord Lloyd of Berwick: My Lords, can the Minister explain how that argument would apply in the case of a fine, which is also, of course, covered?

Lord Goldsmith: My Lords, I am absolutely not going to shy away from that, and will come to it. It may be at the heart of the issue rather more than the point of work. It is important that noble Lords understand—this is why I take the liberty of explaining it—that the removal of this clause does not just deal with the fine element, but the sort of example I have given: that you cannot ask someone to clear up graffiti without being clear that he is responsible for it.

Where somebody has been drunk and disorderly, causing a nuisance in the community—goodness knows, I am afraid that happens a great deal—one might think that to say, “Right, you should help clear up the street on a Sunday morning, perhaps the street littered with beer cans from the night before”, would be an appropriate response. It would be a good way of bringing his offending behaviour home to him, and a good thing for the community. You cannot impose that under the current conditions. Nor can magistrates impose it, because they have a lower limit of 40 hours for community service, and cannot impose it unless it is of sufficient seriousness, which this would not be. We are missing a whole range of response.

I shall give an example of where the fine is appropriate. We currently have a system under which fixed penalty notices can be imposed by the police not just for driving offences or the sort of thing the noble

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and learned Lord referred to, but also, under schemes approved by Parliament, for things like drunkenness and public disorder offences. Let us take the example of someone who, on a Saturday night or whenever, drinks too much, comes out of the pub and starts with very bad behaviour. If he kicks in a door, you can invite him to repair the door if the owner of that property wants him to. Some owners of property will say, “We don’t want that person repairing our door. We don’t want him anywhere near our house”. You can suggest to him that he should go on a course to deal with his alcohol or attend self-help groups to deal with anger management. The police could impose a fine without going to court at all. It is important to recognise that, and, contrary to what the noble and learned Lord says, they have discretion—not on the amount, I accept—whether to impose a fine. What you cannot do at the moment is to say, “What this really needs is your agreement to deal with your problem by going on some sort of course, but you also need to recognise the wrongness of your behaviour by paying a relatively modest financial penalty”. You cannot at the moment do both.

The prosecution could give a conditional caution to deal with alcohol management or anger management and the police could impose a penalty. Both those things could happen outside court, but you cannot do both. This provision would enable both to be done.

What are the safeguards? This is important because the first point raised by the noble and learned Lord was a constitutional concern that punishment should be imposed by the courts. I am a little surprised that no noble Lord who has spoken has referred to the fact that this is not an imposition at all. It remains for the courts because no offender will be required to accept a conditional caution. It cannot be imposed on him against his will. He will have free legal advice on whether to accept the condition. If he does not accept the condition, he can simply say, “I will go to court. I will plead not guilty in court”, or, “I will plead guilty in court and I would rather have the court deal with it”. It is not a case of giving the prosecutors the power to punish because it is for the court ultimately to do that. A condition is being offered which differs from fixed penalties, which are a punishment imposed not by the prosecutor but by the police. I give way to the noble and learned Lord.

Lord Lyell of Markyate: My Lords, I am grateful to the noble and learned Lord the Attorney-General. Is what he is saying in accordance with how human nature works? Is not the power of the prosecutor, or indeed the police, to say, “We are going to do this to you; of course you can go to court” a very powerful arm-twisting power, and does it not have to be kept under very close control?

Lord Goldsmith: My Lords, the noble and learned Lord will perhaps not be surprised to hear that I do not disagree with him about not having arm twisting.

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That is why the safeguards are important. Let me enumerate them. The first and most important is that nothing can actually be imposed. The offender does not have to admit his guilt. He can go to court. He does not have to accept the condition. He can go to court and leave it to the court to decide. But there are further conditions. This does not apply unless the proposed response is appropriate and proportionate. That is in guidance.

Secondly, the offences for which the conditional caution could be given are limited by guidance, not from the Home Office but from the Director of Public Prosecutions and approved by the Attorney-General. That will not just cover which offences are considered, it will also control the way the scheme is operated. A detailed matrix will be developed following consultation that will set out which offences could be considered for a financial penalty condition and provide guidance on the level of that penalty, again to be approved by the director and me.

Thirdly, before the condition can be proposed, there must be sufficient evidence to prosecute. The prosecutor needs to be satisfied about that. The noble and learned Lord and others will see the distinction, for example, from a fixed-penalty notice for drunkenness which does not involve a prosecutor being satisfied on the evidence; a police officer could just impose it. The House might think it would be better to have the involvement of the independent prosecutor.

Fourthly, one of the key tests to be applied to the decision to offer a conditional caution will be whether it is in the public interest to divert the offender from prosecution. That is clear in the Code for Crown Prosecutors. It identifies cases for a conditional caution as follows:

Fifthly—I mentioned this point previously and it directly relates to the concerns expressed by the noble and learned Lord, Lord Lyell of Markyate—free legal advice will be available. As I said in 2003, that may be telephone legal advice, but legal advice will still be available to someone as to what is the effect of a condition, whether to accept it and whether that is the right thing to do.

As I said, the conditions must be proportionate to the offence; they must be suitable to the offender; and they must be achievable. I hope that I gave reassurance previously that they would take into account the means of the offender, for example. That will be clearly set out. The offender has to admit his guilt before a condition can be agreed. There is no sanction for breach of a conditional caution. If the offender does not meet the condition, he gets taken to court, not for breach of the condition but for the original offence.

4 pm

Lord Burnett: My Lords, to what extent will offenders be given clear notice of the fact that free legal advice is available? Furthermore, what information will be given as to their right to proceed to court to have the matter adjudicated there?



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Lord Goldsmith: My Lords, both will be made clear to the offender. I have made that plain throughout.

I want to bring my remarks to a conclusion because there is much more business to deal with. I have tried to emphasise, first, why I believe that the current scheme does not deal with cases where victims, the community and the public will benefit from having a speedy response to low-level crime, and, secondly, that substantial safeguards are available to protect against the concerns that have been expressed. I agree with the noble Baroness that all ways—I noted her words—of keeping people out of the criminal justice system are to be encouraged. This is one way to do that.

I want to make one final point. A lot of the debate has focused on the financial penalty. As I have made very clear, that is by no means the whole of it. I believe that there is a strong case for having that financial penalty. However, some of the debate seems to have focused more on the possibility that that might be the only condition imposed. I have given examples of where we would want it to be together with other conditions, but I recognise that that may not be clear from the way that the Bill is drafted. If that is noble Lords’ only concern, we may be able to give further thought to that, but I strongly urge the House not to reject what may be a really helpful way to deal with low-level offenders in the interests of everyone, without infringing constitutional principle, because the constitutional principle is that, at the end of the day, it is the courts who decide. The courts will decide here, because they are not being excluded in any way. The offender can go to court if that is what he wants to do.

Lord Lloyd of Berwick: My Lords, I regret to say that the noble and learned Lord the Attorney-General has not dealt to my satisfaction with the basic point here, which is that it is contrary to principle that the level of sentencing should be set by the prosecution and not by the courts. In one sense, that may be regarded as a small point but, nevertheless, it is one of some importance on which I wish to take the opinion of the House.

4.04 pm

On Question, Whether the said amendment (No. 66) shall be agreed to?

*Their Lordships divided: Contents, 207; Not-Contents, 145.


Division No. 1


CONTENTS

Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
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