Police and Justice Bill

My Lords, at Third Reading I pointed out that the clause as proposed was contrary to a basic principle of our constitution in that it is not for the police or the prosecution to have any hand in sentencing an offender. That is a question for the courts. When I asked the noble and learned Lord the Attorney-General how the argument that he was advancing regarding the clearing of graffiti would apply in the case of a fine, he said that he would not shy away from that difficulty. But it remains a difficulty and I believe that the way that the noble and learned Lord dealt with it was unsatisfactory. The fact is that a fine is a fine, a fine is a punishment and a punishment is totally inconsistent with the idea of a conditional caution, as originally envisaged in the 2003 Act. I also made a point that was made by many others, not least by the noble Baroness, Lady Anelay, that this is a radical departure from principle, which has been introduced without any consultation. All those I have consulted—we know the view of the Magistrates’ Association—are, I shall not say as horrified, but are certainly as surprised as I am horrified. The amendments do not answer my basic constitutional objection and I remain rootedly opposed to this clause. But I acknowledge that the Government have tried hard in these amendments to reduce the impact of the clause. The reduction from £500 to £250 is welcome, as is the plan to specify the offences to which the conditional caution will apply and to set separate maxima for each offence. That certainly reduces the discretion. There is still a level of discretion left to the prosecuting authorities which, as I say, I find objectionable. If the amendment were left as it is, I would still find it difficult to accept. Since then the noble Baroness has written to the noble Baroness, Lady Anelay, with a copy to me—which unfortunately I did not receive, but I have now seen a copy—in which she makes certain further suggestions. She says that the intention is not to specify separate maxima for each of the new offences which are to be specified, but to have a norm; in other words, that will be the figure, unless that figure is reduced having regard to the impecuniosity of the offender and one other matter. That seems to put a different picture on the amendment; because it then becomes much more like the ordinary penalty charge which we all understand and to which no one has ever had an objection. I understand that this will be a penalty of a certain amount unless the amount is reduced because of the impecuniosity of the offender. That seems to me to be much more reasonable and much more understandable. I still have my rooted objection, but if in replying we could be given an undertaking that that is what is intended—a norm subject to a reduction—I, for one, might find it difficult to resist the amendment.