Police and Justice Bill

rose to move, That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose the following amendments in lieu thereof— 5B: Page 8, line 33, leave out ““as follows”” and insert ““as set out in subsections (2) to (4)”” 5C: Page 9, line 4, at beginning insert ““(subject to section 23A)”” 5D: Page 9, line 4, leave out ““(as to which see section 23A)”” 5E: Page 9, leave out lines 18 to 22 and insert- ““(1) A condition that the offender pay a financial penalty (a ““financial penalty condition””) may not be attached to a conditional caution given in respect of an offence unless the offence is one that is prescribed, or of a description prescribed, in an order made by the Secretary of State. (2) An order under subsection (1) must prescribe, in respect of each offence or description of offence in the order, the maximum amount of the penalty that may be specified under subsection (5)(a). (3) The amount that may be so prescribed in respect of any offence must not exceed-”” 5F: Page 9, line 25, leave out ““£500”” and insert ““£250”” 5G: Page 9, leave out line 30 and insert- ““(5) Where a financial penalty condition is attached to a conditional caution, a relevant prosecutor must specify- (a) the amount of the penalty,”” 5H: Page 10, line 4, at end insert- ““( ) In section 330 of that Act (orders subject to affirmative resolution procedure), in subsection (5)- (a) in paragraph (a), before ““section 25(5)”” there is inserted- ““section 22(3C),””; (b) after that paragraph there is inserted- ““(aa)an order under section 23A(4) which makes provision- (i)increasing the fraction in section 23A(3)(a), or (ii)increasing the figure in section 23A(3)(b) by more than is necessary to reflect changes in the value of money,””.”” The noble and learned Lord said: My Lords, I beg to move Motion B standing in the name of my noble friend Lady Scotland. The Motion is that this House do not insist on its Amendment No. 5 and do agree with Amendments Nos. 5A to 5H in lieu thereof. When we debated this matter previously, I explained to the House why we are seeking to broaden the scope of conditional cautions by adding a punitive objective to the objectives of reparation and rehabilitation currently allowed by the legislation. Conditional cautions have been operating in a number of areas and have been successful. The usefulness of the scheme has, however, been limited largely to those offenders who have personal problems linked to offending and to deal with offences where there is an individual victim who has suffered quantifiable loss. It has not been possible, for example, to provide for indirect reparation by way of unpaid work. There are a number of safeguards in the legislation to ensure that it will operate within a proper framework. There are measures to protect the rights of the offender, including the opportunity of free legal advice, the requirement of an admission of guilt by the offender, and the acceptance of the conditional caution in writing. I emphasise again that a conditional caution can be considered only in cases where there is sufficient evidence to prosecute. At all times, an offender can choose to reject the offer of a conditional caution and instead go to court. In the event of non-compliance with a conditional caution, the offender can be prosecuted for the original offence; there is no separate penalty for failing to comply with the conditions although they were accepted before. The offender always has a choice. We believe that, as the Joint Committee on Human Rights found in 2003, those safeguards will continue to ensure that a person’s consent to a conditional caution is not coerced. However, during previous debates on this matter, it was clear that concerns remained about the level of discretion that would be available to prosecutors, particularly with respect to the financial penalties. We have listened carefully to the concerns and we have brought forward amendments to address this point. The amendments proposed for insertion into Clause 15 would effect a number of changes dealing with financial penalties. First, Amendment No. 5E proposes reducing the maximum amount of any financial penalty that can be required from £500 to £250. That figure may be more commensurate with the level of minor offending that we are seeking to encompass in the remit of the scheme. If in the future any changes are needed, they will be subject to the affirmative resolution procedure, except for changes arising solely from changes to the value of money. Secondly, new subsection (1) of Section 23A of the 2003 Act, which would be inserted by Amendment No. 5D, would have the effect of requiring that financial penalties could be used only in respect of a set of offences specified in secondary legislation, subject to the negative procedure. Noble Lords may think this is a significant issue, because concerns have been expressed about what offences would come within the ambit of the financial penalties for conditional cautions, and this means that they would be prescribed in secondary legislation. Thirdly, new subsections (2) and (3) inserted by Amendment No. 5D would require that secondary legislation would specify in relation to each offence the maximum penalty for that offence or group of offences. We plan to do this by grouping offences into bands according to the seriousness of the offence and attaching to each a proposed maximum penalty. The prosecutor would not be able to require a financial penalty that was above the maximum amount for the offence in question. So that already narrows the area of prosecutorial discretion to maxima that had been set in a statutory instrument subject to negative resolution procedure. We propose also that the secondary legislation provides that the prosecutor has some discretion to reduce the amount of the specified penalty for the offence committed to take account of the offender’s means and the overall proportionality of the conditions. I mention that because in Committee the noble Baroness, Lady Anelay, pressed on me the importance of taking account of the means of the offender and of the overall proportionality of the conditions. I agreed with the noble Baroness that if an offender was subject to a condition—perhaps a reparative or rehabilitative condition—it was right to take that into account in determining what, if any, financial penalty was proposed. Our proposal is to provide for an ability to reduce the specified penalty proposed as a conditional caution to take account of those features. I hope noble Lords will agree that that is a proper way to strike the balance between the proper concerns that have been expressed by the noble Baroness and the concerns expressed in the previous debate. Finally, Amendment No. 5G makes subject to the affirmative resolution procedure any proposed changes to the maximum hours, which are set at 20 in the Bill. That would also apply in respect of any proposed changes to the fraction that can be required in relation to the maximum penalty for which an individual would be liable on summary conviction for the offence in question. The same safeguard as that being offered regarding the penalty is being offered in relation to the number of hours—that they cannot be increased without an affirmative resolution, except in respect of changes in the value of money as regards the financial penalty. I hope that noble Lords will agree that the amendment directly addresses the concerns that have been expressed. We believe that the clause is a sensible and considered addition to the conditional caution scheme and provides the opportunity to deal fairly with offenders who are willing to admit their guilt and allows for a swift and proportionate response with adequate safeguards. Moved, That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose Amendments Nos. 5B to 5H in lieu thereof.—(Lord Goldsmith.)