My Lords, I will also speak to the other amendments in this group. The Committee has already considered these issues, so I can be brief. I apologise for not recognising that some of the amendments in a previous group covered similar issues.
In that previous group, the noble and learned Lord, Lord Falconer of Thoroton, suggested that the maximum number of hours attached to the unpaid work condition and the attendance condition, and the maximum fine that could be attached to a caution, should be set in
the case of the fine and varied in all cases by regulations and that those should be amended only by the affirmative resolution procedure. The noble and learned Lord previously said in Committee that this was not an ideal solution, as regulations could not be amended and that this House was reluctant to use the “nuclear option” of praying to annul regulations, which is the only option available if it disagrees with a statutory instrument. Even with the affirmative resolution procedure in place, in practice, if the House disagrees with an increase to the maximum number of hours of unpaid work—or any of the other conditions attached to police cautions—there is little that it can do about it, unless changes are made through primary legislation.
I grant that the value of money is eroded over time by inflation and periodically the maximum fine capable of being attached as a condition to a caution may need to increase accordingly, but surely not the amount of time to be spent in unpaid work or subject to the attendance condition. There is a question of principle. If an offence is so grave that greater punishment is required, that should be a matter for the courts and not for a police officer to decide. There is precedent in our legal system for this principle. If magistrates want to impose a harsher sentence, they must refer eligible cases to the Crown Court, where a more senior judge can make a decision with more serious consequences.
When I joined the police service in the 1970s, the police performed the role of both investigator and prosecutor. Parliament then decided that prosecution decisions should be made by an independent body, the Crown Prosecution Service, for very good reasons that I do not need to rehearse here, while punishment of the individual has primarily been a matter for the courts, supported by reports from experts on the medical, social and criminal antecedents of the accused, in many cases, and considered by highly trained and experienced judges who are obliged to follow sentencing guidelines. In the proposals contained in this part of the Bill, the police are investigators, prosecutors and sentencers. There must be limits on the extent to which they should be allowed to carry out all three functions in relation to a case and those limits should be set out in primary legislation, on the face of the Bill. That is the purpose of these amendments and I beg to move Amendment 174.