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Nick Herbert: I am not aware of the procurator fiscal system in Scotland, but I am aware of the great concern expressed by the Magistrates Association in particular that turning prosecutors into sentencers breaches a principle of English law.
Mr. Hogg: There is a slight difficulty with that argument. When one has fixed penalties, one has at least got an adjudication of guilt, which, although it flows from what is effectively a guilty plea, is instigated by the prosecution—the police. I am not sure whether I can see a difference in principle between a conditional caution and a fixed penalty.
Nick Herbert: I understand my right hon. and learned Friend’s point, but I think that there is a difference in principle because the fixed penalty is statutorily prescribed, whereas this procedure requires an offender to admit their guilt and then accept a caution, which will be decided by the prosecutor according to a variable measure. That potential variation turns the prosecutor into a sentencer, whereas a fixed penalty is fixed by this House and known in advance. The procedure will confuse the roles of sentencer and prosecutor, which lies at the heart of the concern expressed by the Magistrates Association and others.
The Government have said that offenders can choose to refuse a caution, but the concern is that people will feel pressured to accept a caution and the administrative punishment that follows rather than going through a prosecution, even if they are innocent, either because they fear what the prosecution might involve or because they do not feel well advised.
Mr. Walker: Although the scheme proposed by the Government appears superficially attractive, I share my hon. Friend’s concern. The situation is similar to cases in which the police send people letters that say, “You have been caught speeding—pay £60. You can take this to court, but if you do, be warned that we could fine you £2,000.” That approach has caused concern, because some people who know that they are innocent, but who fear being fined £2,000, have taken the £60 fine and admitted the offence.
Nick Herbert:
That is my precise concern. In the case of conditional cautions, however, the approach could apply to much more serious offences. The danger is
that people will feel that they do not want to experience a court process, which will mean that the caution is not truly voluntary.
The Solicitor-General: The hon. Gentleman has said that he supports conditional cautions, but now he is trying to advance other arguments. Why does that point apply to fines, but not to the other rehabilitative or reparative conditions? He is arguing against the whole principle. Again, I remind him that the system in Scotland does not require the admittance of guilt, but it enables the procurator fiscal to impose a series of penalties on individuals. As I understand it, an increase in the penalties is being considered in Scotland, because the scheme has proved to be so popular in the past 20 years.
Nick Herbert: It is one thing for an offender voluntarily to accept rehabilitation or reparation, but it is quite another thing to accept a punishment. The difference of degree makes this development alarming.
Our second concern is that punitive cautions will lead to two-tier justice. Those without the means to pay the fine attached to a caution will have little choice but to face prosecution, while somebody who can afford to pay the fine will avoid conviction by paying.
Our third concern is that conditional cautions might amount to soft justice. The Government have claimed that their purpose is to extend the means of delivering justice to low-level offenders. The Prime Minister has said that summary justice will be tough and hard, but the maximum fine will be £500—in practice, the figure may be less than that, because it will be no more than one quarter of the maximum fine which could have been imposed, if the offence had gone to a magistrates court. Lower penalties are built into the architecture of punitive cautions. Ordinary police cautions are already employed for serious offences. In 2004, 400 cautions were handed out for wounding or other acts of endangering life, and 451 were handed out for robbery. However, there is apparently no statutory limit to the offences to which punitive cautions could be applied. We do not know for what offences they might be available. That will be decided on the basis of guidance, which we have yet to see, from the Director of Public Prosecutions, approved by the Attorney-General.
The current national guidelines for non-punitive conditional cautions allow for cautions to be used for serious offences that are triable even on indictment only, albeit in rare cases. That could include serious assaults. The danger is that once a punitive element is attached to conditional cautions, they will be used increasingly to deal with more serious offences that should be dealt with in the courts. That would follow the pattern of moves to summary justice that we are now seeing. The Government envisage that 30,000 cases will be dealt with by conditional cautions and a further 250,000 by the extension of fixed penalties. That extension could mean that serious crimes such as assaulting a police officer and mugging are punished by instant fines of up to £100. Conservative Members regard that as completely inappropriate.
In Committee, the then Minister for Policing, Security and Community Safety, the right hon. Member for Salford (Hazel Blears), conceded that punitive cautions are a radical departure from the current law. So they
are, but her justification for the extension of summary justice was wholly inadequate. She said:
“The legal system is complicated, time consuming and sometimes bureaucratic”.—[ Official Report, Standing Committee D, 23 March 2006; c. 165.]
So it is, but that is a reason to reform the magistrates courts, not to shut courts out of the criminal justice process altogether. What is proposed is a fundamental transfer of sentencing responsibility from magistrates, and possibly even judges, where it properly belongs, to prosecutors. The development of summary justice has barely been debated in this House and should not be accelerated by a single, highly controversial clause in a Bill that has received little scrutiny because of the way in which the Bill has been timetabled.
Conservative Members do not wish to support summary justice if it becomes soft justice, but the whole House should be concerned about supporting fast justice if it comes at the price of injustice. That is why we believe that the other place was right to strike conditional cautions from the Bill.
Lynne Featherstone: Liberal Democrat Members are not concerned about conditional cautions—we support and approve of anything that moves towards rehabilitation or reparation—but about the introduction of punitive cautions, particularly in the form of financial penalties. The Government’s proposals mean that punishments will be issued on the spot, circumventing proper judicial procedure. That will lead to a situation whereby we cannot be absolutely certain that there will be no bias or unfairness.
There are several dangers in the Government’s proposed shift. First, it may create one law for the rich and another for the poor. Secondly, there may be increased disproportionality and racism. Thirdly, crimes for which cautions can be issued are not necessarily all that minor and may not remain so.
The Solicitor-General: I am struck by the hon. Lady’s accusation that prosecutors may be involved in racism. They will make these decisions in relation to conditional cautions. Why on earth is she trying to convince the House that prosecutors will deliberately act in the ways that she seems to be suggesting?
Lynne Featherstone: If the Solicitor-General gives me time, I will elaborate. I was referring not to prosecutors but to the people who may be arrested.
Lastly, the purpose of conditional cautions may be transmuted from the original purpose—that is, to offer the criminal the chance of not having to go to court on condition of changing their behaviour. For a Government who are so keen on changing antisocial behaviour, that, with reparation, should remain the purpose. If a fine is used as a punishment, the original purpose will not be served and behaviour will not be changed.
First, let me put on the record the sorts of crimes for which a conditional caution might, according to the Magistrates Association, be given; although I heard the Solicitor-General say that it was not the intention for such crimes to be included, there is no exclusion in the Bill. The offences for which a caution can currently be administered include actual bodily harm, affray, criminal damage, possession of class A or class B drugs, having a bladed article in public, carrying an offensive weapon,
burglary both non-commercial and non-residential and theft. I do not think that any Member of any party thinks that those are minor or low-level offences.
With the advent of fines, Labour will herald in a two-tier system of justice: one law for the rich and another for the poor. Labour’s plans mean that the police will levy fines and issue cautions more often, with the only alternative being for the person concerned to go to court, which, as has been rightly said, is frequently a long-winded and expensive process that can result in their getting a criminal record. The pressure will be on to cop a plea and pay up, but poorer people will suffer more as the fines will be harder for them to pay, and those without the means to pay a fine attached to a caution will have no choice but to face prosecution, whereas someone who can afford to pay the fine will avoid that whole nasty business.
Madam Deputy Speaker: Order. I wonder whether the hon. Lady might consider using the phrase “the Government’s” policies, as that is what they are?
Lynne Featherstone: I apologise, Madam Deputy Speaker. The Government’s pay-and-go policies let those who can afford it off the criminal hook, as they can pay not to have a criminal record, which cannot be right.
Mr. Walker: But am I not right in thinking that if someone appears before a magistrates court, that court will not take into account their earnings, income or savings, and that if they are found guilty in a magistrates court, they will still have a fine levied on them? So the magistrates court does not take into consideration their ability to pay either. Maybe I am wrong.
Lynne Featherstone: No, but the point about going to a magistrates court is that there is a whole other purpose involved—that the public can have confidence that the right person is convicted and it is publicly demonstrated that justice is being done. At present, we just have the arresting officer’s say-so, in effect.
Following on from issues to do with discrimination between the rich and the poor, we also ought to consider issues to do with potential racial discrimination. Pay-and-go policies risk disproportionality, in that black and ethnic minority populations often come from areas of deprivation and are likely to fall into the category of those unable to pay. That is an issue. I see that the Solicitor-General looks puzzled, so I will pursue it now. The racism issue is simple. The evidence shows that where the police have discretionary powers in respect of how to enforce rules, they are often enforced in a disproportionate manner. We know that more of the black and ethnic minority population are arrested.
The Solicitor-General:
I am trying to follow the hon. Lady’s argument. At one point she seems to be in favour of reparative conditional cautions, but at another point she is against any sorts of caution at all because she thinks that everything needs to go before the court, and then she seems to be talking about the police arresting people and to be trying to do
something about that. The situations that we are talking about are post-arrest in the police station, where the police have already gone through that process, and the issue now is whether we have a conditional caution that has various elements or conditions attached to it. I fail to see the logic of the hon. Lady’s argument and where she is going with it. If she can enlighten me, I will be very grateful.
Lynne Featherstone: I am simply saying that a fine is punitive, and if someone can afford to pay that is well and good, but if someone comes from a deprived background they are less likely to be able to pay. The rush to summary justice risks losing the purpose of changing behaviour.
The clause as it currently stands sets out the right to give conditional cautions with the sole objective of punishing the offender. Punishment such as a fine by itself allows the offender to walk away from the reality of what he has done. Without an element of rehabilitation and reparation, it will do nothing to address the underlying reasons why the criminal or disorderly act was committed in the first place. My concern is that the imposition of fines will become easier. As the Solicitor-General said himself, even when a magistrates court imposes fines, chasing the money is a real issue, so I cannot see how this approach will prove an advantage in such circumstances. It will entirely miss out the criminal justice system, which is at least able to give the public the confidence of knowing that the person in question is being charged and brought to court, and punished by a sentencing judge or magistrate.
9.15 pm
We Liberal Democrats think that the current principle of conditional cautions—that only conditions that facilitate rehabilitation of the offender, or which ensure that they make reparation for the offence, may be applied—is a very good thing and the right approach to those who have admitted guilt. It is very important that we find ways of diverting people from offending at the earliest possible stage, which is why the conditional caution is such a constructive tool. The extension of conditional cautions to wider punitive conditions will do nothing to address the underlying problems, the rising prison population or the 60 per cent. reoffending rate. I recognise that calls for due process and the involvement of lawyers, juries and judges do not make for the most exciting of rallying cries, but if we take the inappropriate step of cutting them out of the legal system, the quality of justice and the cause of communal harmony may well suffer.
Someone interviewed on TV might say, “The big problem with our criminal justice system is that it takes so long and it costs so much to deal with so many crimes. We need to speed up punishment for minor crimes, so that people can be punished quickly and we can move on and spend more time on serious crimes.” Essentially, that is the Government’s justification for the proposed new police powers. They will undoubtedly speed things up, but at the serious cost of omitting due legal process.
Mr. Hogg:
If it is put to the vote, I am going to support the Lords amendment. I regret that I disagree with my hon. Friend the Member for Arundel and
South Downs (Nick Herbert) when he says that there is a distinction of principle between fixed penalties and conditional cautions. They are the same. I agree that the sentence—if that is the word that my hon. Friend used—is variable in conditional cautions, but the general proposition is identical in each case. The prosecution, in the case of fixed penalties, is creating a situation whereby there is an adjudication of guilt, and the sentence is less important than the adjudication of guilt. So I am afraid that, as to the matter of principle, I cannot support my hon. Friend.
I turn, however, to an issue where I am on the same side as my hon. Friend. Listening to the Solicitor-General, it became plain to me that although he might not wish conditional cautions to be extended to a range of offences that you and I would class as serious, Madam Deputy Speaker, that remains a possibility. I accept that he spoke of an unwillingness on his part to see them extended to burglary, but it is clearly possible that, over time, they could be. The hon. Member for Hornsey and Wood Green (Lynne Featherstone) referred to class A drugs and the carrying of a knife, as, indeed, did the Solicitor-General. My own feeling is that conditional cautions would be wholly inappropriate to those classes of offence.
We have identified the possibility that conditional cautions will be extended much further than we are presently contemplating. We all know that the parliamentary controls on extending the range of offences to which such a penalty can apply are very limited. I assume—I have not checked—that it is done by statutory instrument. We all know that the order-making powers confer on the Executive very large discretion, and that we have very limited ability to constrain them. So for that reason, if the Lords amendment is put to the vote, I shall support it. I do not wish to see conditional cautions extended to, for example, burglary, carrying a knife or actual bodily harm.
The Solicitor-General: The hon. Member for Arundel and South Downs (Nick Herbert) described the proposals as alarming. Hyperbole has been employed on many occasions, but that description constitutes substantial hyperbole. We plan an extension of conditional cautions, which will enable us to achieve proportionality and an appropriate response to minor criminal behaviour. Such behaviour is often tackled through fines in magistrates courts throughout the land.
The hon. Gentleman presented three arguments. The first was one of principle, the second covered magistrates courts and the objections of the Magistrates Association and the third suggested that the proposals constituted soft law. However, I note that Conservative Members oppose imposing fines, while Labour Members want to ensure that criminals are properly tackled and that the condition of a fine can apply to those who accept a conditional caution.
In considering the issue of principle, the key element is that the defendant must always consent to the conditional caution. That safeguard will always exist. The issue of principle that the hon. Gentleman identified was the court’s need to impose a discretionary penalty. In Scotland, the procurator fiscal has imposed penalties for several years, including a series of fixed penalties. They can be £25, £50, £75 or £100. Following public opinion polls that show
considerable support for increasing the amounts, an increase to a much higher figure is being considered.
There have been elements of discretion in the criminal justice system for as long as it has existed. For example, the police have discretion over whether to arrest someone for a minor offence. There is also discretion over whether to prosecute, within specific limitations. Again, it is important that no defendant has such a punishment imposed on him. If he rejects the conditional caution, he simply goes to court. He gets free legal advice about whether to accept the conditional caution.
The hon. Gentleman suggested that some sort of pressure or coercion could be exerted. Again, as always with a caution, the question arises of whether someone wants to go to court and risk its verdict or admit guilt and accept the caution. That applies now. We want to ensure that there are appropriate ways in which the penalties are considered. When the Joint Committee on Human Rights considered the conditional cautions in the 2003 Act, it was satisfied that the safeguards attached to the caution were sufficient to ensure that consent would be truly voluntary and that undue coercion would not be applied.
The hon. Gentleman’s second argument applied to the magistrates court. I am a great supporter of the magistrates court, which is a fine way of doing justice. However, much work is going through the magistrates court and some of it is fairly low level, involving, for example, petty offences. That, especially given current high arrest rates, means that work has crowded into magistrates courts, leading to substantial delays. A few weeks ago I was in Hertfordshire, where it can take eight months to put on a trial. That time has been reduced through the work of the magistrates court. In February, it was listing trials for 2007.
Magistrates courts are good at contested cases and serious cases. We should give them the credit that they deserve for the serious cases, rather than making them deal with many low-level petty offences, most of which they tackle through a standard fine. A conditional caution could deal successfully with many such offences. When conditional cautions have been tried in the pilot areas, victims’ response to a fairly quick result and getting the compensation paid has been positive. Many of the Magistrates Association’s objections are therefore without genuine foundation, because there is no attempt to devalue magistrates courts. On the contrary, the aim is to increase the value of their work.
Mr. Walker: In July, the Home Secretary caught the mood of the House when he talked about doubling the prison sentence for carrying a knife. Will the Solicitor-General assure us that conditional cautions will not be used for people carrying knives, just as they will not be used in cases of burglary?
The Solicitor-General: As I understand it, the Home Secretary said that the aim was to increase the maximum sentence. The courts must determine the appropriate sentence for each case. We take the view that when knives have been involved in an offence, it would not be appropriate to issue a conditional caution. We need to recognise, however, that some cases in which young people have been carrying knives are not dealt with by heavy penalties in the court system. A degree of proportion is needed when dealing with these matters.
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