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Lord Goldsmith: In responding to the amendment, I shall speak also to government Amendments Nos. 80, 81 and 95, which stand in the name of my noble friend Lady Scotland.

The noble Lord, Lord Dholakia, referred more generally to the purpose behind this part of the Act and I am happy that he has done so. The clause creates a statutory conditional caution for adult offenders aged 18 and over who are willing to admit their guilt. As the noble Lord said, there is already a statutory scheme under Sections 65 and 66 of the Crime and Disorder Act 1998 for giving young offenders a final warning accompanied by intervention to reduce the likelihood of re-offending.

The new scheme would allow adults to receive a formal caution but with specific conditions attached. It is intended to be used in cases when more than a simple non-statutory caution is justified but when the circumstances are not such that the public interest necessarily requires a prosecution, or requires one if the offender is willing to undertake some other action—either of a reparative nature or something that may help to rehabilitate. I hope that the

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Committee will endorse the principle behind the new scheme as a way of finding appropriate disposal for offenders without clogging up the prisons unnecessarily, as one or two noble Lords have said in the course of the Committee.

The noble Lord wanted to be satisfied about how the scheme will work in practice—that it would not operate in a discriminatory way against particular members or groups of the community. I hope that he will not be surprised to hear me say that I wholly endorse that wish. He may be aware that the Crown Prosecution Service has been doing a great deal of work to ensure that it operates its functions in a way that is non-discriminatory and that it understands the different attitudes and cultural traditions of different members of the community. This morning I attended a conference at which the CPS launched a new policy in relation to racially or religiously aggravated crime, which was well attended by members of the community. I will come back in writing to the noble Lord on how the scheme will work.

Amendment No. 74 would insert,

    "in respect of an offence and in lieu of charging".

We believe the amendment to be unnecessary. It could also be misleading. That cautioning should be in lieu of criminal proceedings rather misses the point. If the conditions, once accepted, are not met, proceedings may still need to take place. We hope that the clause as drafted is sufficiently clear, and I invite the noble Lord not to press his amendment.

The government amendments make conditional cautions available to "official" prosecutors in addition to the CPS. The change was prompted by the view expressed by the Whitehall Prosecutors Group. A range of prosecuting authorities is represented in the group, which prosecutes on behalf of the public but not as the CPS. It believes that there may be cases in which this form of disposal would be suitable. The Government want to increase the availability of this important and useful power. At the moment, some of the prosecutors use simple cautions and the amendments would enable them to accompany the caution with a condition—that reparation should be made, for example.

Lord Carlisle of Bucklow: I welcome the new clause and the comments of the noble and learned Lord the Attorney-General about the principle. As I understand it, the amendment is an attempt to widen the power to caution to cover those who might otherwise be tried and might end with other forms of penalty. The conditions are very similar to the present power of the police to caution a defendant. However, with this welcome new power we are nevertheless imposing conditions that will presumably have to be supervised by someone. What effect will the new power have on the workload of the Probation Service? Have the Government involved the Probation Service in discussions on the proposal? The duty of,

    "ensuring or facilitating the rehabilitation of the offender"

will inevitably, at the end of the day, rest on the Probation Service, which is already very heavily pressed.

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Are we possibly in danger, yet again, of unintentionally increasing the prison population? I welcome the principle that, when it is suitable, people should be dealt with not by the courts, but by a conditional caution. However, if there is a breach of that caution, the offender goes back before the court. The court may impose any power on the breach that could have been imposed in the first place. There may be a temptation to impose a short period of imprisonment. I hope that, in practice, the effect will not be the reverse of what the noble and learned Lord the Attorney-General wishes to be the purpose of the clause, which is one that I welcome.

Lord Hodgson of Astley Abbotts: The amendment tabled by the noble Lord, Lord Dholakia, is a helpful probing one and I am grateful to the noble and learned Lord the Attorney-General for his explanation. We accept the importance and value of the conditional caution proposal.

I have one small question about Amendment No. 95, which relates to the definition of the relevant prosecutor. The amendment refers to, "a Secretary of State", which is an issue that we will raise later in respect of the codes of practice for conditional cautions. Why does it refer to "a Secretary of State", using an indefinite article? Surely it should be "the Secretary of State", since it refers to only one? No doubt the noble and learned Lord the Attorney-General will tell me that, in the world of the parliamentary draftsman, just as "unless" equals "if" and "not" equals "only", "a" equals "the". The clause would look better if "the" was used, because we are talking about a specific rather than any Secretary of State.

Lord Elton: I rise to support my noble friend Lord Carlisle and to take what he said a fraction further. He said that there would be more people in prison as a result of breach and linked that to his anxiety about an already overloaded probation service. My anxiety is that the probation service will not be able to supervise as it should and that there will therefore be a continual undercurrent of undetected breaches that will bring the system into disrepute, making people no longer afraid of the conditional caution, thus offending more enthusiastically and frequently and adding to the flow of people into crime.

We experienced a little of that with the introduction of the community sentence, when intermediate treatment, as it was first called, was a rigorous, well-supported and well-financed treatment—largely, I may say, by voluntary organisations. When that was broadened into the community sentence, a diminution of the respect with which it was held and its effectiveness began. I am anxious that if we have an underfunded or overloaded probation service, the same problem may repeat itself.

5 p.m.

Lord Goldsmith: I am happy to respond to the questions that have been raised. To deal first with the point made by the noble Lord, Lord Hodgson, this is

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not a case in which parliamentary counsel thinks that the indefinite and definite articles are interchangeable. The provision does not refer to a single Secretary of State, as the noble Lord's question presupposed, because more than one Secretary of State has a prosecuting function. For example, prosecutions issue from the department of the Secretary of State for Trade and Industry, so it is appropriate that the provision should refer to "a" rather than "the" Secretary of State.

Lord Hodgson of Astley Abbotts: I am grateful to the Attorney-General for giving way, but surely the Secretary of State for Trade and Industry does not issue conditional cautions.

Lord Goldsmith: Well, she might, because DTI prosecutions are conducted by one of the prosecuting agencies to which I referred earlier, which are represented on the Whitehall Prosecutors Group. In relation to certain offences with which the DTI deals, it may be thought appropriate to issue a conditional caution, so the Secretary of State for that department should deal with it. I give that by way of example; other departments with a responsible Secretary of State prosecute on health and safety, environmental and, I think, transport matters—although I may be wrong about the latter.

I was also asked a question by, among others, the noble Lord, Lord Elton. I recognise from his background and experience in diverting young offenders the sincerity and importance of that question. It will not in fact be the probation service that will be responsible for supervising conditional cautions. It has no locus before someone is convicted. The arrangements for supervision must therefore take account of other agencies, including the Crown Prosecution Service. That is being worked on at the moment; if the Committee will permit, I shall take the opportunity to give more information about the consideration taking place, not now from the Dispatch Box but hereafter, in a letter.

Thirdly, the wish was expressed that the making of conditional cautions should not have the counter-productive effect of leading more people into prison. Again, I appreciate the consideration that gave rise to that question. That is obviously not what we want. It is right to say that if a court comes to sentence, it does not have to sentence by way of imprisonment. It is not sentencing for the failure; it is sentencing for the original offence. A fine or community service order may well be the appropriate response.

I agree with those Members of the Committee who said that the power must be exercised in a way that will achieve its objectives and am grateful for all those who expressed their support for the principle behind the provision.

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