Police and Justice Bill

This series of amendments relates to Clause 16. I do not think there is any underlying disagreement about the need for Clause 16, which provides a quicker and more flexible response to suspected breaches of a conditional caution by providing powers of arrest and detention, with all the usual safeguards under the Police and Criminal Evidence Act. First, let me make it clear that it is for the prosecutor, not the police, to decide whether an offender has breached the conditional caution and, if so, whether to charge the offender with the original offence. That is already in the provisions of the Criminal Justice Act 2003. That is essential background because Clause 16, as drafted, provides that various options are available once an offender has been brought into custody for a suspected breach. These are: either to charge with the offence in question—that is to say, the original offence; or, secondly, to be released by the police on bail, without charge, where further investigations are needed to determine non-compliance; or, thirdly, to be released without charge and not on bail where the prosecutor determines that there has been no breach of the conditions and, therefore, that the conditional caution should continue to run its course. Amendment No. 97, I believe, would have a negative impact for the offender—I recognise that that is not the reason the noble Baroness has brought it forward—because if the decision-making process is restricted to the prosecutor alone, the person could not be released, with or without bail, without the agreement of the prosecutor. That could mean that the person is detained longer than required while awaiting the availability of a prosecutor. So if someone is arrested at the weekend, in the evening or at a time when a prosecutor is not available, the police would not, for example, have the opportunity of exercising the power in subsection (2)(b) for the person to be, "““released without charge and on bail to enable the decision to be made as to whether he should be charged with the offence””." I am sure that is not what the noble Baroness had in mind. It would be contrary to what we have in mind in subsection (7) that the case must be dealt with, "““as soon as practicable after the person arrested arrives at the police station””." There would be an additional problem in involving the prosecutor because, under the PACE provisions, it is not for prosecutors to make decisions about bail; these are made by the custody sergeant. It would be difficult, disproportionate and have a number of implications now to put upon a prosecutor a responsibility for determining bail and conditions of bail, but only for conditional cautions and not for any other offences. So I cannot support Amendment No. 97. Let me give an example. It might be absolutely plain when the person arrives at the police station that the conditions have been complied with. He may have evidence with him—a letter, perhaps—proving it. Under the noble Baroness’s amendment, the police still could not release that person until a prosecutor had been found to take that decision. I am sure that is not what she intends. Amendment No. 98 seeks to prevent the police re-arresting someone for the same suspected breach of a conditional caution without application to the court for a warrant of arrest, and the noble Baroness, Lady Harris of Richmond, explained the reasoning behind that. The background to this, again, is that Clause 16 is there to give the police a new power to arrest someone for a suspected breach to enable quick and effective enforcement of conditional cautions. If one required an application to the court for an arrest warrant, that would undermine that purpose by adding an additional stage and, therefore, delaying the enforcement process. As the noble Baroness eloquently explained, underlying this is a concern about the circumstances in which it would be appropriate to re-arrest. I can certainly imagine circumstances where it would be appropriate to re-arrest. For example, an offender may on the first occasion give a false explanation for the suspected breach which is accepted in good faith by the police officer, who then releases him. If it came to light subsequently that it was a false explanation, then it would be right, I would suggest, that the police should be able quickly to re-arrest him to get to the truth of the matter. Amendment No. 100 seeks wholesale removal of the police power to arrest and detain an offender for suspected breach. I have explained why we think it is important that there should be a power for the police to be able to respond quickly. But we certainly do not want offenders to be kept unduly in police detention while the case is being dealt with, so let me touch on the points about delay made by both noble Baronesses. Clause 16(7) makes it clear that there is a particular duty on the police to act expeditiously; and there is an additional requirement under subsection (6) that any detention to allow further investigation is strictly necessary, a point to which the noble Baroness, Lady Harris, drew attention. The power of detention is to enable a decision to be taken on whether there has been a breach and, if so, whether to charge the offender with the original offence. In practice, it may often be relatively straightforward to determine whether there has been a breach and, if there has been, whether the reason given by the offender for non-compliance is a reasonable excuse. But there may be occasions when it is necessary to detain for a short time in order to resolve the matter quickly. A telephone call might establish that the offender has committed the breach, in which case it would make no sense for the police to release the offender while seeking to confirm whether there has been a breach and, if there has been, then having to go to arrest him and bring him back to the police station to charge him with the original offence. What, therefore, about the time? AmendmentNo. 99 proposes a time limit of 12 hours. I certainly do not want to see a person who has committed a low level offence—which is what we are talking about in this Bill—and is suspected of a breaching a conditional caution being unduly or disproportionately detained by the police. There are two very important measures in the Bill which would prevent that. First, subsection (7), to which I have already drawn attention, will insert the new provision, specifically, that subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station. So there is an important and clear duty on the police to deal with the matter as soon as they practicably can. Secondly, Clause 16 makes it clear that the detention time restrictions in the Police and Criminal Evidence Act apply to the powers of arrest for a suspected breach. Both noble Baronesses referred to existing time limits. Those time limits are not removed for this power of detention. There is therefore no need to insert an additional time limit; indeed, it is highly unlikely that the time limits under PACE would be reached. There is a worry, however, that if one imposes a time limit, even of 12 hours, there would be no room to manoeuvre to take account of specific circumstances. The offender might turn up in a drunken condition, which happens at quite a lot of police stations. It may be necessary for him to sober up before the questions can be put and the matter cleared up. It happens, too, from time to time that a fight breaks out in the custody suite which diverts police resources. There is a risk, therefore, that if one imposes an arbitrary time limit, it may not be possible to deal with those circumstances, although, I repeat it, everything has to be subject to the requirement in subsection (7) that the matter must be dealt with as soon as practicable after the person arrives. Amendment No. 102 seeks to make it clear that if after arrest for a suspected non-compliance with a conditional caution there is a need to conduct further investigation to determine whether there has been a breach, the offender may be released on bail rather than detained in custody while those investigations take place. It is absolutely our intention that that should be possible and the Bill already makes it sufficiently clear. One of the options in new Section 24A(2) is that someone can be released on bail without charge pending investigations to decide whether he should be charged for the original offence. Fundamentally, we hope that these investigations will not take long. We do not want to see conditional-caution offenders spending undue periods of time in police stations, but the power to arrest and detain is necessary for the reasons that I have given. I hope that, on consideration, the Committee will be satisfied that there are sufficient safeguards in the Bill to ensure that the potential for abuse to which the noble Baroness, Lady Harris, referred does not exist.