Police and Justice Bill

I am grateful to all who have taken part in this debate. It is important to debate these issues. I recognise that the noble Baroness’s Question is probing and therefore we will return to these issues, but it gives me an opportunity to set out one or two things. The conditional caution scheme in place was established under the Criminal Justice Act 2003. It provided the police and the Crown Prosecution Service with a new disposal for dealing with low-level offenders who were prepared to admit to their offences and who, if prosecuted, would probably have received a nominal fine, been ordered to pay compensation or given a conditional discharge at the magistrates’ court. The noble Lord, Lord Hylton, is absolutely right that conditional cautioning is taking place in Thames Valley; it is one of the implementation areas. I can give him a bit more information about that outside the Chamber, if he would find it helpful. The noble Lord asked whether the CPS had always been involved. Absolutely, yes, because the scheme approved by this Chamber and by the other place was that conditional cautions would require the prosecution to decide the matter, obviously in co-operation, collaboration and discussion with the police. That it is the prosecutor’s decision is very important, and, to some extent, it may meet the point raised by the right reverend Prelate. But it is the prosecutor and not the police deciding the conditional caution, although the latter have powers, to which I will return. The prosecutor must do that while recognising their professional responsibilities—they are sometimes described as a Minister of justice—and being directly accountable to the courts for what they do. I have seen that from time to time, when judges or Benches of magistrates have called in the local prosecutor and asked, often in open court ““What has been going on here?”” That is perfectly proper in appropriate cases. The very real benefits of conditional cautioning are: securing speedy redress for victims and enabling the offender—I emphasise, speedily—to tackle the factors that have contributed to his offending. I want to emphasise the benefit to the victim. Absolutely rightly, the right reverend Prelate asked what that meant for the victim. If I may say so, I am not convinced that he is right to say that victims always want to see things happen in court. Often, victims want something that deals with the situation speedily. I fear that at present, for all sorts of reasons—which we are trying to tackle, and we will come back to that issue—delays in court can be such that victims do not see a speedy response to the problem caused to them. On the contrary, it is dragged out: there may be adjournments; eventually the matter comes to court, at which stage the victim may be required to relive the experience and, at the end of it, to receive no more than could have been done under the conditional cautioning scheme a long time before. I recently referred publicly to a case in Lancashire where an elderly lady who had been the victim of some violence to her property was pleased that the property had been fixed by the young man and that he had apologised to her in a way that made her feel that the problem was solved. It also clearly drove home to him the consequences of his offending behaviour, because he had to confront, as it were, and address the problem that he had caused to an actual person. Again, the noble Lord, Lord Hylton, is absolutely right in saying that restorative justice can be very valuable in that way, although it is obviously not appropriate in all cases. The conditions attached to the caution can take specific account of the needs of the victim and therefore give the victim a voice without the need to go to court. The conditional caution code of practice, to which the noble Baroness referred in our previous debate, makes clear that victims’ views should be taken into consideration by prosecutors when determining whether a conditional caution is a suitable disposal. That is important and I am sure that we will want to keep that as part of the future use of conditional cautions. What is a conditional caution? Here, I answer one of the questions put to me by the noble Baroness, Lady Anelay. It is not a court sentence. It is not a criminal conviction. It is an admission of guilt, which can form part of an offender's criminal record and may influence how they are dealt with in future proceedings, in the same way as can a simple caution. It can be quoted on a standard or enhanced disclosure issued by the Criminal Records Bureau and made known to a prospective employer—the Committee may think that that is right. I return to the point about the relationship with the magistrates’ courts. I hope that all Members of the Committee will recognise that the rule of law is something which I and the whole of the Government take very seriously and regard as very important. We must recognise what it means operationally. At the moment, there is considerable pressure on magistrates’ courts. Cases can take a long time to get there, with many adjournments. The pressure on the magistrates’ courts will not lessen; it may get greater because, under the Criminal Justice Act, they will have increased sentencing powers once that part of the Act is brought into effect. That will increase the volume of work that we will ask them to do—because we trust them and recognise the very important role that they play in society and in the community. We want to say ““Let us remove from you straightforward, simple, low-level offences where there is a guilty plea. That will free up your time to deal with the more serious, complex and contested cases””. Early implementation of the scheme in the past 14 months in a number of areas has highlighted the benefits of conditional cautions so far. However, the feedback that we have had from the police and the Crown Prosecution Service in the early implementation areas is that the benefits of the scheme are limited by the current restriction on the aims of the conditions that can be imposed, which must be reparative or rehabilitative. In particular, experience showed that the existing power in Section 22(3) did not give the flexibility needed to respond to offenders individually. Some offenders who should have got the benefits of the scheme were simply falling out of it for that reason. At the moment, conditions would need to be reparative, in which case the victim needs to be identifiable with a quantifiable loss and willing to accept reparation or rehabilitation, such as dealing—it is important that we should do this—with the underlying problems, such as drugs, alcohol and so forth. A particular problem was that it was thought that we could not use the existing conditions to provide indirect reparation. The noble Lord, Lord Hylton, has given one instance of indirect reparation through paying something back to the community. I shall be even more specific. If an offender produced some graffiti, it would be reparative to require him to take off that graffiti, but you could not require him to do so if you could not identify the graffiti for which he was responsible or if it had already been cleaned up by the local authority or the building’s owner. Our interpretation of the Act is also that you could not require him to clean up other graffiti. Noble Lords might think that that is exactly the sort of situation in which you would want to consider being able to make a suitable offender see the consequences of his offending behaviour by doing something that is directly related to it. Clause 14 would therefore enable the scheme to apply to a broader group of offenders. It would include cases where direct reparation is not possible because of practical factors such as the victim’s reluctance, the harm having already been remedied or the victim being the community at large. It would also include cases where the offender has acted out of character by committing the offence and has no discernible personal problems that contributed to the offending that demanded rehabilitation. Paying a financial penalty, undertaking unpaid work or attendance would be possible conditions. Yes, it is right to describe the measures as punitive, but they would also have a deterrent effect and an indirect reparative effect in the way that I have described. Noble Lords have referred to what Lord Justice Auld said about financial penalty in his report, and we should bear it in mind that fines by prosecutors have been a part of the system in another part of this Kingdom—Scotland—for a long time. I understand that they are not only accepted but welcomed in the community as a way of diverting low-level offending away from the court without the need for a court appearance. So welcome are they that there are proposals to increase the limit for those fiscal fines. Other countries use a similar system, and although, as I have said, I am very strongly in favour of the rule of law, I do not believe that in Scotland or in those other countries, allowing these conditions to be imposed in any sense undermines the rule of law. In that respect, I want to underline some very basic points. This does not apply except to an offender who admits his guilt. If someone contests his guilt, he goes to court. That will not change. If the prosecutor cannot decide whether he is guilty and cannot impose a caution, he goes to court. Secondly, he is under absolutely no obligation to accept the caution. Again, as I said, if he does not agree with the conditions and prefers to take his chances with the court, he is absolutely free to do so. Those are the key constitutional issues. The court will determine guilt where that is contested. Ultimately, the court is there to fix the penalty if the offender does not like the conditions proposed to him. On the previous day in Committee, the noble Baroness asked about the degree of consultation. I regret the fact that the earlier stages of developing our plans did not involve as much consultation with the groups that she identified as it should have done. But consultation has been taking place. My noble and learned friend Lord Falconer, the Lord Chancellor, and I have discussed these conditions with magistrates, judges and officials from the Office for Criminal Justice Reform. The office of my noble and learned friend Lord Falconer and my office have held discussions with representatives of the Magistrates’ Association and members of the senior judiciary. There has been at least one consultation with the Criminal Justice Council on which Victim Support is represented. At a local level, areas have engaged with victims groups and voluntary organisations. I am very happy, as is my noble and learned friend, to continue all such discussions. It is important that we debate these things. From time to time, reports appear in newspapers suggesting different things to those which the Government propose. The noble Baroness, Lady Anelay, referred to a report in the Daily Mail, which rather remarkably quoted me as referring to the present proposals as if they were something else. She may not be entirely surprised to hear that I have not spoken to the newspaper. I think that it was quoting from a speech about this Bill rather than something else, but there we are. However, it is true—we will have to come back to this—that other things have been said about how we want to development the criminal justice system. The scheme overall is governed by the Conditional Cautioning: Code of Practice which has a statutory basis in the Act, which would be the same if the conditional cautions scheme is extended; that is, the same requirement for the Conditional Cautioning: Code of Practice will result. That is a matter therefore to which we will have to come back. On the question of to which offences it will apply, the overriding limit will be whether the conditions which are available are appropriate to the form of offending. If offences are of such a degree of seriousness that it is not appropriate for them to be dealt with by compensation, a short attendance, reparation or rehabilitation, they certainly will not be dealt with in it. The noble Baroness, Lady Anelay, read from a list in the existing code of practice guidance issued by the DPP, which gives the constituency of offences that this could be used for. That obviously is not at all the same question as whether in a given case they should be used. There can be considerable levels of difference in the sort of offences and the offenders who commits them. She is right that one has to look at the offender. In conclusion, first, we already accept that in certain circumstances penalties are imposed outside the courts. The police do it in relation to fixed penalty notices in a number of areas. Members of the Committee might agree with me that to have an additional safeguard that the prosecutor imposes is beneficial and avoids just one mind looking at a case. Secondly, the experience so far has been that victims have found the conditional cautioning scheme helpful because they have been involved in it, they have had a voice and it has been much speedier. I know of one case where £1,000 compensation was paid within a week—or something of that sort—to a victim. I am afraid that that certainly would not happen under the court system as it presently operates. I hope that the Committee will see the benefits of conditional cautioning and will agree that Clause 15 should stand part.