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Lords amendment disagreed to.

It being after half-past Eight o’clock, Madam Deputy Speaker put the remaining Questions required to be put at that hour, pursuant to Orders [6 March 2006 and this day].

Government amendments (a) to (k) agreed to.

Clause 5

Standard powers and duties of community support officers

Lords amendment: No. 5.

The Solicitor-General (Mr. Mike O'Brien): I beg to move, That this House disagrees with the Lords in the said amendment.

The amendment removes clause 15, which would allow punitive conditions such as a fine to be attached to a conditional caution.

Conditional cautions have been operating in a number of areas and have been successful in dealing with offenders who would otherwise have had to be prosecuted in the courts. The scheme’s merit in dealing with petty offenders has been recognised both in this House and in another place. However, the usefulness of the conditional caution has been limited by the requirement for conditions that are either to make reparation or for some form of rehabilitation. They cannot at present punish the offender. The Government believe that there are considerable advantages in extending the scheme to allow punitive conditions, including fines, to be attached. That is why we want to remove the amendment agreed in the other place.

The conditional caution scheme was introduced in the Criminal Justice Act 2003 as a way of dealing quickly with low-risk offenders who admit committing relatively less serious offences. They will be diverted from prosecution, subject to certain important conditions. The first is that the conditional caution can be offered only when there is sufficient evidence to charge a person with an offence and when the prosecution has decided that that offence could be prosecuted in the public interest. Those criteria must be fulfilled.

Secondly, the offence itself must be appropriate for a conditional caution. The caution is offered by the Crown Prosecution Service, in consultation with the police, in cases where the offender would probably have received a fine, been ordered to pay compensation or given a conditional discharge if the matter were prosecuted in a magistrates court.

Thirdly, the defendant must admit the offence. Fourthly, they must agree to be cautioned. Crucially, at no time does the defendant lose the right, if he wishes, to have his case dealt with by the magistrates court in the normal way. He can go to the magistrates court, enter his plea and receive a sentence in the normal way. That right remains open to him at all times until he has agreed. Indeed, he may wish in due course to go back to that court. The defendant will also need to agree to fulfil the conditions attached to the conditional caution.

All those conditions must be complied with. If they are not, the defendant will be brought back and sent to the magistrates court, which will deal with the
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defendant for the original offence. No extra penalty will be offered for the failure to comply with the conditional caution. That is the process.

The scheme will help to free up capacity in the magistrates courts so that they can deal with more serious and contested cases. I am a great believer in the idea that the magistrates court is a forum in which contested cases can best be determined, and also in which serious cases can be dealt with well. A programme of conditional cautions has been running already in a number implementation areas and we are now ready to roll it out across the country.

The magistrates courts’ own statistics show that the average time taken for a non-motoring guilty plea to be dealt with is 113 days—that is three and a half months. In addition, the court normally gives further time to pay a fine or compensation. Some guilty pleas can require four hearings. Conditional cautions can be much quicker in most cases, although not all. It is sometimes necessary, for example, to identify whether a condition to attend a drug rehabilitation centre can be complied with, and so various reports and agreements to take someone may have to be undertaken or addressed. So, it can take more time to deal with a conditional caution, on occasion. However, the aim is that, by and large, when the scheme is properly rolled out, we should be able to deal with most conditional cautions within about 48 hours. In many cases, the time may be much shorter than that. In those circumstances, the outcome should enable compensation to be paid much more quickly, for example.

Mr. Walker: I apologise—I was not present in Committee—but what is the incentive for someone to choose a conditional caution over appearing before the magistrates court?

The Solicitor-General: There are a number of incentives. One is that the matter will usually be dealt with much more quickly. An offer is made and, in a sense, the defendant then has to choose whether to accept that offer or to take the matter to the magistrates court, with all the time that that may take. There is a greater degree of certainty, because the defendant knows what the offer is, whereas he does not really know what the magistrates court may do. He will be able to determine whether he can afford to pay the fine—or whatever it is—there and then. There are also limitations on the level of fine that can be imposed as a result of a conditional caution. The limitation is about a quarter of the maximum in a particular case or £500. The penalties will be constrained, in terms of what can be done, if we get all the proposals that we want through. So, there are some advantages to the defendant in choosing a conditional caution. He will get free legal advice.

Let me take the hon. Gentleman through what would happen. Let us say that a defendant has just been arrested, is brought to the police station and is being charged with driving away from a garage without paying for the petrol. He has got a few previous convictions, but nothing major. He is not a long-term recidivist offender. I will describe how we would like to see things operate. They have not always operated in this way in the pilot areas, because we have been looking at how we
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can get things to develop, but the aim is that the scheme would operate in the following way. The offence would be considered and a decision would be made about whether this was an appropriate matter to be dealt with by a conditional caution. The police would telephone the Crown prosecutor, or the Crown prosecutor may well be in the police station in some of the charging centres. The question would then be the conditions that needed to be imposed. When the conditions were agreed by the prosecutor, an offer would be made to the defendant. In such circumstances, it would be of key importance that the defendant had admitted the offence and that there was no doubt about his culpability.

8.45 pm

After the prosecutor made the offer, the defendant could ask for free legal advice. He would then decide whether to accept the offer, and a number of things could then happen. For example, it might take a short time to find out how much compensation should be paid. In the example that I cited, for instance, it could be straightforward to calculate the compensation, if the cost of the petrol was known, but if the offence was a form of criminal damage, it might take some time to obtain quotes to determine what the value of the compensation should be. If the defendant did not agree to comply with the conditions, he would end up going back to the magistrates court to be dealt with in the normal way.

Mr. Hogg: The Solicitor-General has described how the system will apply to an offence of dishonesty. Will he remind the House of the classes of offence to which the conditional caution may apply? For example, I would be very concerned if it applied to classes of burglary.

The Solicitor-General: Essentially, we are looking at petty offences, although some of them, such as theft, concern people a great deal. We are certainly considering shoplifting and some aspects of criminal damage. We are also considering disorderly and antisocial behaviour.

Mr. Hogg: Burglary?

The Solicitor-General: It would not be our intention that burglary, especially residential burglary, would be dealt with by way of a conditional caution. My view, for what it is worth, is that residential burglaries deserve custodial sentences, although the courts do not always impose them. The conditional caution would thus be singularly inappropriate in such circumstances. At this stage at least, we do not think that a conditional caution would be an appropriate way of dealing with offences such as actual bodily harm, carrying a knife and causing knife injuries.

The system would be used to deal with the 75 per cent. of cases that are dealt with in the magistrates court by way of a fine. Sometimes such fines are relatively small—£25, £50, £100, or perhaps £150. Of course, costs can be claimed against a defendant, but it can take a long time to get that money out of them. We are looking for a way of ensuring that the magistrates court, which is one of the best ways of dealing with petty offences, is able to deal with contested cases—when someone disputes their guilt—and more serious cases.

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Mr. Peter Bone (Wellingborough) (Con): The Solicitor-General outlines the way in which the police will contact the CPS and how the CPS will make decisions. It seems ambitious to think that that will all be done in 48 hours. Have the pilots achieved that?

The Solicitor-General: By and large, the pilots have not been an attempt to achieve that. The pilots have allowed us to test various ways of doing things. Several of the pilots have shown that it can sometimes take about 14 days for the process to be completed and a conditional caution agreed. The negotiation process between the police and the CPS has been a learning exercise. The aim is to move beyond that. As the hon. Gentleman will know, prosecutors often work in police stations, and particularly in charging centres, so they are certainly available during the day. It is envisaged that they will be able to make decisions about conditional cautions, there and then. It is also envisaged that, in due course, there will be a telephone system so that the prosecutor can be telephoned for a decision on what the conditions should be. That will speed up the decision-making process.

Where conditional cautions have been granted, the response of victims has, by and large, been positive. Their compensation was paid quickly, and they found that the matter was dealt with much more expeditiously than it would have been by the court system. By and large, the system works well, but there are some problems. Before discussing them, I want to make one further point to the hon. Member for Broxbourne (Mr. Walker), who asked about the advantages of the scheme. One advantage, of course, is that such cautions are not registered as a conviction, which can be a considerable advantage for particular individuals.

Tony Baldry: I hope that the Solicitor-General will not think this churlish, but he has been speaking for 15 minutes, and we have to complete discussion on all the amendments by 10 o’clock. On Report, the House was unable to debate any of the amendments on the prisons inspectorate, and many of us are concerned that the concessions that the Government are making on that subject are conditional. I would be grateful for his guidance: is it the Government’s intention that we will have an opportunity to discuss the next group of amendments this evening, or is it the business managers’ intention that this debate will run until 10 o’clock, so that once again we will not have the opportunity of discussing—

Madam Deputy Speaker (Sylvia Heal): Order. The hon. Gentleman knows that his intervention must be related to the Lords amendment under discussion.

The Solicitor-General: I sought to be helpful to the hon. Gentleman’s colleagues who have asked me questions. If I can make progress, we should be able to deal with the matter under discussion and move on to others.

The scheme has worked well, as I said, but the conditions that can be attached must have the objective of either rehabilitating the offender, or ensuring that he makes reparation—for example, by paying compensation for the offence. The petrol thief would pay compensation for the cost of the petrol, or could do something by way of rehabilitation, such as writing a letter of apology.
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Such conditions are undoubtedly useful, as they provide the offender with an opportunity to take part in rehabilitative programmes, especially to deal with alcohol or drug abuse. For example, a drug-using prostitute might be given the condition of attending a drug clinic, and that might help them to deal with the real cause of some of their problems.

Offenders have widely accepted the opportunity to pay compensation to the victim for the damage caused by their offending behaviour. The important result is that the victim typically receives compensation without experiencing the usual delay associated with the court process. However, that restricts the scheme only to those cases in which there is an identifiable victim who has suffered quantifiable loss, or in which the offending is linked to an underlying personal problem that can be the subject of an order. A fine or punishment, such as some form of work in the community, is not currently allowed. The petrol thief, for example, could benefit from learning a lesson by having to pay a fine as a deterrent, but at the moment we have to go to the expense of going to court to ensure that that happens.

During the implementation and operation of the scheme, we identified some limitations in the legislation. For example, the term “reparation” implies putting right the specific harm or damage that the offender caused, but there are occasions when that is not possible. The harm may have already been put right by the victim—he may have repaired what was damaged—or it may be impossible to identify the specific damage caused by the offender.

Punitive conditions would allow the offender to make another contribution towards paying for the damage caused, such as undertaking work in the community that is not directly related to the offence. Not all offences will involve quantifiable loss, but they may still disadvantage the local community. Punitive conditions that form part of a conditional caution could allow an offender to undertake unpaid work that benefits the local community and its residents to make good the harm caused by antisocial or disorderly behaviour—in other words, it would allow community payback.

Another type of condition that the provision would enable is fines. Three quarters of the wide range of cases that come before the magistrates court are dealt with by way of a fine—sometimes a small one, as I indicated. Although the main objectives of the conditional caution scheme are to ensure that reparation or rehabilitation takes place, the availability of a condition that the offender pay a fine would improve the ability of the scheme to provide a tailored response to offending. This condition would not be at the expense of other, more suitable conditions.

Currently the police can issue a penalty notice to punish the offender, and the CPS can give a conditional caution where the object is to compensate the victim. There may be cases where the appropriate response is to include both of these measures. Prosecutors will also need to ensure that where a financial penalty condition is imposed, it is proportionate, appropriate and achievable. So, in the case of the defendant who drove off without paying for petrol, a fine could be imposed as well as a requirement to make compensation and perhaps write a letter of apology. All those penalties would have to be proportionate, appropriate and achievable.

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We believe that it is consistent with the aims of a fair, equitable and proportionate scheme to provide prosecutors with a limited amount of discretion to impose a condition of payment of a fine, and to allow mitigating factors and the means of the offender to be taken into account in assessing the size of that fine.

As I said, there are a number of safeguards built into the scheme to protect the rights of the offender. It is important to reiterate those. They include the opportunity for free legal advice, the requirement of an admittance of guilt by the offender, and acceptance of the conditional caution in writing. Again, I emphasise that an offender can always choose to reject the offer of a conditional caution and instead go to court, so the offender always has a choice. In the event of non-compliance with a conditional caution, the offender can be prosecuted for the original offence. There is no additional sanction.

I have already referred to the safeguards that we have built into the scheme, but I am aware that there are still some concerns. I will listen with care to the concerns that are likely to be expressed from the Opposition Benches and we will consider them. We want to ensure that we can consider punitive penalties, as well as rehabilitative and reparational ones. An extension of the scheme to include punitive conditions will require a revision of the conditional cautions code of practice and would be subject to public consultation and to the affirmative resolution procedure in the House. That will ensure transparency and provide both Houses with an opportunity for further discussion on more detailed aspects of the scheme.

In conclusion, the Government believe that the clause allowing for punitive conditions is a sensible and considered addition to the conditional cautions scheme. It provides the opportunity to deal fairly with offenders willing to admit their guilt. It also allows a swift and proportionate response that is effective and has adequate safeguards. I urge the House to overturn Lords Amendment No. 5.

Nick Herbert: We supported conditional cautions, which were intended to enable the rehabilitation of offenders or ensure that they made reparation for the offences that they had committed, but we believe that punitive conditional cautions, which attach a punishment to a caution, enter new and dangerous territory. First, an important issue of principle is at stake. By definition, cautioning should not involve punishment. The expression “punitive caution” is a contradiction in terms—a classic oxymoron, rather like “military intelligence”, “conservative intellectual” or, for that matter, “new Labour”.

Punishment should be decided by the courts. It is wrong for prosecution to be involved. That is a legal principle which, as the Solicitor-General knows better than I, has been enshrined since the Bill of Rights, which provided

It is for that reason that the Magistrates’ Association has described the proposals as

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The Government’s argument that the principle is already conceded in relation to fixed penalties, which has been deployed during consideration of the Bill, is wrong. As Lord Lloyd of Berwick pointed out in the other place,

These proposals will turn prosecutors into sentencers.

The Solicitor-General: The hon. Gentleman is no doubt aware of the procurator fiscal system in Scotland. Will he tell me whether he thinks that that system includes all the awful things that he has claimed for this scheme?

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