My Lords, first, I will pick up one point from the last group to make it very clear: if I have made any errors, I am happy to correct them. As far as I am aware, there is no doctrine of ministerial infallibility; I say that with all due respect to my colleagues. Because the Cabinet table is still terra incognita to me, I hope I am on the right side of good behaviour even speaking from this seat.
I reassure the noble Lord, Lord Paddick, that we are not introducing any changes to the current regime for rehabilitating offenders who receive a caution. The proposed diversionary caution replicates the current system for the conditional caution, with the same spending period. I also point out that the lower-tier community caution being introduced has no spending period, and therefore mirrors the current adult simple caution. In effect, we are maintaining the position that pertains with a spending period for the lower-tier and higher-tier cautions. We think that is a sensible position to take.
I agree with the noble Baroness, Lady Chakrabarti, that the Rehabilitation of Offenders Act was, to use her phrase, a wonderful thing. It is an important piece of legislation and the principle underpinning it is important. It seeks to strike a balance between protecting the public and rehabilitating offenders, and it does that by requiring that in most cases a criminal record must be disclosed for a period of time but—this is the important “but”—after that period, the offender no longer needs to disclose it for most types of employment. I hear the point made by my noble friend Lord Hailsham that cautions sometimes have to be disclosed, but it depends for what purposes and when. There is an important spending period.
The real question at the heart of this debate is whether diversionary and community cautions should have the same spending periods. It is at that point that I respectfully diverge from the approach of the noble Lord, Lord Paddick, because, if a diversionary caution were to be treated as spent at the time a caution is given, it would suggest that there is nothing in favour of public protection that requires the disclosure of that caution, and the offending it relates to, for even a limited time—up to three months—after it has been given. That position is simply not tenable, once we recall what the diversionary caution is all about. Let
us remember that the diversionary caution requires the authorised person to be satisfied that there is sufficient evidence of offending to charge the offender, and the offender themselves must both admit to that offending and consent to the giving of the caution. Public protection therefore continues to be engaged after it is given as, unlike a community caution, criminal proceedings may be instituted if the offender does not comply with the conditions.
Over and above that, again unlike the community caution, the diversionary caution can be given for indictable offences, admittedly in exceptional circumstances and with permission of the Director of Public Prosecutions. That again highlights the importance of placing a time-limited spending period on cautions that relate to more serious offences. Removing, therefore, the spending period for diversionary cautions blurs the important distinction between the two sorts of caution.
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For the out-of-court disposal regime to succeed, offenders must take the offer of diversion from prosecution seriously. One should remember that it is called the diversionary caution because it is a diversion from the court process and prosecution. Equally importantly, victims and the public must have confidence in its use. I have already mentioned that a review back in 2013-14 showed that over half of respondents did not believe that out-of-court disposals in their current form deterred offending.
The spending period has another upside. It creates an incentive for the offender to meet the conditions of the caution earlier than the three-month period, given that the caution is spent as soon as the conditions are satisfied. That is important. If one gets on with it and meets the conditions earlier than three months, the spending period ends there. There is an incentive, therefore, to get on with it because one’s spending period will be shorter.
The amendment also proposes to remove the same rehabilitation period that applies to youth conditional cautions and provides that such cautions are spent immediately when given for most purposes. Essentially for the same reasons that I have given in relation to the adult diversionary caution, we consider that the position is not tenable. A youth conditional caution is distinct from a simple youth caution and should be disclosed until the conditions have been met or three months have passed, whichever is sooner.
However, I draw the Committee’s attention to Clause 164, regarding the proposed reduction to rehabilitation periods for those receiving custodial sentences or other disposals on conviction. Rehabilitation periods are not set arbitrarily. We give serious thought to them and keep them under review to ensure that they are fair, and that the balance I mentioned earlier continues to be met.
Although I am now straying from the amendment because our debate ranged more widely, perhaps I may respond to the noble Lord, Lord Carlile of Berriew, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Chakrabarti, and my noble friend Lord Hailsham. I hear their points about cautions. We seek to maintain a proper balance here. I hope that it is fair for me to say that the points raised go beyond
the scope of the amendment, but I have heard them. I will reflect on and discuss them and, if noble Lords who have made those points think that it would be helpful, that might well include discussions with them. For the reasons that I have set out, I invite the noble Lord, Lord Paddick, to withdraw the amendment.