Police and Justice Bill

Because of some of the contributions made by the noble and learned Lord, I can be briefer than I might otherwise be, although there are some issues that I need to raise, having given notice that I do not believe that Clause 15 should stand part of the Bill. This is entirely a probing measure at this stage. My colleagues in another place made it clear that we did not oppose this clause going into the Bill. Our view was that we should see how the provisions in the clause were allowed to develop, consider whether it was effective and see whether the Government tried to expand its use too rapidly. Since these matters were discussed in another place, the Prime Minister announced that he intends to extend the use of administrative punishment substantially. That is a recent development. I should be grateful if the noble and learned Lord could put on the record exactly how that extension of administrative punishment will be achieved. Will what the Prime Minister announced require entirely new legislation? Will some or all of it be capable of being introduced via the primary and secondary legislation already in the Bill? I am going to quote the noble and learned Lord from the Daily Mail, so he will know directly whether it has got it hopelessly wrong or is correct—who knows which? The Government may be prepared to agree with press quotations for a change; we shall live and learn. On 25 June the Daily Mail quoted the noble and learned Lord as saying that he wanted to have much greater use of conditional cautions, echoing the Prime Minister’s view of 23 June. The noble and learned Lord was quoted specifically as referring to punishments comprising, "““a maximum penalty of £500 or 20 hours’ community service””." When I read that, I thought, ““That is what the Bill says anyway””. Is the noble and learned Lord telling us that the Government have marvellous plans for the future and that they will use what is here for their future expansion of justice? The quotation may be wrong, or I may be misjudging him. Will the noble and learned Lord make a clear statement about the consequences of accepting a conditional caution now under the Bill? Does it mean that a person will not have a criminal record for that offence? Will he give the Committee the figures on reoffending rates for those who have already accepted conditional cautions? It is essential to have such relevant information before we can properly consider whether the clause as drafted should stand part of the Bill. If we removed Clause 15, we would keep the current legal position whereby the only conditions that could be applied to cautions would be those intended to facilitate the rehabilitation of the offender, or to ensure that the offender makes reparation for the offence. The debate goes to the heart of whether the Government would be right to press ahead with these plans for extending administrative punishment. I hope that the Government would never seek to portray those of us who are tabling amendments on this matter as trying to penalise victims and as being in favour of the suspected offender. Nothing is as simple as that in the world of offenders and offending. I realise, of course, that the person accepting the caution will have admitted their guilt as part of the process. As an ex-magistrate, I would certainly be concerned about the possibility that some people will accept a caution even when they are not guilty rather than go to court, and that the guilty will accept a caution, recognising that with their previous experience of crime they might well receive a lower punishment than if they went to court. Where is the public interest in that? Concern has been expressed both outside and inside Parliament that the power to impose punitive cautions will effectively allow the police and the CPS to act as investigator, prosecutor and judge. The Magistrates’ Association, for example, states that it considers it, "““contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities””." The Government’s response has been to repeat their previous press release about, "““rebalancing the system in favour of the victim””." Of course, I say here and now that I have as much concern for victims of crime as any government Minister. Having sat as a magistrate for many years until I came to this House 10 years ago, however, I am also aware of the importance of careful reflection before punishment is imposed. Punishment is sentencing; we cannot get around that. Careful reflection should be based on thorough judicial training. I would much prefer that which cases should be sentenced in court was decided through statute, rather than giving prosecutors discretionary powers to impose punishment. A clear line should be drawn between an alternative to prosecution, which is what conditional cautions are intended to be in the Criminal Justice Act 2003, and the imposition of a sentence, which we appear to be marching towards. Existing fixed penalties and penalty notices for disorder, and simple conditional cautions, are alternatives to prosecution. That seems right. An alternative to prosecution can properly involve reparation or measures to help rehabilitation, provided the matter being dealt with is genuinely minor. A disposal imposing punishment that involves an element of discretion becomes a form of sentence. That is where we must discuss whether it should be reserved for the courts, and not given as a power to the prosecution. Will the Minister confirm that offences for which a caution can be administered include: ABH; affray; criminal damage; possession of class A or B drugs, albeit a small quantity for personal use; having a bladed article in public; carrying an offensive weapon; burglary—non-commercial, non-residential—and theft? These are not necessarily just minor and low-level. If dealt with outside a court, there is no public knowledge of them. Where would the public accountability be? Judges and magistrates take an oath, receive training, operate in public and must announce the reasons for a sentence in open court, including any departure from sentencing guidelines. It is not the same for prosecutors. Where is their accountability? The Government have quoted Lord Justice Auld as supporting conditional cautions. In his 2001 review of the criminal courts, he said there was, "““scope in England and Wales for the introduction of a more general, formalised and conditional cautioning system””." However, he also said: "““Any such scheme should, save for the most minor offences, be the responsibility of the Crown Prosecution Service and subject to the approval of the court. Without the protection of the court’s approval, its use could be used or perceived as a ‘cop-out’ by the prosecution to avoid prosecuting cases that should be prosecuted, or of innocent””," people, "““being at risk of pressure to accept onerous compromises to avoid prosecution, or of the rich being able to buy their way out of prosecutions when the poor could not””." The Select Committee on the Constitution also considers this provision a constitutional novelty. Of course, there is nothing wrong with novelty; it is quite right. One must refresh and renew all the time, provided one challenges those views with a bit of practicality. The Committee goes on to make a telling point: "““It may be thought to sit uneasily with the principle of the rule of law, an element of which is that it is for independent courts—not the police or the prosecuting authorities—to punish criminal wrong-doing. This much has been enshrined in English constitutional law by the Bill of Rights 1689, which provides that ‘fines and forfeitures of particular persons before conviction are illegal and void’””." Of course, I agree with the Select Committee: the clause sits too uneasily with the rule of law. As yet, the Government have not quite justified the inclusion of Clause 15 in the Bill.