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Criminal Justice Bill

8.41 p.m.

Consideration of amendments on Report resumed.

Clause 21 [Conditional cautions]:

Lord Hodgson of Astley Abbotts moved Amendment No. 24:

The noble Lord said: My Lords, Amendments Nos. 24 and 25 concern Clause 21, the subject of which is conditional cautions. Those empowered to give conditional cautions are listed in subsection (4) as:

    "(a) a constable,

    (b) an investigating officer, or

    (c) a person authorised by a relevant prosecutor for the purposes of this section".

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Amendment No. 24 would restrict the list to paragraph (c)—

    "a person authorised by a relevant prosecutor".

Amendment No. 25 would increase the flexibility by permitting a police officer, but only one of the rank of chief inspector or above.

The amendments were initially tabled in Committee to prod the Government into explaining how and who would decide whether a conditional caution should be given. The noble and learned Lord the Attorney-General explained in Committee (at cols. 662 and 663 of the Official Report of 14th July) that this is the duty of the Director of Public Prosecutions. The police officer might propose appropriate conditions, but it will be for the prosecutor, in general for the Crown Prosecution Service, in the words of the noble and learned Lord,

    "to confirm those conditions and determine that a conditional caution is appropriate".—[Official Report, 14/7/03; col. 663.]

We are extremely grateful for that explanation of how the process will work. However, we still argue that the wording of the Bill is not as clear as the explanation given by the noble and learned Lord in Committee because Clause 21(1) states:

    "An authorised person may give a conditional caution to a person aged 18 or over ('the offender') if each of the five requirements in section 22 is satisfied".

The word "give" on page 16, line 33 gives us difficulty and we think it could be open to misunderstanding. Following from that, under current drafting, a constable could give a conditional caution, but that does not mean that he could, in the words of the noble and learned Lord,

    "determine that a conditional caution is appropriate".—[Official Report, 17/7/03; col. 663.]

In Committee, I suggested that the word "administer" in place of "give" would be more accurate and less misleading. That approach did not commend itself to the Government. If therefore they are determined to persist with the word "give" in Clause 21(1) and all that that entails, then they should accept a greater restriction on the list of authorised persons. I beg to move.

Lord Goldsmith: My Lords, I had thought that the position was clear. We intend conditional cautioning to work by making it the prosecutor's decision to give a conditional caution. That is clear from the five requirements set out in Clause 22, the second of which is that a relevant prosecutor decides two things:

    "that there is sufficient evidence to charge the offender with the offence, and . . . that a conditional caution should be given to the offender".

I suggest to the noble Lord, Lord Hodgson of Astley Abbots, that that brooks no ambiguity or misunderstanding. It is for the prosecutor to decide. With respect, I do not agree with him that in those circumstances the meaning of the word "give" in Clause 21 can change. It cannot mean that it is for the constable to decide, when it is clear in the Bill that it is for the prosecutor to decide.

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The noble Lord proposes a scheme in which the officer who administers the caution must be of the rank of chief inspector or above. As I said in Committee, that cannot be an appropriate use of such a senior officer's time. One of our aims is to have an effective and efficient system for conditional cautions decided on by the prosecutor. I do not resile from my comment in Committee that I would expect that a police officer, having received an admission, would say to the prosecutor, "This looks like an appropriate case for a conditional caution", but it will be for the prosecutor to decide—he may agree or disagree. There will be guidance, as required in the Bill, giving even further help on the sort of case in which a conditional caution should exist.

Given the clarity on the face of the Bill, and that the decision will be the prosecutor's, the Government see no need to involve such a senior officer as the amendment would require. I hope that the noble Lord will not press the amendment.

8.45 p.m.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord. He used the word "administer" a moment ago. That is where our difficulty arises; that is to say, he rightly drew my attention to Clause 22(2). Paragraph (b) states that,

    "a conditional caution should be given to the offender"

The relevant prosecutor decides whether it should be given. But that is different from what happens in Clause 21, which deals with the process whereby, the decision having been taken, the conditional caution is administered to the person in question. If that were not the case, paragraph (c) of subsection (4) would not appear in the same subsection as paragraphs (a) and (b).

We have a situation where the word "give" first in the decision to proceed with a conditional caution and then in the administration of it is being used interchangeably. That is unhelpful and unclear. They are not the same word and they are different functions, as I read Clause 21 from Clause 22. The noble and learned Lord is shaking his head. Does he wish to intervene?

Lord Goldsmith: My Lords, I am happy to do so. Under the scheme, the individual will be seen by a police officer. Obviously, that is the first stage, because it is as a result of an admission—that is key—that an offender comes within the scheme at all. It is for a prosecutor to decide whether there is sufficient evidence to charge and whether a conditional caution should be given. Once the decision has been made that it should be given, someone must "administer" or "give"—in my respectful submission, it matters not which word one uses—the caution. It is a process of explaining to the person the effect of the conditional caution, as set out in Clause 22(4), and ensuring that the document is signed. There will be other things to be done, but that is what "giving" and "administer" mean.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful for that further explanation. In order to explain fully how the process will work, the noble and

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learned Lord uses the word "administer" to deal with one function as distinct from another. I understand his point about the five requirements and the conditional caution to be given by the prosecutor under Clause 22(2). Once that has been decided, the process is an administrative one, the decision having been taken. Clarity is very important. If the Government are not prepared to use a word to distinguish the two different functions, I would like to test the opinion of the House.

8.50 p.m.

On Question, Whether the said amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 65.

Division No. 3


Anelay of St Johns, B.
Ashcroft, L.
Attlee, E.
Avebury, L.
Blatch, B.
Bridgeman, V. [Teller]
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Carlile of Berriew, L.
Carnegy of Lour, B.
Courtown, E.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Fookes, B.
Gray of Contin, L.
Harris of Richmond, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howell of Guildford, L.
Hurd of Westwell, L.
Kingsland, L.
Knight of Collingtree, B.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lyell, L.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Monro of Langholm, L.
Noakes, B.
Northesk, E.
Northover, B.
Roper, L.
Russell, E.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shutt of Greetland, L.
Steel of Aikwood, L.
Stern, B.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Waddington, L.
Wakeham, L.
Wedderburn of Charlton, L.


Ahmed, L.
Andrews, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Clark of Windermere, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Judd, L.
Kennedy of The Shaws, B.
Kirkhill, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
Masham of Ilton, B.
Massey of Darwen, B.
Mitchell, L.
Morris of Aberavon, L.
Palmer, L.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Symons of Vernham Dean, B.
Turnberg, L.
Walpole, L.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.
Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

29 Oct 2003 : Column 356

8.59 p.m.

[Amendment No. 25 not moved.]

Clause 22 [The five requirements]:

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