Crime and Disorder Act 1998 (Youth Conditional Cautions: Code of Practice) Order 2009

My Lords, I shall speak also to the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. I hope that it will be for the convenience of the House that these two orders are debated together. The orders implement codes of practice which govern the use of the adult conditional caution and the youth conditional caution. I have asked for these orders to be debated together because of the similarities between the two schemes. I will speak first about the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. Its sole purpose is to implement the revised code of practice for conditional cautioning, which will come into force the day after the order comes into force. Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult—18 or over—admits the offence, and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to the caution. Where it is possible to set appropriate conditions, the public interest may be met more effectively by the offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions he may be prosecuted for the original offence. Conditional cautioning has been available for adults throughout England and Wales since March 2008. It is currently operating under a code of practice approved by Parliament in 2004. We now want to update that code to provide for amendments to the Criminal Justice Act 2003 made by the Police and Justice Act 2006. These amendments allow for punitive conditions to be attached to a conditional caution—specifically a financial penalty. We have also taken the opportunity to make further amendments in the light of operating experience and to improve the structure and readability of the code. The Secretary of State is required to publish the code of practice in draft, and this was done as long ago as 6 March 2007. Public consultation took place between then and 29 May 2007; 42 responses were received. Further revisions to the draft code were made in light of these responses. The revised code was approved by the Justice Secretary, Home Secretary and Attorney-General, and the draft order was laid before Parliament in July this year. The key changes to the revised code of practice are: first, the extension of the conditional cautioning scheme to allow for a punitive condition, specifically a financial penalty, to be attached to a caution; secondly, guidance on the power of arrest and detention; thirdly, removal of the requirement for an admission to be made in a PACE interview before a conditional caution can be administered; and fourthly, additional safeguards to ensure that this disposal is used appropriately. The House will have noted the delay between the consultation exercise and the laying of the draft order introducing it. Following the machinery of government changes in 2007 we decided to delay the introduction of a revised code of practice until national rollout of the conditional caution had been completed in March 2008. The subsequent timetable has taken into account our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution. If the order implementing the revised code is approved by Parliament, it will be implemented across England and Wales next month. The key new element—the financial penalty condition—will be available in only five specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. This was set out in relevant commencement orders for Section 17 of the Police and Justice Act 2006. Following a review of the pilot, a decision on national implementation of the financial penalty condition will be taken. The purpose of the other order is to implement the code of practice for the youth conditional caution. The code of practice will come into force the day after the order comes into force. Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged between 10 and 17 by amending the Crime and Disorder Act 1998, although we agreed during the passage of the legislation that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17 year-olds. The youth conditional caution has been designed to operate in a way consistent with the adult scheme. However, there are by necessity a number of differences. First, as is the case with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. Secondly, the youth code sets out the role of the youth offending team—the YOT—in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent in the code for the adult conditional caution. Thirdly, punitive unpaid work is available for the youth conditional caution, as the facility for this is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person might not have the ability to pay a financial penalty. Fourthly, the adult code allows for a condition to be attached to a caution requiring the offender to pay for the course he is attending. A young offender cannot be required to meet the costs of a course he is attending as a condition of a caution. The Secretary of State is required to publish in draft the code for the youth conditional caution, and this was done early in March this year. Public consultation took place between then and the end of May; 32 responses were received. As a result of the consultation a number of detailed amendments were made to the code to remove perceived ambiguities. The code was subsequently agreed by the relevant Ministers and draft orders were laid in July. If the order implementing the code is approved by Parliament, we will pilot the youth conditional caution in the same areas as the financial penalty condition for adults. A decision about national implementation will then be taken. I commend the draft statutory instruments to noble Lords.