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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,
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:
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,
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:
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.
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 decidehe 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.
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,
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 admissionthat is keythat 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 usesthe 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.
Resolved in the negative, and amendment disagreed to accordingly.