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Lord Goldsmith: As the noble Lord, Lord Hodgson of Astley Abbotts, said, Amendments Nos. 82 and 84 are concerned with whether a suspect should be offered legal advice before admitting to the commission of an offence. A suspect will have been offered legal advice. He will have been informed, I should say more strictly, of his or her right to independent legal advice in compliance with the provisions of PACE before reaching that stage. The suspect will have been accused of an offence and therefore the provisions in the code which require that person to be informed of his or her right to independent legal advice will apply. In those circumstances it seems unnecessary to add an additional requirement to the provisions. I do not disagree with the underlying point that the noble Lord makes; namely, it is important that before somebody admits an offence he should have had the opportunity of seeking legal advice and be reminded of that opportunity. The provisions of PACE should be adequate to deal with the situation.

In referring to Amendment No. 86, the noble Lord said that if the Government accepted the previous amendments the need for it would disappear because legal advice would have been provided. If the noble Lord is satisfied by what I have said about the effect of PACE, he may well want to consider it further before expressing any view about it, which I would entirely understand. He may not wish to move that amendment either.

It seems to us that there are certainly circumstances in which it would be appropriate for the form, which would have been signed in accordance with the requirements of Clause 23(5), to be admissible in evidence, if only for the purpose of proving that the suspect did in fact agree to the conditions. Then the question can be determined as to whether or not he has failed to comply with them. We press to retain that provision.

In Committee in another place the honourable Lady Hermon suggested that the pro forma signed by the offender should state clearly that it might be used in evidence against him if criminal proceedings were to follow. That is a useful suggestion, which is being considered.

5.30 p.m.

Lord Dholakia: Can the Minister say whether the legal advice is available before the caution is administered, or while the caution is being given? There are some serious repercussions in failing to comply bearing in mind that consent is required and the condition attached to that consent. That has some bearing on another amendment, which I wish to move at a later time.

Lord Goldsmith: I believe that the answer is that the suspect will have been reminded earlier of his right to independent legal advice. If the suspect has followed

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that up and has received it, the solicitor will be available to give the offender advice at all moments from the time he or she is instructed to assist. I anticipate that that would include advising on whether or not it is right to admit the offence and appropriate to accept the condition; and, indeed, explaining what the consequences would be if the condition were broken.

If the offender declines to take legal advice, which is his or her right, that legal advice will not be available at the time when the caution is administered. That simply follows from the choice which has been made. I believe that that is how it would work.

Lord Hodgson of Astley Abbotts: I do not find that answer entirely satisfactory. I understand what the noble and learned Lord said about the PACE conditions, which is a very fair point. But they are away from the Bill that we are discussing. We have here five requirements for conditional cautions. If the Government are confident that the PACE conditions cover the point, I do not see why they cannot accept that. The third requirement is that, having taken or refused to take legal advice,


    "the offender admits to the authorised person that he committed the offence".

It is clear beyond peradventure that it is one of the requirements for which he should have legal advice before admission. The fifth requirement is the signing of the document. After being offered the opportunity to receive legal advice,


    "the offender signs a document which contains—",

details of the offence, and so on.

All we are trying to make clear on the face of the Bill is that on these two important points—the admission and the document to be signed, which contains all the details of the offence and his consent to being given a conditional caution—there should be a clear requirement to having been offered, and either taken or refused, legal advice. The PACE conditions are all very well, but they are some way away; they are capable of being changed without this Act being altered—

Lord Goldsmith: I am grateful to the noble Lord for giving way. The noble Lord will recall that the Act itself deals with PACE and its codes of practice. I do not know why he says that the PACE codes are away from this Act. They are referred to specifically in Part 1 of the Act. I also remind the noble Lord that there are many conditions in PACE to which it would be appropriate to have regard when considering whether or not the suspect has been dealt with properly before reaching the caution conditions as regards interviews, and so forth.

I assume that the noble Lord is not saying that we should incorporate all of those conditions into the clause. If that were the case, it would be a very long clause indeed. Surely it is better to rely on the general provisions that Parliament has thought appropriate under the PACE codes and allow them to be of general

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application, rather than making specific provision for each and every one of them each time there is a disposal provision.

Baroness Carnegy of Lour: I still have not understood. Can the noble and learned Lord explain at what point the suspect will be told that he could have legal advice? Will he know what he is getting it for?

Lord Goldsmith: Under PACE, and depending on the circumstances, where a person is arrested for an offence and brought into a police station, it is a requirement that the right to independent legal advice is notified to the person involved. It is within our common experience that it is at just such a stage that a solicitor will attend the police station to advise on the process that is to take place, and/or participate in the interview. It is at an early stage of the process that the suspect is reminded of the right to legal advice and can take up that offer.

Lord Hodgson of Astley Abbotts: I am grateful for that further explanation. I shall read carefully in Hansard what the noble and learned Lord has said. I believe that the express right to legal advice before people admit crime that will result in a conditional caution being issued is important. I shall reserve the right to return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 83:


    Page 16, line 33, leave out "may" and insert "will"

The noble Lord said: This is a brief but important amendment that relates to the wording of Clause 23(4). It refers to the fourth of the five requirements that need to be satisfied in order for a conditional caution to be given. This clause has been carefully drafted. Its intentions are clearly well-founded. It requires that an authorised person explains to the defendant about the conditional caution and warns about the consequences of failure to comply.

However, the clause then throws away all this good work by saying that if any of the conditions are breached prosecution "may" follow. Today we have been discussing the finer details of these conditional cautions ensuring that they are meticulously worded, fully comprehensible and as fair as possible. Why, therefore, is it not a certainty that the offender is to be prosecuted if he fails to comply? What will be the impact of the removal of the certainty of unpleasant consequences in cases of breach upon the value and efficacy of the whole concept of conditional cautions? Our amendment seeks to replace "may" with "will"; in other words, to make a prosecution certain. I beg to move.

Lord Goldsmith: I suggest that it would not be credible to say that every breach of a conditional caution would automatically result in a prosecution.

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That would be the effect at least of what would be stated to the offender, but not the fact in practice. If it were the policy that every breach, however trivial, automatically resulted in prosecution, it would be unduly restrictive. It would be impossible to take genuine reasons for non-compliance into consideration. It would be a much more onerous provision than we have in mind.

It is important that the offender should understand that the conditions are serious. If he does not comply with them, he should be warned that there could well be consequences. That is well enough said by warning him that the caution may result in his being prosecuted rather than in asserting—dare I say it, untruthfully?—that it will, notwithstanding what the circumstances may be. I invite the noble Lord not to pursue the amendment.

Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that explanation. We are anxious that if the conditional caution is to have some teeth, it should be proceeded with where conditions are broken. We understand that pressing for it to be done on all occasions is probably not a practical proposition. I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

Clause 23, as amended, agreed to.

Clause 24 [Failure to comply with conditions]:


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