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

My Lords, I, too, thank the Minister for his statement in support of these orders. In 2003, we on these Benches welcomed the introduction of the conditional caution, which at the time could contain conditions relating to rehabilitation and reparation. My noble friend Lord Dholakia spoke in favour of it at the time. However, in 2006, we opposed the introduction of conditions that were punitive, and also the provision that the police could arrest a person on suspicion of non-compliance with the conditions that had been made. The basic objection in principle to the punitive element is that it puts into the hand of the prosecutor the job of being both judge and jury as well as prosecutor. Where we have fixed-penalty fines, the amount of the fines, which can be handed out by police officers for various minor offences, is fixed by Parliament, or by regulations that have gone through Parliament. However, when it comes to the punitive condition that is now to be attached to these cautions, the onus passes to the prosecutor to decide all sorts of things. He can decide the amount of the fine, for example. He can decide what amount is to be paid, when and how. When it comes to youth justice, he decides much more than that—there is quite a menu for him to pick from. He can be involved in choosing his conditions. The guide says: ""Conditions may be included to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the youth to stay away from a specific area)"." There is reference to opportunities to provide unpaid work that benefits the community and the use of a, ""financial penalty condition … to punish the youth and deter future offending"." We now have a system whereby the prosecutor rather than a court determines matters of discretion—the type and amount of punishment. The Magistrates’ Association has written to a number of us—we may hear more about this—expressing opposition to the idea that the principle that has governed our justice system until now, that a court with independent judges or magistrates should determine punishment, should now be abandoned so that a prosecutor can do what he likes, within the limits that the Bill sets down. A very large discretion is given to the prosecutor to determine how to punish a particular person. As I have already said, when you add to that the power of the police to arrest someone and hold them in custody merely on suspicion of non-compliance with conditions which a prosecutor, not a court, has set down, it can be seen how far the principle has been breached. Therefore, we do not welcome the orders. We think that the provisions of the 2006 Act were wrong. We always agreed with the provisions of the 2003 Act which kept people out of prison, although we dislike the idea that people who have a caution should also have a criminal record. Since then, of course, not only previous convictions but a list of cautions that have been administered to a person are produced in court on the conviction and sentencing of that person. The danger is that a person will always be inclined to take a caution, which will avoid him having to stand in front of a court, rather than take a punishment from the court. Therefore, there was a great intrusion of principle in the 2006 Act and we still oppose it.