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Amendment No. 41 makes explicit provision to ensure that a person arrested for suspected breach of a conditional caution may be released on bail pending further investigation into the suspected breach. Again, the amendment is unnecessary, as the power is already available under new section 24A(2)(b) inserted by clause 13. That includes an option for a person to be
“released without charge and on bail to enable a decision to be made as to whether he should be charged with the offence”.
I hope that that will be enough to persuade the hon. Lady to withdraw her amendments to clause 13.
Finally, in relation to the hon. Lady’s s amendments Nos. 28 and 29, the use of a “trained constable” is a precursor to all activities carried out by a police officer. The amendments refer to an officer who
“has appropriate training and expertise to enable him to make a reasonable and informed assessment of the need for and proportionality of the conditions of bail”.
However, discretion and proportionality apply to everything that a constable does. It would be unique to indicate that a trained officer can only deal specifically with bail conditions. Instead, there is a more general requirement that a constable must be able and competent to deal with the powers and responsibilities attached to the office of constable. As the then Minister, my right hon. Friend the Member for Salford, indicated in Committee, guidance accompanying the commencement of those provisions will make clear the need for supervisory management to monitor the use of conditions attached to street bail and to ensure that its application is not subject to any stereotyped images or inappropriate generalisations. Those are important safeguards, which provide scrutiny and monitoring of the actions of a constable, and should serve to highlight any additional training requirements. I therefore hope that the hon. Lady will withdraw her amendments to schedule 4.
Lynne Featherstone (Hornsey and Wood Green) (LD): I want to make it clear that we are not against sanctions such as street bail; we believe that they can be beneficial when used constructively. However, we are concerned about the extension of summary justice without adequate checks and balances. I have listened to the Minister’s comments, and as well as apologising for my lateness in attending the debate, I welcome him to his new post.
The Bill allows further powers. It effectively allows the police and prosecution services, as opposed to judicial oversight, to administer punishment before a guilty charge has been proven. It places no limits on the period for which such conditions can be imposed, for a wide range of reasons, on street bail. There are no restrictions on the category of officer who can impose conditions. There is nothing to stop those powers being used as long-term alternatives to criminal investigation. We discussed that in Committee, and although the proposition is unlikely—and I am sure that it would be noticed if an officer prolonged the period—the point of law is to have safeguards in place that cannot be abused. Independent judicial oversight plays a vital role in a democratic legal system.
Cautions are not always issued on low-level crimes. The Magistrates Association says that the offences for which a caution can be administered include actual bodily harm, affray, criminal damage, possession of
class A or B drugs, having a bladed article in public, carrying an offensive weapon, burglary—non-commercial and non-residential—and theft. Those do not appear to be minor or low-level offences. If those are dealt with outside the court there is no public knowledge—and the level of offences involved is not as low as the Minister says.
As for the amendments, our first preference was to leave out clause 12, which would be the effect of amendment No. 32. Clause 12 enables conditions to be imposed on cautions whose object is punishment. At present, conditions can be imposed only for purposes of reparation or rehabilitation. As the Minister suggested, the Liberal Democrats would support the proposal wholeheartedly if it involved reparation or rehabilitation, but I am not sure that that applies to a monetary fine. The clause would allow the police and the criminal prosecution service to act as investigator, prosecutor, judge and jury, removing the courts and judicial oversight. It could also produce a two-tier criminal justice system.
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Ms Diana R. Johnson (Kingston upon Hull, North) (Lab): My understanding is that a person must accept the caution, and that if they are not happy to do so, the case will go through the judicial system. Is that not correct?
Lynne Featherstone: The hon. Lady is right to an extent, but a person who was rich and able to pay might well accept a condition that imposed a financial penalty. It would be a way of committing a crime and getting away with it. A two-level system of punishment would be created, in which those who could not afford to accept a conditional caution would have to go through the criminal justice system, while those who could afford it might say, “OK, I’ll pay. It was worth it.”
Amendment No. 33 retains the current legal position whereby the only conditions that may be applied to cautions are those intended to facilitate the rehabilitation of the offender, and to ensure that the offender makes reparation for the offence. The Bill proposes to allow conditions to be imposed on cautions when the object of the caution is punishment. That is not a small change. In Committee the former Minister for Policing, Security and Community Safety, the right hon. Member for Salford (Hazel Blears), acknowledged that the proposal was an “innovative and radical departure” from the current law. It will affect a great many people—an estimated 30,000 or so a year, according to the former Minister in Committee. This is not a matter of a few people in connection with virtually nothing; it will affect quite a lot of people, and a whole range of possibilities. The amendments would remove the proposed power to impose a fine as a condition of a caution, which would deal with the two-tier system that I described to the hon. Member for Kingston upon Hull, North (Ms Johnson).
In amendments Nos. 36 and 37, we seek to restrict the punitive conditions that could be imposed on a caution to those specified in the Bill. We also seek to prevent the Secretary of State from increasing by means of secondary legislation the maximum hours of
attendance and the maximum fine that could be imposed. As the magistrates’ briefing suggests, the scope of the powers that the Secretary of State would assume under clause 12 opens up the possibility that more serious offences will be involved. I think that everyone assumes that the clause relates to extremely low-level offences, but that may not be so rigorously enforced.
In Committee the former Minister sought to assure us that the provision would not be used in the context of more serious crime, citing guidance from the Director of Public Prosecutions on conditional cautions. I have looked at that guidance, and it does not contain an assurance that punitive conditional cautions will not be used to deal with more serious offences. As the former Minister herself has said, the most realistic safeguards against the use of the procedure to deal with serious offences are the restrictions on the severity of the conditions that may be imposed. That is why we propose that the Bill should prevent secondary legislation from being used to allow the imposition of more serious penalties.
Amendment No. 38 seeks to place a 12-hour limit on the length of time for which a person arrested on the suspicion that he or she has breached a conditional caution can be held in custody. It would also prevent a person from being rearrested for the same suspected breach of a condition. The Minister said something about a falsehood being presented and an officer listening kindly to it. The Bill gives the police power to arrest someone suspected of breaching a conditional caution, and to detain that person indefinitely until they feel able to decide whether to charge or release him or her.
Given the restricted purpose of the detention and the Government’s confidence that conditional cautions are to be used only for low-level offences, it seems entirely disproportionate for the police to be given an indefinite power of detention in such cases. That distinct disproportionality is highlighted when we consider that in the case of pre-charge detention when a person is suspected of having committed a criminal offence, the suspect can be detained for only up to 24 hours initially, with extensions of up to four days. For police gathering evidence within that time frame, deciding whether to charge the person is surely a harder task than deciding whether a condition of bail has been breached.
Our concern is that the Government are trying to give the police the power to keep those suspected of breaching a conditional caution in custody for longer than those suspected of committing a criminal offence, which seems disproportionate. However, our amendment No. 38 acknowledges that some flexibility is required. and that it would be unworkable to impose a limit of one or two hours. We consider a 12-hour limit more than adequate, and a reasonable amount of time, given the low-level nature of the crimes that the Government say will fall within the framework of these conditional cautions.
Our amendments Nos. 40 and 41 clarify the various options specified in proposed new sections 24A to 24C of the Criminal Justice Act 2003, making it clear that they would be available only when a prosecutor had decided that a condition of the caution had been breached without reasonable excuse. A person could
therefore be released on bail before it had been determined whether they had breached the condition of their caution. We do not dispute the use of powers listed in proposed new section 24A(2) where such a breach has been established; however, our worry is that that section does not limit the use of the powers in that way, but enables them to be exercised purely by virtue of the fact that a person has been arrested on suspicion of a breach.
Where a person accepts a conditional caution instead of prosecution, they enter into an agreement—a contract, of sorts—with the state. So it would be unnatural and unfair for the state then to change the terms of that agreement and to charge them with the original offence, without having established that the condition of the caution had been breached, and the offender had therefore broken their side of the deal. The same argument applies—
David T.C. Davies: Surely people who are cautioned are jolly lucky that they are not being charged with an offence in the first place. Is not the real unfairness the fact that many people are being let off with a slap on the wrist and a requirement to sign a piece of paper, instead of being charged with offences that they have admitted committing?
Lynne Featherstone: The hon. Gentleman makes a good point, but that is a completely different discussion.
It is clear that it might sometimes be necessary to release someone on bail while the decision is being taken on whether they breached the conditional caution. In fact, that might be a more proportionate measure than detention in custody. It is also clear that if investigations into the suspected breach have not been concluded within 12 hours—the time limit for detention—it might be necessary to release the person on bail, to ensure their attendance at a police station for further questioning at a later date. The last amendment in the group would retain the power to release on bail in such circumstances.
We are concerned about the training provided for constables who administer summary justice. If the police are to be able to impose punishments, they need a particular level of training. Amendments Nos. 28 and 29 would require constables to have appropriate training before they imposed bail conditions, to ensure that the suspect did not commit an offence on bail, interfere with witnesses or obstruct the course of justice. All constables would be able to impose such conditions as they considered necessary to ensure that the suspect surrendered to custody.
The granting of bail in a police station is the responsibility of the custody sergeant, who is a figure independent of the investigation; it is not the arresting officer—the policeman on the beat—who imposes bail. A custody sergeant has specialist training and expertise in order to perform a semi-judicial role in deciding whether bail conditions are justified. We want such training to be transferred to those who will administer conditions. Clearly, the custody officer will not be present when street bail is given. Instead, the officer responsible for deciding on the conditions to be imposed will be the investigating officer, who is not impartial and would not have the training and experience of a custody officer.
The proposal that would require constables to make decisions about conditions needed to ensure that a suspect did not offend when on bail is not viable either. A decision involving street bail places on the arresting constable the responsibility of achieving a balance between the aims of the conditions of bail and the rights of the suspect. The constable would also have to make judgments about the suspect’s likely future behaviour. That is a very grey area. We believe that constables should have the requisite training and expertise before they can impose conditions on street bail for purposes broader than ensuring attendance at a police station.
In Committee, the previous Minister accepted those arguments and said:
“Of course, we will expect officers exercising such powers to be properly trained. We expect that with any powers that the police are given. They have extensive training, and we will expect them to be properly trained in those powers.”—[ Official Report, Standing Committee D, 21 March 2006; c. 134-5.]
In the light of that statement, we can see no reason why the Government should reject the proposal to include the requirements in the amendments in the Bill. We could then write the expectations of the previous Minister in Committee, and our proposals today, into the legislation.
Nick Herbert: I wish to lend my party’s support to some of the concerns that underlie the amendments, if not the amendments specifically. We believe that limits on conditional cautions should be taken seriously. The Government favour what appears to be a considerable extension of summary power, and just before the local elections they slipped into the press—it was obviously intended to be a much bigger story, but was drowned by the events that engulfed the Government at the time—a further extension of the ability of police officers to issue on-the-spot fines for a range of offences. We look forward to hearing more about those proposals when they are properly announced to the House, and not by way of newspaper articles just before local elections.
The common denominator in the extension of summary power is that the courts are being taken out of the equation. Fixed penalties and conditional cautions are both alternatives to prosecution and have generally related to minor matters. My party supported the introduction of conditional cautions when they were introduced, but if punishment is involved it should, in principle, be a matter for some form of court involvement. The punishment becomes a form of sentence and the Magistrates Association has expressed great concern about the fact that it is being entirely removed from oversight of the operation of conditional cautions, which will be a matter for prosecutors.
When Lord Justice Auld, in his 2001 review of criminal courts, supported the introduction of a more general, formalised and conditional cautioning system, he also said:
“Any such scheme should, save for the most minor offences, be the responsibility of the CPS and subject to the approval of the court. Without the protection of the court’s approval, its use could be used or perceived as a ‘cop-out’ by the prosecution to avoid prosecuting cases that should be prosecuted, or of innocent criminals being at risk of pressure to accept onerous compromises to avoid prosecution, or of the rich being able to buy their way out of prosecution when the poor could not.”
The Magistrates Association points out that judges and magistrates take an oath, receive training, operate in public and have to announce the reasons for a sentence in open court—including any departure from sentencing guidelines—but the same does not apply to prosecutors. Where will the public accountability be for the operation of the conditional cautions?
This direction of policy is described as the extension of summary power, but magistrates courts are summary courts. That is where summary justice should be administered. The proper response to the Prime Minister’s concern that the operation of justice has not been fast enough, which we share, would be to look at the operation of the court system and the Crown Prosecution Service. The recent NAO report pointed out that between 150,000 and 180,000 ineffective hearings every year were caused by the prosecution, the police and the CPS.
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We will not oppose the extension proposals in the Bill, although we have reservations about the sort of offences that will be involved. As the hon. Member for Hornsey and Wood Green (Lynne Featherstone) said, some of them will be quite serious, and we will watch this policy development with some concern. We need reassurance about the proposals flagged up in the media for a further extension of summary justice. We need to know the extent to which magistrates courts are being closed out of the sentencing process simply for the sake of more rapid justice.
James Brokenshire (Hornchurch) (Con): This issue was discussed in some detail in Committee, so I shall be brief. However, I shall begin by welcoming the three new Ministers to their Front-Bench responsibilities. The Under-Secretary of State for the Home Department, the hon. Member for Enfield, North (Joan Ryan), used to be a Whip, so I am pleased that her promotion allows her to speak on Home Office matters.
The direction of policy in respect of summary justice has brought conditional cautions into closer focus. The obvious change that the Bill introduces is that the conditions attached to cautions are intended to punish the offender. That is the aspect of the Bill that has caused most disquiet when it comes to the intended operation of the cautions, and the comments of John Thornhill, the chairman of the Magistrates Association’s judicial policy and practice committee, are interesting in that regard. He said:
“We consider it contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities.”
Is it right for the police or prosecutorial authorities to extend their jurisdiction much further? If so, how far do we go? That is the substance of the debate on these amendments. However, if conditions that in essence are sentences or punishments are to be imposed, is a person from the police or the CPS the right person to impose them? Two possibilities arise. First, a person might accept a caution with conditions less stringent than would be the case if the matter were referred to
the magistrates court or some other judicial body. Secondly, and alternatively, a person might be advised or required to accept a caution without realising that the conditions are more draconian than those that a court would impose.
Other amendments in the group apply to police bail, to which a similar quasi-judicial approach should be adopted. The Magistrates Association believes that bail conditions must be examined very carefully, and that as much information as possible be obtained when the conditions are set. Sufficient training must be given to officers, and the proper safeguards put in place, to ensure that the conditions that are attached are appropriate. In that way, the people on the street who use street bail can do so in a way that is both effective and fitting.
Mr. David Burrowes (Enfield, Southgate) (Con): Does my hon. Friend agree that there is a wider concern? As the Carter review recommends restricting the involvement of solicitors to a fixed-fee basis, solicitors could be reluctant to give the quality of advice about police bail and conditional cautions that the interests of justice demand. There is concern that justice will not be done if we move from a system of summary justice with effective representation to a system of police representation with a squeeze on solicitors’ budgets.
James Brokenshire: My hon. Friend speaks from his practical experience as a criminal solicitor before he entered the House and he makes an important point. If the use of conditional cautions is increased while legal advice on whether to accept them is restricted, it is a cause for concern, so I hope that the Minister will take that on board and monitor the issue to ensure that unfairness does not result, and that the playing field is not skewed. Sentencing and punishment and the conditions for street bail and cautions must be applied appropriately, proportionately and effectively. The prosecuting authorities must not become judge, jury and executioner or even judge, jury and punisher.
There are valid concerns about the general policy approach. We must ensure that the process is robust and that the whole procedure is used appropriately.
Mr. Byrne: With your permission, Mr. Deputy Speaker, I shall make one or two concluding remarks.
Many years ago I read my Maitland—“The Constitutional History of England”—and I can still remember that flexibility has characterised the English system of law for the past 1,000 years. I am not a lawyer, however, so I hope that my historical reading is right, because that debate is at the heart of the issue we have been discussing.
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