Police and Justice Bill

moved Amendment No. 66: Leave out Clause 16. The noble and learned Lord said: My Lords, I wish to paint in the background of this matter as it is a long time since it was considered in Committee. I start with the police role in cautioning young offenders. That role was overhauled by the Government in 1998 and put on a statutory basis in the Crime and Disorder Act of that year. But we are not dealing with young offenders today so I say no more about that. The police role in cautioning adult offenders has never been put on a statutory basis but it is of very long standing. It has been regulated by successive Home Office circulars setting out the National Standards for Cautioning Offenders. I believe that the most recent was issued in 2005. Cautioning has always been a very valuable tool for dealing with low-level offenders. Its essential features are well known: the offender must admit his guilt and be willing to accept the caution. It has always been vital that cautioning rather than prosecuting should be in the public interest. It goes without saying that cautioning does not involve punishment. The simple caution was always very useful and it still is. Then in 2003 the Home Office came up with an idea that cautioning could be made even more useful in some cases. It depended on the offender being willing to make reparation for his offence and on the victim being willing to accept reparation. The idea was that the offender and the victim should be brought face to face—always if the victim was willing—and the offender would then make amends either by repairing any damage which he had done to the victim’s property, paying the victim compensation or, indeed, just apologising. The evidence was that this, "““can reduce reoffending and improve victim satisfaction with the criminal justice system””.—[Official Report, 29/10/03; col. 362.]" Those are not my words but those of the noble and learned Lord the Attorney-General on Report in 2003. He referred then to this as a very exciting new idea. I agree that it was. The criminologists refer to it by the name of ““restorative justice””. But I do not believe that anyone ever thought that conditional cautions of that kind would be useful except in a small number of cases. The other condition which could be imposed, again with the consent of the offender, was that he should undergo some form of treatment. Again, it would obviously apply in only very few cases. The code explaining the purpose of conditional cautions, as contained in the 2003 Act, stated at page six: "““Rehabilitation: this might include taking part in treatment for drug or alcohol dependency, e.g. attendance at self-help groups””" and so on. Attendance at anger management courses is another example given. On reparation, the code says, "““this might include repairing or otherwise making good any damage caused to property (e.g. by cleaning graffiti), restoring stolen goods, paying modest financial compensation, or in some cases a simple apology to the victim.””" That was the idea, and, if I may say so, a very good idea it was. If, during his speech in 2003, the Attorney-General had been asked, ““Why do you not extend conditional cautions so as to include the possibility of imposing a fine?””, he would, I believe, have answered: ““But that is the very opposite of what we are trying to do. How can a fine help the victim? How can a fine rehabilitate the offender? There is nothing restorative in a fine, and there is no reason to suppose that it will reduce re-offending. If a fine is the appropriate remedy, it should be imposed in the usual way by magistrates””. I do not know whether that is the answer that the Attorney-General would have given in 2003, but it is very different from his answer now. I need not say that I find his 2003 speech a great deal more persuasive and convincing than the one he made in Committee on 6 July, which I have read with the greatest care. I oppose Clause 16 standing part on the following grounds. First, it is wrong in principle for the prosecution to determine the level of punishment. Indeed, it is wrong for the prosecution to have any say in the sentencing process at all. Sentencing has always been for the courts, at least since the Bill of Rights of 1689. No amount of Home Office guidance on how this proposed fine should be made a condition, and no amount of safeguards that could be built into the Bill at this or any stage, can get away from that basic objection. The point can be illustrated from a very different field: the mandatory life sentence for murder. Traditionally, the Home Secretary justified his claim to have the last word on when a prisoner should be released on the ground that he was not exercising a sentencing function at all but he was only determining when the prisoner should be released. That fallacy was exposed finally and firmly by the House of Lords in Anderson, of which I am sure the noble and learned Lord the Attorney-General will be well aware. At the other end of the scale, in support of this provision, reliance is sometimes placed on the fixed penalty for parking illegally or for not wearing a seat belt. But fixed penalties are entirely different. The amount is fixed by statute or by-law; it does not in any way involve the prosecution’s discretion. My first objection being the straightforward objection on the grounds of principle, my second is that the existing conditions under the 2003 Act are entirely consistent with the basic concept of a caution. Punishment, however, is entirely inconsistent with that basic concept. Indeed, the notion of a punitive caution could almost be said to be a contradiction in terms. When the Government say in their various documents that they are only extending conditional cautions, widening their scope or filling a gap, it sounds harmless enough. But it is not harmless, because Clause 16 does much more: it creates something ““radically new””. Those are not my words, but those of Hazel Blears in Committee in the other place, where she said that this new concept could affect as many as 30,000 individuals a year. My objection is that the two ideas, a caution and punishment, are inconsistent with each other. Thirdly, I fear that if fines are capable of being made conditions, they will soon in practice replace the other conditions, because they are much easier to monitor and enforce. If that happens, all the good done by the 2003 Act, and which should continue, might be driven out by the bad done by the 2006 Act. Fourthly, if we are introducing something ““radically new””, as Hazel Blears said—and I certainly believe that—should we not have had proper consultation before we were asked to do that? The noble and learned Lord the Attorney-General has expressed regret that there was not more consultation, but he says that he and the Lord Chancellor discussed the matter with judges, magistrates and officials—although I do not know who they may be. I, too, have discussed the matter with judges and magistrates and I found no one in favour of this proposal—certainly not the magistrates, judging from their views expressed as recently as March 2006; nor do I read Lord Justice Auld in his 2001 report as favouring what is now proposed. In its recent paper, Liberty made a strong case against the proposal. Lastly, there is surely an overwhelming case for waiting until the results of the 2003 experiment are available, so that we can know whether it is working. What is the urgency? The answer, we are told, is the pressure on magistrates’ courts and the need to divert 30,000 cases at whatever cost in terms of constitutional principle. Conditional cautions under the 2003 Act were progressive, beneficial and based on principle. The current proposal is not. It is yet another example of expediency driving out principle, and I hope that we shall oppose it. I beg to move.