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Lord Elton: The noble and learned Lord's further response is very helpful. I wish only to say that my recollection of the Prison Service when I was the Minister responsible for it was that the age of criminal burnout was somewhere between the ages of 28 and 32 years. In my view, anyone under those ages is still young.

Baroness Carnegy of Lour: I thought I heard the noble and learned Lord say that it would be a waste of time for an officer of the rank of chief inspector or above to go about administering conditional cautions. Is he sure that having a constable doing so will clearly indicate the gravity of the situation? There is a risk that a conditional caution may give the impression of being an easy way out. However, if the conditions are not fulfilled, the result could be much more serious. Thus it is important that the person being cautioned takes the matter seriously. Is the noble and learned Lord convinced that a constable will be the right person to do this?

Lord Goldsmith: It is right that the person who accepts a conditional caution understands the

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seriousness of the matter. That will be made clear on the form which the offender will have to sign. It will state the purpose and effect of the caution.

I am perfectly confident that police officers of the rank of constable will be able to bring home to offenders the importance of what they are agreeing to. As I have said, while the constable will not make the decision that a certain case is appropriate for a conditional caution—that will be made by others—I suggest that the officer will be well able to drive home the importance of it.

Lord Elton: Could the noble and learned Lord go a little further into the detail of the way this is to be administered? He said that a prosecutor might be in the police station at the time. Is there to be a duty prosecutor in every police station? If not, how is that to be achieved?

Lord Goldsmith: This touches on later provisions in the Bill, an important one of which gives the prosecutor the responsibility for determining whether to charge an offender and with what to charge him. Obviously this will follow close consultation with the police who have gathered the evidence.

In a number of cases in the pilots that we have carried out in relation to this, lawyers have been present at police stations in order that police officers can come to them and say, "This is the evidence. Is it enough?". I have been and seen it for myself. I suspect that we will discuss this issue further in relation to a later part of the Bill. It will not happen necessarily in every police station because there are many across the country and there may not be enough prosecutors to cover them all. But alternative arrangements will be in place to ensure that excessive delay is not added to the process.

Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord for that response. Returning briefly to Amendment No. 75, he said that it was not practical because the conditions could not necessarily fulfil the requirements of both rehabilitation and reparation. We never felt that that was the case. The subsection refers to "the conditions which may be attached", but not every condition has a joint and several responsibility to facilitate rehabilitation or make reparation.

We are concerned that if you leave out "either/or" you could have a whole series of conditions concerned with only one of the two objectives in subsections (3)(a) and (3)(b), on rehabilitation and reparation. We feel that some conditions must hit either subsection (3)(a), on rehabilitation, or subsection (3)(b), on reparation. As I read the Bill, it is possible for only one of those objectives to be met. If we were to try it the other way and state that "each condition must meet the two objectives" I would understand the point made by the noble and learned Lord. However, the Bill refers to "the conditions" and we want to make sure that some of the conditions of the conditional caution hit those two targets.

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As to Amendments Nos. 78 and 79, the noble and learned Lord pointed out that "give" has a narrow and technical meaning, whereas, to an outsider, "give a conditional caution" does not at first sight appear like that. Will the Government consider redrafting the clause to replace the word "give" with the word "administer", which is the word used by the noble and learned Lord when explaining the way in which Clause 22(1) will operate? To the world outside, "give" is a far-ranging and wide-reaching word; "administer" has a more practical and technical sense.

Lord Goldsmith: With respect, I am not sure that I quite follow the noble Lord. My point is this: it is appropriate to have a power to grant a conditional caution even though the condition or conditions proposed effect only one of the objectives. There may be a condition simply to make reparation or there may be three conditions, to pay compensation to Mrs A, Mrs B and Mrs C, without any rehabilitation being involved. It is appropriate to do that. Equally, there may be some conditions that relate to reparation only—for example, take a driving test, have an eye test and so on.

As to whether the clause is clear enough, at the moment—I am sure it is my fault—I cannot see the word "give".

Lord Hodgson of Astley Abbotts: Clause 22, line six. The line below the clause heading.

Lord Goldsmith: Thank you very much. I should have read the first line. I shall certainly take the issue away to see whether it is clear enough. However, I believe that it is and I hope that the explanations I have given will help to clarify it further.

Lord Hodgson of Astley Abbotts: I thank the noble and learned Lord. I shall consider further what he said about the twin conditions of cautions. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 76:


    Page 16, line 14, leave out "ensuring or"

On Question, amendment agreed to.

[Amendments Nos. 77 to 79 not moved.]

Lord Goldsmith moved Amendment No. 80:


    Page 16, line 19, leave out "Director of Public Prosecutions" and insert "a relevant prosecutor"

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 [The five requirements]:

Lord Goldsmith moved Amendment No. 81:


    Page 16, line 24, leave out "the Director of Public Prosecutions" and insert "a relevant prosecutor"

On Question, amendment agreed to.

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Lord Hodgson of Astley Abbotts moved Amendment No. 82:


    Page 16, line 29, after "offender" insert ", having taken or refused to take legal advice,"

The noble Lord said: In moving Amendment No. 82, I shall speak also to Amendments Nos. 84 and 86. The amendments concern conditional cautions. Clause 23 lists the five requirements necessary if a conditional caution is to be issued. The third requirement, in Clause 23(3), requires the offender to admit that he has committed the offence. If the offender does so he might bring certain consequences upon himself that, if he were not a lawyer, he would not anticipate.

Amendments Nos. 82 and 84, therefore, would act as a failsafe to protect the rights of an offender. They make it a requirement for him to have accepted or, having been offered, to have refused to accept legal advice. We have a concern that a person might be tempted to accept a conditional caution without realising that it might be in his interests to first take legal advice. One can envisage a situation where a defendant wishes to finish off the matter quickly or is encouraged to do so by the police on the grounds that it would get it out of the way quite quickly.

If legal advice is offered the suspect will have an opportunity—which, of course, he may decline—to understand the legal consequences of a conditional caution, including, in particular, the consequences of an admission. It would also provide a safeguard against false or misled admissions being made.

Both the Law Society and the London Criminal Courts Solicitors' Association agree on this point. The latter has distributed a helpful briefing which states that,


    "an admission of guilt must be genuine, not just a solution to escape a charge or 'get it over and done with'".

Given the risk of prosecution if the conditions are breached, potentially lengthy complications that might arise at prosecution could be avoided if legal advice had been offered. We see no sensible reason why this proposal should not be incorporated into the clause.

Amendment No. 86 relates to Clause 24 and the failure to comply with conditions. It is closely linked with Amendments Nos. 82 and 84. It would leave out Clause 22(2) and enable the document detailing the offence and the ancillary provisions laid out in Clause 23(5), which have been signed by the offender, to be admissible in criminal proceedings.

If an offender is not to be offered the opportunity of legal advice when signing the document admitting his guilt, is it right that the document should then be used as evidence? As has been mentioned, a person could be pressured into signing such a document unaware of the consequences. If, however, the offender were given the opportunity of legal advice, this would not be a concern. The amendment therefore is clearly tied in with the previous amendments concerning the offering

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of legal advice. If the Government accepted them, Amendment No. 86 probably would be superfluous. I beg to move.


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